Certification of Word Count: 9,564 words

IN THE SUPREME COURT

FOR THE STATE OF COLORADO 101 W. Colfax Ave., Suite 800 Denver, Colorado 80202

IN RE: MEDICAL MARIJUANA LEGISLATION

Attorney for Petitioners:

Name: Andrew B. Reid

Address: Springer and Steinberg, P.C. 1600 Broadway, Suite 1200 Denver, Colorado 80202 Phone Number: (303) 861-2800

FAX Number: (303) 832-7116

E-mail: areid@springer-and-steinberg.com Atty. Reg. No.: 25116

FILED IN I HE

[SU~,:~

~~~:_-~-~:~_j

OF THE ST!\T[ OF COLQR,I\DO SUSANJ.FESTAG CLERK

.. COURT USE ONLY ..

Case Number: '2..0't$I\~·

PETITION FOR RULE TO SHOW CAUSE

Petitioners hereby submit this Petition for a Rule to Show Cause to the

Attorney General of the State of Colorado pursuant to C.R.A.P. Rule 21:

I. ISSUES PRESENTED FOR REVIEW

ISSUE I: DOES THE COLORADO MEDICAL MARIJUANA LEGISLATION VIOLATE PATIENTS' RIGHTS TO THEIR MEDICATION AS SECURED

BY THE COLORADO CONSTITUTION?

ISSUE II: DO THE INFORMATION DISCLOSURE PROVISIONS OF THE COLORADO MEDICAL MARIJUANA LEGISLATION VIOLATE PATIENTS' RIGHTS TO PRIVACY AS SECURED BY THE COLORADO CONSTITUTION?

2

II. PETITIONERS

Petitioner Patient Caregiver Rights Litigation Project ("PCRLP") is a group of registered medical marijuana patients, primary care-givers, and physicians from Colorado with its purpose the reformation of the medical marijuana laws in Colorado.

Petitioner Kathleen Chippi of Nederland, Colorado, a PCRLP meniber, is a qualifying medical marijuana patient and, until the enactment of House Bill 10- 12841, operated a medical marijuana dispensary in Nederland with a state-issued

r retail sales tax license for medical marijuana. She was also a primary care-giver for numerous patients. Upon the resolution of the issues raised in this petition, it is Ms. Chippi's intent to reopen her dispensary and continue her caregiver services.

Another PCRLP member is Lannette F., a registered medical marijuana patient living in Federal Heights, Colorado (Adams County). She is typical of many thousands of medical marijuana patients in Colorado. Her debilitating medical condition, diagnosed as severe pain due to fibromyalgia, diabetic

J House Bill 10-1284 was codified in a number of different sections of the

Colorado Code. To avoid confusion, this legislation will be referred to in this petition in its collective original form as "H.B. 1 0-1284."

3

neuropathy, and myofacial trigger points, causes her to be home bound. She is also unable to cultivate her own medication and therefore has to employ care-givers in order to access her medication. Because of her condition, she arranged for her medication to be delivered to her by her care-givers. Due to House Bill 10-1284, her care-givers recently had to close their business'. On November 2,2010, pursuant to House Bill 10-1284, Federal Heights where she resides voted to ban all medical marijuana dispensing, cultivation, and medication manufacturing businesses. She now has to look outside her own city for a new care-giver and source for the delivery of her medication.

2 Since the passage of House Bill 10-1284, only a fraction of the medical

marijuana related businesses in some communities have continued in business due to its broad extension of the Colorado Department of Revenue into the business records and affairs of these businesses, raising significant issues under Article II,

§ § 7, 16, 18 and 25 of the Colorado Constitution and the Fourth, Fifth, and Fourteen Amendments of the United States Constitution in addition to those under Amendment 20. See, e.g., Daily Camera, "Boulder medical marijuana shops struggle with laws" (November 6, 2010)~ http://www.dailycamera.coml ci_16544716.

4

PCRLP member Kendra C. is a 20-year old student at the University of Colorado and is a qualified medical marijuana patient who suffers from fibromyalgia. Under H.B. 10-1284, due to her age she is not permitted to enter any medical marijuana dispensary and must depend upon care-givers for her medication. However, the legislation's restrictions on care-givers (limiting care-

. givers to no more than 3 patients) caused her care-giver, who was 1 patient over the statutory limit, to drop her depriving her of her medication. Ms. C. testified before the State Legislature on the medical marijuana Iegislatiorr'.

PCRLP member Gary I., a qualified medical marijuana patient resident of Golden, Colorado, suffers from crushed vertebrae in his neck, compression factures in his lower back, and nausea from chemotherapy for his liver. Following the passage of H.B. 10-1284, its restrictions on care-givers forced his care-giver out of business.

PCRLP member John E. is a 50-year old qualified medical marijuana patientliving in Larimer County who suffers from degenerative disc disease,

3 http://www.leg.state.co.us/Clics/clics20 10a/commsumm.nsfl

b4a3962433b52fa787256e5f00670a71lb91b213837dccOc0872577190069c4be?

OpenDocument.

5

redicalopothy, two herniated discs in his lower back, failed back surgery, and severe insomnia due to chronic pain and discomfort. Use of medical marijuana for pain management has enabled him to cut down on his prescription of morphine, a far more potent and highly addictive narcotic.

PCRLP member Scott S. is a qualified medical marijuana patient living in unincorporated Adams County from suffering severe spinal stenosis, nerve and muscle spasms, degenerative disc disease, radiculopathy in cervical and lumbar regions as well as flare ups with sciatica. His wife is his care-giver. Scott S. was a care-giver for another patient but had to cease following the passage ofH.B. 10- 1284 because it bars patients with care-givers from serving as care-givers for other patients.

PCRLP member Nick L. is a qualified medical marijuana patient and caregiver. He was associated with a medical marijuana dispensary in Loveland, Colorado, until the city voted in November, 2010, to ban medical marijuana businesses pursuant to H.B. 10-1284.

PCRLP member Jason D. owns a medical marijuana products manufacturing business in unincorporated Mesa County, Colorado, which supplied free medicine to terminally ill patients. PCRLP members Randy and Suzanne S. own a medical

6

marijuana dispensary in unincorporated Mesa County, Colorado. Their businesses ceased operation in November, 2010, following Mesa County's vote to ban of medical marijuana businesses pursuant to H.B. 10-1284 leaving their patients and care-givers without access to their medication.

III. GROUNDS FOR THE ORIGINAL JURISDICTION A. Colorado Constitution, Article 18, Section 14

On November 7, 2000, approximately one million Colorado voters approved Amendment 20 as an initiated constitutional amendment. Colorado Constitution, Art. 18, § 14 (Appendix 1). Fifteen states and the District of Columbia have enacted laws legalizing the use of medical marijuana and ballot measures were on the November 2010 ballots and legislation is pending in fourteen more states."

4 Alaska, Arizona, California, Colorado, District of Columbia, Hawaii, Maine,

Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington. http://medicalmarijuana.procon.org/. view.resource.php?resourceID=000881&print=true. Ballot measures pending in Alabama, Delaware, Illinois, Iowa, Kansas, Maryland, Massachusetts, Missouri, New York, North Carolina, Pennsylvania, South Dakota, Tennessee, and

7

Amendment 20 was clearly a compassionate measure designed to address the compelling medical need for improvement of the quality of life, and often saving and extension of life, of hundreds of thousands of patients in Colorado. It was a medical need unmet by any other medication. and subject to the expert diagnosis and recommendation by Colorado physicians as the appropriate medication. So significant is this right that a patient's access to medication has been viewed as a "human right" under international law . Alicia E. Yamin, Not Just a Tragedy: Access to Medications as a Right Under International Law, 21 Boston University International Law lournal325 (2003). Here, we are solely concerned with the health, lives,and freedom or relief from debilitating pain and medical conditions of Colorado citizens.

