Date: 03-21-2016

Case Style: Montana Cannabis et al. v. State Of Montana

Case Number: 2016 MT 44

Judge: Beth Baker

Court: IN THE SUPREME COURT OF THE STATE OF MONTANA

Plaintiff's Attorney: James H. Goetz, J. Devlan Geddes

Defendant's Attorney: Timothy C. Fox, J. Stuart Segrest, Matthew T, Cochenour

Description: This is the State’s second appeal from the First Judicial District Court’s
injunctions preventing implementation of certain provisions of the Act. Montana
Cannabis Industry Association v. State, 2012 MT 201, 366 Mont. 224, 286 P.3d 1161
(hereafter MCIA I). The Act repealed the 2004 Medical Marijuana Act (2004 Act)—
which was established by voter initiative (I-148)—and replaced it with a new statutory
framework. The Actcontains multiple provisions that limit both the eligibility of patients
to qualify for its protections and the activities of medical professionals and providers of
marijuana for medical purposes.
¶4 In the first case, the District Court preliminarily enjoined several of the Act’s
provisions, including: its ban on the commercial sale of medical marijuana; its ban on
provider advertising; its authorization of warrantless inspections; and the 25-patient
physician review trigger. In its first order, the court reasoned that those provisions
implicated Plaintiffs’ fundamental constitutional rights, triggering strict scrutiny analysis.
The State agreed to a preliminary injunction against several of the challenged provisions
pending consideration of the constitutional merits, but appealed the injunction against the
commercial ban on the ground that the District Court erred in applying strict scrutiny
analysis to the provisionsin the absence of an infringement on fundamental rights.
¶5 In MCIA I, we determined that the commercial ban did not implicate the
fundamental rights to employment, to health, or to privacy, and that Plaintiffs had no
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fundamental right to medical marijuana. Accordingly, we reversed and remanded the
case to the District Court to apply rational basis scrutiny. MCIA I, ¶ 35.
¶6 Following remand, Plaintiffs moved the District Court for a Temporary
Restraining Order, Preliminary Injunction and Order to Show Cause. On October 26,
2012, the District Court granted a Temporary Restraining Order and set a Preliminary
Injunction Hearing.1 At that hearing, Plaintiffs presented testimony from several
witnesses to support their contention that many medical marijuana users and providers
would suffer irreparable harm if certain provisions of the Act did not remain
preliminarily enjoined. Several witnesses who suffered from debilitating medical
conditions testified that they had very negative experiences with prescription drugs and
that medical marijuana was the only treatment that provided them effective relief from
their conditions. Providers of medical marijuana testified that without the injunction, it
would not be feasible for them to continue their medical marijuana businesses.
¶7 The State urged the District Court to deny the preliminary injunctionand to extend
the temporary restraining order for a period to allow the Legislature to consider further
amendments to the Act. To support its argument, the State referencedseveralabuses that
occurred under the 2004 Act and that were discussed during the June 2011 preliminary
injunction hearing. The State referenced telemedicine (the practice of some physicians to
certify patients without ever actually seeing the patient), traveling caravans, and a
disproportionate number of medical marijuana users in the “chronic pain category” who 1 The parties agreed that the District Court could consider testimony and evidence submitted at the June 2011 hearing on Plaintiffs’ previous motion for preliminary injunction.
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falsified or exaggerated their need for medical marijuana. The State also emphasized that
one-third of medical marijuana users were growing their own supply at that time.
¶8 Following the hearing, on January 16, 2013, the court issued an order maintaining
its preliminary injunction against the Act’s commercial prohibitions. The court
concluded that “[p]roperly registered and eligible cardholders will be injured or
irreparably harmed if the Court does not preserve the status quo... [because] cardholders
will be unable to grow their own medical marijuana or will be unable to obtain it from a
provider.” Thereafter, the parties filed cross-motions for summary judgment. The
District Court heard oral argument on the summary judgment motions on April 15, 2014.
¶9 On January 6, 2015, the District Court issued a Corrected Order on Motions for
Summary Judgment. In its decision, the court reviewed the commercial ban and the
25-patient review trigger for a rational basis, and concluded that both provisions were
invalid. The courtapplied strict scrutiny to the advertising prohibition,and enjoined it on
the basis that the prohibition impermissibly restricted content-based political and
educational speech. The District Court declined to enjoin the warrantless inspection
provision and the ban on access to medical marijuana by probationers. The court entered
its final judgment on January 8, 2015.
¶10 The State appeals the injunctions against the commercial ban, the 25-patient
physician review trigger, and the advertising ban. Plaintiffs cross-appeal the District
Court’s decision to uphold the warrantless inspection provision and the ban on
probationer use. This Court heard oral argument on November 4, 2015.
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STANDARDSOF REVIEW ¶11 We review summary judgment rulings de novo, applying the criteria set forth in
M. R. Civ. P. 56. Walters v. Flathead Concrete Prods., 2011 MT 45, ¶8, 359 Mont. 346,
249 P.3d 913. Summary judgment is appropriate when there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. Walters,
¶8. If there are no genuine issues of material fact, we review for correctness a district
court’s conclusion that the moving party is entitled to judgment as a matter of law.
Zinvest, LLC v. Hudgins, 2014 MT 201, ¶11, 376 Mont. 72, 330 P.3d 1135.
¶12 This Court exercises plenary review of constitutional issues. Big Sky Colony, Inc.
v. Mont. Dep’t of Labor and Indus., 2012 MT 320, ¶ 16, 368 Mont. 66, 291 P.3d 1231
(citation omitted). The constitutionality of a statute is presumed, “unless it conflicts with
the constitution, in the judgment of the court, beyond a reasonable doubt.” Powell v.
State Comp. Fund., 2000 MT 321, ¶13, 302 Mont. 518, 15 P.3d 877. If any doubt exists,
it must be resolved in favor of the statute. Powell, ¶ 13. The party challenging the
constitutionality of a statute bears the burden of proof. Big Sky Colony, ¶16.
DISCUSSION ¶13 We begin byacknowledgingthe proverbial“elephant in the room.” Marijuana is a
Schedule I Controlled Substance under the federal Controlled Substances Act, 21 U.S.C.
§ 812, under which its cultivation and distribution are illegal. 21 U.S.C. §§841(a)(1),
844(a). In this case, no challenge is brought to the Act on the ground that it is preempted
by federal law, U.S. Const. art. VI, cl. 2, and the State expressly disclaimed such a
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challenge during oral argument. In the face of action in numerous states to legalize
marijuana for medical or even recreational purposes,2 the United States Department of
Justice has issued guidance (discussed below) concerning enforcement priorities in an
apparent effort to minimize conflict with state actions while maintaining the primacy of
federal law. The Act is the Montana Legislature’s attempt to navigate shifting public
policy toward marijuana in the absence of Congressional action to resolve state and
federal differences.3 We are not called upon in this case to review the broad question of
Montana’s authority to act on the subject of medical marijuana. Rather, we address only
the question whether, having taken action on the subject, the Legislature’s means of
addressing this conflict are permissibleunder defined standards of constitutional analysis.
