VIA CERTIFIED MAIL, FACSIMILE, AND ELECTRONIC. MAIL May 7, 2012 John W.
Suthers Colorado Attorney General 1525 Sherman Street Denver, Colorado 80203 Facsimile 303-866-5691 Attorney.General@state.co.us Re: NOTICE OF LAWSUIT PURSUANT TO C.R.S. § 24-10-109
Dear Mr. Suthers: Please construe this letter as notice of lawsuit pursuant to C.R.S. § 24-10-109. We look forward to receiving your response within 90 days as provided by C.R.S. § 24-10109(6) as to whether you accept or deny this claim in whole or in part. This claim provides notice of the imminent filing of a proposed Class Action lawsuit on behalf of Medical Marijuana patients who paid funds into the Colorado Department of Public Health and Environment’s Medical Marijuana Registry since its inception in 2001. The proposed Class Action will seek refunds to all patients who overpaid amounts into the Medical Marijuana Registry, which collected more funds than was necessary to administer the Registry. As provided by the Colorado Constitution, Article XVIII § 14, the funds kept in this registry are not general funds, and cannot lawfully be used for any purpose other than to administer the Registry on behalf of patients. House Bill 12-1358 would illegally and unconstitutionally transfer $9,700,000 of these funds to government functions not directly
associated with the Medical Marijuana Registry. Further, H.B. 12-1358 would also create and fund a law enforcement database of Medical Marijuana patient information in violation of constitutional and statutory guarantees of confidentiality of this sensitive data. See Colorado Constitution, Article XVIII § 14; C.R.S. § 18-18-406.3. Name and Address of Claimant: Proposed Class of Medical Marijuana Patients c/o Robert J. Corry, Jr. Travis B. Simpson Attorneys at Law 600 Seventeenth Street Suite 2800 South Tower Denver, CO 80202 Name and Address of Claimant’s Attorneys: Robert J. Corry, Jr., Esq. Travis B. Simpson, Esq. 600 Seventeenth Street Suite 2800 South Tower Denver, Colorado 80202 Factual Basis of Claim: In November 2000, Colorado electors passed Amendment 20, which enshrined Article XVIII § 14, “Medical Use of Marijuana for Persons Suffering from Debilitating Medical Conditions,” into the Supreme Law of the State of Colorado. This constitutional provision created comprehensive constitutional protection and government administration of the Medical Use of Marijuana. This comprehensive set of rights governs medical use of marijuana, and among the Supreme Law of Colorado’s protections are the following: 1.) 2.) 3.) Definitions of selected terms (§14(1)(a-j)); Affirmative defense for patients and primary care-givers (§14(2)(a)); Exception from the state’s criminal laws for patients and primary caregivers (§14(2)(b));
Exception for physicians against criminal laws or denial of any rights or privileges (§14(2)(c)); Protection for “acquisition, possession, manufacture, production, use, sale, distribution, dispensing, or transportation” of marijuana for medical use only (§14(2)(d)); Protection that “any” property interest in connection with medical marijuana not be “harmed, neglected, injured, or destroyed” while in possession of law enforcement until a criminal conviction is achieved, and requirement that such property “shall be returned immediately” upon a decision not to prosecute, dismissal, or acquittal (§14(2)(e)); Creation of confidential state registry of patients, and protections for confidentiality of patients, care-givers, and physicians (§14(3)(a)); Requirements for placement on confidential registry (§14(3)(b)); Issuance of registry identification cards, and general provisions governing timing, denial, changes, fees regarding cards (§14(3)(c-i)); Guidelines regarding amounts of marijuana permitted, and legally allowing patient or caregiver to possess greater amounts if “medically necessary” to address the patient’s debilitating medical condition (§14(4)(a-b)); Prohibitions of patient use of marijuana in a way that endangers the health or well-being of any person, or in public view or in a place open to the general public, and one-year revocation of card for those in violation (§14(5)(a-b)); Provisions for patients under eighteen years of age to use medical marijuana (§14(6)(a-i)); Implementing actions required of the executive and legislative branches (§14(7)-(9), (11)); and Provision that section does not make insurance provider liable for claims for reimbursement for medical marijuana, and that employer not required to accommodate use in workplace (§14(10)(a-b)).
In creating this constitutional right, Colorado’s voters intended to legalize marijuana for medical use, protect patient access to this medicine, and ensure that the Medical Marijuana Registry were self-funding, collecting no more or no less than is necessary to administer the program.
Specifically, the Colorado Constitution, Article XVIII § 14(3)(i) provides that “[t]he state health agency may determine and levy reasonable fees to pay for any direct or indirect administrative costs associated with its role in this program. (Emphasis added.) In 2001, the Governor designated the Colorado Department of Public Health and Environment as the health agency to administer the Medical Marijuana Registry. The Registry opened in 2001 and began processing applications and collecting fees that same year, and has operated continuously since that time. The state health agency has levied an excess, more than is necessary “to pay for any direct or indirect administrative costs associated with its role in this program.” H.B. 12-1358 proposes to have the Colorado State Treasurer transfer this excess money to two entities other than the Medical Marijuana Registry, $7,700,000 to the Colorado Department of Revenue, and $2,000,000 to the Tony Grampsas Youth Services Program. Patients discovered the existence of this overcharge when H.B. 12-1358 was proposed in the Colorado General Assembly in approximately April 2012. Name and Address of Any Public Employee Involved, if Known Christopher E. Urbina Executive Director and Chief Medical Officer Colorado Department of Public Health and Environment 4300 Cherry Creek Drive South Denver, Colorado 80246-1530 Barbara Brohl Executive Director Colorado Department of Revenue 1375 Sherman Street Denver, Colorado 80203 Phone: (303) 866-5610 Fax: (303) 866-2400 Email: email@example.com Walker Stapleton Colorado State Treasurer 200 East Colfax Avenue State Capitol, Suite 140 Denver, CO 80203-1722 Phone: (303) 866-2441 Fax: (303) 866-2123 Email: firstname.lastname@example.org
Nature and Extent of Injury Claimed to Have Been Suffered Colorado’s Medical Marijuana patients have been overcharged millions of dollars for the right to be on Colorado’s Medical Marijuana Registry. The number of patients that have applied to be on the Registry throughout its existence exceeds 100,000 people. On information and belief, the fees for inclusion on the Registry started at $110.00 per patient, which was reduced to $90.00, and then $35.00. All of these patients, by definition, suffer from a “debilitating medical condition” as defined in the Colorado Constitution, Article XVIII § 14 as diagnosed by a licensed Colorado physician, a requirement for inclusion on the Registry. Many of these patients are completely disabled, unable to work even part-time, and living on fixed incomes or governmental assistance. Some of these patients must make hard choices between paying for basic life necessities or inclusion in the Registry. In good faith, these patients paid into the Registry assuming that the amounts collected were necessary for the direct and indirect administration of the Registry. The introduction and serious consideration of H.B. 12-1358 confirms that the Registry instead overcharged patients in the amount of at least $9,700,000, and possibly more. Amount of Monetary Damages Being Requested The patients and class representatives request a refund of all funds overpaid into the Colorado Department of Public Health and Environment that were not necessary for the direct or indirect cost of administering the Medical Marijuana Registry. It is estimated that that amount is at least $9,700,000 or more. Please contact me with questions. I hope we can resolve this situation without the State taking funds that are rightfully held in trust for Colorado’s Medical Marijuana patients. Thank you for your consideration of this matter, and we look forward to your prompt response. Sincerely,
Robert J. Corry, Jr. Travis B. Simpson