                                                                                          February 25 2016


                                          DA 15-0055
                                                                                          Case Number: DA 15-0055

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2016 MT 44



MONTANA CANNABIS INDUSTRY ASSOCIATION,
MARC MATTHEWS, SHELLY YEAGER, JESSE RUMBLE,
JOHN STOWERS, M.D., POINT HATFIELD,
and CHARLIE HAMP,

               Plaintiffs, Appellees, and Cross-Appellants,

         v.

STATE OF MONTANA,

               Defendant, Appellant, and Cross-Appellee.


APPEAL FROM:           District Court of the First Judicial District,
                       In and For the County of Lewis and Clark, Cause No. DDV-2011-518
                       Honorable James P. Reynolds, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Timothy C. Fox, Montana Attorney General; J. Stuart Segrest (argued),
                       Matthew T, Cochenour, Assistant Attorneys General, Helena, Montana

                For Appellees:

                       James H. Goetz (argued), J. Devlan Geddes, Goetz, Baldwin & Geddes,
                       P.C., Bozeman, Montana



                                                   Argued and Submitted: November 4, 2015

                                                                 Decided: February 25, 2016


Filed:

                       __________________________________________
                                         Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1    The State of Montana (State) appeals an order of the First Judicial District Court,

Lewis and Clark County, granting a permanent injunction against the enforcement of

certain provisions of the 2011 Montana Marijuana Act §§ 50-46-301 to -344, MCA (Act).

Montana Cannabis Industry Association, Mark Matthews, Shelly Yeager, Jesse Rumble,

John Stowers, M.D., Point Hatfield, and Charlie Hamp (collectively “Plaintiffs”)

cross-appeal the District Court’s refusal to enjoin other provisions of the Act.     We

address the following issues on appeal:

      1. Whether the District Court erred in determining that the Act’s provision
      requiring the Department of Public Health and Human Services (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.

      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.

      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.

      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 under
      rational basis scrutiny.

      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.

¶2    We affirm in part and reverse in part.

                                          2
                  PROCEDURAL AND FACTUAL BACKGROUND

¶3     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 Act contains 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 provisions in 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




                                          3
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 injunction and 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 referenced several abuses 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.
                                             4
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 court applied 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.

                                          5
                              STANDARDS OF 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 by acknowledging the 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

                                          6
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 permissible under 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, §§ 4901A et 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).
                                             7
¶14    Plaintiffs allege denial of equal protection and due process rights under article II,

sections 4 and 17 of the Montana Constitution. Plaintiffs bring their constitutional 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, 552 U.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

                                          8
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 Act creates different 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.”


                                           9
¶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.

MCIA I, ¶ 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

                                        10
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 Wilkes applies 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

                                         11
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.” 2 Ronald 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

                                          12
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) whether the 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.”




                                         13
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.”
                                        14
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.              We 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

                                          15
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 judgment should

not be disturbed. Walters, ¶ 18.




                                         16
¶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.
                                          17
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




                                         18
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 alternative serves a legitimate state objective.

¶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




                                          19
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

                                         20
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 statutes at

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 that stipulation following MCIA I.




                                         21
¶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

                                       22
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 review trigger 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.




                                         23
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 is an ideal number to signal 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

                                          24
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.
                                        25
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
                                         26
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 for the Act because 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. The State 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 because the 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

                                         27
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

                                          28
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

at 4, 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. Section 50-46-343, MCA.




                                        29
¶50    Because the three-patient limit is reasonably related 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 fails rational 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

                                          30
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.




                                        31
¶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




                                         32
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 that the statute unambiguously bars commercial speech only, 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




                                         33
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 that the 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

other evidence 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.




                                          34
¶63    Applying these rules of construction to § 50-46-341, MCA, we conclude that the

advertising ban prohibits only commercial 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.,

10th ed. 2014).     A product is “[s]omething that is distributed commercially for

use or consumption . . . .”      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, 101 S. 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

                                         35
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 a person 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,

8 S. 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).




                                         36
¶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 Hudson therefore 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 under rational 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

                                        37
requires case-by-case consideration, which “raises genuine issues of material fact beyond

the ability of this Court to determine on a motion for summary 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 maintain that § 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.




