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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

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."