MARIJUANA RULING WRONG

I believe that legislators should not comment on a pending lawsuit,
and the suit challenging Senate Bill 423 (the revision the 2011
Legislature made to the 2004 Medical Marijuana Act) is still pending
in Lewis and Clark County.

An order on motion for a preliminary injunction has been issued, but
the case has not gone to trial.

The case is "political" in nature and I believe that comment is
warranted. It concerns a bill just passed by the Legislature to more
closely regulate the production and use of medical marijuana.

Judge James P. Reynolds was doing his duty as he saw it and expressed
himself well in his recent order. However, I find his order troubling.

The order refers to patient's right to "lawfully" receive medical
marijuana, ignoring the fact that it is unlawful under federal law to
grow, sell or use marijuana. The order ignores the tension between
state and federal law and assumes that it is legal to use medical
marijuana. The judge's order in effect says that it is a fundamental
right under the Montana Constitution to violate the federal criminal law.

However, the order's most problematic aspect is its holding that the
provision of the statute that limited the compensation paid to
"providers" who grew the plant for patients, and the number of
patients that they could supply, is unconstitutional.

The order states that the right to supply any number of patients and
make a profit selling marijuana is protected by Article II, Section
3, of the Montana Constitution; in fact it was a "fundamental
constitutional right."

If the commercial growing of marijuana is a fundamental right, it
seems that the Legislature cannot restrict large grow operations, nor
even ban the sale of marijuana for a medical purpose if it wanted to
do so. There would be less control by the state over medical
marijuana than it exerts over alcohol, or even tobacco; e.g., the age
of the user.

The Legislature realized the tough situation that federal law
enforcement was put in by the current law, and the risk to Montana
citizens who wished to benefit from medical marijuana, either as a
grower or a medical user. The Legislature was attempting to limit
production in a way that would not attract federal attention. The
judge chose not to address this issue.

Medical marijuana has been a serious problem for some time and many
Montanans have complained to the Legislature.

As examples of these problems: The current law allows unrestricted
advertising, large grow operations, uncontrolled issuance of medical
marijuana cards, and makes it impractical for state law enforcement
to enforce the law.

If this preliminary injunction survives in anything like its present
form through the Montana Supreme Court, Montana will have no control
over the commercial production of marijuana or its use. Holding that
the production and use of marijuana is a fundamental constitutional
right will reduce to almost nil the state's ability to control the
use and production of marijuana. I believe that the problem with
medical marijuana will be much worse should this order survive the process.