State v. Nelson

October 28 2008

DA 07-0339

IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 359

STATE OF MONTANA,

Plaintiff and Appellee,

v.

TIMOTHY SCOTT NELSON,

Defendant and Appellant.

APPEAL FROM: District Court of the Ninth Judicial District,
In and For the County of Pondera, Cause No. DC 2006-009
Honorable Laurie McKinnon, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Justin B. Lee, Burk, Lee & Bieler, PLLC, Choteau, Montana

Colin M. Stephens, John E. Smith Law Offices, Missoula, Montana

For Appellee:

Hon. Mike McGrath, Montana Attorney General, Tammy Plubell,
Assistant Attorney General, Helena, Montana

Mary Ann Ries, Pondera County Attorney, Conrad, Montana

For Amicus Curiae Patients and Families United and American Civil Liberties
Union Foundation of Montana:

Elizabeth L. Griffing, ACLU of Montana Foundation, Missoula, Montana

Craig Shannon, Patients and Families United, Missoula, Montana
 Submitted on Briefs: May 21, 2008

Decided: October 28, 2008

Filed:

__________________________________________
Clerk

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

¶1 Timothy Scott Nelson (Nelson) appeals two sentencing conditions imposed on him

in the District Court of the Ninth Judicial District Court, Pondera County. We reverse the

imposition of the challenged sentencing conditions and remand for further proceedings

consistent with this Opinion.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Sometime in April 2006, Pondera County Deputy Sheriff Carl Suta (Deputy Suta)

was contacted by a citizen informant who was known to Deputy Suta. The citizen

informant stated that s/he had been at a house in Conrad, Montana, when s/he

inadvertently went into a basement room containing several marijuana plants. After

receiving this information, Deputy Suta and Agent Mark Hilyard (Agent Hilyard) of the

Montana Department of Justice went to investigate. They observed a basement window

covered with black plastic and a PVC pipe protruding from the basement, both of which

indicated to Agent Hilyard the possibility that the basement was being used as a

marijuana grow room.

¶3 On April 10, 2006, Agent Hilyard and Deputy Suta collected garbage from the

residence. An examination of the garbage revealed Zig-Zag Premium Cigarette tubes, a

Jiffy greenhouse expandable pellet container, a marijuana stem and burnt toothpick, and

gold tinfoil that contained marijuana stems and seeds. The officers field tested these

items and determined they were consistent with the use and production of marijuana

plants. The garbage search also turned up mail with Nelson’s name on it, and the names

of two other residents of the house, Christine Hovde (Hovde) and Michelle Murray

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(Murray). Deputy Suta was familiar with Murray and knew that she had previously been

involved with law enforcement. In December 2006, Murray had offered to provide

information to a Teton County deputy about the existence of a methamphetamine lab, but

later retracted her offer.

¶4 On April 24, 2006, Deputy Suta obtained a search warrant for the residence. A

search of the house turned up evidence of a marijuana grow operation. While conducting

this search, officers also found several items which suggested a possible clandestine

methamphetamine lab, including a couple of cardboard boxes labeled “extra lab

equipment” or “lab shit,” and rubber gloves stained with iodine. Officers then stopped

their search and obtained a second search warrant. As officers were leaving the house,

Murray pulled into the driveway.

¶5 Upon conducting a search of the house pursuant to the second warrant, officers

uncovered a significant amount of evidence indicating that the residents of the house

were cooking methamphetamine there. Additionally, several marijuana pipes, seeds, and

containers of marijuana were found in the house, along with a bottle of morphine. It was

also discovered that Hovde’s two school-aged children lived in the house and had access

to all levels of the house, and that their clothing was mixed in with various components

of the methamphetamine lab. Murray subsequently agreed to talk to the officers after

being arrested and given a Miranda warning. She admitted to using marijuana, but

denied any knowledge of the existence of a methamphetamine lab.

¶6 Based on the evidence obtained pursuant to the two searches, the Pondera County

Attorney charged Nelson with the following seven counts on May 16, 2006: Count I,

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operation of unlawful clandestine laboratory; Count II, criminal possession of precursors

to dangerous drugs; Count III, criminal possession or manufacture of dangerous drugs;

Count IV, criminal endangerment; Count V, misdemeanor criminal possession of

dangerous drugs; Count VI, felony criminal possession of dangerous drugs; and Count

VII, criminal possession of drug paraphernalia.