Amendment 20, now Section 14 of Article 18 of the Colorado Constitution, guarantees patients diagnosed by physicians as having a debilitating medical condition, and their primary care-givers, a constitutional right to engage in the use of marijuana for medical purposes. Id. "Use" includes the acquisition, possession,

Wisconsin. USA Today, "Medical marijuana business is on fire" (April 20, 2010), http://www.usatoday.comlcleanprintl?1288757868732.

8

production, use, and transportation of marijuana and paraphernalia related to the administration of marijuana.'. [d.

Recognizing that many patients may need or desire assistance in the "use" of medical marijuana, the Amendment also authorizes patients toemploy "primary care-givers" to assist them. [d. Primary care-givers are defined as persons having significant responsibility for managing the well-being of a patient. [d. at §

14(1)(f).

Section 14 constitutionally further "excepts" the medical use of marijuana from Colorado's criminal laws governing the "acquisition, possession, manufacture, production, use, sale, distribution, dispensing, or transportation of marijuana" and provides medical marijuana patients and care-givers an affirmative defense to arrest and prosecution. [d. at § 14(2)(a) and (b). As further protection for both medical marijuana patients and care-givers, the constitution establishes a

5 Arapahoe County District Court Judge Christopher Cross in Frasher v. City of

Centennial, Case No. 09CV1456 (December 30, 2000) ruled that this definition, to read it consistent with Article 18, Section 14(2)( d) of the Colorado Constitution, also includes the "manufacture, sale, distribution, and dispensing of medical marijuana." Copy of ruling submitted herewith as Appendix 5.

9

"registry" under the "state health agency" with the issuance of state identification cards to verify if necessary to law enforcement officialsthat the patient or caregiver is lawfully using marijuana as medication. Id. at § 14(3). Significantly, registration is optional, and a qualifying patient or care-giver is not required to

. register or obtain an identification card to have constitutional protection or to assert the affirmative defense to any criminal prosecution. Id. at § 14(2)(a). The Constitution's intent for the broadest ready access of qualifying patients to their medication is evidenced by the fact that it does not require registration of either the patient or the care-giver in order to assert the affirmative defense. Id.

These provisions of the Colorado Constitution establish a state regulatory scheme administered by the "State health agency", including the issuance of . medical marijuana patient and care-giver identification cards and the maintenance of a strictly confidential registry of applicants. Id. at §§ 14(1)(g), 14(2)(b), and 14(3). The Constitution further tasked the State legislature with enacting no later than April 30, 1999, "such legislation as may be necessary for implementation of [the Amendment]." Id. at § 14(8). The State health agency was directed to enact rules of administration no later than June 1, 1999. Id. at § 14(9).

10

As of June 30, 2010, less than 10 years later, the Colorado Department of Public Health and Environment (the designated State health agency or "CDPHE") reported that it had issued approximately 100,000 valid registry IDcards to patients in every county in Colorado", Sixty-six percent of the patients designated a primary care-giver. Id. More than 1,100 different physicians have signed for the patients. Id. Many, many more patients with qualifying medical conditions and physician recommendations are also using the medication, but have chosen not to register.

B. House Bill 10-1284

On June 7,2010, the State General Assembly finally enacted legislation implementing Article 18, Section 14 of the Colorado Constitution. H.B. 10-1284 (2010) (the Colorado Medical Marijuana Code, C.R.S. §§ 12-43.3-101 et. seq. and the Medical Marijuana Program, C.R.S. § 25-1.5-106) (attached as Appendix 2». Under the Constitution, the General Assembly was tasked with "implement[ing] 6CDPHE, "Medical Marijuana Registry Program Update (June 30,2010),

http://www.cdphe.state.co.uslhslMedicalmarijuanalstatistics.html (attached as Appendix 3).

11

rules to ensure patients suffering from legitimate debilitating medical conditions are able to safely gain access to medical marijuana .... " Colorado Constitution, Article 18, Section 14(2)( d). Although the General Assembly created a regulatory business scheme of state licensed medical marijuana cultivators, product manufacturers, and dispensers of medical marijuana purportedly to make the constitutionally secured medication readily available to registered patients and care-givers', it so hamstrung its own legislation as to defeat its very purpose and render the medical marijuana legislation constitutionally suspect. C.R.S. § 25-1.5- 106(1)(a); C.R.S. §§12-43.3-101 et. seq.

This legislation was supposed to address the "bizarre practical anomaly" referred to by Judge Alan Loeb in People v. Clendenin, 232 P.3d 210,217-8 (Colo.App. 2009) of having a constitutional right of access to medication but no infrastructure to provide it. The focus of the implementing legislation and the statutory authorization and establishment of medical marijuana businesses was thus constitutionally required to be on making medical marijuana readily available to

7 See, footnote 5 supra for Constitutional support for the manufacture, sale,

distribution, and dispensing of medical marijuana implemented by the statutory scheme.

12

patients suffering from debilitating medical conditions. See also, Qualified Patients Ass'n v. City of Anaheim, 187 Cal.App.d" 734, 744 (Cal.App. 2010) (the purpose of implementing legislation in California was "to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana."). As noted by the California Supreme Court in construing a similar scheme that authorized cultivation of medical marijuana, it

... grants immunity to a specific group of individuals - those who assist in administering medical marijuana or acquiring the skills necessary to cultivate it .... This immunity is significant; in its absence, those who assist patients or primary care-givers ... might themselves be open to prosecution for cultivation.

Here, this means [the cultivator], to the extent he assisted in administering, or advised or counseled in the administration or cultivation of, medical marijuana, could not be charged with cultivation or possession for sale 'on that sole basis.'

People v. Mentch, 195 P.3d 1061, 1068 (Cal. 2008).

However, in addition to establishing the state scheme for making medical marijuana available to patients, the General Assembly added provisions which

13

defeated its very purpose of guaranteeing ready access to the. medication by authorizing local authorities, counties, cities and other municipalities, to each issue their own regulatory schemes of local licenses and regulations. C.R.S. §§ 12-43.3- 103(2)(a), 12-43.3-301, and 12-43.3-310. In a further unconstitutional restraint on access to medication, the General Assembly gave local authorities the power to prohibit altogether state licensed medical marijuana cultivators, product manufacturers, and dispensers from their counties and communities. C.R.S; §§ 12- 43.3-103(2)(a), 12-43.3-106 ("Local Option"), 12-43.3-310(1)8.

Within weeks of the enactment of H.B. 10-1284, a number of communities banned medical marijuana cultivators, product manufacturers, and dispensers, including the municipalities of Bayfield, Broomfield, Castle Rock, Cedaredge, Durango, Grand Junction, Greeley, Hayden, Kremmling, Superior, Vail, and

8 Indeed, although cloaked in terms of fulfilling its Constitutional duty, the actual

goal of the state legislature in H.B. 10-1284 according to its co-author, Senator Chris Romer, appears to have been to undercut and defeat its own mandate from the people by closing as many dispensaries and other medical marijuana providers as possible. Denver Post, "Sen. Romer says bill would cut number of pot clinics" (December 8,2009), http://www.denverpost.comJ news/ci_13947720.

14

Westminster, and the county of Las Animas. Many other municipalities and counties put bans on their November 2010, ballots." On November 2,2010, the municipalities of Akron, Antonito, Aurora, Broomfield, Castle Pines North, DeBeque, Dinosaur, Elizabeth, Federal Heights, Fountain, Granby, Hillrose, Hot Sulfur Springs, Jamestown, La Junta, Lake City, Lone Tree, Loveland, Olathe, Otis, Ouray, Paonia, Ramah, Sugar City, and Windsor, and the counties of Broomfield, Conejos, Custer, Douglas, Las Animas, Mesa, Moffat, Montrose, Otero, and Washington approved bans of medical marijuana cultivators, product manufacturers, and dispensers'". In December, 2010, Adams County became the 26th county in Colorado to ban medical marijuana businesses in their

9 Denver Post, "Ballot brings 40 votes on allowing medical-marijuana dispensaries" (October 17, 2010) http://www.denverpost.comlnews/marijuana/ci_16359091; also, Americans for Safe Access, "Colorado Voter's Guide" http://americansforsafeaccess.org/downloads/ASA_ Voter_Guide_CO_2010.pdf.

