Last Thursday, several of the state's prominent pot lawyers filed a motion to void a recent Colorado Board of Health decision to strike from its rules what it means to be a marijuana caregiver -- a move that upended the burgeoning medical marijuana industry. Starting at 8:30 a.m., Judge Larry Naves in Courtroom Six in Denver District Court considered the motion, hearing arguments from both sides -- the applicants and the Attorney General's Office. We were at the hearing, filing live dispatches. The most recent posts are at the top. To get the complete story, read from the bottom up.
10:50 a.m.: Judge Naves has returned. He only rules on the claimants' first claim of relief, which is that the Board of Appeals violated a court order two years ago that agencies considering marijuana rule changes would first notify people impacted by the rule changes.
"By the evidence presented here today, I find that the defendants have violated the court order when, in November, there was a meeting without notice that complied with the law and the parties changed the rules," says Naves. "I find that there was no emergency. The justification for an emergency was a Court of Appeals decision that was not even final. And the Court of Appeals could not use the [Board of Appeals rule in question]...
"It appears from the transcripts from the meeting on November 3rd [that they] did not understand how Court of Appeals decision even worked, even though it was suggested here that the explanation was given off the record...
"Even though the Court of Appeals had an opportunity to say in the ruling that this new rule was in conflict with this decision, they did not do that...
"[I had a concern] two years ago, and it appears that the board did the exact same thing they promised not to do. One of the reasons they violated the rules is that they seem to forget the plaintiffs in this case. In the transcript, there isn't any mention of the plaintiffs in the case... These people have, without dispute, serious problems for which they have prescriptions for medical marijuana... There was no mention of the impact of this change on these people... There is no consideration of how plaintiffs and others who need medical marijuana would obtain it...
"So, again, I find that the board in their November 3rd meeting violated the law. Therefore the rule change they enacted is invalid and void....
"The defendants are enjoined from enforcing that modification until a meeting in compliance with the court order and open meeting act can be held."
Judge Naves also awards reasonable attorney fees to the plaintiffs for enforcing the 2007 court order.
Court is in recess. The marijuana advocates have won.
10:30 a.m.: So what's at stake in Judge Naves' upcoming ruling? The temporary stability of the state's burgeoning medical-marijuana industry. Last week, the Board of Health nixed from its rules a definition suggesting that anyone who provided marijuana to a patient could be considered a caregiver. That rule, passed last July, has helped the dispensary industry flourish. By removing it and not replacing it with a new rule, the Board of Appeals left dispensary businesses up in the air.
Several marijuana lawyers are arguing today that the Board of Appeals did not respect open meeting laws and other rules when it made the change last week. If Naves agrees, the pivotal rule will likely put back in place, meaning the dispensaries would remain on surer footing. For now.
10:25 a.m.: There are three TV cameras in the courtroom. Looks like pot will once again make the afternoon news.
10:17 a.m.: Reporters crowd around Corry during the recess. Corry explains that Judge Naves, during the hearing so far, appeared to suggest that the Court of Appeals decision in the Clendenin case, which said caregivers should provide more for their patients than just pot, does not apply to patient-caregiver relationships statewide. Of course, since Corry says he'll be appealing the Clendenin decision to the Supreme Court (the Court of Appeals ruled against his client in the case), there's always a chance the Supreme Court will decide that the Clendenin decision DOES apply to many more situations.
Corry says that's a risk he's willing to take: "I don't think we should hold off and wait for a perfect case. This case is impacting someone's life."
10:09 a.m.: Judge Naves is taking a ten-minute recess before he rules.
10:05 a.m.: Holton concludes her arguments for the Attorney General's Office. Corry gets up and addresses a few of her points. "I don't know much, but I do know the Clendenin decision quite well," he says -- which is why he believes he should have been allowed to address the Board of Health about it last week.
10:02 a.m.: Judge Naves states that the Court of Appeals' Clendenin decision last month, which noted that a caregiver had to do more to provide for the well-being of a patient than just provide pot, did not apply to the Board of Health's ruling in July that a caregiver COULD just be someone who provides marijuana, because of the timing of the ruling. That seems to poke a huge hole in the Board of Health's argument that they had to have an emergency meeting, without public input, to nix that caregiver definition, as they did last week.
9:55 a.m.: The cameras are clicking as the judge hammers home the question about why the Board of Health would change rules without considering the impacts of patients on the medical-marijuana registry. Sounds like he'll be earning a few fans in the medical-marijuana community today.
"You took it up in July, and now you throw it out the window and say they can't get the medicine to let them live the healthiest life they can have. Let them wait until December," says the judge. The Board of Health is set to consider new marijuana-caregiver rules on December 16.
