MONTANA MEDICAL MARIJUANA UNSETTLED; AG'S OFFICE MIGHT APPEAL INJUNCTION

HELENA - The status of medical marijuana in Montana remains somewhat
unsettled, despite a Helena district judge's decision last month to
temporarily block some more onerous restrictions of a 2011 state law.

The attorney general's office may appeal parts of Judge James
Reynolds' June 30 order. The opposing lawyer for the Montana Cannabis
Industry Association doesn't plan an appeal, but voiced concern over
part of the decision. The judge will set a hearing, probably later
this year, on whether to grant a permanent injunction.

Petitioners are starting to gather signatures for a referendum
seeking to stop the 2011 law in its tracks by suspending it and
preventing it from being enforced until Montanans decide in 2012
whether to reject or keep it. An East Helena woman who used medical
marijuana for back problems wants to treat pot like alcohol and filed
the initial paperwork last week for a constitutional initiative to
decriminalize marijuana.

Medical marijuana providers - formerly caregivers - are scrambling to
submit the needed paperwork to comply with the new law. Patients must
to file new papers identifying their providers. And Jason Christ of
Missoula, who started the controversial traveling "cannabis caravans"
to sign up thousands of cardholders, is launching new efforts. (See
related story.)

Although no one wants to talk about it publicly, the specter of more
federal raids on medical marijuana growing operations here looms.

After the number of medical marijuana cardholders nearly quadrupled
over a year to 27,300 last December, many legislators were determined
this year to repeal, or at least toughen, the 2004 voter-passed
initiative legalizing use.

After Gov. Brian Schweitzer vetoed the repeal bill, lawmakers passed
Senate Bill 423 to rein in an industry that lawmakers believe had
careened out of control. After Schweitzer let it become law without
his signature, the law was promptly challenged in court by the
Montana Cannabis Industry Association and others.

On June 30, Reynolds preliminarily enjoined key parts of the law. He
halted provisions that would have forbidden providers from charging
for medical pot and that would have limited them to three patients
apiece. He blocked a provision that would have allowed law
enforcement officials to make unannounced inspections of places where
providers grow marijuana. Reynolds also stopped a provision that
would have required the Board of Medical Examiners to automatically
review any physician who recommended medical marijuana for 25 or more
patients in a year.

Attorney General Steve Bullock's office is deciding whether to appeal
parts of Reynolds' ruling to the Supreme Court or seek a full hearing
during the permanent injunction hearing, said Jim Molloy, one of the
attorneys arguing the case.

"We do have concerns about a holding that would suggest that there is
a fundamental constitutional right to sell marijuana," Molloy said.
"We think the Legislature acted within its authority when it tried to
allow access to people who truly need it, but take away the
commercial industry that created so many of the problems."

The attorney general's office also may ask Reynolds to reconsider his
temporary stay on inspections since he's allowing commercial medical
pot providers to exist.

James Goetz, the Bozeman attorney representing the Cannabis Industry
Association, said he's not considering an appeal. However, he's
concerned about Reynolds' leaving in place the part of the law that
prevents people in custody or under the supervision of the
Corrections Department or youth court from getting medical marijuana
cards. The judge said challenges to this ban should be made on a
case-by-case basis.

"We are seeking how Corrections and how Health and Human Services
deal with that," Goetz said. "Some of these probationers are in
serious medical need. There may be future action on that."

The preliminary injunction will remain in effect until there is a
court hearing on the request for a permanent injunction.

By the time a hearing is held, however, the 2011 law could be suspended.

A group called Patients for Reform - Not Repeal has launched a
referendum effort so voters in November 2012 can decide the fate of
the law. To do so, it needs the signatures of 5 percent of voters in
34 of the 100 state House districts or at least 24,337 signatures.

To suspend the law from being enforced until voters decide, the group
need the signatures of 15 percent of voters in 51 of the 100 House
districts. That will take between 31,238 and 43,247 signatures by
Sept. 30 depending on which districts they use, according to the
secretary of state's office.

Even Patients for Reform - Not Repeal conceded on its website that
possibility of obtaining enough signatures to suspend is "extremely
difficult," adding "chances are that the Legislature's bill will be
in effect until next year when Montanans vote."

Anti-SB423 petitions haven't hit the streets as quickly as some had
expected. The reason is because the group wants to train 1,000
volunteers on the legal requirements to gather signatures.

"Nobody wanted anyone to gather signatures until they've been
trained," said Kate Cholewa, spokeswoman for the Cannabis Industry
Association. "We want to be by the book and make sure everyone does
it right. It's not that simple."

Meanwhile, changes in the law have created confusion for both medical
marijuana providers and patients.

"I think people are scrambling," Cholewa said. "I think of all the
paperwork that has to happen for caregivers to become providers. The
patients have to do a change-of-provider form. There's bureaucratic
work that has to be done for people to be safe and legal. The
Department (of Public Health and Human Services) is in the position
where they need to make modifications in order to reflect the changes.

"As a result, there's a lot of people who do not have access right
now, people who have dropped out."

In response, department spokesman Jon Ebelt said the agency at this
time is accepting, but yet not processing, provider applications and
has received about 200 so far.

"They are being date-stamped and will be processed in the order they
are received," he said. "Updates to our computer system are near
completion, and we will begin processing provider applications very soon."

Ebelt said the department is able to process medical marijuana
patient applications, so that work has continued since the new law took effect.

For apparently the first time since the 2004 law took effect, the
number of registered marijuana cardholders in Montana has dropped.
There were 30,036 cardholders in June, down from 31,522 in May.

The sponsor of SB423, Senate Majority Leader Jeff Essmann,
R-Billings, vowed to seek a legislative audit examining how the
department has administered the program. He was incensed to learn
recently that one physician had recommended marijuana for more than
one-fifth of all Montana cardholders.

"Can any physician have a bona fide doctor-patient relationship with
6,861 patients?" he asked. "And the district judge is prohibiting us
from referring this physician for review by the Board of Medical Examiners."

The Republican senator accused Gov. Brian Schweitzer and his
administration of being responsible for the problems.

"I think the blame for this entire fiasco lies at the feet of the
Schweitzer administration for failing to follow the law," he said.
"The light should have gone over in that department that there's a
problem with some of those doctors and maybe we should be looking at
what they're doing."

In response, Public Health and Human Services Director Anna Whiting
Sorrell said in a statement, "The governor did not sign Senate Bill
423 because it was blatantly unconstitutional and riddled with
problems. ... The law was ambiguous and has conflicting provisions.
The governor has always favored increased regulations over medical
marijuana in Montana."