Colorado's Emerging Medical Marijuana Legal Framework and Constitutional Rights
| Publication year | 2011 |
| Pages | 69 |
| Citation | Vol. 40 No. 11 Pg. 69 |
2011, November, Pg. 69. Colorado's Emerging Medical Marijuana Legal Framework and Constitutional Rights
November 2011
Vol. 40, No. 11 [Page 69]
Medical Marijuana Law
Medical Marijuana Law articles are scheduled to print four times per year.
Coordinating Editors
Gregory B. Cairns, Denver, of Ruegsegger Simons Smith and Stern, LLC-(303) 623-1131, gcairns@rs3legal.com; Leonard I. Frieling, Boulder-(303) 666-4064, lfrieling@lfrieling.com
About the Authors
Jessica K. Peck is a Denver attorney, lobbyist, and political strategist specializing in election law; regulatory compliance; and the protection of constitutional, property, and business-related rights. She previously served as special counsel to Hoban and Feola, LLC-www.HenleyPublicAffairs.com. Robert T. Hoban is a founding partner of Hoban and Feola, LLC. His law firm represents hundreds of medical marijuana businesses statewide. His practice concentrates in the areas of commercial litigation, business law, real estate, land use, eminent domain, public policy/governmental relations/election law, and appellate matters-www.HobanandFeola.com. The authors thank Jean Gonnell for editorial support with this article. She is a research associate at Hoban and Feola, LLC and a third-year law student at the University of Denver (DU), where she is managing editor of the DU Criminal Law Review and competes on DU's Appellate Moot Court Team. Attorneys from Hoban and Feola, LLC, including Peck and Hoban, represented the plaintiffs in Treash v. May, Giuliani v. Jefferson County Board of Commissioners, and Frasher v. City of Centennial.
This article provides an overview of Colorado's medical marijuana legal framework. It includes a discussion of the level of judicial review in medical marijuana cases, as well as regulatory takings.
Coloradans may remember 2010 as the year of the pot plant. Media headlines tirelessly documented medical marijuana's tremendous and diverse impacts on the state's economy and local communities. Still, a major part of the story has not yet been told.
The years to come promise a far more compelling conversation. Decisions about the legal use of marijuana may radically transform how Americans view their rights as citizens, businesses, patients, and individuals in a multitude of unrelated legal contexts. This promises to affect citizens' practical and philosophical views on the federal government's role in their lives as citizens of one nation and of individual states.
The core issue is whether the U.S. Constitution grants the federal government an unqualified privilege to intervene in states where drug laws conflict with those at the federal level. As this article explains, a U.S. Supreme Court case from several years ago answers that question in the affirmative. It is notable, however, that the Court's conclusion was based on a set of facts and state laws that were distinguishable from what Colorado has on its books today.
This article analyzes recent constitutional challenges to state and local regulations pertaining to the cultivation and distribution of medical marijuana. It discusses the debate over the judicial scrutiny properly applied to the aforementioned challenges, including whether Colorado's restrictions prohibiting nonresident entry into the state's medical marijuana industry can survive a broader constitutional muster.
The Unique Colorado Legal Framework
In other states, where marijuana-related rights are statutorily or administratively granted, the scene is much different. A governor or various state agencies, often declining to act in coordination with state legislators or state voters approving medical marijuana rights, wield a political power mighty enough to strike down substantive aspects of patient and caregiver rights.(fn1) Similarly, lawmakers elsewhere-with attorneys general, lawmakers, and anti-marijuana activists-have power to extinguish or radically restrict medical marijuana rights in various jurisdictions.(fn2)
At the federal level, U.S. Attorneys and the Drug Enforcement Agency (DEA) continue to present challenges to state programs.(fn3) A handful of medical marijuana states have seen federal agents working with local agencies to raid dispensaries.(fn4) In Colorado, however, federal law enforcement has been largely silent since a handful of highly publicized episodes in early 2010.
A Brief History of Medical Marijuana Law in Colorado
In response to voter approval of Amendment 20 in 2000, and in the absence of state legislation or agency action articulating rights and obligations related to medical marijuana, most state and local courts initially sided with patients and their caregivers, interpreting the constitutional amendment to permit cultivation, distribution, or sale of marijuana to authorized patients.(fn5) Dispensaries proliferated to serve a seemingly endless demand.
By the end of 2009, government officials predicted that the number of patients registered with the state's medical marijuana industry would exceed 100,000.(fn6) The number soon topped 120,000. Today, government estimates peg the number at 150,000 or higher.(fn7) Interestingly, Amendment 20 does not require patients to register with the state; it only requires that they obtain a legitimate doctor's recommendation. This means the actual number of patients who could escape criminal sanctions related to possession or use could be much higher than estimated. Given that many patients are reluctant to have their names added to a government database of admitted marijuana users, it is understandable that, for example, a diverse constituency of professionals and citizens, including teachers, professional athletes, federal employees, or parents engaged in custody battles, would not want their patient status disclosed to the government or otherwise accessible to the public or interested parties.
In 2010, the Colorado General Assembly passed House Bill (HB) 10-1284, legislation imposing a multitude of new restrictions on medical marijuana cultivation and commercial sales.(fn8) In 2011, lawmakers came back with a "clean-up" bill that furthers government's reach into that once quiet, largely private relationship between caregivers and their patients.(fn9)
Sponsors of the new regulations argue that these changes do not violate Amendment 20, believing that the state has sufficiently limited regulatory burdens on the state's small noncommercial caregiving operations (defined as one individual providing medicine to five patients or fewer), constitutionally protected access to medicine remains intact. Politically, bill sponsors further argue that their goal was simply to regulate and streamline business licensing and regulations for the state's fastest-growing industry. Pro-medical marijuana attorneys disagree with this stance to varying degrees. Multiple lawsuits on the issue are in progress or anticipated in the foreseeable future.
Fundamental Rights Under the Colorado Constitution
It is easy to confuse the level of scrutiny afforded to a fundamental right with the judicial review required of a claim arising from alleged violations of protected class status. Amendment 20 arguably granted both a fundamental right and a protected class status to medical marijuana patients and caregivers. Although state and federal constitutions often recognize and contemplate rights and classes that do not receive strict scrutiny, Amendment 20 is clear in its demand that patients suffering from specific medical conditions, as well as their authorized caregivers, be permitted to "legally acquire, possess, use, grow, and transport marijuana and marijuana paraphernalia."(fn10)
Colorado's Constitution is one of the longest in the nation-a frequent target for those arguing that it is too easy to amend. Such discussion is outside the scope of this article, which focuses on a question more specific to the current topic: Are medical marijuana rights fundamental rights? If so, what does this mean for (1) government efforts to impose restrictions on access to medicine; (2) caregivers; or (3) other elements of the supply chain, including quality and cost? These issues are relevant in the context of medical marijuana, as well as for other regulated medical relationships and industries serving protected classes.
At the time of publication, several medical marijuana plaintiffs across the state are in various stages of litigation and are seeking to strike down restrictions they argue are constitutionally suspect.(fn11) A handful of these cases may make their way up to the Colorado Court of Appeals.(fn12)
Beyond constitutional challenges, or as part of them, plaintiffs have taken issue with local zoning and licensing requirements that have prevented...
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