As many of you already know, the MTCIA initiated a constitutional challenge to the current medical marijuana law in the state last summer. Here is a recap on what has happened so far and where we are today.

In order to prevent the more offensive parts of the law from going into effect, the MTCIA and the other plaintiffs in the case asked the judge to place injunction on the new law in order to protect patients, providers and physicians. After a hearing the judge decided not suspend the entire law, but did enjoin certain parts, including 1) the ban on advertising, 2) unannounced inspections on providers by law enforcement, 3) the limit on the number of patients for which a physician could make a medical marijuana recommendation, 4) the limit on the number of patients a provider can serve, and 5) the prohibition on a provider receiving compensation from his or her patients.

Following the decision, the state’s Attorney General filed an appeal and later filed a brief in support of the appeal. In filing the appeal, the Attorney General took exception to two particular features of the decision: that providers could not be limited in the number of patients they serve and the judge’s finding that providers can receive compensation for their services from qualified patients. The other aspects of the judge’s decision were left alone.

The Attorney General’s brief in support of the appeal was filed mid November. Essentially, the Attorney General argued that Judge Reynolds did not apply the correct legal standard in making his determination and accordingly, the Supreme Court should reverse the decision, send it back to the district court in Helena, and provide a framework for Judge Reynolds to use as the case goes to trial.

On January 17, the MTCIA’s response to the Attorney General’s brief was filed with the Supreme Court. The MTCIA also filed its own appeal of some of the aspects of the decision, including Judge Reynold’s refusal to lift the ban on probationer’s use of medical marijuana while on supervision. The cross appeal also asked the Supreme Court to reconsider the standard of care that physicians are required to follow under SB423 (which was left untouched by Judge Reynolds). Finally, the MTCIA’s position in the appeal is that the new law has so many constitutional problems that the Supreme Court should make a finding that the entire law should be enjoined – not just portions of it.

Currently, the State Attorney General’s Office has until February 16 to file its own response to the MTCIA’s cross appeal. The MTCIA will then have 14 days to reply to the state’s response. Accordingly, it is likely the matter will be fully briefed with the Supreme Court by early March. At that point, likely within several weeks, the Supreme Court will decide if a panel of 5 justices can decide the matter based on the briefs, or if the entire Supreme Court should hear oral arguments by both sets of attorneys in support of their claims. It has been estimated the Supreme Court may not weigh in on these appeals until Summer or even the Fall, at which point the case, regardless of the decision by the Supreme Court, would be sent back to the district court to proceed to trial. We at the MTCIA believe that we may not see this case get resolved until some time in 2013, based on both the Supreme Court’s own schedule and that of the district court in the case.

It is important for our members and anyone participating in the medical marijuana program in the state to understand that the efforts of Mr. Goetz on our behalf do not change the Federal government’s outlook on medical marijuana. Clearly the Fed is opposed to the state’s program, and participants who wish to continue operating under the program need to be extremely cautious and understand the risks involved. Should you wish to try and participate in the state-run program, we strongly encourage you to talk with an attorney first.

Late last month, the state of Montana filed its appeal of the temporary injunction against provisions in SB 423 secured last summer in the MTCIA vs. the State of Montana.

Highlights of the state’s argument against the injunction:

• The right to pursue employment is limited to lawful activities and commercially selling marijuana is illegal under Montana and federal law.
• There “is no right to pursue health free of government regulations.”
• The “right to privacy encompasses the right to make medical decisions but that right must be balanced against the State’s police power…”
• “It is well within the State’s police powers to determine the conditions upon which it makes marijuana legal for medical purposes.”
• There is no fundamental right to use marijuana. Thus, the proper standard of  judicial scrutiny is rational basis, not strict, as was applied by District Court. (This is the crux of their argument. Definitions of strict scrutiny vs. rational basis scrutiny available at bottom of post.)

You can read the state’s appeal in its entirety here.

The MTCIA’s cross appeal and response to the state must be filed by January 17.

