Montana Governor Brands “Black Market Bill” (SB 423) Unconstitutional


In a surprising move (surprising to me at least), Montana Governor Brian Schweitzer called Senate Majority Leader Jeff Essmann’s SB 423, “unconstitutional on its face”.  He expressed his intention to issue an amendatory veto on the legally defective legislation as he doesn’t believe it could survive a court battle in its current form   The legislation, which passed Montana’s House and Senate earlier this week has been nicknamed the “black market bill” by opponents who believe eliminating the medical cannabis industry will invite dangerous criminal elements engaged in drug activity to again control the supply of marijuana in Montana.

In an interview with Lee Newspapers State Bureau, Schweitzer was highly critical of the GOP-led 2011 Legislature, expressing his disgust for their “squandering”  of Montana’s 90 day biennial legislative session.  He asked,

“Why don’t you just pass something that works, that’s constitutional and that can survive the test of time?” he asked.

A bipartisan interim committee, after months of work, inspired HB 68, sponsored by Diane Sands (D- Missoula).  While nowhere near perfect legislation, it is difficult if not impossible to find patients or growers who would prefer Essmann’s bill to HB 68, which was tabled in committee.  A re-written version of SB 154, a gray bill sponsored by Republican Dave Lewis (and largely preferred by patients and growers) also received little support from the repeal-driven prohibitionist Republicans.  Referring to HB 68,  Governor Schweitzer said ,

“They threw that in the garbage and now they’re going to send me this (SB) 423, which everybody’s who’s read it says, ‘Oh yeah, it’s unconstitutional,’ ” he said.  “The bill as written is not going to survive the courts.”

Montana’s governor, who recently was featured in national news stories for calling Republicans in the state legislature “Bat-crap crazy” and for registering a “VETO” cattle brand with the state (with which he last week ceremoniously killed bills he considered foolish or unconstitutional) isn’t fond of a requirement in Essmann’s bill that requires Montana’s medical cannabis patients to carry their state licensing card with them at all times, regardless of whether or not they are in possession of marijuana.  Patients are also subject to warrantless searches of their homes at any time and names and addresses of those in the program are provided to local law enforcement officials.   Schweitzer believes such provisions to be violations of the 4th amendment, which protects Americans from unlawful searches and seizures as well as the  federal Health Insurance Portability and Accountability Act, or HIPAA.

if you’re taking OxyContin or penicillin or for God’s sake, even aspirin, that is your own personal health care records,” he said. But HB423 is “demanding” that the fact that someone is using medical marijuana and “be turned over to law enforcement in every town.

Schweitzer too acknowledged the black market appeal of the legislation,

“There’s another problem with it, and I think it’s a fundamental problem,” Schweitzer said. “Under this bill, I will guar-an-dang-tee-you, that there will be more illegal marijuana (that) makes it to the alley under this proposal than we currently have because now you’re going to have 4,000, 5,000, 6,000 people growing their own. It’s not possible to monitor all of them.”

“I mean does someone with a straight face think you can have 5,000 people growing their own and none of it makes it to high schools or to college dorm rooms?” he said.

A severability clause was included in the bill, which ensures that, in the event of a court ruling striking components of the legislation, other parts of the bill remain viable.  Because of its inclusion, Schweitzer believes that Essmann and other Republicans are well aware that the bill is unconstitutional.

“Why don’t you just pass something that works, that’s constitutional and that can survive the test of time?” he asked.

That sounds far too easy for the TEA people-inspired Montana GOP, however.  This shouldn’t be about politics, it should be about doing the right thing for the segment of the population who Montana’s original medical cannabis law was designed to protect.  In efforts to eradicate all state-sanctioned medical use of cannabis, Montana’s GOP lawmakers for the past 90 days have resorted to tears, lies, and dramatic stories intended to convince the legislative body and public that our state is now considered a “source nation, like Columbia” our youth are prostituting themselves for cannabis, and that caregivers are selling marijuana in middle and high schools across the state.  Oddly enough, there have been no arrests made for any of those particular crimes.

Sponsor of the bill, Jeff Essmann cited recent correspondence with federal officials who “clarified” federal policy  in his bid to save our state from the evils of cannabis.  No word on whether he used such correspondence to ensure Montana is in compliance with federal law regarding wolves or implementation of federal health care reforms however.  We are all aware that the federal government knows best anyway, right?

