Marijuana Patient Support Group Files Amicus Brief
in a Montana Patient’s Appeal to State Supreme Court
(View the Amicus Brief here)

 
A statewide support group for Montana’s medical marijuana and pain patients has taken its first legal action by filing an “amicus” brief in a registered patient’s appeal to the Montana State Supreme Court.
 
Patients & Families United filed the brief in concert with the Montana Chapter of the American Civil Liberties Union. 
 
In State of Montana v. Tim Nelson, a state-approved, registered medical marijuana patient is appealing a lower court sentence which bars him from using medical marijuana during a three-year probation period, and orders him to use prescription Marinol instead.  The patient, Tim Nelson, who suffers from extreme chronic pain, was seriously injured in a truck accident 11 years ago and has since undergone four surgeries on his spine.
 
Montana’s Medical Marijuana Law, adopted by voter initiative in 2004, makes marijuana legal medicine under state law for any patient suffering from specified conditions and whose physician recommends it.  The law dictates that no medical marijuana patient “can be penalized in any manner or be denied any privilege… for the medical use of marijuana.”
 
An amicus brief the two groups filed with the Supreme Court contends that the lower court order to use Marinol rather than medical marijuana constitutes “practicing medicine without a license” and violates both the state’s Medical Marijuana Act and the patient’s fundamental right to follow his physician’s recommendations.
 
“The authority of the sentencing court does not extend to limiting medical procedures or medicine, nor could it,” the groups argue.  “ … [T]he court could not have sentenced Mr. Nelson to not have back surgery or not take another type of prescriptive drug or medicine.  The type of medicine used by Mr. Nelson must be determined by Mr. Nelson and his physician, and the court has no authority to interfere in that relationship.  Otherwise, the court is doing nothing more than practicing medicine without a license.”
 
The brief also notes that: “The district court was under the misapprehension, based upon inaccurate information provided by the prosecutor and the DOC [Department of Corrections], that the ‘pill’ form of marijuana would provide the same type of pain relief as ingesting a marijuana plant.
 
“…[B]ut the initiative was passed in great part because the prescriptive pill form of marijuana was not as effective as ingesting the marijuana plant,” the legal brief reports.  The brief includes copies of examples of news articles from 2004 showing that the medicinal merits of Marinol as compared to medical marijuana were a central feature of the campaign year’s debate on the initiative, constituting the legislative history of the question voters already decided.
 
Bob Meharg, a retired trauma nurse who is chairman of the board of directors of Patients & Families United, said the amicus filing is the group’s first formal involvement in court decisions relating to Montana’s compassionate medical marijuana law.
 
“This case is very important to all of us who worked hard to pass Initiative 148 in 2004,” he said, “because one of the most compelling reasons to legalize medical marijuana is that the whole natural marijuana flower offers medicinal benefits that no single synthetic chemical can.  Marinol contains an artificial compound which mimics only one of the more than 60 active cannibinoids contained in marijuana, but it is the combination of all of these cannibinoids that makes marijuana a ‘wonder drug’ for pain relief and numerous other medical needs,” Meharg reported.
 
“Voters already decided this issue, and we think the lower court was illegally ‘legislating from the bench’ in this case,” he emphasized.
 
He said that Patients & Families United hopes the state Supreme Court will overturn the lower court sentence, because “Tim Nelson has been sentenced to three years of constant pain, in violation of the medical marijuana law passed by Montana voters.”  He noted that Initiative 148 received 62% of the vote, a higher percentage than obtained by any statewide candidate that year, including President Bush and Governor Schweitzer.
 
Meharg said the patient-support group is funding its amicus via private donations to the Robin Prosser Memorial Patients’ Legal Defense Fund.   The fund was established to honor the legacy of Robin Prosser, Montana’s leading medical marijuana patient-activist, who took her own life last month as a result of law enforcement interference with her supply of medical marijuana.  More information on the defense fund is available at http://www.mtmjpatients.org/robin.html, a webpage that will soon be expanded to explain more about the kinds of legal problems the group plans to address, Meharg said.
 
Patients & Families United is a statewide group working to improve the lives and support the rights of medical marijuana patients, regardless of their medical condition, and pain patients, whether they use medical marijuana or not.  More information is available at: www.mtpatients.org.