MT Supreme Court upholds most 2011 restrictions on medical marij - KXLH.com | Helena, Montana

MT Supreme Court upholds most 2011 restrictions on medical marijuana

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Marijuana (MTN News file photo) Marijuana (MTN News file photo)

The Montana Supreme Court Thursday upheld most of the new restrictions placed on medical marijuana by the 2011 Legislature, in the wake of an explosion in the number of medical-pot users.

In a 6-1 decision, the high court said the restrictions are a "rational response" by the state to the rapid increase in medical-marijuana users from 2008-2010.

During that time, the number of users rose from about 1,000 to more than 30,000. Pot shops cropped up at numerous locales around the state and businesses had traveling "caravans" that offered to quickly diagnose people to make them eligible for medical-marijuana cards.

Thursday’s ruling did strike down the 2011 ban on medical-marijuana businesses charging for their product. But it left intact a provision that says medical marijuana providers can have only three clients.

The ruling also upheld a ban on advertising medical marijuana and the requirement that any physician certifying more than 25 medical-marijuana patients a year must be reported to the state Board of Medical Examiners.

The Montana Cannabis Industry Association had challenged the law as an unconstitutional restriction on their business. Montana voters approved medical marijuana with a 2004 voter initiative, but the 2011 law essentially replaced that law. 

State Rep. Jeff Essmann, R-Billings, the chief sponsor of the 2011 law, told MTN News Thursday that he’s pleased the court upheld what he considered to be “reasonable regulations” of medical marijuana.

Essmann said the most important part of the law is the reporting requirement for doctors who certify more than 25 patients. The Board of Medical Examiners now must create a process to review physicians who prescribe large numbers of cards, he said.

Attorney General Tim Fox, whose office defended the law, said in a statement Thursday that the 2011 Legislature took “appropriate steps to address abuses” of the old law.

“I am grateful to the justices for upholding the rule of law and recognizing that it’s the Legislature’s rightful purview to set state policy on this important issue,” he said.

James Goetz, the Bozeman attorney representing the cannabis industry association, told MTN News Thursday that while the providers are glad they can now charge for their product, the limit of only three clients will make it difficult to have a legitimate business.

"I'm disappointed by that," he said. "It seems, bottom line, pretty irrational."

Montana's tight restrictions on medical-marijuana also run counter to regional trends on marijuana, Goetz added.

"You can drive two states over and buy it without a medical card, and people seem to survive," he said.

Goetz said his client may consider an appeal to the U.S. Supreme Court.

Justice Beth Baker, who wrote the majority opinion, said the court is not ruling on whether Montana can regulate marijuana, but rather if the Legislature’s restrictions are constitutional.

She said the 2011 law served a “legitimate state interest” of carefully regulating a drug that is still illegal under federal law and that the restrictions are not unreasonable.

However, the ban on marijuana vendors charging for their product is not reasonable, because it could end up creating more of a black market, and unfairly singles out one business in the process, Baker wrote.

Two justices -- Jim Rice and Laurie McKinnon -- voted to uphold the law, but said they would have gone further, allowing all of its provisions to stand. 

The only complete dissent came from Justice Mike Wheat, who said the state went too far in curbing alleged abuses of the law and had restricted patients' access to marijuana so severely that it "ultimately destroys the law's purpose."

The number of Montanans with medical-marijuana cards dropped dramatically after the law passed. As of last month, 13,640 Montanans had cards and 471 marijuana vendors were registered with the state.

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