Certification of Word Count: 6,373 COURT OF APPEALS, STATE OF COLORADO 101 West Colfax Avenue, Suite 800 Denver

, CO 80202 District Court of Arapahoe County The Honorable Elizabeth Volz Case Number 2011CV1464 BRANDON COATS Plaintiff-Appellant v. DISH NETWORK, L.L.C. Defendant-Appellee Attorneys for Plaintiff: Michael D. Evans, Atty. Reg. #39407 The Evans Firm, LLC 4610 South Ulster St., Suite 150 P.O. Box 371896 Denver, CO 80237 (303) 221-3634 (Telephone) (303) 221-3747 (Fax) info@theevansfirm.com Thomas K. Carberry # 19707 149 West Maple Avenue Denver, Colorado 80223 (303) 722-3929 (Telephone) (303) 929-0067 (Cellular) tom@carberrylaw.com OPENING BRIEF  COURT USE ONLY  Case Number: 2012CA0595

CERTIFICATION I hereby certify that this brief complies with all requirements of C.A.R. 28 and C.A.R. 32, including all formatting requirements set forth in these rules. Specifically, the undersigned certifies that: The brief complies with C.A.R. 28(g). Choose one: It contains 6,373 words. The brief complies with C.A.R. 28(k). For the party raising the issue: It contains under a separate heading (1) a concise statement of the applicable standard of appellate review with citation to authority; and (2) a citation to the precise location in the record (Record PDF p._), not to an entire document, where the issue was raised and ruled on. For the party responding to the issue: It contains, under a separate heading, a statement of whether such party agrees with the opponent’s statements concerning the standard of review and preservation for appeal, and if not, why not.

________________________ Michael D. Evans, Atty. Reg. #39407

TABLE OF CONTENTS

STATEMENT OF THE ISSUE Reversible error was committed by the trial court dismissing Brandon Coats’ complaint pursuant to C.R.C.P. 12(b)(5) because his stateapproved medical use of marijuana, off his employer’s premises, during nonworking hours, and in full compliance with Colo. Const. art. XVIII, § 14 (the Medical Marijuana Amendment or the Amendment), is a “lawful activity” protected under Colorado’s Lawful Activity Statute, § 24-34-402.5, C.R.S. 2011. STATEMENT OF THE CASE STATEMENT OF THE FACTS FACTS NOT IN DISPUTE SUMMARY OF THE ARGUMENT ARGUMENT I. II. III. IV. Issue Raised and Ruled On Standard of Review – De Novo Colorado’s Lawful Activity Statute § 24-34-402.5 The Medical Marijuana Amendment, Colo. Const. art. XVIII, § 14 A. Medical Marijuana Is “Lawful” Under § 14(4)

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1 3 5 7 10 10 11 11 17

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B.

The Legislature Has Recognized the Legality of Medical Marijuana in Section 18-18-406.3(1)(f), C.R.S. The Court of Appeal Has Recognized The Legality of Medical Marijuana The Amendment Creates a Legal and Enforceable Property Interest in Medical Marijuana Voters approved an Amendment that declared the medical use and possession of medical marijuana "legal" within the Amendment's limits Distinguishing Beinor and Watkins 1. Beinor 2. Watkins

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C.

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D.

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E.

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F.

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CONCLUSION CERTIFICATE OF MAILING

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TABLE OF CASES Beinor v. Indus. Claim Appeals Office, 262 P.3d 970 (Colo. App. 2011) cert. denied. Cacioppo v. Eagle Cnty. Sch. Dist. Re-50J, 92 P.3d 453 (Colo. 2004) Colorado School of Mines v. Neighbors, 203 P.2d 904 (Colo. 1949) Grossman v. Dean, 80 P.3d 952 (Colo. App. 2003) Hardesty v. Pino, 222 P.3d 336 (Colo. App. 2009) Hurtado v. Brady, 165 P.3d 871 (Colo. App. 2007) Independence Institute v. Coffman, 209 P.3d 1130 (Colo. App. 2008) Lobato v. State, 218 P.3d 358 (Colo. 2009) Macravey v. Hamilton, 898 P.2d 1076 (Colo. 1995) Patterson Recall Committee, Inc. v. Patterson, 209 P.3d 1210 (Colo. App. 2009) People v. Watkins, ___ P.3d ___ 2012 WL 310776 (Colo. App. 2012) Phillips v. Monarch Recreation Corp., 668 P.2d 982, 985 (Colo. App. 1983) State v. Nieto, 993 P.2d 493, 500 (Colo. 2000) Watson v. Public Service Co. of Colo., 207 P.3d 860, 864 (Colo. 2008) 2, 11, 20, 22, 25, 26, 28 19 15 24 22 11 18 11 24 19, 20 9, 17, 21, 22, 25, 26, 27, 28 14 12 9, 13, 14, 17, 27