JO Westword, "Marijuana election round-up: More losses than wins for MMJ in Colorado" (Nov. 9, 2010), http://blogs.westword.comllatestword/2010/1l/ marijuana_election_round-up_more_losses_than_wins_for_mmj_in_colorado.php.

]5

unincorporated areas.'! At least 47 municipalities have also banned the businesses. Id.

These numerous bans threaten to broad swaths of the State and to tens of thousands of registered Colorado patients the constitutionally secured patient access to doctor recommended medication. 'These bans effectively prevent the delivery of this medication bydispensaries, cultivators, 'or manufacturers to patients in those municipalities and counties. Many patients like Lannette F., who are very seriously ill or bed ridden and due to their medical conditions unable travel to a provider in a county or municipality that has not banned medical marijuana dispensaries, and now cannot even have their medication delivered to them, are effectively and unconstitutionally denied access to their medication. They are condemned by these unconstitutional bans on their access to medication to suffer unnecessarily and even die prematurely.

There is no rational basis, let alone any compelling state interest in such local regulation or bans. Doctors, dentists, and other medical providers routinely prescribe and pharmacies routinely dispense in every municipality in every county of the state a great many controlled pharmaceutical narcotics such as Fentanyl,

II http://www.denverpost.comlfdcp?1292611580848. 16

oxymorphone, hydromorphone, morphine, and codeine, universally recognized as far more potent than medical marijuana'<. The use of these medicinal substances is illegal unless pursuant to a doctor's or dentist's prescription. 21 U.S.C. §§ 801,et seq. Yet, under H.B. 10-1284, patients have much greater access to these far more potent pharmaceutical narcotics prescribed for the same pain than they have to medical marijuana. Under the supervision of his doctor, PCRLP member John E., for example, has been able to reduce his dependence on these narcotics through careful pain management with medical marijuana.

In the Matter of Marijuana Rescheduling Petition, US DOJ IDEA (Dkt. No. 86-22 I Sept. 6, 1988)13, for example, US DEA Judge Francis L. Young found that: 12 See, e.g., "Opioid Comparison", http://www . pharmer.org/forumldiscussion-

prescription-and-otc-meds/opioid-comparison; P. Leveque, "Marijuana vs. Morphine Drugs: Comparative Pharmacology" (2009), http://www.salemnews.comlarticles/march022009/mj_ vs_morphine_pl_3-2-09.php; "Addictive Property of Popular Drugs" (2008), http://drugwarfacts.org/cmsJ?q=node/28.

13 http://www.iowamedicalmarijuana.org/ pdfs/young.pdf (Submitted herewith as Appendix 6). Judge Young's decision was administratively overruled. 54 F.Reg. 53767, et. seq. (Dec. 29,1989).

17

"Nearly all medicines have toxic, potentially lethal effects. But marijuana (cannabis) is not such a sub-stance. There is no record in the extensive medical literature describing a proven, documented cannabis-induced fatality." Id. at 56. "By contrast, marijuana's therapeutic ratio .. .is impossible to quantify because it is so high." Id. at 58. "Marijuana, in its natural form, is one of the safest therapeutically active substances known to man." Id. at 58-9.

Even alcohol, which is readily available without a doctor's approval, is immensely more harmful and dangerous to the user and our society than marijuana'". The regulation of these substances, opiates and alcohol, is at the state and/or federal level under various regulatory schemes. Unlike what H.B. 10-1284 attempts to authorize with medical marijuana, counties and municipalities cannot constitutionally regulate or ban the use of opiates or alcohol in conflict with these statewide regulatory schemes, let alone explicit provisions of the Colorado Constitution.

Contrary to the stated purpose of the legislation, House Bill 10-1284 also unconstitutionally interferes with a patient's access to medication through

14 "Facts on Cannabis and Alcohol", http://www.saferchoice.org/contenti

view/24/53.

18

limitations placed on primary care-givers. It limits each care-giver to 5 patients, bars patients with a care-giver from acting as a care-giver for another patient, restricts each patient to having only one care-giver, forbids care-givers from the common cultivation of medical marijuana, and forbids care-givers from charging . more than the cost of cultivating or purchasing the medication. C.R.S. §§ 25-1.5-

106(5)(b), (6)(a), (6)(b), (6)(c), (6)(d).

House Bill 10-1284 further violates the Colorado Constitution's strict confidentiality provisions on medical marijuana which narrowly limit disclosure of any patient's and care-giver's registry information only to the State health agency and to law enforcement for the sole purpose of verifying registration of the patient Or care-giver as a medical marijuana user. Colorado Constitution, Article 18, § 14(3)(a) and § 14(9). The House Bill provides for the sharing of patient / caregiver information with a "state licensing authority" and a "local licensing authority". Under the legislation, the "state licensing authority" is the executive or deputy director of the State Department of Revenue. C.R.S. § 12-43.3-201(1). Director of the Department of Revenue is authorized to conduct searches and investigations and even seizures at will of the records and contract and sales information of cultivators, product manufacturers, or dispensers of medical

19

marijuana. C.R.S. §§ 12-43.3-202(2)(a)(IV) and (XVIII), 12-43.3-701, 12-43.3-. 901 (4)(e).15

Injecting the Department of Revenue and the "local licensing authority" into the regulation of the medical marijuana program not only breaches the strict confidentiality provision but is contrary to the regulatory scheme established in the

15 On December 15,2010, the Department of Revenue's Medical Marijuana Enforcement Division issued approximately 100 pages of final regulations pursuant to H.B. 10-1284. http://www.colorado.gov/cs/

Satellite ?blobcol=urldata&blobheader=application % 2Fpdf&blobkey=id&blobtable =MungoBlobs&blobwhere= 1251677 483072&ssbinary=true . Chapter 4 of the proposed regulations authorizes broad Departmental inspections, searches, and seizures of virtually anything connected with the cultivation, manufacture, or dispensing of medical marijuana - including constitutionally protected confidential records of patient and care-giver identifying information. Id. Chapter 10 requires video surveillance of patients and care-givers who obtain medication from medical marijuana centers. Id. No regulatory provisions are made to preserve the confidentiality of such information.

20

Constitution of having the program administered by "the state health agency" as a health program.

C. Senate Bill 10-109

In addition to H.B. 10-1284, the General Assembly also passed Senate Bill 10-10916 pertaining to physicians who may participate in the medical marijuana program. S.B. 10-109 (2010) (the revisions are contained in the Colorado Medical Marijuana Code, C.R.S. §§ 12-43.3-101 et. seq. and the Medical Marijuana Program, C.R.S. § 25-1.5-106) (attached as Appendix 2)). Under the provisions of S.B. 10-109, any doctors with "restricted" licenses were forbidden from approving medical marijuana ("MMJ") to qualifying patients. C.R.S. § 25-1.5-106(2)(c)(II). This placed the access of thousands of other MMJ patients to their medication in jeopardy by barring licensed doctors, even those with unrestricted controlled substances registrations from the US DEA, from rendering appropriate medical decisions and thereby making it more difficult for existing and new patients to

16 Senate Bill 10-109 was codified in a number of different sections of the Colorado

Code. To avoid confusion, this legislation will be referred to in this petition in its collective original form as "S.B. 109."

