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Montana medical marijuana unsettled; AG's office might appeal injunction

  1. Terrapinzflyer
    HELENA - The status of medical marijuana in Montana remains somewhat unsettled, despite a Helena district judge's decision last month to temporarily block some more onerous restrictions of a 2011 state law.

    The attorney general's office may appeal parts of Judge James Reynolds' June 30 order. The opposing lawyer for the Montana Cannabis Industry Association doesn't plan an appeal, but voiced concern over part of the decision. The judge will set a hearing, probably later this year, on whether to grant a permanent injunction.

    Petitioners are starting to gather signatures for a referendum seeking to stop the 2011 law in its tracks by suspending it and preventing it from being enforced until Montanans decide in 2012 whether to reject or keep it. An East Helena woman who used medical marijuana for back problems wants to treat pot like alcohol and filed the initial paperwork last week for a constitutional initiative to decriminalize marijuana.

    Medical marijuana providers - formerly caregivers - are scrambling to submit the needed paperwork to comply with the new law. Patients must to file new papers identifying their providers. And Jason Christ of Missoula, who started the controversial traveling "cannabis caravans" to sign up thousands of cardholders, is launching new efforts. (See related story.)

    Although no one wants to talk about it publicly, the specter of more federal raids on medical marijuana growing operations here looms.

    After the number of medical marijuana cardholders nearly quadrupled over a year to 27,300 last December, many legislators were determined this year to repeal, or at least toughen, the 2004 voter-passed initiative legalizing use.
    After Gov. Brian Schweitzer vetoed the repeal bill, lawmakers passed Senate Bill 423 to rein in an industry that lawmakers believe had careened out of control. After Schweitzer let it become law without his signature, the law was promptly challenged in court by the Montana Cannabis Industry Association and others.

    On June 30, Reynolds preliminarily enjoined key parts of the law. He halted provisions that would have forbidden providers from charging for medical pot and that would have limited them to three patients apiece. He blocked a provision that would have allowed law enforcement officials to make unannounced inspections of places where providers grow marijuana. Reynolds also stopped a provision that would have required the Board of Medical Examiners to automatically review any physician who recommended medical marijuana for 25 or more patients in a year.

    Attorney General Steve Bullock's office is deciding whether to appeal parts of Reynolds' ruling to the Supreme Court or seek a full hearing during the permanent injunction hearing, said Jim Molloy, one of the attorneys arguing the case.

    "We do have concerns about a holding that would suggest that there is a fundamental constitutional right to sell marijuana," Molloy said. "We think the Legislature acted within its authority when it tried to allow access to people who truly need it, but take away the commercial industry that created so many of the problems."

    The attorney general's office also may ask Reynolds to reconsider his temporary stay on inspections since he's allowing commercial medical pot providers to exist.

    James Goetz, the Bozeman attorney representing the Cannabis Industry Association, said he's not considering an appeal. However, he's concerned about Reynolds' leaving in place the part of the law that prevents people in custody or under the supervision of the Corrections Department or youth court from getting medical marijuana cards. The judge said challenges to this ban should be made on a case-by-case basis.

    "We are seeking how Corrections and how Health and Human Services deal with that," Goetz said. "Some of these probationers are in serious medical need. There may be future action on that."

    The preliminary injunction will remain in effect until there is a court hearing on the request for a permanent injunction.

    By the time a hearing is held, however, the 2011 law could be suspended.
    A group called Patients for Reform - Not Repeal has launched a referendum effort so voters in November 2012 can decide the fate of the law. To do so, it needs the signatures of 5 percent of voters in 34 of the 100 state House districts or at least 24,337 signatures.

    To suspend the law from being enforced until voters decide, the group need the signatures of 15 percent of voters in 51 of the 100 House districts. That will take between 31,238 and 43,247 signatures by Sept. 30 depending on which districts they use, according to the secretary of state's office.

    Even Patients for Reform - Not Repeal conceded on its website that possibility of obtaining enough signatures to suspend is "extremely difficult," adding "chances are that the Legislature's bill will be in effect until next year when Montanans vote."

    Anti-SB423 petitions haven't hit the streets as quickly as some had expected. The reason is because the group wants to train 1,000 volunteers on the legal requirements to gather signatures.

    "Nobody wanted anyone to gather signatures until they've been trained," said Kate Cholewa, spokeswoman for the Cannabis Industry Association. "We want to be by the book and make sure everyone does it right. It's not that simple."

    Meanwhile, changes in the law have created confusion for both medical marijuana providers and patients.

    "I think people are scrambling," Cholewa said. "I think of all the paperwork that has to happen for caregivers to become providers. The patients have to do a change-of-provider form. There's bureaucratic work that has to be done for people to be safe and legal. The Department (of Public Health and Human Services) is in the position where they need to make modifications in order to reflect the changes.

    "As a result, there's a lot of people who do not have access right now, people who have dropped out."

    In response, department spokesman Jon Ebelt said the agency at this time is accepting, but yet not processing, provider applications and has received about 200 so far.

    "They are being date-stamped and will be processed in the order they are received," he said. "Updates to our computer system are near completion, and we will begin processing provider applications very soon."

    Ebelt said the department is able to process medical marijuana patient applications, so that work has continued since the new law took effect.
    For apparently the first time since the 2004 law took effect, the number of registered marijuana cardholders in Montana has dropped. There were 30,036 cardholders in June, down from 31,522 in May.

    The sponsor of SB423, Senate Majority Leader Jeff Essmann, R-Billings, vowed to seek a legislative audit examining how the department has administered the program. He was incensed to learn recently that one physician had recommended marijuana for more than one-fifth of all Montana cardholders.

    "Can any physician have a bona fide doctor-patient relationship with 6,861 patients?" he asked. "And the district judge is prohibiting us from referring this physician for review by the Board of Medical Examiners."
    The Republican senator accused Gov. Brian Schweitzer and his administration of being responsible for the problems.

    "I think the blame for this entire fiasco lies at the feet of the Schweitzer administration for failing to follow the law," he said. "The light should have gone over in that department that there's a problem with some of those doctors and maybe we should be looking at what they're doing."

    In response, Public Health and Human Services Director Anna Whiting Sorrell said in a statement, "The governor did not sign Senate Bill 423 because it was blatantly unconstitutional and riddled with problems. ... The law was ambiguous and has conflicting provisions. The governor has always favored increased regulations over medical marijuana in Montana."


    By CHARLES S. JOHNSON
    Missoulian State Bureau
    Posted: Saturday, July 16, 2011

    http://missoulian.com/news/state-and-regional/article_cf9e4352-b01e-11e0-81c0-001cc4c03286.html

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