Last October, attorney Rob Corry wrote to John Hickenlooper to ask the then-Denver mayor to stop prosecuting Lacy Lee, a woman busted for smoking pot at a pro-cannabis rally; the case was later dropped. Now, Corry's written to Hick again, this time to offer expert analysis on HB 1043, a bill to clean-up aspects of last year's MMJ regulatory package. If Hickenlooper asks if he should sign the bill, what would Corry tell him? No.
Corry calls the measure "a mixed blessing," with some troublesome aspects embedded in the text. He admits to being "extremely disappointed that the moratorium was continued for another year" -- meaning new MMJ-related businesses will be prohibited from launching until July 1, 2012 at the earliest. In his view, "that locks in the same players, or forces people to buy out those same players if they want to get into the industry.
"I thought the original moratorium in HB 1284," the aforementioned 2010 law, "was ridiculous. But this is protectionism at its worst. I'm sure the existing industry undoubtedly lobbied for the moratorium, because they want to protect themselves -- and the government is being their benefactor. But the moratorium has the opposite effect the government says it wants, which is responsible, upstanding people who can pass background checks in this business. My experience has been that newer arrivals tend to be business-savvy people without criminal records. But with the moratorium, most of them can't get involved."
In addition, Corry objects to what he calls "the extreme restrictions on caregivers and the disclosure requirement that they register with the Department of Revenue, which is a violation of a promise made to all of us who've been involved in this entire process. The department told us, 'We don't care about caregivers. We just want to license centers and watch the commercial side of this.' But this bill requires them to register with the Department of Revenue and disclose their location in the Department of Revenue database, as opposed to the confidential database of the Department of Health."
The result, Corry believes, is that many caregivers will refuse to register -- and while it's unclear if they could be prosecuted for not doing so, "it would be a viable option for a district attorney to pursue," he says. "Of course, if that were to happen, and I were representing that person, I'd assert the defense that 1043 is unconstitutional, because the constitution gives caregivers confidentiality and keeps them out of view of government registration and that kind of thing."
Do these requirements contradict statements made by U.S. Attorney John Walsh in a letter sent to legislators about HB 1043? Corry thinks so. "He singles out caregivers as having special protection over and above centers and grows and other businesses that are a creature of statute -- and that's something interesting we haven't heard from federal prosecutors previously. I don't want to speculate about his intent, but it's possible that caregiving may be the only safe way to dispense medicine as far as the federal government is concerned. Although the counter-argument to that is Chris Bartkowicz," the MMJ grower prosecuted federally after he showed off his Highland Ranch grow to 9News. "He claimed caregiver status, because the center concept wasn't in existence yet."
Such apparent contradictions make it "hard to have a reasoned argument about this," Corry notes. "The ground rules are made up as we go along and are constantly shifting." Nonetheless, given what he considers the flaws of HB 1043, he would encourage Hickenlooper to veto the bill, "because the negatives are worse than the positive aspects."
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VIA U.S. MAIL AND FACSIMILE
May 24, 2011
The Honorable John Hickenlooper Colorado Governor State Capitol Denver, CO 80203
Re: Medical Marijuana Legislation, House Bill 11-1043
Dear Governor Hickenlooper:
Yesterday, May 23, 2011, the Colorado General Assembly sent you House Bill 11-1043 for your signature. That bill makes significant changes to Colorado's laws related to the medical use of marijuana. The Colorado Constitution, Article XVIII § 14, protects the medical use of marijuana, which may be in legal tension with federal criminal law.
Previously, on April 26, 2011, Attorney General John Suthers sent you a letter suggesting that state government officials creating or implementing Colorado's medical marijuana laws are potentially subject to federal criminal prosecution for violation of federal controlled substances laws. Mr. Suthers' letter attached a letter from John Walsh, United States Attorney for Colorado. Mr. Suthers' letter interprets Mr. Walsh's letter, and implies that you and your staff would be committing a federal criminal offense if you sign legislation effectuating a "scheme" (as Suthers calls it) for the for-profit distribution of marijuana.
Although I disagree with Mr. Suthers' analysis somewhat -- and strangely Colorado's own Attorney General is even more strident than Mr. Walsh, the federal prosecutor himself -- this threat cannot be ignored. After issuing the public letter and as a former U.S. Attorney himself, Mr. Suthers may have a conflict of interest and may not be able to fully and fairly advise you of personal legal consequences of your signature on this bill.
Sometimes a lawyer from outside the government can provide a valuable perspective. If you wish an alternate legal opinion from me, I would offer you and your staff my legal expertise, free of charge and for no compensation to me. I would keep anything we discuss strictly confidential.
To summarize my qualifications; I am an attorney specializing in Marijuana, to my knowledge, the only attorney in Colorado to prevail in Medical Marijuana-related litigation involving federal, state, and local entities. I have tried more jury trials related to Medical Marijuana than all other attorneys in Colorado combined, and such criminal prosecutions can end with "not guilty" verdicts or dismissals, and my client departing the courthouse with all Medical Marijuana seized. I served two years as Majority Counsel to the United States House of Representatives Judiciary Committee in Washington, D.C., and graduated from Stanford Law School.
If I can be of assistance to your decision-making process, please contact me at your convenience to schedule a meeting. Thank you very much for your time and consideration.
Robert J. Corry, Jr.
More from our Marijuana archive: "Rob Corry says Chris Bartkowicz medical marijuana bust proof the DEA has gone rogue."