2]

have access to the medication medically necessary for the treatment of their debilitating conditions 1 7 •

The Colorado Constitution exempts from the state's criminal laws the use of a limited amount of marijuana by someone who has been "diagnosed by a physician as having a debilitating medical condition" and "advised by his or her physician, in the context of a bona fide physician-patient relationship, that the patient might benefit from the medical use of marijuana in connection with a debilitating medication condition ... " Colorado Constitution, Article 18, Section 14(2)(a). Section 14(1)(e) of Article 18 of the Constitution then defines "physician" to mean "a doctor of medicine who maintains, in good standing, a license to practice medicine issued by the state of Colorado." (emphasis supplied).

S.B. 10-109 seeks to severely restrict the physicians who may participate in the medical marijuana program, and thereby limit access of qualifying patients to their medication, by redefining the term "in good standing" in a much more

17 See generally, Westword, "Medical marijuana: Nearly 2,000 MMJ patient

recommendations nixed over quiet rule change" (November 5,2010), http://blogs.westword.comllatestword/20 1 O/11/medical_marijuana_nearly _2000_;m mj_patient_recommendations_nixed_ over_quiet_rule_change. php.

22

restrictive sense than that contained in the Colorado Constitution. C.R.S. § 25-1.5- 106(2)(C)lS. The legislature's severely restrictive definition has disqualified hundreds of physicians from participation in the medical marijuana program after they had diagnosed and recommended medical marijuana for literally thousands of patients with debilitating conditions who had been asserting their constitutional rights in good faith under the express terms of the Colorado Constitution'".

D. No Other Remedy Is Adequate

The large number of municipal and county bans being enacted across the State and the draconian restrictions on care-givers under H.B. 10-1284 and on physicians under S.B. 10-109 are already impacting the scheme of ready access to medication established by the Colorado Constitution for medical marijuana patients. The thousands upon thousands of qualifying patients who reside in these almost 50 municipalities and 20 counties covering a large part -of the State are or will be effectively deprived of ready or all access to their medication. Many will face the hard choice of going without or of obtaining their medication in violation

18Id. 19Id.

23

ofR.B. 10-1284 and running the risk of arrest and loss of their legal right to use the medication.

A great many other patients, like PCRLP members Lannette F., Kendra C., Gary I., and Scott S., have already lost or face the loss of their primary care-givers or ready access to their medication due to the severe restrictions placed by the legislation. For those patients without relatives who can act as primary care givers, the restrictions make the services of care-givers no longer profitable and there is no longer a sufficient incentive for the provision of such important services central to . the health and well-being of the patients. The patients, who must depend on caregivers for their medication, cannot and should not wait for years under unconstitutional legislation for a remedy that will make care-givers and their medication reasonably available to them.

Challenging these great many separate local ordinances banning or regulating to death medical marijuana businesses in separate legal actions is unnecessarily burdensome and expensive to both the court and the petitioning patients. Indeed, it is doubly so to the patients given that these parties are by nature suffering debilitating and sometimes life-threatening illnesses, including those formerly served by PCRLP members Kathleen Chippi, Jason D., Nick L.,

24

and Randy and Suzanne S. Litigation takes much time, often years before final decisions are rendered on appeal. These already suffering patients cannot wait. Their illness will not grant these many thousands of patients any reprieve while they engage in protracted litigation.

The implementation of this program under H.B. 10-1284 and S.B. 10-109 will also expose the confidential information of the hundreds of thousands of .,

. medical marijuana patients and care-givers in blatant violation of the Colorado Constitution. The constitutionally secured privacy of over 100,000 qualified medical marijuana patients and Colorado residents and citizens stands to be irreparably invaded unless there is immediate action by the Court. Only last week, a large number of confidential "medical marijuana registry forms with all these people's personal information on each one of those sheets" was found by happenstance by a passerby in a box by an alleyway trash bin behind a medical marijuana dispensary". The discarded dispensary records contained patient names, addresses, and telephone numbers, social security numbers, dates of birth, and "the personal and medical information of dozens of patients." Id. H.B.10-

20 9NEWS, "Medical marijuana records found near Dumpster" (December 28,

2010), http://www.9news.comlcleanprintI?1294096478329.

25

1284 required the dispensary to collect this information from patients and their

care-givers.

It is for these reasons that the Petitioners and the more than 100,000 other

medical marijuana patients and care-givers must have immediate, statewide, relief.

No other relief that might be available to them is adequate under the

circumstances. Petitioners respectfully request that this Court accept their petition

and issue a Rule to Show Cause.

IV. THE STATE DEPARTMENT OF REVENUE, "LOCAL OPTION" AND LOCAL LICENSING PROVISIONS OF H.B. 10-1284 VIOLATE THE COLORADO CONSTITUTION

By Amendment 20, the citizens of Colorado established and vested a

constitutional right to marijuana as medication, directly or indirectly through care-

givers, for persons suffering from certain debilitating medical conditions. Any fair

reading of the plain language of these constitutional provisions discloses the intent

of the citizenry to guarantee this constitutional right through a statewide scheme

for the ready availability of medical marijuana to persons in Colorado suffering

from debilitating medical conditions.

26

The measure set up a statewide medical marijuana program with a confidential registry administered by "the state health agency". Colorado Constitution, Article 18, §§ 14(1)(h), (3). Significantly, the state health agency is tasked with screening patient and care-giver applicants for the registry, issuing registry ID cards, collecting fees, and issuing rules of administration. Id. at §§ 14(3), (9); Appendix 3. Of additional significance is the strict confidentiality provision, Section 14(3)(a), which expressly forbids disclosure of any registration information to any other state agency, let alone a "local licensing authority," except to law enforcement agencies - and, even then, solely for the purpose of establishing the patient's or care-giver's status as a registered medical marijuana

user.

In construing these constitutional provisions, the Court must apply them as written where the language is plain and clear. In re 2000-2001 Dist. Grand Jury, 97 P.3d 921, 924 (Colo. 2004). The Court should avoid constructions that are at odds with the regulatory scheme set out in the Colorado Constitution. Colo. Water Conservation Bd. v. Upper Gunnison River Water Conservancy Dist., 109 P.3d 585, 593 (Colo. 2005). Certainly the views of members of a subsequent General Assembly as to what the voters meant in the adoption of these constitutional

27

provisions "are entitled to little if any weight." Int'l Brotherhood of Teamsters v. U.S., 431 U.S. 324,354 n. 39 (1977). Rather it is the intent of the voters as expressed in the language of the constitutional provisions that controls. Id.; see also, Denny v. Westfield St. College, 880 F.2d 1465, 1470 (1 st Cir. 1989) ("the rational for the latter one cannot automatically be transformed by some thaumaturgical feat of rhetorical prestidigitation into the rationale for the preexisting one.").

Nowhere in Constitution is there the slightest reference to participation by the State Department of Revenue in the regulation or administration of the medical marijuana program. Certainly, the Department of Revenue can properly engage in the collection of fees and taxes from businesses associated with the medical marijuana program. But, there is not the hint of any authorization for it to be involved in the regulation of medical marijuana or in the receipt of any information relating to a patient or care-giver. The medical marijuana program was clearly designed in the Constitution as primarily a program for the provision of healthcare, not revenue. Section 14(7), for example, proves for the governor to "designate, by executive order, the state health agency as defined in paragraph (l)(g) of this section." (emphasis supplied) The Governor designated the Colorado Department

28

· of Public Health and Environment, not the Department of Revenue, to run the medical marijuana program. See, Appendix 3.

