HELENA — Montana Supreme Court justices on Wednesday took on the question of whether people have a fundamental, constitutional right to sell medical marijuana, which is legal under state law but illegal under federal law.
A state attorney urged the Supreme Court to reverse a lower-court ruling that struck down part of a law, passed by the 2011 Legislature, that in essence banned the commercial sales of medical marijuana.
Assistant Attorney General James Molloy said state District Judge James Reynolds of Helena used the wrong legal standard in blocking that part of the law, which forbids any payment to those growing medical marijuana.
He challenged Reynolds’ ruling that banning compensation for marijuana would deprive Montanans of their fundamental rights to pursue their health and livelihoods.
“Is there a fundamental right to engage in the sale of a product that is illegal?” Molloy asked.
But a lawyer for the Montana Cannabis Industry Association disagreed, arguing that the law is riddled with problems. The association asked Reynolds to temporarily block the entire law from going into effect last July, until a full trial could be held. Reynolds denied that request.
“The problem with this statute is that it makes scofflaws out of everyone,” said attorney James Goetz of Bozeman.
He asked how people legally using medical marijuana under Montana law can obtain the product if they can’t buy it under the law. The “grow it yourself” philosophy envisioned in the law isn’t practical, Goetz said, because “it’s just not that easy to grow marijuana.”
The 2011 Legislature passed the law restricting the access to medical marijuana after the number of people with medical pot cards in Montana had skyrocketed to 27,000 in December 2010, with nearly 5,000 medical marijuana providers legally authorized to grow marijuana.
As of last month, there were 10,640 medical marijuana cardholders and 414 providers.
The new law passed after Gov. Brian Schweitzer vetoed a bill repealing the 2004 voter-passed law legalizing medical marijuana. The new law makes it harder for people to obtain medical marijuana and bans large commercial growing operations. It also allows a provider to supply medical marijuana to only three patients, and for no compensation.
Shortly after the law was passed, the Montana Cannabis Industry Association and others challenged it in court. Reynolds temporarily blocked parts of the law from taking effect, and both the association and state appealed on different grounds.
Justices on Wednesday grappled with many of the same issues that lawmakers did.
“Federal law says you can’t possess, grow, cultivate or dispense marijuana, period,” Justice James Nelson said in a question to Molloy.
Replied Molloy: “Federal law cannot compel the state to make conduct unlawful. That would constitute commandeering.”
Justice Beth Baker asked whether the rest of the law can still stand legally, even if the parts dealing with commercialization of medical marijuana were temporarily enjoined.
“There are many provisions in the law that can and should be in effect, even with the severed provisions,” Molloy said.
Baker asked Goetz if it is legitimate for the state to prohibit commercial enterprises that violate federal law.
Goetz said a state can do that but that the Legislature hadn’t done it, adding: “Our Legislature makes medical marijuana legal, medicinal and available — sort of. So your question is hypothetical. Montana has said marijuana should be available to medical patients.”
Baker said her question wasn’t hypothetical.
Later, Goetz said, “There’s no question in this case that marijuana has true medicinal values.”
Chief Justice Mike McGrath interrupted, saying, “Mr. Goetz, that’s not the issue here.”
“Your point is, what it boils down to, is: These plaintiffs have a right to sell marijuana,” McGrath said. “It’s not that patients who are ill have a right to access marijuana. The argument here is that somebody else has a fundamental constitutional right to sell a product that is otherwise illegal. Right? How do you get around that? ”
Goetz said there is a constitutional right to pursue a livelihood under a Supreme Court precedent. The state can regulate a lawful occupation, he said, “but the true intent of this statute is to eliminate commercial intercourse in marijuana.”
He said that while voters had made medical marijuana legal in Montana, the Legislature is arbitrarily denying access with the new law.
Justice Brian Morris asked if the Legislature could legalize marijuana and regulate it like it has with alcohol.
Goetz called that “legitimate regulation.”
Morris said no one had applied the stricter legal standard to alcohol.
Goetz said marijuana is a medicine, adding: “Only in Butte do they consider alcohol a medicine.”
The court took the case under review.
Meanwhile, opponents of the 2011 law obtained enough signatures to put it on the November ballot as a referendum. Voters will have a chance to keep or throw out this law.
In addition, petitions are circulating for a proposed constitutional amendment on the November ballot. If it qualifies, voters would decide whether to grant adults the constitutional right to buy, consume, produce and possess marijuana, subject to reasonable limitations.