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Omdahl: Medical marijuana in for long, difficult siege

By Staff | Feb 10, 2017

Anyone who has read the 23-page initiated measure providing for medical marijuana has to agree that the Legislature did the right thing to suspend its effective date until July 1.

The detail required to create such a program lends itself more to the normal legislative process than a “yes” or “no” vote at the polls. However, the Legislature brought this curse upon itself when it refused to give the subject consideration in the 2015 session.

The sponsors of medical marijuana are nervous about legislative intervention even though they agreed that more implementation time was needed. Their concern is justified because the 2015 session tells them that their program now is in hostile hands.

All they need to do is look at Montana where an initiated measure passed in 2004 to legalize medical marijuana but a hostile legislature kept adding restrictions until it was unusable. It took a referendum in 2016 to roll back the restrictions.

If the Legislature adds too many restrictions to the use of medical marijuana, as it did in Montana, it may end up in another initiated measure reversing legislative overreach. After all, 64 percent of the electorate approved the measure so the public sentiment is on the side of the initiating committee.

In old legislative jargon, the North Dakota Legislature has given the initiated measure “hoghouse” treatment, meaning that the whole measure is being rewritten. In the 81-pages of revisions, the first 13 sections of the measure are being amended and reenacted; another 29 sections are being created and enacted.

To alter an initiated measure, state constitution requires the Legislature to muster a two-thirds vote for the first seven years of the legislation. The action of this Legislature raises a couple of important questions.

Does creation and enactment of 29 sections give the Legislature ownership of those sections of the law, making them exempt from the 7-year rule?

Do the 13 sections that have been amended and reenacted leave those sections under the 7-year rule?

Answers to these questions will be important in the next couple of sessions when more amendments will be required by the Legislature. When will the 7-year restriction apply?

A delay in implementation of initiated medical marijuana laws has been common in the states. In North Dakota, measures go into effect 30 days after approval in the election. This was an impossible deadline for the State Health Department to organize, fund and draft regulations.

Even though 25 states now have medical marijuana, the federal government is standing firm on the position that marijuana has no scientific data to support its claim of therapeutic value.

Plans of the Trump administration in relation to enforcing federal law outlawing marijuana are unknown. They are clouded by the decision of the Ninth Circuit Court in San Francisco (where else?) in which it declared that the U.S. Department of Justice could not touch state laws permitting use of marijuana.

Even after the Legislature gets done correcting the measure, a couple of serious challenges will continue to confront the Health Department.

First of all, the Department and the Legislature will be under siege by everyone in the state with an ailment to include their condition on the list of “medical debilitating conditions.”

Second, leakage will occur and unqualified people, through relationships, friendships and bribery, will acquire marijuana. Experience in other states indicates that policing will be difficult, if not impossible.

Third, the rise of a national profitable marijuana industry will be in North Dakota to fund a relentless campaign to broaden marijuana use to recreational purposes.

Medical marijuana is in for a long difficult siege.

Omdahl is a former lieutenant governor and former political science professor at UND.

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