HELENA — Montana is in the fifth year of a legal fight to severely restrict how medical marijuana is grown and distributed, even as attitudes in other parts of the nation appear to be shifting toward more tolerance for the drug.
Attorneys for the state argued Wednesday before the Montana Supreme Court to lift a judge's injunction that prevents enforcement of a 2011 law that would ban commercial sales of medical marijuana and limit providers of the drug to a maximum of three patients.
The state also wants to lift District Judge James Reynolds' block of other provisions that ban medical marijuana advertising and an automatic review of doctors who recommend the drug for more than 25 patients.
If that happens, and commercial sales of the drug are banned, very ill patients would be effectively cut off from all access because they don't have the knowledge or the strength to supply themselves, said James Goetz, an attorney for the Montana Cannabis Information Association, which sued to block the law from taking effect.
"They're real people in need who can't grow their own," Goetz said.
If the state is successful in overturning the judge's injunction, it would be one of the most significant rollbacks among the 23 states and Washington, D.C., that allow the use of marijuana for medicinal purposes, said Seattle attorney Hilary Bricken, who specializes in marijuana business law.
"Montana stands alone in the extreme way in which it has nearly repealed its medical marijuana laws and in the way it has strangled out its own medical marijuana industry," Bricken said. The state "is desperately trying to put the genie back in the bottle, from what I can tell," she said.
Montana voters legalized medical marijuana in 2004, but its growth exploded in 2009 after a U.S. Department of Justice memo suggested prosecuting marijuana cases would not be a priority. By 2011, the number of registered users had grown to more than 30,000 in a state of 1 million people, and the number of providers topped 4,800.
Marijuana opponents complained the law was being abused by a booming black-market industry that led to widespread recreational use. Then federal authorities raided large medical marijuana providers and growing facilities across the state.
That prompted passage of the 2011 law, which sought to severely restrict medical marijuana, after a bill to repeal the 2004 voter initiative was vetoed.
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Reynolds blocked the restrictions on commercial sales, advertising and doctors from taking effect after the cannabis association filed its lawsuit. In 2012, the state Supreme Court ruled that Reynolds had used the wrong standard to review the constitutionality of the restrictions — but Reynolds blocked them again after applying the correct standard.
The state is now appealing that ruling.
Reynolds was wrong to block the law after the high court ordered him to apply the lowest standard of review for determining its constitutionality, Assistant Attorney General Stuart Segrest told the justices during Wednesday's oral arguments.
"The district court ... failed to give the law the deference due under that standard and all but ignored federal illegality," Segrest said.
Marijuana is still illegal under federal law, and the Legislature's way of addressing that conflict was to create a law that allowed the limited use of medical marijuana while preventing its sale, he said.
Justice Mike Wheat immediately questioned why the drug's illegality under federal law is important, when the U.S. government has since given greater leeway to the states. Washington, Colorado, Alaska, Oregon and the District of Columbia have all legalized recreational marijuana since the law was passed.
Segrest responded that it's irrelevant whether the federal government's attitude has changed since the Montana law was passed in 2011.
That law "can't go in and out of constitutionality depending on the current state of circumstances," he said.
Goetz responded that the Legislature can take action to curb abuses of medical marijuana, but the blocked restrictions hurt the patients that voters originally meant to protect.
Chief Justice Mike McGrath said the justices will take the arguments under advisement and release a decision in due course.