DA 11-0475

IN THE SUPREME COURT OF THE STATE OF MONTANA

2012 MT 146

MEDICAL MARIJUANA GROWERS

ASSOCIATION, INC.; COURIER 1;

COURIER 2; CAREGIVER 1; CAREGIVER

2; AND CAREGIVER 3,

 Plaintiffs and Appellants,

 v.

ED CORRIGAN, COUNTY ATTORNEY

FOR THE COUNTY OF FLATHEAD,

 Defendant and Appellee.

APPEAL FROM: District Court of the Eleventh Judicial District,

In and For the County of Flathead, Cause No. DV-11-338(C)

Honorable Stewart E. Stadler, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Timothy Baldwin, Baldwin Law Offices, PA, Kalispell, Montana

For Appellee:

Steve Bullock, Montana Attorney General, Tammy K Plubell, Assistant

Attorney General, Helena, Montana

Ed Corrigan, Flathead County Attorney, Tara Fugina, Deputy County

Attorney, Kalispell, Montana

Submitted on Briefs: May 9, 2012

 Decided: July 6, 2012

July 6 2012
2

Filed:

__________________________________________

Clerk
3

Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 The Medical Marijuana Growers Association, Inc., Courier 1, Courier 2, Caregiver 

1, Caregiver 2, and Caregiver 3 (collectively referred to as Plaintiffs) appeal from the 

Order and Rationale on Defendant’s Motion for Summary Judgment (Order), entered by 

the Eleventh Judicial District Court of Flathead County, Montana. The Order determined 

that caregivers, as providers of medical marijuana to qualifying patients under Montana’s 

2009 Medical Marijuana Act, were not permitted to engage in marijuana transactions 

with or provide cultivation services to other caregivers or their agents or contractors. 

¶2 We affirm. 

ISSUES

¶3 Plaintiffs raise two issues on appeal. We restate the issues as follows: 

¶4 Does Montana’s 2009 Medical Marijuana Act authorize caregivers to either 

exchange marijuana for purposes of supplying qualified patients with medical marijuana,

or provide cultivation services to other caregivers for purposes of supplying qualified 

patients with medical marijuana? 

FACTUAL AND PROCEDURAL BACKGROUND

¶5 Montana’s Medical Marijuana Act (MMA), approved when voters passed the 

ballot initiative I-148 on November 2, 2004, allowed for the limited use of medical 

marijuana. The MMA was codified in §§ 50-46-101 to -210, MCA (2005).1 Under the 

 

1

 The MMA was amended in 2009 and again in 2011. The 2009 version of the MMA is the 

subject of Plaintiffs’ appeal. Unless otherwise specified, all code references in this Opinion are 

to the 2009 Montana Code Annotated. 
4

2009 statute, which was in effect at the time the alleged offenses took place, a “qualifying 

patient”—one with a “debilitating medical condition” and registered with the Department 

of Public Health and Human Services (DPHHS)—was allowed the limited use of 

marijuana to alleviate the symptoms or effects of the condition. Section 50-46-102(3), 

(5)(a), (8), (9), MCA. 

¶6 Under § 50-46-102(1)(a), MCA, each qualifying patient could have one 

“caregiver” who was responsible for managing the well-being of the patient with respect 

to the medical use of marijuana. A caregiver was required to register with DPHHS and

sign a statement “agreeing to provide marijuana only to qualifying patients who have 

named the applicant as caregiver.” Section 50-46-103(4)(a)(i), MCA. A caregiver was

not allowed “to engage in the use of marijuana or to use paraphernalia for any purpose 

other than cultivating, manufacturing, delivering, transferring, or transporting marijuana 

for medical use by a qualifying patient.” Section 50-46-103(4)(a)(ii), MCA. A caregiver 

was also not allowed to possess more than six marijuana plants and one ounce of usable 

marijuana, nor was a caregiver allowed to acquire, possess, cultivate, manufacture, 

deliver, transfer, or transport marijuana in excess of that amount. Section 

50-46-201(1)(a), (2), MCA. Caregivers who complied with the 2009 MMA were 

provided legal protections against arrest, prosecution, penalties, or denial of rights or 

privileges. Section 50-46-201(1), MCA. The 2009 MMA also allowed a caregiver to 

“receive reasonable compensation for services provided to assist with a qualifying 

patient’s medical use of marijuana.” Section 50-46-103(4)(c), MCA. 
5

¶7 The Medical Marijuana Growers Association, Inc. (Growers Association)

