AG says new medical marijuana law shouldn't be stopped

2011-06-03T20:20:00Z 2011-06-04T07:11:30Z AG says new medical marijuana law shouldn't be stoppedBy CHARLES S. JOHNSON Gazette State Bureau The Billings Gazette

HELENA — The state's medical marijuana law is not unconstitutional, and those challenging it are not entitled to a preliminary injunction to stop it from being implemented, the state attorney general's office said in a court filing Friday.

Attorney General Steve Bullock's office was responding to a lawsuit filed in state District Court last month by the Montana Cannabis Industry Association and seven individuals asking District Judge James Reynolds of Helena to strike down the Medical Marijuana Act as unconstitutional.

Reynolds has set June 20 and 21 for oral arguments.

Those challenging the law haven't met the burden of establishing that the law is unconstitutional in its entirety, the attorney general's office said.

If even part of the law is ruled unconstitutional, the law's severability clause allows the rest of its provisions to remain intact, said the memorandum by Bullock; James P. Molloy, his chief of consumer protection; and Mark W. Mattioli and J. Stuart Segrest, both assistant attorneys general.

The state said the state Department of Public Health and Human Services and local offices have already begun to implement the new law.

"A preliminary injunction prohibiting enforcement of the (law) in its entirety would create significant problems and confusion," the attorney general's office said.

In a legal memorandum, the office said those challenging the law have erroneously elevated the voter-passed 2004 statutory initiative that legalized medical marijuana to constitutional status.

"And their arguments are based more on political and policy grounds than on sound constitutional principles," the state said.

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 It repealed the 2004 referendum and imposed more restrictions on a medical marijuana industry that a majority of legislators believed has reeled out of control.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.

The initiative did not amend the Montana Constitution or create a constitutional right to use medical marijuana, the memorandum said.

"Unfortunately, the narrow door the voters agreed to for compassionate use of medical marijuana was blown open by abuses and commercialization," the attorney general's office said.

The new law, the memorandum said, is "entirely consistent with the purposes and intent of Initiative 148," the document said. "People with serious medical conditions are able to obtain and use medical marijuana under the supervision of their physicians without fear of being arrested or prosecuted under the law."

The state has a legitimate interest "in controlling the circumstances under which a substance that is otherwise illegal under federal and state law is made available to persons for medical use," the memorandum said.

It cited the letter from Michael Cotter, U.S. attorney for Montana, to legislative leadership warning that "the prosecution of individuals and organizations involved in the 'trade' of any illegal drugs (specifically including marijuana) is a core priority of the (U.S.) Department of Justice, even where such activities are authorized under state law."

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