The Myth of the Return of the Wild, Wild West

October 16, 2012

Much is being made by supporters of SB423 that a return to I-148 (the state’s former medical marijuana law) represents a return to the fabled days of the “wild wild west.” It seems like neither Senator Jeff Essmann nor the lobbying group Safe Communities, Safe Kids can talk about the repeal of SB423 without trying to scare voters with this fictional boogieman.

The reality is that I-148 is not as vague as they would have the voters believe, and our own state Supreme Court has told us as much over the course of several recent decisions. In fact, the Supreme Court has repeatedly called I-148 clear and unambiguous. So much for the fabled “gray areas.”

The wheels of justice turn slowly, and while I-148 was the law in the state since 2004, it was only in 2012 – after it was repealed – that the majority of cases interpreting the former law were decided by the Supreme Court. If voters succeed in overturning our current bad law and we revert back to I-148, the landscape will be remarkably different than it was in 2009 and 2010 in light of these decisions.

The key to all these decisions is the court’s recognition that marijuana possession, cultivation and sale is illegal by default under the state’s law. Medical marijuana is an exception to this prohibition, and only where that exception clearly applies will there be protections for medical program participants. This basic rule runs through at least 4 Supreme Court cases decided this year on the current limits of the former law, and these limitations will be firmly in place if SB423 is overturned by voters this November.

First, caregivers cannot employ or contract with caregivers or patients to perform duties that belong to that specific caregiver. Large organizations are simply not logistically possible when a caregiver is effectively an “island unto himself.”

Second, patients can only be in possession of marijuana provided by their licensed provider. Gone are the days were simply having a patient “green card” meant having a “get out of jail free” card for possession charges – the source makes all the difference.

Next, derivative products like kief, hash oil and hash are illegal under any circumstances. The court has told us that “useable marijuana” under the former law means the same thing as “marijuana” under the criminal code, which is “all plant material from the genus Cannabis containing tetrahydrocannabinol (THC) or seeds of the genus capable of germination.” These other items, the court ruled, fall under the definition of hashish, which is separately defined, and therefore – literally – they are not part of the definition of “useable marijuana.”

Finally, patients cannot obtain a card after being charged with a criminal offense related to marijuana and hope to use that as a defense to the marijuana-related charge. Cards do not work retro-actively. Having a pending application will make no difference in the applicability of the law to a person accused of a criminal offense.

Taken together, many of the factors that led to the perceived atmosphere surrounding the medical marijuana program will simply not be present, specifically because of these rulings.

In addition to the Supreme Court cases, cities can now clearly regulate medical marijuana businesses that operate in different parts of their jurisdiction. In 2009, that was not well understood. As many of us saw in 2010 and 2011, numerous cities and even some counties began banning or otherwise regulating storefronts and businesses. This will continue into the future.

Our opponents like to claim that SB423 is responsible for “reigning in” the storefronts. Again, this ignores reality. The current law does nothing to limit storefronts except to acknowledge that cities can regulate them – which they were doing already.  The current law did not change the equation, nor will its repeal.

What SB423 did accomplish was make participation in the program as unappealing as possible. The fact that the lobbying group that most strongly supported complete repeal, Safe Communities Safe Kids now is working hard to keep SB423 in place is the strongest sign of the law’s true purpose.

For most historians, the “wild, wild west” is a myth. It makes for some great movies, but does not have much to do with the real world as it existed for people living in the American West.  Billings Senator Jeff Essmann and Safe Communities Safe Kids have developed their own myths surrounding medical marijuana in Montana, and they are no more realistic than the Saturday afternoon re-runs on AMC.