¶7 Nelson suffers from a degenerative disc disorder and has had four surgeries on his

back. These injuries were sustained by Nelson when he was thrown from a vehicle in an

accident involving a drunk driver. Nelson had applied with the Montana Department of

Public Health and Human Services (DPHHS) to be a qualified patient in Montana’s

medical marijuana program (Program) and to be entitled to the lawful use of medical

marijuana. The statutes governing the Program are set forth in the Medical Marijuana

Act (MMA), Title 50, chapter 46, MCA, which implements a voter initiative approved on

November 2, 2004. Under the MMA, it is legal for citizens to use medical marijuana in

order to treat a variety of “debilitating medical conditions,” provided they have received

written certification from a physician that the potential benefits of medical marijuana use

would outweigh the health risks, they are accepted in the Program by DPHHS, and

otherwise comply with the requirements of the MMA. Sections 50-46-102 and -103,

MCA. The debilitating conditions for which medical marijuana may be used are

specifically defined in the MMA as follows:

(a) cancer, glaucoma, or positive status for human
immunodeficiency virus, acquired immune deficiency syndrome, or the
treatment of these conditions;
(b) a chronic or debilitating disease or medical condition or its
treatment that produces one or more of the following:

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 (i) cachexia or wasting syndrome;
(ii) severe or chronic pain;
(iii) severe nausea;
(iv) seizures, including but not limited to seizures caused by
epilepsy; or
(v) severe or persistent muscle spasms, including but not limited to
spasms caused by multiple sclerosis or Crohn’s disease; or
(c) any other medical condition or treatment for a medical condition
adopted by the department by rule.

Section 50-46-102(2)(a) through (c), MCA.

¶8 Furthermore, the MMA specifically defines “medical use” as,

[T]he acquisition, possession, cultivation, manufacture, use, delivery,
transfer, or transportation of marijuana or paraphernalia relating to the
consumption of marijuana to alleviate the symptoms or effects of a
qualifying patient’s debilitating medical condition.

Section 50-46-102(5), MCA. Additionally, the MMA further provides as follows:

(1) A qualifying patient or caregiver who possesses a registry identification
card issued pursuant to 50-46-103 may not be arrested, prosecuted, or
penalized in any manner or be denied any right or privilege, including but
not limited to civil penalty or disciplinary action by a professional licensing
board or the department of labor and industry, for the medical use of
marijuana or for assisting in the medical use of marijuana if the qualifying
patient or caregiver possesses marijuana not in excess of the amounts
allowed in subsection (2).
(2) A qualifying patient and that qualifying patient’s caregiver may
not possess more than six marijuana plants and 1 ounce of usable marijuana
each.

Section 50-46-201(1) and (2), MCA (emphasis added).

¶9 On December 8, 2006, subsequent to being charged with the drug-related counts,

Nelson was accepted by DPHHS into the Program, placed on DPHHS’ confidential

registry, and issued an identification card indicating his participation in the Program. On

February 7, 2007, Nelson entered into a plea agreement with the State. In exchange for

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pleading nolo contendere to Count III, criminal possession or manufacture of dangerous

drugs, Nelson received a three-year deferred imposition of sentence, and the State agreed

to dismiss the remaining six counts. On February 26, 2007, Nelson appeared before the

District Court and formally pled no contest to the charge in Count III.

¶10 During the sentencing hearing, the District Court expressed concerns about

Nelson’s use of medical marijuana, particularly given that Nelson apparently acted as a

parent to Hovde’s two school-aged children. The District Court asked Nelson’s attorney

Justin B. Lee (Lee) how Nelson participated in the Program. Lee explained that Nelson

submitted an extensive application to DPHHS describing his chronic pain condition, and

that upon acceptance into the Program he was allowed to use medical marijuana under

the provisions of the MMA. However, Lee explained that a physician could not actually

prescribe marijuana due to federal licensing restrictions. The State offered that it had

spoken to officials at the Department of Corrections, who opined that they would not

allow Nelson to smoke marijuana while under their supervision, but would allow him to

use the pill form of marijuana, Dronabinol, as prescribed by a physician. Lee argued that

such a restriction on Nelson’s use of medical marijuana would be cost prohibitive for him

due to the expense of Dronabinol, and was thus contrary to the intent behind the passage

of the MMA, which was to allow individuals to obtain medical relief through the use of

medical marijuana in a manner that was cost-effective.

¶11 The District Court was unpersuaded by Lee’s argument and concluded it was in

the best interests of the children to restrict Nelson to the prescription pill form of

marijuana during the deferred term of his sentence. The District Court acknowledged the

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legitimacy of the MMA, but believed that restricting Nelson’s use of medical marijuana

in this manner would be less intrusive to family members and help him be a better parent

to the children.

