HELENA - District Judge James Reynolds signaled strongly Wednesday he may temporarily strike down portions of Montana's restrictive new medical marijuana law - if not the entire statute - before it takes effect July 1.
The judge expressed particular concern over one key change that requires medical marijuana providers to supply pot to their patients at no cost starting July 1. Under the current law, caregivers sell medical marijuana to their patients.
"The state is truly relying on guardian angels to come forward," Reynolds said. He added that the government hadn't told the pharmaceutical industry, "You develop cancer drugs, and you give it away."
In another major development, a lawyer for the attorney general's office said the state was willing to concede that three provisions of the new law can be struck down, at least temporarily, until a full hearing.
As the three-day hearing drew to a close, Reynolds said he's "wrestling" with the question of "toppling the whole thing versus its parts." He promised an order, if not a full decision, by June 30.
"Do I want to sit down with a red pen and excise the parts that are in trouble?" the Helena judge asked.
The Montana Cannabis Industry Association, a marijuana trade group, sought a temporary injunction, contending the law is unconstitutional and should be temporarily blocked from implementation.
Its attorney, James Goetz of Bozeman, said Montanans are entitled to the right to pursue health under the Montana Constitution's Declaration of Rights - and that includes the right to have medical marijuana if needed.
"The court should preliminarily enjoin the statute, not do a lot of surgery, and set the case for hearing," Goetz said.
However, Assistant Attorney General Jim Molloy, representing the state, disagreed, saying: "I don't believe a complete injunction prohibiting all of this is appropriate."
Earlier, Reynolds had asked attorneys for both sides to identify any provisions in the new law that could be struck down because of potential legal problems.
Molloy said there were three provisions "that would not be too problematic" if they were separately blocked, while the state reserved the right to defend them in a full hearing.
The first one conceded by Molloy would ban all medical marijuana advertising. A temporary restraining order already has blocked the advertising.
The second would allow law enforcement officials to make unannounced searches at places where providers grow medical marijuana.
The third would require the state Board of Medical Examiners to conduct a formal review of any physician who recommended medical marijuana for 25 or more patients in any 12 months. The doctor would have to pay for the costs.
While the state believes the 25-patient trigger is legitimate, "the state has no desire to restrict a doctor's ability to exercise appropriate, sound, professional judgment," Molloy said.
The assistant attorney general told Reynolds there is room for "a little bit of common sense" under the new law.
Referring to Goetz's witnesses, Molloy said law enforcement officers aren't going to go after an elderly man raising marijuana for his ill wife in their home or a man with head, neck and throat cancer trying to obtain his medical marijuana.
"I don't think there's an evil big brother mechanism that is going to run willy-nilly," Molloy said. "I don't believe a complete injunction prohibiting all of this is appropriate."
Goetz, however, urged Reynolds to strike down the whole law temporarily, but conceded some provisions could stand.
"You can't take a statute that is a real mess, which this is, and kind of do a Band-Aid approach," he said.
Goetz provided a legal memo that said if the new law is struck down, the current law would stand.
"This is a piece of sausage that didn't turn out very tastefully," Goetz said. "It's just a mess, your honor."