HELENA – A district judge on Thursday temporarily continued to stop the state from enforcing certain restrictions in a 2011 state law aimed at medical marijuana providers.
After a two-hour hearing, District Judge James Reynolds of Helena extended his temporary restraining order at the request of James Goetz, the Bozeman attorney representing the Montana Cannabis Industry Association and others.
His order continues to block two 2011 restrictions from being enforced – one limiting medical marijuana providers to three patients apiece and the other forbidding providers from being paid by patient for pot.
These provisions were part of a more restrictive state law in which some legislators said they wanted to squeeze the profits out of what was then a booming medical marijuana industry in the state. However, under the new law, those with medical marijuana cards can grow their own pot or find a provider to grow it for them for free.
However, three medical marijuana cardholders called by Goetz said it would be impossible for them to grow pot.
Two medical marijuana providers testified that it is not only costly to set up a pot-growing operation, but difficult for to grow various strains of marijuana. Both testified they would shutter their operations if they couldn’t be paid for marijuana.
The temporary order will remain in place while Reynolds determines whether to issue a preliminary injunction indefinitely halting the enforcement of those provisions of a more restrictive medical marijuana law passed by the 2011 Legislature.
In mid-2001, Reynolds had temporarily blocked some of the provisions restricting access to medical marijuana.
However, the Montana Supreme Court in September reversed Reynolds in a 6-1 decision, declaring there is no fundamental right for patients to use any drug, particularly one that’s illegal under federal law like medical marijuana.
The Supreme Court directed Reynolds to apply the “rational basis” test, which assumes a law is constitutional unless it’s not rational, instead of the “strict scrutiny” test Reynolds had used.
Several times in the hearing, Reynolds acknowledged he was having trouble with the court’s decision.
“I get whipsawed by the state Supreme Court, which said there is no (marijuana) access under federal law,” the judge said. “I am trying to figure out what am I supposed to do here.”
At one point, Reynolds suggested that he didn’t believe some restrictions in the law are rational.
He was referring to the testimony of wheelchair-bound Lori Burnam, a, 66-year-old woman from Hamilton who weighs 69 pounds. Burnam has faced cancer, emphysema, a broken hip and a double mastectomy.
Before taking medical marijuana, Burnam said she was prescribed morphine, which caused her horrible nightmares, make her sleepy and gave her “the sweats.” Morphine also caused her to lose five pounds, dropping her weight to her current 69 pounds, Burnam said.
“My doctor was surprised I had lived as long as I can,” she said. “The doctor said whatever I was doing, keep it up.”
Burnam said she now obtains her medical marijuana from a Missoula provider.
Goetz asked if growing her own marijuana was a viable option if she couldn’t obtain the pot from her provider.
“Not at all,” Burnam said. “I have no idea how to harvest it or dry it. It just isn’t feasible.”
Asked if she could buy her own marijuana if her provider shuts down, Burnam said, “No. Do I look like I’m connected?”
Without medical marijuana, she said, “I believe it’s my last days.”
Reynolds cited Burnam’s testimony as an illustration how the law, forcing people in her condition to grow their own medical marijuana, is not rational.
Goetz said, “Obviously, there is irreparable injury to Lori Burnham and the other witnesses here, if they are deprived of their medicine.”
However, Assistant Attorney General Stuart Segrest said the state had complied with the Supreme Court’s requiring the law to be rationally related to the state’s interest.
The law says cardholders may grow their own marijuana or find someone to grow it for them.
He asked why the same kind of “charitable spirit” that leads some people to build houses for others wouldn’t encourage some people to grow marijuana for some medical marijuana cardholders.
Medical marijuana is illegal in 34 states, he said, and doctors are able to treat patients through other means.