Trouble in Senator Essmann’s Bubble



Despite Essmann’s confident assertion that his new black market marijuana law is entirely constitutional, Judge Reynolds today issued a ruling today temporarily striking nearly all of the components of the law the MTCIA  considered unconstitutional, overly burdensome, or entirely unreasonable. The ruling places patient access and provider ability somewhere in the murky area between fully upholding Montana’s new medical marijuana law, SB423 which was set to take effect July 1 and temporarily nullifying the legislation in its entirety. Available here, the ruling in favor of the medical marijuana industry, successfully enjoined several provisions. Three of those provisions were voluntarily ceded by the state during the  legal proceedings last week (patient limits, warrantless searches, and the ban of advertising).  The others are as follows:

The Good

  • Providers can thankfully still charge patients for their medicine. SB 423, cannabis donation legislation, required that providers receive no compensation of any sort.  The judge found this expectation unprecedented.   “The court is unaware of and has not been shown where any person in any other licensed and lawful industry in Montana – be he a barber, an accountant, a lawyer or a doctor – who, providing a legal product or service, is denied the right to charge for that service or is limited in the number of people he or she can serve,” Reynolds wrote.
  • No board of medical examiners investigations for physicians recommending cannabis to 25 or more patients in a 12 month period. SB 423 required doctors to pay for their own mandatory investigations after recommending 25 or more patients in a year.
  • Unannounced searches:  This component was ruled unconstitutional and providers and patients will not be subject to the warrantless searches required by SB 423.
  • Advertising ban: This was ruled unconstitutional and will not take effect July 1.  Caregivers/providers are still able to advertise.  I wouldn’t advertise at this point, however; as I believe laying low is rather important during this transition period.
  • Patient limits: This component has been stricken.  Providers are free to have as many patients as  they desire. (SB 423 called for 3 patients maximum)
The Bad
  • To those on probation:  Probationers’ cards apparently are now void until we are able to obtain the signatures to repeal this law.  The faster we accomplish this feat, the more quickly we can suspend ALL of SB 423, not just the components ruled unconstitutional today.  If you have the resources, I’d suggest looking into a lawsuit to ensure the same health care access as other Montanans.  Keep in mind, I’m not an attorney however and cannot give legal advice.
The Ugly
Here is the real problem….unfortunately, we have a glitch in the transition period between being “caregivers” under I-148 and “providers” under SB 423.
  • There is no current provision in the law protecting cultivators from arrest as of midnight tonight.  It does appear, however; that the judge intends for commercial activity, legal cannabis commerce to commence and essentially this appears to be a bureaucratic oversight. But…. we don’t know.  We are hopeful this legal limbo period will be cleared up by the Department of Health and Human Services, but of course; this isn’t a guarantee.  We cannot tell you that you won’t be arrested.  Some activists are suggesting providers arrive in Helena tomorrow to sign up to become a “provider” rather than a “caregiver”.  Please be very careful in the meantime.
  •   Another wrinkle is that the new law requires “providers” be named as such, meaning there is a possibility that we won’t be able to transition to the new status until patients actually NAME us as their provider, but we are hopeful that the DHHS will assist in any way possible.  There is an allowance for a short transition period in the new law which allows “providers” to bypass the FBI background check and fingerprint requirements if they are accepted as “providers” prior to October.  Anyone intending to become a provider is encouraged to avoid these requirements, unless of course; you feel comfortable essentially sending the federal government notification that you intend to break their laws as well as an address to locate you for arrest. But that’s just me….
What Now?
