SCHWEITZER SAYS MEDICAL MARIJUANA BILL IS UNCONSTITUTIONAL

HELENA -- Calling the newly passed bill overhauling the state's
medical marijuana law "unconstitutional on its face," Gov. Brian
Schweitzer said Wednesday that he wants to issue an amendatory veto to
fix the parts he considers legally defective.

"I'd like to amend it, that's what I would like to do, and we'll see
what it looks like when it gets here," Schweitzer said. "The bill as
written is not going to survive the courts."

His comments came after the Senate approved Senate Bill 423, by Sen.
Jeff Essmann, R-Billings, by 33-17. The House approved it 70-30. SB423
now will be sent to Schweitzer, who earlier vetoed House Bill 161, by
Speaker Mike Milburn, R-Cascade, that would have repealed the 2004
voter-passed medical marijuana law.

Montana voters approved a 2004 ballot initiative by 62 percent to 38
percent to legalize the use of marijuana for medical purposes.

Montana now has nearly 30,000 medical marijuana users. Many patients
are supplied by large-scale grow operations with store-fronts, and
some were registered en masse via traveling cannabis caravans, where
doctors prescribed the drug to hundreds of patients after brief screenings.

SB423 prohibits any sale of marijuana by asking for the drug to be
given to patients free of charge, on compassionate grounds. It
severely limits the number of people growers can provide to, from
unlimited to just three.

Doctors would be required to establish lasting relationships with
patients before prescribing use, and would be put under supervision if
they suggest the treatment to more than 15 patients a year.

Applicants who claim to have chronic pain would have to present
objective proof, such as an X-ray, or a second doctor's opinion
confirming that person's condition.

Schweitzer criticized the House for tabling in committee House Bill
68, by Sen. Diane Sands, D-Missoula. The bill was proposed by a
bipartisan interim committee after much study and many hearings last
year.

"They threw that in the garbage and now they're going to send bring me
this (SB) 423, which everybody whose read it says, 'Oh yeah, it's
unconstitutional. A legal challenge will not survive,'" he said. "I'm
kind of disgusted right now."

If Schweitzer receives the bill before lawmakers adjourn, possibly
Thursday, he can make an amendatory veto suggesting changes to the
bill that the House and Senate would vote on.

If he gets the bill after they leave, Schweitzer has three choices:
sign it into law, veto it or let it become law without his signature.

Schweitzer said he hopes he has a chance to suggest changes to
SB423.

"Unfortunately, if they don't allow us to get our amendments up to
them, it's likely to not survive legal challenges," he said. "It seems
to us unconstitutional on its face."

Essmann said later that he received a series of amendments from
Schweitzer's staff that the governor wants to make to SB423. He said
he agreed with House leaders to review the suggested amendments
together and decide what they want to do.

Essmann said all three branches of government each get to offer their
opinions on the constitutionality of legislation.

Schweitzer questioned the provision that says that if people receive
medical marijuana cards, they must have them on their possession at
all times, regardless of whether they have marijuana on them. In
addition, cardholders' names and addresses are provided to local law
enforcement officials, who have the right to search their homes at any
time.

"That violates your constitutional rights (against) illegal search,"
he said.

Essmann defended this provision, saying it's similar to implied
consent in driving while intoxicated laws in which people suspected of
drunk driving are asked to blow into a breath machine.

If patients are growing their own medical marijuana, Essmann said, "I
don't think law enforcement is going to be coming in in the middle of
the night."

Schweitzer also said he believes the bill violates the federal Health
Insurance Portability and Accountability Act, or HIPAA.

"If you're taking OxyContin or penicillin or, for God's sake, even
aspirin, that is your own personal health care records," he said. But
HB423 is "demanding" that the fact that someone is using medical
marijuana and "be turned over to law enforcement in every town."

"There's another problem with it, and I think it's a fundamental
problem," Schweitzer said. "Under this bill, I will guar-an-dang-tee
you, that there will be more illegal marijuana (that) makes it to the
alley under this proposal than we currently have because now you're
going to have 4,000, 5,000, 6,000 people growing their own. It's not
possible to monitor all of them."

Schweitzer said the bill would be better off allowing a few
centralized growers that are "heavily regulated and heavily taxed,
bonded and insured, so that none of this stuff makes it to the illegal
chains."

"I mean does someone with a straight face think you can have 5,000
people growing their own and none of it makes it to high schools or to
college dorm rooms?" he said.

Essmann, however, said a new letter from the U.S. attorney for
Colorado makes it clear that the U.S. Justice Department has legal
problems with states using centralized marijuana growing operations.
He said the Senate had proposed larger growing operations, but the
House opposed the idea.

Schweitzer criticized the Legislature for managing to "squander away"
most of the 90-day legislative session before sending him the bill. He
said lawmakers already know it's unconstitutional, which is why they
put a "severability clause" in it saying if a court strikes down part
of the bill, the rest stands. Severability clauses are common in
complex bills.

"Why don't you just pass something that works, that's constitutional
and that can survive the test of time?" he asked.