*1
MARIJUANA GROWERS
MEDICAL
1;
COURIER
ASSOCIATION, INC.;
CAREGIVER
2;
1;
COURIER
CAREGIVER
AND CAREGIVER
2;
Aрpellants,
Plaintiffs and
v.
COUNTY ATTORNEY
CORRIGAN,
ED
FLATHEAD,
THE
OF
FOR
COUNTY
Appellee.
Defendant
No. DA 11-0475.
9,May 2012.
Submitted on Briefs
July
Decided
For Kalispell. General, Bullock, Attorney Appellee:
For Steve Montana General, Helena; Plubell, Attorney Ed Tammy K. Assistant County Attorney, Fugina, Deputy County Tara Corrigan, Flathead *2 Attorney, Kalispell. Opinion of the Court.
JUSTICE COTTER delivered Association, Inc., Marijuana The Medical Growers Courier ¶1 (collectively Caregiver Caregiver Caregiver Courier Plaintiffs) and Rationale on appeal referred to as from Order Summary (Order), by the Judgment Defendant’s Motion for entered County, Eleventh Judicial District Court of Flathead Montana. The determined caregivers, providers marijuana Order of medical Act, qualifying patients Marijuana to under Montana’s 2009 Medical in permitted engage marijuana were not to transactions with or provide caregivers agents cultivation services to other or their or contractors. We affirm.
¶2
ISSUES Plaintiffs raise issues on appeal. two We restate the issues as follows: Does Marijuana caregivers Montana’s 2009 Medical Act authorize exchange marijuana
to either purposes supplying qualified for patients marijuana, provide with medical or cultivation services to purposes supplying qualified patients for marijuana? medical
FACTUAL AND PROCEDURAL BACKGROUND (MMA), Marijuana approved Montana’s Medical Act when voters passed the ballot initiative 1-148on November allowed for the marijuana. limited use of medical The MMAwas codified in 50-46- §§ (2005).1 -210, statute, 101 to MCA Under the 2009 which was effect at the time the alleged place, “qualifying patient”-one offenses took with a “debilitating registered medical condition” and with the (DPHHS)-was Health Department of Public and Human Services symptoms allowed the limited use of to alleviate the or again The MMA in 2009 and was amended 2009 version subject appeal. specified, MMA is the in of Plaintiffs’ Unless otherwise all code references Opinion are to the 2009 Annotated. this Montana Code 50-46-102(3), (5)(a), (8), (9), MCA. of the condition. Section
effects MCA, 50-46-102(l)(a), could have qualifying patient Under each well-being “caregiver” responsible managing was for one who A marijuana. caregiver to the medical use of was patient “agreeing register sign with DPHHS statement required named the marijuana only qualifying patients who have provide 50-46-103(4)(a)(i), caregiver A caregiver.” Section MCA. applicant engage not allowed “to in the use of or to use was cultivating, manufacturing, other than paraphernalia purpose delivering, transferring, transporting marijuana or for medical use 50-46-103(4)(a)(ii), caregiver Section MCA. A qualifying patient.” was possess plants also not allowed to more than six and one marijuana, acquire, ounce of usable nor was a allowed to cultivate, manufaсture, deliver, transfer, possess, transport 50-46-201(l)(a), (2), marijuana in excess of that amount. Section MCA. Caregivers complied provided legal who with the 2009 were arrest, protections against prosecution, penalties, rights or denial of 50-46-201(1), MCA. The 2009 MMA privileges. Section also allowed a compensation provided to “receive reasonable for services a qualifying patient’s marijuana.” assist with medical use of *3 50-46-103(4)(c), MCA. (Growers Association, Marijuana The Medical Growers Inc.
