Hard Times in Montana

By Mary Lou Smart

In many ways, the sad story of Montana’s medical marijuana program mirrors what’s happened in several states. Like vultures, opportunists from both   sides of the spectrum, either seeking profit or a choice government job, dismantle legislation that was a long time coming.

The tragedy in all of it is that the dis- advantaged that the programs were supposed to help lose out.

In an environment where health care costs are soaring, you’d think the priority would be on wellness and cost effective solutions. Instead, we have a media dependent on advertising that pushes pharmaceuticals, which are dispensed like jelly beans. The media that refuses to cover anything but the train wrecks of the cannabis world nur- tures myths. In the mainstream media, positive articles documenting the real science of cannabis are few and far between.

In 2004, with 61.8 percent in favor, Montana  voters clearly stated that they wanted a medical marijuana pro- gram. That program, the  Montana  Medical  Marijuana  Act (MMA), was written with a loose regulatory frame- work. Predictably, greed took hold. One enterprising individual was known to light up a bong whenever reporters drew near. Reveling in sensationalism, media covered his traveling pot doc sign-up forums designed to convert hundreds of people in minutes. His recommenda- tions via Skype, law suits by former employees,  and seized blank, signed physician-recommendation forms added to his notoriety while damaging the image of med- ical cannabis throughout the state.

In October 2009, when the federal government announced that it would respect states’ rights in reference to medical marijuana laws, the traveling pot doc circus act revved into high gear and contributed to an explosion of patients in Montana. The number of patients tracked by the Department of Health & Human Services, which had climbed from 287 in December 2006 to 1,577 in December 2008, was over 28,000 by January 2011.

During the same period, a crystal clear picture emerged of how low politicians will go to further their own agendas at the expense of the poor and sick. Given to pontificat-

ing ad nauseum about supporting small business, low taxes and economic growth while running  for  office, these legislators blatantly subverted the will of the people to tank an industry that was providing jobs and paying taxes.

Despite advocates working around the clock  to  tighten up the law and make it more palatable, legislators refused to make any concessions. When the legislators wouldn’t budge, they even wrote a bill.

“We introduced a bill that was presented by Senator Lewis, which essentially solved all of the issues and prob- lems with MMA that had been discussed,” said Jim Gingery, executive director of the Montana Medical Growers Association. “It could have worked very well and been a model for the country.”

The new legislation requires that providers agree to random inspections, supply fingerprints to a database that can be accessed by the federal gov- ernment, and not take any compensation whatsoever, not even to cover expenses. Do you think these legislators would work without compensa- tion? Business owners are also forbidden to advertise.

In 2011, the legislators tried unsuccessfully to repeal the law altogether with House Bill 161, which Governor Brian Schweitzer vetoed. Undeterred, they quickly rammed through a repressive measure, Senate Bill 423 (SB423), which ties the hands of anyone that might actu- ally want to work in the compassionate care business. Filled with unreasonable and odd restrictions, a look at SB423 makes one wonder if the lawmakers that drafted  it ever studied law, had a job other than government work, or attended a civics class in grade school. Clearly, they did not try to learn about the nature of cannabis medicine, delivery methods, or the dire straits that many people are in when they turn to cannabis.

The new legislation requires that providers agree to ran- dom inspections, supply fingerprints to a database that can be accessed by the federal government, and not take any compensation whatsoever, not even to cover expens- es. Do you think these legislators would work without compensation? Business owners are also forbidden to advertise.

Predictably, the vast majority in business went out of business.

“SB423 was designed by legislators who wanted a repeal but knew they couldn’t get it,” said Chris Lindsey, an attorney who often represents people in marijuana cases. “To use the words of its author, this bill was designed as close to repeal as they could get. Basically, if you need cannabis, a nice hippie is going to grow it for you, and  you will get it free of charge.”

Many of the owners of store fronts that went out of busi- ness, and their employees, suffered greatly. The same leg- islators who wanted repeal also seem to have wanted punishment. Raids took place around Montana follow-  ing passage of SB423. Coincidentally, some of the raids, which involved the U.S. Drug Enforcement Association, occurred within the hour. Owners, employees, and even the patients that they cared for, were handcuffed and forced to stand outside while businesses were ransacked. Many were arrested. Records confiscated were used to make even more arrests.