2

 is a 

non-profit corporation organized in Montana with a membership list representing 

approximately half of the caregivers and patients in Montana. Growers Association 

apparently lobbies the Montana Legislature about legal matters in connection to the 

MMA. Courier 1 is a resident and caregiver in Flathead County and Courier 2 is a 

resident and patient in Flathead County. Caregivers 1 and 2 are residents and caregivers 

in Flathead County and Caregiver 3 is a resident and caregiver in Cascade County. 

¶8 On March 23, 2011, Plaintiffs filed a complaint in Montana’s Flathead County 

District Court against the County Attorney, Ed Corrigan (Corrigan), seeking declaratory 

judgment that certain challenged activities could lawfully be performed by caregivers 

under Montana’s 2009 MMA. Plaintiffs alleged in their complaint that Courier 1 and 

Courier 2 had been charged in criminal cases with possession of a dangerous drug with 

intent to distribute, in violation of § 45-9-103, MCA, for allegedly possessing and 

transporting marijuana on behalf of Caregiver 3.

3

 They further alleged that Caregivers 1, 

2, and 3 are “potential witnesses and participant actors in the criminal cases,” although 

none of the Caregivers faced criminal charges at the time. 

¶9 In their complaint Plaintiffs sought a determination that the 2009 MMA allowed a

caregiver to “deliver, transport or transfer marijuana and its paraphernalia to another 

 

2

 This corporation is referred to as Medical Marijuana Growers Association, Inc., Montana 

Medical Growers Association, Inc., and Montana Marijuana Growers Association, Inc. 

throughout the record and briefing. We refer to it as Growers Association throughout this 

Opinion. 

3

 Although this does not appear of record in the proceeding before us, the parties indicate in their 

briefs that Courier 1 and Courier 2 have pled guilty to the charges under a plea agreement and 

possibly reserved the right to appeal the legal issues as presented in this case.
6

caregiver” or to another caregiver through an agent, and that it allowed a caregiver to 

“cultivate and manufacture marijuana as an agent or contractor for another caregiver.” 

Without these allowances, Plaintiffs argued, they would be unable to comply with their

duties as caregivers under the MMA. The individual Plaintiffs sought to remain 

anonymous so as to avoid self-incrimination based on the statements made in this action 

and to preserve their right to remain silent in the event of prosecution and conviction. 

¶10 Corrigan filed an answer, and on April 19, 2011, he moved for summary 

judgment, arguing that the plain language of the 2009 MMA makes clear that 

caregiver-to-caregiver transactions are not permitted. Corrigan cited the requirement that 

caregivers agree that they will “provide [medical] marijuana only to qualifying patients 

who have named the applicant as caregiver,” and as such, the extensive statutory 

interpretation requested by the Plaintiffs was unnecessary. Section 50-46-103(4)(a)(i), 

MCA. Plaintiffs responded with a motion for summary judgment and an accompanying 

brief, and Corrigan filed a reply brief on June 1, 2011. 

¶11 The District Court heard oral argument on July 6, 2011, and in its Order granted 

Corrigan’s motion for summary judgment on July 21, 2011. The court concluded that the 

2009 MMA “does not permit a caregiver to deliver, transport, or transfer marijuana and 

its paraphernalia to another caregiver, either individually or through an agent or 

contractor; nor does it permit a caregiver to cultivate and manufacture marijuana as an 

agent or contractor for another caregiver.” The court entered judgment to the same effect 

on August 17, 2011, dismissing the case and noting the Order’s denial of Corrigan’s 

request for fees and costs. Plaintiffs appealed. 
7

¶12 After the appellate briefs were filed, this Court ordered supplemental briefing. We 

noted that the new Montana Marijuana Act (2011 MMA), Title 50, chapter 46, part 3, 

MCA (2011), took effect on July 1, 2011.4 It repealed the 2009 MMA and set forth new 

regulations and requirements for participants in the medical marijuana program. We 

directed the parties to submit briefs addressing the possibility that the declaratory action 

was moot as a consequence of the repeal of the 2009 MMA. The parties submitted the 

requested briefs. 