¶12 Nelson was ultimately given a three-year deferred imposition of sentence subject

to twenty conditions. Condition No. 9, as set forth in the Judgment and Sentence, reads

in part as follows:

The Defendant shall comply with all city, county, state, federal laws,
ordinances, and conduct himself as a good citizen.

¶13 Condition No. 10 reads as follows:

The Defendant will not possess or use illegal drugs or any drugs unless
prescribed by a licensed physician. Although the Defendant states he has
a medical use exception which allows him to possess marijuana, the
Defendant may not possess marijuana except in pill form and only then by
prescription from a licensed physician. The prescription may not be more
than 6 months old. The Defendant may not have a prescription older than
6 months in his possession. The Defendant will not be in control of or
under the influence of illegal drugs, nor will he have in his possession any
drug paraphernalia.

¶14 Nelson now timely appeals the imposition of these two sentencing conditions.

Nelson maintains the District Court imposed an illegal sentencing condition in Condition

No. 10 by restricting him to the use of medical marijuana in prescription pill form. He

also maintains that the District Court exceeded its authority in requiring him to obey all

federal laws in Condition No. 9, because federal law, in particular the Controlled

Substances Act (CSA), codified at 21 U.S.C. § 801, prohibits the possession of marijuana

and does not provide an exception for the use of medical marijuana pursuant to state law.

See 21 U.S.C. §§ 841, 844. Nelson argues that the District Court is improperly enforcing

8
federal law against him by restricting him from the lawful use of medical marijuana

under state law. Amici Curiae American Civil Liberties Union Foundation of Montana

and Patients and Families United (collectively Amici), join Nelson in seeking a reversal

of these sentencing conditions. The State urges us to affirm these conditions, arguing that

they do not constitute an illegal sentence and that the District Court did not abuse its

discretion in imposing them.

¶15 On December 27, 2007, after the issues before the Court were fully briefed by the

parties, the State filed a motion to strike material contained in Nelson’s reply brief on the

grounds that it was outside the record. Specifically, the State sought to strike from the

reply brief two appendices and supporting discussion whereby Nelson sought to “correct”

certain information contained in the pre-sentence investigation (PSI). We subsequently

took the motion under advisement. Because the disputed portions of Nelson’s reply brief

played no role in the disposition of the matter before us, the State’s motion to strike is

rendered moot. Thus, we restate the issues on appeal as follows:

¶16 Issue One: Did the District Court exceed its statutory authority by requiring

Nelson to comply with Condition No. 10 during the term of his deferred sentence?

¶17 Issue Two: Did the District Court exceed its authority when it imposed Condition

No. 9 and required Nelson to comply with federal law which prohibits the possession of

marijuana and does not provide an exception for the use of medical marijuana pursuant

to state law?

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¶18 Issue Three: Did the District Court violate the prohibition on cruel and unusual

punishment under the United States Constitution and Article II, Section 22 of the

Montana Constitution in imposing Condition No. 10 on Nelson’s deferred sentence?

STANDARD OF REVIEW

¶19 We review the legality and propriety of sentencing conditions under the two-prong

standard as set forth in State v. Ashby, 2008 MT 83, 342 Mont. 187, 179 P.3d 1164. First,

we review a sentencing condition for legality. Ashby, ¶ 9. This inquiry requires us to

consider whether the district court lacked statutory authority to impose the condition,

whether the condition falls outside the parameters set by the applicable sentencing

statutes, or whether the district court did not adhere to the affirmative mandates of the

applicable sentencing statutes. State v. Brotherton, 2008 MT 119, ¶ 10, 342 Mont. 511,

¶ 10, 182 P.3d 88, ¶ 10. This presents a question of law which we review de novo.

Brotherton, ¶ 10.

¶20 Second, “because sentencing statutes authorize sentencing judges to impose

conditions on deferred or suspended sentences that constitute ‘reasonable restrictions or

conditions considered necessary for rehabilitation or for the protection of the victim or

society,’ the ‘reasonableness’ of such conditions will be reviewed for an abuse of

discretion.” Ashby, ¶ 9 (quoting § 46-18-201(4)(n), MCA (2005)). An abuse of

discretion occurs when a district court acts arbitrarily without the employment of

conscientious judgment or exceeds the bounds of reason, in view of all the circumstances,

ignoring recognized principles resulting in substantial injustice. Schuff v. Jackson, 2008

MT 81, ¶ 15, 324 Mont. 156, ¶ 15, 179 P.3d 1169, ¶ 15.

