Montana Legal Question Blog

Matt Volz, Associated Press - June 23, 2011, 11:13 am

Judge may block parts of new Montana marijuana law

HELENA, Mont. (AP) -- A Helena judge said Wednesday that he is "struggling" with Montana's new medical marijuana law and indicated he may temporarily block at least parts of it before it takes effect on July 1.
District Judge James Reynolds specifically mentioned concerns with a provision that bars commercial marijuana operations by prohibiting providers from making a profit or being reimbursed for their expenses.
Reynolds said the state doesn't have a similar prohibition on pharmaceutical companies that profit from prescription drugs. But the new law would force marijuana providers to give their product away to people with debilitating illnesses, he said.
"The state is truly relying on guardian angels coming forward," Reynolds said.
Reynolds did not make a ruling as he closed a three-day hearing on a medical marijuana industry group's request for him to block the law. He said he will decide before July when whether to stop the whole law or just selective parts of it.
"I am wrestling with this," Reynolds said. "It seems like there are many parts of this that are not in dispute. But do I want to sit down with a red pen and mark those parts that are more troubling or are in dispute?"
The law was passed by the 2011 Legislature in an attempt to rein in what most lawmakers said has become an out-of-control industry. Montana has more than 30,000 registered medical marijuana users out of a total population of just below 1 million -- one of the highest adult user rates out of the 15 states that allow medical pot use.
Medical marijuana providers and advocates say the new law will deny the drug to the most seriously ill, will allow warrantless searches of providers' and users' homes and will subject doctors to an extreme level of scrutiny.
The Montana Cannabis Industry Association is suing the state, with attorney James Goetz saying the law violates the patients' constitutional right to pursue good health. The group is asking Reynolds for a temporary injunction until the case can be heard. The group is also pursuing a voter referendum to block the law from taking effect.
Assistant Attorney General Jim Molloy said the right to health care does not give patients access to an unbridled, unregulated scope of options, and said marijuana is still an illegal drug under federal law. Using that constitutional argument to block the law would be groundbreaking, Molloy said.
"He really would be doing something no other court has done in terms of medical marijuana," he said.
Molloy said the state would not object if three parts of the law were temporarily blocked: a prohibition on marijuana providers advertising their services, the ability for law enforcement to hold unannounced inspections and a provision that would require a doctor to be investigated if he certifies more than 25 medical marijuana patients in a year.
Molloy told Reynolds those three provisions could be blocked without doing harm to the rest of the law, but that the rest should remain intact.
"The state is not after bona fide users of medical marijuana. There is no evil Big Brother mechanism that is going to run wild," he said.
Goetz argued that the entire law should be blocked, not just parts of it.
"You can't take a statute that is a real mess, which this is, and just kind of do a Band-Aid approach to it," Goetz said.
But blocking the entire law may cause unintended consequences, Molloy said. Parts of the new law have already taken effect, and blocking that now may result in removing the state health department's ability to issue medical marijuana cards, he said.
Goetz said the law would revert to the medical marijuana initiative approved by voters in 2004 if the new law is blocked.

Jessica Headley, NBC Montana - June 21, 2011, 3:54 pm

Whitefish Passes Cell Phone Driving Laws

One Montana City is following a national trend of making you put your cell phone down while driving. Jan Metzmaker who handles Whitefish’s Visitors and Tourism Bureau knows all about it. She spoke at the Whitefish Monday night city council meeting in favor of no handheld mobile devices while driving. It was the second period available for the public to discuss it.
Yet, Metzmaker does have a few concerns how the new law will affect tourism. She wants to make sure tourist aren't getting stopped without knowing about it. So, the City of Whitefish has promised to put signs up at the town entrances and elsewhere to notify its residents and tourists.
"I'm hoping that we'll have a grant pass for visitors for first time offenses or just something...a curtesy ticket. So, [that way it would be] an educational issue while not having them go home with a bad experience,” explains Metzmaker.
The decision passed 6-0 at the city council meeting. Whitefish is the first city to do this in Flathead County, but not the first in Montana. Billings, Missoula, and Butte have all already implemented policies. Not all prevent driving and talking. Some just moderate ‘distracted driving’ or texting while driving.
“People might see this as a personal freedom issue, but really when your personal freedoms intrude on mine by getting in an accident, that's where you draw the line,” comments Whitefish City Manager Chuck Stearns.
The decision will go into effect in 90 days. Meanwhile, Metzmaker says she'll be busy getting the word out.

Matt Gouras, Associated Press - April 25, 2011, 12:00 pm

Montana judge rejects gay couple rights lawsuit

HELENA, Mont. (AP) — A Montana judge last week rejected a lawsuit that sought to extend to gay couples the same legal protections as married couples, saying in his decision that he can’t grant the benefits partly because of the state’s voter-approved constitutional definition of marriage as between a man and a woman.
Last year, the American Civil Liberties Union filed the lawsuit on behalf of the gay couples, arguing that the guarantees in the Montana Constitution of equal protection, privacy and dignity should require the state to afford the legal rights to the gay couples. The ACLU said it plans to appeal the case to the Montana Supreme Court.
The gay couples weren’t asking for the right in the lawsuit to marry, which the Montana Constitution defines as between a man and a woman. Rather they wanted to be able to make burial, health care and other decisions, while enjoying such benefits as jointly filing taxes.
The attorney general’s office has countered in court that Montana can’t extend spousal benefits to gay couples because those benefits are limited to married couples by definition since Montana voters in 2004 approved the marriage amendment.
The state argued in court that the Legislature is free to create a new, separate class for couples regardless of sexual orientation. It argued such a policy choice should be made by the state, and not the courts.
District Judge Jeffrey Sherlock noted in a decision dated Tuesday that the state government grants its gay employees the same employment-related benefits for their same-sex partners. And he pointed out that the Montana Supreme Court has previously decided that that the state university system’s past policy of barring such benefits to gay employees violated the equal protection provisions of the Montana Constitution.
But the new case sought to go farther.
Sherlock pointed to similar cases in Vermont and New Jersey that successfully ordered the states to allow the common benefits and protections of marriage to gay couples, even if they are not allowed to get legally married. But Sherlock said neither state had a constitutional marriage provision like Montana.
The judge said, despite sympathy for the plaintiffs, that it would be an inappropriate breach of separation of powers for him to order the Legislature to enact “a domestic partnership or civil union arrangement” as sought by the gay couples. He said forcing the lawmakers to draw up new laws goes much farther than asking him to declare one of their statutes unconstitutional.
“This court finds plaintiffs’ proposal, although appealing, to be unprecedented and uncharted in Montana law,” Sherlock wrote.
Sherlock said the marriage amendment alone wouldn’t prevent the court from extending the relief, but he argued it does play into his decision that the “requested relief constitutes an impermissible sojourn into the powers of the legislative branch.”
Sherlock said the information provided voters deciding the state’s amendment defining marriage as between a man and woman were told by both sides that it went beyond just a legal designation.
“Indeed, the proponents and opponents seem to both acknowledge that the marriage amendment would have something to do with benefits and obligations that relate to the status of being married,” Sherlock said. “Thus, it appears that both the proponents and opponents of CI-96 felt that that constitutional provision bore on some of the very issues now presented to this court.”
The ACLU argues that the marriage amendment does not preclude other rights.
“We are obviously very disappointed in the judge’s decision,” said ACLU of Montana legal director Betsy Griffing. “We are evaluating all of our options. We recognize that this is a long road. We certainly don’t consider our advocacy on this point to be over.”