                                         38
¶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.

                                          39
¶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 hours without a warrant. Section 50-46-329, 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

                                      40
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

                                        41
“failed to provide a meaningful answer and refused to produce a [M. R. Civ. P.] 30(b)(6)

witness” when Plaintiffs questioned the inspections’ purposes in 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,

545 U.S. at 14, 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

                                         42
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.




                                         43
¶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 warrantless inspection against

a particular facility, then it may be appropriate 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.

                                      CONCLUSION

¶83    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), and the advertising prohibition (§ 50-46-341, MCA), and uphold

the constitutionality of those provisions; we declare the remuneration restrictions

                                          44
(§ 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 (§ 50-46-329, MCA).



                                                 /S/ BETH BAKER

We concur:


/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ ROBERT G. OLSON
District Court Judge Robert G. Olson
sitting for Justice Patricia Cotter




Justice Laurie McKinnon specially concurs and dissents.

¶84    The Court provides an exhaustive substantive due process analysis of the Act after

“acknowledging the proverbial ‘elephant in the room,’” that “[m]arijuana is a Schedule I

Controlled Substance under the federal Controlled Substances Act,” which criminalizes

its cultivation and distribution. Opinion, ¶ 13. The Court correctly notes that the parties

are not challenging the Act on the ground that it is preempted by federal law, Opinion,

                                        45
¶ 13, and that “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.’” Opinion, ¶ 18 (citation omitted and

emphasis added). The Court nevertheless fails to remain focused on this purpose for the

legislation—to provide legal protections.

¶85    The State, pursuant to its police powers, may define what is and is not a criminal

offense under the laws of Montana, including what constitutes a defense or immunity to a

state prosecution. The Court’s analysis is led astray by Plaintiff’s arguments that are

incorrectly premised upon the purpose of the Act as being one of providing access to

marijuana. Opinion, ¶ 29 (“The careful regulation of access to an otherwise illegal

substance for limited use by persons for whom there is little or no other effective

alternative serves a legitimate state objective.”).

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

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

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

or give away. Section 45-9-101(1), MCA. The Act “provides exceptions to the illegality

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

with its provisions.” Med. Marijuana Grower’s Ass’n v. Corrigan, 2012 MT 146, ¶ 25,

365 Mont. 346, 281 P.3d 210 (emphasis added).

¶87    In enacting the Act, the Legislature sought to “provide legal protections to persons

. . . who engage in the use of marijuana to alleviate the symptoms of [a] debilitating

                                          46
medical condition.” Section 50-46-301(2)(a), MCA. The Legislature intended to “allow

for the limited cultivation, manufacture, delivery, and possession of marijuana” and

“allow individuals to assist a limited number of registered cardholders with the

cultivation and manufacture of marijuana.” Section 50-46-301(2)(b-c), MCA. Amounts

that a registered cardholder may possess are limited, § 50-46-319, MCA, and places of

use are similarly restricted, § 50-46-320, MCA. The Act provides that an individual

“may not be arrested, prosecuted, or penalized in any manner” solely because “the

individual cultivates, manufactures, possesses or transports marijuana in the amounts

allowed under this section; or the registered cardholder acquires or uses marijuana.”

Section 50-46-319(2), MCA. As previously explained by this Court, “the legislature, in

its exercise of the State’s police powers, decided that it would legalize the limited use of

medicinal marijuana while maintaining a prohibition on the sale of medical marijuana.”

MCIA I, ¶ 21.

