Medical marijuana litigation update from Jessica Corry: Lawsuits pending

Last month, attorney Jessica Corry noted that attorneys were already preparing lawsuits targeting HB 1284, the bill designed to regulate the medical marijuana industry.

Now that Governor Bill Ritter has signed the measure, how quickly will we see litigation? Not imminently, Corry reveals -- but at least a couple of suits are in the works.

In recent days, Corry and some of her colleagues have met with the Department of Revenue's Matt Cook, who's taking a leading role in crafting regulations applicable to the new law. Via e-mail, she sings his praises: "While Senator [Chris] Romer and others were eager to push anything through the legislature, even when it resulted in more than 100 conflicting and ambiguous amendments being added to state law, Mr. Cook has demonstrated a cautious respect for the process and appears willing to sincerely listen to all parties involved."

Although Corry sees many aspects of HB 1284 and SB 109, which attempts to clarify the relationship between doctors and medical marijuana patients, as "hastily drafted," she is hopeful "that through these discussions, we can avoid at least some of the litigation we first anticipated needing to file."

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Not all, however.

"We are proceeding with litigation against the City of Centennial concerning its ban against dispensaries" under the assumption that officials will recodify the prohibition, she writes.

Last year, Centennial shut down a dispensary called CannaMart even though the enterprise had a valid business license. The lawsuit that followed was decided in CannaMart's favor, as Corry points out.

"In his ruling in December 2009, Arapahoe County Judge Christopher Cross clearly articulated a position that Centennial was not permitted to use the federal government's lack of recognition of medical marijuana rights as a justification to circumvent state constitutional rights," she argues. "Amendment 20 articulates a series of terms, including 'dispense,' which demand, under a reasonable reading of the Amendment's language that patients be provided a viable method of obtaining their constitutionally protected medicine. Dispensaries are clearly the way to do this for the vast majority of the state's estimated 130,000 patients."

According to Corry, other litigation will likely include a "challenge to the five-patient limit, which has previously been struck down when pursued by the executive branch three times. This limit is arbitrary and capricious and could have devastating consequences on price and accessibility for indigent and rural Coloradans."

In addition, "we have had a lot of interest in challenging local bans in parts of the state outside of Centennial and are considering these options as well. The residency mandate is most subject to constitutional scrutiny and we are talking with several possible plaintiffs at this point about bringing a suit in state court here.

"The other provisions we discussed as possible sources for challenges remain on our radar. Given limited time and resources, however, we are going to prioritize litigation based on provisions demonstrating the greatest and most immediate harm to patients and caregivers across Colorado."


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