Last May, medical marijuana attorney Rob Corry was among a group of attorneys threatening to sue if HB 1284 and SB 109, a pair of MMJ measures, became law. Nearly a year after Governor Bill Ritter signed both bills, such a suit has yet to materialize. But Corry swears that one is on the way -- and he's written a letter to Colorado Attorney General John Suthers informing him about it. See the letter below.
Medical marijuana advocate Kathleen Chippi is trying to raise money toward her own lawsuit against HB 1284, the state's main MMJ regulatory offering, and she recently chided the aforementioned attorneys for not pulling the trigger on their promised challenge. (She also says she gave one member of the team $5,000 as a down-payment on a suit and has yet to get it back.) Legal team member Lauren Davis subsequently revealed the reasons for the non-filing, including strategic disagreements among the attorneys and a lack of funding to push forward prior to July 1 of this year, when the laws formally take effect.
As for Corry, he feels that had action been taken last year, "I think any court would have had a question about whether the suit was premature. And honestly, I wanted to see how this would play out. I wanted to see if patients would be harmed or helped by 1284. I had my suspicions, but I didn't know. I don't think anybody knew. But now, we have much more knowledge than we did then."
Of course, Corry acknowledges, some questions remain -- including how the state's Medical Marijuana Enforcement Division will administer the regulations. For clues, see yesterday's interview with MMED head Dan Hartman about rejected license applications, fines and more.
Still, Corry feels the time is finally right for a filing, and he plans to do so prior to July 1 -- likely in Boulder District Court. His primary avenues of attack?
"There's a provision in the Colorado constitution that says the state legislature is required to pass any regulations related to medical marijuana by April of 2001 -- and it did pass a bill before that date. So there's an argument that 1284 and 109 are untimely and should be thrown out in total. By passing regulations after the industry was already in existence, the state acted too late -- and the constitution says that in black and white."
Couldn't the state claim the legislation was necessary because the industry developed in a way voters could never have envisioned and it would have been remiss had it not acted?
"That would be an argument if there wasn't a specific constitutional authority to the contrary," Corry maintains. "The state's option would have been to amend the constitution to allow it more time. And it didn't do that." In addition, Corry points out that his letter to Suthers also "details individual parts of 1284 and 109 that are constitutionally suspect," including those that allow communities to ban MMJ retail operations.
The funding of the suit remains an issue. Davis told Westword that many of the larger MMJ operations -- those with the most resources -- have decided to live under the laws rather than asking the courts to strike them down, and Corry agrees. "There are many different types of people in this industry, and they don't all have the same motives," he stresses. "But some of these people have paid their fees and want to see the regulations go into place. And there is a protectionism angle on this with the moratorium being continued" -- a reference to HB 1043, which would prevent licenses for new centers from being issued until July 2012. As such, Corry says, "they have a monopoly of sorts."
The result? "I don't have full funding for the lawsuit at this point -- and I'd like to have it," Corry allows. "But I'm not going to wait for that. I've been trying unsuccessfully to fund it for months, but that's okay. There is some money, and I'm going forward at a greatly reduced rate."
He's also hoping other attorneys will join him in this mission, and is working on assembling a coalition.
In the meantime, he's informed Attorney General's office of his intent to sue, even though his reading of Suthers' April letter to U.S. Attorney John Walsh suggests that the AG believes any state employee aiding and abetting the MMJ industry is breaking federal law. Nonetheless, Corry says he received a prompt response from the office "basically saying, 'We will defend the statutes in total and won't recuse ourselves.' So I guess they're not worried about being federal criminals -- or if they are, they've made their choice. Just like the industry."
As for those who think Corry is merely rattling his sabre and won't actually follow through on a suit, he offers a simple statement: "I have every intent to file."
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More from our Marijuana archive: "Medical marijuana: Rob Corry wouldn't sign MMJ clean-up bill if he were John Hickenlooper."