Court rules marijuana growers can’t transfer plants
As Montana awaits a major medical marijuana decision by the Montana Supreme Court, the justices recently upheld a lower court decision forbidding caregivers from engaging in marijuana transactions or cultivation services with other caregivers, their agents or contractors.
Last week, the Montana Supreme Court, in a 5-0 decision, affirmed a ruling by District Judge Stewart Stadler of Kalispell.
He had ruled in favor of the Flathead County Attorney’s Office in a case filed by the Medical Marijuana Growers Association and two “couriers” and three “caregivers,” none of whom were named.
They had asked the judge to declare that the 2009 Medical Marijuana Act allowed caregivers to deliver, transport or transfer marijuana and its paraphernalia to other caregivers through an agent or to cultivate and manufacture marijuana as an agent or contractor for another caregiver.
Caregivers, now known as providers, must be registered with the state. They are allowed by law to sell marijuana or marijuana products to medical marijuana cardholders, formerly called patients.
The growers group, couriers and caregivers had asked District Judge Stadler for a declaratory judgment that caregivers could legally perform some of these activities under the 2009 state law. Two of the couriers had been charged in criminal cases with the possession of a dangerous drug, with the intent to distribute, for allegedly possessing and transporting marijuana on behalf of Caregiver 3.
Flathead County Attorney Ed Corrigan argued that the plain language of the 2009 law made it clear that caregiver-to-caregiver transactions are illegal.
Writing for the court, Justice Patricia Cotter agreed with Corrigan.
“We find the plain language of this statute clear and unambiguous.” Cotter wrote. “A caregiver is authorized to provide marijuana to qualifying patients only.
“The 2009 MMA (Medical Marijuana Act) does not provide for the transfer of marijuana or paraphernalia from caregiver to caregiver or among their agents, nor is there a provision allowing for a caregiver to cultivate marijuana for other caregivers or for their agents or contractors.
“We will not read or insert these provisions into the statute. We find that the specific provisions that a caregiver may provide marijuana only to qualifying patients specifically prohibits the privileges and declarations that the plaintiffs seek.”
The decision clears up what some believed had been a gray area in the 2009 law.
The 2011 Legislature passed major revision of the 2004 voter-passed initiative legalizing the use of marijuana for certain medicinal reasons, and the 2009 law. The 2011 law is far more restrictive than earlier laws and the number of medical marijuana cardholders has plummeted.
The Montana Cannabis Industry Association and others sought to strike down the entire 2011 law in a lawsuit filed shortly after the Legislature adjourned. In mid-2011, District Judge James Reynolds of Helena temporarily blocked some parts of the law from taking effect.
Both the association and the Attorney General’s office have appealed separate portions of his decision to the Montana Supreme Court. The justices heard the case May 30 but have not yet issued a decision.
A key issue before the court is whether people have a fundamental, constitutional right to sell medical marijuana, which is legal under state law, but illegal under federal law.
Opponents of the 2011 law obtained enough signatures last year to qualify it for the 2012 ballot as a referendum. Voters in November will decide whether to retain or reject the law.
If a majority of Montanans votes to reject the 2011 law, state law reverts to the 2009 law.
Kalispell landlord faces prison for tenants’ medical marijuana operation
Michael Kassner of Kalispell got a year and a day for his involvement in another medical cannabis case. So did Tyler Roe.
Jonathan Janetski, charged along with Kassner and Roe, is looking at up to three years in prison, according to his lawyer, Todd Glazier of Kalispell. But, he says:
Janetski didn’t grow marijuana.
He didn’t sell it.
He was the landlord.
“He has no criminal history,” Glazier said. “He just rented to some people.”
To the best of Glazier’s knowledge, Janetski is the only landlord charged as the result of two rounds of federal search warrants executed on medical marijuana operations in Montana last year. Glazier said Janetski’s experience offers a cautionary tale to others who saw medical marijuana businesses as a welcome port in recession-tossed real estate seas.
“I was hoping to create some awareness for the landlords out there,” he said.
Sam Caras, of Caras Property Management in Missoula, said his firm no longer rents to medical marijuana businesses.
“Our attorneys have said you could possibly get charged, and so on and so forth,” he said.
Janetski, along with Kassner and Tyler Roe, was charged with conspiracy to manufacture marijuana, conspiracy to distribute marijuana and possession with intent to distribute marijuana. Conviction on each charge carries a minimum term of five years in prison and up to 40 years, fines of up to $5 million and at least four years’ supervised release.
Like Corum — who pleaded guilty to a single count of money laundering — all three men made plea agreements. Kassner and Roe each pleaded guilty to conspiracy to manufacture.
Janetski is scheduled to be sentenced April 19 on a charge of maintaining drug-involved premises. Although that carries a maximum penalty of 20 years in prison and a $500,000 fine, along with three years’ supervised release, Glazier said the sentencing guidelines mean his client is likely looking at a recommendation of 30 to 36 months in federal prison.
