On June 30, Kathleen Chippi and supporters filed a lawsuit claiming that medical marijuana regulations violate the state constitution, which made MMJ legal in Colorado.
Now, the state has responded by arguing in part that patients don't have a fundamental right to use medical cannabis.
This argument appears based in part on the case of Jason Beinor, a medical marijuana patient who was fired from his job as a street sweeper after failing a random drug test.
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 the 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, wasn't surprised by the ruling and doubted it would have significant repercussions -- but he appears to have been wrong. Shortly thereafter, the decision was mentioned by town attorneys while successfully defending Longmont's medical-marijuana-retail-business ban. And Chippi believes it's the foundation of Attorney General John Suthers's take on her suit, filed under the name Patient Caregivers Rights Litigation Project.
"The State responded by saying none of the plaintiffs have standing, because no one has a fundamental right to medical marijuana in Colorado," she says. "They responded to every single paragraph in our lawsuit by saying they're ignorant as to how to respond, since no one has standing. And that's a reference to the Jason Beinor case."
How is Chippi responding? On two fronts. "When I realized how important the Beinor case was, I spent a month e-mailing him," she notes. "Last week, he finally responded, and I was able to guilt-trip him into appealing." The complaint is expected to be filed next week by Chippi's attorney, Andrew Reid, with the Patient Caregiver Rights Project picking up the tab.
Meanwhile, Chippi and company have until October 3 to respond to the State's latest filing, and a large part of its counterattack will hang on the argument made by the dissenting Colorado Court of Appeals judge in the Beinor case. "His dissent covers almost everything in our lawsuit, and Andrew is running with it," she says. "He told me he feels pretty good about us being able to prove that we have fundamental rights."
Of course, Chippi's suit goes beyond that issue "to address patient privacy and caregiver rights to sell for profit," she acknowledges. "So we're going forward with our response as if Jason's case doesn't exist."
Nonetheless, there remains the possibility that the Project's suit will be tossed on the same grounds used to withhold unemployment benefits from Beinor. If that happens, "we would appeal our case directly to the state Supreme Court, too," Chippi reveals.
"I'll be honest: The Beinor case came out of nowhere," she goes on. "He didn't realize what was going to happen, and since he got another job, he wasn't even planning to follow through on the appeal. But right now, it's the strongest case in Colorado on this subject, and it says no one has a fundamental right" to medical marijuana.
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Potentially pursuing two Supreme Court cases simultaneously won't be cheap, and Chippi says, "I hope that once the centers find out what's happening, they might be more supportive of the lawsuits moving forward, and financially help us out. There's already a 50 percent decrease in red card applications from last year, and once patients realize that the cards won't protect them from anything, I don't see a lot of them signing up. People called me a fear-mongerer six months ago when I said, 'You're going to lose all your patients,' but that's what's happening."
Page down to see the State's answer to the Project's lawsuit; it can also be accessed by clicking here.
More from our Marijuana archive: "Medical marijuana: El Paso commissioners lean toward giving 2nd chance to shuttered MMC."