Missoula Marijuana Prosecutions Resume, Despite ‘Lowest Priority’ Initiative 2

Editor’s note: Make it Missoula has partnered with the University of Montana’s Online News class, taught by Jule Banville, to create a new Citizen Journalism feature that’s all about local views and issues. We’re excited to provide these students with a platform so they can objectively explore and report about the topics they think reflect the lives and times of Missoula and its citizens.


When voters in Missoula County passed Initiative 2 in 2006, recommending that officials treat adult marijuana offenses as “the lowest possible priority,” the Missoula County Attorney’s office complied, but with vocal reservations.

County Attorney Fred Van Valkenburg, speaking before the House Local Government Committee early this year, pointed out the initiative’s inherent confusion.

“How do I carry out the wishes of Missoula County and at the same time enforce state law?” he asked.

The initiative was amended by county commissioners to pertain only to misdemeanor marijuana crimes, but that didn’t go far enough for Van Valkenburg, who pushed – successfully – for House Bill 391, which prevents voters from deciding in the future what should or should not be a priority when it comes to enforcing state laws.

Passage in the legislature prompted the county attorney to formally change his office’s policy to “no longer treat enforcement of misdemeanor marijuana violations as our lowest priority,” said Van Valkenburg.

So with a new state law – which went into effect Oct. 1 – and a new local policy on the books, the question arises: What’s the impact?

Documents show that, in the month and a half since marijuana-related misdemeanors are no longer mandated low priority, only one person has been prosecuted.

On Sept. 21, Jack Wicks noticed a man in his window well and also noticed things out of place in his apartment. Police found Wicks and a witness with a suspect, Tanner Hosek, a few blocks away. Wicks told police said Hosek dropped a hat belonging to Wicks and that Hosek was wearing Wicks’ watch before the officers arrived. Hosek told the cops he’d been looking for his friend’s house and had knocked on Wicks’ window by mistake.

On October 1, the Missoula County Attorney's office resumed prosecuting misdemeanor marijuana offenses.

Police noticed Hosek had constricted pupils and was shivering, despite it being a relatively warm day outside. When they searched him, they found a glass jar allegedly containing marijuana and two expired medical marijuana cards. Hosek tested positive for marijuana, according to the prosecuting attorney’s affidavit. Charges of burglary and misdemeanor marijuana possession were filed against Hosek on Oct. 13.

But Hosek’s case may not be a result of the change in policy. Van Valkenburg said his office has always made exceptions to Initiative 2 in certain cases where the suspect is charged with felonies in addition to the marijuana charge. In addition to Hosek, seven others have been prosecuted for misdemeanor marijuana charges, though none of the four marijuana cases that have reached sentencing have resulted in actual jail time. The harshest sentence handed out was a six-month suspended sentence and a $75 fine, though the offender was sentenced to several years in prison on other offenses.

Van Valkenburg said prior to Oct. 1, his office was only prosecuting misdemeanor marijuana offenses if they were related to larger crimes.

“For instance, if somebody gets arrested on an aggravated assault and they are being booked into the jail, and they have marijuana in their possession then, no, we wouldn’t charge them,” Van Valkenburg said. “If someone is being arrested out on the street for cocaine and they have marijuana in their possession, then we would.”

The president of Montana NORML and chair of the county’s Initiative 2 oversight committee, John Masterson, noted that, though marijuana is usually found in the course of an arrest for some other offense, that does not mean marijuana is related to the crime.

“Sometimes they like to say marijuana is crime-related. I can turn around and say I bet you also found car keys and iPods at the scene,” Masterson said. “That doesn’t mean they are connected to or causing criminal activity — it’s just something very common.”

Many of these cases involving felonies originally came from the Missoula Police Department. Municipal Court only prosecutes misdemeanors, and when other felonies are included in the arrest, the case is sent to the County Attorney’s office.

Van Valkenburg said he “initially supported the lowest-priority policy after the initiative was amended to only apply to misdemeanor offenses” but changed his mind in late 2010 “after seeing the problems the lowest-priority policy were causing.”

“The initiative did not have the force of law. All it said was, it urged county law enforcement officers to treat marijuana crimes as their lowest priority. The sheriff’s office never treated marijuana laws as their lowest priority and the County Attorney’s office tried to follow the policy,” said Van Valkenburg, “I determined it was not a workable operation and therefore changed our policy.”

Van Valkenburg took issue with the uneven enforcement of marijuana laws across different jurisdictions, pointing out that, though the vast majority of marijuana crimes occur in the City of Missoula, the Missoula Police Department and municipal courts were not mentioned in the initiative and never followed the policy. In addition, no other county in Montana has a similar initiative, further complicating the jurisdictional confusion.

“The law is much better when it is treated equally from border to border in Montana, than trying to carve out some geographic place where laws don’t have the same force of priority,” Van Valkenburg said.

Masterson said marijuana legalization advocates had hoped that, though the city wasn’t bound by the initiative, its law enforcement would follow it anyway. He points out the strongest support for the initiative came from inside city limits.

“It was our, perhaps naïve, hope in conducting the campaign that because the city is within the county, that the message of the voters would include city officials but, by the letter of the law, it was addressed solely to county officials,” Masterson said. “It’s interesting that if you look at the vote breakdown, support was very strong inside the city, which is where most misdemeanor marijuana citations occur. People in the city felt that this should be an essentially zero-priority task, but unfortunately, the city is where it wasn’t followed.”

It is worth noting, said Masterson, that “the county attorney received very little in terms of marijuana prosecution opportunities.”

Daniel Viehland is a senior majoring in journalism and political science at the University of Montana.