COURT'S ORDER COULD MAKE MARIJUANA PROBLEM MUCH WORSE

Normally, 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 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.

State, federal tension

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.

Marijuana complaints

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.