2 Alaska Stat. §§ 17.37.010 et seq. (medical), §§ 17.38.010 et seq. (recreational); Ariz. Rev. Stat. §§ 36-2801 et seq. (medical); Cal. Health & Safety Code §§11362.5 et seq. (medical); Colo. Rev. Stat. §§ 12-43.3-101 et seq. (medical), §§ 12-43.4-101 et seq. (recreational); Conn. Gen. Stat. §§ 21a-408 et seq. (medical); Del. Code Ann. tit. 16, §§ 4901Aet seq.(medical); D.C. Code §§ 7.1671.01 et seq. (medical); Haw. Rev. Stat. §§ 329-121 et seq. (medical); 410 Ill. Comp. Stat. Ann. 130/1 et seq. (medical); Me. Rev. Stat. tit. 22, §§ 2421 et seq. (medical); Md. Code Ann. Health-Gen §§ 13-3301 et seq. (medical); Mass. Ann. Laws ch. 94C, §§ Appx. 1 et seq. (medical); Mich. Comp. Laws Serv. §§ 333.26421 et seq. (medical); Minn. Stat. Ann. §§ 152.27 et seq. (medical); Nev. Rev. Stat. §§453A.___ [2015 ch. 401, § 29] et seq. (medical); N.H. Rev. Stat. Ann. §§ 126-X:2 et seq. (medical); N.J. Stat. Ann. §§ 24:6I-1 et seq. (medical); N.M. Stat. Ann. §§ 26-2B-1 et seq. (medical); N.Y. CLS Pub. Health Law §§ 1004.1 et seq. (medical); Or. Rev. Stat. §§ 475.300 et seq. (medical), Or. Rev. Stat. §§ ___.___ [2015 c.1, § 3] et seq. (recreational); R.I. Gen. Laws §§ 21-28.6-1 et seq. (medical); Vt. Stat. Ann. tit. 18 §§ 4472 et seq. (medical); Wash. Rev. Code §§ 69.51A et seq. (medical), Wash. Rev. Code §§ 69.50.360, 69.50.363, 69.50.66, 69.50.401 (recreational). 3 A number of bills have been introduced during recent Sessions of Congress, none of which have moved forward. E.g., Respect State Marijuana Laws Act of 2015, H.R. 1940, 114th Cong. (2015); States’ Medical Marijuana Property Rights Protection Act, H.R. 262, 114th Cong. (2015); Marijuana Businesses Access to Banking Act of 2015, H.R. 2076, 114th Cong. (2015). Respect State Marijuana Laws Act of 2013, H.R. 1523, 113th Cong. (2013); National Commission on Federal Marijuana Policy Act of 2013, H.R. 1635, 113th Cong. (2013); States’ Medical Marijuana Property Rights Protection Act, H.R. 6335, 112th Cong. (2012); States’ Medical Marijuana Patient Protection Act, H.R. 1983, 112th Cong. (2011).
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¶14 Plaintiffs allege denial of equal protection and due process rights under article II,
sections4 and 17 of the Montana Constitution. Plaintiffs bring theirconstitutional claims
as facial challenges to certain statutes within the Act. Analysis of a facial challenge to a
statute differs from that of an as-applied challenge. See e.g., State v. Whalen, 2013 MT
26, ¶¶ 20-22, 368 Mont. 354, 295 P.3d 105. In order to prevail on their facial challenges,
Plaintiffs must show that “no set of circumstances exists under which the [challenged
sections] would be valid, i.e., that the law is unconstitutional in all of its applications.”
Wash. State Grange v. Wash. State Republican Party, 552U.S. 442, 449, 128 S. Ct. 1184,
1190 (2008) (citing United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 2100
(1987)). See also In re Marriage of K.E.V., 267 Mont. 323, 336, 883 P.2d 1246, 1255
(1994) (Trieweiler, J., concurring and dissenting) (citation and internal quotation marks
omitted) (noting that “a facial challenge to a legislative act is of course the most difficult
challenge to mount successfully, since the challenger must establish that no
circumstances exist under which the act would be valid”).
Equal Protection
¶15 The principal purpose of the Montana Constitution’s Equal Protection Clause, art.
II, § 4, is to ensure that Montana’s citizens are not subject to arbitrary and discriminatory
state action. Powell, ¶ 16. When presented with an equal protection challenge, “we first
identify the classes involved and determine whether they are similarly situated.” Rohlfs
v. Klemenhagen, LLC, 2009 MT 440, ¶23, 354 Mont. 133, 227 P.3d 42. If we determine
that the challenged statute creates classes of similarly situated persons, we next decide
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whether the law treats the classes in an unequal manner. Caldwell v. MACo Worker’s
Comp. Trust, 2011 MT 162, ¶ 16, 361 Mont. 140, 256 P.3d 923. Thus, to state a
meritorious equal protection claim, Plaintiffs must demonstrate that “the state has
adopted a classification that affects two or more similarly situated groups in an unequal
manner.” Bustell v. AIG Claims Serv. Inc., 2004 MT 362, ¶ 20, 324 Mont. 478, 105 P.3d
286 (citing Powell, ¶ 22).
¶16 A law may create a classification even if the classification is not expressed “on the
face” of the statute. State v. Spina, 1999 MT 113, ¶ 85, 294 Mont. 367, 982 P.2d 421
(citing John E. Nowak, et al., Constitutional Law, 600 (2d ed. 1983)). “[A] law may
contain no classification, or a neutral classification, and be applied evenhandedly.
Nevertheless the law may be challenged as in reality constituting a device designed to
impose different burdens on different classes of persons.” Spina, ¶ 85 (citing Nowak,
supra,at 600). Plaintiffs argue that the Actcreatesdifferent classifications:
1. The class of persons with debilitating medical conditions: (a) some of whom have conditions for which marijuana is the single most effective medical treatment; (b) others who effectively may be treated with other pharmaceutical drugs.
2. Among those who are solely or optimally treated with marijuana: (a)those who have the physical ability and the means, including suitable space, to grow their own; (b) those who do not.
The District Court concluded that the Act “do[es] impose different burdens on different
classes of persons as described by [Plaintiffs] and, therefore, do[es] create a
classification.”
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¶17 We concluded in Caldwell that a statute denying rehabilitation benefits to
workers’ compensation claimants based on a claimant’s age-based eligibility for social
security benefits created two classes of similarly-situated claimants because it
distinguished by age between workers who had similar work-related injuries. Caldwell,
¶18. The statutes at issue here concern a group of persons who all suffer from a
debilitating medical condition but are distinguished by the manner in which they may
obtain relief. Some may be treated effectively with pharmaceutical drugs; for others,
marijuana is the sole or most effective treatment. The identifying factor that
distinguishes them is the method of treatment. As we recognized in MCIA I, the Act
regulates a person’s right to a particular treatment for his or her medical condition.
MCIAI, ¶ 24. We observed in Caldwell that whether the challenged statute creates a
discriminatory classification is informed by the statute’s purpose. Caldwell, ¶19. In
Caldwell, as in Reesor v. Montana. State Fund, 2004 MT 370, 325 Mont. 1, 103 P.3d
1019, age was “the only identifiable distinguishing factor between the two classes;” we
concluded in both cases that age was “unrelated to a person’s ability to engage in
meaningful employment.” Caldwell, ¶ 19; Reesor, ¶ 12. In contrast, we concluded in
Wilkes v. Montana State Fund, 2008 MT 29, 341 Mont. 292, 177 P.3d 483, that where
“actual wages” was the single distinguishing factor between workers’ compensation
claimants, that was a “fundamental distinction” between the two classes sufficient to
defeat similarity for purposes of the plaintiff’s equal protection claim. Wilkes, ¶ 20. We
reasoned that one stated purpose of the Workers’ Compensation Act was that “the
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wage-loss benefit should bear a reasonable relationship to actual wages lost as a result of
work-related injury or disease.” Wilkes, ¶ 26 (internal quotation marks omitted) (quoting
§ 39-71-105(1), MCA).
¶18 The reasoning in Wilkesapplies here. One stated purpose of the Act is to “provide
legal protections to persons with debilitating medical conditions who engage in the use of
marijuana to alleviate the symptoms of the debilitating medical condition.” Section
50-46-301(2)(a), MCA. There is no need for the Legislature to provide legal protections
to persons using prescribed pharmaceutical medication. “The distinguishing factor
between the two classes, [their use of medical marijuana], plainly relates to the
underlying justification of the statute.” Wilkes, ¶ 20. We conclude that the distinctions in
regulation of different substances for medical treatment does not create two legitimate
classes for an equal protection challenge because the single identifying factor—use of a
substance prohibited by federal law—is a fundamental difference that sufficiently
distinguishes the two classes to render them dissimilar.
Substantive Due Process
¶19 Although there is considerable overlap between an equal protection analysis and a
substantive due process analysis, “each Clause triggers a distinct inquiry.” Evitts v.
Lucey, 469 U.S. 387, 405, 105 S. Ct. 830, 841 (1985). Equal protection “emphasizes
disparity in treatment by a State between classes of individuals whose situations are
arguably indistinguishable,” while due process “emphasizes fairness between the State
and the individual dealing with the State, regardless of how other individuals in the same
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situation may be treated.” Evitts, 469 U.S. at 405, 105 S. Ct. at 841 (quoting Ross v.
Moffitt, 417 U.S. 600, 609, 94 S. Ct. 2437, 2443 (1974)). “For example, if a state
prohibited all persons from purchasing or using a certain drug or medicine, a challenge to
that law would be based on substantive due process.” 2Ronald D. Rotunda & John E.
