HELENA – A Helena district judge for a second time has issued a preliminary injunction to block parts of Montana’s more restrictive 2011 medical marijuana law from being enforced.
District Judge James Reynolds late Wednesday blocked portions of the law that prevented a medical marijuana provider from growing medical marijuana or producing related products for more than three cardholders. He also stopped a provision of the law that prevented providers from being paid by cardholders for growing medical marijuana, or manufacturing tinctures and other products.
He granted the preliminary injunction at the request of the Montana Cannabis Industry Association and others to block certain parts of Senate Bill 423 from taking effect.
The more restrictive 2011 state law contained these two provisions as part of what some legislators said was an attempt to squeeze the profits out of what was then a booming medical marijuana industry in the state. The revised law allowed those with medical marijuana cards to grow their own pot or find someone to grow it for them for free.
“Properly registered and eligible cardholders will be injured or irreparably harmed if the court does not preserve the status quo pending final trial in this matter,” Reynolds wrote, “These cardholders will be unable to grow their own medical marijuana or will be unable to obtain it from a provider.
“The court concludes that a preliminary injunction should issue to prevent this irreparable injury to these properly qualified cardholders pending the outcome in this litigation.”
In June 2011, Reynolds also issued an order temporarily blocking these and some other provisions aimed at limiting access to medical marijuana.
In September 2012, the Montana Supreme Court 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 marijuana.
The Supreme Court ordered Reynolds to apply the “rational basis” test in evaluating the medical marijuana, a lower standard than the “strict scrutiny” test Reynolds had used the first time.
The outcome was the same.
In his decision Wednesday, Reynolds cited a number of witnesses who testified that medical marijuana had helped give them or a loved one relief in dealing with serious health problems or diseases.
All testified they lacked the ability to grow their own medical marijuana as the 2011 law intended.
Some marijuana growers or providers testified their businesses would not survive if they couldn’t charge for their product and could only provide it to three cardholders.
Reynolds noted that as of November 2012, state Department of Public Health and Human Services statistics showed that Montana had 8,404 registered cardholders, of whom 5,211 rely on providers to supply them with medical marijuana, and 293 registered providers. The rest grow their own supply of pot.
“Even assuming all 293 of the currently registered providers continue in business, the limitation of three cardholders per provider means that the existing providers could provide medical marijuana to a maximum of 879 cardholders,” Reynolds said. “This means that approximately 4,332 of the currently registered cardholders would have no source of medical marijuana. These are presumably the cardholders with the most severe medical conditions preventing them from growing their own medical marijuana.“
Reynolds said nearly 1,500 additional providers would have to step forward to serve the remaining cardholders.
“These cardholders would be injured or irreparably harmed if the provisions of SB423 barring commercial transactions were allowed to go into effect,” Reynolds said. “The court can envision few forms of injury or harm more substantial than to deprive persons with debilitating medical conditions of what may be the only form of effective relief from those conditions as testified to before the court.”
It will be up to new Attorney General Tim Fox to decide whether to appeal Reynolds’ decision to the Montana Supreme Court as his predecessor, former Attorney General and now Gov. Steve Bullock did.
The 2013 Legislature convened last week and could make changes in the 2011 law to address the court’s concerns.
In November, Montanans voted 268,790 to 200,739 to keep SB423, which medical marijuana groups had put on the ballot as a referendum in hopes voters would reject the law.
Missoulian State Bureau reporter Charles S. Johnson can be reached at (406) 447-4066 or at firstname.lastname@example.org.