Holton notes that yesterday, the marijuana registry received more than 1,000 pieces of mail. Even though that included the marijuana applications received over the weekend, that's a lot of letters.
Judge Naves referenced the 2007 District Court decision that overturned the Board of Health's attempt to limited caregivers to five patients. He's saying he has the same concerns today he had then -- that the Board of Health did not seek needed public input before making these rules.
9:45 a.m.: Holton is addressing the spotty transcript. She notes the conference call was "extremely difficult." There were only 125 lines allowed in, which quickly filled, and board members couldn't get in. A second line was set up, but those listeners could be heard in the board room. It was "not done adequately," she says. The transcript, she says, is missing a key introductory section in which officials addressed whether or not the new Court of Appeals decision was in conflict with health rules.
Now Naves wants to know why Corry, the lawyer who represented Stacey Clendenin, the woman who triggered the Court of Appeals decision, was not allowed to weigh in at the hearing. "What's the emergency?" Naves asks again. "We all follow the Court of Appeals, but it's not even final today. What's the emergency to consider something that's not yet a law?
"Why do they have to act in one day, and not give notice to the plaintiffs here? What justified having to meet without giving people impacted by the decision ability to comment?"
9:32 a.m.: Judge Naves seems fired up. He's pressing Holton over why the Board of Health was so concerned over a Colorado Court of Appeals decision that did not appear to weigh in on the board's ruling in July to allow caregivers to just provide pot and no other health services. Why did the board overturn its new ruling right after the Court of Appeals decision, then?, he wonders -- something he's never heard of before. He wants to know where, in the (admittedly spotty) transcript, the board discussed whether or not the Court of Appeals decision was in conflict with the Board of Health's new rule. He jokes that maybe he missed it last night while watching the Broncos game.
9:26 a.m.: Anne Holton, for the Attorney General's office, now gets up. She explains that the ruling did not require additional notice or public comment. Several of the applicants' claims, she says, shouldn't be considered today, since they aren't relevant to the case being considered.
Holton notes that the Colorado Department of Public Health and Environment needs to hold a public meeting to discuss changes to medical marijuana rules when its required by the open meeting law and other acts. But this meeting was considered an emergency because of changes to state law by the recent Court of Appeals decision.
Now Judge Naves steps in. He references Corry's argument that the Clendenin decision would not consider the Board of Health July rule change. "After a valid hearing on the rules in July... people appearing for hours and hours and hours, you came up with rule. Then you have an emergency hearing over a ruling that wouldn't even consider the rule. How is that a direct conflict?"
9:20 a.m.: Brian Vicente, of Sensible Colorado, is now speaking for the applicants. He notes that the lack of notice of the Board of Health hearing showed willful violation of the 2007 order that required public feedback to medical-marijuana rule changes.
Judge Naves wants to know why notifying four judges isn't enough notice. Corry gets back up and said he could provide hundreds of marijuana patients who weren't notified.
9:15 a.m.: Judge Naves asks about the transcript of the teleconference last week. He wants to know who recorded it and whether it was an official recording. As Westword reported yesterday, the transcript, most of which was indiscernible, reads like Cheech and Chong go to Washington.
Corry responds, "This is what happens when the government moves hastily."
9:10 a.m.: Corry continues. He mentions a "straight-up open meetings act" concern. The open meeting act has no exception whatsoever for emergency meetings, he says.
While a few additional people have arrived to watch the proceedings, everyone is subdued. There are no hollers of "Shut up about your fucking mango," like during the Board of Health's teleconference hearing.
9:05 a.m.: Corry begins his argument. He notes that prior legal negotiations agreed to allow public comment to changes in the medical-marijuana regulations. He also argues that in the Court of Appeals' Clendenin decision that began the controversy several weeks ago, the judge suggested his ruling was not applicable to the new Board of Health ruling this past July. "There could not have been an emergency," he points out, that would have required the divisive, last-minute meeting last week by the Board of Health.
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He adds that under regulations, the board erred by not considering a petition Corry submitted during the hearing last week.
8:54 a.m.: The hearing begins at 8:48 a.m. Rob Corry, lead attorney for the applicants, is late -- which lets Judge Naves to start things off with some fun. When Corry walks in, the judge announces, "...and that's my ruling!" Hee hee hee.
8:40 a.m.: The hearing has yet to begin. There are just over a dozen members of the public here. As Brian Vicente, one of lawyers who filed the motion, said yesterday, they didn't send out a call for a massive activist crowd like at other hearings. Maybe this one will be quieter.