Similarly, nowhere in the Constitution is there any mention at all of anything other than a statewide, state administered, medical marijuana program. Nowhere in the Constitution is there any mention of a "local option" or a "local licensing authority" or of any authorization for local regulations and standards for the medical use of marijuana, including the "acquisition, possession, manufacture, production, use, sale, distribution, dispensing, or transportation" of the medication. Certainly, there are no constitutional provisions authorizing any municipality or county to interfere with patient and care-giver access to medication by banning outright or regulating to death activities associated with the acquisition, possession, manufacture, production, use, sale, distribution, dispensing, or transportation of marijuana of medical marijuana. The Colorado Constitution's express granting of regulatory authority to the "state health agency" coupled with its explicit exclusion of any provisions giving regulatory authority to either the Department of Revenue or local governments over medical marijuana clearly indicate the intent in the Constitution to limit all medical marijuana regulation to the state heath agency. City of Arvada v. Colo. Intergov. Risk Sharing Agency, 19 P.3d 10, 13 n. 6 (Colo.

29

2001) (the canon expressio un ius est exclusio alterius (the inclusion of one thing implies the exclusion of another).

The Colorado Constitution secures individual constitutional rights available to all citizens statewide, vested rights that like other constitutional rights are not subject to the whims and regulations of ~ local majority. Justice Powell noted "the danger of subjecting the determination of the rights of one person to the 'tyranny of shifting majorities." INS v. Chadha, 462 U.S. 929, 961 (1983) (concurring). See also, Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044, 1052 n. 14 (Colo. 2002) (1. Bender).

The right of a qualifying patent or care-giver to medical marijuana is an individual constitutional right analogous to those civil rights guaranteed by the Bill of Rights found in Article 2 of the Colorado Constitution. Furthermore, a denial of medical care is a deprivation of an interest in liberty or life that implicates rights to due process under both the federal and state constitutions. See, e.g., Patten v. Nichols, 274 F.3d 829,834 (4th Cir. 2001); Cesar v. Achin, 542 F.Supp.2d 897, 906-7 (E.D. Wis. 2008); Colorado Constitution, Art. 2, Section 25. These vested interests extend to the care-givers and others who provide medical marijuana patients with medication under the Colorado Constitution. See, e.g., Medical

30

Medical Marijuana Collectives Litig, v. City of Los Angeles, Los Angeles County Superior Court, California (Case No. BC433942), pp. 17-2121 (medical marijuana collectives were deprived of due process in the taking of their vested property rights by municipal ban without the opportunity of a neutral hearing).

The requirements of due process take precedence over legislation. White v.

Davis, 428 P.2d 909,910 (Colo. 1967). While some constitutional rights may be subject to regulation, a legislative ban on the exercise of those rights would clearly be unconstitutional. See, e.g., Women's Med. Prof v. Voinovich, 130 F.3d 187 (6th Cir. 1997); also, Miranda v. Arizona, 384 U.S. 436, 491 (1966) ("Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.").

In addition to the inherent liberty and life issues that establish a "fundamental right" to medical care, Article 18, Section 14 of the Colorado Constitution the Colorado Constitution is more expansive of these rights in specifically establishing as a fundamental right of all Colorado citizens and

21 http://americansforsafeaccess.org/downloadsILA_Injunction.pdf. A copy of decision submitted herewith as Appendix 4.

31

residents the free access to medical marijuana for debilitating medical conditionsr'. Tattered Cover, Inc. v. City of Thomton, 44 P.3d 1044, 1054 (Colo. 2002) (Colorado's Constitution may provide more expansive protections of fundamental rights than the federal Constitution). Indeed, fundamental constitution rights may be created under the Colorado Constitution that do not even exist under the federal Constitution. In the Matterof Title, Ballot Title and Submission Clause for Proposed Initiative, 46 P.3d 438, 448 (Colo. 2002) (the rights of initiative and referendum); Margolis v. Dist. Ct., 638 P.2d 297,302-3 (Colo. 1981).

A statute that infringes upon a fundamental right is not judged by the traditional "rational basis" test, but "must be judged by the stricter standard of whether it promotes a 'compelling state interest.'" Shapiro v. Thompson, 394 U.S. 1322, 1334 (1969); see also, Tattered Cover, 44 P.3d at 1057-1058; Evans v. Romer, 854 P.2d 1270; 1275 (Colo. 1993) (Evans l); Evans v. Romer, 882 P.2d 1335, 1341 (Colo. 1994) (Evans Il). This "strict scrutiny" review requires not only the demonstration of a compelling state interest but also that the legislation is

22 The issue of the existence of a "fundamental right" is distinguishable from the

issue of the existence of a constitutionally "protected class" discussed below although the "compelling state interest" test is applied in both instances.

32

"narrowly drawn to achieve that interest in the least restrictive manner possible." Evans 1,854 P.2d at 1275; also, Evans 11,882 P.2d at 134123•

Under any of these tests for constitutionality, H.B. 10-1284 must fall. There is no "rationality" in allowing municipalities and counties to regulate to death and ban access of patients to doctor recommended, constitutionally sanctioned, medical marijuana medication while not giving these same local governments authority to similarly regulate and ban far more potent and dangerous, if abused, substances such as pharmaceutical narcotics and alcohol. Where is the compelling state interest or even the rationality in fostering a statewide regulatory scheme of constitutional "access" to medication which then checker-boards the state with restrictions and out-right bans on that very access? Certainly without these unconstitutional provisions, the other provisions of H.B. 10-1284 are already "narrowly tailored" to exempt only patients with qualifying doctor diagnosed debilitating medical conditions and doctor recommended medication, and their

23 Where important but not fundamental rights are involved, there is also a level of

"intermediate" review, "which requires a showing that the law in question is substantially related to a sufficiently important governmental interest. ... " Evans I, 882 P.2d at 1275-6.

33

care-givers, from the State's criminal laws ~ and, even then, only within sufficiently narrow limitations on place of use and the amount of medical marijuana medication they can possess and cultivate. See, C.R.S. §§ 25-1.5-106 (11), (12) and (13); C.R.S. §§ 12-43.3-102(2), 202(2)(c), 901.

In Qualified Patients Ass 'n, a California municipality banned medical marijuana patient collectives by local nuisance ordinances which included criminal sanctions. Qualified Patients Ass'n, 187 Cal.App.4th at 754. There, although not deciding the issue, the court noted that "it appears incongruous at first glance to conclude a city may criminalize as a misdemeanor a particular use of property the state has expressly exempted from 'criminal liability' in [the state medical marijuana laws]." Id. Very recently a California lower court did reach this issue and held that the municipal ban was preempted by the statewide medical marijuana law. Medical Marijuana Collectives Litig. (Appendix 4, at pp. 8-10,21). In overturning the ban, the court remarked:

But, in discharging its powers and duties under the police power, the City must not lose sight of the fact that the People of the State ... conferred on qualified patients the right to obtain marijuana for

34

medical purposes. No local subdivision should be allowed to curtail that right wholesale or regulate it out of existence.

Id. at p. 21 (Appendix 4) (emphasis supplied).

Here as well it is wholly incongruous to authorize municipalities and counties to ban or regulate to death, attendant with criminal sanctions, the very conduct and scheme that was established and envisioned by the Colorado Constitution for the ready use and availability of constitutionally sanctioned medication by qualifying medical marijuana patients. In Medical Marijuana Collectives Litig., the court ruled that a "blanket ban" on all medical marijuana collectives by the municipality "goes too far" and contradicts" the statewide medical marijuana legislation. Id. at p. 11 (Appendix 4).

Therefore, the "local option" (ban) and the local licensing (regulation) provisions of H.B. 10-1284 interfere with Constitution's regulatory scheme, violate the constitutional right to ready and free access of qualifying patients and caregivers to medical marijuana, and violate fundamental constitutional rights and their constitutional right to due process of law. For these reasons, the provisions of H.B. 10-1284 pertaining to local regulation, licensing and prohibition must be held to be unconstitutional as a matter of law.

