Stayin’ alive: Montana medical marijuana dispensaries still open despite court ruling

By John Schroyer

The medical marijuana battle isn’t over just yet in Montana.

Most dispensaries remain open despite a brutal court ruling nearly two months ago that threatens to gut the state’s MMJ industry.

Business owners are hanging on in the hopes that the industry can win a permanent stay of execution if the Montana Supreme Court agrees to a request to delay the ruling’s implementation. That would buy time to get a measure on the November ballot to establish regulations on dispensaries before they have to close down, which could save the industry.

The court could decide on the issue any day.

“Very, very few (dispensaries) may have shut their doors,” Kate Cholewa, a spokeswoman for the Montana Cannabis Industry Association (MTCIA), said. “I don’t know that I’ve heard of more than three. But the communication network is pretty good, so people know that as soon as the ruling happened, the MTCIA filed its motion to delay the implementation.”

In February, the state’s Supreme Court upheld a 2011 law that effectively regulates dispensaries out of business. The ruling hasn’t taken effect yet because the MTCIA filed a motion in March asking the justices to reconsider their decision. (The MTCIA previously was known as the Montana Cannabis Information Association).

Consequently, only a few dispensaries have closed. The majority are waiting for formal word from the state on when they’ll be required by law to alter their practices or stop serving patients.

James Goetz, an attorney for the MTCIA, said the court ordinarily rules on reconsiderations “pretty promptly, but this is fairly unique because of the disruption in the industry and the time that it will take” Montana’s Department of Public Health and Human Services to comply. The health department regulates the state’s medical marijuana industry.

The MTCIA filing asked the court to delay implementing its ruling until April 2017 to give state lawmakers a chance to revisit the 2011 law.

If the court grants the request, that would also give the MTCIA time to get a proposed initiative on the November ballot asking Montana voters to establish a formal licensing system for dispensaries. Such a move would effectively legalize the dispensaries and overturn the 2011 state law.

Montana has an estimated 50-60 dispensaries. Many have closed over the years because the state has made it increasingly difficult to do business in the cannabis trade.

“We are operating as normal and will not change until we are instructed to” by the health department, Rich Abromeit, owner of Montana Advanced Caregivers in Billings, said in an email.

The MTCIA’s Cholewa said that many observers expect the court to hand down its ruling on the request for a delayed implementation as early as this very week. Alternatively, dispensary owners could be waiting another month or so.

Several possible outcomes exist, depending on what the court decides:

  • The industry wins a reprieve, dispensaries continue operating as usual, and the MTCIA succeeds in November on its ballot measure, meaning there’s no interruption of the state’s MMJ industry.
  • The industry gets a stay of execution, dispensaries continue operating as usual, and the MTCIA fails in November, leaving the industry’s fate in the hands of state lawmakers. They could enact a different law to allow dispensaries to exist – or do nothing and stand by the restrictive 2011 law.
  • The court denies the 14-month delayed implementation request but agrees to a shorter window, such as the 60-day implementation timeline the health department requested, or the 45-day timeline the attorney general suggested.
  • The court denies the 14-month delayed implementation request and instead comes up with a window of its own.
  • The court kicks the implementation timeline decision back to a lower court. That could mean further delays when it comes to a final outcome, but could also be very good for the MMJ industry.

Cholewa said that if the state Supreme Court decides it doesn’t want to rule on the implementation timeline, the matter would likely be left to District Court Judge James Reynolds, who has sided with the industry in the past.

“The fact of the matter is that MTCIA has done well (in Reynolds’ court),” Cholewa said.

But with any outcome, dispensaries will have a month and a half at the very least to continue operating after the court hands down its decision.

Another factor in all of this is the MTCIA’s proposed ballot initiative to set up a licensing framework for dispensaries. The group was slated to receive final ballot measure language on Monday from the Montana attorney general’s office and formally launch its campaign on Tuesday.

The organization needs to gather at least 24,175 voter signatures by June 17 in order to qualify for the 2016 ballot.

If the past is a guide, the MTCIA probably has public support on its side. When MMJ was first legalized in 2004, voters approved it 62%-38%.

“We feel very optimistic that Montanans are not going to allow the state to repeal medical marijuana,” Cholewa said.

There are also two other potential cannabis ballot measures: one to legalize recreational marijuana – which has gotten almost no traction – and another to ban MMJ altogether.

John Schroyer can be reached at [email protected]

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