Without income, many lost their homes, and everything else they’d been working for since voters put MMA into law.

“The bill was designed to kill medical marijuana in the state, and it is only due to law suits that the medical mar-

ijuana program has managed to hang on,” said Lindsey. The Montana Cannabis Industry Association (MCIA) quickly raised $50,000 and hired lawyers, including one  of Montana’s top constitutional lawyers. The attorneys pushed to have a court throw out SB423 on the grounds that it violates constitutional rights to equal protection, privacy, dignity, freedom of speech and due process. District Court Judge James Reynolds ordered a prelimi- nary injunction preventing the adoption of several of SB423’s key elements that he saw as being unconstitu- tional. He did allow the law, minus the provisions he had problems with, to go into effect. The Attorney General, who is now running for governor, is appealing the judge’s decision. Republican Senator Jeff Essman, president  of  the Senate and chair of the sub-committee that dreamed up this prohibitionist medical marijuana bill, is also run- ning for governor. No surprise, but after sending an industry back into black-market territory,  and  causing the loss of jobs and tax revenue, Essman is running on a pro-business platform.

“Most of the lead people responsible for getting the med- ical marijuana program scaled back are now running for higher office based on what they did,” said Gingery. A former caregiver, Gingery is no longer in the cannabis business. “I’ve had patients referred to me by the Mayo Clinic asking for help. I tell them that I was forced out of business, and advise that they call Senator Essmann to find out where they might be able to find their medicine.” Many advocates want SB423 thrown out, so  that  they  can fix the original program, MMA. They tried to gather enough signatures on a petition to do just that, but with- out funding, were unsuccessful. “There was not a big door-to-door campaign,” said  Gingery.  “You  cannot mount a campaign using only people on crutches and canes that can barely walk.”

They were able to gather enough signatures to put an ini- tiative on the ballot that will ask voters what they think about SB423. To resurrect a viable compassionate care program, a substantial turnout of cannabis advocates will be crucial.

The manner in which the anti-medical marijuana pro- gram was forced on Montana borders on corruption, according to some. “The issue is how do we get the word out so that the public understands exactly what did hap- pen, the collusion that did occur between the state and the federal government, particularly when the expressed purpose of the legislators involved in that collusion was to circumvent a Montana state law,” said Gingery. “There’s been a great deal of discussion about ethics violations against a number of the proponents of Senate Bill 423 because of the way that they went about the entire process.”

Filled with unreasonable and odd restrictions, a look at SB423 makes one wonder if the lawmakers that drafted it ever studied law, had a job other than government work, or attended a civics class in grade school.

Government might have been able to thwart the will of the people with SB423, but the harmless nature of the age-old plant is now understood by so many more. While MMA was in existence, acceptance of medical marijuana soared; registered patients climbed from a few hundred to almost 30,000.

When myths die, it is tough to justify a prohibition. Across America, many are learning about medical marijuana.

Despite considerable effort to wipe out the industry, the cat is out of the bag. Every day, many more come to understand that cannabis can bring incredible medical benefit.

In Montana, however, many have no idea of how vulnerable they are with SB423. For example,  whoever  penned  this  prohibi- tionist manifesto did not like edibles, tinc- tures, salves or any of the other products referred to as derivatives.

“In today’s environment, this is a tough area to operate in,” said Lindsey. “I don’t think that there’s mention of edibles as something that patients can do, and SB423 requires that providers get a special license to be edible manufacturers. If confiscated, one cookie with a gram of marijuana would be recorded using that cookie’s gross weight.”

Many making medicines such  as  infused  honey are walking on  thin  ice,  according  to  Lindsey. “We had a loosey-goosey law with a lot of holes,
and a lot of protections, that has gone  away,” he said.

The affirmative defense provision was wiped out with the new law, which makes it easier for anyone to be prosecuted. An affirmative defense justifies an action, negating a charge. Self-defense is an affirmative defense.

“Where the affirmative defense would keep prosecutors away before, with it out of the picture they are more than willing to assert themselves under these circumstances,” said Lindsey. “Many who have been in this business for a long time, and assume that what they are doing to help the sick is okay, well those folks are really at risk right now.”