HELENA – As Montana awaits a major medical marijuana decision by the Montana Supreme Court, the justices recently upheld a lower court decision forbidding caregivers from engaging in marijuana transactions or cultivation services with other caregivers, their agents or contractors.
Last week, the Montana Supreme Court, in a 5-0 decision, affirmed a ruling by District Judge Stewart Stadler of Kalispell.
He had ruled in favor of the Flathead County Attorney’s Office in a case filed by the Medical Marijuana Growers Association and two “couriers” and three “caregivers,” none of whom were named.
They had asked the judge to declare that the 2009 Medical Marijuana Act allowed caregivers to deliver, transport or transfer marijuana and its paraphernalia to other caregivers through an agent or to cultivate and manufacture marijuana as an agent or contactor for another caregiver.
Caregivers, now known as providers, must be registered with the state. They are allowed by law to sell marijuana or marijuana products to medical marijuana cardholders, formerly called patients.
The growers group, couriers and caregivers had asked District Judge Stadler for a declaratory judgment that caregivers could legally perform some of these activities under the 2009 state law. Two of the couriers had been charged in criminal cases with the possession of a dangerous drug, with the intent to distribute, for allegedly possessing and transporting marijuana on behalf of Caregiver 3.
Flathead County Attorney Ed Corrigan argued that the plain language of the 2009 law made it clear that caregiver-to-caregiver transactions are illegal.
Writing for the court, Justice Patricia Cotter agreed with Corrigan.
“We find the plain language of this statute clear and unambiguous.” Cotter wrote. “A caregiver is authorized to provide marijuana to qualifying patients only.
“The 2009 MMA (Medical Marijuana Act) does not provide for the transfer of marijuana or paraphernalia from caregiver to caregiver or among their agents, nor is there a provision allowing for a caregiver to cultivate marijuana for other caregivers or for their agents or contractors.
“We will not read or insert these provisions into the statute. We find that the specific provisions that a caregiver may provide marijuana only to qualifying patients specifically prohibits the privileges and declarations that the plaintiffs seek.”
The decision clears up what some believed had been a gray area in the 2009 law.
The 2011 Legislature passed major revision of the 2004 voter-passed initiative legalizing the use of marijuana for certain medicinal reasons, and the 2009 law. The 2011 law is far more restrictive than earlier laws and the number of medical marijuana cardholders has plummeted.
The Montana Cannabis Industry Association and others sought to strike down the entire 2011 law in a lawsuit filed shortly after the Legislature adjourned. In mid-2011, District Judge James Reynolds of Helena temporarily blocked some parts of the law from taking effect.
Both the association and the Attorney General’s office have appealed separate portions of his decision to the Montana Supreme Court. The justices heard the case May 30 but have not yet issued a decision.
A key issue before the court is whether people have a fundamental, constitutional right to sell medical marijuana, which is legal under state law, but illegal under federal law.
Opponents of the 2011 law obtained enough signatures last year to qualify it for the 2012 ballot as a referendum. Voters in November will decide whether to retain or reject the law.
If a majority of Montanans vote to reject the 2011 law, state law reverts to the 2009 law.