And now a holiday message from MTCIA, Billings. Billings has faced some of the most rabid prohibitionists in the state and stood their ground. Whether supporting the court case or collecting signatures for IR-124, Billings has always made an impressive showing.

From Billings MTCIA member Elizabeth Springman:

The MTCIA’s First annual Christmas mixer and membership drive in Billings was a great success! We had over 50 people in attendance, and I am happy to report, there were many new faces joining us. Ed sold more than 70 t-shirts and all together we managed to raise over $3,700 dollars for the MTCIA! That is amazing!

We all enjoyed a wonderful potluck dinner, great company, a gift exchange and a few brave souls even sang along with Juleen and her karaoke machine! A great time was had by all!

It was good to see so many new faces at our party. I hope all the newcomers who joined us for the festivities, will be back to join us again at our regular monthly meeting in January.

The word is getting out about the Montana Cannabis Industry Association and our continued fight for patients, providers and reliable, safe access to cannabis in Montana.

A big thank you to all who participated and helped make this night a huge success! We couldn’t do this without the support of our members.

Elizabeth P

Thanks, Elizabeth!

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Strict scrutiny vs. Rational basis scrutiny:

Strict scrutiny is the most rigorous form of judicial review. The Supreme Court has identified the right to vote, the right to travel, and the right to privacy as fundamental rights worthy of protection by strict scrutiny. In addition, laws and policies that discriminate on the basis of race are categorized as suspect classifications that are presumptively impermissible and subject to strict scrutiny.

Once a court determines that strict scrutiny must be applied, it is presumed that the law or policy is unconstitutional. The government has the burden of proving that its challenged policy is constitutional. To withstand strict scrutiny, the government must show that its policy is necessary to achieve a compelling state interest. If this is proved, the state must then demonstrate that the legislation is narrowly tailored to achieve the intended result.

vs.

Rational basis is the lowest level of scrutiny that a court applies when engaging in judicial review . . . The rational basis review tests whether a governmental action is a reasonable means to an end that may be legitimately pursued by the government. This test requires that the governmental action be “rationally related” to a “legitimate” government interest.

Medical cannabis patients are often forced to emphasize their vulnerabilities in order to prove their worthiness to access a botanical that offers them relief. Their “worthiness” is measured by legislators’ perceived degree of patient suffering rather than whether or not cannabis is effective for their condition.  This requirement to emphasize a vulnerability, however, belies patients’ strength, courage, and power. Patients were the front lines for challenging the myths and lies on which the marijuana prohibition industries were built.

Currently, in Montana, if you are a patient and you get your cannabis from a legal, registered provider, you are only able to do so because of the temporary injunction secured in the lawsuit, the MTCIA vs. State of Montana. Without this lawsuit and injunction, access to medical marijuana in Montana would be all but over.

The MTCIA would like to ask you, the patients of Montana, for your help.

All those who benefit from the lawsuit are not sharing in its cost. Many providers who make a profit from selling medical cannabis have not stepped up and supported the lawsuit that allows them to exist at all. At this time, the cost of doing business in Montana includes the cost of the lawsuit (no lawsuit = no business). If a medical marijuana provider  is not contributing to the cost of lawsuit, that provider is riding somebody else’s coattail and operating on somebody else’s dime, no different than if they were siphoning off electricity or stealing another’s supplies .

We ask patients, who hold great power as consumers, to ask your provider whether or not s/he is a member of the MTCIA and helping pull the load for all those in Montana who use or provide medical cannabis. You can also check with the MTCIA to find out whether a provider is a member (info@mtcia.org). If your provider is a member, please thank him or her for their support in protecting access for all. If your provider is not a member, please ask that they become one and pull their own weight on behalf of access in Montana.

Some MTCIA members have launched in their businesses a $1 request per transaction to offer patients an easy, painless way to contribute to the movement that makes it possible for them to secure cannabis in a safe environment. The response has been overwhelmingly positive as patients value their access and are eager and willing to help protect it, some giving beyond the $1 when they understand what’s at stake and the necessary work being done.

Thank you to all.

