Medical marijuana: CO Supreme Court ruling leaves patients unprotected, plaintiffs say
Last year, marijuana activists asked the Colorado Supreme Court to hear the appeal of a precedent-setting case involving MMJ patient Jason Beinor, who was fired from his job for failing a drug test. Now, by a 3-2 vote, the Supremes have declined to take up the matter -- a decision the plaintiffs see as devastating for patients' rights.
In lieu of an interview about the court's decision -- technically, the petition for a writ of certiorari was denied -- Kathleen Chippi and Rico Colibri, who funded the appeal through Cannabis Alliance for Regulation and Education (CARE), issued a joint statement. "The Colorado Supreme Court continues to frustrate the will of the people by refusing to make a final decision on state medical marijuana rights, a decision that will ultimately have to be made," they write. "The denials are another tragic blow to medical marijuana patients."
They add that "patients now have no protections from losing their jobs, unemployment benefits, occupational licenses, fire arms, school grants, government aid, housing, insurance and/or child custody over their use of medical marijuana."
As we've reported, Beinor was employed by Service Group Inc. to sweep the 16th Street Mall. However, he was fired after failing a random drug test, even though he's a legal patient.
Afterward, Beinor filed for unemployment benefits, and a hearing officer eventually ruled in his favor because there was "no reliable evidence to suggest that...claimant was not eligible for a medical marijuana license" or that his use of marijuana negatively impacted his job performance. But his employer appealed the decision, and a panel ruled in the company's favor, citing Article XVIII of the Colorado constitution, which states that an employee who tests positive during working hours for "controlled substances" that are "not medically prescribed" doesn't qualify for benefits. The Colorado Court of Appeals concurred by a 2-1 margin, with the majority finding that patients don't have carte blanche to violate firms' policies and practices.
Beinor, who represented himself in the case, doubted that the ruling would have significant repercussions. But shortly thereafter, the decision was mentioned by town attorneys while successfully defending Longmont's medical-marijuana-retail-business ban. And Chippi, who's also challenged HB 1284 and SB 109, the state laws put in place to regulate the MMJ industry, believes the answer to her suit submitted under the auspices of Attorney General John Suthers -- namely, that there is no fundamental right to medical marijuana in Colorado, despite a constitutional amendment permitting its use by patients -- is built upon the Beinor ruling.
Developments like these explain why Chippi talked Beinor into appealing the decision, and why her Patient Caregivers Rights Litigation Project, in conjunction with CARE, paid attorney Andrew Reid to petition the Colorado Supreme Court to look at the Colorado Court of Appeals' conclusions.
But no: As Reid points out via e-mail, Chief Justice Michael L. Bender and Justice Monica M. Márquez wanted to hear Beinor and another case rejected by the Colorado Court of Appeals -- that one involving Leonard Charles Watkins, a patient denied the right to use medical marijuana while on probation. But three of their colleagues on the court turned thumbs down, squashing such a prospect.
In the view of Chippi and Colibri, the Watkins rejection could have an even more detrimental impact on MMJ patients than does the Beinor turn-down. Why?
As noted in our previous coverage, Watkins wound up on probation as the result of a 2005 conviction involving sexual assault on a child. Nonetheless, a judge had sanctioned his use of MMJ, much to the chagrin of 18th Judicial District DA Carol Chambers. In an e-mail statement to 9News, Chambers wrote, "Does anyone think it's a good idea to allow a convicted sex offender to get high? People on probation have admitted to violating the law. There are different public safety concerns and different laws that apply to them than apply to the rest of the community." No surprse, then, that Chambers's office subsequently challenged the decision to allow medical cannabis use.
Before the Colorado Court of Appeals, Watkins argued that Amendment 20, which legalized medical marijuana in Colorado, "is paramount and necessarily prevails" over probation rules that forbid him from using or possessing "any narcotic, dangerous or abusable substance without a prescription," according to the ruling on view below. The judges on the Court of Appeals were not persuaded, however. Here's a key excerpt from their decision:
The Amendment provides that it shall be an exception from the state's criminal laws for any patient in lawful possession of a "registry identification card" to use marijuana for medical purposes.... Under the Amendment, however, a physician does not prescribe marijuana, but may only provide "written documentation" stating that the patient has a debilitating medical condition and might benefit from the medical use of marijuana... Therefore, defendant's physician's certification does not constitute a "written lawful prescription" as required by the terms of his probation.
Just as important is this passage, which refers to the original ruling against Beinor:
As a division of this court recognized in Beinor, the Amendment created a defense to criminal prosecution and is not a "grant to medical marijuana users of an unlimited constitutional right to use the drug in any place or any manner."
In the view of Chippi and Colibri, "the Watkins ruling has an even greater impact on marijuana consumers" than does Beinor, in that "it upholds federal preemption." They add, "The ruling means that federal law trumps state medical marijuana laws even though no sufficient federal preemption doctrine analysis on medical marijuana has been conducted."
