Medical marijuana order troubling
Normally I believe that legislators should not comment on a pending lawsuit, and the suit challenging Senate Bill (SB) 423 (the revision the 2011 Legislature made to the 2004 Medical Marijuana Act) is still pending in Lewis and Clark County. An Order On Motion For Preliminary Injunction (order) has been issued, but the case has not gone to trial. The case is “political” in nature and I believe that comment is warranted. It concerns a bill just passed by the Legislature to more closely regulate the production and use of medical marijuana. Judge James P. Reynolds was doing his duty as he saw it and expressed himself well in his recent order. However, I find his order troubling.
The order refers to patient’s right to “lawfully” receive medical marijuana, ignoring the fact that it is unlawful under federal law to grow, sell, or use marijuana. The order ignores the tension between state and federal law and assumes that it is legal to use medical marijuana. The Judge’s order in effect says that it is a fundamental right under the Montana Constitution to violate the federal criminal law.
However, the order’s most problematic aspect is its holding that the provision of the statute that limited the compensation paid to “providers” who grew the plant for patients, and the number of patients that they could supply, is unconstitutional. The order states that the right to supply any number of patients and make a profit selling marijuana is protected by Article II, Section 3, of the Montana Constitution; in fact it was a “fundamental constitutional right.” If the commercial growing of marijuana is a fundamental right, it seems that the Legislature cannot restrict large grow operations, nor even ban the sale of marijuana for a medical purpose if it wanted to do so. There would be less control by the state over medical marijuana than it exerts over alcohol, or even tobacco; e.g., the age of the user.
The Legislature realized the tough situation that federal law enforcement was put in by the current law, and the risk to Montana citizens who wished to benefit from medical marijuana, either as a grower or a medical user. The Legislature was attempting to limit production in a way that would not attract federal attention. The Judge chose not to address this issue.
Medical marijuana has been a serious problem for sometime and many Montanans have complained to the Legislature. As examples of these problems: the current law allows unrestricted advertising, large grow operations, uncontrolled issuance of medical marijuana cards, and makes it impractical for state law enforcement to enforce the law. If this preliminary injunction survives in anything like its present form through the Montana Supreme Court, Montana will have no control over the commercial production of marijuana or its use. Holding that the production and use of marijuana is a fundamental constitutional right will reduce to almost nil the state’s ability to control the use and production of marijuana. I believe that the problem with medical marijuana will be much worse should this order survive the process.
Senate District 45