My Magazine: Montana Lawmaker Targets Judge Who Issued Cannabis Ruling

Thursday, 19 January 2017

Montana Lawmaker Targets Judge Who Issued Cannabis Ruling

HELENA, Mont. (AP) — A Republican Senate leader who says he wants to stop judges from treading on the Legislature’s turf has introduced a measure that would rebuke a Montana judge for changing the effective date of a voter-approved medical marijuana ballot initiative.

The bill introduced Wednesday by Senate Majority Leader Fred Thomas, R-Stevensville, is the second measure this session in which Republicans in the Senate majority take issue with judicial rulings they say usurped their authority.

Last month, District Judge James Reynolds of Helena said a drafting error in the medical cannabis ballot initiative inadvertently delayed the effective date to July. He ruled the measure — which removed restrictions on the drug’s distribution imposed by the Legislature in 2011 — should be effective immediately, which allowed dispensaries across the state to reopen starting Dec. 7.

Thomas’ bill also would make the voter-approved law effective immediately. But the measure also contains a passage that says the judge violated the Montana Constitution’s separation of powers provisions with his ruling.

Thomas said Thursday that the bill is meant to send a message to the state’s judicial branch and prevent it from legislating from the bench.

“The only way you change the law is by the Legislature or the people by initiative,” Thomas said.

Thomas’ measure follows the passage earlier this month of a Senate resolution to intervene in a lawsuit that seeks to extend the term of Commissioner of Political Practices Jonathan Motl to 2019.

The Senate confirmed Motl to a term that expired on Jan. 1, but District Judge Kathy Seeley of Helena signed an order allowing Motl to stay in office until the case is resolved.

The sponsor of the resolution, Sen. Nels Swandal, R-Wilsall, said he believes the court does not have any authority to change that date.

The Legislature and the people by initiative may share exclusive power to write laws, but it’s the judiciary’s power to say what those laws mean when applied to particular cases, University of Montana law professor Anthony Johnstone said.

In the case of the medical marijuana initiative, courts for centuries have corrected typos in laws, which are called scrivener’s errors, Johnstone said. In Motl’s case, the court is seeking to resolve a dispute about the law that sets the commissioner’s term, he said.

“As the courts seek to work that out, they will commonly provide temporary relief to the parties,” Johnstone said of the order to temporarily keep Motl in office. “Just as the judiciary doesn’t have the power to write the laws — that is, to legislate — the Legislature lacks the power to decide cases, which is to apply the law in a specific case.”