¶88    States use their inherent police powers to create crimes and also defenses, exceptions, or

immunities to those crimes. The “State of Montana has a police power by which it can regulate

for the health and safety of its citizens.” Wiser v. State, 2006 MT 20, ¶ 19, 331 Mont. 28, 129

P.3d 133 (citing State v. Skurdal, 235 Mont. 291, 294, 767 P.2d 304, 306 (1988)). Certain

statutory provisions create affirmative defenses, exceptions, or immunities to crimes which grant

defendants a limited immunity from prosecution. See generally State v. Archambault, 2007 MT

26, 336 Mont. 6, 152 P.3d 698. For instance, justifiable use of force provisions, §§ 45-3-101

through -115, MCA, create an affirmative defense to actions that would otherwise constitute

crimes. Human trafficking statutes provide another example of immunity and an affirmative

                                           47
defense provided to a child who is a victim. Sections 45-5-709, -710, MCA. Further, by its

terms, § 45-8-109(3), MCA, provides a variety of exceptions to a charge of civil disorder,

including actions of a peace officer committed during performance of their duties; training in

nonviolent civil disobedience techniques; lawful self-defense or defense of others or an activity

intended to teach or practice self-defense or self-defense techniques; or training in safe firearm

handling and use. Under § 45-6-203, MCA, a person qualified to appraise or audit property for

property tax purposes, a person qualified to survey land to delineate boundaries, or a firewarden

exercising their duty are excepted from prosecution for criminal trespass by §§ 15-7-139, 70-16-

111, and 76-13-116, MCA. Finally, under § 45-8-206(2)(a), MCA, it is a defense to the crime of

public display or dissemination of obscene material to minors to have had reasonable cause to

believe the minor was 18 years of age.

¶89    Given that marijuana is illegal and the State, in the exercise of its police powers,

has carved out a “legal protection” to a state prosecution for violation of Montana’s

controlled dangerous substance laws, I cannot agree that the statute creates any sort of

classification of persons necessary for an equal protection challenge or any substantive

right necessary for a substantive due process challenge. The Court states that the Act

concerns “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” and for others, “marijuana is the sole or most

effective treatment.” Opinion, ¶ 17. However, the Act simply fails to make any of the

distinctions between “groups” which the Court implicitly considers. The Act does not

provide marijuana for one group of persons and withhold it from another group; it does

                                           48
not distinguish based upon type of prescription medication; and it does not distinguish

based upon who is able to grow marijuana. The Act does, however, provide a benefit or

privilege—not a right—to those using marijuana for medical purposes and

correspondingly defines, as the State may do, the parameters of a defense for violation of

Montana’s controlled dangerous substance laws.1

¶90    To prevail on an equal protection challenge, the plaintiff “must demonstrate that

the law at issue discriminates by impermissibly classifying individuals and treating them

differently on the basis of that classification.” Egdorf, ¶ 15 (citation omitted). A plaintiff

must first show that the challenged law creates a classification between two classes

which are otherwise similarly situated. Farrier, ¶ 15. If a plaintiff is unable to show that

the challenged law creates such a classification among similarly situated individuals, the

inquiry ends and the court need not apply rational basis review. See Powell, ¶ 22 (“If the

classes at issue are not similarly situated, then the first criteria for proving an equal

protection violation is not met and we need look no further.”). To the extent the Court

finds that the Act creates two groups of persons who are “distinguished by the manner in

which they may obtain relief,” I disagree. The Act provides limited “legal protections” to




1
    Physicians do not “prescribe” marijuana under the Act, but instead provide a “written
certification.” Section 50-46-310, MCA. Thus, medical marijuana is not a prescribed drug
which, if the State prohibited all persons from using, might serve as a basis for a substantive due
process challenge. The Court appears to imply medical marijuana is a prescribed drug, the
prohibition of which implicates due process concerns. See Opinion, ¶ 18.
                                             49
those who use marijuana for medical purposes; all other persons are using marijuana in

violation of state law.2

¶91    After correctly concluding that the Act “does not create two legitimate classes for

an equal protection challenge,” Opinion, ¶ 18, the Court is led afield when it conducts an

exhaustive substantive due process analysis. I disagree with the Court’s conclusion that

Plaintiff’s challenges are appropriately analyzed under Montana’s due process clause.

Opinion, ¶ 19. The Court separates the various provisions of the Act and asks itself

whether a legal protection which benefits medical marijuana users, is either “arbitrary or

unreasonable” or is “rationally related to the recognized legitimate government objectives

of the Act.” Opinion, ¶ 33.