For these reasons, Chippi and Colibri feel it's more important than ever that Colorado voters approve broader use of marijuana -- for recreational purposes, as well as medical ones -- in the November election. Amendment 64, the Regulate Marijuana Like Alcohol Act, has already been approved, but Chippi and Colibri support Amendment 70, whose backers are currently collecting signatures in the hope that it, too, will make the ballot. Amendment 70 would make cannabis use a right in Colorado, and they believe that's key given the Supreme Court's disinterest in tackling the Beinor and Watkins cases.
"CARE filed initiative 70 in an effort to have language that clearly protects adults who choose to use cannabis and addresses all the issues not addressed in the other proposed marijuana language," they write. "Initiative 70 removes all criminal cannabis laws, creates a constitutional right for adults, regulates cannabis equal to tobacco and prohibits any state resources from being used to enforce federal marijuana laws against adults in compliance with state law."
In lieu of such actions, Chippi and Colibri think "responsible adult marijuana users will not be able to live normal lives without the constant threat of federal preemption."
CARE press release:
Colorado Supreme Court decision to not hear the Beinor-V-ICAO and the People -v- Watkins appeals
The Supreme Courts denial to hear the appeals in both Beinor-v-ICAO and People-v-Watkins demonstrates a pattern of judicial activism that started with the People-v-Clendenin ruling in 2009, that went un-appealed. The lower Courts have misread the Constitution and the Colorado Supreme Court continues to frustrate the will of the people by refusing to make a final decision on state medical marijuana rights, a decision that will ultimately have to be made. The denials are another tragic blow to medical marijuana patients.
The Beinor ruling means that possession of medical marijuana is merely decriminalized. More importantly, patients now have no protections from losing their jobs, unemployment benefits, occupational licenses, fire arms, school grants, government aid, housing, insurance and/or child custody over their use of medical marijuana. The denial is surprising, as the Attorney General filed a cross petition of cert for the case to be heard. The appeal was funded primarily by Kathleen Chippi through Cannabis Alliance for Regulation and Education (CARE), founded by Rico Colibri, with help from the medical marijuana industry groups ACT4CO and CBA.
The Watkins ruling has an even greater impact on marijuana consumers, as it upholds federal preemption. It's denial to be heard did not come as a surprise as the Attorney General did not petition Watkins be heard. The ruling means that federal law trumps state medical marijuana laws even though no sufficient federal preemption doctrine analysis on medical marijuana has been conducted.
The Watkins appeal made by Sensible Colorado actually conceded to the federal preemption ruling up front and addressed only a patients right to use medical marijuana while on probation. However the Beinor ruling already clarified that patients do not have a right to use medical marijuana. Unfortunately, even if Watkins had been heard, the lack of a federal preemption challenge in their arguments would have created a moot win because the appeal agreed that state medical marijuana laws are trumped by the Federal Controlled Substances Act (CSA).
If the highest court in Colorado will not hear the peoples appeals to clarify the 'grey' medical marijuana language in our constitution that then begs the question of "What's next for Colorado?" These rulings are important lessons. When Coloradans amend our constitution the language must be clear and concise and cannot be ambiguous or the courts will not uphold the intent. In order to create a constitutional right to use marijuana, the language must clearly say that.
Vague constitutional amendments do not supersede the state CSA, as ruled in Beinor, and the citizens pay the price in the courts. To protect adults who use marijuana, either medically or recreationally, we need to concisely create a state right and deny state resources from being used to enforce federal laws against adults in compliance with state law. With Watkins ruling, there are now no protections to sell marijuana, either medical or recreational. CARE took precautions in the event these appeals were denied by the Colorado Supreme Court by authoring initiative 70, which can be found at the Colorado Secretary of states site or at equalizecannabis.com.
CARE filed initiative 70 in an effort to have language that clearly protects adults who choose to use cannabis and addresses all the issues not addressed in the other proposed marijuana language. Initiative 70 removes all criminal cannabis laws, creates a constitutional right for adults, regulates cannabis equal to tobacco and prohibits any state resources from being used to enforce federal marijuana laws against adults in compliance with state law. Currently, across the nation, states have passed statues or legislative resolutions rejecting both Real ID and Obamacare in direct conflict with the federal supremacy clause. During alcohol prohibition, some states refused to enforce federal laws prior to the federal government repealing alcohol prohibition.
Without these protections from the bad Beinor and Watkins rulings, responsible adult marijuana users will not be able to live normal lives without the constant threat of federal preemption and the collateral consequences of leaving marijuana in the CSA.
Kathleen Chippi CARE
Rico Colibri CARE
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More from our Marijuana archive: "Medical marijuana lawsuit filed, claims regulations violate state constitution."
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