Montana Supreme Court mulls medical pot sales case

HELENA — Montana Supreme Court justices on Wednesday questioned whether people have a constitutional right to sell medical marijuana even though the drug is illegal under federal law.

State attorneys asked the justices to rule that a district judge made a mistake last year when he blocked part of a new medical marijuana law that bans the commercial sales of pot in Montana.

James Goetz, the attorney for the Montana Cannabis Industry Association and the other plaintiffs challenging the new law, said the court should not reverse Judge James Reynolds' ruling, but instead take it further and block the entire law until their lawsuit is decided.

The justices did not make an immediate decision, but questioned both sides intently during Wednesday's arguments. Chief Justice Mike McGrath boiled it down by saying the issue is not whether marijuana has medicinal value, but whether there is a right to sell a drug that federal law labels a Schedule I narcotic.

"The argument here is that somebody else has the right — the fundamental, constitutional right — to sell a product that is otherwise illegal," McGrath said.

There is no such right, answered Assistant Attorney General Jim Molloy. The right to pursue a livelihood does not mean you can do so free of government regulation, he said.

Yes, there is such a right, answered Goetz. The Legislature determined that marijuana is a medicine and that determination triggers the people's constitutional right to access that medicine, he said.

But the state law is meant to keep people from obtaining marijuana by making it impossible for their providers to operate, he said.

"This is calculated to deny access, I think that's clear," Goetz said.

The 2011 law restricts who can sell marijuana and who can register as a patient. It was passed by the state Legislature as a way to rein in what supporters said was a medical marijuana industry that had run amok under the voter initiative passed in 2004, with retail storefronts, thousands of providers and tens of thousands of patients.

A key component of the law was to make it illegal for marijuana providers to be compensated for their services and to limit them to three patients each. Supporters said that provision was necessary to end the business of marijuana and to ensure the drug was used as voters intended — to treat the neediest patients.

Reynolds ordered an injunction that prevented the sales ban from taking effect, saying it would harm people's right to seek health care. Reynolds said in his ruling that the sales ban would limit the number of willing providers and therefore deny patients access to marijuana.

Also, the state has not banned any other industry it has determined to be legitimate from receiving compensation for their goods and services, Reynolds ruled.

Reynolds ordered other provisions of the law blocked, including a ban on advertising, allowing warrantless searches of medical marijuana premises and investigating doctors who recommend pot to more than 25 patients a year. The state appealed only the injunction against the sales ban.

Molloy argued that Reynolds used the wrong standard of review in determining that fundamental rights were involved in the marijuana sales ban. Molloy asked the justices to send the case back to Reynolds with instructions to apply a lower standard in reviewing whether the ban should take effect.

Goetz said the justices should rule against the sales ban. Other problems with the law will still need to be decided, but the justices' ruling against the ban "would be a fundamental strike at the heart of the statute," Goetz said after the hearing.

Without commercial providers, patients would have to grow their own marijuana or have a relative or friend grow it for them. Growing their own marijuana would be difficult for most patients and their relatives, Goetz said.

Further complicating the "grow-your-own" idea is that the state law makes it illegal to obtain seeds or cuttings to start marijuana plants, so both providers and patients must make illegal purchases to obtain the drug in the first place, he said.

Molloy said "access is not a problem" and that providers already have the product. The author of the new law, state Sen. Jeff Essmann, said after the court hearing that the state's original medical marijuana law also did not address the question of where the drug would come from — but it still proliferated.

Justice James Rice questioned whether a ruling to strike down the sales ban would affect how other drugs are regulated, such as drug registries. Justice Brian Morris asked if marijuana were legalized and regulated like alcohol, would access to alcohol become a constitutional issue.

"This is a medicine," Goetz said of marijuana. "Only in Butte do they consider alcohol a medicine."

Goetz and Molloy both tried to allay Justice James Nelson's doubts that Montana has the authority to legalize what federal law criminalizes.

Montana did not legalize marijuana but created an affirmative defense to state prosecution for people who follow the state law, Molloy said. Likewise, federal law cannot force the state to declare something illegal, both attorneys said.