STANDARD OF REVIEW

¶13 This Court reviews a district court’s grant of summary judgment de novo, 

applying the criteria in M. R. Civ. P. 56. Wiser v. Mont. Bd. of Dentistry, 2011 MT 56, 

¶ 6, 360 Mont. 1, 251 P.3d 675 (citations omitted). “Summary judgment may be granted 

only when there is a complete absence of genuine issues of material fact and the moving 

party is entitled to judgment as a matter of law.” Wiser, ¶ 6 (quoting Lorang v. Fortis 

Ins. Co., 2008 MT 252, ¶ 37, 345 Mont. 12, 192 P.3d 186). 

¶14 This Court reviews a district court’s interpretation of law pertaining to a 

declaratory judgment ruling for correctness. Wrigg v. Junkermier, Clark, Campanella, 

Stevens, P.C., 2011 MT 290, ¶ 9, 362 Mont. 496, 265 P.3d 646 (citing In re Estate of 

Marchwick, 2010 MT 129, ¶ 8, 356 Mont. 385, 234 P.3d 879).

DISCUSSION

¶15 Does Montana’s 2009 Medical Marijuana Act authorize caregivers to either 

exchange marijuana for purposes of supplying qualified patients with medical 

 

4

 All of Title 50, chapter 46, part 3, MCA (2011), became effective on July 1, 2011, with the 

exception of § 50-46-341, MCA (2011), which became effective on May 13, 2011. 
8

marijuana, or provide cultivation services to other caregivers for purposes of 

supplying qualified patients with medical marijuana?

¶16 On appeal, Plaintiffs seek a determination that the 2009 MMA allows a caregiver 

to “dispense marijuana to his own patients, [and] perform other services such as 

acquisition, possession, cultivation, manufacture, delivery, transfer, or transportation with 

respect to any qualifying patient, including to a caregiver on behalf of another qualifying 

patient.” Plaintiffs argue that this appeal is not moot, as the repeal of the 2009 MMA 

does not eliminate the possibility of criminal prosecution under the 2009 MMA against 

those involved in this case. 

¶17 Corrigan argues that this matter is moot, as the 2011 MMA’s “repeal and overhaul 

of the 2009 MMA expressly prohibits caregiver to caregiver transactions,” and thus the 

situation in question cannot be repeated. Corrigan also argues that the Plaintiffs are not 

challenging the constitutionality of the criminal statute under which they were charged, 

and that there is no imminent threat to their constitutional rights. Corrigan further states 

that if the right to appeal their criminal cases was preserved by Courier 1 or Courier 2, 

they can proceed with an appeal, and that the possibility of future criminal charges 

against the other Plaintiffs is highly speculative, as they have not been charged with 

criminal offenses related to medical marijuana and the record does not reflect they likely 

will be charged. 

¶18 We address mootness first, as “[m]ootness is a threshold issue which must be 

resolved before addressing the underlying dispute.” Povsha v. City of Billings, 2007 MT 

353, ¶ 19, 340 Mont. 346, 174 P.3d 515. We have “consistently held that ‘a moot 
9

question is one which existed once but because of an event or happening, it has ceased to 

exist and no longer presents an actual controversy.’ ” Povsha, ¶ 19 (quoting Skinner

Enters., Inc. v. Lewis and Clark City-Co. Health Dept., 1999 MT 106, ¶ 12, 294 Mont. 

310, 980 P.2d 1049). A case becomes moot for the purposes of appeal when “by a 

change of circumstances prior to the appellate decision, the case has lost any practical 

purpose for the parties, [such as when] the grievance that gave rise to the case has been 

eliminated.” Povsha, ¶ 19 (quoting In re T.J.F., 229 Mont. 473, 475, 747 P.2d 1356, 

1357 (1987)). 

