Trying Marijuana in Court of Public Opinion Again
Between now and Election Day, additional restrictions from Senate Bill 423 may take effect. Last week, the Montana Supreme Court overturned a District Court judge’s ruling that certain provisions of SB423 violated rights guaranteed by the Montana Constitution. Helena District Judge Jim Reynolds issued a preliminary injunction last year, finding that the new law’s restrictions on medical marijuana providers and users amounted to unconstitutional infringement on citizens’ rights to privacy, to health care and to seek employment (as medical marijuana providers).
In overturning Reynolds’ ruling, the Supreme Court said there is no constitutional right to use marijuana or to sell it.
The 2011 Legislature acted because the voter-approved medical marijuana law was being exploited by a growing number of marijuana suppliers who encouraged people to get state medical marijuana cards. The number of cards issued grew tenfold within three years so that by the time the 2011 Legislature passed SB423, the state had nearly 30,000 registered medical marijuana users and 4,800 suppliers. Medical marijuana storefronts had sprouted along busy streets in Billing and other cities.
What had been promoted in 2004 as a compassionate law to allow seriously ill Montanans to legally access a drug that relieved their pain, glaucoma or nausea was transforming quickly into a marijuana-for-the-masses business.
The 2011 Legislature didn’t act on medical marijuana reform proposals from its interim committee. Instead, SB423 was cobbled together in the latter half of the 90-day session with less public input than the interim committee proposals had received.
Storefronts Shut Down
However, the new law has been effective at reining in legal marijuana suppliers and users. The law also authorized local governments to restrict medical marijuana storefronts, which Billings, Yellowstone County and other jurisdictions have since done. The law narrowed eligibility for medical marijuana cards and restricted the business of supplying card holders.
By August, the number of registered card holders had dropped to 8,849, registered suppliers numbered 399 and doctors recommending marijuana numbered 225. Back in December 2008, there had been 1,577 cardholders and 465 suppliers.
The Supreme Court decision allows the state to enforce a previously blocked provision in the new law that forbids legal suppliers from charging for marijuana. That change is likely to further reduce the number of legal suppliers and card holders.
The Legislature’s repeal of a voter-enacted law is troubling in its disregard of the people’s directive in 2004. However, the initiative proponents weren’t advertising “cannabis caravans,” medical marijuana shops a few blocks from schools or thousands of new users each month.
In his 12-page dissent from the majority medical marijuana opinion last week, Justice James C. Nelson said the state court simply should have dismissed the challenge to SB423 rather than sending it back to Reynolds.
“Montana’s medical marijuana laws, in effect, purport to make legal conduct that is violative of the federal Controlled Substances Act,” Nelson wrote. “That Montana’s courts have become complicit in this endeavor (by taking up questions regarding the interpretation of Montana’s medical marijuana laws in the absence of an actual underlying criminal prosecution) is shocking.”
Under the Supremacy Clause of the U.S. Constitution, Nelson said, state law must give way to federal law “where compliance with both federal and state regulations is a physical impossibility.” If the illegality of marijuana is to be changed, Nelson said, Congress will have to change it first.
Nelson makes a good point: Regardless of what Montana voters decide in November, medical marijuana will remain risky for users and hazy for law enforcement.