Nowak, Treatise on Constitutional Law: Substance and Procedure § 15.4(a) at 824 (5th
ed. 2012). Because Plaintiffs essentially claim that the Act’s regulation of marijuana for
medical purposes “restrict[s] the freedom of all persons in society without a
constitutionally legitimate justification,” their challenges appropriately are analyzed
under the due process clause, Montana Constitution Article II, Section 17. Rotunda &
Nowak, supra, at 824.
¶20 Substantive due process also reflects a principle distinct from that protected by
procedural due process:
If an individual asserts that the government must provide him with some type of procedural safeguards before the government takes an interest from him, he must demonstrate that the interest constitutes life, liberty, or property....There is no need to define life, property or liberty for substantive due process analysis. . . . All laws might be said to restrict [an] individual’s use of property rights or personal liberty, in the sense of restricting which actions the individual can take in society. Laws regulating property or liberty that do not restrict the exercise of a fundamental right should be upheld unless the person attacking the law can overcome the presumption of constitutionality and demonstrate that the law is not rationally related to a legitimate interest.
Rotunda & Nowak, supra, § 15.5 at 847-48.
¶21 This Court analyzes substantive due process in the same fashion. Where a
fundamental right is not implicated, “[s]ubstantive due process analysis requires a test of
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the reasonableness of a statute in relation to the State’s power to enact legislation.”
Satterlee v. Lumberman’s Mut. Cas. Co., 2009 MT 368, ¶ 33, 353 Mont. 265, 222 P.3d
566 (internal quotation marks omitted) (quoting Powell, ¶ 29). “Since the State cannot
use its power to take an unreasonable, arbitrary or capricious action against an individual,
a statute enacted by the legislature must be reasonably related to a permissible legislative
objective in order to satisfy guarantees of substantive due process.” Satterlee, ¶ 33
(internal quotation marks omitted) (quoting Powell, ¶ 29). See Newville v. State Dep’t of
Family Servs., 267 Mont. 237, 249, 883 P.2d 793, 800 (1994). We analyze substantive
due process claims by examining (1)whether the legislation in question is related to a
legitimate governmental concern, and (2) whetherthe means chosen by the Legislature to
accomplish its objective are reasonably related to the result sought to be attained.
Walters, ¶ 18.
¶22 In determining whether the statute’s objective is legitimate, we examine the
legislation’s purpose, whether expressly stated or otherwise. Satterlee, ¶¶ 34, 37
(examining the purpose of worker’s compensation laws to determine whether they serve a
permissible legislative objective); Goble v. Mont. State Fund, 2014 MT 99, ¶ 41, 374
Mont. 453, 325 P.3d 1211 (examining the stated policy provisions of the worker’s
compensation system to determine whether it serves a legitimate governmental interest).
The legislation’s purpose “does not have to appear on the face of the legislation or in the
legislative history, but may be any possible purpose of which the court can conceive.”
14
Walters, ¶ 28 (internal quotation marks omitted) (quoting Satterlee, ¶ 34). See Kottel v.
State, 2002 MT 278, ¶55, 312 Mont. 387, 60 P.3d 403.
¶23 In this case, we need not surmise possible purposes for the legislation because the
Act makes explicit several purposes on its face. See Walters, ¶¶ 31-32; Goble, ¶ 41.
Section 50-46-301, MCA, provides that the purposes of the Act are to:
(a) provide legal protections to persons with debilitating medical conditions who engage in the use of marijuana to alleviate the symptoms of the debilitating medical condition;
(b)allow for the limited cultivation, manufacture, delivery, and possession of marijuana as permitted by this part by persons who obtain registry identification cards;
(c) allow individuals to assist a limited number of registered cardholders with the cultivation and manufacture of marijuana or marijuana-infused products;
(d)establish reporting requirements for production of marijuana and marijuana-infused products and inspection requirements for premises; and
(e) give local governments a role in establishing standards for the cultivation, manufacture, and use of marijuana that protect the public health, safety, and welfare of residents within their jurisdictions.
Section 50-46-301(2), MCA. In addition, the legislative history demonstrates that the
Act was enacted in response to the Legislature’s concern about a number of abuses that
occurred following passage of the 2004 Act. As we noted in MCIA I, the 2011 Act was
passed “in response to a drastic increase of caregivers and medical marijuana users.”
MCIA I,¶2. The goal of the Act, according to its sponsor, was “to repeal a system that is
obviously broken, cleanse the system out, and then restore the laws of the State of
Montana in a fashion that will recognize the intent of the Montana voters in 2004.”
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Hearing on SB 423 Before the S. Jud. Comm. 62nd Leg. Reg. Sess. 07:46-08:01 (Mont.
2011).
¶24 Plaintiffs argue that they produced evidence proving the Legislature’s premises to
be unfounded. They maintain that the District Court’s ruling correctly parsed the Act and
struck down provisions that were shown not to be needed to address the Act’s legitimate
objectives, while leaving intact other provisions that more effectively accomplished the
Act’s purposes. Citing Brewer v. Ski-Lift, 234 Mont. 109, 115, 762 P.2d 226, 230 (1988),
superseded by statute on other grounds as stated in Kopekin v. Moonlight Basin Mgmt.,
LLC, 981 F. Supp. 2d 936, 941 (Mont. 2013), Plaintiffs argue that the District Court
properly enjoined provisions of the Act that are “needlessly overbroad and go far beyond
the stated purposes of the statute.”
¶25 Brewer, however, says nothing about consideration of post-enactment evidence to
prove a statute’s basis irrational. In concluding that the statute at issue in that case lacked
a rational basis, this Court relied on the absence of reasons in the legislation to impose a
strict assumption of risk standard on skiers in contradiction to state comparative
negligence statutes that applied to other inherently dangerous activities. Brewer, 234
Mont. at 115, 762 P.2d at 230-31. W e applied well-established principles of
constitutional analysis: “‘The courts must reach and determine the question whether the
classifications drawn in a statute are reasonable in light of its purpose . . . .’” Brewer,
234 Mont. at 112, 762 P.2d at 229 (quoting Laurence H. Tribe, American Constitutional
Law, 1440 (2d ed. 1988)). Likewise, Plaintiffs’ reliance on Conant v. Walters, 309 F.3d
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629 (9th Cir. 2002), is misplaced because that case involved consideration of empirical
evidence to support an injunction, not a facial challenge to the constitutionality of a
statute.
¶26 As in Conant, the District Court properly considered the Plaintiffs’ evidence in the
context of their motions for preliminary injunctive relief. Section 27-19-201, MCA;
Citizens for Balanced Use v. Maurier, 2013 MT 166, ¶ 28, 370 Mont. 410, 303 P.3d 794
(noting that a district court must consider “the equities of all interests involved”). But in
the context of the constitutional analysis of the Act, “[o]ur role is not to second guess the
prudence of a legislative decision.” Satterlee, ¶ 34.
As with all legislative compromises, the [Act] is not infallible and the legislative decisions made in adopting the [Act] are subject to honest debate. Nevertheless, once a statute has been duly approved by the legislative branch, this Court’s role is not one of second guessing the prudence of the conclusions reached.
Satterlee, ¶ 37. Rational basis is the most deferential standard of review. See e.g.,
Bankers Life & Cas. Co. v. Crenshaw, 486 U.S. 71, 83, 108 S. Ct. 1645, 1653 (1988);
Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 314, 96 S. Ct. 2562, 2567 (1976). Under the
due process clause, “the law need not be in every respect logically consistent with its
aims to be constitutional.” Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483,
487-88, 75 S. Ct. 461, 464 (1955). In light of the Act’s stated purposes, unless Plaintiffs
establish that the statutes are unreasonable or arbitrary, the Legislature’s judgmentshould
not be disturbed. Walters, ¶ 18.
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¶27 As we noted in Walters, it may be “easy to opine that the Legislature could have
done better” in providing for available means of accessing treatment once it determined
to authorize marijuana use for certain medical conditions; the law, however, “requires us
to recognize that ‘such a debate involves issues and decisions about public policy that are
clearly of the sort much better suited to the halls of the legislature.’” Walters, ¶ 33
(quoting Satterlee, ¶ 38).
