In the end, though, Evans never got the chance to make distinctions like this one in open court. On February 29 of this year, District Judge Elizabeth Beebe Volz granted Dish's motion to dismiss before anyone set foot in a courtroom.In her findings, Volz cited two cases -- most prominently one involving Jason Beinor, a medical marijuana patient sacked from his street sweeping job after failing a drug test. The elements of the Coats and Beinor cases aren't identical; the latter dealt with an unemployment benefit claim, not his firing. Yet Volz describes the circumstances as "substantially similar," and she notes that the Beinor finding came up in a Court of Appeals opinion in a subsequent matter, People v. Watkins. The latter ruling "interpreted the Medical Marijuana Amendment" -- Amendment 20 -- "as merely providing 'an exception from the state's criminal laws for any patient in lawful posession of a "registry identification card" to use marijuana for medical purposes,'" she writes.
As such, Volz believes that these interpretations "limit the effect of the amendment as an affirmative defense to criminal prosecution" but don't "make the use of medical marijuana a lawful activity, so as to preclude an employer from termination based on this conduct." Hence, she found that "use of marijuana, even where such use is in full compliance with Colorado's Medical Marijuana Amendment, is not a lawful activity" and rejected Coats's complaint.
Evans is appealing the dismissal -- a decision for which he believes Dish wants Coats to pay dearly. "They filed a single motion to dismiss, which the trial court approved, and now they're seeking $44,000 in attorney fees from Brandon," he says. "That's their strategy: 'We don't want you to appeal, so we'll make this so expensive.' But we're fighting those fees and continuing with the appeal."In the meantime, Coats remains unemployed, as he has been since being being dumped by Dish in 2010. "Employers catch on very quickly as to why he's been terminated," Evans says. "So, with this being an unresolved issue, he's enrolled in a community college while he's been looking for employment and waiting for this issue to be resolved."
The appeal is expected to continue moving forward over the next month or so, with an opening brief describing why the case should be reversed and remanded to be followed by a response within thirty days. There's also the possibility that the State of Colorado could file an amicus brief -- although Evans can't predict at this point who officials might back.
"I don't know if they'll take the side of the employees who could lose their jobs or the corporations," he admits. "Their budget crises has been all but alleviated because of medical marijuana, and if they go with the corporations, they'll have to pay state benefits for unemployment. So it will be interesting to see what side they take."
Whatever happens, Evans hopes Coats will have an opportunity to personally share his experiences. "The Court of Appeals can request oral arguments," he says, "and I'd love nothing better than to wheel Brandon Coats into that courtroom."
Page down to read the original complaint, the motion to dismiss and the response that followed, the judge's order and the notice of appeal.