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 DISCUSSION

¶21 Issue One: Did the District Court exceed its statutory authority by requiring
Nelson to comply with Condition No. 10 during the term of his deferred sentence?

¶22 Nelson argues the District Court imposed an illegal sentence upon him by

requiring him to abide by Condition No. 10 during his deferred sentence. Nelson asserts

that in enacting the MMA, the voters of Montana sought to provide qualifying patients

with a cost-effective way to manage pain and treat debilitating conditions, and that

limiting him to the use of marijuana in a prescription pill form defeats that purpose and is

cost-prohibitive. Nelson argues that under the MMA, his use of medical marijuana

should be treated as a prescription drug recommended by a doctor and a lawful means of

treating a debilitating condition. Nelson claims his argument in this regard is supported

by People v. Tilehkooh, 7 Cal. Rptr. 3d 226 (Cal. App. 3 Dist 2003).

¶23 Additionally, Nelson claims Condition No. 10 constitutes an illegal sentence

because it denies him the right to use medical marijuana, contravening § 50-46-201(1),

MCA. Nelson maintains that the District Court erroneously treated his use of medical

marijuana in the home as though it was illegal, and by unduly restricting his use of

medical marijuana i t prevented him from improving and rehabilitating himself and

needlessly required him to suffer physical pain.

¶24 In this connection, Amici point out that the District Court did not state that it was

attempting to protect the children from second hand smoke or the effects of marijuana,

nor did it attempt to set conditions concerning when, where, and how Nelson could

smoke, eat, or vaporize marijuana. Instead, the District Court issued a blanket

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prohibition on the use of marijuana in its plant form. Moreover, Amici note that the

MMA does place limitations upon the use of medical marijuana, but does not prohibit

qualifying patients who are under state supervision from using medical marijuana. The

provision of the MMA referenced by Amici reads as follows:

(1) This chapter does not permit:
(a) any person to operate, navigate, or be in actual physical control
of any motor vehicle, aircraft, or motorboat while under the influence of
marijuana; or
(b) the smoking of marijuana:
(i) in a school bus or other form of public transportation;
(ii) on any school grounds;
(iii) in any correctional facility; or
(iv) at any public park, public beach, public recreation center, or
youth center.
(2) Nothing in this chapter may be construed to require:
(a) a government medical assistance program or private health
insurer to reimburse a person for costs associated with the medical use of
marijuana; or
(b) an employer to accommodate the medical use of marijuana in
any workplace.

Section 50-46-205, MCA.

Because of this provision, Amici maintain that once the District Court decided to defer

Nelson’s sentence, and not sentence him to a correctional facility, i t was without

authority to carve a new exception to the MMA and prevent Nelson from using medical

marijuana in accordance with the MMA while he was under state supervision.

¶25 The State urges us to affirm the District Court. As an initial matter, the State notes

that Nelson was not a participant in the Program at the time of his arrest or when the State

filed the Information against him. The State also notes that Nelson admitted in the PSI

that he had used marijuana illegally for years, and suggests that Nelson only elicited the

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protection of the MMA “after he got caught.” In this regard, the State argues that

Tilehkooh is distinguishable and that People v. Bianco, 113 Cal. Rptr. 2d 392 (Cal. App.

3 Dist. 2001) applies. In Bianco, a California Court of Appeals held that a trial court

acted within its discretion when it imposed a sentencing condition preventing a defendant

from using medical marijuana while on probation under California’s version of the

MMA, the Compassionate Use Act of 1996 (CUA), Cal. Health and Safety Code Ann. §

11362.5 (West 1996). Bianco, 113 Cal. Rptr. 2d at 397. The State urges us to adopt

Bianco’s reasoning to the effect that “state law providing for the medical use of

marijuana does not abrogate the trial court’s traditional discretion to impose appropriate

conditions of probation,” including a restriction on the use of medical marijuana. Bianco,

113 Cal. Rptr. 2d at 395.

¶26 The State further argues that Nelson’s past history, along with his conviction and

the facts of his case, suggest that he may be addicted to marijuana. Thus, the District

Court was within its discretion to prohibit him from smoking marijuana in furtherance of

his rehabilitation. Similarly, the State argues that the District Court had legitimate

reasons to be concerned for the safety of the children, because in addition to

manufacturing marijuana in his home, Nelson had the precursors to a methamphetamine

laboratory. These facts suggest that Nelson does not exercise good judgment as a parent,

and provided another basis for the District Court to restrict him to the use of marijuana in

prescription pill form. Additionally, the State argues that the MMA itself evinces a

concern for the safety of children in light of the fact that marijuana is generally illegal, by

prohibiting the use of medical marijuana in public places where children congregate.

