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MISSOULA — Can he do that?

Marijuana advocates asked the question last week, when Missoula County Attorney Fred Van Valkenburg said he was pushing legislation to override the 2006 voter initiative that recommends making pot the county's lowest law-enforcement priority.

“It honestly sounds like an end run around the voters' will,” said Nathan Taub, a University of Montana student who testified against Van Valkenburg's successful 2007 attempt to tweak the measure. “It's politics, plain and simple.”

Online comments were less tactful, suggesting at their most printable that the move is unconstitutional.

Robert Stutz, the Legislature's chief legal counsel, said that both the Montana Constitution and state law provide for exceptions to the initiative process. The bill being drafted at the request of Republican Rep. Tom Berry of Roundup, just adds one more exception to a short list that exempts budgets and certain bond proceedings from voter-approved laws.

The bill's working title defines it as “an act providing that the power of initiative does not extend to the prioritization of the enforcement of any state law by a unit of local government.”

That unit, in this case, being Missoula County, where 55 percent of those voting approved the measure known as Initiative 2. A year later, at Van Valkenburg's request, county commissioners voted to amend Initiative 2 to exclude felony amounts — 60 grams and above - of marijuana.

Then, as now, Van Valkenburg faced outraged accusations that he was trying to thwart the people's will.

“I think it's clear that the advocates of the policy think that the possession of marijuana should be legal,” he said last week. “I don't care whether possession of marijuana is legalized. If the advocates of marijuana want to try to convince the Legislature or the electorate whether they should legalize it, I'm not against that.”

But with the exception of medicinal use, pot is still illegal and Van Valkenburg said that he thinks “state laws should be applied equally regardless of where they're broken.”

The problem, he said, is that Initiative 2 — being a recommendation rather than a law — remains tough to enforce.

By and large it doesn't affect Missoula police because misdemeanor marijuana charges would only have gone to the county attorney's office as part of more serious cases, anyway, said Chief Mark Muir.

“Our misdemeanor (marijuana) cases still go through Municipal Court and aren't prosecuted by the county attorney, so they've never actually been covered under the guidelines of Initiative 2 to begin with,” he said.

Missoula County Sheriff's Detective Scott Newell, a member of federal High Intensity Drug Trafficking Areas program, said Initiative 2 doesn't much affect that part of his job.

But Newell said he also deals with the smaller cases coming in from patrols. “That's where it gets sticky. in DUIs or warrant arrests or traffic stops, where there's a pipe on the console or the dash.”

“It's causing some confusion amongst patrol officers as to whether they want to file a report and submit to the county attorney, or just seize the evidence and write a report and destroy it,” he said.

Initiative 2 doesn't apply to people with medical marijuana patients or caregiver cards, he said. As long as they're following regulations as to the number of plants per person, they're legal.

“If you'd have told me when I first started here that I'd be going into 'grows' where there are several hundred plants, and I'd just count 'em and say, 'Nice job, see ya,' I wouldn't have believed you,” said Newell, who's been with the sheriff's department for 19 years.

The same reason Van Valkenburg cites as the need for legislation - that Initiative 2 is merely a recommendation - is why John Masterson thinks it should be left alone.

“It required no policy change, so why this is necessary is beyond me,” said Masterson, who heads the Montana chapter of the National Organization for the Reform of Marijuana Laws.

“If lawmakers are specifically passing new laws which outlaw policies that have been already voted in by a substantial majority by the people, then that calls into question the proper role of the elected officials who are writing the new laws,” Masterson said.

When Van Valkenburg sought such legislation two years ago, he couldn't find a sponsor. This year, Berry said he's happy to carry it.

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Both Van Valkenburg, a former legislator and Senate president and majority leader, and Berry, who sought the bill draft, said that traditional legislation is a better way to make laws.

“I do not like the initiative process,” Berry said, adding that he thinks it's too easy for small groups to get proposals onto the ballot without the rigorous vetting required by the bill process.

WIth initiatives, he said, “the person with the most money or the most advertising can sway a vote.”

As to why Van Valkenburg would pick an eastern Montana lawmaker to sponsor a bill directly affecting Missoula County, that's easy, the county attorney said.

“There are 68 Republicans in the House,” Van Valkenburg said. Save for Champ Edmunds in House DIstrict 100, Missoula's House delegation is all-Democratic. “It's got a better chance of passage with a Republican sponsor.”

The chaos resulting from the loosely written medical marijuana initiative approved in 2004 - even advocates are seeking stricter controls for medical marijuana - gives Berry's proposal a greater chance of success this year, Van Valkenburg said.

“I think the general public has seen significant abuse of the medical marijuana law adopted by initiative, and I think that lots of people think we should repeal the medical marijuana law altogether,” he said. He doesn't think that will happen, although he predicts “significantly” more regulation is likely.

So file LC1909 - as Berry's bill, nearing the end of the draft process, is known at this point - under related subjects.

File it as well under subjects that, four years after he first fought Van Valkenburg's move to change it, still get under Nathan Taub's skin.

“I'm a little disappointed,” said the fifth-year psychology major. “In Montana, part of our charm is that we don't play games like this.”

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