Post-Hearing Comments from Chris Lindsey

May 30, 2012

Today the Montana Supreme Court heard arguments from both sides of the controversy in our case.  Jim Molloy represented the State of Montana and Jim Goetz represented the MTCIA and the other plaintiffs. The State of Montana argued that Judge Reynolds in the district court should not have used the standard he used in the process of issuing the injunction.   The State asked the Montana Supreme Court to send the injunction back to the lower court with an order to re-evaluate whether or not the injunction should be issued on a lower standard – called “rational basis.”  Generally, it is much more likely the lower court will find that the injunction was not proper in light of such a lower standard.

Jim Goetz argued that the lower court used the proper standard, and that the injunction should stand as is.  Further, the entire current medical marijuana law should be invalidated because after Judge Reynolds enjoined parts of it, what remains no longer makes enough sense to keep it on the books.

Each side had approximately 30 minutes for oral arguments, and both attorneys were peppered with questions by the Supreme Court Justices.  It was not possible to tell based on the questions which way the Supreme Court is leaning and it will likely take several months before we get a ruling.

The State argued a few things that amount to a complete fiction.  The first is that it is ok for patients to obtain marijuana as medicine, but at the same time it shouldn’t be a right for someone to provide it to those patients and receive any level of compensation.  The state implied that it should be OK for people to simply obtain marijuana on the black market, which received lots of laughs from both the audience as well as the Justices.  The other fiction is the State’s mistaken belief that SB423, as passed by the legislature, is designed to meet the federal government’s wishes with respect to medical marijuana – as if, somehow, the federal government would not prosecute anyone if SB423 were in effect in its entirety.  This appears to misunderstand the fact that possess, use, sale (including sharing or giving marijuana) to others is in fact illegal to the federal government.  There is no magic line drawn around certain types of activities that are acceptable, and other types that are no.  As we are often reminded, the Ogden memo is nothing more than a suggestion about prosecutorial discretion.  Apparently even state employees, who assist in realizing a regulatory approach to medical marijuana, are subject to the threat of prosecution by the federal government even if it is just for patients.

We hope the Court will defer to the voters and not upset the apple cart at this point.  The people voted in Medical Marijuana and this November they will decide on IR-124.  Voters can decide to keep or reject the legislature’s bad law.  The Court should do as little as possible and let the people decide.

Today’s hearing only hints at what an awful law the legislature slapped together with SB423.  They tried to repeal a voter-approved law, then moved to repeal in disguise.  Voters can and should reject this bad law by voting AGAINST IR-124 in November.

This hearing shows how hard it is to regulate medical marijuana.  Mostly, Montana failed to regulate.  Now we have problems AND a bad bill voters need to reject in November.  At some point we need to find consensus on how to regulate marijuana properly.  This is long overdue.

As of now the injunction currently remains in effect without change.  If change comes, it will most likely come in the form of an order for the lower court to re-evaluate the injunction in light of a different standard of review.  We will not know if that is what the Supreme Court wants until the written order comes out, which will likely take several months.

Stay tuned, and as we get more information, we will post it here!