Montana Judge Blocks Medical Marijuana Restrictions

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By Phillip Smith

montana medical marijuana tom daubert

A state district court judge last Friday dealt a hard blow to provisions of a restrictive state medical marijuana law passed by the Republican-dominated legislature seven years after Big Sky voters approved a more open initiative allowing for medicinal use and a wide open dispensary scene.

District Judge James Reynolds in Helena permanently enjoined the implementation of certain key provisions in the law. Those provisions have never actually taken effect because Reynolds blocked them with a temporary injunction back in 2011.

Reynolds blocked provisions that ban medical marijuana advertising, forbid the commercial sale of marijuana to authorized patients, restrict caregivers from growing for more than three patients, and require the state to report the names of doctors who recommended more than 25 patients for medical marijuana in a 12-month period to the state Board of Medical Examiners. That final provision would have triggered at automatic review of the doctor's practices---at his own expense.

It wasn't a total wipe-out for the legislature. Reynolds let stand a provision that allows police and the Department of Public Health and Human Services to inspect medical marijuana providers unannounced during regular business hours, and he also left intact a provision barring prisoners, parolees, and probationers from being able to obtain medical marijuana cards.

The Montana medical marijuana scene exploded in 2009, after it appeared the Obama administration would not interfere in medical marijuana states, resulting in a case of severe backlash after some players pushed the envelope with open public pot smoking and loosely-regulated "cannabis caravans" crisscrossing the state and offering recommendations over the Internet.

In 2011, the legislature moved to rein in the state's Wild West medical marijuana industry. It first voted to repeal the medical marijuana law entirely, but that was vetoed by then Gov. Brian Schweitzer (D). The legislature then passed the bill tightly restricting medical marijuana; that bill became law without Schweitzer's signature.

The Montana Cannabis Industry Association and some individuals sued to block the law. Now, they have succeeded in striking down key provisions---unless and until the state appeals and wins on appeal.

This is the second time Judge Reynolds has thrown out key provisions of the law. The first time, the state Supreme Court sent the case back to him, saying he should rule on it under "a rational basis" instead of the "strict scrutiny" he had applied earlier. Now he has.

"It is not the goal of this court to interfere with the Legislature's slow and careful opening of the door to the use of medical marijuana," Reynolds wrote. "It is the goal of this court, however, to ensure that everybody who could benefit from medical marijuana, and especially those with the most serious medically debilitating conditions, are able to travel through that door equally."

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