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.