Patients are the market. The market decides what businesses stay and which ones go. This is the way markets should function and it’s what regulations should support – the power of the consumer. Our legislature did not provide regulations. They passed a bill meant to dismantle the system and make Montanans vulnerable to arrest for participating in a program voted in by the citizens of this state. Nor should regulations be about the government picking out the winners by awarding contracts, something done in other states. Regulations should create baseline standards that address safety, quality, and functionality. Those who can meet those baseline standards then get to compete. The market should choose the best – those who provide quality, a safe purchasing environment, and service.  

But right now, we don’t have regulations. We have obstacles and “gotcha” provisions and a  state law enforcement that is either sidelined by the feds or shilling for them – we don’t know which. Without regulations, you are needed as a patient, as a consumer -  as the market – to shape this system with your dollar.

If a provider is unwilling to participate fairly now, how will they participate in the future when laws may be getting made to the detriment of the patient-consumer? If they aren’t standing with you now to protect access, why would they stand with you later when greater profits may be at stake?

Lawmakers have pretended that SB 423, their de facto repeal legislation, is regulation, which it is clearly not. As a result, Montana is left to create our own standards within the parameters of the wreck of a law that we have, and much of the power to do this lies in your hands, the patients. Who deserves your dollars? Those contributing to protecting your access, or those profiting by the work of others?

Who do you want growing your medicine?

We can make profiteering a thing of the past.

The power is yours.

Meetings will run from 7:15 p.m. till 9:00 p.m. unless otherwise noted. In recognition of the holidays, this month’s gatherings are social and open to non-members. 

Helena member meetings to begin early next year.

Kalispell

Monday, December 12
Glacier View VFW 330 1st Ave

This month’s meeting will begin at 7:30 PM. It will be a Christmas party with a pot luck and white elephant gift exchange ($5 limit if you’d like to participate). The party will also have an ugly sweater contest with a prize to be awarded. It is a membership drive, so please bring a guest.

Missoula

Tuesday, Decmeber 13

Top Hat, 134 West Front St.
 

Bozeman

Wednesday, December 14
Best Western 1325 North 7th Avenue

This month’s meeting will be a holiday party with cocktail service to the meeting room.

Billings

Thursday, December 15
Heightened Harvest (West End location) 1415 s. 32nd

This month’s meeting will begin at 7:00 PM. It will be a Christmas party with a pot luck , white elephant gift exchange ($5 limit if you’d like to participate), BYOB, and karaoke.

Montana’s population is less than a million. In 2008, we had a 74% election turnout. Fewer than 250,000 votes won a statewide race, or with the same turnout would win a statewide referendum.

Are there 250,000 votes in Montana to toss out the unconstitutional wreck of a law (SB 423) passed by the 2011 legislature meant to dismantle medical cannabis access in the state? Are there 250,000 votes to end prohibition of the adult use of cannabis in Montana?

Start looking around and ball parking. How many in Missoula? How many in Libby? How many in Billings? Bozeman? Great Falls?

But before there’s the general election next November when the referendums will be decided, there’s the primary in June. In primaries, voters choose either the Republican or Democratic ballot and vote on who will represent each party in the general election in November.

A democrat running for a statewide office could beat his or her democrat opponent by securing just over 45,000 votes. A republican may need around 70,000 in a two-way primary, depending on turnout. Given there’s currently 8 republicans running for Governor in the primary, the republican nominee could, theoretically, get the republican spot on the ballot with fewer than 20% of the number of signatures collected for IR –124.

Given that the referendum to put the law on the ballot received over 50,000 signatures, and the ballpark figure on how many of those are newly registered voters comes in at maybe 10,000 (we should have real numbers before too long), driving the outcome of a close statewide primary shouldn’t be too difficult for the cannabis vote –

if those who want an end to the political nonsense around cannabis policy acts as a voting block.

Power’s only power if you use it.

For historical data on voter turnout in Montana, go here.

The MTCIA extends its thanks to all those who participate in the effort to bring the truth about cannabis to light in society.

We thank the patients willing to share their stories in order to educate the public.