¶92    Both the Fourteenth Amendment to the United States Constitution and Article II,

Section 17 of the Montana Constitution provide that no person shall be deprived of life,

liberty, or property without due process of law. “Substantive due process primarily

examines the underlying substantive rights and remedies to determine whether

restrictions . . . are unreasonable or arbitrary when balanced against the purpose of the

legislature in enacting the statute.” Newville, 267 Mont. at 249, 883 P.2d at 800 (citation

omitted); see also Egdorf, ¶ 19. The concept of substantive due process refers to “the

ability of government to restrict the freedom of action (regarding life, liberty, or
2
  The potential that some individuals who are eligible to use marijuana under the Act may not be
able to grow marijuana themselves or locate a provider does not establish a class, as Plaintiffs
argue, and is insufficient to prove an equal protection violation. Again, the purpose of the Act is
to provide legal protections. The idea that some medical marijuana users who are unable to grow
their own marijuana creates a class for purposes of an equal protection violation is akin to an
argument that homeless people create a class because they are unable to raise a defense pursuant
to Montana’s “castle doctrine,” § 45-3-103, MCA.
                                             50
property) of all persons.” Rotunda & Nowak, supra § 15.4(a) at 823-24 (emphasis

added). A substantive due process analysis must begin with a careful description of the

asserted right, for the “doctrine of judicial self-restraint requires that we exercise the

utmost care whenever we are asked to break new ground in this field.” Collins v. City of

Harker Heights, 503 U.S. 115, 125, 112 S. Ct. 1061, 1068 (1992). The United States

Supreme Court has held that due process specially protects the right to marry, to have

children, to direct the education and upbringing of one’s children, to marital privacy, to

use contraception, to bodily integrity, to abortion, and to refuse unwanted lifesaving

medical treatment. Wash. v. Glucksberg, 521 U.S. 702, 720, 117 S. Ct. 2258, 2267

(1997) (citations omitted).

¶93    In explaining the nature of a substantive due process claim, the Supreme Court

has:

       [A]lways been reluctant to expand the concept of substantive due process because
       guideposts for responsible decision making in this unchartered area are scarce and
       open-ended. By extending constitutional protection to an asserted right or liberty
       interest, we, to a great extent, place the matter outside the arena of public debate
       and legislative action. We must therefore exercise the utmost care whenever we
       are asked to break new ground in this field, lest the liberty protected by the Due
       Process Clause be subtly transformed into the policy preferences of the Members
       of this Court.

Glucksberg, 521 U.S. at 720, 117 S. Ct. at 2267-68 (internal quotation marks and

citations omitted). A “careful description of the asserted fundamental liberty interest” is

required and a court must decide whether the asserted liberty interest, as described, is

“objectively, deeply rooted in this Nation’s history and tradition” and “implicit in the

concept of ordered liberty, such that neither liberty nor justice would exist if they were

                                           51
sacrificed.” Glucksberg, 521 U.S. at 720-21, 117 S. Ct. at 2268 (internal quotation marks

and citations omitted). In Glucksberg, four physicians representing three anonymous,

terminally-ill patients challenged a state law prohibiting assisted suicide. They argued

that the patients had a fundamental right to choose medical treatment that included

assistance in committing suicide. The Court rejected this argument, stating that, in

previously holding that individuals have a fundamental “right to refuse unwanted medical

treatment,” that holding could not “be somehow transmuted into a right to assistance in

committing suicide.”    Glucksberg, 521 U.S. at 725-26, 117 S. Ct. at 2270 (citation

omitted).