TABLE OF STATUTES AND RULES C.A.R. 35 C.R.C.P. 12(b)(5) § 2-4-101, C.R.S. 2011 § 18-18-406.3, C.R.S. 2011 § 24-34-402.5, C.R.S. 2011 21 U.S.C. 801 et. seq. 22 1, 2, 8, 10 12 8, 17, 20, 21 1, 3, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 26, 28 2 CONSTITUTIONAL AUTHORITIES Colo. Const. art. XVIII, § 14 1, 2, 3, 8, 9, 10, 17, 18, 19, 21, 22, 23, 24, 26, 28

OTHER AUTHORITIES 1B Colo. Prac., Methods of Practice, § 19:21 (5th Ed.) Colorado Legislative Council, Research Pub. No. 475-6, An Analysis of 2000 Ballot Proposals 1 (2000) Colorado General Assembly: Legislative History on House Bill 1123 (1990) (audio files) Keynen J. Wall, Jr. & Jacqueline Johnson, Colorado's Lawful Activity Statute: Balancing Employee Privacy and the Rights of Employees, 35 COLO. LAW. 41, 41 (Dec. 2006); § 24-34-402.5(1) (2011) Unspecified lawful activities, 4 Emp. Discrim. Coord. Analysis of State Law § 9:11
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15 18, 24 13, 14, 15 12, 13, 14

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STATEMENT OF THE ISSUE Reversible error was committed by the trial court dismissing Brandon Coats’ complaint pursuant to C.R.C.P. 12(b)(5) because his state-approved medical use of marijuana, off his employer’s premises, during nonworking hours, and in full compliance with Colo. Const. art. XVIII, § 14 (the Medical Marijuana Amendment or the Amendment), is a “lawful activity” protected under Colorado’s Lawful Activity Statute, § 24-34-402.5, C.R.S. 2011. STATEMENT OF THE CASE This is an appeal of the trial court’s dismissal of plaintiff-appellant Brandon Coats’ complaint for failure to state a claim upon which relief can be granted pursuant to C.R.C.P. 12(b)(5). Mr. Coats filed a complaint against his former employer,

Colorado-based DISH Network, L.L.C., alleging it violated Colorado's Lawful Activity Statute, § 24-34-402.5, C.R.S. 2011 when it terminated him in 2010. Record PDF Pgs. 4-9. Colorado’s Lawful Activity Statute prohibits employers from

discriminating against or terminating employees for engaging in legal off-duty conduct. Mr. Coats, a quadriplegic and medical marijuana patient, asserted that his state-approved medical use of marijuana, off his employer’s premises, during nonworking hours, and in full compliance with Colo. Const. art. XVIII, § 14, was a “lawful activity” protected under § 24-34-402.5, C.R.S. 2011.
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DISH filed a motion to dismiss the complaint pursuant to C.R.C.P. 12(b)(5). Record PDF pp. 26-38. DISH asserted that Colorado's Lawful Activity statute does not protect marijuana use for any purpose because it remains illegal under the Federal Controlled Substances Act, 21 U.S.C. § 801 et. seq. A Response and Reply followed, respectively. The trial court dismissed Mr. Coats’ complaint under C.R.C.P. 12(b)(5), but on other grounds…concluding that the use of marijuana, even when used in full compliance with Colorado’s Medical Marijuana Amendment, is not a “lawful activity” under Colorado’s Lawful Activity Statute because the Amendment is limited exclusively to providing an affirmative defense to a criminal prosecution. Record PDF p. 175. The trial court ignored the plain language of Colo. Const. article XVIII, § 14(4)(a), (which expressly defines the use of marijuana within the parameters of the constitution as “lawful”), and misplaced its reliance on non-binding dicta from a narrow holding in Beinor v. Indus. Claim Appeals Office, 262 P.3d 970 (Colo. App. 2011) cert. denied. See Record PDF pp. 173-75 (no citation to the amendment’s plain language). This appeal by Mr. Coats follows and asserts that an employee’s medical use of marijuana, off the employer’s premises, during nonworking hours, and in full