Reefer makes darkies think they’re as good as white men.”
– Federal Bureau of Narcotics Chief Harry J. Anslinger, 1929

Republicans in Montana have been hammered by those on the right this session as well as the typical lefty critics after various testimonies  in reference to  blow-dart murders, appropriate state prison sentences for gay recruitment, and the dangers of punishing DUIs were publicized on numerous news programs. While Republicans across the nation- including several GOP presidential nomination hopefuls- are advocating sweeping  marijuana law reforms, Montana’s Republicans are determined to move backwards as they promote their dangerously myopic “morality” agenda.

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37 thoughts on “Montana Governor Brands “Black Market Bill” (SB 423) Unconstitutional

  1. We start the season with bills to lossing up all the DUI laws as they are hurting the people of Montana. Or we can hunt with a spear, who the hell put these poeple in office??? Now here we sit with a bill that will repeal what we put in place in 2004. Why can’t that look at it like Coloardo who have over 3% or 150,000 patients. They the state made over 100,000,000 in taxslast year. Here in Montana a Mason-dixon poll conducted more recently odtained showing that a whopping 87% of Montana’s support either new regulation or no change in the current law. They need to take the cost out of all the pharmaceuticals for all the people who need these drugs, as we find that our kids are useing them too! But frist lets all ask the Gov. to Veto this HB423 Leave the law the way it is and next season work on a real reform bill…..call him and tell him we want a veto 1-406-444-3111

  2. I am crying with happiness.I have spent the last few months writing our political leaders,going to protest and even to the state capitol.I am a 50yr old disabled man .I have a severe spinal injury from getting ran over by a truck.My spine is equilivent to a 90yr old.I wake up with severe pain and depression and the mj keeps me from going crazy.I thank god if Brian does in fact veto this.I feel so blessed right now with just a mere chance that this will end soon.God bless all

  3. Yesterday, I was scared to death that the gov had sold us out over the budget compromise. I’m so glad to be wrong!!! It’ll be interesting to see if the Republicans start bringing up obstacles to the budget bill now. The way Schweitzer worded his response to the bill covers his ass to veto. I sure hope he does.

    On another note, you guys have to check out this gem of a guest editorial in the Missoulian. I started repsonding, but realized that you could have so much fun witht the arrogance, ignorance, lies and propaganda, that I had to share.

    Thanks for another 2 days of GREAT columns!
    http://missoulian.com/news/opinion/columnists/article_66108b98-719e-11e0-b75c-001cc4c03286.html

    • I would love to respond to that rhetoric, but I’m moving this weekend and am packing up my house…. it is a terrible task and I can’t even believe I was even able to post anything. I will certainly try, but it may be a couple of days.

      • Can you believe they actually published that letter? I’d be embarrassed to have my name on such a ridiculous document. I knew it would get your blood boiling………..on a number of levels………I know it did mine. Old Jent thinks he’s going to run for Governor. What an idiot.

              • Well I was actually talking about the letter and it’s authors. Jent’s a D. He’s evidently gonna run for Governor from the barstool at the Cannery, which is apparently where he wrote the letter.

                I’ve said plenty about the Governor, you too, but he’s standing tall on this one. His comments about allowing law enforcement warrantless access 24/7 into people’s homes are right on the money. The most tyrannical law I’ve ever imagined is passed by the Montana legislature. Not a single person who voted for that should be allowed to serve again.

                • I agree. Is that where Jent hangs out? It figures. Last time I was there, I had my wallet stolen. Yes, both of them are indeed clowns. As for Schweitzer, I was impressed with his amendments. Not surprised that the legislature wasn’t fond of them. What a bunch of big government puritanical job killing control freaks. Thankfully we have an opportunity to purge the entire house and half the senate every couple of years. I will not let Montanans forget this session.

  4. THIS IS SUCH WELCOME AND ENCOURAGING NEWS!!!! COME ON GOVERNOR S!! STICKING UP FOR THE TRUTH AND FOR WHAT IS JUST IS NOT ALWAYS EASY.. WE SHOULD BE VERY HAPPY WE HAVE BRIAN TO FIGHT FOR US!! This 2011 legislation should be so completely ashamed of their existence and what their actions of recent have been.. They have made Montana a nation wide source of ridicule! The bold faced lies that republicans have been touting as fact can be repudiated easily and very quickly if a person is of a mind to check the facts.. Some of the reps, such as milborne, esseman, and several others aught to be help responsible and tried for crimes against the people of montana. For their policy and the way they have spread untruths that have such a detrimental effect to peoples lives. The law I48 as it was intended is a good law! They should tighten up the grey areas! Remind people this IS a privledge and a medicine! Treat it as such 🙂

