HELENA - Calling the newly passed bill overhauling the state's medical marijuana law "unconstitutional on its face," Gov. Brian Schweitzer said Wednesday he wants to issue an amendatory veto to fix the parts he considers legally defective.
"I'd like to amend it, that's what I would like to do, and we'll see what it looks like when it gets here," Schweitzer said in an interview with the Missoulian State Bureau. "The bill as written is not going to survive the courts."
His comments came after the Senate approved Senate Bill 423 by Sen. Jeff Essmann, R-Billings, by 33-17, while the House approved it 70-30.
Schweitzer criticized the House for tabling in committee House Bill 68 by Sen. Diane Sands, D-Missoula, proposed by a bipartisan interim committee after much study and many hearings last year.
"They threw that in the garbage and now they're going to send bring me this (SB)423, which everybody's whose read it says, ‘Oh yeah, it's unconstitutional.' "
Schweitzer said he doesn't believe the bill will survive a legal challenge.
"I'm kind of disgusted right now," he said.
SB423 will be sent to Schweitzer, who earlier vetoed House Bill 161 by Speaker Mike Milburn, R-Cascade, that would have repealed the 2004 voter-passed medical marijuana law.
If Schweitzer receives the bill before lawmakers adjourn, possibly Thursday, he can make an amendatory veto suggesting changes to the bill that the House and Senate would vote on.
If he gets the bill after they leave, Schweitzer has three choices: sign it into law, veto it or let it take law without his signature.
Schweitzer said he hopes he has a chance to propose suggested changes to SB423.
"Unfortunately, if they don't allow us to get our amendments up to them, it's likely to not survive legal challenges," he said. "It seems to us unconstitutional on its face."
Essmann said later he received a series of amendments from Schweitzer's staff that the governor wants to make to SB423. He said he agreed with House leaders to review the suggested amendments together and decide what they want to do.
Essmann said all three branches of government each get to offer their opinions on the constitutionality of legislation.
Schweitzer questioned the provision that says if people receive medical marijuana cards, they must have them on their possession at all times, regardless of whether they have marijuana on them. In addition, cardholders' names and addresses are provided to local law enforcement officials, who have the right to search their homes at any time.
"That violates your constitutional rights to illegal search," he said.
Essmann defended this provision, saying it's like implied consent in driving while intoxicated laws in which people suspected of drunken driving are asked to blow into a breathalyzer machine.
If patients are growing their own medical marijuana, Essmann said, "I don't think law enforcement is going to be coming in in the middle of the night."
Schweitzer also said he believes the bill violates the federal Health Insurance Portability and Accountability Act, or HIPAA.
"If you're taking OxyContin or penicillin or, for God's sake, even aspirin, that is your own personal health care records," he said. But HB423 is "demanding" that the fact that someone is using medical marijuana and "be turned over to law enforcement in every town."
"There's another problem with it, and I think it's a fundamental problem," Schweitzer said. "Under this bill, I will guar-an-dang-tee you that there will be more illegal marijuana (that) makes it to the alley under this proposal than we currently have because now you're going to have 4,000, 5,000, 6,000 people growing their own. It's not possible to monitor all of them."
Instead, Schweitzer said the bill would be better off allowing a few centralized growers that are "heavily regulated and heavily taxed, bonded and insured, so that none of this stuff makes it to the illegal chains."
"I mean does someone with a straight face think you can have 5,000 people growing their own and none of it makes it to high schools or to college dorm rooms?" he said.
Essmann, however, said a new letter from the U.S. attorney for Colorado makes it clear that the U.S. Justice Department has legal problems with states using centralized marijuana growing operations. He said the Senate had proposed larger growing operations, but the House opposed the idea.
Schweitzer criticized the Legislature for managing to "squander away" most of the 90-day legislative session before sending him the bill. He said lawmakers already know it's unconstitutional, which is why they put a "severability clause" in it, saying if a court strikes down part of the bill, the rest stands. Severability clauses are common in complex bills.
"Why don't you just pass something that works, that's constitutional and that can survive the test of time?" he asked.