Pot industry group asks Montana judge to block law

Posted June 20, 2011, at 4:06 p.m.

HELENA, Mont. — A new Montana law eliminating medical marijuana sales and implementing strict checks to verify a patient’s condition is unconstitutional and must be blocked before it takes effect next month, an attorney for an industry group suing the state argued Monday.

The law passed by state lawmakers earlier this year will effectively put commercial growers in Montana out of business by barring pot providers from making a profit and limiting them to a maximum of three patients.

It also places additional checks on conditions for qualifying for the drug and on the doctors who certify medical marijuana patients.

Montana Cannabis Industry Association attorney James Goetz asked Helena District Judge James Reynolds to approve a preliminary injunction that would keep the law from taking effect on July 1.

Problems with the law range from denying patients access to medical marijuana to intruding upon the doctor-patient relationship and allowing warrantless searches of patients and providers, Goetz told the judge.

“Marijuana, while not completely harmless, is remarkably safe. It has proven medicinal qualities. If a Montana citizen, in consultation with his or her doctor, wishes to have access to medical marijuana, that person should have access without undue governmental restraint,” Goetz said.

Assistant Attorney General Jim Molloy defended the new law, saying it is in line with what voters intended when they passed the state’s medical marijuana initiative in 2004. Seriously ill patients will still be able to grow the drug or have somebody grow it for them, he said.

“This is a lawsuit, your honor, about preserving the commercial marijuana industry that sprung up in Montana beginning in about 2008,” he said.

The hearing is expected to last through Tuesday, and it was not clear whether Reynolds will immediately make a ruling. The judge said he wants to know what would happen to medical marijuana regulations in Montana if the new law is blocked.

The Legislature passed its restrictive law in an attempt to rein in a booming medical marijuana industry that lawmakers say has been abused by recreational users and for-profit commercial entities. The bill’s passage this spring coincided with a series of raids against medical marijuana distributors in which drugs, cash and weapons were seized, causing several providers to shut down.

There are more than 30,000 medical marijuana users in Montana, with the start of the boom coinciding with a 2009 U.S. Department of Justice memo saying the federal government would not prosecute seriously ill patients who are following their states’ medical marijuana laws.

The number of people between 18 and 30 claiming chronic pain as the qualifying condition to become a medical marijuana patient — about 30 percent of the total number of users in Montana — indicates the users are not simply those with debilitating illnesses, Molloy said.

Medical marijuana users as a percentage of total adult population in Montana compared to other states is another indicator that something is amiss, Molloy said. Just over 4 percent of Montana adults are registered users, compared to .76 percent in Hawaii, 1 percent in Michigan and 1.34 percent in Oregon, he said.

“The situation is out of control, the Montana Legislature responded to it,” Molloy said.

Goetz said the law represents excessive governmental interference and that any law restricting rights must be scrutinized.

To support his case, he called a Bozeman oncologist and a Harvard professor as witnesses about marijuana’s medicinal effects.

The oncologist, Dr. Jack Hensold, said he recommends medical marijuana to about three or four cancer patients a month to help them deal with nausea and other effects of cancer treatments.

He said he is concerned about the restrictions the law would impose and whether certain patients would be able to access the drug in the short term.

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