¶7 Association)2 non-profit corporation organized is a in Montana with a membership representing list approximately caregivers half of the and patients apparently Montana. Growers Association lobbies the Legislature Montana about matters in connection to the MMA. caregiver Courier 1 is a resident and County Flathead and Courier 2 patient County. Caregivers is a resident and in Flathead 1 and 2 are and caregivers County Caregiver residents in Flathead and 3 ais caregiver County. resident and in Cascade 23, 2011, On March complaint Plaintiffs filed a in Montana’s Cоunty against County Flathead District Court Attorney, Ed Corrigan (Corrigan), seeking declaratory judgment that certain challenged lawfully by caregivers activities could be performed under alleged Montana’s 2009 MMA. Plaintiffs in their complaint that Courier 1 2 charged- and Courier had been in criminal cases with Inc., corporation Marijuana Association, This is referred Medical to as Growers Association, Inc., Marijuana Montana Medical Growers and Montana Growers Association, throughout briefing. Inc. the record and We refer to it as Growers throughout Opinion. Association this distribute, in dangerous drug a with intent to violation possession 45-9-103, MCA, allegedly possessing transporting and for Caregiver They alleged 3.3 further that marijuana on behalf of participant and actors Caregivers “potential and 3 are witnesses cases,” faced criminal although Caregivers in the criminal none of the charges at the time. sought In their Plaintiffs a determination that the 2009 complaint “deliver, caregiver marijuana
MMA a to or transfer transport allowed caregiver and another or to another paraphernalia caregiver” its caregiver it “cultivate and through agent, an and that allowed agent an for another manufacture or contractor allowances, caregiver.” argued, they Without these Plaintiffs would be comply caregivers unable to with their duties as under the MMA.The anonymous sought individual Plaintiffs to remain so as to avoid self- incrimination based on the statements made in this action and to preserve right prosecution their to remain silent in the event of conviction. answer, Corrigan filed an and on hе April moved
summary judgment, arguing plain language that the ofthe 2009 MMA makes that caregiver-to-caregiver permitted. clear transactions are not Corrigan requirement cited the that agree they will “provide marijuana only qualifying patients [medical] who have caregiver,” such, named the applicant and as the extensive statutory interpretation requested by unnecessary. the Plaintiffs was 50-46-103(4)(a)(i), responded MCA.Plaintiffs a motion for summary judgment accompanying brief, and an Corrigan filed a reply brief on June 6,2011, The argument July District Court hеard oral on and in its granted Corrigan’s summary
Order motion for judgment July on 2011. The court concluded that the permit “does not deliver, transport, or transfer and its paraphernalia caregiver, to another either individually through an agent contractor; permit nor does it to cultivate and manufacture agent as an or contractor for another caregiver.” judgment August court entered to the same effect on 17, 2011, dismissing noting the case and the Order’s denial of *4 3Although us, appear proceeding parties this does not of rеcord in the before pled guilty charges indicate in their briefs that Courier 1 and 2 Courier have to the plea agreement possibly right appeal under a reserved the issues as presented in this case.
350 appealed. costs. Plaintiffs
Corrigan’s request for fees and
filed,
ordered
were
this Court
appellate
After the
briefs
¶12
Marijuana
Montana
Act
briefing. We noted that the new
supplemental
(2011
46,
3,
(2011),
effect on
MMA),
50,
part
Title
MCA
took
chapter
regulations
1,2011.4 repealed
It
the 2009 MMAand set forth new
July
participants
program.
for
in the medical
requirements
addrеssing
possibility
parties
directed the
submit briefs
We
repeal
of the
declaratory
consequence
action was moot as a
requested
MMA. The
briefs.
parties
2009
submitted
OF REVIEW
STANDARD
summary
grant
judgment
a district court’s
of
This Court reviews
novo, applying the criteria in M. R. Civ. P. 56. Wiser v. Mont. Bd.
de
of
(citations
56,
6,
1,
Dentistry, 2011 MT
360 Mont.
pertaining to Junkermier, Clark, Stevens, P.C., Campanella, 2011 MT 362 ¶ Marchwick, 496, (citing P.3d 646 In 2010 MT Mont. re Estate of 879). 8, 385, P.3d 356 Mont.
