At first,medical marijuana patient Jason Beinor
thought losing a court fight over unemployment benefits withheld from him because he failed a drug test was no big deal. But it now looks as if his case could hold thekey to cementing MMJ rights in Colorado
-- or not. Which is why Beinor's lawyer is hoping the Colorado Supreme Court will consider it.
"If those rights don't exist, there's no argument," notes attorney Andrew Reid. "If they do, patients and caregivers have a broader argument to make."
As we've reported, Beinor was employed by Service Group Inc. as a street sweeper on the 16th Street Mall. However, he was fired after failing a random drug test, even though he's a legal patient.
Afterward, Beinor filed for unemployment benefits, and a hearing officer eventually ruled in his favor because there was "no reliable evidence to suggest that...claimant was not eligible for a medical marijuana license" or that his use of the marijuana negatively impacted his job performance. But his employer appealed the decision, and a panel ruled in the company's favor, citing Article XVIII of the Colorado constitution, which states that an employee who tests positive during working hours for "controlled substances" that are "not medically prescribed" doesn't qualify for benefits. The Colorado Court of Appeals concurred by a 2-1 margin, with the majority finding that patients don't have carte blanche to violate firms' policies and practices.
Beinor, who represented himself in the case, doubted that the ruling would have significant repercussions. But shortly thereafter, the decision was mentioned by town attorneys while successfully defending Longmont's medical-marijuana-retail-business ban. And Kathleen Chippi, who's challenging HB 1284 and SB 109, the state laws put in place to regulate the MMJ industry, believes the answer to her suit submitted under the auspices of Attorney General John Suthers -- namely, that there is no fundamental right to medical marijuana in Colorado, despite a constitutional amendment permitting its use by patients -- is built upon the Beinor ruling.
Developments like these explain why Chippi talked Beinor into appealing the decision, and why her Patient Caregivers Rights Litigation Project is funding Reid's efforts.
The latest step: Reid has filed a Petition for Writ of Certiorari with the Colorado Supreme Court. The document, on view below in its entirety, basically asks the court to hear the case. Why is it important that the justices do so?
"The Court of Appeals ruled that there's no constitutional right to use medical marijuana," Reid notes. "It said the only thing the constitution did was decriminalize it. That allows the government to frustrate the intent of the constitution, which was to make the medicine available to patients who need it.
"Even the legislation just passed, 1284 and 109, severely restricts the rights of patients and caregivers, which in turn restricts the right of access and the delivery system -- the medical marijuana businesses. And banning medical marijuana businesses in certain cities and counties frustrates the constitutional rights of patients and caregivers, too.
"If those rights don't exist, there's no argument to make. But if they do, patients and caregivers have a broader argument." Should the Supreme Court decide against considering the Beinor case, the earlier ruling would stand -- and the finding would weaken complaints about governmental actions seen as potentially harmful to patients and caregivers. But even if the court finds that the amendment legalizing medical marijuana did more than simply decriminalize it, this action wouldn't necessarily forbid some attempts to limit it.
"There are different levels of constitutional rights," he explains. "The fundamental right would be the highest one, where the state has to show a compelling state interest, and restrictions are subject to strict scrutiny. But it could be seen as a rational-basis case, which is seen as a lesser right. And there are other rights that fall between them -- ones that are subject to a higher right of protection, but not as high as a fundamental right. It's a continuum."
Clearly, there's a lot hanging on the case -- and even though Beinor was initially reluctant to press forward with an appeal, he's now "fully behind it," Reid maintains. "He's very concerned about the potential impact the decision could have on a broad range of people. There are 125,000 registered medical marijuana patients in this state, and that's the basis for his concern and his decision to go ahead with this."
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As for a time frame, Reid says the court can make a determination about whether or not to hear the case in anywhere between a few weeks and a few months. But he thinks that due to the importance of the matter, and the fact that it could have an effect on other pending cases, including Chippi's, the court will make an announcement in a month or so. If the justices decide to review the case, a new process will begin. If they don't, the fallout could be immediate and far-reaching.
Here's the Petition for Cert:
More from our Marijuana archive: "Medical marijuana lawsuit filed, claims regulations violate state constitution."