¶19 The Plaintiffs argue against a finding that the 2011 MMA moots their request for 

declaratory relief, arguing that they could still be charged or their convictions upheld 

under the 2009 law. They argue that under § 1-2-205, MCA, those who allegedly 

violated the 2009 MMA while it was in effect could face prosecution for a criminal 

offense under the 2009 MMA, even though it has since been repealed. Section 1-2-205, 

MCA, states: 

The repeal of any law creating a criminal offense does not constitute a bar 

to an indictment or information and the punishment of an act already 

committed in violation of the law so repealed unless the intention to bar 

such indictment or information and punishment is expressly declared in the 

repealing act. 

¶20 We have held that “[p]ersons alleged to have committed criminal offenses must be 

charged with violating the law in effect at the time the crime was committed.” State v. 

Daniels, 2003 MT 30, ¶ 17, 314 Mont. 208, 64 P.3d 104 (citing State v. Cline, 170 Mont. 

520, 532, 555 P.2d 724, 732 (1976)). “Furthermore, a change in the definition of an 

offense does not affect acts committed prior to the effective date.” Daniels, ¶ 17. Citing 
10

§ 1-2-205, MCA, Daniels held that the defendant, who committed his offense between 

January 1996 and June 1999 and was charged in November 1999, was properly charged 

and convicted under the definition of the offense in effect at the time he committed the 

crime, though the statutory definition of the offense had changed on October 1, 1999. 

Daniels, ¶¶ 5, 13, 17, 18. This necessarily imparts that the law in effect at the time of the 

commission of the crime controls throughout the prosecution of the crime. 

¶21 The 2011 MMA does not expressly bar an indictment or information from being 

brought under the 2009 law. The alleged events involving the Plaintiffs took place on 

approximately February 4, 2011, and thus would be subject to prosecution under the 2009 

MMA, as the 2011 MMA was not effective until July 1, 2011. Because a felony 

prosecution may be commenced up to five years from the date of the alleged offense and 

prosecuting attorneys have discretion as to what and who they charge, the caregivers 

could theoretically still be charged through February 2016 with felony offenses under the 

2009 MMA. Section 45-1-205(2)(a), MCA; State v. Lemmon, 214 Mont. 121, 126, 692 

P.2d 455, 457-58 (1984). Thus, the issue on appeal has not been mooted by repeal of the 

2009 MMA. 

¶22 In response to Corrigan’s contention that the relief sought is speculative and not 

justiciable, Plaintiffs argue that this is an appropriate case for relief under the Uniform 

Declaratory Judgments Act (UDJA), §§ 27-8-101 to -313, MCA. The purpose of the 

UDJA is “to afford relief from uncertainty and insecurity with respect to rights, status, 

and other legal relations; and it is to be liberally construed and administered.” Section 

27-8-102, MCA. 
11

¶23 The UDJA, addressing the scope of power to render a declaratory judgment, 

states: 

Courts of record within their respective jurisdictions shall have power to 

declare rights, status, and other legal relations whether or not further relief 

is or could be claimed. No action or proceeding shall be open to objection 

on the ground that a declaratory judgment or decree is prayed for. The 

declaration may be either affirmative or negative in form and effect, and 

such declarations shall have the force and effect of a final judgment or 

decree. 

Section 27-8-201, MCA. As for who may obtain a declaratory judgment, the UDJA 

states: 

Any person interested under a deed, will, written contract, or other writings 

constituting a contract or whose rights, status, or other legal relations are 

affected by a statute, municipal ordinance, contract, or franchise may have 

determined any question of construction or validity arising under the 

instrument, statute, ordinance, contract, or franchise and obtain a 

declaration of rights, status, or other legal relations thereunder. 

Section 27-8-202, MCA. Because Plaintiffs deem themselves insecure with respect to 

their legal status vis a vis the 2009 MMA, at least two of the Plaintiffs have already faced 

criminal charges, and the UDJA allows a court to declare their status even though no 

further relief is claimed, we are constrained to agree that Plaintiffs may seek the relief 

requested under the UDJA. We therefore conclude the controversy is justiciable, and 

turn to the merits of Plaintiffs’ arguments. 

