State Supreme Court to Weigh Commercial Marijuana Sales

By Beacon Staff

HELENA — The Montana Attorney General’s office will make its case Wednesday to the state Supreme Court that the commercial sale of medical marijuana should be halted.

Assistant Attorney General Jim Molloy is set to argue that District Judge James Reynolds improperly blocked that portion of the new medical marijuana law passed by the 2011 Legislature.

Meanwhile, the plaintiffs led by the Montana Cannabis Industry Association say that Reynolds should have gone further and blocked the entire law, not just the provision keeping marijuana providers from making a profit. They will ask the state’s high court to do so until their lawsuit can be heard.

The new law imposes limitations on who can access and distribute medical marijuana. The law was passed by the Republican-led Legislature after Gov. Brian Schweitzer vetoed a total repeal of the 2004 voter-approved initiative that brought medical pot to the state.

Supporters of the legislation touted it as a compromise meant to rein in an industry they say had spiraled out of control since 2009. When U.S. Department of Justice said then that it would not prosecute individuals who are clearly following state laws, the number of registered medical marijuana users in Montana jumped from about 3,000 to more than 30,000 at its peak last year.

The Montana Cannabis Industry Association challenged the law’s constitutionality in court and spearheaded a voter referendum to repeal the law in November.

Reynolds blocked the key part of the law that bans marijuana providers from being compensated for their services and limits the number of registered users a provider can have to three.

Reynolds blocked three other provisions of the law — a ban on advertising, allowing warrantless searches of medical marijuana premises and investigating doctors who recommend pot to more than 25 patients a year — but the state is only challenging the injunction on commercial sales.

If the high court upholds Reynolds’ injunction, it will be “groundbreaking” as the first appellate court to rule that medical marijuana restrictions violate patients’ constitutional rights, Molloy argues in documents filed with the court.

“From our perspective, the crux of the issue is whether there is a constitutionally protected right to access marijuana for medical use,” Molloy said Tuesday.

Montana Cannabis Industry Association attorney Jim Goetz argues in his filings with the court that the provisions that Reynolds blocked are so instrumental to the new law that the rest of the provisions should not be allowed to stand.

The law singles out marijuana from other types of medication for special treatment and intrudes into the doctor-patient relationship in violation of the state Constitution, which has had a chilling effect on certifying patients, Goetz wrote.

“The legislation is a severe overreaction to a relatively insignificant problem — explainable only by an irrational distrust of marijuana,” Goetz wrote.

Goetz declined to comment before the arguments before the court.

The justices could uphold Reynolds’ decision, reverse Reynolds’ ruling and ban commercial sales of pot, temporarily block the entire law until the court challenge is heard or rule on some variation of those scenarios.

The justices are not expected to make an immediate decision.

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