Did the Legislature Botch Their Medical Marijuana Repeal Law?

by jhwygirl

‘Cause I’d find that real funny. Especially given that they titled the thing “An Act Establishing the Montana Marijuana Act” when it established nothing and instead destroyed the 2004 citizen’s initiative that brought medical marijuana to Montana.

Medical marijuana advocates have sued the state, challenging the new law as unconstitutional and without merit to state’s legitimate interests. The judge has said that he is having a problem with several provisions in the bill, and has suggested that may grant the full injunction rather than pick and strike problematic aspects.

This is just emblematic of the ineptitude that results when ideology takes over common sense and the real purpose of legislating, which is service to the public good.

We here at 4&20 have written about SB423 and medical marijuana (just use that nifty search there on the right), but Montanafesto really has taken the lead in the Montana blogosphere regarding medical marijuana – you can certainly read our in-the-moment calls on the lunacy as it happened, but I digress….

If our Attorney General and Governor were to have some service to the public in mind – keeping in mind that the public, in this case, includes people who are dying and could benefit immensely from medical marijuana – perhaps they would start directing the Department of Public Health and Human Services to get to work drafting some rules and policies for the law that was in place prior to this legislative masturbation ideological boondoggle.

Our legislature had THREE chances at writing laws to reign in what they really hated, which was the commercialization and industrialization of medical marijuana and its associated dispensaries. They ignored the pleadings of law enforcement and city and county governments, all the while the state government having the ability to introduce rules and policies directed at implement the intent of the original law.

Now’s the time to get at it. Medical marijuana advocates should be advocating for it, just like vote-seekers like Bullock and Bozeman’s Larry Jent.

I will not let this opportunity pass without mentioning that all this lawsuit stuff over an unconstitutional law is costing the taxpayers dearly – and if, indeed, this law is struck down as unconstitutional, the taxpayers will indeed pick up a huge tab in legal bills for the medical marijuana advocates.

And if this medical marijuana bill is having this kind of difficulty you can bet your next paycheck that there are a bevvy of other bills out there that became law that will meet the same future.

It’s starting look like the only jobs created out of the 2011 legislative session were those for attorneys, court reporters and paralegals.

(Addendum: Here’s an example of the repeal talk we’ve gotten from Attorney General Steve Bullock:

(Regarding the judge potentially incinerating the entirety of the 2011 legislature’s medical marijuana repeal law): If that occurs, “the commercial marijuana industry and all the problems associated with it would continue to exist in this state,” according to the legal document from Attorney General Steve Bullock, chief of consumer protection Jim Molloy and Assistant Attorneys General Mark Mattioli and Stuart Segrest.

This is simply not true. With all the supplier-end problems – capitalism gone wild, if you will – that have occurred in the last 3 years, no state agency (or even the Attorney General’s office) has stepped forward to write administrative rules to address the issue in a manner consistent and within the parameters of the original citizen’s initiative.

Repeal of this last legislative session’s bill leaves us with the citizen’s initiative law. There’s still plenty of ways to address the problems that have surfaced in recent years – none of which were the cause of cancer patients, and all of which were the result of the supply end of the situation.

Montana’s government failed its citizens. Time to fix that and do the right thing Steve Bullock.

  1. believe i saw a tweet today from bryce bennett about supporting a law in the next legislature which would make it harder for the legislature to subvert the will of the people by repealing citizens initiatives. there was no link but kudos for bryce. i hope to hear more about this.

    this complete waste of time and energy could have been avoided if we had such a law. it would have forced the legislature to work together on something more constructive than the idiot bill now before us and receiving pretty harsh scrutiny by a judge.

    • Actually, the idiot bill we have before us would not have been effected by the law being proposed (as I understand it anyway). Now the actual repeal bill that was defeated before this bill was made law would have been effected.

      Also understand that the bill under suit right now will not be given an injunction because “the bill is unconstitutional”. The idiots that proposed this bill were at least smart enough to add a clause into it that allows the bill to be enforced even if some of the bill is found to be unconstitutional. Sadly for them, there is another vehicle that can cause a bill – in it’s entirety – to be declared dead. If key functions of a regulatory bill are found to be unconstitutional or unenforcable, and the bill – without those functions – is likewise unconstitutional or unenforcable, the judge can declare the entire bill deficient. This is quite possibly the case here. The judge is so bothered by certain key functions of the bill, he may not wait to make a complete judgement – he is talking about granting an injunction. What that will effectively mean is that the original voter approved citizen initiative would be back in place – without any regulations established by the state. This is the situation that caused the raids in the first place and it is quite likely that those raids will happen again. While this would be a “victory” for the medical marijuana community, it is – by no means – a solution to the ongoing problem.

      I find it inutterably sad that our state legislatures (since the citizen initiative was passed in 2004) failed to do their job of passing realistic, enforcable and sane regulations on the production, distribution and sale of medical marijuana. Unfortunately, it is the patients and the businesses that supply those patients that will bear the brunt of that failure.

      • Moorecat – the judge can strike the whole thing and that is what he is saying it may do. So even that provision that segregates it would go.