.35

V. THE PRIMARY CAREGIVER LIMITATIONS IN H.B. 10-1284 VIOLATE THE COLORADO CONSTITUTION

As noted above, House Bill 10-1284 limits each primary care-giver to 5

patients, bars patients with a care-giver from acting as a care-giver for another

patient, restricts each patient to having only one care-giver, forbids care-givers

from the joint cultivation of medical marijuana, and forbids care-givers from

charging more than the cost of cultivating or purchasing the medication. C.R.S. §§

25-1.5-106(5)(b), (6)(a), (6)(b), (6)(c), (6)(d). The Colorado Constitution defines

both "patient" and "primary care-giver." Colorado Constitution, Article 18, §

14(d) and (f). Other than being 18 years of age, the sole restriction under the

constitutional definition of "primary care-giver" is that the care-giver "has

significant responsibility for managing the well-being of a patient who has a

debilitating medical condition." Id. at § 14(f); People v. Clendenin, 232 P.3d at

214; see also, Mentch, 195 P.3d at 1068.

However and in direct contrast, nowhere in the Constitution does it limit the

number of patients per care-giver or restrict the number of care-givers per patient,

bar a patient with a care-giver from being a care-giver for another patient, or forbid

36

care-givers from joint cultivation or making of a profit on the cultivation or

,

purchasing of medical marijuana for a patient. All of these limitations were pulled

and added by the State legislature out of thin air. Notably, PCRLP member

Lannette F. had to rely on several care-givers for her care and a reliable supply of

her medication. Prior to H.B. 10-1284, Petitioner Kathleen Chippi provided

adequate care for many more than 5 patients - as do virtually all attendants, home-

visit nurses, therapists, hospice employees, and other providers of medical services

to persons with debilitating conditions. The statutory provision forced PCRLP

member Kendra C.' s care-giver to drop her as a patient to come within the

restriction. PCRLPmember Scott C. also had to cease acting as a care-giver for

another patient under the legislation's bar on patients with care-givers acting as

care-givers.

This statutorily imposed limit on patients per care-giver is analogous to the

medical marijuana quantity limits imposed by statute in California, where the

California medical marijuana law, adopted by initiative, did not state any limits.

When the issue reached the California Supreme Court in People v. Kelly, 222 P.3d

186 (Cal. 2010), the Court held that the statute improperly amended the state's

medical marijuana law by imposing limits on the amount of medication that a

37

physician could recommend. See also, People v. Phomphaky, 165 Cal.App.4th 857

(Cal.App. 2008) (same). Obviously, the amount of medication a patients needs

should be a medical decision, not a political one. Similarly, as Judge Naves held

below, the number of patients a care-giver can have should be determined by the

facts and circumstances of the patient / care-giver relationship, not arbitrarily by

the General Assembly.

In June, 2007, several years prior to the passage of H.B. 1 0-1284~ Denver

District Court Chief Judge Larry J. Naves issued a preliminary injunction against

the 5-patient-per-caregiver restriction which had been adopted as a regulation by

the Colorado state health agency which asserted that some caregivers were serving

hundreds of patients'". The 5-patient limit cut the plaintiff, Damien LaGoy, off

from his primary care-giver. Mr. La Goy testified that medical marijuana was the

only thing that helped him keep his AIDS medications down and that, without his

medications, death could be imminent. Id. (footnote 24). Judge Naves noted in his

<

ruling that in setting the limit, the state agency "did not rely on scientific evidence

to determine the limit" and held that the agency had made a capricious decision in 24 Face the State, "Denver Judge Grants Temporary Victory to Medical Marijuana

Patients (July 10,2007), http://www.denverpost.comlfdcp?1294175684807.

38

imposing the limit on patients per care-giver. Id. In November, 2009, the district court entered its final order ruling that the adoption of the patients per care-giver limit violated the procedural due process rights of the medical marijuana patients'".

California has a definition of a medical marijuana primary care-giver very similar to that found in the Colorado Constitution. Mentch, 45 Ca1.4th at 283; Qualified Patients Ass'n, 187 Cal.AppAth at 743. California's implementing legislation further provides examples of the legislature's view of persons qualifying as care-givers under this definition, including "owners and operators of clinics or care facilities". Qualified Patients Ass'n, 187 Cal.AppAth at 746. This definition encompasses Petitioner Kathleen Chippi and PCRLP members Jason D., Nick L., and the care-givers for PCRLP member Lannette F., each of whom provided care-giving services for more than 5 patients. The California Attorney General, and its Court of Appeals, acknowledged that "a properly organized and operated collective or cooperative that dispenses medical marijuana [from and between its members] through a storefront may be lawful .... " Id. at 747, 752.

25 Denver Post, "Judge tosses out health board decision on medical pot," (November 10,2009), http://www.denverpost.comlci_13759034.

39

The operator of dispensary at issue in Qualified Patients was the designated primary care-giver of a medical marijuana collective consisting of "more than fifty qualified patients." Id. at 752 (italics in decision). The municipality argued that the operator of the dispensary could not qualify as the primary care-giver for that many patients and that the designations were therefore pro forma. Id. The court rejected this argument and refused to "prejudge, as the city would have us do, that [the operator] was not a legitimate 'primary caregiver' absent facts that disqualify him." Id.

If one can be a primary care-giver of 50 or more patients in California, then certainly a person should be a primary care-giver of well more than 5 persons in Colorado under the same definition. H.B. 10-1284 clearly "prejudges" and forecloses the proper intended implementation of the definition of a primary caregiver in the Colorado Constitution and is unconstitutional. Again, the Court must adhere to the plain language of the Amendment. In re 2000-2001 Dist. Grand Jury, 97 P.3d at 924; Int'l Brotherhood of Teamsters, 431 U.S. at 354 n. 39. The fact that the framers of these Constitutional provisions included an express and specific restriction on the definition of primary care-giver is an additional

40

indication that it excluded any and all other further restrictions on the definition, such as those added by House Bill 10-1084. City of Arvada, 19 P.3d at 13 n. 6.

The existence and ready and widespread availability of primary care givers to patients is an integral part of the scheme set out in the Colorado Constitution for the provision of medical marijuana to qualifying patients with debilitating medical conditions. Many patients are infirm, immobile, lack transportation, are too young to get their medication on their own such as PCRLP member Kendra C., or lack the ability or desire to cultivate their own medication and need a primary care giver to perform those services for them as many of the Petitioners were doing prior to

H.B. 10-1284. "[L]ogically the [medical marijuana initiative] must offer some alternative for those unable to act in their own behalf .... " Mentch, 195 P.2d at 1069.

As with nurses and other in-home care givers, it is a service that requires reasonable compensation and income to make it worthwhile. By limiting caregivers to 5 or less patients, H.B. 10-1284 forces up the cost of care-giving and effectively makes it unprofitable for a great many providers to act as a care-giver as it did with Gary I.' s care-giver. It denies care-giving services and thus their constitutionally secured medication to those many qualifying medical marijuana

41

patients who either cannot afford the increased costs associated with the reduction in numbers of patients per care-giver or who have no relative or other person available to provide care-giving services at no cost. As recognized by California in its medical marijuana legislation, its implementation plan contemplates "reimbursement for marijuana andfor services in connection with providing medical marijuana". Medical Marijuana Collectives Litig., p. 5 (Appendix 4) (citing People v. Urziceanu, 132 Cal.App.d" 747, 785 (Cal.App. 2005) (emphasis supplied). In other words, the implementing legislation should encourage the profitability of care-giver services in order to fulfill the mandate of the Colorado Constitution in making the medication readily available to qualifying medical marijuana patients ".

Each of the irrational restrictions H.B. 10-1284 places on care-givers makes it more difficult for them to effectively and profitably perform these services. The restrictions undercut the scheme of the Colorado Constitution and the ready access of patients to their medication in a de facto denial of their constitutional rights

26 This is implied as well in the Constitutions reference authorizing the

"manufacture, sale, distribution, and dispensing" of medical marijuana. See, footnote 5 supra.

