Pubdate: Thu, 30 Oct 2008
Source: Great Falls Tribune (MT)
Copyright: 2008 Great Falls Tribune
Contact: http://www.greatfallstribune.com/customerservice/contactus.html
Website: http://www.greatfallstribune.com/
Details: http://www.mapinc.org/media/2502
Author: John S. Adams, Tribune Capitol Bureau
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)
Bookmark: http://www.mapinc.org/decrim.htm (Decrim/Legalization)

HIGH COURT UPHOLDS MEDICAL MARIJUANA LAW

Montana courts cannot bar medical marijuana patients from using the
drug as a condition of their probation or parole, the state Supreme
Court ruled Wednesday.

The decision overturned a lower court's ruling that prohibited a
Conrad man from using marijuana while serving a three-year deferred
sentence.

"This is a very big and important victory, both for patients and
Montana voters," said Tom Daubert, founder and director of Patients
and Families United, a support group for patients who use medical marijuana.

Montana voters overwhelmingly passed a ballot initiative in 2004
legalizing the use of medical marijuana in the state.

In Tuesday's 6-1 decision, the Supreme Court found that District Judge
Laurie McKinnon overstepped her authority when she barred Timothy
Nelson of Conrad from using medical marijuana as a condition of his
sentence.

Nelson pleaded no contest to a charge of criminal possession or
manufacture of dangerous drugs in 2007, after Pondera County
authorities found evidence of a marijuana growing operation in his
home.

After being charged, Nelson registered with the state medical
marijuana program. He suffers from a degenerative disc disorder and
has had four surgeries on his back, according to court records.

At a Feb. 26, 2007, sentencing hearing, Pondera County Attorney Mary
Ann Ries told the judge that officials at the Department of
Corrections would not allow Nelson to smoke marijuana while under
their supervision, but would allow him to use the pill form of marijuana.

McKinnon gave Nelson a three-year deferred sentence subject to 20
conditions. Nelson appealed two of those conditions on the basis that
they illegally prevented him from using medical marijuana.

Those two conditions were that Nelson comply with all city, county,
state and federal laws and that he not possess or use illegal drugs,
or any drugs, unless prescribed by a licensed physician. Since
physicians cannot legally prescribe marijuana because of federal
licensing restrictions, that condition barred Nelson from using
medical marijuana. That same sentencing condition also stated that
Nelson may not possess marijuana, except in pill form, and only then
by prescription from a licensed physician.

Nelson's attorneys, Justin Lee of Choteau, and Colin Stephens of
Missoula, argued that the pill form of marijuana, Marinol, is
cost-prohibitive for their client, which contradicts the intent of the
Medical Marijuana Act of 2004.

In his appeal, Nelson said McKinnon's sentencing conditions were
illegal because it restricted him to using Marinol, and that the court
exceeded its authority in requiring him to obey all federal laws.

The Supreme Court agreed.

"The District Court unlawfully denied Nelson the right and privilege
to use a lawful medical treatment for relief from a debilitating
condition under the Montana Medical Marijuana Act," Justice Patricia
Cotter wrote in the majority opinion.

The court also found that "when a qualifying patient uses medical
marijuana in accordance with the (Medical Marijuana Act), he is
receiving lawful medical treatment. In this context, medical marijuana
is most properly viewed as a prescription drug."

The court also disagreed with the state's argument that the
prescription pill limitation was reasonable and lawful.

"The District Court ignored the clear intent of the voters of Montana,
that a qualifying patient with a valid registry identification card be
lawfully entitled to grow and consume marijuana in legal amounts,"
Cotter wrote.

Daubert said that determination was fundamental to the recognition of
the medical marijuana law.

"Montana voters clearly decided that Marinol is not the equivalent of
medical marijuana," Daubert said. "The court recognizes in its
decision that the so-called pill form of marijuana is not marijuana.
It's really a common-sense interpretation of our law."

Justice Jim Rice was the sole dissenter in the court's decision. In
his written opinion, Rice noted that Nelson obtained his medical
marijuana registration only after he was arrested on drug charges.

"This conclusion only makes sense: A defendant must be sentenced for
the crime he has committed, under the law as it existed, when he
committed it," Rice wrote.

Betsy Griffing, legal director of the American Civil Liberties Union
of Montana, disagreed, calling the court's ruling a good decision.

"It very simply upholds the language of the Medical Marijuana Act,"
Griffing said. "It says that there are a few exceptions to the Medical
Marijuana Act, and that this situation doesn't meet those exceptions.
The Supreme Court says to the District Court, 'hey, this is a state
law, and this is what it requires, and you have to look at it when you
sentence people. You can't punish or restrict anybody for using
medical marijuana."

Griffing said the court's ruling may have far-reaching effects for how
the courts and correction officials handle probationers and parolees
in the future. She said that, as a matter of tradition, the courts
have imposed rules requiring offenders to follow all federal laws.

In its decision, the high court pointed out that the federal
government does not have the authority to compel state agencies to
enact and enforce federal regulatory programs.

"The Supreme Court says (the Medical Marijuana Act) is a state law
that defines how state courts -- and I think, by clear implication,
the Department of Corrections -- has to treat probationers," Griffing
said. "State courts are not responsible for enforcing federal laws.
The principle of federalism says that state courts address state law,
and state law says medical marijuana is legal."
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MAP posted-by: Larry Seguin