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compliance with Colo. Const. art. XVIII, § 14 is a “lawful activity” protected under Colorado’s Lawful Activity Statute, § 24-34-402.5, C.R.S. 2011. STATEMENT OF THE FACTS This statement will give a brief narrative, followed by record citations to the undisputed facts. Mr. Coats became a quadriplegic at the age of sixteen while riding as a passenger in a vehicle that hit a tree. He is confined to a wheelchair, and has limited use of his hands. Despite his ability to think and speak, his employment options are obviously limited due to his physical condition. Mr. Coats’ quadriplegia has many related symptoms, such as involuntary muscle movements, or spasms. These spasms cause Mr. Coats both pain and embarrassment, adversely affecting his quality of life. Treatment with prescribed conventional medications failed. In 2009, Mr. Coats received a licensed Colorado physician’s recommendation to medically use marijuana for treatment of the muscle spasms. Mr. Coats applied for and received state-approval for medical marijuana use. Thereafter he used medical marijuana in his own home, within the parameters of Colo. Const. art. XVIII, § 14.

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For Mr. Coats, medical use of marijuana has dramatically decreased the symptoms he experiences and improved his quality of life. Prior to engaging in medical marijuana use, Mr. Coats secured a job as a telephone Customer Service Representative ("CSR") for DISH in 2007, possibly the only job that he could realistically perform with his physical limitations. This position did not involve any hazardous activities, danger to other employees or himself, nor compliance with any occupational safety regulations. For three years Mr. Coats sat at a desk pushing a button to answer customer phone calls. During his three years as a CSR, Mr. Coats had little to no disciplinary history and had satisfactory performance reviews. DISH never accused or suspected him of being under the influence of marijuana at work, nor of using marijuana on company property during work hours. During a company drug test in May 2010, Mr. Coats tested positive for THC. Mr. Coats voluntarily provided DISH his state-issued medical marijuana card. DISH terminated his full-time employment of three years based on the results of the drug test. DISH informed Mr. Coats that DISH’s policy prohibited THC in his system because it violated the DISH's "drug-free workplace policy.” To date, Mr. Coats remains unemployed.

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FACTS NOT IN DISPUTE 1. Coats, as a quadriplegic, suffers from a debilitating medical condition. Record PDF p. 20; p. 27, ¶2; p. 173, ¶2. 2. On August 27, 2009, Coats was placed on the Medical Marijuana Registry. Record PDF p. 27, ¶2; p. 173, ¶2. 3. Coats worked full time for DISH as a telephone customer service representative for three years. Record PDF p. 27, ¶1. As such, Coats’ position was not a high profile or hazardous occupation that would endanger himself or others. 4. Coats limited his use of medical marijuana to the privacy of his home. Record PDF p. 28, ¶3; p. 173, ¶2. 5. Coats never possessed or used medical marijuana while on company property, whether before, during, or after work hours. Record PDF p. 28, ¶3; p. 125, ¶19; p. 143, ¶1. 6. DISH never accused or suspected Coats of being intoxicated or under the influence while on company property, whether before, during, or after work hours. Record PDF p. 36, ¶5; p. 151, ¶¶1-2. 7. Coats had little to no disciplinary history and received average or satisfactory performance reviews. Record PDF p. 6, ¶¶18-19; p. 151, ¶¶1-2.
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8. Coats tested positive for THC during a company drug test. Record PDF p. 28, ¶¶4-5; p. 125, ¶20. 9. The drug test was accurate about the presence of THC. Record PDF p. 28, ¶¶4-5; p. 125, ¶20. 10. The presence of THC is not dispositive about a person’s intoxication or being under the influence of marijuana. Record PDF p. 36, ¶5; p. 125, ¶22; p. 143, ¶1. 11. DISH terminated Coats solely based on the drug test showing the presence of THC in his system. Record PDF pp. 16-17; p. 28, ¶6; p. 36, ¶5; p. 141, ¶1; p. 143, ¶1. 12. DISH did not terminate Coats because of any evidence of intoxication or being under the influence of marijuana at any time. Record PDF pp. 16-17; p. 28, ¶6; p. 36, ¶5; p. 141, ¶1; p. 143, ¶1; p. 151, ¶¶1-2. 13. DISH is a Colorado corporation. Record PDF p. 14; p. 125, ¶ 25; p. 143, ¶1. 14. Coats’ procurement and use of medical marijuana occurred within the frame work of Colorado’s Medical Marijuana Amendment, including but not limited to: a. Residency in the State of Colorado; Record PDF p. 4, ¶4; p. 124, ¶17; p. 125, ¶27; p. 143, ¶1.