42

under the Constitution. As previously noted, the constitution excepts all persons engaged in the "acquisition, possession, manufacture, production; use, sale, distribution, dispensing, or transportation of marijuana" for medical purposes from coverage of Colorado's criminal laws. Colorado Constitution, Article 18, § 14(2)(d). There is no rationale basis for any of these restrictions. They are "at odds" with the constitutional scheme. Colo. Water Conservation Bd. v. Upper Gunnison River Water Conservancy Dist., 109 P.3d at 593.

The General Assembly can only enact legislation that satisfies the mandates of the Colorado Constitution, including the provisions on patient access to medical marijuana. If, instead, it wants to change the fundamental structure of Amendment 20, it must seek to amend the Constitution through a constitutional means. It cannot amend the Colorado Constitution by legislation, as it has done with the Constitution's scheme through the local option and licensing and the substantive restrictions on care-givers. Owens v. Colo. Congress of Parents, Teachers and Students, 92 P.3d 933, 944 (Colo. 2004). A similar legislative attempt in California to change an adopted initiative measure on medical marijuana was rejected by the state supreme court recently as an impermissible amendment. People v. Kelly, 222 P.3d 186,209 (Calif. 2010); see also, People v. Melo, 2009

43

WL 4918618 (Cal.App. 2009). Likewise, H.B. 10-1284 mustbe found to be an

impermissible amendment to the Colorado Constitution.

VI. RESTRICTIONS ON PHYSICIANS UNDER THE PROVISIONS OF S.B. 10-109 VIOLATE THE COLORADO CONSTITUTION

In addition to H.B. 10-1284, the General Assembly also passed Senate Bill

10-109 concerning physicians who may participate in the medical marijuana

program. S.B. 10-109 (2010) (therevisions are contained in the Colorado Medical

Marijuana Code, C.R.S. §§ 12-43.3-101 et. seq. and the Medical Marijuana

Program, C.R.S. § 25-1.5-106) (attached as Appendix 2)).

The relevant provisions of the Colorado Constitution authorize by exempting

from the state's criminal laws the use of a limited amount of marijuana by

someone who has been "diagnosed by a physician as having a debilitating medical

condition" and "advised by his or her physician, in the context of a bona fide

physician-patient relationship, that the patient might benefit from the medical use

of marijuana in connection with a debilitating medication condition ... " Colorado

Constitution, Article 18, Section 14(2)(a). Section 14(1)(e) of Article 18 of the

Constitution then defines "physician" to mean "a doctor of medicine who

44

maintains, in good standing, a license to practice medicine issued by the state of Colorado." (emphasis supplied).

But, by redefining "in good standing", S.B. 10-109 severely restricts the physicians who may participate in the medical marijuana program, and thereby limits the access of qualifying patients to their medication. S.B. 10-109 defines the phrase "in good standing" as requiring:

(I) The physician holds a doctor of medicine or doctor of osteopathic medicine degree from an accredited medical;

(II) The physician holds a valid, unrestricted license to practice medicine in Colorado; and

(III) The physician has a valid and unrestricted United States department of justice federal drug enforcement administration controlled substance registration.

C.R.S. § 25-1.5-l06(2)(c) (emphasis supplied).

This severely restrictive legislative redefining of the constitutional phrase "in good standing" has the result of disqualifying hundreds of physicians for reasons having nothing to do with the physician's competency to recommend medical marijuana. A physician's license might be "restricted" to one area of

45

medicine or to the military or a specific facility or institution or in other technical or temporary terms while the physician remains licensed, and registered by the US Drug Enforcement Administration, to diagnose disabilities and prescribe any pharmaceutical medication. Under the definition of S.B. 10-109, those physicians would not be available to medical marijuana patients either for a diagnosis of their debilitating conditions orfor any recommendation of medical marijuana as an appropriate medication. Many rural communities have very, very few physicians locally available to them. Placing such irrational restrictions on available physicians deprives qualified patients of access to their medication in contravention of the express language of the Colorado Constitution.

At the time the Colorado Constitution was amended to include the medical marijuana provisions, the General Assembly had already had many occasions to define the phrase "in good standing." For example, the legislation on licensing podiatrists and also on the practice of acupuncture each defines "in good standing" as "mean[ing] a license that has notbeen revoked or suspended or against which there are no current disciplinary or adverse actions." C.R.S. 12-32-108(3) and C.R.S. 12-29.5-104.5. For pharmacists, "good standing" "means that the applicant cannot be subject to active disciplinary actions in any state." See also, C.R.S. 12-

46

64-110.5(3) (veterinarians); In re Smith, 2009 WL 1303165,**1 (lOth Cir. 2009) (attorneys).

Perhaps most analogous to the physician / care-giver / patient relationship in the medical marijuana program set out in the Constitution are the statutory provisions authorizing advanced practice nurses to render prescriptions in collaboration with a physician. There the legislature requires the physician to "have a license in good standing without disciplinary sanctions to practice medicine in Colorado and an unrestricted registration by the drug enforcement administration ... " C.R.S. §§ 12-36-106(3)(t)(II) and 12-36-106.4(1)(a)(II).

There is no rhyme or reason for the expansive definition of "in good standing" by the General' Assembly - other than an unconstitutional desire to limit access of medication to qualified patients. The General Assembly was without any authority to legislatively rewrite provisions in the Colorado Constitution. -Int'l Brotherhood of Teamsters, 431 U.S. at 354 n. 39. If a physician holds a valid license from the State of Colorado to practice medicine without any disciplinary sanctions that would prevent the physician from diagnosing debilitating conditions or prescribing any and all pharmaceuticals, including narcotics, and has an unrestricted controlled substances registration from the United States Drug

47

Enforcement Administration, that physician is in good standing and certainly

qualified to recommend medical marijuana to qualified patients.

Furthermore, a physician has a constitutionally protected First Amendment,

right to recommend medical marijuana, irrespective of the medical marijuana

legislation. Conant v. Walters, 309 F.3d 629, (9th Cir. 2002). In Conant, the

Ninth Circuit upheld, as a violation of physicians' rights to free speech, a federal

court injunction against the enforcement of a government policy that threatened to

punish physicians for communicating with their patients about the medical use of

marijuana. Thus, restrictions found in S.B. 10-109 on licensed physicians'

communications with their patients in contrary to the First Amendment to the

United States Constitution, and to Section 10 of Article II of the Colorado

Constitution.

For these reasons, the restrictions on physician qualifications in S.B. 10-109

are plainly unconstitutional.

VII. THE PATIENT INFORMATION DISCLOSURE PROVISONS OFH.B. 10-1284 VIOLATE THE COLORADO CONSTITUTION

48

The medical marijuana provisions of the Colorado Constitution are concerned with providing appropriate medication upon a doctor's diagnosis to Colorado citizens and residents suffering from debilitating medical conditions. Colorado Constitution, Art. 18, § 14. Patients generally have constitutionally protected privacy interests in regards to their communications with their physicians and to their healthcare records. Alcon v. Spicer, 113 P.3d 735, 738 (Colo. 2005); U.S. Dept. of State v. Wash. Post Co., 456 U.S. 595,599 (1982); see also, Medical Marijuana Collectives Litig., at 23-28 (Appendix 4) (right to privacy regarding medical marijuana records).

The protected privacy interests are also reflected in the patient-physician privilege which has been long recognized and enforced in both common law and by Colorado statute. Gray v. Dist. Ct., 884 P.2d 286,290 (Colo. 1994); C.R.S.

