Medical marijuana battle escalates in Montana

In Montana, where the state legislature all but repealed the state’s medical marijuana laws this spring, the court battle has begun–as has the battle for public opinion. The Montana Cannabis Industry Association filed suit to block implementation of the law. Now, the state has responded with court filings of its own.

The state’s attorney general says the new more restrictive law is not unconstitutional, and the AG’s office is prepared to fight tooth and nail for it in court beginning in about two weeks. Meanwhile, that same attorney general’s office is tasked with certifying the language being used in a referendum drive to overturn that very law.

From The Billings Gazette:

The attorney general’s office said the new provisions are intended to be faithful to the original intent of the ballot measure, “while correcting and reining in the unintended and undesirable abuses and problems that have undeniably occurred.”

At issue is Senate Bill 423, a heavily debated bill passed by the 2011 Legislature and allowed to become law without Gov. Brian Schweitzer’s signature. It repealed the 2004 referendum and imposed more restrictions on a medical marijuana industry that a majority of legislators believed has reeled out of control. The law also made it harder for patients claiming “severe chronic pain” to qualify for a medical pot card.

The law will ban major medical marijuana growing operations and replace them with a “grow-your-own” system or let a provider grow for up to three patients, but for no charge.

Montana now has than 30,000 medical marijuana cardholders, up from 4,000 in September 2009. Thirty percent of them fall within the 18-30 age group. More than 80 percent of cardholders got their cards after claiming “chronic pain” or “severe or chronic pain or muscle spasms,” classifications that some legislators considered to be the major loopholes.

The lawsuit filed by the Montana Cannabis Association and others said the new law violates their constitutional rights to equal protection, privacy, dignity, freedom of speech and due process. It also mentioned their right to pursue life’s basic necessities, including personal health, and their right against unreasonable searches and seizures.

In response, the attorney general’s office said the law follows the intent of the 2004 initiative, which carved “a narrow exception from criminal sanctions for the controlled purpose and use for medical purposes.”

The initiative was never intended to create a commercial growing system, but envisioned a “grow-your-own system” to allow people to have their own “personal supply,” the attorney general’s office said, quoting from the 2004 Voter Information Pamphlet.

Under the new rules, fewer people will qualify for medical marijuana cards and dispensaries will be out of business. Each patient will have to designate who their grower is and each grower will be restricted to growing for no more than three patients. Growers will not be allowed to charge patients any money for the marijuana. Patients claiming chronic pain will need two doctors’ recommendations.


The temporary regulations involve added complexity for patients and marijuana providers to be a registered member of the state’s new pot industry.

Growers can only provide marijuana for up to three patients under the new rules, they could previously provide for an unlimited number.

Also, growers can now only register to be a provider if a patient has already applied to the department with an application that names the grower.

Once the department accepts that application, the grower is sent an application packet. If the grower’s application is accepted, the patient is given a new marijuana card naming their provider.

Patients will have new complexities to navigate as well. They have to choose between three different physician forms in their application for a marijuana card: chronic pain, a debilitating condition or a separate form for minors.

Critics of the previous system said chronic pain was a vague condition abused by cardholders who didn’t need the drug. Now, an applicant who claims chronic pain must provide either physical proof, like an X-ray, or a second doctor’s confirmation of the diagnosis.

As the state begins issuing new cards to people who must follow the new rules, people who have cards under the old system will remain legal medical marijuana patients until their cards expire, says Jim Gingery, head of the Montana Medical Growers Association, which is supporting the lawsuit and leading the petition drive to overturn the law.

He says that in Montana, what happens to the petitions depends on how many signatures his group is able to get. If they get enough valid signatures, the new law would be suspended and the old law would again be in effect until the voters can vote on the matter in 2012. If a lower number of signatures are validated, the new law law would remain in effect until the matter is decided by voters.

He said they need about 45,000 signatures to suspend the law, but they need a certain number from each of at least 51 out of 100 districts in the state. He said they are planning to get signatures in every district and so far have about 500 volunteers signed up to collect signatures.

They have until October to collect signatures but can’t get started until they get the go-ahead from the atorney general’s office.

He says once the new law is fully implemented July 1, all dispensaries will have to be shut down. He said that people who have cards under the current system will still be able to possess medical marijuana but may have no legal way to obtain it.

Scot Kersgaard has been managing editor of a political newspaper, editor and co-owner of a ski town newspaper, executive editor of eight high-tech magazines (where he worked with current Apple CEO Tim Cook), deputy press secretary to a U.S. Senator, and an outdoors columnist at the Rocky Mountain News. He has an English degree from the University of Washington. He was awarded a fellowship to study internet journalism at the University of Maryland's Knight Center for Specialized Journalism. He was student body president in college. He spends his free time hiking and skiing.


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