Montana's marijuana regime is moving backwards, not forwards, and thata shame.
Montana’s marijuana regime is moving backwards, not forwards, and thata shame.

Though all seemingly is moving forward for state-by-state legalization and for marijuana’s overall normalization in the U.S., not every state that legalizes or decriminalizes marijuana is having a heyday with it. And one state in particular should be a lesson that any state’s marijuana policies and laws can quickly turn sour given the right circumstances. Montana is the state that is a cautionary tale for the cannabis industry and nobody should dismiss that state as an outlier just yet.

Way back in 2004, Montana voters legalized marijuana for medical use. Up until 2009, Montana’s cannabis he industry was very quiet and very small but, in 2009 (with the release of the Feds’ Ogden Memo stating that the U.S. Department of Justice would de-emphasize going after cannabis patients and caregivers in states with clear cannabis laws) Montana’s medical marijuana industry exploded. Not long after the Ogden Memo, Montana, population of about one million boasted 30,000 patients and 4,900 providers.

This exponential growth of patients did not sit well with many Montana residents, who were starting to view their state’s medical marijuana regime and its participants as mere fronts for a recreational program. Then — presumably at the urging of some of these residents — the federal government in 2011, “conducted raids across the state after an 18-month investigation into whether medical marijuana businesses were involved in drug trafficking and other federal crimes. [Dispensaries] were closed, and their operators were charged under federal drug laws.”

Conservative Montana lawmakers then began seeking to roll back Montana’s medical marijuana program. Beginning in the spring of 2011, two different attempts to fully repeal the state’s medical marijuana laws were made in the Republican-controlled legislature. The first attempt was a blanket repeal of the existing laws, which was ultimately vetoed by the Governor. The second attempt, Senate Bill 423, was known as a “repeal in disguise,” as it would all but completely eliminate Montana’s relatively liberal medical marijuana regime. The governor signed this bill into law in May 2011. According to the Washington Post:

[u]nder the law, providers couldn’t charge a cent beyond recouping license application fees, so they had no incentive to stay open. After it was passed, the number of patients dropped from almost 30,000 to less than 9,000 in June 2012. The number of providers, who were suddenly limited to three patients a piece, shrank from almost 5,000 to less than 400.

The Montana Cannabis Industry Association sued the state in 2011 to stop the new law’s implementation and, finally, on January 2, 2015, State District Court judge James P. Reynolds permanently struck down as unconstitutional key provisions of SB 423. Specifically, Judge Reynolds permanently enjoined the state’s ban against medical marijuana advertising, its prohibition against commercial sales of marijuana to authorized patients, its limiting caregivers to growing marijuana for no more than three patients, and its requirement to provide to the state Board of Medical Examiners the names of doctors who recommend more than 25 patients for medical marijuana in a 12-month period. Not a sweeping victory for Montana’s marijuana industry, but enough to ensure that the industry survives.

In May 2015, the State Attorney General appealed Judge Reynolds’ decision to the State Supreme Court, and the Supreme Court’s ruling in this case is expected sometime this October. Regardless of the Supreme Court’s opinion, at least one Montana prohibitionist is (again) trying to get on the ballot a measure fully criminalizing all-things marijuana, medical or not. In less than a decade,  Montana has gone from doing the will of the people to completely eviscerating its democratic experiment with medical marijuana.

Most states faced with a “Wild West” marijuana situation like Montana’s from 2009 to 2015 have countered by increasing regulation and taxation,. Montana has taken an entirely different tack by seeking to return to full on prohibition. We wish we could say at this point that Montana is a lone oddball, but we cannot. Unless and until we achieve effective changes a the federal level Montana may not be the last state to politically and legally witch hunt its own marijuana regime. The best way to counter this is to as quickly as possible move sensible legalization forward in your state.

Take heed everyone. You’ve been warned.

  • I’ve been wondering about the great state of Montana and when it would realize what it did…. Love your blog, appreciate the expertise you bring to it and have been sharing it with my peeps…. good lawyering can’t be beat, thanks

  • Sam Maloney

    “Montana” hasn’t done this, the Tea Party has. What was supposed to be a movement about smaller government, lower taxes and greater individual freedom has been completely co-opted by a certain kind of Evangelical Christian who are quite convinced that anything that’s fun must be anti-social and ungodly– and they lied through their teeth to do it: one of their witnesses before a legislative committee claimed to have personal knowledge of children being sold into sexual slavery by parents buying medical marijuana. Of course, MMJ tends to be more expensive than street drugs, and the person apparently never bothered letting the police know about the child sex ring taking place in her town, but she and others like her gave the Tea Baggers the cover they needed to disregard the will of the people.

    • Bobo Bolinsky

      Absolutely the case. Fundies, Mormons and Baggers are the force behind re-criminalization. The fight is not over tho, this over reach by the legislature and bagger AG Tim Fox will be challenged on the grounds that a state initiative cannot be overturned by the legislature, no matter what god tells them.

      • Nathan Howze

        I understand the tea party argument, but to throw Mormons in the mix is a joke. I’m mormon and I’m setting up a dispensary in Chicago. It’s careless to paint an entire religion with such a broad brush…

  • Heather James

    What you left out, that helped motivate tightening of the laws, is that the feds got hold of the green card holder list, and used it to bar green card holders from buying firearms. In this state, that is a big deal.

    The guy trying to ban pot is widely regarded as a crank, and there are people trying to get a legalization measure on the ballot, too