¶28 We conclude that the Act’s purposes serve a legitimate state interest. The
Legislature was highly cognizant of the fact that marijuana remains a Schedule I
controlled substance, illegal for all purposes, under federal law. 21 U.S.C. §§ 812, 841,
845. The Legislature also took notice of the United States Attorney General’s direction
to federal prosecutors that “[t]he prosecution of significant traffickers of illegal drugs,
including marijuana, and the disruption of illegal drug manufacturing and trafficking
networks continues to be a core priority in the Department’s efforts against narcotics and
dangerous drugs....” Memorandum from David W. Ogden, Deputy Attorney General,
U.S. Dep’t of Justice, to Selected United States Attorneys, Investigations and
Prosecutions in States Authorizing the Medical Use of Marijuana 1 (Oct. 19, 2009).
(hereafter “Ogden Memorandum”).4 The Attorney General issued a new directive in
August 2013 that refined and stated more clearly the objectives of particular importance
to the United States government. They include, among numerous others, “[p]reventing
4 Indeed, while the Act was under consideration, federal law enforcement agencies conducted raids on medical marijuana facilities in multiple Montana communities, and the United States commenced prosecution against numerous individuals involved in the operations.
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revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels;
[and] [p]reventing state-authorized marijuana activity from being used as a cover or
pretext for the trafficking of other illegal drugs or other illegal activity.” Memorandum
from James M. Cole, Deputy Attorney General, U.S. Dep’t of Justice, to All United
States Attorneys, Guidance Regarding Marijuana Enforcement, 1-2 (Aug. 29, 2013)
(hereafter “Cole Memorandum”). While Plaintiffs emphasize that the Ogden and Cole
Memoranda encourage federal prosecutors to decline prosecution of state-regulated
marijuana dispensaries in most circumstances, “it’s Congress that passes the laws,
Congress that saw fit to enact 21 U.S.C. § 841, and Congress that in § 841 made the
distribution of marijuana a federal crime.” Feinberg v. Comm’r of Internal Revenue, 808
F.3d 813, 816 (10th Cir. 2015). As such, there is no basis for concluding that informal
agency memoranda alter the U.S. government’s authority to enforce federal law.
Moreover, “[t]here’s always the possibility, too, that the next (or even the current)
Deputy Attorney General could displace th[o]se memoranda at anytime.” Feinberg, 808
F.3d at 816. After this case was argued, Plaintiffs called the Court’s attention to a recent
Congressional Appropriations Act that prohibits the Justice Department from spending
funds that would prevent states—including Montana—from implementing their own laws
authorizing the use, distribution, possession, or cultivation of medical marijuana.
Consolidated Appropriations Act, 2016, Pub. L. 114-113, § 542 Div. B, tit. V, 223
(2015). We take judicial notice of this action pursuant to M. R. Evid. 202(b). While the
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measure does evince developing attitudes in Congress, the substantive criminal
prohibitions in federal law remain intact.
¶29 The Legislature is presumed to be cognizant of guiding constitutional principles,
under which federal law “shall be the supreme Law of the Land; and the Judges in every
State shall be bound thereby, any Thing in the Constitution or Laws of any State to the
Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. The Legislature sought to resolve
prior abuses and to avoid entanglement with federal law while continuing to “provide
legal protections” to qualified persons who engage in the medical use of marijuana, and
to “allow individuals to assist a limited number” of qualified persons in obtaining
marijuana or marijuana-infused products. Section 50-46-301(2)(a), (c), MCA. The
careful regulation of access to an otherwise illegal substance for limited use by persons
for whom there is little or no other effective alternativeservesa legitimatestateobjective.
¶30 Having determined that the Act serves a legitimate objective, we proceed to
consider whether the statutes are reasonably related to achieving that objective. Powell,
¶29. A statute that is unreasonable, arbitrary, or capricious and bears no reasonable
relationship to a permissible government interest offends due process. Goble, ¶ 40. In
contrast, a statute that is neither unreasonable nor arbitrary “when balanced against the
purpose of the legislature in enacting the statute” does not offend due process. State v.
Egdorf, 2003 MT 264, ¶ 19, 317 Mont. 436, 77 P.3d 517. This deferential standard
demonstrates the Court’s recognition that we “have only the power to destroy, not to
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reconstruct.” Stratemeyer v. Lincoln Cnty., 259 Mont. 147, 153, 855 P.2d 506, 510
(1993)(internal quotation and citation omitted).
¶31 In economic regulation cases, there are “good reasons for judicial self-restraint if
not judicial deference to legislative judgment.” Stratemeyer, 259 Mont. at 152-53, 855
P.2d at 510 (internal quotation marks and citation omitted). “The legislature is simply in
a better position to develop the direction of economic regulation....” Stratemeyer, 259
Mont. at 153, 855 P.2d at 510. Because of this, we are “to assume that the Legislature
was in a position and had the power to pass upon the wisdom of the enactment.” Rohlfs,
¶ 31. “[W]e cannot strike down [a statute] as a violation of substantive due process
simply because we may not agree with the legislature’s policy decisions.” Satterlee,
¶34. “What a court may think as to the wisdom or expediency of the legislation is beside
the question and does not go to the constitutionality of a statute.” Rohlfs, ¶ 31.
Moreover, even if a court believes that statutes aimed at achieving the State’s interest
could have been implemented “with greater precision,” those statutes likely still will
withstand rational basis review because “rational distinctions may be made with
substantially less than mathematical exactitude.” Ward v. Johnson, 2012 MT 96, ¶ 23,
365 Mont. 19, 277 P.3d 1216(internal quotation marks omitted)(citing Burlington N. Ry.
v. Ford, 504 U.S. 648, 653, 112 S. Ct. 2184, 2187 (1992) (quoting New Orleans v. Dukes,
427 U.S. 297, 303, 96 S. Ct. 2513, 2517 (1976))).
¶32 This restraint on judicial interference with legislative policy judgments has added
significance here, because the Legislature took the unusual step in the Act of imposing
21
upon itself an obligation to continue examination of the issue and further consideration of
changes in light of the evolving nature of the issue. Section 50-46-343, MCA, provides:
[t]he children, families, health, and human services interim committee shall provide oversight of the department’s activities related to registering individuals pursuant to [the Act] and of issues related to the cultivation, manufacture, and use of marijuana....The committee shall identify issues likely to require future legislative attention and develop legislation to present to the next regular session of the legislature. ¶33 We turn now to the application of the foregoing standards to the specific statutesat
issue to determine whether they are “arbitrary or unreasonable,” or whether they instead
are “rationally related to the recognized legitimate government objectives of the Act.”
Walters, ¶ 34.
¶34 1. Whether the District Court erred in determining that the Act’s provision requiring the Department to notify the Board of Medical Examiners of any physician who certifies 25 or more patients in a year for medical marijuana (§ 50-46-303(10), MCA) fails rational basis review.
¶35 Under § 50-46-303(10)(a), MCA, the Department “shall provide the board of
medical examiners with the name of any physician who provides written certification for
25 or more patients within a 12-month period. The board of medical examiners shall
review the physician’s practices in order to determine whether the practices meet the
standard of care.” Section 50-46-303(10)(b), MCA, requires that, “[t]he physician whose
practices are under review shall pay the costs of the board’s review activities.” The
District Court preliminarily enjoined these provisions on stipulation of the parties; the
State withdrew from thatstipulation following MCIA I.
22
¶36 The District Court concluded that the 25-patient review trigger was not rationally
related to the Act’s goals. The court relied in part on testimony from Ian Marquand, who
appeared on behalf of the State Board of Medical Examiners. Marquand testified that
there had been almost no reported problems with medical marijuana certifications
following a standard of care directive issued by the Board in 2010 that disallowed
certification exclusively by telemedicine. The court also relied on testimony from Roy
Kemp, administrator of the Department’s medical marijuana registry program, who
testified that “he knew of no rationale justifying the 25-patient limit.” Marquand’s and
Kemp’s testimony, coupled with “the fact that this provision has never been in effect,”
led the District Court to conclude that the 25-patient review trigger “is not rationally
related—indeed not necessary at all—to the goals of the medical marijuana laws.”