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b. At all relevant times, possessed a valid state-issued marijuana card; Record PDF p. 15; p. 124, ¶17; p. 143, ¶1. p. 143, ¶1. c. Used and possessed equal to or less than the permitted amount; Record PDF p. 124, ¶17, p. 143, ¶1. d. A state-approved Colorado physician diagnosed and recommended marijuana use to Coats as a patient after a legitimate examination. Record PDF p. 27, ¶2; p. 124, ¶ 17; p. 143, ¶1. SUMMARY OF THE ARGUMENT Colorado’s Lawful Activity Statute, § 24-34-402.5, prohibits employers from discriminating against or terminating employees for engaging in legal off-duty conduct. DISH violated this statute when it terminated Mr. Coats’ employment based solely on the presence of Tetrahydrocannabinol (“THC”) found in his body during a company drug test. The mere presence of THC found in the body is not dispositive of marijuana intoxication, and the termination of Mr. Coats by DISH was not based upon Coats being under the influence or intoxicated while at work, exhibiting poor job performance, nor endangering the health or well-being of any person. Mr. Coats never possessed or used marijuana at the work place, nor requested any work place accommodation. No exception applies to Mr. Coats as a telephone customer service representative under § 24-34-402.5, C.R.S. 2011.
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Mr. Coats’ state-approved use of

medical marijuana, off his employer’s premises, during nonworking hours, and in full compliance with Colo. Const. art. XVIII, § 14, is a “lawful activity” protected under Colorado’s Lawful Activity Statute, § 24-34-402.5, C.R.S. 2011. The trial court erred when it dismissed Mr. Coats’ complaint against DISH pursuant to C.R.C.P. 12(b)(5), on the grounds that the use of marijuana, even when used in full compliance with Colorado’s Medical Marijuana Amendment, is not a “lawful activity” under Colorado’s Lawful Activity Statute because the Amendment is limited exclusively to providing an affirmative defense to a criminal prosecution. Record PDF p. 175. Contrary to the trial court’s conclusion, Colo. Const. art. XVIII, § 14 does more than provide for an affirmative defense to a criminal prosecution. First, the ordinary and common meaning of citizen-initiated measures, like Colo. Const. art. XVIII, § 14, require that every word be operative and given effect. Section 14(4)(a) expressly and unconditionally tells a state-approved patient in plain language that the use of medical marijuana “is lawful”. Second, based on the plain language contained in the Medical Marijuana Amendment, the General Assembly enacted and codified § 18-18-406.3, C.R.S. the following year, in which subsection (1)(f) states, “[s]ection 14 of article XVIII of the state constitution sets forth the lawful limits on the medical use of marijuana.” (Emphasis supplied). Third, this Court held that “a patient's
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medical use of marijuana within the limits set forth in the Amendment is deemed ‘lawful’ under subsection (4)(a) of the Amendment”. People v. Watkins, ___ P.3d ___ 2012 WL 310776 at *4 (Colo. App. 2012). Fourth, Colo. Const. art. XVIII, § 14(2)(e) creates a legal and enforceable property interest in medical marijuana. Fifth, as evidenced through the 2000 Blue Book, Colorado voters approved the Medical Marijuana Amendment to permit state-approved patients to legally acquire, possesses, use, grow, and transport marijuana and marijuana paraphernalia. Based on the above analysis of the Medical Marijuana Amendment, the protections of Colorado’s Lawful Activity Statute, § 24-34-402.5, C.R.S. 2011, which are afforded to employees for a variety of situations, also apply in the context of medical marijuana. As plainly written, § 24-34-402.5 is a remedial statute enforcing a principle of public policy, and therefore broadly construed to protect employees from unfair or discriminatory employment practices when they are in full compliance with state law. This is reinforced in legislative history (attached) as well as the Colorado Supreme Court’s interpretive decision on the statute in Watson v. Public Service Co. of Colo., 207 P.3d 860, 864 (Colo. 2008) (holding "any lawful activity" means "all lawful activity”).

