We have received our attorney’s brief in support of a new injunction in our case and I wanted to provide a summary of the main arguments here. This injunction seeks to block (again) the provisions of the current medical marijuana law that prohibit any form of compensation, limit providers to no more than 3 patients, and require investigations into a doctor’s medical practice when he or she makes more than 25 recommendations in a calendar year.
Recall that the Supreme Court recently ruled that in order to obtain an injunction, the State of Montana must fail a “rational basis” test. That is, if there is no rational basis for a set of regulations in the legal sense, it is likely unconstitutional and therefore should be blocked from taking effect. Doing so before a case has been resolved at a final hearing makes this a “preliminary” injunction.
This brief makes the argument that the state does not have a rational basis to restrict medical marijuana participants with respect to these provisions of the medical marijuana law. The legal definition of rational basis is that a particular regulation must be “rationally related to a legitimate government purpose” or it is unconstitutional.
Our attorney has previously argued that marijuana is, in fact, medicine, and it is largely benign (relatively harmless), despite the scare tactics often used by government officials and those arguments are carried forward in this brief. Despite the fact that it is treated as a medicine under our state law, the law cuts off access for those who need it the most by imposing unreasonable restrictions that are not designed to address the concerns put forth by the government.
Jim Goetz argues that we need the injunction to maintain the status quo – one of the main factors in allowing for something to be blocked by an injunction. First, implementing the law as written will effectively eliminate the class of people who provide medical marijuana to state patients, he argues, and therefore it should be blocked until the matter can be ultimately decided in a final hearing. Second, without the injunction, patients will be harmed because their access will be cut off from a form of medical treatment. This is, in the most literal sense, an irreparable injury and should be avoided under standards set by Montana courts.
The goals of regulation are established in the law itself. First, it authorizes access to medical marijuana by qualified patients. Restricting commercial activity is not rationally related to that interest, especially when the alternate is that sick people have to grow their own at great expense and effort. Similarly, the state does not want marijuana getting into the wrong hands – but restricting commercial activity does not further that goal either. The medical marijuana law goes too far and should be blocked because its features are not related to its stated goals. In effect, the state can’t have it both ways – it can’t say it’s a medicine which should be available, and then unreasonably block access to it at the same time.
Our attorney also makes an argument that the law violates due process guarantees in our state and federal constitutions. This rule states that the government cannot deprive a person of “life, liberty or property” without fair treatment – and the medical marijuana law does just that. The goals – regulating a drug and preventing unauthorized use – are legitimate goals. It is the means by which that goal is achieved that is the problem, and here it treats medical marijuana patients unfairly by effectively cutting off access.
Finally, there are less restrictive methods of reaching the government’s stated goals. Effectively banning access is not the least restrictive way to do this. There are numerous limitations placed on program participants within both the medical marijuana law and the criminal provisions of the Montana Code, and those are designed to work the way they do. By way of example, say the legislature wanted to reign in frivolous lawsuits. Making them nearly impossible to file goes too far – it is not the least restrictive way of reigning in attorneys. The goal may be worthy, but the means of achieving it goes too far. Similarly, pharmaceutical drugs get diverted and they are abused. But restricting pharmaceutical companies to the same extent the state seeks to restrict marijuana providers is absurd and is no more legitimate than the restrictions in the mmj community.
These are compelling arguments. Typically, a rational basis type of analysis is very difficult for a party in our position to win, but we are looking at extraordinary circumstances. It is also well known that the medical marijuana law was an attempt to completely eliminate the program it actually claims to establish. This is simply absurd and goes far beyond a simple error in drafting. If there is a case in which the state fails to meet the rational basis test, this should be it.
Our hearing is set for December 13 in the afternoon at 2:00. There will be several witnesses including two providers and one patient, and Mr. Goetz has obtained an affidavit from a physician in California who has been involved in medical marijuana issues for a very long time. Obviously we will be very anxious to see what the court does with this request and we will keep everyone as up-to-date as possible.
Thank you to everyone who has donated to pay for this lawsuit and enabled this program to continue to function. It has only been through the MTCIA case that we have a working program, and those who have contributed financially have carried the weight of the other providers who have benefitted since June 2011. While we would like to see everyone make a contribution, keep in mind that our ultimate goal is to allow our neediest citizens to get the help they need, and those of you who have sacrificed financially do exactly that. You are true caregivers for ALL our state’s patients and not just your own and you should be proud of your accomplishments, just as we at the MTCIA are proud of you. Thank you, and as always, please continue to donate what you can!