Pubdate: Wed, 20 Jul 2011
Source: Montana Standard (Butte, MT)
Copyright: 2011 Montana Standard
Contact:  http://www.mtstandard.com/
Details: http://www.mapinc.org/media/609
Author: Jim Shockley
Note: Sen. Jim Shockley of Victor represents Senate District 45 in 
the Montana Senate.
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)

MARIJUANA RULING WRONG

I believe that legislators should not comment on a pending lawsuit, 
and the suit challenging Senate Bill 423 (the revision the 2011 
Legislature made to the 2004 Medical Marijuana Act) is still pending 
in Lewis and Clark County.

An order on motion for a preliminary injunction has been issued, but 
the case has not gone to trial.

The case is "political" in nature and I believe that comment is 
warranted. It concerns a bill just passed by the Legislature to more 
closely regulate the production and use of medical marijuana.

Judge James P. Reynolds was doing his duty as he saw it and expressed 
himself well in his recent order. However, I find his order troubling.

The order refers to patient's right to "lawfully" receive medical 
marijuana, ignoring the fact that it is unlawful under federal law to 
grow, sell or use marijuana. The order ignores the tension between 
state and federal law and assumes that it is legal to use medical 
marijuana. The judge's order in effect says that it is a fundamental 
right under the Montana Constitution to violate the federal criminal law.

However, the order's most problematic aspect is its holding that the 
provision of the statute that limited the compensation paid to 
"providers" who grew the plant for patients, and the number of 
patients that they could supply, is unconstitutional.

The order states that the right to supply any number of patients and 
make a profit selling marijuana is protected by Article II, Section 
3, of the Montana Constitution; in fact it was a "fundamental 
constitutional right."

If the commercial growing of marijuana is a fundamental right, it 
seems that the Legislature cannot restrict large grow operations, nor 
even ban the sale of marijuana for a medical purpose if it wanted to 
do so. There would be less control by the state over medical 
marijuana than it exerts over alcohol, or even tobacco; e.g., the age 
of the user.

The Legislature realized the tough situation that federal law 
enforcement was put in by the current law, and the risk to Montana 
citizens who wished to benefit from medical marijuana, either as a 
grower or a medical user. The Legislature was attempting to limit 
production in a way that would not attract federal attention. The 
judge chose not to address this issue.

Medical marijuana has been a serious problem for some time and many 
Montanans have complained to the Legislature.

As examples of these problems: The current law allows unrestricted 
advertising, large grow operations, uncontrolled issuance of medical 
marijuana cards, and makes it impractical for state law enforcement 
to enforce the law.

If this preliminary injunction survives in anything like its present 
form through the Montana Supreme Court, Montana will have no control 
over the commercial production of marijuana or its use. Holding that 
the production and use of marijuana is a fundamental constitutional 
right will reduce to almost nil the state's ability to control the 
use and production of marijuana. I believe that the problem with 
medical marijuana will be much worse should this order survive the process.
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MAP posted-by: Jay Bergstrom