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ARGUMENT Reversible error was committed by the trial court dismissing Brandon Coats’ complaint pursuant to C.R.C.P. 12(b)(5) because his state-approved medical use of marijuana, off his employer’s premises, during nonworking hours, and in full compliance with Colo. Const. art. XVIII, § 14 (the Medical Marijuana Amendment or the Amendment), is a “lawful activity” protected under Colorado’s Lawful Activity Statute, § 24-34-402.5, C.R.S. 2011. I. Issue Raised and Ruled On

Brandon Coats filed a complaint against his former employer, Colorado-based DISH Network, L.L.C., for violating Colorado's Lawful Activity Statute, § 24-34402.5, C.R.S. 2011 when it terminated him for his lawful use of medical marijuana. Record PDF pp. 4-9. The trial court dismissed Mr. Coats’ complaint against DISH pursuant to C.R.C.P. 12(b)(5), on the grounds that the use of marijuana, even when used in full compliance with Colorado’s Medical Marijuana Amendment, is not a “lawful activity” under Colorado’s Lawful Activity Statute because the Amendment is limited exclusively to providing an affirmative defense to a criminal prosecution. Record PDF p. 175. The trial court ignored the plain language of Colo. Const. article XVIII, § 14(4)(a), (which expressly defines the use of marijuana within the parameters

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of the constitution as “lawful”), and misplaced its reliance on non-binding dicta from a narrow holding in Beinor v. Indus. Claim Appeals Office, 262 P.3d 970 (Colo. App. 2011) cert. denied. See Record PDF pp. 173-75 (no citation to the amendment’s plain language). II. Standard of Review

The Court of Appeals “reviews a trial court's ruling on a motion to dismiss de novo” and applies “the same standards of review to a motion to dismiss as the trial court applies.” Hurtado v. Brady, 165 P.3d 871, 873 (Colo. App. 2007). “A motion to dismiss pursuant to C.R.C.P. 12(b)(5) tests the sufficiency of the complaint” and the reviewing court “must accept all averments of material fact as true and view the allegations in the light most favorable to the plaintiff.” Lobato v. State, 218 P.3d 358, 367 (Colo. 2009). III. Colorado’s Lawful Activity Statute § 24-34-402.5