  5. OH MY GOSH! It has been so long since I’ve heard such good news. I too, have rushed home from work to write yet another letter to our legislators – I’ve written to the governor as well. Many of my letters have been returned or unanswered, but not the ones from Governor Schweitzer. The legislators who’ve proposed and supported HB161 and SB423 have definitely left a scar on my brain. I will never vote for anyone associated with the Republican party again – my family (and it’s huge) won’t either. These politicians are hurtful, deceitful, and dishonest. They’ve wasted tax payers dollars on the raids they no doubt orchestrated and they’ve destroyed businesses and families in doing so. This state needs money and yet they keep overlooking the revenue that could be harnessed from the MM industry. This industry has helped our state in so many ways. It’s employed people, opened new businesses, made use of structures that had been abandoned, given business to already established businesses………and the list goes on. Most of all this industry has helped the patient. I so hope Brian veto’s SB423!

  6. Hutton is pulling a palin and quitting half way thru his term–Just goes to show that even in the worst of times,some good can come of it–He has evidently found a herd down south to rant to and as I am from Havre I couldn’t be happier.

  7. Does anyone know the practical consequences of what will happen now? If the gov vetoes, can they overthrow it? If he doesn’t sign it, what happens? I wish I was a legal expert right now!

  8. I was just listening to a live conference with the governor on the computer. Looks like he’s going to sign SB423. Bummer.

  9. As I have pointed out before, Recall is dead in Montana. It is easier to prove an elected official committed a crime than it is to do a recall (Thanks, Judge Tucker…). That said, I will certainly not be voting for any of these wingnuts.

    As far as the Gov signing/vet0ing the bill… We will see. He said he would veto it but he has dithered back and forth on the issue. He is also getting a lot of flank from Federal Enforcement and he might sign it just to get them off his back. The Feds would love to do another series of raids and in the absence of any legislated regulations, they would pretty much have carte blanche to do so. The Gov is an a lose/lose situation at this point. If he vetos it, he opens up the suppliers to more Fed raids but he pisses off a majority of Montanans. If he signs it, he has already admitted he feels it is unconstitutional and is likely to get critisism not only from the pro medical marijuana crowd, but likely to get a LOT of critisism from his base. If he has political asperations for next year (like stepping into Rehberg’s spot), he really can’t afford to alienate his base and certainly can’t afford to alienate the majority of moderates in Montana. It should be interesting to see how he falls on this one.

  10. ” If he vetos it, he opens up the suppliers to more Fed raids but he pisses off a majority of Montanans” –

    Sorry, that should have read “If he vetos it, he opens up the suppliers to more Fed raids but he pleases the majority of Montanans.”

  11. Have you read the bill? It is extremely complicated, rambling, disorganized and will make enforcing it impossible. No doctor wants to get tied up with this. Who is going to check how many patients a dr has referred? Who pays for the xrays and mri’s etc? And law enforcement is going to laugh at it because they have more serious business than checking homes for plants and all the new requirements. The law was looser for possession prior to the passing of the medical marijuana bill back in 2004. We are going backward. I’m sure those who wrote this law have never used medical marijuana. How dangerous can people of all ages who are disabled for one reason or another present a threat to society? And I don’t see them going on to harder drugs because that’s what they want to get off of . If high school students are using more then control it the way it has always been done.

  12. So this is going to be the law? REALLY?
    well, not until July 1, 2011, so until then where are the forms for our registered voters to sign and successfully PETITION SB 423!!!!

    • The forms won’t be ready until June most likely. While I realize it is a terrible law and everyone is very anxious about the changes, we have to follow the rule of law on this. Referendums have special legal requirements. However, when they are ready, we will need a TON of people willing to help gather signatures because we will have to obtain a huge number of signatures from REGISTERED VOTERS in short order. In the meantime, if you aren’t already registered, please do so ASAP.

  13. Montanafesto, would you be able to make a facebook page for more information and updates of when we can get the citizen’s voice heard and sign petitions. Thanks.

  14. Montanafesto is on Facebook – as am I – and we fight together. Commissar Montanafesto and me – Hiedi Handford – add us both…..

    I will be traveling state to collect signatures and assist where needed…..

    Walk proud folks! Stay STRONG!

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