¶94    Applying this analysis, many other courts have held that smoking, using,

possessing, or manufacturing marijuana is not a substantive due process right. See Raich

v. Gonzales, 500 F.3d 850, 864-66 (9th Cir. 2007) (holding that, where the plaintiff’s

asserted fundamental right was “the right to use marijuana to preserve bodily integrity,

avoid pain, and preserve her life,” that “federal law does not recognize a fundamental

right to use medical marijuana prescribed by a licensed physician to alleviate excruciating

pain and human suffering” because the alleged right was neither “fundamental” nor

“implicit in the concept of ordered liberty”) (internal quotation marks and citations

omitted); U.S. v. White Plume, 447 F.3d 1067, 1074-76 (8th Cir. 2006) (holding that there

is no substantive due process right to farm hemp, which, like marijuana, contains

tetrahydrocannabinol or THC); U.S. v. Maas, 551 F. Supp. 645, 647-48 (D.N.J. 1982)

(“Smoking marijuana receives no explicit or implicit constitutional protection. The act of

                                        52
smoking does not involve the important values inherent in questions concerning

marriage, procreation, or child rearing.         Moreover, its use predominantly as a

‘recreational drug’ undercuts any argument that its use is as important as, e.g., use of

contraceptives”) (citations omitted); U S. v. Wash., 887 F. Supp. 2d 1077, 1102 (D. Mont.

2012).

¶95      We clearly stated in MCIA I, that Plaintiffs “cannot seriously contend that they

have a fundamental right to medical marijuana when it is still unequivocally illegal under

the [federal] Controlled Dangerous Substances Act.” MCIA I, ¶ 32 (citations omitted).

Plaintiffs have no right or claim to “access” marijuana; rather the State has chosen to

provide a benefit to those medical marijuana users who comply with the terms of the Act.

It cannot reasonably be argued that there is a “substantive right” to possess a substance

illegal under both federal and state law.

¶96      I thus disagree with the premise implicit in the Court’s approach—namely, that it

is appropriate to conduct a substantive due process analysis of a “legal protection”

allowed in a state criminal prosecution which has the purpose of providing a benefit or

privilege—as compared to a deprivation—to medical marijuana users.                  These

proceedings are not proceedings in which a defendant has attempted to mount a defense

to a criminal prosecution by invoking the Act’s limited protections. Plaintiffs have

alleged constitutional challenges premised on a right of access to marijuana. To the

extent we have addressed these challenges with a far-reaching constitutional analysis—




                                            53
inappropriate outside the context of a criminal proceeding invoking the protections of the

Act—I am concerned that we have distorted our constitutional jurisprudence.

¶97      In particular, we find that the remuneration restriction violates the equal protection

clause, after earlier concluding that an equal protection analysis is undeserved, without

even identifying the two classes of persons we considered. We find that a patient who is

unable to grow marijuana on her own is set apart. Opinion, ¶ 55. We conclude, without

any analysis, that such a prohibition is not encompassed within the Act’s legitimate

objectives. Opinion, ¶ 55. We cherry pick a provision from the Act that we find

offensive and, not surprisingly, are completely unable to support it with an appropriate

constitutional analysis. Such a policy preference for members of this Court is precisely

the danger inherent in expanding substantive due process to an interest that is neither a

substantive nor a fundamental right.

¶98      Marijuana is a controlled dangerous substance under federal and Montana law.

The State, pursuant to its police powers, may define what is and is not a criminal offense

under state law, including defining what constitutes a defense or immunity to a state

prosecution. The Legislature, through the provisions of the 2011 Montana Marijuana

Act, chose to carve out and define a defense to a state prosecution for marijuana

possession. I would uphold all provisions of the Act as related to this exercise of police

power.


                                                    /S/ LAURIE McKINNON


                                           54
Justice Jim Rice, dissenting.

¶99    I concur with the Court’s Opinion on all issues except for the remuneration

provision, from which I dissent.      In striking down the provision, the Court fails to

properly implement the standards our precedent has imposed for due process review.

¶100 The sheer deference we pay to the legislature under reasonableness review could

not be clearer under our precedent: “the purpose of the legislation 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.” Satterlee v. Lumberman’s Mut. Cas. Co., 2009 MT

368, ¶ 34, 353 Mont. 265, 222 P.3d 566 (citing Stratemeyer v. Lincoln County, 259 Mont.

