Last week, medical marijuana advocate Kathleen Chippi, who's collecting funds for a lawsuit to stop HB 1284, Colorado's main MMJ regulatory measure, criticized attorneys who'd announced their intention to sue over the bill last year but haven't done so. Why not? Lauren Davis, a lawyer in the group, offers a variety of reasons, most pertaining to divergent opinions among members.
"There were disagreements in legal analysis and legal strategy," Davis says.
There's no hint of such a schism in a May 17, 2010 press release entitled "Attorneys Announce Plan to Sue if House Bill 1284 is Approved." The document, on view in its entirety below, declares that a cadre of attorneys, including Bob Hoban, Jessica Corry, Brian Vicente, Rob Corry, Sean McAllister and Davis "will head to court should lawmakers grant final approval to a measure seeking to unconstitutionally restrict patient and caregiver rights."
But once Governor Bill Ritter signed HB 1284 into law, Davis notes, a variety of views emerged about what to do next "in terms of when would be the right time to file a lawsuit -- whether we should wait for someone to be prosecuted under the caregiver provision and challenge it as part of the defense of that suit, or whether we could bring an injunction prospectively to prevent those provisions from taking effect. There was a question of whether we would have standing, and whether we could meet the burden of a court finding irreparable harm without a prosecution having been undertaken. And because of those differences, there was never a meeting of the minds as to what the right approach would be to challenge 1284."
In addition, Davis continues, "there was a school of thought that we should sit back and wait for the legislature to correct some of the provisions that lobbyists were telling us would be changed in the next legislative session. A lot of people adopted a wait-and-see attitude, thinking that we wouldn't lose the ability to challenge down the road. And if the legislature fixed what their staff conceded off the record to lobbyists and other advocates -- that the staff knew some sections were unconstitutional -- it would be better to let them do it rather than filing a lawsuit to force them."
So... did HB 1043, the so-called MMJ clean-up bill, take care of these problems?
"Not even close," Davis acknowledges. Among the issues she mentions are the ability of municipalities to ban MMJ retail sale, the lifetime prohibition against individuals with past felony convictions from participating in the industry, and the rule requiring dispensaries to grow at least 70 percent of their product while obtaining no more than 30 percent from other sources, aka the 70-30 rule. "That's completely arbitrary," she believes.
Moreover, she goes on, "I think the caregiver provision got even worse. The constitution doesn't require a primary caregiver of a patient to register with the state. So a provision that requires the primary caregiver to register the location of the cultivation operation is highly problematic -- because you've essentially modified the constitution through a statutory requirement that should be outside the ability of the legislature."
Onetime group member Rob Corry agrees. In a post published yesterday, Corry said he would encourage Governor John Hickenlooper to veto HB 1043 in part because of this change for caregivers.
Is a suit against HB 1284 still possible?
"I don't think the window has closed," Davis allows, "but we've lost momentum, lost steam. The reason the primary caregiver provisions were so important was that, pre-1284, everybody was operating as a primary caregiver. But now, primary caregivers and center owners, employees and providers are two different routes to provide medicine, with two very separate sets of rules -- and most people are operating under the regulatory structure."
As such, entrepreneurs most financially able to fund a suit no longer have as great an incentive to do so. The result is what Davis calls "the freeloader effect. Everybody wants something for nothing. They want someone else to bear the brunt of the costs, and unfortunately, that's just not how lawsuits work in our society. They're extremely expensive, and it boggles my mind why people think attorneys who are already doing lots of pro bono work and dedicating lots of free time to educating patients, holding forums and essentially giving people free legal advice should be responsible for all the cost."
For this reason, Davis believes 1284 will likely be challenged in piecemeal fashion. Take the rule that prevents one caregiver from helping another during vacations, illnesses and the like. She predicts that "somebody will get prosecuted for assisting someone in providing medical marijuana to a patient, and they'll be charged under a complicity or conspiracy theory based on 1284. Then we would be able to challenge the legislature's ability to limit the authority of the primary caregiver to have others assist them."
But unless Chippi is able to raise the $25,000 to $50,000 needed to sue, Davis doubts that a full frontal assault on HB 1284 will be undertaken in the near future.
Look below to read the aforementioned press release.
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Hoban & Feola press release:
ATTORNEYS ANNOUNCE PLAN TO SUE IF HOUSE BILL 1284 IS APPROVED
May 17, 2010
Effort will include representation for indigent medical marijuana patients
DENVER -- On behalf of thousands of medical marijuana patients and the caregivers across Colorado, a coalition of medical marijuana attorneys announced today that they will head to court should lawmakers grant final approval to a measure seeking to unconstitutionally restrict patient and caregiver rights.
"While we have embraced reasonable regulation throughout this legislative session, this bill has several provisions that will arbitrarily restrict constitutionally-protected access to medicine," said Brian Vicente, executive director of Sensible Coalition, the state's leading non-profit voice for patient rights. "While we'd like to avoid litigation, the constitution is on our side, and we are hopeful that courts will once again find in our favor -- as they have done previously on several prior occasions when state officials have attempted to impose similar restrictions."
Joining Vicente in making today's announcement are Hoban & Feola's Bob Hoban and Jessica Corry, Denver attorneys Robert J. Corry, Jr. and Lauren Davis, and Breckenridge attorney Sean McAllister. The Colorado Wellness Association, a trade organization representing caregivers, has also pledged it support. Any litigation will include a commitment to pro-bono legal representation to indigent patients.
While the attorneys take issue with several provisions in House Bill 1284, they consider the following provisions most vulnerable to litigation:
• Limits on caregivers to provide medicine to just five patients or less. • Unconstitutional residency requirements, prohibiting individuals from owning wellness centers if they moved to Colorado after Dec. 15, 2009. • Excessive licensing fees on wellness centers. • Permitting local governments to ban medical marijuana dispensaries altogether. • A ban on granting licenses to any individual accused, but not yet convicted, of certain crimes.
On multiple occasions over the last four years, Vicente, Robert Corry, and McAllister successfully prevailed in Denver District Court and before the state Health Board, striking down restrictions mandating that caregivers provide for just five patients or less. In December 2009, Hoban, Davis, and both Corrys prevailed in Arapahoe County District Court on Centennial's efforts to ban medical marijuana dispensaries altogether. In his ruling on the case, Judge Christopher Cross rejected Centennial's arguments, saying they directly violated constitutional principles, including those laid out in Amendment 20. Medical marijuana has been legal under Colorado law since 2000, when a strong majority of voters approved Amendment 20.
Concerning residency restrictions, the attorneys explained their argument as follows:
"The U.S. Supreme Court has been very clear throughout our nation's history that discrimination based on state residency will only be permitted in the most limited of circumstances; it can only survive when the state can establish that the discrimination represents the least restrictive means possible and that absent such discrimination, out-of-staters will uniquely cause problems that can be attributed directly to them," said Hoban. "Lawmakers cannot meet this test. This discrimination is especially offensive in a state like Colorado, where so many of us were born elsewhere and where we should be welcoming newcomers instead of turning them away."
The attorneys say they will announce a timeline for the lawsuit, as well as other specifics, if and when the bill passes and their clients are ready to proceed...
More from our Marijuana archive: "Medical marijuana dispensary owner won't sign license application, calls it 'downright evil.'"