Med. Marijuana Growers Ass'n, Inc. v. Corrigan

• Decision Date: 06 July 2012
• Docket Number: No. DA 11–0475.,DA 11–0475.
• Citation: 281 P.3d 210,365 Mont. 346,2012 MT 146
• Parties: 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.
• Court: Montana Supreme Court

365 Mont. 346

281 P.3d 210

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.

No. DA 11–0475.

Supreme Court of Montana.

Submitted on Briefs May 9, 2012.

Decided July 6, 2012.

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.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

[365 Mont. 347]¶ 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 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.

¶ 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 Caregiver3.³ 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 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.

¶ 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 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...