FEDERAL ROLE IN MEDICAL MARIJUANA DEBATED

HELENA -- Panelists Monday night for different reasons criticized the
federal government for its handling of the medical marijuana issue.

Former U.S. Attorney William Mercer of Billings, and state Reps. Gary
MacLaren, R-Victor, and Diane Sands, D-Missoula, discussed the
tensions of changing federal policy on medical marijuana and how its
effect on Montana. Voters by a wide margin had approved an initiative
in 2004 to legalize the use of marijuana for certain medical reasons.

The panel discussion kicked off the conference, sponsored by the
Burton K. Wheeler Center, on medical marijuana in Montana, It
continues Tuesday at the Red Lion Colonial Inn.

For the past 40 years, Mercer said, the federal government has been
concerned about the use and trafficking of illegal drugs, including
marijuana. To fight it, the federal government has tried to deter it
by spending money on law enforcement, education and treatment.

He said the federal government didn't change that position on medical
marijuana until 2009 when the Justice Department under the Obama
administration issued a policy statement known as the Ogden memo.

"The Department of Justice did sort of a curious thing at the federal
level," Mercer said. "A deputy attorney general said as long as your
behavior comports with the laws of the state with respect to medical
marijuana, you will not be subject to the law enforcement arm of the
federal government."

Mercer, a Republican who was U.S. attorney for Montana under the Bush
administration, was still on the job at the time because the Obama
administration had not yet named his replacement.

That created a situation "that was tremendously challenging for a lot
of people in this room" who were relying on that memo," he said.

"I said don't put a lot of confidence in that," he said."That's just a
policy statement. The next attorney general might come in and say, no,
we're going to do what we were doing in 2004. Our job is to enforce
the law, not to ignore the law."

Montana's number of medical marijuana cardholders shot up after the
Ogden memo from about 4,000 in September 2009 to 30,000 in June 2011.
The total has dropped to about 26,500 last month.

"People looked at the federal government and thought they were backing
away from their role," Mercer said.

The Obama administration took a different tack in June when the
Justice Department issued a statement known as the Cole memo that told
the DEA and U.S. attorneys to make cewrtain medical marijuana
dispensaries top priorities for prosecutors and drug
investigators.

Sands, who headed a committee last year that studied the issue, said
most of the Montanans who were growing medical marijuana thought it
was legal and that it should be limited to people with certain medical
conditions.

She was highly critical of the federal government for not being
willing to change its attitude toward medical marijuana.

She said 17 states, mostly in the West, have legalized medical
marijuana.

"There seems-and I 'm not an attorney-no space whatsoever for
negotiation, balance, bargaining or anything with the federal
government," Sands said.

Mercer said he doesn't look for either federal executive branch
agencies or Congress to change the anti-drug plan it has followed the
past 40 years.

MacLaren said it was after the Ogden memo's release that the number of
Montana's medical marijuana cardholders skyrocketed.

That's when the phone started to ring," he said. "That's when it
started to mushroom."

That led an interim committee to study the medical marijuana issue
last year.

The 2011 Legislature passed a law that made it much harder for people
to get medical marijuana cards. It was immediately challenged in court
by the medical marijuana industry, and a district judge in late June
temporarily struck down some key provisions.

Opponents also are gathering signatures to put a referendum on the
2012 ballot to let Montanans decide if they want to keep or reject the
law.

Mercer said as long as the Federal Drug Administrator is the arbiter,
he doesn't think the federal government will change its position on
marijuana.

But Dr. Chris Christensen, a Victor physician who specializes in
medical marijuana treatment, said that decision is within the purview
of the Drug Enforcement Administration, not the FDA. A federal judge
told the DEA several times that it needed to reclassify marijuana, he
said, but the agency has refused.

He said the federal judiciary needs to review the judge's ruling,
because Justice Department officials "have acted incorrectly."

Rep. Mike Miller, R-Helmville, said a lot of the problems would go
away if medical marijuana was classified more correctly as a schedule
two or three drug, not as a schedule one drug as is now.