Colorado’s Lawful Activity Statute, § 24-34-402.5, C.R.S. 2011 prohibits employers from discriminating against or terminating employees for engaging in legal off-duty conduct. In pertinent part, it states: (1) It shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee's engaging in any lawful activity off the premises of the employer during nonworking hours unless such a restriction:
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(a) Relates to a bona fide occupational requirement or is reasonably and rationally related to the employment activities and responsibilities of a particular employee or a particular group of employees, rather than to all employees of the employer; or (b) Is necessary to avoid a conflict of interest with any responsibilities to the employer or the appearance of such a conflict of interest. (Emphasis supplied). The plain meaning of “any lawful activity” means all legal activity. When engaging in statutory interpretation, Colorado courts "are first obligated to look to the plain meaning of the language of the controlling statute." State v. Nieto, 993 P.2d 493, 500 (Colo. 2000). "If courts can give effect to the ordinary meaning of words used by the legislature, the statute should be construed as written, giving full effect to the words chosen, as it is presumed that the General Assembly meant what it clearly said." Nieto, 993 P.2d at 500. Also, "[w]ords and phrases shall be read in the context and construed according to . . . common usage." § 2-4-101, C.R.S. (2011). The interpretation of “any lawful activity” means all legal activity. As "one of the broadest of its kind in the United States," Colorado's Lawful Activity Statute prohibits the termination of an employee for engaging in "any lawful activity." Keynen J. Wall, Jr. & Jacqueline Johnson, Colorado's Lawful Activity Statute: Balancing Employee Privacy and the Rights of Employees, 35 COLO. LAW. 41, 41 (Dec. 2006); § 24-34402.5(1) (2011). When interpreting § 24-24-402.5(1) specifically, the Colorado
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Supreme Court held that "'[a]ny' means 'all.'" Watson v. Public Service Co. of Colo., 207 P.3d 860, 864 (Colo. 2008). Thus, the term "any" is not ambiguous, but rather plainly means "all." Thus, when preceding the phrase "lawful activity," as it does in § 24-24402.5(1), the phrase "any lawful activity" means "all lawful activity”." Watson, 207 P.3d at 864. Colorado’s Lawful Activity Statute was first proposed by the tobacco lobby to protect the rights of smokers. Unspecified lawful activities, 4 Emp. Discrim. Coord. Analysis of State Law § 9:11 at 8. (Referencing, Jessica Jackson, Colorado’s Lifestyle Discrimination Statute: A Vast and Muddled Expansion of Traditional Employment Law, 67 U. Colo. L.Rev. 143 n. 5 (1996)). This interpretation is consistent with the § 24-34-402.5, C.R.S. legislative history. A complete digital copy of the statute’s legislative history as House Bill 1123 (1990) is attached for easy review by this Court as Exhibit 1. When discussing hypothetical situations, the legislature emphasized that the context and locality of the activity controls whether the activity is "lawful" and protected by the law. For example, when discussing whether smoking on one's lunch break off the employer's premises could be protected under the law, legislators agreed that it would depend on where the employee was smoking. If smoking is prohibited in the establishment, then the employee's smoking is "unlawful," but if smoking is permitted in the
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establishment, the employee's smoking is "lawful" and protected. The legislature recognized that the context and locality of the activity would determine its lawfulness for purposes of the statute. Other examples of off-duty conduct include taking proscription drugs. Unspecified lawful activities, 4 Emp. Discrim. Coord. Analysis of State Law § 9:11 at 8. (Referencing, Jessica Jackson, Colorado’s Lifestyle Discrimination Statute: A Vast and Muddled Expansion of Traditional Employment Law, 67 U. Colo. L.Rev. 143 n. 5 (1996)). Notably, in over three hours of legislative history tapes

preceding the passage of the 1990 Bill, lawmakers do not discuss whether the law applies only to Colorado state law, or whether it includes federal law. They passed the Bill referring explicitly and deliberately to "any" or "all" laws and the same interpretation was used by the Colorado Supreme Court in Watson v. Public Service Co. of Colo., 207 P.3d 860, 865 (Colo. 2008). Additionally, strict statutory interpretation is relaxed when the statute was "designed to declare and enforce a principle of public policy." Phillips v. Monarch Recreation Corp., 668 P.2d 982, 985 (Colo. App. 1983). The Colorado Supreme Court has labeled § 24-24-402.5 a "remedial statute" that "should be broadly construed" to accomplish its objective. Watson, 207 P.3d at 864. Although § 24-34-405.2, C.R.S. has been labeled a "Smoker's Rights Bill," the legislative history shows that lawmakers were concerned with many lawful off-duty activities, and not merely smoking
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cigarettes. For example, with health care and obesity concerns rising in America, legislators expressed fear that soon employers could fire employees who eat too many French fries or doughnuts when off-duty. Also, protection of an employee's choice of sexual orientation or to drink a beer after work was heavily discussed. Thus, the legislature's intent was to protect the public policy of one's freedom to engage in lawful activities after work without fear of losing one's job. Furthermore, the Colorado Practice Series explains that the Lawful Activity Statute was "foreshadowed" in a 1949 Colorado Supreme Court case, which held that the Colorado School of Mines could not terminate a faculty member solely because he chose to work at a cocktail lounge after his work at the university, showing the law was based upon a broad spectrum of individual choices and not only smoking cigarettes. 1B Colo. Prac., Methods of Practice, § 19:21 (5th Ed.) (citing Colorado School of Mines v. Neighbors, 203 P.2d 904 (Colo. 1949)). The public policy focus of the law is also apparent in the first few words of the statute, which describes termination of an employee because of that "employee's engaging in any lawful activity off the premises of the employer during nonworking hours" as "discriminatory" and "unfair," and not merely unlawful. § 2434-402.5(1) C.R.S. 2011. In Mr. Coats’ case, the data collected by the Colorado Department for Public Health (and reflected in the record PDF Pg. 138-139) provides the public policy
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statistics of the patient-employees who would be affected by this Court’s adverse ruling in an already troubled economy. Over one hundred twenty seven thousand, eight hundred sixteen (127,816) Colorado citizens, who are medical marijuana patients registered with the state, would likely face immediate termination or become unemployable. That is roughly the size of two (2) Mile High Stadiums. Of note, the average age of a patient is forty-one (41) years old, which means not only that they are contributing members of society, but also likely to be carrying a mortgage and supporting spouses and children. One thousand, one hundred (1,100) licensed medical physicians in the State of Colorado have recommended marijuana to one or more of these patients, of which ninety-four (94%) percent complain of severe pain, while muscle spasms, like those Mr. Coats experiences, account for the second-most reported condition at nineteen (19%) percent). Because of the Colorado Lawful Activity Statute’s remedial, anti-discriminatory, and public policy foundation, it should be broadly and liberally construed to effectuate its purpose, which is to protect employees from unfair or discriminatory employment practices when they are in full compliance with state law. In conclusion, the protections of Colorado’s Lawful Activity Statute, § 24-34402.5, C.R.S. 2011, which is afforded to employees for a variety of situations, also applies in the context of the Medical Marijuana Amendment. This is reinforced in
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legislative history as well as the Colorado Supreme Court’s decision in Watson v. Public Service Co. of Colo., 207 P.3d 860, 864 (Colo. 2008) (holding "any lawful activity" means "all lawful activity”). Employees like Mr. Coats, who comply with state law, should be protected by state law. IV. The Medical Marijuana Amendment, Colo. Const. art. XVIII, § 14