“He would end up … serving more time than the actual people who manufactured the marijuana,” Glazier said.
Janetski — like many other businesspeople around Montana during the brief period the medical marijuana industry flourished here — thought that his tenants’ work, and hence his renting to them, was perfectly legal under state law, Glazier said.
The raids served notice otherwise.
Growers cried foul, citing state law legalizing the medical use of marijuana and a 2009 federal memo that seemed to downgrade marijuana as a priority. But Montana U.S. Attorney Michael Cotter wrote to state legislative leaders after the first round of raids last spring that “growing, distributing, and possessing marijuana in any capacity … is a violation of federal law regardless of state laws that purport to permit such activities.”
William Ruzzamenti, formerly of the federal Drug Enforcement Administration, said growers in California made the same assumptions about legality as those in Montana.
They thought “that state law somehow trumped the federal law, and that as long as their renters were complying with state law, they really didn’t need to worry about federal law. That’s wrong,” said Ruzzamenti, who now heads the High Intensity Drug Trafficking Area (HIDTA) Task Force in California’s Central Valley.
But the California growers and dispensary owners got a bit of a break when authorities there sent out warning notices before conducting raids.
“We advise them that this is a violation of federal law and if you don’t take some kind of action, your property is in fact subject to forfeiture,” Ruzzamenti said. “You’d be amazed … ever since the letters have gone out, we’ve got a minimum of 90 percent compliance with landlords.”
In addition to evicting their marijuana-growing tenants, he said, landlords also are removing plants, he said.
It’s proved a cheaper and more efficient strategy than raids, he said. “It’s very successful, very effective. It’s changed the whole dynamic.”
No such letters were sent in Montana, something that riles John Masterson, head of Montana NORML (National Organization for the Reform of Marijuana Laws).
“When responsible businesspeople, ethical entrepreneurs, attempt to blaze a new frontier into a legal business under state laws and find themselves subject to serious federal criminal charges that will result in the deprivation of liberty and property,” he said, “… it sure feels like a travesty.”
Medical marijuana family member to plead guilty
The Associated Press HELENA, Mont. —
Sherry Flor filed her request to change her plea on Friday. Prosecutors say she was involved in a conspiracy with her husband Richard and their son Justin to grow marijuana at their Miles City home, and at locations in Helena and Three Forks, and distribute the drug across the state.
Richard Flor was one of three partners in Montana Cannabis, one of the state's largest medical marijuana operators. Montana Cannabis operations across the state were included in the 26 federal search warrants executed on medical marijuana providers back in March as the state Legislature was considering adding restrictions to the state law.
The March raids put a chill over a booming medical marijuana industry and scores of pot providers began closing their doors. Lawmakers later that spring passed the restrictive bill and the number of medical marijuana providers has since fallen from about 4,438 in June to 378 in September, according to state health officials.
At least six medical marijuana providers and employees whose businesses were raided have pleaded guilty to federal drug charges.
Now Sherry Flor will plead guilty to money laundering and conspiracy to manufacture, distribute and possess with intent to distribute marijuana, assistant U.S. attorney Joseph Thaggard said in a court filing Friday.
Thaggard wrote that Drug Enforcement Agency special agents and two unnamed cooperating witnesses would have testified that Sherry Flor helped tend to marijuana plants and was involved in at least one drug transaction.
A hearing on Flor's request has not been set. Neither her husband nor son has requested a plea change.
Flor's attorney, Leo Selvey, did not immediately return a call for comment on Monday.
The Flors have said their operation complied with state medical marijuana laws and Richard Flor's attorney has accused federal prosecutors of outrageous government conduct in bringing charges against a legitimate business.
Their attorneys plan to argue at a hearing Thursday before U.S. District Judge Charles Lovell that the judge should dismiss the charges because of that conduct, which the plaintiffs called "so grossly shocking and outrageous as to violate the universal sense of justice."
Prosecutors are expected to argue at the hearing that Lovell should block any mention of medical marijuana or related issues involving state and federal laws at the Flors' trial.
They say the state's medical marijuana laws have no relevance to the prosecution.
May 22 kulr8.com
By Rowena Li
Take some notes Rhode Island........-UA
BILLINGS - Medical marijuana advocates held a town hall style meeting Saturday evening to exchange ideas and raise money for their upcoming legal battle.
The Montana Cannabis Industry Association organized the event, which was held at the Fraternal Order of Eagles.
A group spokesman said they want Senate Bill 423 throw out. The legislation would reduce the number of medical marijuana patients in the state and ban commercial caregivers.
"You see people from all over the spectrum now are getting involved because its more than just about pot anymore. It's our voters’ rights. There are a lot of things going on in this state that are basically a travesty, and we're trying to do something about that," said event organizer Ed Doctor.
Representatives said the group has raised more than $70,000 already and hope to reach $1 million.