¶37 The State argues that the District Court erred in its application of rational basis
standards because it considered circumstances regarding the lack of problems with
medical marijuana certifications following entry of the first preliminary injunction. The
State contends that the court instead should have considered the “flagrant abuses” that
were occurring in 2011, when the Legislature passed the Act. The State references
testimony before a legislative conference committee to argue that the Legislature
“realized that the abuse of the ‘chronic pain’ category was best controlled by increasing
physician accountability.” The State also emphasizes the testimony of Dr. Stowers, one
of the named plaintiffs, in the June 2011 preliminary injunction hearing. The State
contends that Dr. Stowers acknowledged “serious problems with doctor
23
recommendations under the old law.” The State asserts that the 25-patient review trigger
is rationally related to the Act’s goals because it creates a standard of care to ensure a
bona fide physician-patient relationship and then “ensur[es] the standard is being
followed by requiring review after a doctor certifies 25 or more patients in a year.”
¶38 We agree that the District Court incorrectly applied rational basis scrutiny to
conclude that the 25-patient review trigger is not rationally related to the Act’s goals.
The District Court based its conclusion on a finding that the 25-patient reviewtrigger was
“not necessary” to the goals of the medical marijuana laws. The question under rational
basis review, however, is not whether the provision is necessary, but whether the
provision is arbitrary or whether it has a “reasonable relation to some permitted end of
governmental action....” Powder River Cnty. v. State, 2002 MT 259, ¶ 79, 312 Mont.
198, 60 P.3d 357 (citations omitted). Although any limit the Legislature chooses may be
attacked as an arbitrary number, we conclude that a 25-patient review trigger is not
arbitrary in light of the statute’s objectives. The legislative history and testimony from
the June 2011 preliminary injunction hearing show that there indeed were problems with
over-certification under the 2004 Act. To address this problem, the Legislature created
an objective standard of care for marijuana certification—set forth in § 50-46-302(2)(c),
(18), MCA,—and the 25-patient review trigger. There is no arbitrary punishment for a
doctor who certifies 25 or more patients because the Board of Medical Examiners is not
required to suspend or otherwise take remedial action against the doctor under the statute.
24
Section 50-46-303(10)(a), MCA. Section 50-46-303(10)(a), MCA, requires only that the
board review the doctor’s practices to determine whether they meet the standard of care.
¶39 While a 25-patient review trigger may or may not be the most effective way to
prevent over-certification, it is beyond our purview to second-guess the “wisdom or
expediency of the legislation.” Rohlfs, ¶ 31. And while there may not be precise
statistical evidence that 25 patients isan ideal number tosignal potential abuses, “rational
distinctions may be made with substantially less than mathematical exactitude.” Ward,
¶23 (citations omitted). The review trigger also addresses the federal government’s
expectation for “strong and effective regulatory and enforcement systems that will
address the threat [that State marijuana laws] could pose to public safety, public health,
and other law enforcement interests.” Cole Memorandum at 2. While a different scheme
for preventing over-certification would have been permissible, the Legislature’s policy
choice in this instance is not constitutionally invalid. See Ward,¶24.
¶40 Finally, as noted above, the Legislature will continue to monitor its medical
marijuana restrictions and recommend changes where circumstances warrant. Section
50-46-343, MCA. The 25-patient review trigger has never been in effect. Therefore, if
the review provision turns out to be onerous or unworkable, the issue may be brought to
the Legislature for consideration.
¶41 Because the 25-patient review trigger is rationally related to the legitimate state
interest of carefully regulating the distribution of medical marijuana while allowing its
limited use for people with debilitating medical conditions, we hold that the District
25
Court erred in determining that the 25-patient review trigger failed rational basis review.
Accordingly, we vacate the District Court’s injunction against § 50-46-303(10), MCA,
and uphold that provision of the Act.
¶42 2. Whether the District Court erred in determining that the Act’s commercial prohibitions(§§50-46-308(3), (4), (6)(a),(b), MCA) fail rational basis review.
¶43 The District Court enjoined several provisions of the Act that prohibit commercial
trade in marijuana and marijuana products. The Act accomplishes its commercial
restraint through two primary mechanisms: a three-patient limit for providers of
marijuana products and a restriction against remuneration to providers. Section
50-46-308, MCA, provides:
(3)(a)(i) A provider or marijuana-infused products provider may assist a maximum of three registered cardholders.
(ii) A person who is registered as both a provider and a marijuana-infused products provider may assist no more than three registered cardholders.
(b) If the provider or marijuana-infused products provider is a registered cardholder, the provider or marijuana-infused products provider may assist a maximum of two registered cardholders other than the provider or marijuana-infused products provider.
(4) A provider or marijuana-infused products provider may accept reimbursement from a cardholder only for the provider’s application or renewal fee for a registry identification card issued under this section. . . .
(6) A provider or marijuana-infused products provider may not:
(a) accept anything of value, including monetary remuneration, for any services or products provided to a registered cardholder;
(b) buy or sell mature marijuana plants, seedlings, cuttings, clones, usable marijuana, or marijuana-infused products.
26
Sections 50-46-308(3), (4), (6)(a), (b), MCA. The District Court analyzed the preceding
sections as a whole, collectively referring to them as the “commercial provisions.” The
court concluded that Plaintiffs met their initial burden by showing that the sections
created distinct classes, and that the burden then shifted to the State to justify the
distinction. The court found that one of the Act’s purposes is to “afford access to
marijuana for persons with seriously debilitating conditions.” The court concluded that
the commercial prohibitions “work in opposition to the goals of the statutes and the
policy of the state” because the “compassionate purposes” of the statute are lost by the
prohibition. According to the District Court, no provider “has come forward willing to
invest the time, money, and labor to provide medical marijuana for free.” Therefore, the
court concluded that the commercial prohibitions make it nearly impossible for people
with the most serious debilitating conditions to get access to marijuana because the
prohibitions essentially require them to grow their own marijuana—which they often are
physically or financially unable to do. Based on these findings, the court held that there
was no rational basis for the Act’s commercial prohibitions.
¶44 The District Court also addressed one of the State’s justifications for the
commercial prohibitions—that marijuana is illegal under federal law. The court
concluded that federal illegality cannot be a justification for the commercial prohibitions
because the Act itself is “contrary” to federal law. To further support its conclusion, the
court emphasized that the State had not provided evidence to show that certain abuses,
prior to the Act’s passage, still existed. Based on this alleged lack of evidence, the court
27
concluded that the commercial prohibitions were irrelevant because “the medical
marijuana laws, as enjoined...have accomplished their purpose.”
¶45 The State argues that the commercial prohibitions “easily pass” rational basis
review for three reasons. First, the State claims that the court assumed an incorrect
purpose forthe Actbecause the explicit purpose of allowing “‘limited’ cultivation cannot
be read to include affording commercial access—certainly not under rational basis
review.” The State argues that the court inappropriately ruled on the “wisdom or
expediency of the legislation” rather than providing the State the benefit of the doubt and
assuming “any possible purpose” that may provide a legitimate interest. Second, the
State claims that the District Court erred in refusing to consider federal illegality as a
possible legitimate state interest for the commercial prohibitions. TheState asserts that it
has a legitimate interest in “lessening the conflict between a state law, its citizens, and
federal law,” and that “taking the money out” of medical marijuana means that the
federal government is less likely to get involved. Third, as discussed above, the State
argues that the District Court erred by considering changed circumstances or the effects
of the court’s preliminary injunctions. The State suggests that current circumstances
support prohibition in any event becausethe growing number of cardholders evidences an
increased potential for abuse.
¶46 Plaintiffs argue that the commercial prohibitions are an irrational response by the
State to “perceived abuses.” According to Plaintiffs, “the State cannot, on the one hand,
declare marijuana legally a medicine, but, on the other hand, arbitrarily discriminate as to
28
who may access it.” Plaintiffs contend that the State failed to provide “conceivable
justifications” for the three-patient limit in its response to Plaintiffs’ Interrogatories.
Plaintiffs respond to the State’s claimed justifications by arguing that: 1) selective
scattered sound bites from legislative debates do not support rational basis because they
are not authoritative and are “too general and not supported by evidence;” 2) according to
Marquand’s testimony, there have been no problems with traveling caravans, doctor
certification, and telemedicine since 2011; and 3) the federal ban is equivocal in that the
State cannot definitively say whether there truly is a danger of federal prosecution
because the U.S. Department of Justice, in the Ogden and Cole Memoranda, have “made
it clear it will not interfere with the states as long as the states carefully monitor their
laws.”
