While Medical Marijuana Gains Nationwide, Montana Backslides
In 2004, Montana became the ninth state to pass a medical marijuana law. A dozen years later Montana’s program has been gutted by the legislature and the courts.
What had been a vibrant medical marijuana program is now struggling to survive. In the first four years, access for patients kept the registry rolls below 1,600 patients. Initiative 148 – the medical marijuana law – did not provide for any commercial dispensary system.
The law did provide for caregivers, though. While patients “may have only one caregiver at any one time” according to the law, caregivers could “provide marijuana only to qualifying patients”, plural. The law also allowed that caregivers “may receive reasonable compensation for services”.
By 2008, enterprising caregivers interpreted these statements to mean they could open up storefront dispensaries. After all, they were serving as caregivers by providing marijuana to one qualifying patient at a time, then receiving reasonable compensation for that service.
The dispensaries were also backed up by another line in I-148 that provided an affirmative defense to any person (not just a caregiver) who provides marijuana to patients so long as they do “not provide marijuana to anyone for uses that are not medical”.
By 2010, access to these marijuana dispensaries was made easier by businesses that re-interpreted I-148’s requirements to get a medical marijuana card. They organized bus caravans across the state, bringing doctors to hotel meeting rooms and lining up patients to get their recommendations by the hundreds.
Some also believed the requirement for “a full assessment of the qualifying patient’s medical history and current medical condition made in the course of a bona fide physician-patient relationship” meant an eight-minute conversation online with a doctor via video-chat software. The Montana Board of Medical Examiners believed otherwise.
With safe access and easy registration came an explosion in the patient registry. Sixteen hundred patients by year-end 2008 nearly quintupled to almost 7,500 by year-end 2009. By June of 2011, the registry topped out at over 30,000 patients.
The proliferation of dispensaries and patients and video-cart card mills alarmed the legislature. Like many elected officials nationwide, they believed when medical marijuana passed that it was only a medicine of last resort for the extremely sick and dying.
In 2011, the legislature passed Senate Bill 423 to thwart the progress in Montana’s care for patients. The chronic pain qualification, which legislators felt was being abused, was redefined to require “objective proof of the etiology of the pain” and confirmation from a second doctor. Those doctors’ standard of care was updated to prevent video-chat and mobile diagnoses and any doctor recommending more than 25 cards per year was now subject to audits paid for by the doctor.
Worst of all, the caregiver terminology was updated to mandate a three-patient limit for any caregiver, effectively shuttering Montana’s nascent dispensary system. Caregivers were also subject to warrantless inspections by the state. Montana Cannabis Industry Association filed a lawsuit over SB 423, leading District Court Judge James Reynolds to put a hold on implementation of the bill.
Still, patients began falling off the rolls in Montana. Federal raids on dispensaries in 2011 named “Operation Smokejumper, Operation Weed Be Gone, and Operation Noxious Weed” netted 34 indictments leading to 33 convictions. By year-end 2011, the registry numbers had dropped 40 percent to a little over 18,000.
In 2012, the Montana Attorney General appeals Judge Reynolds decision. The Montana Supreme Court sides with the AG and orders Judge Reynolds to re-evaluate the case. Activists successfully place a veto referendum on the ballot to overturn SB 423, called IR-124. But confusingly, one had to vote against IR-124 to repeal SB 423, and the initiative lost with just 43 percent of the vote. By year-end 2012, the registry had dropped to just over 8,000.
Through 2013, the registry hovered around 8,000 patients as the courts continued to battle over SB 423. Registered providers of medical marijuana, which had reached around 4,900 at the 2011 peak, were now down to just over 300.
By the end of 2014, Judge Reynolds came back with his latest decision using the new guidelines set by the Montana Supreme Court. Surprisingly, he re-affirmed his earlier 2011 decision enjoining major provisions of the SB 423 from taking effect.
With this new hope, patients and providers began trickling back into the program. As of April 2016, there are over 13,500 patients with 475 providers. Still, over 2,500 of those patients find themselves without providers in Montana.
But in February of this year, the Montana Supreme Court upheld most of SB 423, overruling Judge Reynolds. They’ve delayed the implementation of the law to August 31, at which time those 475 providers will have to pare down the sick and dying people on their roster to just three patients. At most, they’ll be able to provide for 1,425 patients, leaving at least 12,000 patients without safe access to medicine.
The next hope for the patients and medical marijuana industry is Initiative 182, an initiative to restore the medical marijuana program in Montana and explicitly allow for dispensaries. But they’re also facing signature gathering for Initiative 176, an act that would make all federally-illegal drugs illegal in Montana, repealing the medical marijuana program altogether. There are also an initiative and a constitutional amendment gathering signatures to legalize adult use marijuana in the state.
