JUDGE MAY BLOCK PART, OR ALL, OF NEW MONTANA MEDICAL MARIJUANA LAW

HELENA - District Judge James Reynolds signaled strongly Wednesday he
may temporarily strike down portions of Montana's restrictive new
medical marijuana law - if not the entire statute - before it takes
effect July 1.

The judge expressed particular concern over one key change that
requires medical marijuana providers to supply pot to their patients
at no cost starting July 1. Under the current law, caregivers sell
medical marijuana to their patients.

"The state is truly relying on guardian angels to come forward,"
Reynolds said. He added that the government hadn't told the
pharmaceutical industry, "You develop cancer drugs, and you give it
away."

In another major development, a lawyer for the attorney general's
office said the state was willing to concede that three provisions of
the new law can be struck down, at least temporarily, until a full
hearing.

As the three-day hearing drew to a close, Reynolds said he's
"wrestling" with the question of "toppling the whole thing versus its
parts." He promised an order, if not a full decision, by June 30.

"Do I want to sit down with a red pen and excise the parts that are in
trouble?" the Helena judge asked.

The Montana Cannabis Industry Association, a marijuana trade group,
sought a temporary injunction, contending the law is unconstitutional
and should be temporarily blocked from implementation.

Its attorney, James Goetz of Bozeman, said Montanans are entitled to
the right to pursue health under the Montana Constitution's
Declaration of Rights - and that includes the right to have medical
marijuana if needed.

"The court should preliminarily enjoin the statute, not do a lot of
surgery, and set the case for hearing," Goetz said.

However, Assistant Attorney General Jim Molloy, representing the
state, disagreed, saying: "I don't believe a complete injunction
prohibiting all of this is appropriate."

Earlier, Reynolds had asked attorneys for both sides to identify any
provisions in the new law that could be struck down because of
potential legal problems.

Molloy said there were three provisions "that would not be too
problematic" if they were separately blocked, while the state reserved
the right to defend them in a full hearing.

The first one conceded by Molloy would ban all medical marijuana
advertising. A temporary restraining order already has blocked the
advertising.

The second would allow law enforcement officials to make unannounced
searches at places where providers grow medical marijuana.

The third would require the state Board of Medical Examiners to
conduct a formal review of any physician who recommended medical
marijuana for 25 or more patients in any 12 months. The doctor would
have to pay for the costs.

While the state believes the 25-patient trigger is legitimate, "the
state has no desire to restrict a doctor's ability to exercise
appropriate, sound, professional judgment," Molloy said.

The assistant attorney general told Reynolds there is room for "a
little bit of common sense" under the new law.

Referring to Goetz's witnesses, Molloy said law enforcement officers
aren't going to go after an elderly man raising marijuana for his ill
wife in their home or a man with head, neck and throat cancer trying
to obtain his medical marijuana.

"I don't think there's an evil big brother mechanism that is going to
run willy-nilly," Molloy said. "I don't believe a complete injunction
prohibiting all of this is appropriate."

Goetz, however, urged Reynolds to strike down the whole law
temporarily, but conceded some provisions could stand.

"You can't take a statute that is a real mess, which this is, and kind
of do a Band-Aid approach," he said.

Goetz provided a legal memo that said if the new law is struck down,
the current law would stand.

"This is a piece of sausage that didn't turn out very tastefully,"
Goetz said. "It's just a mess, your honor."