Mt: Helena judge halts ban on medical marijuana ads; lawsuit seeks to overturn new la

MT: HELENA JUDGE HALTS BAN ON MEDICAL MARIJUANA ADS; LAWSUIT SEEKS TO OVERTURN NEW LAW
mapinc / 5/14/2011 / by Charles S. Johnson, Missoulian State Bureau, Source:Missoulian

HELENA - A state district judge in Helena on Friday temporarily ordered the state to not enforce a recently passed ban on all advertising of medical marijuana products, in response to a lawsuit attempting to strike down the entire new law that places strict restrictions on Montanans' medical marijuana use.

District Judge James Reynolds scheduled a hearing on the initial request for May 27.

The Montana Cannabis Industry Association and eight individual plaintiffs want the courts to overturn Senate Bill 423, which the 2011 Legislature passed last month and which Gov. Brian Schweitzer let become law Friday without his signature.

In the motion, the plaintiffs' lawyers said the new law's advertising ban is an "unjustified prohibition on constitutionally protected political and commercial speech, which has already had a chilling effect on some registered cardholders."

The association is being represented by Bozeman attorneys James Goetz, J. Devlan Geddes and Jim Barr Coleman.

The Cannabis Industry Association raised $50,000 in five days to hire Goetz, one of Montana's top constitutional lawyers.

The new state law repeals Montana's 2004 voter-passed medical marijuana law and imposes restrictions aimed at making it much harder for people to qualify to legally use the drug - and limits its availability by banning large growing operations. Instead, it sets up a system where a provider can grow medical pot for up to three people, but at no charge.

In a separate motion seeking an injunction to strike down the law, the attorneys asked the court to declare that SB423 violates the plaintiffs' constitutional rights to equal protection, privacy, dignity, freedom of speech and due process. It also mentioned their right to pursue life's basic necessities, including personal health and their right against unreasonable searches and seizures.

In a separate legal brief seeking an injunction against the law, the plaintiffs note that from the initiative's passage in 2004 until 2011, several legislative sessions barely touched the Medical Marijuana Act.

"However, in a feeding frenzy that can appropriately be dubbed its moment of 'reefer madness,' the Montana Legislature spent considerable time in repeated attempts to undo the enactment of the people," the brief said.

The 2011 Legislature first passed House Bill 161, which sought to repeal the medical marijuana law in its entirety. Schweitzer vetoed that bill.

Then lawmakers passed SB423, which the attorneys called "a thinly veiled attempt to accomplish what the vetoed HB161 could not - the outright repeal of the MMA ( Medical Marijuana Act )."

It does so by seeking to "choke off access to medical marijuana for those in need by eliminating caregiver producers," by limiting to three the number of patients a provider can serve and by prohibiting any payment to the producer, the brief said.

It said that law then takes "a ham-fisted swipe at the ability of medical doctors to certify patients in medical need by creating oppressive features" intended to dissuade physicians from recommending the use of medical marijuana,

"Worse yet, the users who by definition suffer from a 'debilitating medical condition' are virtually branded as second-class citizens, ranging from serious intrusions into the doctor-physician relationship, to warrantless and unannounced searches," the brief said.

A critical problem with the 2011 changes is that they effectively eliminate producers, the brief said, leaving medical cannabis to "somehow spring up by immaculate conception and be timely available to those patients in need," the plaintiffs' brief said.

It cited plaintiff Charlie Hamp, 79, whose wife, Shirley "Butch" Hamp, suffered from cancer of the esophagus and had an esophagectomy, a serious surgery, that resulted in her weight dropping from 105 pounds to 88 pounds. Doctors suggested she try medical marijuana, and she laces her coffee with a marijuana tincture every morning.

"Under the amendments, her caregiver will be out of business," the brief said. "Of necessity, under the law, her 'provider' will now become her husband. ... He is reluctant, but there is no alternative. But Charlie has not a clue about how to obtain seedlings, beginning the grow process, cultivating the plants, how long this will take or ultimately how to manufacture the necessary tincture for his debilitated wife."

The brief added, "At their age and in their condition, the last thing they need is for a 'Big Brother' government to come into their lives and dictate what they can and cannot do about their personal health and well being," the brief said.

Attorney General Steve Bullock's office will be defending the state law.

"For well over a year, Attorney General Bullock and staff at the Department of Justice worked closely with law enforcement, community leaders and legislators to identify areas of concern and propose common-sense regulatory solutions to ensure our communities stay safe and patients in legitimate need can access medication," said Bullock's spokesman, Kevin O'Brien. "While not every provision that ended up being included in this legislation was advocated for by the attorney general, we will actively and aggressively defend this law against any challenge - as is our constitutional responsibility."