        I don’t know if you read my post in its entirety – but what it says is that the state should write rules and polices based on the law that was in place prior to this boondoggle – that is the citizen’s initiative. They are well within their lawfully given rights to write rules aimed and the intent of the law which would include tightening down of the largely unregulated supply side issues which brought this thing to where it is now.

        To suggest that there is no way to regulate the citizen’s initiative is defeatism and part of the same ideology that got it to this point in the first place.

        • Jhwygirl,

          yes, I read your entire post. Unfortunately, you didn;t read my reply very well. I agreed with you that the judge could strike the entire law – it just can’t be done “because the law is unconstitutional”. This was a legal analysis and I should probably refrain from them since the law is pretty twisted the way it is practiced today. I have been following the suit pretty carefully and I think I have a pretty good handle on most of the basics involved. It remains to be seen if the judge actually issues an injunction. The law is set to go into effect July 1 and the police are already trying to collect marijuana, and associated effects before the law goes into effect.

          Further, the law that was passed was – on the surface – an attempt by the legislature to write regulations to the citizen’s initiative. Sadly, it was a very poor attempt with the actual goal being a full repeal without actually repealing it. One can only hope that the next legislature (assuming the current law is struck down) does a better job. It should be noted that a rational regulation bill WAS introduced during the last session and it never made it out of committee. At that time, the legislature was focusing on repealing the initiative.

          Nor did I say that “there is no way to regulate a citizen’s initiative”. I have no idea where you got that. What I did say, though, is that if this law is struck down, the old situation is back – a citizen’s initiative allowing for the use of medical marijuana without any rational or legal regulations in place to monitor that use or the production of marijuana. This is the situation that existed on the passage of the citizen’s initiative that led to the abuse of the system and the subsequent raids. Until such time as the Montana Legislature meets again, there won’t be any regulations or monitoring of the system. There can’t be because it takes action by the legislature to enact them. This isn’t “defeatism”, it is reality.

          • The legislature doesn’t write regulations…they write law. The government – the department, like DPHHS, which is charged with the law that was passed by the intiative – writes policies and rules and regulations.

            That’s never been done in sincerity. That’s what needs done.

            The legislature isn’t the end-all-be-all for bodies of law. In fact, the micromanaging that they did – and what they did with SB423 – is precisely what got them into trouble. It’s real easy to strike at specific provisions (like, for example, saying that providers can’t profit, which is really in direct conflict with certain rights to personal liberty, but I digress..) rather than address true state’s interests like classifying dispensaries as something similar to bars or pharmacies or something to avoid all of the sorts of issues that we all know brought this to where it is now.

            The law that passed was not an attempt to “write regulations to the citizen’s initiatives.” It specifically undermined key provisions of that citizen’s initiative. That’s not regulating – it’s writing a law that ignores the citizen’s initiative.

            Which is another constitutional issue of law at play here.

      • moorcat- had a hard time fighting my way through the maze of your first paragraph so i am not sure i totally agree with the first part but the last part of your comment and your conclusion i certainly do agree with.

    • Kirsten

      this complete waste of time and energy could have been avoided if we had such a law.

      Sadly, that is probably not sufficient.

      Arizona has a long history of the people repeatedly passing medical marijuana initiatives over the years just to have their efforts undermined by the legislature and the governor. They did pass such a law for specifically this reason. Being unable to repeal the latest medical marijuana by way of the legislature, the state of Arizona is now trying to regulate and sue medical marijuana out of existence there.

      On the regulation front, they instituted onerous fees to become a dispensary to the tune of several thousand dollars of which much was non-refundable if the application was denied. The state was not obligated to accept any application- may issue vs. shall issue- so this essentially put people at risk of handing over thousands of dollars to the state for nothing.

      Meanwhile, the state has stopped accepting dispensary applications while Governor Jan Brewer uses taxpayer money to go to court to have the federal government make a declaratory judgement that the latest incarnation of medical marijuana citizens initiative is illegal.

      Do not underestimate the will of the state to maintain its privilege and control.

  2. We’ve discussed this numerous times lately and if it wasn’t already going to be such a difficult and tedious process gathering signatures and keeping them organized, I did consider trying to pull off gathering signatures for another initiative to prevent repeal of citizens initiatives without a vote from the citizens. We are prepared that most of our signatures will be challenged, however; and we want to ensure that there is no confusion as to what people are signing. Maybe after we obtain enough signatures to overturn this law. :)

    The legislature had an opportunity to create something great. Unfortunately they were too concerned with their repeal agenda and weren’t willing to consider the people hurt most by their legislation- the ones who are already suffering. Seriously ill patients have no doubt cut their lives shorter after enduring the stress created by those we elected. Shame on them. So-called conservatives. They advocated for some sort of marijuana socialism big government nanny type program. Ugh.

    I did voter ID throughout last summer. We were in each of the Billings prohibitionist’s districts and NOT EVEN ONE person told us that eliminating medical marijuana was an issue important to them. I don’t believe ANY of the legislators who claim their constituents demanded this. I could go on and on for hours about this. sigh.

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  1. 1 Montana Blog Roundup 26 June 2011 | Intelligent Discontent

    […] results or even the legality of the law they passed to regulate medical marijuana, and jhwygirl makes that clear in this […]

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