County appeals marijuana injunction; requests to have judge removed from case
Cascade County is appealing the temporary injunction regarding a marijuana operation that was issued by a District Court judge in November.
The county is appealing the injunction to the Montana Supreme Court and has asked that the judge on the case, Judge Amy Eddy, be disqualified and removed from the case.
The case stems from an August civil suit filed by Dale and Janelle Yatsko and their business Green Creek Dispensary.
They argue that they had been operating their medical marijuana growing facility and dispensary at 55 and 57 Gibson Flat Road since early 2016 with the county’s knowledge and consent.
The Yatskos lease the property and in 2015 it was zoned as commercial, where medical marijuana was not allowed under the county zoning regulations at the time, according to their complaint.
In their complaint, the Yatsko said that the property was too small to be rezoned to agricultural so the property owner, Sandra Dickman, purchased adjoining acreage to bring the total of the property to more than 20 acres to have it rezoned to agricultural.
The Yatskos argue in their suit that the county was aware of the intended use of the property when it granted the rezone request.
In a Nov. 5 order from Judge Amy Eddy granted the injunction to maintain the status quo of their marijuana operation while the case is further litigated, specifically whether the Yatskos operation should be grandfathered under the new regulations, which the Yatskos argue should happen, while the county argues they were not an allowable use before the regulations change and should not be grandfathered.
In a document filed Dec. 3 in District Court, Mark Higgins wrote that Eddy should be disqualified from the case due to the judge undertaking her own investigation into the matters of the case “and use the fruits of that independent query as part of its substantive findings and determinations…and second, that a court would rule upon a potentially key motion prior to even hearing from the party seriously disadvantaged by the motion, and make such a ruling on the motion even before the time to oppose it had run.”
Higgins in an attorney with the Montana Association of Counties and is representing the county in the case.
Higgins wrote that Eddy “has demonstrated personal bias or prejudice to Cascade County in these proceedings, such that disqualification for cause is appropriate.”
In a letter to Chief Justice Mike McGrath of the Montana Supreme Court, Eddy asks that on the issues raised by Higgins that McGrath review the transcript of the court records on the Yatskos attempts to get documents from the county and her findings detailing her attempt to also obtain those records.