¶24 We are asked to determine whether the 2009 MMA authorizes caregivers, for 

purposes of supplying qualified patients with medical marijuana, to exchange marijuana

with or provide cultivation services to other caregivers. To do so, we first look to the 

plain language of the statute as a whole to determine if it is clear and unambiguous. 
12

Mont. Sports Shooting Assn. v. State, 2008 MT 190, ¶ 11, 344 Mont. 1, 185 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 has been inserted. Section 1-2-101, MCA. 

¶25 Marijuana is a Schedule I controlled substance under § 50-32-222(4)(t), MCA. It 

is considered a dangerous drug under §§ 50-32-101(6), -202, MCA, and is generally 

illegal to distribute or possess, pursuant to §§ 45-9-101, -102, MCA. Distribution 

includes selling, bartering, exchanging, giving away, or offering to sell, barter, exchange, 

or give away. Section 45-9-101(1), MCA. The 2009 MMA provides exceptions to the 

illegality of distribution and possession, establishing certain privileges for those in 

compliance with its provisions. 

¶26 The 2009 MMA defines a “caregiver” as “an individual, 18 years of age or older 

who has agreed to undertake responsibility for managing the well-being of a person with 

respect to the medical use of marijuana. A qualifying patient may have only one 

caregiver at any one time.” Section 50-46-102(1)(a), MCA. A “qualifying patient or 

caregiver is presumed to be engaged in the medical use of marijuana if the qualifying 

patient or caregiver is in possession of a registry identification card.” Section 

50-46-201(3)(a)(i), MCA. A registry identification card is a document issued by DPHHS 

that identifies a person as a qualifying patient or a caregiver. Section 50-46-102(9), 

MCA. In order to obtain a registry identification card, the caregiver is required to sign a 

statement, as the caregiver for the qualifying patient:

(i) agreeing to provide marijuana only to qualifying patients who 

have named the applicant as caregiver; and 
13

(ii) acknowledging that possession of the registry identification card 

does not allow the caregiver to engage in the use of marijuana or to use 

paraphernalia for any purpose other than cultivating, manufacturing, 

delivering, transferring, or transporting marijuana for medical use by a 

qualifying patient. 

Section 50-46-103(4)(a), MCA (emphasis added). 

¶27 We find the plain language of this statute clear and unambiguous. A caregiver is 

authorized to provide marijuana to qualifying patients only. The 2009 MMA does not 

provide for the transfer of marijuana or paraphernalia from caregiver to caregiver or 

among their agents, nor is there a provision allowing for a caregiver to cultivate 

marijuana for other caregivers or for their agents or contractors. We will not read or 

insert these provisions into the statute. We find that the specific provision that a 

caregiver may provide marijuana only to qualifying patients specifically prohibits the 

privileges and declarations that the Plaintiffs seek. As the District Court correctly stated, 

[T]he Court must point out a serious impediment to the relief Plaintiffs are 

seeking: All of Plaintiffs’ arguments are predicated on the assumption that 

the Act is ambiguous with respect to whom caregivers may and may not 

supply with marijuana. Were there such an ambiguity, Plaintiffs’ 

arguments, to varying extents, might go a long ways toward resolving it. 

However, no such ambiguity exists; rather, the clear and unambiguous 

language of [the] Act permits caregivers “to provide marijuana only to 

qualifying patients who have named the applicant as caregiver.” 

§ 103(4)(a)(ii). The intention evinced by this language is straightforward. 

Entertaining Plaintiffs’ invitation to engage in further interpretation of the 

Act would necessarily entail turning a blind eye to one of its explicit 

provisions. This the Court may not do. 

¶28 Plaintiffs argue that such a restrictive reading of the 2009 MMA renders 

performance under the MMA an impossibility, as caregivers must be able to initially 

acquire their marijuana from some source in order to commence cultivation and fulfill 
14

their duties as caregivers. We decline the invitation to engage in the expansive 

interpretation of the 2009 MMA urged by Plaintiffs, as it is simply unsupportable under 

the plain language of the statute. 