I’m very confident that we will obtain the signatures required to overturn SB 423 completely but it won’t be easy, especially in a state the size of Montana. We have to do so by September 30. We need all of the help we can get, so if you haven’t yet; please sign up at mtcia.org.  We need assistance at every level- from those only willing to sign the petition to those who will serve as county or house district captains.
Keep in mind, there are MANY Montanans who are neither patients or providers helping with this effort.  Our state government sought to overturn the will of Montana voters (62% of us voted to approve the medical use of cannabis back in 2004) and every Montanan should be concerned about this.
*Participating in this important process does not brand you as a marijuana user/proponent/grower/millionaire (ha).  In fact, I’m not currently a patient or caregiver/provider. I stand to gain nothing from overturning SB 423, yet I’m coordinating the entire Eastern zone (which doesn’t even include the county in which I reside), assisting with management and coordination of gatherers in my county and house district, participating in my area MTCIA committee, running Montanafesto, and mothering my beautiful 13 year old mini-me political activist daughter.  None of us are being paid for our efforts and we are working our asses off to ensure patients have safe consistent access as I believe we all (yes, even Republicans) have a responsibility as human beings to help our disabled and infirm.  We are also working to ensure cultivators have a livelihood, so consider helping us help you. *
 You may not care about marijuana, but what about your second amendment rights?  How will you feel if the government decides to enact onerous legislation restricting your use or possession of firearms?  What if your industry is deemed “immoral” or “not what Montanans voted for”?  How will you feel then? If our legislature can overturn a citizen’s initiative passed by so many voters, what sort of message are we sending our already apathetic youth?  It is high time that Montanans start defending our rights, defending our constitution, and defending those of us who aren’t able to defend ourselves.
We are sorely in need of financial assistance as this was only the beginning of this battle.  We have an incredible legal team, but that sort of representation is very expensive. Due to anxiety over the new law, we’ve had a difficult time fundraising the past few weeks.  Now that we have a partial victory, please consider donating to our cause.  We currently owe our legal team a large sum of money. Click on the “donate” tab at mtcia.org- even if you can only spare a few bucks.  If anyone has any fundraising ideas, non-monetary donations, etc, feel free to contact any member of the mtcia board or to leave a message for me here (montanafesto@live.com). Thanks so much to those who have donated not only financially but with their time and talents.  This is a team effort and we are all making history.  Prohibition has a long history of failure, which side of history are you on?
Any questions?  I will do my best to answer queries in the comments or via email.
RAIDS: **warning**
There are rumors that federal raids will be occurring through the first week in July. I cannot confirm the validity of these claims, but please be careful.  Assert your rights as American citizens.  Barring presentation of a valid warrant, don’t allow law enforcement to enter your premises. 
There is, as I write, a federal and state raid occurring in Montana right now, reportedly in Missoula.  There is reportedly nothing atypical about it- plants are being seized, as well as inventory and equipment.  Don’t regard these growers are criminals- it could just as easily be any one of us.  In fact, it appears the most visible and compliant growers have actually been the ones raided.  There is, however; no pattern to the raids.  Some small growers have been raided because of connections to larger growers.  Most are dispensaries, but some were delivery only.  Don’t think for one moment that you are safe- you aren’t.  
Maintaining a total plant limit of under 100 may be beneficial. Please use common sense…. Be as close to invisible as possible.  No newspaper ads emblazoned with marijuana images, no Jason Christ-like tactics like smoking from a massive water bong on the Capitol lawn.  We are a professional but controversial industry so acceptance requires compromise.  
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19 thoughts on “Trouble in Senator Essmann’s Bubble

