Marijuana: Paralyzed MMJ patient plans Supreme Court appeal over DISH sacking

Last year, Brandon Coats, a paralyzed medical marijuana patient fired by DISH for failing a drug test, filed a complaint over the issue in Arapahoe District Court. When he lost there, attorney Michael Evans brought the case to the Colorado Court of Appeals.

Now, those jurists have also rejected Coats's argument. But Evans says he and Coats aren't done fighting.

Next hoped-for stop: the Colorado Supreme Court. Details and documents below.

As we've reported, Coats, who's in his thirties, is paralyzed over 80 percent of his body. At age sixteen, he was a passenger in a vehicle that crashed into a tree.

Since then, Coats has used a wheelchair to get around, but he's fully capable of working -- and in 2007, he was hired by DISH as a customer service representative. Over the years that followed, his original lawsuit contends that prescription medicine Coats took to treat involuntary muscle spasms began to fail. When searching for a way to deal with these symptoms, his physicians recommended that he supplement his regimen with medical marijuana. He received his state-issued license for MMJ in August 2009 and found that cannabis helped alleviate his spasms. However, the complaint stresses that he never used marijuana at work, during work hours or anywhere on the company's premises.

In May 2010, Coats was ordered to take a random drug test. He's said to have told the employee administering the test that he was an MMJ patient, but this wasn't taken into account when he registered a positive for THC. The agent who broke the news allegedly told him that his status as a patient didn't matter: "That is just Colorado state law and does not apply to your job." Two weeks later, Coats was fired for violating the company's drug policy.

Evans took DISH to court, arguing that Coats's activities were constitutionally protected. But in February 2012, Araphaoe District Judge Elizabeth Beebe Volz granted DISH's motion to dismiss. Among the cases she cited to justify this ruling was one involving Jason Beinor, a medical marijuana patient sacked from his street sweeping job after failing a drug test.

As we've noted, the elements of the Coats and Beinor matters aren't identical; the latter dealt with an unemployment benefit claim, not his firing. Yet Volz described the circumstances as "substantially similar," and she noted that the Beinor finding came up in a Court of Appeals opinion in a subsequent matter, People v. Watkins; that dispute involved an MMJ patient on probation who was told he couldn't medicate without violating his parole.

After more judicial machinations, the Coats case reached the Colorado Court of Appeals. But in a 2-1 decision, the court sided with DISH. The majority decision, written by Judge Janice Davidson and on view below in its entirety, is summarized like so:

The primary question before us is whether federally prohibited but state-licensed medical marijuana use is "lawful activity" under section 24-34-402.5, C.R.S. 2012, Colorado's Lawful Activities Statute. If it is, employers in Colorado would be effectively prohibited from discharging an employee for off-the-job use of medical marijuana, regardless that such use was in violation of federal law. We conclude, on reasoning different from the trial court's analysis, that such use is not "lawful activity."

The bottom line: Because marijuana remains against federal law, employers can use that standard rather than state law as a rationale for banning worker use even off the job.

Judge John Webb dissented to the ruling, writing, "In my view, 'lawful activity' under section 24-34-402.5, C.R.S. 2012, Colorado's off-duty conduct statute, should be measured by state law. I further conclude that use of marijuana in a manner permitted by the Medical Marijuana Amendment, Colo. Const. art. XVIII, § 14 (MMA), is lawful." But this opinion didn't sway his colleagues.

Evans's take?

Continue for more about the Brandon Coats ruling, including the complete decision.   "This was a hard decision, because there are a lot of competing interests," Evans says. "So I think they did what was safe. And I also think there's one level above them.

Michael Evans and Brandon Coats at DISH.
Michael Evans and Brandon Coats at DISH.

"That's what happens a lot of the time. Trial judges and then Court of Appeals judges may side on the conservative side with an abundance of caution and let somebody else take the risk -- like the Colorado Supreme Court. If anyone is going to tell the federal government that state law is going to prevail in this case, it's going to be the Colorado Supreme Court."

As such, the Court of Appeals decision "was not a surprise," Evans notes. "Brandon and I have always said this case is bound for the Colorado Supreme Court, if not the U.S. Supreme Court. It's just part of the process."

With that in mind, Evans plans to prepare a petition for certiorari with the goal of convincing the state Supreme Court to take another look at the case -- and he is optimistic that the judges there will do so. "If you look at the Colorado Court of Appeals and the Colorado Supreme Court, the first word is 'Colorado.' Their job is to enforce state as well as federal law, but they need to advocate for what their state constitution says -- and I think that if somebody is going to take up that cross, it's going to be the top court in the state."

As for Coats, he's currently enrolled in school and continues to look for work, but he hasn't found a gig since DISH cut him loose. Nonetheless, Evans characterizes him as upbeat. "He's always that way," he says. "Obviously, we hope for the best but prepare for the worst. We were both hoping for a different outcome. But just the same, we knew what our attack was going forward, and he's ready and prepared for that."

Here's the Court of Appeals ruling:

Colorado Court of Appeals: Brandon Coats Ruling

More from our Marijuana archive: "Medical marijuana card not a license to smoke on probation, court rules."

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