¶47 Our review of the commercial prohibitions focuses on whether they are rationally
related to the State’s legitimate interest in carefully regulating access to an otherwise
illegal substance for serious medical conditions. We analyze the three-patient limit
separately from the remuneration restrictions.
Three-Patient Limit:§ 50-46-308(3), MCA
¶48 The three-patient limit is rational so long as it is not a capricious or arbitrary
means of accomplishing the Act’s legitimate purpose. Powder River Cnty., ¶ 79. As
noted previously, the Act was passed “in response to a drastic increase of caregivers and
medical marijuana users.” MCIA I, ¶ 2. Because of this concern, one of the Act’s
explicit purposes is to “allow individuals to assist a limited number of registered
29
cardholders with the cultivation and manufacture of marijuana or marijuana-infused
products.” Section 50-46-301(c), MCA.
¶49 The Legislature determined that placing a limit on the number of registered
cardholders a provider may assist serves the objectives of keeping marijuana away from
large-scale manufacturing operations, making it less appealing to major traffickers. This
relates directly to the federal government’s goals of preventing marijuana sales revenue
from going to criminal enterprises and of keeping state-authorized marijuana activity
from being used as a cover for other drug trafficking. Plaintiffs conceded during oral
argument that, in light of these concerns, the State “probably could” set limits on the
number of cardholders a provider could assist. The Legislature conceivably could have
fixed a different number. But in the face of marijuana’s outright prohibition under
federal law, and the U.S. government’s avowed intention to investigate and prosecute
marijuana offenses where it finds “an important federal interest,” Cole Memorandum
at4, it is not irrational for the Legislature to put mechanisms in place to limit its
commercial profitability. Whether a limit of just three patients is the best or the most
effective means of achieving the State’s legitimate purpose is not for the Court to judge.
Rohlfs, ¶ 31. Furthermore, it is outside our authority to opine on what number—if not
three—would pass constitutional muster; “mathematical exactitude” is not required.
Ward, ¶ 23 (citations omitted). Finally, the Legislature has committed itself to reviewing
such matters if the three-patient limit proves unworkable. Section50-46-343, MCA.
30
¶50 Because the three-patient limit is reasonablyrelated to the legitimate governmental
concern of affording a means of treatment while avoiding large-scale commercial
marijuana production, we hold that the District Court erred in concluding that the
three-patient limit failsrational basis scrutiny. Walters, ¶ 18. Accordingly, we vacate the
District Court’s injunction against § 50-46-308(3) MCA, and we uphold this subsection
of the Act.
Remuneration Restrictions: § 50-46-303(4), (6)(a), (b), MCA
¶51 In analyzing the remuneration restrictions for due process concerns we consider
whether the restrictions bear a fair and substantial relation to the object of the legislation.
Powell, ¶ 29. The State asserts that the purpose of the remuneration restrictions is to
protect Montana from federal involvement by avoiding large-scale commercial marijuana
operations. According to the State, the remuneration restrictions are rationally related to
that goal.
¶52 Plaintiffs respond by pointing to Kemp’s testimony that if the three-patient limit
and the remuneration restrictions were implemented, “that alone would completely
disable it and invalidate the program.” While the initial choice to regulate is one for the
legislative branch, Plaintiffs argue, “the Act’s attempt to prohibit all commercial traffic is
completely out of proportion to any reasonable assessment of potential abuse.”
¶53 Legislative history indicates that the purpose of imposing restrictions against
financial compensation of providers was to “keep the money out” of the marijuana
business—presumably, to meet the federal government’s objectives of preventing
31
large-scale marijuana production operations that could serve as a front for other illegal
drug trafficking and could funnel revenues to cartels, gangs, and criminal enterprises.
While this is a legitimate objective, we must be able to ascertain a rational relationship
between a complete prohibition against financial compensation and the objectives the
Legislature sought to achieve. Walters, ¶ 18. We conclude that the remuneration
restrictions fail this inquiry.
¶54 We first observe that the Act does not prohibit physicians from being compensated
for their services or expenses when they examine a patient and provide written
certification for the patient’s medical use of marijuana products. In addition, the State
has not cited, and the Court has not found, any other service or product sanctioned by
state law that the Legislature has mandated be provided for free. Although the State
argues that the remuneration restrictions do effectively “keep the money out,” the
restrictions are at odds with the Legislature’s stated purpose of allowing the limited
possession and use of marijuana by persons with debilitating medical conditions in order
to alleviate their symptoms. Section 50-46-301(2)(a), (b), MCA. More, the restriction is
contrary to the purpose of keeping marijuana revenues out of the hands of criminals
because it drives the business of medical marijuana to the black market. The Act allows
marijuana to be used medically with approval by a physician. The complete prohibition
against compensation is invidious because medical marijuana, even when approved by a
physician,would have no commercially available source of supply.
32
¶55 Finally, this provision also implicates equal protection concerns. See Evitts, 469
U.S. at 405, 105 S. Ct. at 841; Ross, 417 U.S. at 609, 94 S. Ct. at 2443 (recognizing that
concerns of both clauses may be implicated in some cases and offer support for the
Court’s conclusions). “A classification is not reasonable if it . . . ‘imposes peculiar
disabilities upon [a] class of persons arbitrarily selected from a larger number of persons,
all of whom stand in the same relation to privileges conferred or disabilities imposed.’”
Kottel v. State, 2002 MT 278, ¶ 55, 312 Mont. 387, 60 P.3d 403 (quoting Leuthold v.
Brandjord, 100 Mont. 96, 105, 47 P.2d 41, 45 (1935)). To withstand rational basis
scrutiny, a legislative classification must rest upon a “real difference” and some
reasonable consideration of difference or policy. Powder River Cnty., ¶ 79. As between
all users of medical marijuana, the remuneration provision imposes a peculiar disability
upon those unable to provide for themselves. To prohibit all compensation arbitrarily
sets apart the patient who is unable to produce a medical marijuana product for her own
use; this is not encompassed within any of the Act’s legitimate objectives and is not
based on reasonable consideration of differences between people with debilitating
medical conditions.
¶56 Accordingly, we conclude that the absolute prohibition against remuneration is not
reasonable “when balanced against the purpose of the [L]egislature in enacting the
[Act].” Egdorf, ¶ 19. We uphold the District Court’s permanent injunction against the
remuneration restrictions, § 50-46-308(4), (6)(a), (b), MCA, and declare that those
33
provisions are invalid as violative of the equal protection and due process clauses of the
Montana Constitution.
¶57 3. Whether the District Court erred in applying strict scrutiny review to the Act’s provision prohibiting advertising by providers of medical marijuana (§ 50-46-341, MCA), thereby concluding that the provision unconstitutionally infringes free speech.
¶58 Applying strict scrutiny, the District Court determined that the advertising
prohibition violates the First Amendment. The court held that the provision restricts
content-based speech because it “renders the ‘playing field’ for discussion of pros and
cons of medical marijuana completely uneven.” Additionally, the District Court
concluded that the advertising prohibition is “so vague and overbroad as to be
meaningless as to what it prohibits,” because it leaves open the potential of banning
political speech as well. The court also concluded that the statute is too narrow in that it
limits only advertising by valid cardholders and because “[r]egulations which impose
speech restrictions on one group are seldom upheld.”
¶59 The State asserts that this Court should apply basic rules of statutory construction
to conclude thatthe statute unambiguously bars commercial speechonly, thus affording it
less protection. The State’s primary contention is that the District Court erred by
applying strict scrutiny to the advertising ban when it should have applied the four-part
commercial speech test set forth in Central Hudson Gas & Electric v. Public Service
Commission of New York, 447 U.S. 557, 100 S. Ct. 2343 (1980). Citing City of Great
Falls v. Morris, 2006 MT 93, ¶19, 332 Mont. 85, 134 P.3d 692, the State argues that the
34
court should have interpreted the statute narrowly in a way that avoids an
unconstitutional interpretation.
¶60 Plaintiffs argue that the advertising ban is overbroad and implicates both political
and educational speech. Plaintiffs therefore claim that the court was correct to apply
strict scrutiny instead of rational basis. Plaintiffs further argue thatthe government failed
to meet even a rational basis standard when it relied on an overly deferential
interpretation of the standard and failed to provide a M. R. Civ. P. 30(b)(6) witness or
otherevidence to justify the ban.