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(See ¶ 24.) Thus, under the circumstances of the case, the District Court acted within its

discretion in imposing Condition No. 10 out of concern for the children and to ensure that

Nelson exercised better judgment as their parent.

¶27 Under Ashby, the threshold question is whether the imposition of Condition No. 10

constituted an illegal sentencing condition. Ashby, ¶ 9. In light of the plain language of

the MMA, we conclude that the District Court exceeded its statutory authority in

imposing Condition No. 10. The District Court unlawfully denied Nelson the right and

privilege to use a lawful medical treatment for relief from a debilitating condition under

the MMA. Thus, we reverse the imposition of this condition and remand for further

proceedings.

¶28 In reaching this conclusion, we find the decision of the California Court of

Appeals in Tilehkooh persuasive. Tilehkooh, a participant in California’s medical

marijuana program, was convicted of misdemeanor possession of marijuana, and

subsequently found to have violated a probation condition on the basis that he possessed

and was using marijuana. Tilehkooh, 78 Cal. Rptr. 3d at 230-31. The CUA, like the

MMA, contained a provision that prevented users of medical marijuana from being

“ ‘subject to criminal prosecution or sanction.’ ” Tilehkooh, 7 Cal. Rptr. 3d at 229 n. 3

(quoting Cal. Health and Safety Code Ann. § 11362.5(a)(B) (West 1996)). In light of the

plain language of the CUA, the California Court of Appeals reversed the conviction for

the probation violation primarily because a probation condition which prohibited the

lawful use of a prescription drug could not be said to serve a “rehabilitative purpose.”

Tilehkooh, 7 Cal. Rptr. 3d at 229. As stated by the court in Tilehkooh,

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 A probation condition, even if it is not a violation of the criminal
law, must be reasonably related to the crime of which the defendant was
convicted or to future criminality. However, it ordinarily cannot be said
that the treatment of an illness by lawful means is so related.

Tilehkooh, 7 Cal. Rptr. 3d at 234 (quotation omitted).1

¶29 Simply put, the MMA, like the CUA, takes the possession and use of medical

marijuana “and puts it in a special category apart from other legal acts, such as the use of

alcohol, that can properly be made a condition of probation.” Tilehkooh, 7 Cal. Rptr. 3d

at 237 (Morrison, J., concurring). When a qualifying patient uses medical marijuana in

accordance with the MMA, he is receiving lawful medical treatment. In this context,

medical marijuana is most properly viewed as a prescription drug. See People v. Mower,

49 P.3d 1067, 1082 (Cal. 2002) (analogizing the use of medical marijuana under the

CUA to the use of prescription drugs).

¶30 The State argues that the prescription pill limitation in Condition No. 10 is

reasonable and lawful. We disagree. As noted above, “medical use” under the MMA

specifically contemplates “cultivation” and the use of “paraphernalia relating to the

consumption of marijuana.” Section 50-46-102(5), MCA. Moreover, § 50-46-201(2),

MCA, provides that a qualifying patient may possess up to six marijuana plants and one

ounce of usable marijuana. In limiting Nelson to the ingestion of marijuana in pill form,

and requiring him to have a physician’s prescription to do so, the District Court ignored

1
In Tilehkooh the California Court of Appeals appears to have implicitly overruled the holding
of Bianco. See Tilehkooh, 7 Cal. Rptr. 3d at 236. Thus the State’s reliance on Bianco is
misplaced.

15
the clear intent of the voters of Montana that a qualifying patient with a valid registry

identification card be lawfully entitled to grow and consume marijuana in legal amounts.

¶31 Nelson admittedly has a past history of illegal drug use, and has pled guilty to

possessing the precursors of a methamphetamine lab. Thus, an order precluding him

from using marijuana would presumptively satisfy the nexus requirement for sentencing

conditions. However, the MMA states unequivocally that a qualified patient in the

Program “may not be arrested, prosecuted, or penalized in any manner or be denied any

right or privilege, including but not limited to civil penalty or disciplinary action by a

professional licensing board or the department of labor and industry, for the medical use

of marijuana . . . .” Section 50-46-201(1), MCA (emphasis added). The MMA simply

does not give sentencing judges the authority to limit the privilege of medical use of

marijuana while under state supervision.

