MTCIA Rundown on Legal Challenges to Medical Cannabis Laws & Enforcement in MT

September 6, 2011

(from Chris Lindsey)

There are several cases underway that affect Montana’s medical Cannabis community.  The main case, the one run through Jim Goetz’s office, is being financed by the MTCIA.  Others are private actions in different parts of the state, but are key cases for the community and we are watching them closely.  Here is a quick summary.

1.      The MTCIA’s case to challenge the constitutionality of SB423 continues.  Late in June, Judge Reynolds declared that several provisions including limits on a provider’s ability to receive compensation from cardholders, limits on the number of cardholders that can be served, and limits on a physician’s ability to made medical Cannabis recommendations to more than 25 patients was found to be unconstitutional.  Most recently, the state’s Attorney General sought an appeal of that ruling, and Jim Goetz and his team have cross-appealed several of Judge Reynolds findings as well.  Among other things, we are challenging a clause in SB423 that allows the state to sever any provision that is found to be unconstitutional.  We are also appealing a ruling that does not allow probationers any legal access to medical Cannabis, regardless of medical need. 

2.      A private case has been brought against the City of Billings which sought to prohibit all commercial providers from operating in the city.  The city invoked the emergency provisions of their rules to establish a ban, and that invocation of an emergency was challenged.  The judge in that case has set a hearing for late September, and in the mean time, the city’s attorney and other private attorneys working for the city, along with the attorney for the plaintiffs, are trying to craft a compromise that would allow businesses to continue operation under certain regulations.  The plan is to present the city council with options, and our hope is that those will be accepted without further litigation.  We do not know if the city council will accept the recommendations from their city attorney, however, and more litigation may be necessary.

3.      Another private case is set to be filed against Yellowstone County.  The county commissioners voted for a resolution that appears on the surface to be a complete ban on businesses as well.  However, during the public comments portion of a hearing on August 16, it appears that the county may be much more flexible in allowing businesses to operate.  The parties are seeking a clarification of the law in order to avoid litigation in that matter.  The issue is whether or not the Resolution is in fact a ban, or if it is simply a requirement that limits signage for businesses. 

4.     A private case decided in Missoula in 2010 is being appealed to the Montana Supreme Court.  At issue in this case is whether or not caregiver-to-caregiver transactions are lawful under the former law, I-148.  Some parts of I-148 appear to support caregiver-to-caregiver transfers and assistance, and others appear not to.  A judge in Missoula ruled against a reading that supported caregiver-to-caregiver, and that decision is under appeal.   This is important for the community, because if SB423 is declared unconstitutional in its entirety, or if the signature drive being conducted by Patients for Reform Not Repeal is successful in getting 15% of the voters to sign their petition, we will default back to I-148 as our medical Cannabis law for the state.

5.      Similarly, a case in Kalispell in which the MMGA is the plaintiff also sought a determination on caregiver-to-caregiver transfers.  The judge in that case turned to the ruling in Missoula and ruled against the plaintiffs.  That case is also being appealed.  It is possible the two caregiver cases under appeal will be combined at the Supreme Court level.

6.      Another private case has just begun.  In this matter, a cardholder was found to have been in possession of a small amount of medical Cannabis and paraphernalia for the consumption of Cannabis without having his card on his person.  The law enforcement officer charged the cardholder with a criminal offense.  The issue is that violations of SB423 have their own penalty described within the Act, and the officer overlooked that and charged the person with the criminal offense of possession.  In that case, the defendant is seeking a ruling from the court to apply the penalty within the Act itself, and not within the criminal portions of the state code.

7.     There are two private cases in the eastern part of the state in which the plaintiff in one case, and defendant in the other, are each seeking a determination that it was lawful under I-148 for a caregiver to employ a courier to transport medical Cannabis on his or her behalf.  In one case, the argument is being made as part of a criminal defense, and in the other, it is part of a civil suit against the county.  In the civil matter, the county attorney has sought the assistance of the state’s attorney general to assist in a response to the claim.  Essentially, the claim is that agency law, which applies in every other part of our state’s laws, should also apply here.  If it is lawful for a person to be engaged in activities, it is lawful for that person to hire an agent to act on his or her behalf.  Both those cases are critical to many aspects of the activities caregivers engaged in under I-148. 

8.  Also happening are at least two cases that deal with forfeiture of property under I-148.  Is it lawful for law enforcement to take property of a caregiver without a determination that the person committed a criminal offense under the criminal statutes of the state.  I-148 states otherwise, however it is a common practice for law enforcement to take property before such a determination is made.  

9.  Finally, there is a case in which the Federal Government is being challenged on its lawful basis to take property in light of the fact that in Montana, medical Cannabis is a legal substance, and the 10th Amendment to the US Constitution declares that states have the right to make their own laws.