¶61 The U.S. Supreme Court has defined commercial speech as an “expression related
solely to the economic interests of the speaker and its audience.” Cent. Hudson, 447 U.S.
at 561, 100 S. Ct. at 2349. This definition, together with our well-established rules of
statutory interpretation, guides our determination of the speech that § 50-46-341, MCA,
prohibits.
¶62 In construing a statute, we are “to ascertain and declare what is in terms or in
substance contained therein, not to insert what has been omitted or to omit what has been
inserted.” Section 1-2-101, MCA. “Statutory language must be construed according to
its plain meaning and if the language is clear and unambiguous, no further interpretation
is required.” In re Adoption of Snyder, 2000 MT 61, ¶ 14, 299 Mont. 40, 996 P.2d 875.
“[W]e construe statutes narrowly to avoid an unconstitutional interpretation if possible.”
Farrier v. Teachers Ret. Bd., 2005 MT 229, ¶13, 328 Mont. 375, 120 P.3d 390.
35
¶63 Applying these rules of construction to § 50-46-341, MCA, we conclude that the
advertising ban prohibits onlycommercial speech. The statute provides: Advertising prohibited. Persons with valid registry identification cards may not advertise marijuana or marijuana-related products in any medium, including electronic media.
Section 50-46-341, MCA. Advertising is “[t]he action of drawing the public’s attention
to something to promote its sale.” Black’s Law Dictionary 65 (Bryan A. Garner ed.,
10thed. 2014). A product is “[s]omething that is distributed commercially for
useorconsumption....” Black’s Law Dictionary, supra, at 1402. These
commonly-understood terms the statute employs are not subject to multiple
interpretations. The plain language clearly and unambiguously establishes that the statute
is aimed solely at expression relating to the commercial sale of marijuana or marijuana
products for use or consumption. We would impermissibly “insert what has been
omitted” to hold that the statute implicates political speech or speech pertaining to
education or advocacy. Section 1-2-101, MCA.
¶64 “Commercial speech is accorded less constitutional protection than
noncommercial speech.” Mont. Media, Inc. v. Flathead Cnty., 2003 MT 23, ¶ 30, 314
Mont. 121, 63 P.3d 1129 (citing Metromedia Inc. v. City of San Diego, 453 U.S. 490,
506, 101S. Ct. 2882, 2891-92 (1981)). To determine the validity of a commercial speech
restriction, we apply the factors set forth in Central Hudson, which do not call for strict
scrutiny. Mont. Media, Inc., ¶31. The Central Hudson factors are: (1) the speech must
concern lawful activity and not be misleading; (2) the asserted government interest must
36
be substantial; (3) the regulation must directly advance the governmental interest
asserted; and (4) the regulation must not be more excessive than necessary to achieve its
purpose. Cent. Hudson,447 U.S. at 566, 100 S. Ct. at 2351.
¶65 Considering the first factor, it bears repeating that marijuana use or possession
unequivocally is an unlawful activity under federal law. 21 U.S.C. §§ 812, 841, 845;
MCIA I, ¶ 32. Federal law controls our First Amendment commercial speech analysis,
U.S. Const. amend. I; Mont. Media, ¶31, and Plaintiffs rely exclusively on federal law in
their argument on this issue. Congress has acted upon the subject of marijuana and made
it illegal. That aperson possesses or uses medical marijuana in compliance with the laws
of his or her state of residence provides no defense under the federal law. Gonzales v.
Raich, 545 U.S. 1, 29, 125 S. Ct. 2195, 2212-13 (2005). “[A]ny legislation of a State,
although in pursuance of an acknowledged power reserved to it, which conflicts with the
actual exercise of the power of Congress over the subject of commerce, must give way
before the supremacy of the national authority.” Smith v. Ala., 124 U.S. 465, 437,
8S. Ct. 564, 566 (1888); U.S. Const. art. I, § 8, cl. 3. While the states retain police
power to establish and enforce laws protecting the welfare, safety, and health of the
public, U.S. Const. amend. X, if Congress acts upon the same subject, “the laws of the
States, in so far as they cover the same field, are superseded, for necessarily that which is
not supreme must yield to that which is.” Second Emp’rs Liab. Cases, 223 U.S. 1, 55, 32
S. Ct. 169, 177(1912)(citations omitted).
37
¶66 Because federal law governs the analysis of this issue, we conclude that an activity
that is not permitted by federal law—even if permitted by state law—is not a “lawful
activity” within the meaning of Central Hudson’s first factor. As such,the advertisement
of marijuana is not speech that concerns lawful activity. There is no First Amendment
violation and our analysis under Central Hudsontherefore ends here.
¶67 Section 50-46-341, MCA, limits only commercial speech. The District Court
accordingly erred in applying strict scrutiny instead of the Central Hudson test. Section
50-46-341, MCA, does not satisfy the first factor under Central Hudson, and thus does
not unconstitutionally infringe on First Amendment free speech rights. Accordingly, we
vacate the District Court’s injunction against§ 50-46-341,MCA, and uphold the statute.
¶68 4. Whether the District Court erred in determining that the Act’s provision prohibiting probationers from becoming registered cardholders for medical marijuana use (§ 50-46-307(4), MCA) withstands a facial challenge underrational basis scrutiny.
¶69 Section 50-46-307(4), MCA, prohibits probationers from becoming registered
cardholders for medical marijuana: “A person may not be a registered cardholder if the
person is in the custody of or under the supervision of the department of corrections or
youth court.” Section 50-46-307(4), MCA.
¶70 The District Court upheld § 50-46-307(4), MCA, because it was “able to perceive
a substantial rational basis for th[e] provision.” The court noted that probationers
“routinely have several limitations on their activities and rights.” While the court agreed
with Plaintiffs’ argument that criminal sentences should have a “nexus with the
underlying offense,” the court ultimately concluded that determining such a nexus
38
requires case-by-case consideration, which “raises genuine issues of material fact beyond
the ability of thisCourt to determine on a motion forsummary judgment.”
¶71 The State defends the District Court’s ruling, suggesting that Plaintiffs must bring
any challenge to § 50-46-307(4), MCA, as applied to a particular case, rather than as a
facial challenge, because there are “clearly circumstances in which the prohibition is
constitutional.”
¶72 Plaintiffs contend that the “blanket prohibition” on probationers receiving medical
marijuana is facially invalid because “the law, on its face, classifies persons for different
treatment.” Plaintiffs maintainthat §50-46-307(4), MCA,undermines the purpose of the
Act—to provide access to medical marijuana for those with debilitating medical
conditions. Plaintiffs point out that under State v. Ashby, 2008 MT 83, 342 Mont. 187,
179 P.3d 1164, a sentencing court may, on a case-by-case basis, impose reasonable
conditions on sentences so long as the conditions have “a nexus” either to the offense or
to the offender. Ashby, ¶15. This case-by-case analysis, Plaintiffs suggest,is impossible
under the current statute because the ban prohibits medical marijuana in all cases for
probationers. Plaintiffs argue that the “complete ban on probationers’ use” should be
declared unconstitutional, and that a sentencing court should consider on a case-by-case
basis whether to allow marijuana use by an offender serving a suspended or deferred
sentence, just as sentencing courts consider other appropriate conditions based on the
characteristics of the offender and of the offense committed.
39
¶73 We agree with the District Court. As noted above, a facial challenge may succeed
only if the challenger can establish that “no set of circumstances exists under which the
[challenged legislation] would be valid.” Salerno, 481 U.S. at 745, 107 S. Ct. at 2100.
That the challenged provision “might operate unconstitutionally under some conceivable
set of circumstances is insufficient to render it wholly invalid....” Salerno, 481 U.S. at
745, 107 S. Ct. at 2100. Although Plaintiffs mount a facial challenge to the ban on
probationer use, they recognize that a sentencing court is authorized by law to impose
reasonable conditions on a sentence that the sentencing judge “considers necessary to
obtain the objectives of rehabilitation and the protection of the victim and society.”
Section 46-18-202(1), MCA. Whether a condition or restriction of a sentence bears the
requisite “nexus” to the offender or to the underlying offense is a question of compliance
with sentencing statutes. Ashby, ¶¶ 13-15. If, in a particular case, a district court imposes
a sentence prohibiting medical marijuana use but the required nexus is not satisfied, an
offender may be able to bring a claim that, as applied to that offender and to his or her
sentence, § 50-46-307(4), MCA, is unconstitutional. Plaintiffs acknowledge that a
sentencing court would have discretion, in particular cases, to prohibit an offender from
using or possessing medical marijuana. In light of this concession, Plaintiffs cannot
argue that the ban on probationer use is invalid under any conceivable set of
circumstances. As such, § 50-46-307(4), MCA, is not facially invalid. We affirm the
District Court’s ruling upholding the provision prohibiting probationers from becoming
registered cardholders for medical marijuana use.