  1. I saw this tonight, which seems to coincide with the raids I heard about.

    Obama Administration Overrides 2009 Ogden Memo, Declares Open Season on Pot Shops in States Where Medical Marijuana Is Legal

    The memo, authored by Deputy Attorney General James M. Cole, “clarifies” a memo released in 2009

    http://reason.com/blog/2011/06/30/white-house-overrides-2009-mem

    But Holder is suppose to be releasing something, but maybe this is it. The entire CSA is un-constitutional at it’s core.

  2. In juxtaposition to the Dept of Justice release today, this was a letter sent from the Obama Administration to the Attorney General of New Jersey in responce to a request for clarification –

    http://www.cannabisnews.org/united-states-cannabis-news/obama-administration-clarifies-mmj-enforcement/

    This letter seems to be somewhat at odds to what the Department of Justice sent to the DEA. So the question that begs to be asked is.. which one do you believe?

    • It’s the same letter, I’m pretty sure. But nothing is clarified at all. They have shown they are not to be trusted.
      A lawyer who told me it’s like they said ‘swim in the pool, then arrested people for dripping water on the sidewalk”. Boy he was right.

  3. With sixteen states currently operating under a state medical marijuana law and three more states in the process of working on legislation to make medical marijuana law legal, it would behoove the Obama Administration to – at the very least – back off this issue until the states figure it out on their own. It would be better if they were to act proactively and address the schedule I designation of marijuana, but this administration has certainly not been known for it’s proactive handling of ANYTHING. By doing nothing (or worse, procecuting those trying to meet state laws allowing medical marijuana and being arrested/harassed by federal agents), Obama is simply giving ammunition to the extremists that want nullification – even if those same extremists wouldn’t vote “yes” to medical marijuana if a gun was held to their head. This is an insane political move – and as much as people here want to bash Obama – he is usually anything BUT insane. I have to wonder what his rational is for this flexing of federal muscle. It seems politically counterproductive – especially with this base – and with a tough election coming up and MUCH bigger problems to deal with, it is not consistant with his style/message. I have to wonder if the Dept of Justice is somewhat acting on it’s own in this situation.

    • I don’t understand it either… although I don’t see the next election being that tough for him. I think he will win. The justice department acting on its own is a really terrible excuse though. He’s the POTUS. He can reign in the justice department. He just isn’t. Every 30 seconds someone is arrested for a cannabis crime. Imagine all of the jobs lost by making cannabis no longer a criminal offense. The implications are impressive. In addition, think of all of the cash and property forfeited through seizures…. the war on drugs is very disturbing.

  4. Pingback: GUEST POST: Bend Over, Jeff Essman, and Receive Thy Deliverance « Montana Cowgirl Blog

    • I would check with Jeff Essmann. He made the law, maybe he can explain it. I wouldn’t use the phone to contact him, however; as he is now having people who call him investigated for violations of Montana’s privacy in communications statute. Yes, it was designed to help battered women and stalking victims. It is only natural that Jeff would find someway to make it benefit him.

      • I can only think a message I left him weeks ago isn’t as bad as others did. What a chicken to hide behind battered women. He never did call me back to discuss how I tell a seedling to quit growing for a few weeks. I doubt a Mormon prayer would do it.
        Anyone see him on the 10pm news last night. He looked rough. He seemed to bumble his way through checks and balances. Only to reason why it was un-constitutional.

        • He isn’t Mormon and I think he is rather immoral…. but yeah, what a jerk. I don’t watch TV so I missed the news, but he bumbles his way through everything. What is the point of having three branches of government if he sees two of them as firewood? He always looks rough.

  5. I think that Mr. Obama is a 2 faced liar. When he was running for president he said he supported MMJ. What is happening at the federal level is nothing less than war against the citizens. Putting out the memo in 2009 looks like bait and entrapment at this point. We need help from the gov and our elected officials. We need the locai police to not help the feds. I don’t know what it’s going to take, but we need the Republicans to present us with a candidate who can beat Obama, not the polarized choices leading the pack to date. The only way to beat Obama is to get a candidate that will attrack disgruntled dems, independants, and republicans. I’m sorry, but Mitt and Michele aren’t going to get er done.

    • And the only republicans in the field who would help us are not likely to win. 😦 Our governor, elected officials, police, etc won’t either. That is why we need to be running candidates- from the lowest level local positions on up….

    • Actually, I think you might be incorrect. If Romney were to win the primary, soften his message a little (in other words, stop catering to the ultra right wingnuts), and choose a VP like Gary Johnson, I think it possible for him to win. The Tea party members will still vote for him (because they would not be caught dead votin’ for dat black man in da white house), the moderates (who are not very happy with Obama right now) could be pulled onboard – especailly by Johnson, and even some of the Dems might jump ship because of how ineffectual Obama has been.