147, 152, 855 P.2d 506, 509-10 (1993)) (emphasis added). Despite this standard, the

Court proceeds to test each provision of the Act not against any possible purpose, but

against a single purpose to which it latches on and won’t let go. We have previously

expressly rejected such an approach in the context of rational basis review, which the

Court also employs to strike down the remuneration provision. Opinion, ¶ 55. See

Stratemeyer, 259 Mont. at 151-52, 855 P.2d at 509-10 (holding lower court erred by

reasoning “the legislature must provide” a rational basis and that a court “may not

speculate” about the legislature’s purpose). We should reject this approach once again.

When we have determined, as the Court here concedes, that “the legislation in question is

related to a legitimate government concern,” then the inquiry is simply whether the

means chosen by the Legislature to accomplish its objective “are reasonably related to the

result sought to be obtained.” Walters v. Flathead Concrete Products, 2011 MT 45, ¶ 18,

                                         55
359 Mont. 346, 249 P.3d 913 (citing Plumb v. Fourth Jud. Dist. Ct., 279 Mont. 363, 372,

927 P.2d 1011, 1016 (1996)). This inquiry is the embodiment of judicial restraint and

deference.

¶101 Given that marijuana is illegal under federal law, and that the State’s interest may

be “any possible purpose of which the court can conceive,” Satterlee, ¶ 34, it requires a

particularly uncreative judge indeed to be unable to articulate a legitimate state interest

that justifies the remuneration provision. Further, against this first backdrop of federal

illegality, there is a second backdrop: the abuses of the drug and of the access provided

to it under the I-148 initiative. In response to this chaos, which Plaintiffs acknowledge,

the Legislature chose to decisively restrict, limit and constrain all aspects of marijuana

availability, and to impose heavy regulation by passing the Act. While the Court ties

itself to the generally stated purpose clauses of § 50-46-301, MCA—to which, as stated

above, we are not bound—such as providing protections to those with debilitating

medical conditions, it fails to acknowledge that the Act provided not one provision that

expanded upon or liberalized access to the drug for anyone, as compared to the I-148

initiative. The Act, in its entirety, is a clear constriction of access in response to the

abuses under prior law.     The Legislature specifically sought to impose new, heavy

regulations upon the illegal drug, particularly by “eliminating commercial access,” as the

State’s brief states.   This is a legitimate purpose, given the concerns created by

commercial access to medical marijuana, such as the need to police, license, and tax

commercial goods. The Legislature may well have believed that eliminating commercial

                                        56
access alleviated these concerns, as it has with other home products. See § 16-3-201(2),

MCA (exempting from regulation the manufacture of beer not intended for sale).

¶102 The Court counters that the remuneration provision will likely drive the business

of medical marijuana back to the black market. Opinion, ¶ 54. Perhaps so, but the proper

inquiry does not permit the Court to entertain such policy speculations, and, in fact, as

properly applied, mandates the Court do just the opposite: speculation and presumption is

required in favor of upholding the provision. See Davis v. Union Pacific R.R., 282 Mont.

233, 240, 937 P.2d 27, 31 (1997) (“[E]very possible presumption must be indulged in

favor of the constitutionality of the legislative act.”). Employing such a presumption

here, the remuneration provision certainly seems likely to eliminate commercial access

and alleviate the State’s concerns for purposes of due process analysis, as well as

justifying its enactment and differential treatment of the purported similarly situated

classes under equal protection.

¶103 I would uphold all of the provisions of the Act.



                                                  /S/ JIM RICE


Justice Michael E Wheat, dissenting.



¶104 Except as to the Majority’s conclusion regarding the remuneration provisions, I

respectfully dissent from the Majority’s decision in this case.