DISCUSSION Marijuana caregivers DoesMontana’s 2009 Medical Act authorize exchange marijuana purposes supplying qualified to either for marijuana, with patients provide medical cultivation services to purposes supplying qualified patients marijuana? medical appeal, On Plaintiffs seek a determination that the 2009 MMA “dispense marijuana patients, [and] allows a to his own cultivation, perform acquisition, possession, other services such as manufacture, transfer, delivery, transportation qualifying patient, including to a on behalf of another moot, qualifying patient.” argue appeal Plaintiffs that this is not as the repeal possibility of the 2009 MMA does not eliminate the of criminal (2011), July 1,2011, chapter part MCA All of Title MCA became effective on 50-46-341, (2011), 13,2011. exception May with the which became effective on
351 in this case. prosecution against under the 2009 those involved moot, the 2011 MMA’s Corrigan argues that this matter is аs expressly prohibits of the 2009 MMA “repeal overhaul transactions,” question and thus the situation in cannot argues that the Plaintiffs are not repeated. Corrigan be also under challenging constitutionality the of the criminal statute which they charged, were and that there is no imminent threat to their rights. Corrigan right appeal constitutional further states that if the 2, preserved by they criminal Courier 1 or Courier can their cases was possibility an and that the of future criminal proceed appeal, charges against highly speculative, they the other Plaintiffs is as have charged not been with criminal offenses related to medical they likely charged. and the record does not reflect will be first, “[m]ootness We address mootness is a threshold issue addressing underlying dispute.” which must be resolved before the City 353, 19, 346, 174 MT Billings, Povsha v. 2007 340 Mont. P.3d ¶ of “consistently question 515. We have held that ‘a moot one which is existed once of an event or it has ceased to happening, but because longer exist and no an presents controversy.’Povsha, actual 19¶ Enters., Skinner Inc. (quoting City-Co. v. Lewis and Clark Heаlth 1049). 106, 12, 310, MT Dept., 1999 294 Mont. 980 P.2d A case ¶ purposes appeal “by becomes moot for the change when a prior appellate decision, circumstances to the the any case has lost practical purpose parties, grievance [such when] for the that gave Povsha, rise to the case has been (quoting eliminated.” 19 In re ¶ (1987)). T.J.F., 1356, 229 Mont. 747 P.2d 1357 argue against finding Plaintiffs that the 2011 MMA moots relief, request declaratory their arguing they could still be charged or upheld their convictions under the They argue 2009 law. 1-2-205, MCA, that under allegedly those whо violated the 2009 § MMA while it was in effect could face prosecution for a criminal MMA, offense though under the 2009 even it repealed. has since been 1-2-205, MCA, states: The repeal creating law a criminal offense does not constitute bar to an indictment or information punishment already of an act committed in violation of the so law repealed unless the intention to bar such indictment or punishment expressly information and is declared repealing act. We have held that “[p]ersons alleged to have cоmmitted criminal charged violating
offenses must be the law in effect at the time 352 17, Daniels, MT 314 v. 2003 ¶ committed.” State
the crime was
Cline,
v.
170 Mont.
(citing
P.2d date.” prior to the effective affect acts committed offense does not defendant, MCA, 1-2-205, held that the Daniels, Citing Daniels January and June 1999 and between committed his offense who charged and convicted properly was charged in November was in effect at the time he committed the definition of the offense under changed had crime, statutory definition of the оffense though Daniels, 5,13,17,18. necessarily imparts 1,1999. This on October ¶¶ *6 the commission of the crime in effect at the time of that the law of the crime. throughout prosecution controls the an indictment or expressly The MMA does not bar alleged The being brought from under the 2009 law. information February involving place approximately the Plaintiffs took on events subject prosecution to under the 2009 and thus would be 1, MMA, July effective until 2011. Because as the 2011 was not commenced felony may up years to five from the date prosecution be аttorneys to alleged prosecuting of the offense and have discretion as they charge, theoretically the could still be what and who February felony under charged through 2016 with offenses the 2009 Lemmon, 45-l-205(2)(a), MCA; State v. 214 Mont. MMA. Section (1984). Thus, has not appeal 692 P.2d 457-58 issue on by repeal mooted of the 2009 MMA. been Corrigan’s sought In contention that the relief is response justiciable, Plaintiffs this is an speculative argue and not Declaratory Judgments appropriate case for relief under the Uniform (UDJA), -313, The purpose Act 27-8-101 to MCA. of UDJA is “to §§ uncertainty insecurity rights, respect afford relief from status, relations; liberally and it is to construed and legal and other be 27-8-102, administered.” Section MCA. UDJA, addressing scope power declaratory to render a
judgment, states: jurisdictions respective
Courts of record within their shall have rights, status, legal relations power to declare other whether or not further relief is or could be claimed. No action or objection ground that a proceeding open shall be on declaratory judgment prayed may or decree is for. The declaration effect, negative be either affirmative or in form and and such judgment declarations shall have the force and effect of a final or decree. 27-8-201, may declaratory judgment,
Section MCA.As for who obtain the UDJA states: deed, will, contract,