Thanks to all those on the front lines as providers, risking much for the sake of their patient-consumers, and also risking much for a principle and for what is right.

Thanks to all the advocates and to all the family members and friends of those working to reverse the detrimental lies.

Thanks to those businesses, too, who have done the lion’s share of providing the financial resources in Montana that allow for the system to exist at all through their support of the lawsuit.

Happy Thanksgiving to all and join us in welcoming new board member, Nicole French. Nicole has been active in Montana politics for fifteen years. She advocates for individual liberties, state’s rights, and an end to unconstitutional federal intrusion. She is also co-founder of montanafesto, a Montana political commentary website dedicated to the promotion of commonsense drug policy reform, education, and exposing hypocrisy in elected officials. She was also a key player on the team to get IR 124 on the ballot.

Welcome aboard!

As our members know, we’ve been talking about a single-issue voter campaign since August and have surveyed members as to whether or not they think they will be single issue voters in the next campaign. We’ve initiated steps to educate people on what single-issue voting means, created materials, and took them with us to the Drug Policy Alliance conference in Los Angeles.

We’re encouraged to see support for such a campaign in Montana. Because we see advocates picking up the idea,  running with it, and making it their own, we wanted to make sure that those concerned with cannabis-related issues have an understanding of what it means to be a single-issue voter.

We’ve learned over and over that compassion, the truth, and what is right isn’t serving as a compass for Montana elected officials.

So, we need new officials.

Below is an educational piece on single-issue voting and its power.  Come to local MTCIA meetings and get our awesome single-issue voter sticker or t-shirt.

Single-Issue Voting

The purpose of the single-issue voter will not always be to elect a particular candidate. The purpose is to demonstrate the power of a voting block. There may not be a candidate in a given race that deserves the cannabis vote. Yet, even in such a race, there is the opportunity to demonstrate that the cannabis vote can drive the outcome of an election. 

The goal of the single-issue voter is to demonstrate the voting block’s power so that politicians learn that their objective of winning cannot be achieved without recognizing the voting block’s interests.

Of course, citizens who care about ending the social and economic problems caused by marijuana prohibition also care about other issues that impact their lives, communities, and the larger society. Why, if two candidates are both weak on the cannabis issue, should a citizen then not vote for the candidate who is aligned with that citizen’s other concerns?

It is a reasonable approach to take and many may feel it’s the only responsible choice. One’s vote is one’s own business.

For many, however, there is value in taking a stand to get one targeted objective accomplished through the power of the ballot box. A problem with single issue voting is that many voters become captive to the litmus test they set for a candidate – that the candidate must be pro-choice/anti-abortion, for example, or pro-labor/anti-union. The voter’s passion then becomes a prison as the constant battle over the never-resolved issue actually serves the two-party political system by creating a reliable base of voters for each party who have staked a claim on one side of the issue or the other.  A definitive victory on such issues, for either side, means the end of a reliable, captive voting block for a political party. 

This is why single-issue voters are despised by the political system when they are not under the control of one party or the other, which is the situation with marijuana.

But a single issue voting campaign, well-executed, needn’t become a life long litmus test vote. The point is to change the system in the fewest number of election cycles possible into a system that supports your interests.

So how might a single-issue cannabis vote campaign demonstrate electoral power?                                                                               

In Montana, a legislative House race may be won by as few as 32 votes, or 12, or even 2. So imagine a district with an anticipated close race. If in that district say 20 single-issue cannabis voters decided they would only support good candidates for the issue and neither of the candidates on the ticket are willing to express support for reasonable cannabis policies. This group of single-issue voters could then choose a write-in candidate, perhaps from among themselves. That candidate is not going to win, but it will allow the number of single-issue voters to be counted. If that legislative race is then won (and lost) by 18 votes, for example, and the write-in candidate got 20, it demonstrates a district in which the cannabis vote could tip the outcome of an election.

Of course, the candidates will also make calculations as to whether or not they might have lost votes had they taken a reasonable stand on cannabis policy.

