Judge: Federal Law Trumps State's Medical Pot Law
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Judge: Federal Law Trumps State's Medical Pot Law
Posted by CN Staff on January 23, 2012 at 13:21:37 PT
By Matt Volz, The Associated Press
Source: Associated Press
Helena, Mont. -- A judge has ruled that Montana's medical marijuana law doesn't shield providers of the drug from federal prosecution, delivering a new blow to an industry reeling from a state and federal crackdown. U.S. District Judge Donald Molloy on Friday dismissed a civil lawsuit filed by 14 individuals and businesses that were among more than two dozen medical marijuana providers raided by federal agents last year across Montana.
The providers claimed the raids violated their constitutional rights in part because state law passed by voter initiative in 2004 allows them to grow and produce the drug for medical consumption.Molloy wrote in his order that the providers can be prosecuted under the federal Controlled Substances Act even if they are following state law. He cited a 2005 U.S. Supreme Court decision that said the U.S. Constitution's supremacy clause applies in medical marijuana cases.The supremacy clause says that federal law prevails if there is any conflict between state and federal statutes."Whether the plaintiffs' conduct was legal under Montana law is of little significance here, since the alleged conduct clearly violates federal law," Molloy wrote. "We are all bound by federal law, like it or not."The medical marijuana providers also argued that the Justice Department had said it would not prosecute them, citing a 2009 agency memo called the Ogden Memo after its author, Deputy Attorney General David Ogden.In that memo, Ogden wrote that federal prosecutors would not pursue "individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana."Molloy wrote that Ogden's memo was not a free pass to produce and consume marijuana, and the memo itself says complying with state law does not create a legal defense to violations of the Controlled Substances Act."A reasonable person, having read the entirety of the Ogden Memo, could not conclude that the federal government was somehow authorizing the production and consumption of marijuana for medicinal purposes," he wrote.Carl Jensen, the Great Falls attorney representing the medical marijuana providers, said Molloy's ruling should serve as a warning to other providers still operating in the state."The supremacy clause has been used by the federal government to hammer anything they want to," Jensen said. "Absolutely, they should be concerned. If the federal government ever decides it wants to go after them, it can."Jensen said a decision has not been made on whether to appeal.U.S. Attorney spokeswoman Jessica Fehr did not return a call for comment.The federal raids in March 2010 placed a chill over Montana's booming medical marijuana industry, causing several providers to close down because their inventories had been seized or out from fear that their businesses would be next. Several raided providers have pleaded guilty to federal drug charges.Lawmakers struggled last year to come up with a solution for what many people perceived to be an industry that at that time was growing too quickly and with too few rules. The final bill repealed the original voter-approved law in favor of one that aimed to dramatically curtail the for-profit medical marijuana industry.That legislative action is currently under legal review, and will also appear on the November ballot for voters to endorse or reject.Portions of the new law have been temporarily blocked by a state judge, but the result has been a dramatic decline in the number of medical marijuana patients and providers. There were 18,012 registered marijuana users at the end of December, compared to 31,522 at the end of May, according to the state Department of Public Health and Human Services.There were 395 registered marijuana providers at the end of December, compared to 4,650 at the end of May.A group of lawmakers meeting Monday in Helena received an update on the ongoing developments. Many believe it will again require some sort of legislative action when lawmakers convene in 2013.Sen. Art Wittich, R-Bozeman, said the federal crackdown could mean the state has to revisit how it allows distribution of the drug under its medical marijuana law."Is there any value in looking at this question of how you get this medical marijuana to the patient who is legitimately sick?" Wittich said. "How do we ensure the product is available for people who are sick?"Associated Press writer Matt Gouras contributed to this report.Source: Associated Press (Wire)Author: Matt Volz, The Associated Press Published: January 23, 2012Copyright: 2012 The Associated PressCannabisNews Medical Marijuana Archives 
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Comment #7 posted by FoM on January 24, 2012 at 17:45:40 PT
You're correct.
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Comment #6 posted by Vincent on January 24, 2012 at 14:22:07 PT:
States Rights
Listen fellow intelligent folks, don't try to figure out the mind of a Conservative...they are totally brainwashed. To them "States Rights" mean ONLY what Conservatives WANT them to mean...e.g. the right to carry guns in a bar or other people's houses, the right to outlaw abortion or Birth Control devices, the right to discriminate against people that they don't like...but if a States's voters approve legalized Marijuana, or Gun Control measures, or Same-Sex Marriage (or even Civil Unions), suddenly these same, uh, "small government" Conservatives instantly become Federalists.Disgusting, aren't they?
