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Montana pot advocates look to Colorado, Washington

Associated Press Modified: November 11, 2012 at 7:31 pm •  Published: November 11, 2012

HELENA, Mont. (AP) — Medical marijuana advocates are looking for a silver lining after being rebuffed by Montana voters, and they think they may have found it over Colorado and Washington.

Rejected at the ballot box in an attempt to overturn a state law that restricts the use and distribution of medical marijuana, Montana organizers are looking to those two states as templates for passing even broader initiatives that would legalize recreational use of the drug.

"In a libertarian state like Montana, we think we have a good shot at being one of the early states in ending the nightmare," said Bob Brigham, the campaign manager for the effort to repeal restrictions on medical marijuana. "The prohibition on marijuana has become indefensible. We're wasting millions of dollars and it's a giant waste of time for everybody."

Colorado and Washington voters on Tuesday passed separate initiatives that remove criminal penalties for adults over 21 with small amounts of the drug. The states plan to tax pot sales, but it would depend on federal authorities who classify marijuana as a Schedule I drug.

Brigham said Montana advocates are studying the paths those two states took toward legalization and are also considering re-filing a proposed constitutional initiative that missed the filing deadline for signatures for this election.

Placing a constitutional question on the 2014 ballot would require more signatures than a ballot question like those approved by Washington and Colorado voters, but writing marijuana legalization into the Montana Constitution would prevent the Legislature from nullifying it later, Brigham said.

"Although we've had medical marijuana as long as they have, they've never had to worry about the Legislature overturning the will of the voters," he said. "I think without a constitutional amendment to end prohibition, medical marijuana patients will always be at risk."

The will of Montana voters appeared to head in the opposite direction Tuesday. They ratified the law that bans providers of the drug from compensation, limits providers to distributing to a maximum of three patients and requiring additional medical proof to qualify as a medical marijuana user.

Supporters of the law, known as Senate Bill 423, said it brings medical marijuana back from the mega-industry it had become to the small program Montana voters had intended when it was first approved in 2004.

Medical marijuana advocates gathered enough voter signatures to put the new law on the ballot as a legislative referendum and also challenged its constitutionality in court.

Republican state Sen. Jeff Essmann, a primary author of Senate Bill 423, said Tuesday's election validated the work of legislators who had voted "to bring sanity back to the medical marijuana program."

"I think it's workable for patients. It was not workable for commercial providers," Essmann said. "Senate Bill 423 is quite workable and it should be allowed to work."

But there is still another test awaiting the new law. A hearing is scheduled for Tuesday in Helena on marijuana advocates' request for a preliminary injunction blocking key provisions, such as the restrictions on compensation and number of patients.

District Judge James Reynolds has ordered a temporary restraining order preventing the state from enforcing those parts of the law before Tuesday's hearing.

It's Reynolds' second block of the law, and it comes after the Montana Supreme Court ruled against Reynolds' analysis that the law goes against constitutional rights to privacy and to pursue employment and health. The Supreme Court sent the case back to Reynolds with orders to review the law under a less-strict level of scrutiny.

Reynolds did not sound optimistic in his order that the plaintiffs, led by the Montana Cannabis Industry Association, would prevail.

"It appears, based on the Supreme Court's opinion in this matter, that the window for Plaintiffs to prevail on the preliminary injunction issue and ultimately on its challenge to this statute is quite small," Reynolds wrote.

Essmann took Reynolds' assessment further.

"Frankly, I think the window is closed," he said.

There are several bills dealing with medical marijuana already being drafted for the 2013 legislative session, but both Essmann and Brigham were hesitant to say whether the political will exists to revisit the issue that proved to be very divisive in 2011.

Brigham said the best scenario for him would be for the marijuana advocates to win their case and keep the restrictions from being implemented until an initiative can be approved in 2014.

Essmann did not share Brigham's belief that voters would embrace that idea.

"I do not think Montanans are ready for the legalization of recreational marijuana," Essmann said. "If the proponents wish to put a bill on the ballot that proposes legalization of recreational marijuana, that is obviously their right, but I don't think Montanans will pass it."


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