Helena judge extends temporary block on new medical marijuana rules

2012-12-14T06:00:00Z 2012-12-14T06:31:23Z Helena judge extends temporary block on new medical marijuana rulesBy CHARLES S. JOHNSON Missoulian State Bureau missoulian.com

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.

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(8) Comments

  1. zootown
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    zootown - December 14, 2012 1:45 pm
    Drugs are drugs Walter12, perscription or not.
  2. zootown
    Report Abuse
    zootown - December 14, 2012 1:35 pm
    The State was overruled by the Feds......dumb wasn't it.
  3. familytruckster
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    familytruckster - December 14, 2012 1:05 pm
    Walter- that is not so.

    Few medications are as effective as THC for assisting patients with cancer. Matter of fact, I cannot think of any, and I am an experienced medical professional!

    Like montanamuralist, I don't use it recreationally, but it needs to be available medicinally. Further, I see little harm in legalizing and taxing it. Far less damage results from ingesting cannibas than from using alcohol. The worst effects are from the smoke when it is used that way.
  4. beckmeister
    Report Abuse
    beckmeister - December 14, 2012 12:19 pm
    My doctors say that I will always have pain and my medical problems are incurrable. They can give me prescriptions to help but I would be incapable of working, driving or functioning. I use medical marijuana in the evenings when I am in for the night. I manage to do household chores, laundry and take care of myself and wake up with no hangover or dopey feeling. I also work at my job 40 hours a week. I could NOT do any of this while on strong prescription narcotics because I have tried and it did not work for me. I am a senior citizen and getting high isn't my motive! Living a productive life is. I never had problems getting pot before the vote and I haven't had problems getting it after the vote. Walter12, walk a mile in my shoes! Or better still........kiss my rear end!!!!!!!!!
  5. grizcountry
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    grizcountry - December 14, 2012 8:25 am
    Walter12.... Have you ever tried to take a poop when you have to take a bunch of prescription pills? I didnt think so..
  6. montanamuralist
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    montanamuralist - December 14, 2012 8:03 am
    I always felt that the way the first initiative was written was not going to monitor this industry in the way needed. On the other hand to say it has no medicinal use is stupid and uninformed. I guess the drug companies in this country are not about money? I guess the interactions patients like my late wife had with various drugs are better than the medicinal uses of pot? No. For certain patients this is a valuable and effective medication. The idiots who restricted the number of people who should be allowed to have this drug, members of the Montana Legislature, who know better than the people of this state what is good for us ( something they always accuse Democrats of doing ironically) have not tried to implement the peoples will in a reasonable way. Looking for new tax revenue? Let that slip rioght through your fingers idiot Republicans. How stupid and it would help people. Typical close minded rhetoric based on nothing but prejudice and stupidity and lack of facts. Pot is well documented to be an effective drug. To say otherwise is just plain uninformed and stupid as I said above. Oh, and selfish. Don't like pot? Don't smoke it. I don't. But I sure want people that need it to have it without a bunch of right wing do gooders telling me what is good for me...especially if I get cancer down the road. Hopefully the Montana Legislature will change theiur attitude but I doubt it cause the same right wing nut cases are back to implement their moral values on us again......
  7. startingover
    Report Abuse
    startingover - December 14, 2012 6:54 am
    Funny, I thought this subject went to the voters during the last election. Voters who overwhelmingly passed a new law. Apparently nobody got the memo.
  8. walter12
    Report Abuse
    walter12 - December 14, 2012 6:42 am
    Marijuana is only about two things, money and getting high, and nothing else. The medical part is a scam. There are enough prescription drugs available nowadays to overflow a patient's house, to stem pain.
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