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¶105 At the outset, I note that I-148 was passed by a majority of Montana voters who

clearly wanted medical marijuana to be made available for those who need it to treat

medical conditions. This was and is the underlying purpose of the law. Shortcomings in

the original law subsequently lead to abuses that required the Legislature to step in and

impose restrictions to control the abuses. The real question in this case is whether the

statutory restrictions went too far and impaired the rights of those who need medical

marijuana by severely limiting or eliminating their access to a drug made medicinally

legal under the Act. The answer is determined by how one views the underlying purpose

of the Act: whether it is to provide “access” to a medicinal drug, or to provide

“protection” to those engaged in the business (producers, distributors, and consumers),

because marijuana remains federally illegal. So, which analytical lens one uses will

determine the outcome. While I recognize a need for regulatory framework, I believe the

State has gone too far in this case by creating a law that focuses so heavily on curbing the

abuses of medicinal marijuana that it violates the rights of patients by so severely limiting

or eliminating access to it, which ultimately destroys the law’s purpose. I disagree with

the Majority on nearly every issue brought before this Court. I would affirm the District

Court’s decision to enjoin certain provisions of the Act, but I would go further and also

enjoin the prohibition of medical marijuana use by probationers and the warrantless

search provisions.

¶106 It is noteworthy that the landscape of the law regarding medical and recreational

use of marijuana has changed significantly since this case began. Currently, twenty-three

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states and the District of Columbia have statutes that allow for the legal use of marijuana

for medicinal purposes, and four western states have passed laws that allow for legal

recreational use of the drug. Opinion, ¶ 13, n.2. I believe that many more changes are

coming in this area of law based on society’s evolving understanding of marijuana,

including its medical benefits.

       The 25-Patient Certification Limit on Physicians

¶107 The District Court found that the Board of Medical Examiners reported no

problems with medical marijuana certifications throughout the pendency of this action,

even though the certification-limit provision was never in effect.        The court heard

testimony from State officials who testified that no problems exist, and further the State

lacked any rationale to justify the limit. Opinion, ¶ 36. The court also determined that

the Board possesses the authority to discipline doctors who violate the standard of care,

that the Board had already made changes to completely disallow certification

“exclusively by telemedicine,” and thus the Board is fully capable of regulating

physicians in the State. Opinion, ¶ 36.

¶108 I agree with the District Court’s conclusion that the evidence regarding the ability

of the Board to self-regulate and the lack of the State’s rationale to justify a 25-patient

limit demonstrates that the provision is unnecessary, and further it is arbitrary. Under

rational basis review this provision must be reasonable, not arbitrary, and bear a fair and

substantial relation to the object of the legislation. Powder River Cnty., ¶ 79. It is my

belief that the object of medical marijuana legislation is to provide legal medicinal access

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to marijuana. This government regulation reaches beyond a substantial relation to the

object of the legislation and instead sets a number so arbitrarily low that the object is

stymied. By definition, an arbitrary act is one that is made without consideration or

regard for facts, circumstances, fixed rules, or procedures. Black’s Law Dictionary,

supra, at 125. This limit fails to consider the fact that the Board already eliminated the

telemedicine certification process, which essentially resolved the prior certification

problems.    This limit fails to consider the circumstance of the Board’s continued

authority and ability to properly regulate and discipline doctors for violations of the

standard of care in all avenues of medicine. Finally, there is no indication that the

Legislature followed any procedure to determine a patient-certification number that

would substantially relate to providing regulated access to medicinal marijuana. Instead,

the Legislature chose an arbitrary number of 25 that is not reasonable when balanced

against the purpose of the legislation. Egdorf, ¶ 19. I therefore conclude that this

provision of the law fails rational basis review and I would affirm the District Court’s

injunction of the 25-patient limit on physicians.

       Commercial Provisions

¶109 At the outset, I would decline to split the provisions as the Majority did because

both types of commercial provisions, not just the remuneration provisions, serve to limit

the access of medical marijuana to a distinct class of persons. Opinion, ¶ 47. The

remuneration restrictions and the three-patient commercial limit both impose “‘peculiar

disabilities upon [a] class of persons arbitrarily selected from a larger number of persons,

                                         60
all of whom stand in the same relation to privileges conferred or disabilities imposed.’”

Kottel, ¶ 55 (quoting Leuthold, 100 Mont. at 105, 47 P.2d at 45). The District Court

determined that the effect of these provisions renders access to medical marijuana nearly

impossible for people with the most debilitating conditions. I agree with the District

Court that the commercial provisions create different classes of persons by imposing

different burdens on those who can provide medical marijuana for themselves and those

who must purchase it in the marketplace, which then fail rational basis review. I agree

with the conclusion the Majority reaches in respect to the remuneration decision.

