Appeals court rules 2011 raids constitutional

HELENA — A panel of appellate judges has upheld as constitutional the 2011 federal raids on Montana medical marijuana businesses, warehouses and homes that pot providers claimed violated their right to operate under state law.

The three-judge 9th U.S. Circuit Court of Appeals panel on May 15 affirmed U.S. District Judge Donald Molloy's dismissal of the lawsuit brought by 14 medical marijuana providers and associations.

The appellate judges agreed with Molloy that the federal government did not overstep its authority when it executed more than 26 search warrants across the state in March 2011 as part of a drug-trafficking investigation.

The plaintiffs claim they were operating under a voter-approved Montana medical marijuana law and the government interfered with the rights and powers given to the states by the Constitution's 10th Amendment.

Molloy ruled that state law does not shield medical marijuana providers from federal prosecution. He cited a 2005 U.S. Supreme Court decision that said the Constitution's supremacy clause applies in medical marijuana cases.

The supremacy clause says that federal law prevails if there is any conflict between state and federal statutes.

The appellate panel agreed there was no violation of the 10th Amendment, and it also dismissed the providers' argument they have a fundamental right to cultivate marijuana for medical purposes.

New Mexico attorney Paul Livingston, who represented the plaintiffs, said Friday the 2005 Supreme Court decision cited by Molloy and the 9th Circuit panel should be re-examined. Today, there is a much broader acceptance of medical marijuana across the nation and voters have legalized the recreational use of marijuana in Washington state and Colorado, he said.

Livingston is considering an appeal to the full 9th Circuit court and the U.S. Supreme Court, but says he needs more support from medical marijuana advocates. Up to this point, interest in the case has been lacking, he said.

"None of that is of any significance if nobody cares about this case," he said of the appeals.

The Montana Cannabis Information Association, which filed a friend-of-the-court brief in the case, has previously said it is reluctant to become more involved because all of its resources are going to a state court challenge of a 2011 Montana law restricting how medical marijuana is distributed.

The U.S. Attorney's Office earlier this month wrapped up its final prosecution from the drug-trafficking investigation. The probe has resulted in 33 provider convictions and the dwindling of a once-booming medical marijuana industry.

Five of the individual plaintiffs were convicted in the probe.

Thousands of medical pot providers have gone out of business since the raids, and a state health department survey shows the number of registered users have fallen to less than a quarter of their 2011 numbers.