¶32 We recognize that some find the very idea of medical marijuana a hard pill to

swallow, given that use of marijuana is generally illegal and has been so for some time.

However, as Judge Alex Kozinski stated in his concurrence in Conant v. Walters, 309

F.3d 629 (9th Cir. 2002), while the allowance of medical marijuana “may seem faddish

or foolish . . . the public record reflect[s] a legitimate and growing division of informed

opinion on this issue. A surprising number of health care professionals and organizations

have concluded that the use of marijuana may be appropriate for a small class of patients

who do not respond well to, or do not tolerate, available prescription drugs.” Conant,

309 F.3d at 640-41 (Kozinski, J., concurring) (quotation omitted). Simply put, whether

or not medical marijuana is ultimately a good idea is not the issue before the Court.

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Instead, our concern is solely with the plain language of the MMA and the sentencing

authority of the District Court in this case.

¶33 While we conclude that a district court does not have the statutory authority to

impose a sentencing condition which denies a qualifying patient the right to use medical

marijuana in accordance with the MMA, this is not to say that there can be no restrictions

on lawful medical marijuana use. A sentencing court is free to impose limitations on the

place of use, and may certainly order that marijuana not be used in the presence of

children. Moreover, just as a sentencing court may impose a condition that prohibits a

defendant from abusing lawfully-obtained prescription drugs, so may a court prohibit a

defendant from abusing medical marijuana. However, an outright ban on the “medical

use” of marijuana as contemplated by the MMA exceeds the statutory authority of the

District Court. Therefore, we reverse the imposition of Condition No. 10.

¶34 Issue Two: Did the District Court exceed its authority when it imposed Condition
No. 9 and required Nelson to comply with federal law which prohibits the
possession of marijuana and does not provide an exception for the use of medical
marijuana pursuant to state law?

¶35 Nelson maintains that the District Court exceeded its authority when it imposed

Condition No. 9 on his deferred sentence, because it required him to obey all federal

laws, including the CSA which makes it a federal offense to possess marijuana and does

not provide an exception for medical marijuana use in accordance with state law. Nelson

argues that by imposing this condition, the District Court was indirectly enforcing federal

law and contravening state law. Nelson argues that state officials are not required to

17
enforce federal laws and that “as much as the federal government may prefer that

Montana keep medical marijuana illegal, it cannot force the state to do so.”

¶36 We agree with Nelson that the District Court also exceeded its authority in

imposing Condition No. 9, insofar as it could be invoked to support a revocation of his

deferred sentence in the face of contrary state law. It is an axiom of federalism under the

U.S. Constitution that Congress does not have the authority to commandeer the processes

of states “by directly compelling them to enact and enforce a federal regulatory

program.” New York v. United States, 505 U.S. 144, 161, 112 S. Ct. 2408, 2420 (1992)

(quotation omitted). This principle was forcefully articulated by the United States

Supreme Court in Printz v. United States, 521 U.S. 898, 117 S. Ct. 2365 (1997), as

follows:

Congress cannot compel the States to enact or enforce a federal regulatory
program. . . . The Federal Government may neither issue directives
requiring the States to address particular problems, nor command the
States’ officers, or those of their political subdivisions, to administer or
enforce a federal regulatory program. It matters not whether policymaking
is involved, and no case-by-case weighing of the burdens or benefits is
necessary; such commands are fundamentally incompatible with our
constitutional system of dual sovereignty.

Printz, 521 U.S. at 935, 117 S. Ct. at 2384.

¶37 As Judge Kozinski noted in his concurrence in Conant, the tension created

between the criminalization of marijuana on the federal level, and its legalization for

medical use in states such as Montana, may indeed run afoul of this “commandeering”

doctrine. Conant, 309 F.3d at 645 (Kozinski, J., concurring). Moreover, under principles

of federalism as expressed in the U.S. Constitution, “states must be free to develop a

18
variety of solutions to problems and not be forced into a common, uniform mold.”

Addington v. Texas, 441 U.S. 418, 431, 99 S. Ct. 1804, 1812 (1979). This freedom

extends to the “great latitude” given the states “under their police powers to legislate as to

the protection of the lives, limbs, health, comfort, and quiet of all persons.” Gonzalez v.

Oregon, 546 U.S. 243, 270, 126 S. Ct. 904, 923 (2006) (quoting Medtronic, Inc. v. Lohr,

518 U.S. 470, 475 (1996)). In other words, just as the CSA is a valid exercise of the

federal government’s authority, see Gonzalez v. Raich, 545 U.S. 1, 22, 26-33, 125 S. Ct.