¶29 Therefore, we affirm the determination of the District Court that the 2009 MMA 

does not permit the exchange of marijuana among caregivers, nor does it permit a 

caregiver to cultivate or manufacture marijuana for another caregiver. 

CONCLUSION

¶30 Based on the foregoing, we affirm the Order of the District Court. 

/S/ PATRICIA COTTER

We concur:

/S/ BRIAN MORRIS

/S/ JIM RICE

/S/ JAMES C. NELSON

/S/ BETH BAKER

Justice James C. Nelson, concurring.

¶31 I concur in the Court’s decision, which I believe correctly resolves the issues as 

they were presented and argued on appeal. I write separately to acknowledge the 

proverbial elephant in the room.

¶32 This case is just one of several presently pending before this Court involving 

Montana’s “medical marijuana” laws. While issues of justiciability have arisen, such as 
15

the mootness question the Court addresses in today’s Opinion, the parties in these cases 

have largely ignored—intentionally, it would seem, in light of the colloquy between the 

Court and counsel during oral argument in Mont. Cannabis Indus. Assn. v. State, 

No. DA 11-0460 (May 30, 2012)—the more fundamental question whether it is even 

appropriate for this Court to render opinions interpreting laws that are essentially 

unenforceable in light of federal law.

¶33 The courts of Montana do not have the power to issue advisory opinions. Plan 

Helena, Inc. v. Helena Regl. Airport Auth. Bd., 2010 MT 26, ¶¶ 9, 11, 355 Mont. 142, 

226 P.3d 567. This is because the judicial power of Montana’s courts is limited by the 

Montana Constitution to “justiciable controversies.” Plan Helena, ¶ 6. A justiciable 

controversy is one that is “definite and concrete, touching legal relations of parties having 

adverse legal interests” and “admitting of specific relief through decree of conclusive 

character, as distinguished from an opinion advising what the law would be upon a 

hypothetical state of facts, or upon an abstract proposition.” Reichert v. State, 2012 MT 

111, ¶ 53, 365 Mont. 92, 278 P.3d 455 (internal quotation marks omitted). To be 

justiciable the controversy must, among other things, “be one upon which a court’s 

judgment will effectively and conclusively operate, as distinguished from a dispute 

invoking a purely political, administrative, philosophical, or academic conclusion.” 

Reichert, ¶ 53. The “cases” and “controversies” that are within the judicial power to 

determine do not include “abstract differences of opinion.” Plan Helena, ¶ 9 (internal 

quotation marks omitted).
16

¶34 In 2004, Montanans adopted Initiative No. 148 which created the “Medical 

Marijuana Act.” See Title 50, chapter 46, MCA (2005). The Legislature has since 

tinkered with the Act, see Opinion, ¶ 5 n. 1, going so far as to scrap the original voterapproved scheme entirely and replace it with a new and improved “Montana Marijuana 

Act,” see Laws of Montana, 2011, ch. 419; Title 50, chapter 46, part 3, MCA (2011). 

Yet, with due respect to, and without impugning the zeal and good faith of, everyone 

involved in this continuing fiasco, the fact remains that the medical marijuana laws seek

to legalize conduct that is violative of the federal Controlled Substances Act, 84 Stat. 

1242, 21 U.S.C. § 801 et seq. And it is axiomatic that federal laws prevail over contrary 

state laws. U.S. Const. art. VI, cl. 2 (“This Constitution, and the Laws of the United 

States which shall be made in Pursuance thereof; and all Treaties made, or which shall be 

made, under the Authority of the United States, 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.”); Gonzales v. Raich, 545 U.S. 1, 29, 

125 S. Ct. 2195, 2212 (2005) (“[L]imiting the activity to marijuana possession and 

cultivation ‘in accordance with state law’ cannot serve to place respondents’ activities 

beyond congressional reach. The Supremacy Clause unambiguously provides that if 

there is any conflict between federal and state law, federal law shall prevail.”).