Any person interested under a written status, writings constituting rights, other a contract or whose statute, legal municipal relations are affected ordinance, contract, may or franchise have determined instrument, question validity arising of construction or under the statute, ordinance, contract, or frаnchise and obtain a declaration rights, status, legal or other relations thereunder. 27-8-202, MCA. Because Plaintiffs deem themselves insecure MMA, to their status vis a vis the 2009 at least two already charges, of the Plaintiffs have faced criminal and the UDJA though allows a court to declare their status even further relief no is claimed, agree may we are constrained to that Plaintiffs seek relief requested controversy under the UDJA. We therefore conclude the is justiciable, arguments. and turn to the merits of Plaintiffs’ We are asked to determinе whether the 2009 MMA authorizes caregivers, purposes of supplying qualified patients with medical marijuana, exchange marijuana provide with or cultivation services so, caregivers. to other To do first look to the plain language we statute as a whole to determine if it is unambiguous. clear and Mont. Sports State, Shooting Assn. v. 2008 MT 344 Mont. P.3d 1003. We will ascertain and declare what is in the terms or their substance, and we will not insert what has been omitted or omit what 1-2-101, has been inserted. Section MCA. *7 Marijuana is a Schedule I controlled substancе under 50-32- §
222(4)(t), MCA. It dangerous drug is considered a under 50-32- §§ 101(6), -202, MCA, generally and is illegal to distribute or possess, 45-9-101, pursuant -102, to selling, MCA. Distribution includes §§ bartering, exchanging, giving away, sell, offering barter, or to exchange, give away. 45-9-101(1), or Section MCA. The 2009 MMA provides exceptions illegality to the possession, of distribution and establishing certain privileges compliance for those in with its provisions. “caregiver” individual, years The 2009 MMA defines a as “an age agreed
of or older who has to undertake responsibility for managing well-being person respect of a with to the mеdical use marijuana. qualifying patient may only A caregiver any have one at 50-46-102(l)(a), “qualifying one time.” Section MCA. A patient or caregiver presumed is in engaged marijuana to be the medical use of if qualifying patient caregiver or is in possession registry of a 50-46-201(3)(a)(i), A registry MCA. Section
identification card.” identifies a by issued DPHHS that identification card is a document 50-46-102(9), Section caregiver. or a person qualifying patient as a card, caregiver is registry identification MCA. In order to obtain statement, caregiver qualifying for the sign a as the required to patient:
(i) marijuana only qualifying patients to agreeing provide to caregiver; as applicant have named the who (ii) registry ofthe identification acknowledging possession in the caregiver engage to use card does not allow other than marijuana paraphernalia purpose or to use for delivering, transferring, or cultivating, manufacturing, by marijuana qualifying patient. medical use transporting for added). 50-46-103(4)(a), (emphasis MCA unambiguous. clear and plain language We find the ofthis statute marijuana qualifying patients to caregiver provide A is authorized to provide not for the transfer of only. The 2009 does agents, nor caregiver among from to their paraphernalia to provision allowing is there a for a cultivate agents will not read or caregivers or for their or contractors. We specific into the We find that the provisions insert these statute. caregiver may marijuana only qualifying that a to provision provide specifically prohibits privileges and declarations that the patients stated, correctly Plaintiffs seek. As the District Court point impediment [T]he Court must out a serious to the relief seeking: arguments predicated All of Plaintiffs’ are Plaintiffs are ambiguous on the that the Act is assumption caregivers may may supply marijuana. whom not Were ambiguity, arguments, varying there such an Plaintiffs’ extents, However, might go long ways resolving toward it. no exists; rather, unambiguous ambiguity such the clear and language permits caregivers provide marijuana [the] Act “to only qualifying patients applicant who have named the 103(4)(a)(ii). caregiver.” languagе The intention this evinced straightforward. Entertaining engage is Plaintiffs’ invitation to interpretation necessarily turning further ofthe Act would entail eye may This the Court not explicit provisions. a blind to one ofits do. argue reading Plaintiffs that such a restrictive of the 2009 MMA performance impossibility,
renders under the MMA an initially acquire must their from some source be able *8 caregivers. and fulfill their duties as We order to commence cultivation engage expansive interpretation decline the in the of the invitation Plaintiffs, urged by simply unsupportable 2009 MMA аs it is under the plain language of the statute. Therefore, the of the District Court we affirm determination
¶29 permit exchange marijuana among the not does the it or manufacture caregivers, permit nor does to cultivate caregiver. for another
CONCLUSION foregoing, Based on the we affirm the Order of the District Court. MORRIS, RICE, JUSTICES NELSON and BAKER concur. NELSON, concurring. JUSTICE decision, I concur in the Court’s I correctly which believe resolves they
the issues as I presented argued appeal. were on write separately acknowledge proverbiаl elephant the room. just presently pending This case is one of several before this Court involving marijuana” Montana’s “medical laws. While issues of arisen, justiciability have question such as the mootness the Court today’s Opinion, addresses in parties largely these cases have seem, ignored-intentionally, it would in light colloquy between during argument Court and counsel oral in Mont. Cannabis Indus. 2012)-the State, Assn. v. DA (May No. 11-0460 more fundamental question whether it is even appropriate for this Court to render opinions interpreting laws that are essentially light unenforceable in of federal law. The courts of Montana do power advisory not have the to issue Helena,
opinions.
Bd.,
Plan
Inc. v.Helena Regl. Airport Auth.
