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Judge rules federal law trumps Montana's medical marijuana act
HELENA — A judge has ruled that Montana's medical marijuana law doesn't
shield providers of
the drug from federal prosecution, delivering a new blow to
an industry reeling from a state and
federal crackdown.
Return To OnlinePot's
Legal Section Main Page
10:00 PM, Jan. 23, 2012
Written by MATT VOLZ
HELENA — A judge has ruled that Montana's medical marijuana law doesn't shield
providers of the drug from federal prosecution, delivering a new blow to an
industry reeling from a state and federal crackdown.
U.S. District Judge Donald Molloy on Friday dismissed a civil lawsuit filed by
14 individuals and businesses that were among more than two dozen medical
marijuana providers raided by federal agents last year across Montana.
The providers claimed the raids violated their constitutional rights in part
because state law passed by voter initiative in 2004 allows them to grow and
produce the drug for medical consumption.
Molloy wrote in his order that the providers can be prosecuted under the federal
Controlled Substances Act even if they are following state law. He cited a 2005
U.S. Supreme Court decision that said the U.S. Constitution's supremacy clause
applies in medical marijuana cases.
The supremacy clause says that federal law prevails if there is any conflict
between state and federal statutes.
"Whether the plaintiffs' conduct was legal under Montana law is of little
significance here, since the alleged conduct clearly violates federal law,"
Molloy wrote. "We are all bound by federal law, like it or not."
The medical marijuana providers also argued that the Justice Department had said
it would not prosecute them, citing
a 2009 agency memo called the Ogden Memo (Click To Read DOJ's Ogden Memo
PDF) after its author, Deputy Attorney
General David Ogden.
In that memo, Ogden wrote that federal prosecutors would not pursue
"individuals whose actions are in clear and unambiguous compliance with
existing state laws providing for the medical use of marijuana."
Molloy wrote that Ogden's memo was not a free pass to produce and consume
marijuana, and the memo itself says complying with state law does not create a
legal defense to violations of the Controlled Substances Act.
"A reasonable person, having read the entirety of the Ogden Memo, could not
conclude that the federal government was somehow authorizing the production and
consumption of marijuana for medicinal purposes," he wrote.
Carl Jensen, the Great Falls attorney representing the medical marijuana
providers, said Molloy's ruling should serve as a warning to other providers
still operating in the state.
"The supremacy clause has been used by the federal government to hammer
anything they want to," Jensen said. "Absolutely, they should be
concerned. If the federal government ever decides it wants to go after them, it
can."
Jensen said a decision has not been made on whether to appeal.
U.S. Attorney spokeswoman Jessica Fehr said federal prosecutors had no comment
on the ruling.
The federal raids in March 2010 placed a chill over Montana's booming medical
marijuana industry, causing several providers to close down because their
inventories had been seized or out from fear that their businesses would be
next. Several raided providers have pleaded guilty to federal drug charges.
Lawmakers struggled last year to come up with a solution for what many people
perceived to be an industry that at that time was growing too quickly and with
too few rules. The final bill repealed the original voter-approved law in favor
of one that aimed to dramatically curtail the for-profit medical marijuana
industry.
That legislative action is currently under legal review, and will also appear on
the November ballot for voters to endorse or reject.
Portions of the new law have been temporarily blocked by a state judge, but the
result has been a dramatic decline in the number of medical marijuana patients
and providers. There were 18,012 registered marijuana users at the end of
December, compared to 31,522 at the end of May, according to the state
Department of Public Health and Human Services.
There were 395 registered marijuana providers at the end of December, compared
to 4,650 at the end of May.
A group of lawmakers meeting Monday in Helena received
an update on the ongoing developments. Many believe it will again require some
sort of legislative action when lawmakers convene in 2013.
Sen. Art Wittich, R-Bozeman, said the federal crackdown could mean the state has
to revisit how it allows distribution of the drug under its medical marijuana
law.
"Is there any value in looking at this question of how you get this medical
marijuana to the patient who is legitimately sick?" Wittich said. "How
do we ensure the product is available for people who are sick?"
Associated Press writer Matt Gouras contributed to this report.
http://www.greatfallstribune.com/article/20120124/NEWS01/201240304
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