¶35 It may be true, as some medical marijuana proponents argue, that marijuana is a 

safe and effective drug, that marijuana should be legalized, that there are ridiculously 

high numbers of people incarcerated for marijuana-related offenses, that people have the 

“right” to use marijuana to treat illness, and that there should be medical marijuana 
17

growers and caregivers. But these issues are completely beside the point. The point, 

rather, is that Congress has decreed—rightly or wrongly, and whether the Montana 

populace likes it or not—that marijuana is a controlled substance and that it is unlawful to 

grow, possess, or distribute it.1

¶36 When Montana’s courts are asked to interpret the 2004 Medical Marijuana Act

and the 2011 Montana Marijuana Act, they are asked, in effect, to issue an opinion 

“advising what the law would be upon a hypothetical state of facts, or upon an abstract 

proposition,” Reichert, ¶ 53 (internal quotation marks omitted), the hypothetical state of 

facts being a world where the grower, caregiver, or user is not already precluded by 

federal law from growing, distributing, or possessing marijuana. Irrespective of whether 

the conduct at issue is exempt from prosecution under Montana law, it is unlawful under 

federal law. A decree in favor of the medical marijuana grower, caregiver, or user is 

consequently meaningless because their activities are illegal regardless.

¶37 Judicial officers (as well as members of the legislative and executive branches) 

take an oath to “support, protect and defend the constitution of the United States . . . .” 

Mont. Const. art. III, § 3. The Constitution of the United States provides, among other 

things, that “the Laws of the United States . . . 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 (emphasis 

 

1 Marijuana is classified as a Schedule I drug because of its high potential for 

abuse, lack of any accepted medical use, and absence of any accepted safety for use in 

medically supervised treatment. Gonzales, 545 U.S. at 14, 125 S. Ct. at 2204 (citing 

21 U.S.C. § 812(b)(1), (c)). This classification renders the manufacture, distribution, or 

possession of marijuana a criminal offense. Gonzales, 545 U.S. at 14, 125 S. Ct. at 2204.
18

added). This Court is thus bound by duly enacted federal law. Providing interpretations 

of Montana laws that are clearly contrary to federal laws in the conduct they purport to 

make legal is in tension with our oath and duty to adhere to the federal laws. Providing 

such interpretations is also in tension with the constitutional limitation on judicial power 

precluding us from rendering advisory opinions. For these reasons, I conclude that 

Montana’s courts should not—indeed cannot—be required to issue opinions concerning 

state medical marijuana laws that are trumped by federal law and are mooted by reason of 

the Supremacy Clause.2

¶38 In closing, I note that for the marijuana community—medical, commercial, and 

recreational—there is a solution to the problem. If the anti-marijuana paradigm is to be 

changed, it must be changed at the federal level first. It is Congress that has enacted 

federal laws making marijuana manufacture, distribution, and possession a criminal 

offense and, in the process, rendering any state laws “to the Contrary” superfluous. 

Obviously, changing this paradigm will involve educating Congress and whoever is 

President3 and will require concerted political efforts nationwide to elect supportive 

legislators and not to reelect senators, representatives, and executives who are opposed to 

changing the marijuana paradigm.

 

2

I note one exception. Where the State has in fact commenced a civil or criminal 

proceeding in which one of Montana’s medical marijuana laws may provide a defense, 

and the defendant seeks dismissal or mounts a defense based on that law, it may then be

necessary for this Court to interpret the medical marijuana laws within this specific 

context.

3

 I acknowledge this will be a herculean task. Indeed, actual facts, scientific 

evidence, and medical evidence typically fall on deaf ears in Congress when partisan 

politics, big money, big business, or big religion hold sway—big Tobacco, big Pharma, 

and big Super PACs being the big examples that readily come to mind.
19

¶39 In summary, the courts of Montana should not be required to devote any more 

time trying to interpret and finesse state laws that, ultimately, are contrary to federal law 

and the Supremacy Clause of the United States Constitution. After all, as already noted, 

judges in Montana take an oath to support, protect, and defend the federal Constitution

and are bound by federal laws, anything in the laws of this State to the contrary 

notwithstanding. On this issue, it is time we started doing that.

¶40 I concur.

/S/ JAMES C. NELSON