MT judge issues order against medical marijuana overhaul
Last second relief in Montana. -UA
By Scot Kersgaard | 05.16.11 coloradoindpendant.com
On Friday, shortly after legislation essentially banning medical marijuana in Montana took effect, a judge said ‘not so fast’ and signed an order temporarily stopping some parts of the law from being enacted.
Medical marijuana proponents have vowed a fight in a state where well over 60 percent of voters approved legalizing medical marijuana. They were able to raise $50,000 in just a few days, using the money to hire one of Montana’s top constitutional lawyers.
The judge’s ruling only suspends the new law’s ban on advertising medical marijuana products, most of which are set to become illegal in July.
Marijuana proponents say the new restrictions, passed recently by the legislature, would effectively ban medical marijuana in the state, in spite of voters’ wishes.
From the Billings Gazette:
The new state law repeals Montana’s 2004 voter-passed medical marijuana law, imposes restrictions aimed at making it much harder for people to qualify to legally use the drug, and limits the drug’s availability by banning large growing operations. Instead, it sets up a system where a provider can grow medical pot for up to three people, but at no charge.
Medical marijuana proponents in Montana say one of the biggest problems with the new rules is that restricts caregivers to providing marijuana to only three patients, and prohibits them from charging the patients for the marijuana. Patients can also grow their own, but for many that is impractical.
People who were using the law as cover for recreational use will likely go back to buying on the street, but many who do have medical conditions which are alleviated through the use of medical marijuana will be out of luck.
From the Gazette:
A critical problem with the 2011 changes is that they effectively eliminate producers, the brief said, leaving medical cannabis to “somehow spring up by immaculate conception and be timely available to those patients in need,” the plaintiffs’ brief said.
It cited plaintiff Charlie Hamp, 79, whose wife, Shirley “Butch” Hamp, suffered from cancer of the esophagus and had an esophagectomy, a serious surgery, that resulted in her weight dropping from 105 pounds to 88 pounds. Doctors suggested she try medical marijuana, and she laces her coffee with a marijuana tincture every morning.
“Under the amendments, her caregiver will be out of business,” the brief said. “Of necessity, under the law, her ‘provider’ will now become her husband. … He is reluctant, but there is no alternative. But Charlie has not a clue about how to obtain seedlings, beginning the grow process, cultivating the plants, how long this will take or ultimately how to manufacture the necessary tincture for his debilitated wife.”
The brief added, “At their age and in their condition, the last thing they need is for a ‘Big Brother’ government to come into their lives and dictate what they can and cannot do about their personal health and well being,” the brief said.
Crackdown on medical marijuana is coming, Butte legislator says
By TIM TRAINOR Montana Standard | Posted: Saturday, March 19, 2011 6:36 am
Sesso, the House minority leader, who spoke to the lawyers' group in Butte, said he anticipates significant reform, but not outright repeal of the 2004 Medical Marijuana Act.
"The abusers will be on notice, probably in the next 30 days," said Sesso. "If you aren't legitimately sick, you are not going to be able to use (medical marijuana)."
He said legislators recognize that abuse of the law is overriding its merits and that reform is necessary.
Numerous bills are working their way through the Senate and more moving through the House. Sesso said he expects a bill combining some of their elements will be enacted this session. Particulars about how the final products will look, however, remain unknown.
"Today's report will be essentially obsolete tomorrow," Sesso said. "24 hours means a lot in the legislative session and things are moving as we speak."
Changes have already been enacted, such as House Bill 19, which put medial marijuana under the Clean Air Act and forbid smoking in enclosed public places.
But the Legislature is toying with a number of other ways to tinker with the law. Some of the bills being debated include provisions for making it illegal for felons to become caregivers, forbidding those on probation from using medical marijuana, clarifying the conditions that qualify for the drug, prohibiting physicians from having financial ties to the marijuana industry and requiring product labeling.
Sesso said the problems with medical marijuana law snuck up on the Legislature because at first the program was working as designed.
In 2009, five years after the referendum passed, 1,500 Montanans used medical marijuana. Those patients suffered from cancer, glaucoma, AIDS and other serious ailments. But in 2010, fueled by an "explosion" of touring clinics and doctors that gave out thousands of scripts, more than 4,000 patients were joining the rolls each month.
That is when Sesso said he realized there was a problem with the system.
He said he still wants legitimate users to have access to marijuana if they wish. But he warned the thousands of patients that signed on in the wave of 2010, many of whom cited vague health problems, should prepare to do without legal access to marijuana.
The thousands of new caregivers, too, may find that the drug is not going to be the moneymaking industry they may have imagined. Caregivers may be limited to the number of customers they can have and the federal government, which recently conducted raids on two of the largest producers in the state, may have a say in that matter, too.
"The word is out that the federal government is not going to make medical marijuana a low priority, but will enforce the law as it is intended - as a Tier 1 drug subject to prosecution," he said.