Either way, the cannabis vote can no longer be ignored and both the winner and the loser and the candidates up the road will calculate their position on cannabis into their odds of winning in that district. Because single-issue voters only represent a portion of voters who are good on the cannabis issue, low numbers for write-in candidates is not an indication of a low amount of support in a given district. In fact, is evidence that citizens good on the cannabis issue are regular people who care about their communities in a myriad of ways, and that in addition to those voters, there are supporters willing to take hard stands to create change.

In states such as Montana, the impact of an organized cannabis vote can have far reaching impacts. By any list, Montana is one of the battleground states for control of the U.S. Senate in 2012. In  2005, Jon Tester gained a seat in the Senate for the Democrats by beating out incumbent Republican Conrad Burns by a narrow 3562 votes. In 2012, Senator Tester is being challenged by Republican Representative Denny Rehberg.  National resources will be targeted to the Tester-Rehberg race because when it comes to investing in buying the Senate, fewer people to reach makes Montana a comparably cheap date.

But the 2012 election includes new variable that wasn’t present when Tester and Burns faced off in 2006: The Cannabis Vote.

Last winter, the 2011 legislature passed a bill that dismantled access to medical marijuana in Montana. This past summer, 35,839 signatures  were collected in a petition drive which places the law passed by the legislature onto the 2012 ballot to be voted on by the citizens. That’s almost 36,000 registered voters who were unwililing to let the legislature undo medical marijuana access in Montana.

Compare that near 36,000 votes to the 3,562 Tester beat Burns with in ‘06.

How many of those 35,000+ voters are willing to vote in the 2012 election as single-issue voters, willing to vote only for candidates good on the cannabis issue? What if for single-issue cannabis voters no good candidate resulted in a withheld vote?

What it could mean is that the cannabis vote in Montana may have the ability to determine the balance of power in the U.S. Senate in 2012.

And what about President Obama? What if the national cannabis vote sat out the presidential election or threw their support to Ron Paul, Gary Johnson, or a write-in candidate?

A pro-cannabis Democratic voter may feel it is not worth it to lose the presidency to a Republican over cannabis policy and would perhaps draw the line at that vote. For many others, however, in these times, there doesn’t seem to be much difference in the direction the country is going (perhaps the speed in which it goes, but not the direction) regardless of who’s president. For such people, using their vote strategically rather than throwing it away on a disappointing outcome either way feels the more empowered choice. 

It’s also true that one might vote single-issue in their state races, but not national races, or the other way around.

But the objective of single-issue voters is not to support the lesser of two evils, something the political system counts on. The reason why single-issue voters don’t do this is because the objective is not this or that candidate, or this or that political party. It’s about building a foundation and a road to a fundamental change in policy. The cannabis constituency has demonstrated that it is willing to “fight for rights.” But is this a voting block willing to take itself seriously and utilize power?

“Fighting for rights” never gets a constituency power. Using power is what demonstrates that a constituency already has it.

 contact: Kate Cholewa, Policy & Communications, 406.459.4092, kate@mtcia.org

 See also The Montana Cannabis Vote 2012

The MTCIA has been on the road for community meetings during yet another intense week in Montana. More federal raids. (We had some incorrect information that A Kind Caregiver was local law enforcement, not feds. This was incorrect.)

The law passed by the legislature, SB 423, was essentially repeal of medical marijuana in Montana. Our challenge to the law, the MTCIA vs. the State of Montana, resulted in having several provisions of the legislation temporarily enjoined and allowed for continued access albeit under a clunky, dysfunctional law.

Nonetheless, we do have a law. But the feds seem unwilling to allow Montana to test our own law. If these businesses were in violation of SB 423, their penalties should be those penalties outlined in SB 423.

Why won’t the federal government allow Montana law enforcement to enforce Montana law? Why isn’t local law enforcement, state leaders, and our elected representatives standing up for state law?  How can the citizens continue with the pretense that we have any rights whatsoever to set policy for our own state?

The feds are shutting down the laboratories of democracy.  Perhaps the experiment is over. Democracy lost.

More later.