Opinion, ¶¶ 53-56. However, as stated, I would choose to analyze both commercial

provisions as one because I believe both restrictions implicate equal protection.

¶110 As written, the statutes create an absurd result where those with the most

debilitating medical conditions will have no access to medical marijuana because they

will not be able to grow it due to inability, cannot pay someone else to grow it, and will

not likely be able to find someone else to do so under the advertising prohibitions. As the

Majority notes, this class of persons will likely be forced into the black market to acquire

marijuana, creating business for the criminal enterprise the State seeks to avoid under the

Act. Opinion, ¶ 54. Here, I agree with the District Court that the statutes fail because as

written “[a] statute which is directly contrary to its justification cannot be rationally

related to that justification.” Because the commercial provisions fail to protect those

persons with the most debilitating conditions, I would likewise enjoin these commercial

provisions as they violate equal protection of the laws.

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       Advertising Ban

¶111 I disagree with the Majority’s application of the Central Hudson test. Opinion,

¶¶ 64-67.   I would apply strict scrutiny because I agree with the District Court’s

conclusion that § 341 of the Act “renders the ‘playing field’ for discussion of the pros and

cons of medical marijuana completely uneven.” I am not convinced by the Majority’s

attempt to limit the language of the Act to a plain-language analysis to establish a

commercial-speech basis for allowing the provision. Opinion, ¶¶ 62-63. Instead, I find

the language of the statute overbroad and vague. While the Majority reaches a narrow

interpretation of the language, I believe it is just as straightforward to come to the

opposite conclusion that broad restrictions on political and educational speech have

occurred under this law. Article II, section 7 of the Montana Constitution states: “No law

shall be passed impairing the freedom of speech or expression. Every person shall be

free to speak or publish whatever he will on any subject, being responsible for all abuse

of that liberty.” Because the language of § 341 creates content-based restrictions as

written, it fails an examination under strict scrutiny, which is the standard that should be

applied. I would affirm the District Court and enjoin § 341.

       Prohibition on Probationer Use

¶112 I would reverse the District Court’s determination that the prohibition on

probationer use under § 50-46-307(4), MCA, is constitutional because the State has

shown a rational basis for the provision. In my view, the law undermines the purpose of

the Act because it clearly bars a class of persons from access to a legally-recognized

                                         62
medicine: medical marijuana. Under the law, all sentences imposed by the district courts

include a prohibition on medical marijuana use, which precludes the district court’s

ability to apply a case-by-case “nexus” analysis under Ashby. As written, the effect of

the prohibition is unconstitutional because the blanket ban violates equal protection of the

laws, by classifying persons for different treatment, and it should be analyzed as such. I

would enjoin this provision.

       Warrantless Searches

¶113 I would reverse the District Court and enjoin the provisions allowing warrantless

searches under § 50-46-329, MCA, because these provisions provide carte blanche to

State and local law enforcement. I would uphold Montana privacy rights and use this

opportunity to strengthen our State’s privacy rights. The inspection procedures under the

Act result in a constant threat to potential business owners that law enforcement can enter

their premises and gather and develop evidence. I believe this provision will only create

hostility and enhance the State’s view of medical marijuana as a criminal endeavor rather

than a medicine available to those in need. Ultimately, the search provisions would be

better served by providing for warrantless administrative inspections to be carried out

only by a State agency with no direct involvement by local or State law enforcement.

       Conclusion

¶114 I agree with the Majority that the remuneration restrictions do not bear a fair and

substantial relation to the object of the legislation, and furthermore the provisions violate

the equal protection clause of the Montana Constitution. Opinion, ¶¶ 53-56. I disagree

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with the Majority on all of the remaining issues in this case and believe the Majority has

erred in its interpretation of the statutes. For the reasons stated above, I dissent.


                                                   /S/ MICHAEL E WHEAT




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