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Comment #5 posted by dongenero on January 24, 2012 at 08:36:17 PT
And by that same Montana legislative logic regarding federally restricted guns not leaving the state and so being allowed, every state medical marijuana facility allowed by state law should likewise be exempt from federal regulation, based on the interstate commerce clause.Goes for recreational use in general too. Heck, the entire federal War on Drugs is based on stretching the interstate Commerce Clause so that the feds did not need to amend the US Constitution in order to take citizens' freedom away.The whole thing is based upon the idea it is being taken across state lines.....well, what if it isn't???? If cannabis is grown, sold and used instate, it should be exempt from federal regulation.The hypocrisy is truly stunning and would be comical were otherwise law-abiding citizens not being persecuted under such hypocrisy.
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Comment #4 posted by ekim on January 23, 2012 at 16:51:02 PT
providers can be prosecuted 
you mean like so everyone sees it.and everyone hears it.and fourteen or so of us get to vote up or down.
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Comment #3 posted by FoM on January 23, 2012 at 14:58:22 PT
Guns can kill people but marijuana has never caused a death. Such weird logic. We had an Amish girl shot through the head and she died while in her buggy coming back from a gathering. It took a while to find out who killed her. A man was working on a gun a mile and a half away and shot the gun and it traveled that far and killed her. 
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Comment #2 posted by dongenero on January 23, 2012 at 14:27:13 PT
Thought I'd point this out about MT
"As of October 1, 2009, the state legislature declared that certain firearms and their accessories that are manufactured, sold, and kept within the state are exempt from federal regulation, since they are not considered interstate commerce."How that logic........
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Comment #1 posted by HempWorld on January 23, 2012 at 14:26:45 PT
Federal Court: U.S. Can’t Subvert California’s MMJ
Federal Court: U.S. Can’t Subvert California’s Medical Marijuana Laws
August 20, 2008
“Much as the federal government may prefer that California keep medical marijuana illegal, it cannot force the state to do so.” –Ninth Circuit Chief Judge Alex Kozinski SAN JOSE, CA (ACLU) — In a first-of-its-kind ruling, a federal court today held that the U.S. Constitution bars deliberate subversion by the federal government of state medical marijuana laws. “Utilizing selective arrests and prosecutions, the federal government has sought to sabotage California’s reasoned approach to medical marijuana use,” said Graham Boyd, Director of the ACLU Drug Law Reform Project.“For the first time, a court has recognized that a calculated plan by the federal government to undercut state medical marijuana laws is patently unconstitutional. Today’s decision forecasts an end to any organized federal effort to sabotage state medical marijuana laws.” While previous high-profile cases affirmed the federal government’s power to enforce federal drug laws against individual medical marijuana patients and providers on a case-by-case basis, today’s ruling clearly recognizes that a calculated pattern of federal enforcement can render state medical marijuana laws effectively inoperable, which would violate the Tenth Amendment of the U.S. Constitution. “It is obvious to anyone paying attention that federal officials have gone to great lengths to sabotage state efforts to allow for appropriate medical marijuana use,” said Boyd. “The court made clear that this deliberate interference - once proved - would be unequivocally unconstitutional.” The case, County of Santa Cruz v. Mukasey, originated in 2003 when Bingham McCutchen LLP and the Drug Policy Alliance, along with private attorneys Gerald F. Uelmen and Benjamin Rice, sued the federal government for raiding a Santa Cruz-area medical marijuana cooperative, the Wo/Men’s Alliance for Medical Marijuana. The ACLU and others argued, and the court agreed, that the U.S. Constitution permits states to determine for themselves what is legal and what is illegal under state law, and that the federal government may not deliberately undermine this process. “The federal government has purposely set out to systematically subvert California’s medical marijuana program,” said Daniel Abrahamson, director of legal affairs for the Drug Policy Alliance. “Let us hope that this ruling leads to the merciful end of the federal government’s cruel war on sick and dying medical marijuana patients.” In today’s ruling, which rejected the federal government’s motion to dismiss the case, Judge Jeremy Fogel of the U.S. District Court for the Northern District of California, San Jose Division, relied on U.S. Court of Appeals for the Ninth Circuit Chief Judge Alex Kozinski’s opinion in Conant v. Walters, which stated, in part, “Applied to our situation, this means that, much as the federal government may prefer that California keep medical marijuana illegal, it cannot force the state to do so.” In addition to U.S. Attorney General Michael Mukasey, the lawsuit names as defendants U.S. Drug Enforcement Administration (DEA) agents involved in the raid of WAMM, and administrators of the DEA and Office of National Drug Control Policy. The court’s ruling is available online at:
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