State Attorney General’s Office Responds to Petition for Rehearing

October 10, 2012

The state’s Attorney General’s office responded to the MTCIA’s motion for rehearing by filing its “Objection to Petition for Rehearing” yesterday, October 9. According to the Supreme Court’s online docket, it now considers the matter officially submitted for determination. We are unable to say how long it will take the Court to render its decision.

The arguments between the MTCIA and the Attorney General are fairly technical. The MTCIA argued that it was simply speaking to the issue on appeal: whether or not “strict scrutiny” applied as the appropriate basis for the constitutional analysis used by the district court in issuing the injunction. The Montana Supreme Court said that it did not, but went further by saying that another level of scrutiny, called “rational basis,” was the proper analysis under the circumstances. Our attorney argued that concluding that “rational basis” applied in our case went beyond what the Supreme Court was asked to do, and limited our options for a different type of analysis, called “middle tier,” when we get back to the district court. That argument, which was the basis for the Petition for Rehearing, was filed on September 25.

The Attorney General’s argument in response was that the MTCIA did not make its argument in support of “middle tier” analysis sufficiently clear enough in its pleadings and oral argument and effectively conceded that it did not apply at all. Our response was that we didn’t need to – the only issue before the Court was whether or not “strict scrutiny” applied and nothing more. It isn’t our job to anticipate every possible argument, but rather to deal with what is before the Court, and the Court should not have gone beyond what it was asked to do in the course of making the appeal. This issue is now up to the Supreme Court to decide.

If the decision is made before the Election on November 6, and it is unfavorable, the injunction will be modified. That means that well over 5,000 patients around the state will no longer have a provider. Patients left out in the cold will have to start growing marijuana in their homes or apartments, or find a new provider who is able to cultivate marijuana for them for free. Ironically, the legislature’s attempt to repeal the medical marijuana act by making it difficult for patients will likely create thousands of new marijuana grows as the patients who benefit from the use of cannabis will have to find new ways of obtaining it.

A far simpler solution is for the voters to overturn this terrible law. The legislature ignored the will of the people and overturned it without taking the matter back to the voters. Instead they created a system that makes it as hard as possible on our state’s most vulnerable citizens to comply with the state program – repeal in disguise. The current law is bad for patients and bad for Montana. Vote AGAINST SB423!