Marijuana. AG Cynthia Coffman Thinks Feds Should Be Target of Pot Lawsuit

On Friday, the Colorado Attorney General's Office shared its official response to a complaint filed with the U.S. Supreme Court by Nebraska and Oklahoma over Colorado's marijuana laws.

But while the AG's office asks the Supremes to reject the arguments of these states, a Coffman statement released in conjunction with the brief, shared below along with a supportive document from Oregon and Washington and the original complaint, made it clear that she sympathizes to some degree with the plaintiffs' plight.

And during an address this weekend, she was even more explicit in her belief that the federal government should be the real target of the lawsuit — because the feds have allowed Colorado to pass a measure that contradicts U.S. drug law.

As we've reported, law enforcers in Nebraska and Oklahoma had been up in arms for months about Amendment 64, the 2012 measure that legalized limited marijuana sales in Colorado, prior to the December filing of its Supreme Court complaint.

The suit maintains that  "Amendment 64 and its resultant statutes and regulations are devoid of safeguards to ensure marijuana cultivated and sold in Colorado is not trafficked to other states, including Plaintiff States."

It adds that "in passing and enforcing Amendment 64, the State of Colorado has created a dangerous gap in the federal drug control system enacted by the United States Congress. Marijuana flows from this gap into neighboring states, undermining Plaintiff States' own marijuana bans, draining their treasuries, and placing stress on their criminal justice systems."

For a sense of how Colorado's brief responds, here's its introduction:
Colorado’s voters, as well as those in nearly half the States, have made a policy decision to legalize and regulate marijuana at the state level. Marijuana related activities, of course, remain illegal under federal law.... But this case does not concern questions the Court settled a decade ago in Raich and Oakland Cannabis. No one contends that Colorado law trumps the federal marijuana ban or immunizes anyone from federal prosecution. Instead, the question here is whether a State that chooses to legalize marijuana is then prohibited from regulating the market for it.

Nebraska and Oklahoma concede that Colorado has power to legalize the cultivation and use of marijuana — a substance that for decades has seen enormous demand and has, until recently, been supplied exclusively through a multi-billion-dollar black market. Yet the Plaintiff States seek to strike down the laws and regulations that are designed to channel demand away from this black market and into a licensed and closely monitored retail system. They suggest that the federal government will backfill the resulting regulatory vacuum, even though the Presidential Administration has indicated it lacks the resources and the inclination to fully enforce the federal marijuana ban; Congress has partially endorsed the Administration’s non-enforcement policy; and the States have, for the last four decades, carried out the vast majority of marijuana enforcement across the country.

The Plaintiff States’ attempt to selectively manipulate Colorado’s marijuana laws — leaving legalization intact but eliminating large swaths of state regulatory power — is a dangerous use of both the Supremacy Clause and the Court’s original jurisdiction, and it is unlikely to redress the Plaintiff States’ alleged injuries. The Court should deny the Motion for Leave to File and dismiss the Complaint.
Strong words — but while a Coffman statement stressed that "my office remains committed to defending Colorado’s law," she added that "at the same time, I share our border states’ concerns regarding illegal marijuana activity, and my office, as well as our partner state and local law enforcement agencies, are committed to stopping marijuana diversion.

The statement concludes like so: "This lawsuit, however, even if successful, won’t fix America’s national drug policy — at least not without leadership from Washington, D.C., which remains noticeably absent.” 

This shot at the Obama administration was reinforced in remarks Coffman made on Saturday at the spring meeting of CLUB 20, a venerable Western Slope political organization.

According to the Grand Junction Daily Sentinel, Coffman said that a Supreme Court decision in support of Nebraska and Oklahoma would leave the legalization vote in place even as it stripped away the regulations created to manage cannabis legalization.

In her words, “I don’t see anything but chaos on the other end of that decision."

Yet Coffman didn't deny that border states have had to deal with Colorado marijuana breaching their borders, and she used the indictment last week of 32 people in an operation dubbed #GoldenGofer as evidence that her office and others representing Colorado law enforcement are serious about putting a stop to the exporting of pot.

She also argued that "the appropriate target of legal action by Nebraska and Oklahoma is the federal government, which has been less than clear or direct about dealing with the conundrum of four states having legalized recreational marijuana while it remains a controlled substance under federal law," the Sentinel reports.

This stance implies that Coffman would like to keep her distance from a policy that doesn't thrill her even as she fulfills her legal requirement to defend Colorado before the Supreme Court.

Not that she's shying away from the fight. During the CLUB 20 get-together, she noted that the AGs from Nebraska and Oklahoma were present at a recent meeting she attended as well — and while one gave her icy treatment, the other one "waved sheepishly."

Her takeaway? "So now I know who is the warrior and who I can settle with,” she said. “Maybe I’ll play them against one another.”

As for Washington Attorney General Bob Ferguson, his statement about the reasons Washington and Oregon are weighing in on behalf of Colorado is much less nuanced than was Coffman's.

It reads:
"I am disappointed that Nebraska and Oklahoma took this step to interfere with Colorado’s popularly enacted initiative to legalize marijuana. I filed this brief to protect Washington’s interests and the will of Washington’s voters from interference by other states.

“If the Supreme Court takes the unfortunate step of agreeing to hear this case, it will threaten every state’s ability to make its own decisions about how best to regulate marijuana, whether for medical or recreational purposes.”
Look below to read Colorado's response, the Washington-Oregon brief in support of it, and the original Nebraska-Oklahoma complaint.

Colorado Supreme Court Brief in Marijuana Law Challenge

Washington and Oregon Friend of the Court Brief

States of Nebraska and Oklahoma v. State of Colorado

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Michael Roberts has written for Westword since October 1990, serving stints as music editor and media columnist. He currently covers everything from breaking news and politics to sports and stories that defy categorization.
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