Recap of the Lawsuit and Next Steps

February 14, 2012

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.