MARIJUANA LAW

Judge grants injunction preventing parts of medical pot law from taking effect

2011-06-30T17:06:00Z 2014-07-09T18:55:00Z Judge grants injunction preventing parts of medical pot law from taking effectBy CHARLES S. JOHNSON Gazette State Bureau The Billings Gazette

HELENA — A Helena district judge on Thursday temporarily blocked from taking effect on Friday some of what the medical marijuana industry deemed the most onerous parts of the more restrictive law passed by the 2011 Legislature.

However, District Judge James Reynolds refused to temporarily block implementation of the entire law, as the Montana Cannabis Industry Association and other plaintiffs had sought.

Reynolds temporarily struck these major provisions of the law from taking effect and in so doing returned the law to what it had been before:

-- Forbidding medical marijuana providers (formerly called caregivers) from charging patients for medical pot as they could previously. By his ruling, providers can continue to charge patients for medical marijuana.

- Limiting to three the number of patients (known as card holders) a provider may grow for. The original law had no limits. Reynolds' ruling will allow providers to sell medical marijuana for as many patients as they wish.

"The ban on providers receiving compensation and limiting the number card holders that each provider can serve will certainly limit the number of willing providers and will thereby deny the access of Montanans otherwise eligible for medical marijuana to this legal product and thereby deny these persons this fundamental right of seeking their health in a lawful manner," Reynolds wrote.

Reynolds added: "By these provisions, the Legislature is attempting to make it as difficult and as inconvenient for persons eligible under state law to use medical marijuana to obtain this legally authorized product."

-- Allowing local and state law enforcement officials to make unannounced inspections of the premises where providers grow medical marijuana. Under his ruling, these searches will not be allowed for the time being.

-- Requiring that physicians who recommend medical marijuana for more than 25 patients in any 12-month period be automatically subject to a review by the state Board of Medical Examiners at the physician's cost. His ruling will maintain the status quo, in which physicians can recommend medical marijuana to as many patients as they deem reasonable medically.

"The court is unaware of and has not been shown where any person in any other licensed and lawful industry in Montana — be he a barber, an accountant, a lawyer or a doctor — who, providing a legal product or service, is denied the right to charge for that service or is limited in the number of people he or she can serve," Reynolds wrote.

--Banning any advertising for medical marijuana. Reynolds ruled that medical marijuana advertising is allowed.

"Medical marijuana is, under this law, a legal substance," the judge said. "Advertising concerning it cannot be banned consistent with First Amendment principles."

Lawyers for Attorney General Steve Bullock conceded that temporarily enjoining most of these provisions wouldn't affect the integrity of the rest of the law.

The temporary injunction of certain sections of the bill will stand until the court has a hearing and decides whether to issue a permanent injunction.

After Gov. Brian Schweitzer this year vetoed a bill that would have repealed the voter-passed 2004 initiative that legalized medical marijuana in Montana, lawmakers passed another bill that sought to impose some tougher restrictions on an industry that many considered out of control.

Montana has seen an explosion of medical marijuana card holders, from 4,000 in September 2009 to 31,500 in May. The number of card holders skyrocketed after the Obama administration's Justice Department said in the fall of 2009 it wouldn't prosecute people who use or distribute medical marijuana in states that had legalized it. The administration is reconsidering the policy, and federal agencies have conducted raids on a number of medical marijuana growing and distribution operations in Montana this year.

Another major factor that led to the escalating number of medical marijuana cards here were "cannabis caravans" that signed up thousands of patients around the state. People saw physicians, often from out of state and sometimes by videoconferencing, or only a few minutes at times before obtaining recommendations for cards. That practice has been banned by the Board of Medical Examiners.

It wasn't a complete victory for the Montana Cannabis Industry Association, which asked that the entire law be stricken temporarily. 

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