2195, 2209, 2211-2215 (2005) (upholding the ability of the federal government to punish

medical marijuana use which is permitted under state law, by virtue of its authority under

the Commerce Clause of the United States Constitution), the MMA is a valid exercise of

Montana’s police power under the dual state and federal structure embodied in the United

States Constitution. The MMA does not in any way prohibit the federal government

from enforcing the CSA against medical marijuana users like Nelson if it chooses to do

so; however, a state court may not, under these circumstances, use violation of the federal

law as a justification for revocation of a deferred sentence. Therefore, while the District

Court may require Nelson to obey all federal laws as a condition of his deferred

sentenced, it must allow an exception with respect to those federal laws which would

criminalize the use of medical marijuana in accordance the MMA. We accordingly

reverse the imposition of Condition No. 9, but only insofar as it relates to enforcing the

CSA at the expense of the MMA.

¶38 Issue Three: Did the District Court violate the prohibition on cruel and unusual
punishment under the United States Constitution and Article II, Section 22 of the

19
 Montana Constitution in imposing Condition No. 10 on Nelson’s deferred
sentence?

¶39 Because of our holdings on Issues One and Two, we decline to reach this issue.

CONCLUSION

¶40 We conclude the District Court exceeded its authority by requiring Nelson to

comply with Condition No. 9, insofar as it subjected him to the possibility that his

deferred sentence could be revoked based upon a violation of federal law. While Nelson

may be generally required to obey federal law, an exception must be made for lawful use

of medical marijuana under the MMA. Condition No. 10 also exceeds the District

Court’s sentencing authority, and insofar as it denies Nelson the right and privilege to use

medical marijuana as contemplated by the MMA, it must be stricken as well. Therefore,

we reverse the imposition of these two conditions and remand for further proceedings

consistent with this Opinion.

/S/ PATRICIA COTTER

We concur:

/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ BRIAN MORRIS

Justice Jim Rice, dissenting.

¶41 I respectfully dissent from the Court’s conclusion that the District Court

“exceeded its statutory authority” when imposing Condition 10. Opinion, ¶ 33. I agree

20
with the Court’s initial determination to review Condition 10’s legality pursuant to the

MMA, but disagree with the Court’s conclusion that the District Court “unlawfully

denied Nelson the right and privilege to use a lawful medical treatment . . . .” Opinion,

¶ 27. In my view, the Court’s conclusion is disconnected from the facts of this matter.

Further, I believe the Court relies on California law inconsistently and reads additional

requirements into the MMA.

¶42 First, the Court concludes that “an outright ban on the ‘medical use’ of marijuana

as contemplated by the MMA exceeds the statutory authority of the District Court.”

Opinion, ¶ 33. Of course, Condition 10 is actually not “an outright ban” on the medical

use of marijuana, but merely limits the form in which Nelson may use medical marijuana.

Nothing in the MMA prohibits a court from limiting the form in which medical marijuana

is consumed. See §§ 50-46-201 et seq., MCA.

¶43 Second, the Court relies upon the California case of Tilehkooh but disregards the

same court’s decision in Bianco. However, Tilehkooh is inapposite and Bianco’s

analogous facts should guide the Court.

¶44 The issue in Tilehkooh was whether California’s Compassionate Use Act (CUA),

the equivalent to the MMA, was violated when Tilehkooh’s probation was revoked based

on his lawful use of marijuana. Tilehkooh, 7 Cal. Rptr. 3d 226. The California Court of

Appeals concluded that revocation of Tilehkooh’s probation was an impermissible

penalty because marijuana had been lawfully prescribed under the CUA. Tilehkooh, 7

Cal. Rptr. 3d at 233. In reliance on Tilehkooh, the Court here states: “When a qualifying

patient uses medical marijuana in accordance with the MMA, he is receiving lawful

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medical treatment. In this context, medical marijuana is most properly viewed as a

prescription drug.” Opinion, ¶ 29. While there are situations where the Court’s

conclusion may well be correct, this case is not one of them.

¶45 Nelson was not a qualified MMA patient at the time he committed the crime.

Accordingly, he was not using marijuana as a “prescription drug.” To the contrary,

Nelson illegally used marijuana and such illegal use is not protected by the MMA.

Because Nelson’s crime does not involve the “medical” use of marijuana, his case is

entirely distinguishable from Tilehkooh, and Bianco is analogous.

¶46 Like Nelson, Bianco pled guilty to a felony charge of cultivating marijuana and in

the interim, before sentencing, qualified for medical use of marijuana under the CUA.