40
¶74 5. Whether the District Court erred in determining that the Act’s provision allowing warrantless inspections of medical marijuana providers’ businesses by the Department and law enforcement agencies (§ 50-46-329, MCA) comports with the U.S. and Montana Constitutions’ guarantees against unreasonable searches.
¶75 The Act allows law enforcement agencies to inspect a provider’s premises during
normal business hourswithout a warrant. Section50-46-329, MCA,provides: Inspection procedures. (1) The department and state or local law enforcement agencies may conduct unannounced inspections of registered premises.
(2)(a) Each provider and marijuana-infused products provider shall keep a complete set of records necessary to show all transactions with registered cardholders. The records must be open for inspection by the department and state or local law enforcement agencies during normal business hours. (b) The department may require a provider or marijuana-infused products provider to furnish information that the department considers necessary for the proper administration of this part.
(3)(a) A registered premises, including any places of storage, where marijuana is cultivated, manufactured, or stored is subject to entry by the department or state or local law enforcement agencies for the purpose of inspection or investigation during normal business hours. (b)If any part of the registered premises consists of a locked area, the provider or marijuana-infused products provider shall make the area available for inspection without delay upon request of the department or state or local law enforcement officials.
(4)A provider or marijuana-infused products provider shall maintain records showing the names and registry identification numbers of registered cardholders to whom mature plants, seedlings, usable marijuana, or marijuana-infused products were transferred and the quantities transferred to each cardholder.
¶76 In upholding this provision, the District Court relied on New York v. Burger, 482
U.S. 691, 107 S. Ct. 2636 (1987). In Burger, the U.S. Supreme Court established a rule
that administrative or regulatory inspections of “closely regulated” industries can
41
constitute an exception to the warrant requirement even if the inspections are conducted
by law enforcement officials to uncover and use evidence of criminal behavior. Burger,
482 U.S. at 703-11, 107 S. Ct. at 2646-48. The District Court concluded that the
marijuana industry is a closely regulated industry. The court emphasized that
“possession and use of marijuana remains a crime under federal law,”and that the “entire
issue of marijuana use and possession generally has significant criminal overtones.”
Moreover, the court concluded that § 50-46-329, MCA, “carefully defin[ed]” the
premises subject to inspection, thereby avoiding concerns that inspections might be too
broad or intrusive.
¶77 Plaintiffs contend that the court’s “lock-step adherence” to Burger is incorrect
because 1) the search provisions relate to law enforcement functions rather than to
administrative searches, and 2) Montana’s privacy rights are much stronger than those
implicitly found under the United States Constitution. Relying on federal law, Plaintiffs
argue that the authorization for warrantless inspections is unconstitutional because there
are “no administrative regulations concerning specific neutral criteria governing
warrantless searches under the Act.” According to Plaintiffs, the lack of a regulatory
scheme makes it “abundantly clear that the so-called ‘inspection’ procedures of the Act
are for the sole purpose of allowing law enforcement officers to develop evidence for
enforcement of criminal laws.” Additionally, given Montana’s explicit privacy
expectation, Plaintiffs argue that the State must have a compelling reason to invade
someone’s privacy and that it has demonstrated none. Plaintiffs assert that the State
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“failed to provide a meaningful answer and refused to produce a [M. R. Civ. P.] 30(b)(6)
witness”when Plaintiffsquestionedthe inspections’purposesin pre-trial discovery.
¶78 Plaintiffs’ argument that marijuana is not a heavily regulated industry in Montana
because there are “no regulations...applying to growing operations or establishing
inspection procedures for medical marijuana dispensaries” overlooks that the provision
has been the subject of this litigation since its enactment. Thus, there has been no
opportunity for its full implementation. Further, Plaintiffs acknowledge that marijuana is
classified as a Schedule I drug—the most strictly regulated classification under the
Controlled Substances Act. 21 U.S.C. § 812(c). “Schedule I drugs are categorized as
such because of their high potential for abuse, lack of any accepted medical use, and
absence of any accepted safety for use in medically supervised treatment.” Gonzales,
545U.S. at14, 125 S. Ct. at 2204.
¶79 Plaintiffs’ argument that the production of medical marijuana is not a closely
regulated industry is in disaccord with their argument that many provisions of the Act are
overly restrictive. By design, the Act distinguishes medical marijuana from other
substances for which a prescription may be obtained and filled under an existing set of
laws and regulations comprehensively controlling the sale and dispensing of lawful
medications. Because marijuana cannot be prescribed within that regulatory framework,
the Legislature imposed instead a series of restrictions to curb widespread distribution
and to limit possession of the substance to individuals with debilitating medical
conditions for whom there is little or no other effective treatment. Marijuana’s status as a
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strictly prohibited drug under federal law required the Legislature to devise a substitute
method of regulation.
¶80 Although Plaintiffs eschew “lock-step adherence” to federal law, they do not
develop their argument that the result would be different under a Montana constitutional
privacy analysis, except to fault the State for failing “to produce a 30(b)(6) witness” to
establish a compelling state interest as required by Montana Constitution Article II,
Section 10. Plaintiffs cite no authority that this determination requires an evidentiary
foundation.
¶81 Rather, to determine what constitutes an unlawful intrusion by the government
into one’s privacy, the Court considers the following factors: (1) whether the person has
an actual expectation of privacy; (2) whether society is willing to recognize that
expectation as objectively reasonable; and (3) the nature of the state’s intrusion. State v.
Therriault, 2000 MT 286, ¶ 33, 302 Mont. 189, 14 P.3d 444. While individuals may
have an actual expectation of privacy from warrantless searches, an expectation that a
provider’s marijuana production and distribution facilities are entitled to the same privacy
protections is not one that society is willing to recognize as objectively reasonable.
Indeed, it is reasonable for owners of registered premises where marijuana—a uniquely
regulated substance—is cultivated, manufactured, or stored to expect those premises to
be subject to inspection during normal business hours to satisfy the State’s legitimate
regulatory interests.
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¶82 Plaintiffs’ argument that the primary reason for the procedures under § 50-46-329,
MCA, “is to allow for evidentiary searches for criminal enforcement purposes” is not
only unsubstantiated, but also inappropriate for a facial challenge. Without any
supporting evidence, Plaintiffs conclude that because Montana has no regulatory scheme
regarding grow operations, “it is abundantly clear that the so-called ‘inspection’
procedures of the Act are for the sole purpose of allowing law enforcement officers to
develop evidence for enforcement of criminal laws.” This conclusory assertion does not
support a holding that the inspection procedures are facially invalid. Section 50-46-329,
MCA, on its face addresses only the regulatory aspects of the medical marijuana industry,
not the enforcement of criminal laws. If issues arise with a warrantlessinspection against
a particular facility, then it may beappropriate to challenge the statute “as applied” to that
business. We conclude that Plaintiffs have failed to establish that “no set of
circumstances exists under which the [challenged legislation] would be valid.” Salerno,
481 U.S. at 745, 107 S. Ct. at 2100. The District Court did not err in declining to enjoin
§50-46-329, MCA, and we affirm its ruling on this point.

Outcome: For the reasons stated above, the District Court’s judgment is affirmed in part and reversed in part. We vacate the District Court’s injunctions against the 25-patient physician review provision (§ 50-46-303(10), MCA), the three-patient limit (§50-46-308(3), MCA), andthe advertising prohibition (§ 50-46-341, MCA), and uphold the constitutionality of those provisions; we declare the remuneration restrictions (§50-46-308(4), (6)(a), (b), MCA), to be unconstitutional under the equal protection and due process clauses of the Montana Constitution and permanently enjoin the enforcement of those provisions; and we affirm the District Court in upholding the constitutional validity of the provision prohibiting probationers from becoming registered cardholders
for medical marijuana use (§ 50-46-307(4), MCA), and the provision allowing
warrantless inspections of medical marijuana providers’ businesses by the Department and law enforcement agencies

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