§ 13-90-107 (1)( d). No statutory or other exception to the privilege exists in Colorado - at least until the passage ofH.B. 10-1284. People v. Turley, 870 P.2d 498,502 (Colo.App. 1993), cert. den. Section 13-90-107(1)(d) states in relevant part: "A physician ... duly authorized to practice his or her profession pursuant to the laws of this state or any other state shall not be examined without the consent

49

of his or her patient as to any information acquired in attending the patient that was necessary to enable him or her to prescribe or act for the patient. ... "

There is an additional confidentiality concern in regards to medical marijuana because its possession and cultivation and acquisition may still be illegal under federal law although legal under state law. Gonzales v. Raich, 545 U.S. 1 (2005). Patients who are "outed" as users of medical marijuana, although legal and constitutional, risk losing their freedom, health insurance coverage, government benefits, college tuition loans and grants, employment,children, and other such harms. With this clearly in mind, the Colorado Constitution expressly provides as to medical marijuana records:

No person shall be permitted to gain access to any information about patients in the state health agency's confidential registry, or any information otherwise maintained by the state health agency about physicians and primary care-givers, except for authorized employees of the state health agency in the course of their official duties and authorized employees of state or local law enforcement agencies which have stopped to arrested a person who claims to be engaged in

50

the medical use of marijuana and in possession of a registry identification card or its functional equivalent ....

Colorado Constitution, Art. 18, § 14(3)(a). The Constitution further provides for criminal penalties for the breach of confidentiality of information provided to or by the state health agency. Id. at § 14(8)(d).

In direct contrast to these clearly stated constitutional privacy provisions,

and the physician-patient privilege, H.B. 10-1284 requires:

Each licensee shall keep a complete set of all records necessary to show fully the business transactions of the licensee, all of which shall be open at all times during business hours for the inspection and examination of the state licensing authority or its duly authorized representatives. The state licensing authority may require any licensee to furnish such information as it considers necessary for the proper administration of this article and may require an audit to be made of the books of account and record on such occasions as it may consider necessary by an auditor to be selected by the state licensing authority who shall likewise have access to all books and records of the licensee ...

51

C.R.S. 12-43.2-701(i).

As already demonstrated by the recent and shocking alleyway discovery of the discarded dispensary records mentioned above, the books and records of dispensaries, product manufacturers, and cultivators will necessarily contain the identifying information, including possibly the illness and doctors records, along with the dates and amounts of purchase or order by each patient and primary caregiver. Disclosure of this information to the Department of Revenue or anyone other than the State health agency would violate at the very least the intent of the constitutional confidentiality provision and the regulatory scheme set out in the Colorado Constitution. See, Medical Marijuana Collectives Litig., p. 25-29 (holding that municipal ordinance provisions regarding disclosure of medical marijuana general contact information violate the right to privacy under the state constitution).

In In re Grand Jury Subpoena/or THCF Medical Clinic Records, 504 F.Supp.2d 1085 (E.D. Wash. 2007), for example, the federal district court quashed a federal subpoena directed to the state for such information on medical marijuana patients since the patients were not criminals nor engaging in criminal activity, the government did prove a strong need for the information, and the state would be

52

violating its own laws regarding confidentiality of such information if it complied with the subpoena. Id. at 1089-91. The subpoena was successfully resisted by the state and the medical marijuana dispensary on the grounds that it violated the privacy interests of its citizens, sought information irrelevant to any criminal investigation, and violated the patient-client privilege. Id. at 1088-9. The federal court further noted that such records are "integral to the success of the program" and that subjecting law-abiding patients to such risks of disclosure of confidential information would deter medical marijuana patients from participating in the state's medical marijuana program. Id. at 1091. See also, City of Garden Grove v. Superior Court, 157 Cal.AppAth 355 (Cal.App. 2007), cert. den. 129 S.Ct. 623 (held that medical marijuana users were not criminals and, like other aggrieved citizens, are entitled to the return of their lawfully possessed property (medical marijuana) which had been wrongfully seized by a municipal police officer).

Here, giving the Department of Revenue, and law enforcement agencies, broad, virtually unfettered, authority to invade the privacy of medical marijuana patients not only contravenes the explicit privacy provisions of the Colorado Constitution, but also discourages qualified patients and citizens from asserting

. their constitutional right to their medication and denies them an effective, possibly

53

life-saving, remedy for their debilitating conditions, and, further, places the success of the program itself at risk. All the Department of Revenue needs for revenue and tax purposes are sales receipts without any of the constitutionally confidential identifying information on any specific patient or care-giver. This provision of H.B. 10-1284 is entirely too broad. The General Assembly was without any constitutional authority for its promulgation. And, it is in direct conflict with the confidentiality provision of the Colorado Constitution.

For these reasons, the Court must find that provisions of H.B. 10-1284 requiring disclosure of patient and care-giver information to the Department of Revenue, or any other entity other than the designated "State health agency", are unconstitutional.

VII. CONCLUSION

Amendment 20 was not only approved by the citizens of Colorado but made part of the highest law of our State, its Constitution. The right of qualified medical marijuana patients to their medication to ease their suffering is now enshrined in our Constitution. Certain legislators, even a majority of them, or a majority of voters in some communities, may want to second guess medical experts and the

54

People of their State and disagree with the limited and highly controlled use of marijuana as a physician recommended medication by fellow citizens and residents diagnosed with debilitating medication conditions. But, that does not give these "representatives" nor the majorities of limited geographical areas of the State the right to veto the will of the People or deny the fundamental constitutional rights of others, anymore than the majority can silence free speech, or take one's liberty or property or life or health without due process of law. This tyranny over the citizenry by "representatives" decried by Hamilton in the Federalist Papers and discussed by Chief Justice Bergerin Chadha, and the "tyranny of shifting majorities" discussed by Justice Powell, must be resisted in the defense of fundamental constitutional rights and liberties of individual citizens. INS v. Chadha, 462 U.S. at 949-50, 961.

Even within our own municipalities and counties, the "tyrannies of governing majorities" eschewed by the framers of our federal constitution cannot be licensed by the General Assembly to deprive their citizens and residents of their constitutional rights by excessive regulation or outright bans. Whitney v. Calif., 274 U.S. 357, 375-6 (1927) (J. Brandeis, concurring) (quoted by Justice Bender in Tattered Cover, 44 P.3d at 1052 n. 14. The General Assembly cannot amend the

55

Colorado Constitution by legislation, including the medical marijuana provisions defining care-givers, physicians, and patient and care-giver privacy rights.

It is up to the majority of the People of Colorado, not the General Assembly nor a local board, or a municipality, or a county, to determine the existence and define scope of our fundamental individual rights as set forth in our Constitution. It is the duty of this Court to interpret and enforce and protect those rights. The will of the clear majority of the People of Colorado and the health and quality of life of 100s of thousands of citizens and residents of this State suffering from debilitating and life-threatening conditions lie with this Court.

WHERFORE, Petitioners request that the Court rule unconstitutional all provisions ofH.B. 10-1284, C.R.S. Article 43.3, set forth above relating to any local option, local ban, local regulation, or "local licensing authority," relating to the Colorado Department of Revenue as the "state licensing authority," and relating to the production or disclosure or inspection by anyone or any agency or entity other than the Colorado Department of Health of any records containing any information regarding any patient or primary care-giver. Plaintiff further requests that the Court rule unconstitutional the restrictions on primary care-givers set forth

56

in H.B. 10-1284 and physicians set forth in S.B. 10-109atC.R.S. §§ 25-1.5-106 (2)(c)(II), (5)(b), (6)(a), (6)(b), (6)(c), and (6)(d).

57

Dated: January 5, 2011.

Respectfully submitted.:

SPRINGER AND STEINBERG, P.C.

r 00 Broadway, Suite 1200 enver, CO 80202

Tel: 303.861.2800

Email: areid@springer-and-steinberg.com

Attorneys. for Petitioners

58

Sign up to vote on this title
UsefulNot useful