Bianco, 113 Cal. Rptr. 2d. at 394-95. At sentencing, the trial court imposed a probation

condition prohibiting him from using or possessing marijuana. Bianco complained that

the condition violated his right to use medically prescribed marijuana. The court rejected

his argument and determined that the CUA “cannot be read so broadly as to abrogate the

trial courts traditional discretion to impose appropriate conditions of probation.” Bianco,

113 Cal. Rptr. 2d at 396. “In the absence of specific language prohibiting the imposition

of the type of probation condition at issue here, this court must review the trial court’s

decision based on the legal principles that traditionally govern the imposition of

probation conditions.” Bianco, 113 Cal. Rptr. 2d at 396. This conclusion only makes

sense: a defendant must be sentenced for the crime he has committed, under the law as it

existed when he committed it.

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¶47 Like Bianco, Nelson qualified under the MMA after he committed the crime and

pled nolo contendere. At the time of his crime, Nelson was not authorized to use

marijuana under the MMA. Accordingly, as in Bianco, the illegal use of marijuana is at

issue and the MMA cannot fairly be read to ex post facto negate a condition otherwise

properly imposed for that crime. Neither should it be read to interfere with a court’s

discretion to impose sentencing conditions for that crime.

¶48 However, the Court avoids the implications of Bianco by reasoning that Tilehkooh

“implicitly overruled the holding of Bianco.” Opinion, ¶ 28 n.1. However, a careful

reading of Tilehkooh reveals that the Tilehkooh Court simply distinguished Bianco when

considering the issue of whether Tilehkooh’s probation was revocable on the basis that

his medical use of marijuana was violative of federal law. Tilehkooh, 7 Cal. Rptr. 3d at

236. In support of its argument, the State of California had offered Bianco, but the

Tilehkooh Court simply distinguished Bianco on the ground that the Bianco Court “did

not consider the fact that what was being enforced was state and not federal law.” In my

view, this statement did not “implicitly overrule” Bianco, but merely explained why

Bianco was inapposite to the State’s argument on the federal issue. Accordingly, the

Court should consider the importance of Bianco when relying upon California law.

¶49 Moreover, I believe the Court reads into the MMA a new restriction upon the

imposition of sentencing conditions for persons convicted of illegally using marijuana.

Our duty when interpreting statutes is simply “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. The MMA states that “[a] qualifying patient or

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caregiver who possesses a registry identification card issued pursuant to § 50-16-103 may

not be arrested, prosecuted, or penalized in any manner or be denied any right or

privilege . . . for the medical use of marijuana . . . .” Section 50-46-201, MCA. Pursuant

to the plain language of § 50-46-201, MCA, the MMA should not render Condition 10

illegal because Nelson was not “arrested, prosecuted, or penalized in any manner . . . for

the medical use of marijuana . . . .” (Emphasis added.) Simply put, Nelson’s sentence

penalizes him, not for the medical use of marijuana, but rather, relating back to his crime,

penalizes him for the illegal use of marijuana prior to his qualification as a MMA patient.

Then, given Nelson’s post-crime MMA qualification, the District Court found the

“perfect solution”: it prohibited Nelson’s use of plant form marijuana because of his past

crime, but permitted the pill form to satisfy his future medical need. Unfortunately, the

Court’s application of the MMA negates a condition properly imposed for the crime, and

which is not invalidated under the plain language of the MMA.

¶50 Because I would conclude that Condition 10 is facially legal, I would proceed to

review the reasonableness of Condition 10 for an abuse of discretion by determining

whether there is a sufficient nexus between the condition and the offense or the offender.

See Ashby, ¶ 7. Here, Condition 10 is clearly related to the offense and the offender.

Condition 10 is reasonable considering that Nelson has a ten-year history of illegal

marijuana use—use that pre-dated his MMA qualification. Indeed, absent its conclusion

that Condition 10 violates the MMA, the Court notes that Nelson’s past illegal drug use

“would presumptively satisfy the nexus requirement for sentencing conditions.” Opinion,

¶ 31. Moreover, Nelson smoked marijuana in his home where children are present.

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Limiting his use of marijuana to pill form is reasonable considering the presence of

children in the home and the near impossibility of monitoring a restriction on the place of

use—a limit likewise suggested by the Court. Opinion, ¶ 33.

¶51 For these reasons, I would conclude that Condition 10 is a permissible sentencing

condition that is both legally valid and reasonable.

¶52 I dissent.

/S/ JIM RICE

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