Eight years after 62 percent of voters cast ballots to legalize the use of medical marijuana, Montanans will now decide to what degree they want their state’s medical cannabis industry regulated.
IR-124 allows voters to either approve Senate Bill 423, which imposed stricter limits on the growing and distribution of medical marijuana, or return to the laws implemented after the 2004 voter initiative.
The ballot initiative is the latest step in an ongoing struggle to allow people access to marijuana for medical purposes at a time when the federal government still considers it illegal.
Unintended consequences
When voters approved the “limited use of marijuana under medical supervision by patients with debilitating medical conditions,” a small industry grew up to serve the hundreds of patients that signed up for the service.
Then came a 2009 memo from the U.S. Department of Justice that indicated the federal government would not prosecute those abiding state medical marijuana laws.
The result was an explosion in the number of medical marijuana patients and providers. According to state figures, within seven years of I-148’s passage the number of medical marijuana patients grew from 86 to 29,948 and the number of providers from 35 to 4,438.
Storefronts began to open in many cities and towns and voters started to express concern over the new booming industry. In 2011, the Legislature decided to rein in the situation.
“It wasn’t medical marijuana, it was recreational marijuana and it perverted the good intentions of using marijuana for medical purposes,” said Sen. Cliff Larsen, D-Missoula and one of three senators on a subcommittee tasked with reforming the state’s marijuana law.
Initially, the Legislature voted to repeal the citizen-backed initiative. After Gov. Brian Schweitzer vetoed that move, lawmakers drafted Senate Bill 423.
SB 423 regulated medical cannabis by banning payments to providers for marijuana or “related products,” limiting the number of patients each provider could supply to no more than three and requiring each patient to have two physicians verify their diagnosis.
The feds return
But even as lawmakers debated the bill, the gulf between federal and state law became clear as federal agents raided 26 Montana dispensaries and arrested more than 12 caregivers.
“The raids took place, by sheer coincidence or by plan I will never know, on the very day that (SB-423) was being reported out of committee,” said Sen. David Wanzenried, D-Missoula.
The raids underscored that the federal government still considered the selling of marijuana to be a crime.
The federal action raises the question of whether this November’s initiative even gives voters an honest choice.
“IR-124 doesn’t change the primacy of federal law over state law,” Larsen said. “The feds are calling the shots now.”
Even as senators debated the impact of the federal raids, the Montana Cannabis Industry Association, the trade group for the new medical marijuana businesses, was taking the recently enacted state law to court.
Helena District Judge Jim Reynolds blocked parts of SB 423 from taking effect such as limiting caregivers to three patients and prohibiting them from receiving payments or advertising. A year later, the Montana Supreme Court overturned Reynolds’ decision stating that SB 423’s restrictions do not violate the Montana Constitution’s right to privacy or pursuit of employment and health.
Although several elements of SB 423 remain in legal limbo, the effect of the legislation and federal raids has been clear. Within one year, the number of cannabis patients dropped from 29,948 to 8,681 and the number of providers plummeted from 4,438 to 390.
Making the call
Still voters must decide whether to support the state’s more restrictive law or return to the statute that spawned the earlier industry.
If voters approve IR-124, they are voting to keep SB 423 and its restrictions on patients and caregivers in place. If they vote against the initiative, the entire 2011 law will be repealed and the former system, albeit with possible federal intervention, returned.
Wanzenried said he understands that many patients and caregivers see the 2011 law as an overreaction to the earlier system that spawned storefronts and billboards for medical marijuana.
“Did we vacillate between extremes? Yes,” he said. “But the pendulum has swung too far toward being unnecessarily restrictive.”
No matter what happens on Nov. 6 the future of the state’s medical marijuana program will likely be a focus of next year’s legislative session, and the outcome of IR-124 will only set the public’s mood for that debate yet to come.
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