HELENA – A Helena judge said Wednesday that he is “struggling” with Montana’s new medical marijuana law and indicated he may temporarily block at least parts of it before it takes effect on July 1.
District Judge James Reynolds specifically mentioned concerns with a provision that bars commercial marijuana operations by prohibiting providers from making a profit or being reimbursed for their expenses.
Reynolds said the state doesn’t have a similar prohibition on pharmaceutical companies that profit from prescription drugs. But the new law would force marijuana providers to give their product away to people with debilitating illnesses, he said.
“The state is truly relying on guardian angels coming forward,” Reynolds said.
Reynolds did not make a ruling as he closed a three-day hearing on a medical marijuana industry group’s request for him to block the law. He said he will decide before July when whether to stop the whole law or just selective parts of it.
“I am wrestling with this,” Reynolds said. “It seems like there are many parts of this that are not in dispute. But do I want to sit down with a red pen and mark those parts that are more troubling or are in dispute?”
The law was passed by the 2011 Legislature in an attempt to rein in what most lawmakers said has become an out-of-control industry. Montana has more than 30,000 registered medical marijuana users out of a total population of just below 1 million — one of the highest adult user rates out of the 15 states that allow medical pot use.
Medical marijuana providers and advocates say the new law will deny the drug to the most seriously ill, will allow warrantless searches of providers’ and users’ homes and will subject doctors to an extreme level of scrutiny.
The Montana Cannabis Industry Association is suing the state, with attorney James Goetz saying the law violates the patients’ constitutional right to pursue good health. The group is asking Reynolds for a temporary injunction until the case can be heard. The group is also pursuing a voter referendum to block the law from taking effect.
Assistant Attorney General Jim Molloy said the right to health care does not give patients access to an unbridled, unregulated scope of options, and said marijuana is still an illegal drug under federal law. Using that constitutional argument to block the law would be groundbreaking, Molloy said.
“He really would be doing something no other court has done in terms of medical marijuana,” he said.
Molloy said the state would not object if three parts of the law were temporarily blocked: a prohibition on marijuana providers advertising their services, the ability for law enforcement to hold unannounced inspections and a provision that would require a doctor to be investigated if he certifies more than 25 medical marijuana patients in a year.
Molloy told Reynolds those three provisions could be blocked without doing harm to the rest of the law, but that the rest should remain intact.
“The state is not after bona fide users of medical marijuana. There is no evil Big Brother mechanism that is going to run wild,” he said.
Goetz argued that the entire law should be blocked, not just parts of it.
“You can’t take a statute that is a real mess, which this is, and just kind of do a Band-Aid approach to it,” Goetz said.
But blocking the entire law may cause unintended consequences, Molloy said. Parts of the new law have already taken effect, and blocking that now may result in removing the state health department’s ability to issue medical marijuana cards, he said.
Goetz said the law would revert to the medical marijuana initiative approved by voters in 2004 if the new law is blocked.
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