2010 MT
355 Mont.
judicial
The “cases” and “controversies” *9 Plan opinion.” differences of do not include “abstract determine оmitted). (internal Helena, marks quotation 9¶ the 2004, No. 148 which created adopted In Montanans Initiative (2005). 50, 46, MCA The chapter Act.” See Title Marijuana “Medical Act, going 5 n. Opinion, tinkered the see Legislature ¶ has since entirely voter-approved scheme and scrap original so far as to the Act,” see Marijuana and “Montana replace improved it with a new Montana, 2011, 419; 50, chapter part MCA ch. Title Laws of (2011). to, zeal and Yet, impugning and without with due fiasco, fact of, continuing in this good everyone faith involved that marijuana legalize laws seek to conduct remains that the medical Act, 1242, 21 Controlled Substances 84 Stat. is violative federal prevail And it is axiomatic that federal laws over seq. U.S.C. 801 et § Const, (“This VI, Constitution, art. cl. 2 and contrary state laws. U.S. the United States which shall be made in Pursuance the Laws of made, thereof; made, under the and all Treaties or which shall be States, Land; Authority supreme of the United shall be the Law of the every thereby, any Thing in the Judges and the in State shall be bound any Contrary notwithstanding.”); or State to the Constitution Laws (2005) Raich, 2195, 2212 Gonzales v. 545 U.S. 125 S. Ct. (“[LJimiting activity marijuana possession and cultivation ‘in place respondents’ accordance with state law’cannot serve to activities beyond congressional Supremacy unambiguously reach. The Clause law, provides that if there is conflict between federal and state prevail.”). federal law shall maybe true, marijuana proponents argue, that It as some medical marijuana that
marijuana
drug,
is a safe and effective
should be
ridiculously
legalized,
high
people
that
there are
numbers of
offenses,
mаrijuana-related
people
incarcerated for
that
have the
illness,
“right”
use
to treat
and that there should be
marijuana growers
caregivers.
medical
and
But these issues are
rather,
Congress
is that
completely
point.
point,
beside the
has
decreed-rightly wrongly,
populace
or
the Montana
likes
whether
it or not-that
is a controlled substance and that
it is
grow, possess,
unlawful to
or distribute it.1
1 Marijuana
drug
high potential
I
is classified as a Schedule
because
its
abuse,
use,
any accepted safety
any accepted medical
and absence of
for use in
lack of
Gonzales,
(citing
medically supervised treatment.
executive take an “support, protect oath to and defend the Const, Ill, constitution of the United States ....” Mont. art. 3. The provides, among things, Constitution of the United States *10 “the Laws of the United States the supreme ... shall be Law of the Land; and the Judges every thereby, any Thing State shall be bound in the any Constitution or Laws State Contrary to the Const, added). notwithstanding.” VI, 2 (emphasis U.S. art. cl. This by duly Court is thus bound enacted federal Providing law. interpretations clearly contrary of Montana that are laws to federal they purport laws the conduct to make inis tension with our duty oath and Providing adhere to the federal laws. such interpretations is also in tension with the constitutional limitation on judicial power precluding rendering advisory us from opinions. For reasons, these I conclude that Montana’s courts should not-indeed required opinions cannot-be to issue concerning state medical marijuana laws that trumped by are federal by law are mooted Supremacy reason of the Clause.2 closing, In I note marijuana community-medical, that for the
commerciаl, and recreational-there is a solution to the problem. If the anti-marijuana paradigm changed, is to be it changed must be at the federal Congress level first. It is that has enacted federal laws making manufacture, distribution, possession a criminal and, process, any offense in the rendering Contrary” state laws “to the exception. 2 I note one Where the State has in fact commenced a civil or criminal proceeding defense, may provide in which one of Montana’s medical laws law, may and the defendant seeks dismissal or mounts a defense based on that it then necessary interpret specific he for this Court to the medical laws within this context. educating changing paradigm this will involve Obviously, superfluous. political concerted require is President3 and will Congress and whoever not to reelect legislators and supportive nationwide to elect efforts changing senators, opposed and executives who are representatives, marijuana paradigm. required should not be summary, In the courts of Montana that, trying interpret аnd finesse state laws devote more time Clause of ultimately, contrary Supremacy are to federal law and the noted, all, already judges in After the United States Constitution. the federal support, protect, oath to and defend Montana take an laws, in the anything and are federal laws Constitution bound issue, contrary notwithstanding. On this it is time we this State to doing started that. I concur. *11 Indeed, facts, acknowledge I this will be a herculean task. actual scientific
evidence, politics, big money, big Congress partisan typically and medical evidence fall on deaf ears in when business, Tobacco, Pharma, big religion sway-big big hold readily big Super being big examples PACs come to mind.