When Losing Means Winning: The Montana Medical Marijuana Initiative [FEATURE]

Last year wasn't a good year for medical marijuana in Montana. Between the federal raids in the spring of 2011 and the Republican-dominated legislature's efforts first to repeal the voter-approved 2004 medical marijuana law, which was vetoed by Gov. Brian Schweitzer (D), and then to gut it with Senate Bill 423, which Schweitzer reluctantly allowed to become law, the state's medical marijuana industry has been practically decimated.

But although 2012 is nearly over, Big Sky County medical marijuana supporters are hoping this year will end up differently. That's because they have an initiated referendum on the ballot, IR-124, that would undo the legislature's passage of Senate Bill 423 and restore the status quo ante.

From an initiative organizer's standpoint, IR-124 has some interesting attributes. First, the medical marijuana people behind IR-124 want it to be defeated. A "no" vote on the initiative is a vote against Senate Bill 423, and the conventional wisdom on initiatives is that voters who are uncertain on an issue vote "no." Second, Montanans who oppose the free-wheeling medical marijuana system that was in place prior to Senate Bill 423 may well be confused by the fact that IR-124 is being run by medical marijuana supporters and vote "no" mistakenly thinking they are voting against medical marijuana.

"Our opponents have accused us of muddying the water, but it wasn't a strategic ploy; it's just a thumbs up or thumbs down on the current law," said Chris Lindsay of the Montana Cannabis Industry Association, which is fighting SB 423 in the courts as well as supporting IR-124.

There hasn't been a lot of polling on IR-124, but what there is suggests repeal of SB 423 could well be within reach. There has been no scientific polling this month, but two September polls, one from Mason-Dixon and one from Public Policy Polling, had IR-124 losing with 44% and 46% of the vote, respectively. And that's just what Patients for Reform -- Not Repeal, the primary group behind the campaign, wants.

"We're urging voters to vote 'no' on IR-124, because it is a slap in the face to voters as well as cruel and harmful to the seriously sick patients Montanans sought to help," said Bob Brigham, campaign manager for the group. "The legislature should have fixed the medical marijuana program, not broken it completely with a 'repeal and destroy' law," he explained. "With the federal government also punishing patients and providers and even threatening their gun rights, it is vitally important that Montana voters stand solidly for their own rights."

But while the polls had IR-124 losing, campaign proponents aren't feeling comfortable. Those same polls showed only around 30% of voters committed to voting "no," with about 25% of voters undecided. While undecided voters typically break towards a "no" vote on initiatives, Patients for Reform -- Not Repeal is going to have to win about four out of five of those undecided voters to undo SB 423.

The campaign is counting on Montana voters to reject the legislature's interference with the voter-approved 2004 initiative that established the state's medical marijuana program, Brigham said.

"We're calling attention to the fact that this is an issue that revolves around voter rights and the will of the people," he said. "Rather than work on consensus proposals for strict regulation, all the legislature wanted to do was repeal the law voters had adopted -- and they did it twice. Senate Bill 423 was written deliberately to accomplish complete repeal. The tragedy is that the very patients Montanans care about, the sickest among us, are now suffering unnecessarily and unfairly as a result," Brigham concluded.

Under the 2004 law, and especially after the Obama administration took office and signaled it would not target medical marijuana patients and providers, the Montana medical marijuana scene took off, with dispensaries and multi-patient grow operations sprouting up and some entrepreneurs pushing the limits of public acceptance by pulling stunts like taking recommendation-writing caravans across the state and publicly smoking marijuana.

The legislature's attempted outright repeal, followed by SB 423, was in part in a response to the perceived excesses of the program. But SB 423 pretty much wiped out everything except patients growing their own. It limited growers to three patients each, prohibited providers from being compensated, gave local governments the ability to ban dispensaries, tightened standards for demonstrating chronic pain, and required doctors who recommended marijuana for more than 25 patients in a year to undergo reviews at their own expense.

The Montana Cannabis Industry Association has been fighting SB 423 in the state courts, but in August, the state Supreme Court overturned a lower court injunction blocking most of its provisions from taking effect. Now the high court is set to rule on a final appeal from the group any time now. Lindsay said Tuesday morning he hoped the election would come before the court rules.

"The moment the Supreme Court is done, we expect that 5,500 Montana patients will be told they no longer have a provider and they will have to find a new one, which is unlikely, or grow their own," he said. "We're hoping we get to the election first, because a victory there would render moot what the Supreme Court is considering."

That didn't happen. Tuesday afternoon, the state Supreme Court ruled against the Montana Cannabis Industries Association.

"We expect the Department of Health and Human Services to start sending letters out to 5,500 patients saying they no longer have a provider," Lindsay said in a late afternoon call to the Chronicle breaking the news.

While the late ruling hurts patients, it may prove a boon to the "no" campaign. Now, patients and providers who may have thought that life under SB 423 would not be so bad are being confronted with the reality of its actual implementation.

It will probably also make life tougher for supporters of SB 423. Although there isn't a lot of organized support for the law, it does have cheerleaders among the Republican legislators who passed it and among social conservative groups like the Billings-based Safe Communities, Safe Kids.

But Safe Communities, Safe Kids doesn't have money for much of an advertising campaign and is relying on local radio and TV talk show appearances to get its message out. It also tried holding a press conference last week to attack state Attorney General Steve Bullock over the ballot language, but that didn't work out too well for the church ladies.

"You're trying to pull a political stunt using a mechanism that is not set up for this purpose," said Jim Molloy, an assistant attorney general to Bullock, who crashed the press conference and noted that the ballot language had been vetted and settled on two months ago. The threat to file a late complaint was "nothing more than political theater," he said.

"We didn't realize it was going to be such a big problem until the ballots came out," the group's Cherie Brady tried to explain. She said after absentee ballots came out on October 9, her group began getting calls from voters unsure of how to fill out their ballots.

While foes of medical marijuana are reduced to morning talk shows and exploding press conferences, Patients for Reform -- Not Repeal is running limited radio and TV ads urging a "no" vote. It is also preparing a final push to get voters to the polls on election day.

"It's an exciting campaign," said Lindsay. "We've got a lot of momentum behind trying to repeal the law. We're hoping for the best."