Medical marijuana lawsuit: Jessica Corry on why dispensary ban shouldn't be on El Paso ballot

The effort to put a medical marijuana dispensary ban on the El Paso County ballot was successful -- and MMJ advocate Brian Cook has readied a TV campaign to fight it. But earlier this week, a coalition of lawyers that includes Jessica Corry took a different tack, filing a lawsuit arguing that the ballot measure is improper. She explains why below.

The El Paso County medical marijuana lawsuit, which can be read in its entirety below, was filed on behalf of assorted businesses and individuals in El Paso County against various county officials, including the board of commissioners. Via e-mail, we asked Corry to explain the suit's rationale and potential repercussions. Here's the complete Q&A.

Westword (Michael Roberts): What are you asking for in the lawsuit? A temporary injunction, perhaps?

Jessica Corry: We are asking for DEC and injunctive relief to prevent it from being put to voters, as doing such is unlawful.

WW: What is your argument for why putting this issue on the ballot is improper?

JC: Putting the issue on the ballot is improper because under 1284, a county or other local government can ban (which has its own constitutional issues being challenged in various jurisdictions around the state) OR a county can regulate. 1284 does not allow for a county to regulate and then ban, which is what is being attempted here. On its face, this may sound like a technical question, but the distinction has very serious, real-world implications. Honest, law-abiding business owners reasonably relied on standards as put forth by the county, and are now facing the prospect that they will be punished for such by having their businesses shut down.

No business, whether it is part of a conventional industry or an innovative one such as medical marijuana, should have to operate under such mixed messages. This is about a regulatory taking, plain and simple. The government is illegally removing any and all economic viability of existing businesses.

WW: What kind of damage would be done to business owners in El Paso County if the measure goes on the ballot and wins? How about the damage to El Paso County because of falling tax receipts?

JC: The fiscal implications could be immense. Colorado's caregivers and patients have back-filled state and local tax coffers and local economies to the tune of tens of millions of dollars already in 2010. This is before you consider any damages that taxpayers would be forced to foot the bill for the government's improper actions here. Our clients want to stay in business and the last thing they want is to have to head to court to recoup the significant losses they could incur.

WW: Is simply keeping the measure off the ballot your goal? Or would you like to put the ability of communities or municipalities to ban dispensaries, retail operations, grow operations, etc., on trial?

JC: For now, our focus is on the ballot issue. Like the other cases we have around the state, any challenge to HB 1284 likely won't provide a single "test case"... When we discuss HB 1284, we're really talking about legislative mandates and administrative rules that include hundreds of pages of rules and requirements. This case could be a crucial part of our strategy to protect medical marijuana rights, but it can't be the only part. For the last several months, we've worked closely with various agencies and governments across the state to avoid litigation. We've had a lot of success coming to reasonable interpretations of very vague mandates. Heading to court should be seen only as a last resort. Here, given the county's actions, however, we simply had no other choice.

WW: If the latter, do you think a decision in your favor could set a precedent, and force the portion of HB 1284 about local control to be removed from the legislation?

JC: We're hopeful that this could set a precedent, but at minimum, we're hopeful that this will further legitimize a tax-paying, law-abiding industry that serves 150,000 registered patients across our state.

Page down to read the entire lawsuit:

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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.
Contact: Michael Roberts