Montana High court upholds medical marijuana law

October 30, 2008




By JOHN S. ADAMS Tribune Capitol Bureau


HELENA — Montana courts cannot bar medical marijuana patients from using the drug as a condition of their probation or parole, the state Supreme Court ruled Wednesday.

The decision overturned a lower court's ruling that prohibited a Conrad man from using marijuana while serving a three-year deferred sentence.

"This is a very big and important victory, both for patients and Montana voters," said Tom Daubert, founder and director of Patients and Families United, a support group for patients who use medical marijuana.

Montana voters overwhelmingly passed a ballot initiative in 2004 legalizing the use of medical marijuana in the state.

In Tuesday's 6-1 decision, the Supreme Court found that District Judge Laurie McKinnon overstepped her authority when she barred Timothy Nelson of Conrad from using medical marijuana as a condition of his sentence.

Nelson pleaded no contest to a charge of criminal possession or manufacture of dangerous drugs in 2007, after Pondera County authorities found evidence of a marijuana growing operation in his home.

After being charged, Nelson registered with the state medical marijuana program. He suffers from a degenerative disc disorder and has had four surgeries on his back, according to court records.

At a Feb. 26, 2007, sentencing hearing, Pondera County Attorney Mary Ann Ries told the judge that officials at the Department of Corrections would not allow Nelson to smoke marijuana while under their supervision, but would allow him to use the pill form of marijuana.

McKinnon gave Nelson a three-year deferred sentence subject to 20 conditions. Nelson appealed two of those conditions on the basis that they illegally prevented him from using medical marijuana.

Those two conditions were that Nelson comply with all city, county, state and federal laws and that he not possess or use illegal drugs, or any drugs, unless prescribed by a licensed physician. Since physicians cannot legally prescribe marijuana because of federal licensing restrictions, that condition barred Nelson from using medical marijuana. That same sentencing condition also stated that Nelson may not possess marijuana, except in pill form, and only then by prescription from a licensed physician.

Nelson's attorneys, Justin Lee of Choteau, and Colin Stephens of Missoula, argued that the pill form of marijuana, Marinol, is cost-prohibitive for their client, which contradicts the intent of the Medical Marijuana Act of 2004.

In his appeal, Nelson said McKinnon's sentencing conditions were illegal because it restricted him to using Marinol, and that the court exceeded its authority in requiring him to obey all federal laws.

The Supreme Court agreed.

"The District Court unlawfully denied Nelson the right and privilege to use a lawful medical treatment for relief from a debilitating condition under the Montana Medical Marijuana Act," Justice Patricia Cotter wrote in the majority opinion.

The court also found that "when a qualifying patient uses medical marijuana in accordance with the (Medical Marijuana Act), he is receiving lawful medical treatment. In this context, medical marijuana is most properly viewed as a prescription drug."

The court also disagreed with the state's argument that the prescription pill limitation was reasonable and lawful.

"The District Court ignored the clear intent of the voters of Montana, that a qualifying patient with a valid registry identification card be lawfully entitled to grow and consume marijuana in legal amounts," Cotter wrote.

Daubert said that determination was fundamental to the recognition of the medical marijuana law.

"Montana voters clearly decided that Marinol is not the equivalent of medical marijuana," Daubert said. "The court recognizes in its decision that the so-called pill form of marijuana is not marijuana. It's really a common-sense interpretation of our law."

Justice Jim Rice was the sole dissenter in the court's decision. In his written opinion, Rice noted that Nelson obtained his medical marijuana registration only after he was arrested on drug charges.

"This conclusion only makes sense: A defendant must be sentenced for the crime he has committed, under the law as it existed, when he committed it," Rice wrote.

Betsy Griffing, legal director of the American Civil Liberties Union of Montana, disagreed, calling the court's ruling a good decision.

"It very simply upholds the language of the Medical Marijuana Act," Griffing said. "It says that there are a few exceptions to the Medical Marijuana Act, and that this situation doesn't meet those exceptions. The Supreme Court says to the District Court, 'hey, this is a state law, and this is what it requires, and you have to look at it when you sentence people. You can't punish or restrict anybody for using medical marijuana."

Griffing said the court's ruling may have far-reaching effects for how the courts and correction officials handle probationers and parolees in the future. She said that, as a matter of tradition, the courts have imposed rules requiring offenders to follow all federal laws.

In its decision, the high court pointed out that the federal government does not have the authority to compel state agencies to enact and enforce federal regulatory programs.

"The Supreme Court says (the Medical Marijuana Act) is a state law that defines how state courts — and I think, by clear implication, the Department of Corrections — has to treat probationers," Griffing said. "State courts are not responsible for enforcing federal laws. The principle of federalism says that state courts address state law, and state law says medical marijuana is legal."

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