HELENA – A state district judge late Friday permanently blocked enforcement of key provisions of Montana’s strict 2011 medical marijuana law in a drawn-out legal case that began shortly after its passage.
District Judge James Reynolds of Helena permanently enjoined the implementation of certain key provisions in the law.
The provisions have never taken effect, either because of his 2011 decision temporarily blocking implementation of the law or the state stipulating it would not enforce the provisions pending a final court decision.
In his latest decision, Reynolds permanently blocked enforcement of provisions that would:
- Ban the advertising of medical marijuana.
- Forbid the commercial sale, for profit, of medical marijuana from a provider to someone authorized to obtain the product. The provision essentially meant that medical marijuana cardholders had to grow their own pot and forbade any payment to growers except for covering the cost of a provider’s application or renewal fee paid to the state.
- Restrict a medical marijuana provider from assisting more than three people licensed by the state to obtain legal pot or marijuana-infused products, again without them being able to be paid.
- Require the state to provide the Board of Medical Examiners with the names of any physician who within a 12-month period has written certification for medical marijuana for 25 or more patients. That would have triggered an automatic review of the physician’s practices, at his expense, by the Board of Medical Examiners.
At the same time, Reynolds ruled in the state’s favor and refused to enjoin two other provisions in the law that had been challenged.
He let stand a provision allowing the state Department of Public Health and Human Services and state and local law enforcement agencies to make unannounced inspections of medical marijuana providers during normal business hours.
Reynolds also kept intact another provision of the law forbidding people under probation or the supervision of the state Department of Corrections from being able to obtain medical marijuana cards.
The Montana Cannabis Industry Association and some individuals challenged the law shortly after its passage in 2011, contending it was unconstitutional on a number of fronts.
Attorneys for two different attorneys general, Steve Bullock, now governor, and Tim Fox, have defended the law. Reynolds has ruled on the case twice and the Montana Supreme Court once.
The Supreme Court sent the case back to Reynolds and ordered him to rule on it under what’s called “a rational basis,” instead of the “strict scrutiny” basis he had applied earlier.
Reynolds used the less onerous rational basis test in his latest decision.
“This court has wrestled with the issues of medical marijuana raised in this litigation for over three and one-half years, just as society continues to wrestle with the overarching issue of marijuana generally,” Reynolds wrote.
He commended the “cautious approach” by the Montana Legislature in passing the law in 2011. It became law without then-Gov. Brian Schweitzer’s signature.
Lawmakers passed the law after Schweitzer earlier that session vetoed a law that would have repealed the 2004 voter-passed initiative that legalized the use of marijuana for certain medical conditions.
The Legislature passed the restrictions in the 2011 law after seeing a vast increase in Montanans applying for medical marijuana cards starting in mid-2009. That’s when so-called “cannabis caravans” traveled the state, often providing cards to patients five or 10 minutes after a brief consultation with a physician, often via the Internet.
The number of medical marijuana cardholders ballooned from 2,074 in March 2009 to a peak of 31,522 in May 2011. By November 2014, 9,619 people had medical marijuana cards, according to the state Department of Health and Environmental Science.
“It is not the goal of this court to interfere with the Legislature’s slow and careful opening of the door to the use of medical marijuana,” Reynolds wrote. “It is the goal of this court, however, to ensure that everybody who could benefit from medical marijuana, and especially those with the most serious medically debilitating conditions, are able to travel through that door equally.”
It wasn’t immediately clear whether Attorney General Fox would appeal Reynolds’ decision.
Fox’s spokesman John Barnes said the attorney general’s office received the decision late Friday and is reviewing it.
Attorney James Goetz of Bozeman, who represented the Montana Cannabis Industry Association and others, praised the decision.
“It’s a pretty complete victory for us,” Goetz said. “Those are two tangential provisions that he upheld.”
Goetz said he’s pleased with the decision, which found the various provisions violated the equal protection clause under the Constitution and Reynolds permanently enjoined them.
“The heart of the case is the three-patient limit and the ban on financial remuneration, and he held they don’t even survive the most minimal scrutiny under the equal protection clause (of the U.S. Constitution), and he’s right on that. It’s simply an irrational set of laws.”
The sponsor the 2011 bill, Sen. Jeff Essmann, R-Billings, who will be sworn as a representative on Monday, had a mixed assessment. He said the most important part of the law stands, that giving local governments the authority to authorize, or ban, medical marijuana storefronts in their communities.
“On a 30,000-foot view, I think it’s important to know that Montana is not Colorado, Washington, Oregon or Alaska,” Essmann said, referring to states that have legalized the use of marijuana. “My personal opinion is I don’t think the majority of people here want to legalize the recreational sale of marijuana, nor would they deny access (of marijuana) for medical purposes for needy patients. We’re in a messy place in between.”
Essmann, an attorney, said he’s not sure all of Reynolds’ reasoning will withstand scrutiny by the Montana Supreme Court.
He suggested it might be appropriate for the upcoming Legislature to take another look at the law.
“I think it might be a good idea to go back and look at the law in terms of exercising the state’s authority to exercise close regulation of the activity and figure out if there’s a way to do that.”
He noted that his original Senate bill did allow medical marijuana providers to be compensated by cardholders, but that the House put in the prohibition.