  6. Moorcat, I hope you’re right, but I disagree with you. I think Romney is far to polarized to appeal to the masses, and I think there are a lot of people like me who have seen too many “conservative” candidates mixing their religion with their politics and not making the separation between church and state that is so essential to our freedom. It’s possible to be a religious Christian and keep it separate from your lawmaking actions, but not many do it. I think Ron Paul does, but there are still many people scared of him because he is a religious Christian. Romney hasn’t proven to me yet that he won’t bring his morals into his lawmaking, and I don’t think this country is ready for a Mormon president. Of course, they said the same thing about JFK being a Catholic, so we’ll see.

    • Romney would never choose someone like Gary Johnson, although I’d like Romney better if he did. I just can’t see it happening. I don’t worry about Romney’s Mormon morals because I don’t think he has them. I think people worry about Ron Paul because he is an anti interventionist and his opponents interpret that as anti-Israel. Moorcat will likely disagree though- he is afraid of Ron Paul because he thinks he’s a nutcase, but I don’t think he is at all. I’ve researched RP for years, he’s consistent, constitutional, and I can’t help but like him.

      • Actually, I agree that Paul is an “anti-interventionist” and in fact, would go even farther and say Paul is somewhat of an Isolationist (not necessarily a bad thing). What I have issues with (and why I think he is a nutcase) is his insistance in bandying conspiracy theory – like the current one in which he says he believes the gold holdings in Fort Knox are gone. I actually agree with some of his fiscal policies (though I think he is too quick to ignore or dismiss things that have been tried in other countries and found to be fiscally and logistically better than the way we do it), I agree with some of his social stances (such as the failed war on drugs). I simply think he is unstable in some areas and I do not want to see an unstable president. If he could stop with the conspiracy theories, loose the wingnut talk and actually act like he has some stability, I could theoretically support him. I certainly do not support Obama, nor do I support any of the Tea Party wingnuts currently running. I would much rather see a moderate like Johnson or Huntsman get the nod.. that is the type of candidate I could get behind.

        To dispell another rumor about me.. I did vote for Obama in the last election, but it was more a vote against the McCain/Palin ticket. The idea that the wicked witch of the north was a heartbeat away from the Presidency scared me to my very core. McCain did not help when he waffled back and forth on the issues like some kind of yoyo and his stanch and uncompromising support for the Patriot act was the clincher for me. I will never whole heartedly support ANY candidate that doesn’t have issue with the Patriot Act and it’s disregard for the US Constitution.

    • You may be right, but the polls disagree with you. All of the polls being done now show Romney actually increasing in popularity with moderates (both right and left) as well as independants. Now I believe that much of that is the current media focus on Bachmann. She is a polarizing agent in the Republican side of the equation and it has driven many undecideds to the Romney camp.

      It is hard to guage how much his religion will effect his politics. His history would suggest the latter (that it wouldn’t) but who knows what will happen if he actually gets to the White House. Bachmann’s religious rantings are dominating the press and this gives Romney kind of a pass right now (as well as torpedo’s Bachmann’s chances of getting the nod for the ticket given how pissed people are about religious fanatics in politics). I am also not convinced that Romney would not choose a moderate as a running mate. The only chance he really has to get elected is to appeal to the moderates and if he doesn’t know that, his election team certainly does. Further, it is his seperation from the wingnuts that is carrying his campaign right now. The wingnuts point to his moderate actions in office as some kind of attack, not realising that – with the general population, the moderate actions play well. He is top of the polls and unless something radical happens between now and the election, he will probably remain in the top of the polls.

      Also take into consideration the fiasco going on right now in Congress. Every day that the Republicans stonewall raising the debt limit, they are costing jobs and American dollars. The general public didn’t understand this back in May when this situation first became critical, but they are beginning to understand it now. In May, the general population were 38% dissapointed with the Dems and 36% disappointed with the Republicans on the economy/deficit/debt ceiling issue. As of last week, those numbers have changed to 41% disappointed in the Dems/Obama and 28% disappointed with the Republicans. As more and more news stations put Economists and Investing Managers on their stations (including Faux News) to explain how damaging this debt ceiling issue really is, more and more Americans are wondering why the Republicans don’t simply agree to lift the limit so they can go back to work.

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