Marijuana: Paralyzed MMJ patient's last Supreme Court pitch over DISH firing

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Last year, Brandon Coats, a paralyzed medical marijuana patient fired by DISH for failing a drug test, filed a complaint over the issue in Arapahoe District Court. When he lost there, attorney Michael Evans brought the case to the Colorado Court of Appeals, where jurists also rejected Coats's argument. But Evans hasn't raised the white flag quite yet. He's submitted what he describes as the final document in an effort to get the Colorado Supreme Court to take on the matter. See it and get details about the potentially groundbreaking case.

As we've reported, Coats, who's in his thirties, is paralyzed over 80 percent of his body. At age sixteen, he was a passenger in a vehicle that crashed into a tree.

Since then, Coats has used a wheelchair to get around, but he's fully capable of working -- and in 2007, he was hired by DISH as a customer service representative. Over the years that followed, his original lawsuit contends that prescription medicine Coats took to treat involuntary muscle spasms began to fail. When searching for a way to deal with these symptoms, his physicians recommended that he supplement his regimen with medical marijuana. He received his state-issued license for MMJ in August 2009 and found that cannabis helped alleviate his spasms. However, the complaint stresses that he never used marijuana at work, during work hours or anywhere on the company's premises.

In May 2010, Coats was ordered to take a random drug test. He's said to have told the employee administering the test that he was an MMJ patient, but this wasn't taken into account when he registered a positive for THC. The agent who broke the news allegedly told him that his status as a patient didn't matter: "That is just Colorado state law and does not apply to your job." Two weeks later, Coats was fired for violating the company's drug policy.

Evans took DISH to court, arguing that Coats's activities were constitutionally protected. But in February 2012, Araphaoe District Judge Elizabeth Beebe Volz granted DISH's motion to dismiss. Among the cases she cited to justify this ruling was one involving Jason Beinor, a medical marijuana patient sacked from his street sweeping job after failing a drug test.

After more judicial machinations, the Coats case reached the Colorado Court of Appeals. But in a 2-1 decision, the court sided with DISH. The majority decision, written by Judge Janice Davidson and on view below in its entirety, is summarized like so:

The primary question before us is whether federally prohibited but state-licensed medical marijuana use is "lawful activity" under section 24-34-402.5, C.R.S. 2012, Colorado's Lawful Activities Statute. If it is, employers in Colorado would be effectively prohibited from discharging an employee for off-the-job use of medical marijuana, regardless that such use was in violation of federal law. We conclude, on reasoning different from the trial court's analysis, that such use is not "lawful activity."

The bottom line: Because marijuana remains against federal law, employers can use that standard rather than state law as a rationale for banning worker use even off the job.

Quizzed after this ruling, Evans said, "This was a hard decision, because there are a lot of competing interests. So I think they did what was safe. And I also think there's one level above them.

"That's what happens a lot of the time. Trial judges and then Court of Appeals judges may side on the conservative side with an abundance of caution and let somebody else take the risk -- like the Colorado Supreme Court. If anyone is going to tell the federal government that state law is going to prevail in this case, it's going to be the Colorado Supreme Court."

Will the Supremes take the case?

Continue for more about MMJ patient Brandon Coats, including a photo and original documents. On July 5, as Evans notes in his online synopsis of developments to date, Coats filed a petition for certiorari on whether the Colorado Lawful Activities Statute should have protected him against DISH's actions. DISH offered a response on July 19, with Evans following up with a document of his own yesterday.

Now, it's up to the Colorado Supreme Court jurists to decide if they want to tackle the subject -- and via e-mail, Evans lays out the possible impacts of a yea or a nay.

"If the Colorado Supreme Court decides to take the case," he writes, "it will mean one of two things. Either the Supreme Court agrees with the final result of the Court of Appeals, but does not agree with the legal analysis used to obtain that result. Or the Supreme Court does not agree with either the result, nor the legal analysis used by the Court of Appeals. In either case, the binding legal authority of the Court of Appeals decision will effectively be 'stayed' until a subsequent opinion is issued by the Supreme Court.

"If the Colorado Supreme Court decides not to take the case," he continues, "then it has indicated it believes the Court of Appeals achieved the correct result through the correct legal analysis," thereby effectively establishing the ruling as precedent.

In Evans's view, the impact of the latter decision could be devastating. "Practically, Colorado employers will have little to no incentive to retain their patient-employees," he believes. "There are over 140,000 registered medical marijuana patients in Colorado who use medical marijuana to treat a serious illness or disability. That is in addition to unregistered patients. The average patient is 41 years old, which makes it likely that in addition to being employed, they have a family, and possibly a mortgage."

Look below to see the document filed yesterday in the Coats case, followed by the Court of Appeals ruling:

Brandon Coats Reply in Support of Amended Petition

Colorado Court of Appeals: Brandon Coats Ruling

More from our Marijuana archive: "Medical marijuana card not a license to smoke on probation, court rules."

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