In pretrial proceedings, there can be a great deal of back-and-forth that happens with the two sides are arguing. We filed a Brief in Support of a Preliminary Injunction a few weeks ago, and you can find a summary of it and the document here. We just received a copy of the AG’s office’s reply to that brief, which I summarized below. Following the AG’s document, we got the final say filed today, and I also summarized that below. Links to the actual documents are also provided along the way:
At the most basic level, the AG’s take is that this is all really just window dressing and the Montana Supreme Court has already answered the question in front of the court. (In other words, the State is basically saying “We win, but thanks for showing up anyway judge.”) According to the SC, there is no constitutional right to consume marijuana nor a right to sell it commercially, so we can ban it if we want, even if that is bad for sick people.
It isn’t medicine because, among other things, the current law took the words “medicine” and “patient” out of the state’s medical marijuana law, so that’s pretty much that. And even if it is technically “medicine” because it “helps” people get “healthier,” there are alternatives. Oh, and the fed made it illegal, so what do you really expect from us poor state schmucks anyway?
Besides, says the AG, even without a fundamental constitutional right to marijuana, patients still have access because they can grow their own. And it is theoretically possible there will be some people who will provide it to patients for free, at great personal cost, sacrifice and risk. These people are, of course, socialist commie-pinko hippies, but they people nonetheless.
Also, says the AG, there are alternatives to marijuana, and any suggestion otherwise is not supported by “real” research. The fact that real research is not allowed by the DEA or the DOJ is not the state’s problem. (No kidding – this is in the brief.)
The state suggests that the real reason for SB-423’s prohibition on commercial activity is to protect state citizens from federal prosecution for the commercial sale of a controlled substance. Apparently possession and manufacture is ok, even through that is illegal federally too. Based on some of the arguments also presented on page 6, referred to below, conspiracy to manufacture and distribute are not problems either.
The brief goes on to argue that while the Supreme Court does not completely shut down the possibility of getting another injunction on a “rational basis” standard, in order to get that far the court will have to rule on the the merits of the entire case instead of just dealing with the here-and-now of an injunction question. So c’mon judge, just give us what we want and don’t think this case through too much.
Finally, according to the AG’s brief, “the elimination of commercial transactions was enacted to address the serious abuses under I-148. These abuses include ‘marijuana caravans’ and telemedicine as well as utilization of a ‘green card’ to shield users and providers from investigation or prosecution for unauthorized marijuana sales.” This is a silly argument because (1) SB-423 does little to prevent the cannabis caravans, (2) the Board of Medical Examiners already weighed in on telemedicine long before SB-423, and (3) if marijuana sales are unauthorized, there is no roadblock to investigation or prosecution according to I-148’s own language.
The rest of the brief appears to be variations of these arguments. The AG proposes an interesting suggestion at the end of the brief, however, and that is that the AG would not object to a “transition period” of 45 days to allow patients to transition away from providers if the judge agrees with the state to not issue another injunction.
There are also some fascinating suggestions made on page 6 of the brief which I will not go into here. Why? Because I am going to wait to see what the judge has to say about them before I give anyone the impression they might actually, you know, work and not simply land a bunch of people in jail. Feel free to read up on them because they are in the public record now, but I would caution folks to hold off on the new business plan until we can learn more about what the judge might have to say about these ideas first.
Read the entire brief here: State’s Brief in Opposition to Preliminary Injunction
Jim Goetz then filed a response to this brief. His response:
1. The State has overlooked the actual standard to be used for this type of argument,
2. Sure the legislature can create bad laws, but the courts still have to enforce them as well as the constitution, and there are rules for these sorts of things (which the AG’s office has overlooked),
3. As previously argued, the point is that the state’s actions have to be “rationally related” to the purpose of the law, and they simply aren’t. Eliminating commercial transactions does not help patients and it does not even come close to preventing illegal conduct,
4. Harm will absolutely result if the injunction is not continued because sick people cannot generally grow their own, which is one of the most important parts of the rules for considering injunctions. Once the providers are gone, they are not likely coming back, and
5. It makes zero sense to arbitrarily draw a line between some federally illegal activity that is acceptable to the state (possessing, growing) and other federally illegal activity that for some arbitrary reason is unacceptable (selling it for money).
For a copy of this response, it is available here: Ps’ Reply in Support of Motion for Preliminary Injunction