Contrary to the trial court’s conclusion, Colo. Const. art. XVIII, § 14 does more than provide for an affirmative defense to a criminal prosecution. First, the ordinary and common meaning of citizen-initiated measures, like Colo. Const. art. XVIII, § 14, require that every word be operative and given effect. Section 14(4)(a) expressly and unconditionally tells a state-approved patient in plain language that the use of medical marijuana “is lawful”. Second, based on the plain language contained in the Medical Marijuana Amendment, the General Assembly enacted and codified § 18-18-406.3, C.R.S. the following year, in which subsection (1)(f) states, “[s]ection 14 of article XVIII of the state constitution sets forth the lawful limits on the medical use of marijuana.” (Emphasis supplied). Third, this Court held that “a patient's medical use of marijuana within the limits set forth in the Amendment is deemed ‘lawful’ under subsection (4)(a) of the Amendment”. People v. Watkins, ___ P.3d ___ 2012 WL 310776 at *4 (Colo. App. 2012). Fourth, Colo. Const. art. XVIII, § 14(2)(e) creates a legal and enforceable property interest in medical marijuana. Fifth, as
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evidenced through the 2000 Blue Book, Colorado voters approved the Medical Marijuana Amendment to permit state-approved patients to legally acquire, possesses, use, grow, and transport marijuana and marijuana paraphernalia. A. Medical Marijuana Is “Lawful” Under § 14(4)

The express and plain language of section 14(4) of article XVIII of the Colorado Constitution states, in pertinent part: (4)(a) A patient may engage in the medical use of marijuana, with no more marijuana than is medically necessary to address a debilitating medical condition. A patient's medical use of marijuana, within the following limits, is lawful: (I) No more than two ounces of a usable form of marijuana; and

(II) No more than six marijuana plants, with three or fewer being mature, flowering plants that are producing a usable form of marijuana. (b) For quantities of marijuana in excess of these amounts, a patient or his or her primary care-giver may raise as an affirmative defense to charges of violation of state law that such greater amounts were medically necessary to address the patient's debilitating medical condition. (Emphasis supplied). The general rules of statutory interpretation and construction apply when interpreting citizen-initiated measures. Independence Institute v. Coffman, 209 P.3d 1130, 1136 (Colo. App. 2008). Thus, courts must "afford the language of constitutions and statutes their ordinary and common meaning" while "giving effect to every word and
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term contained therein." Cacioppo v. Eagle Cnty. Sch. Dist. Re-50J, 92 P.3d 453, 463 (Colo. 2004). Also, courts "must favor a construction of a constitutional amendment that will render every word operative, rather than one that may make some words meaningless or nugatory." Patterson Recall Committee, Inc. v. Patterson, 209 P.3d 1210, 1215 (Colo. App. 2009). In violation of the rules of statutory construction, the trial court ignored the plain language of section 14(4)(a) that the use of medical marijuana “is lawful.” Here, the trial court's interpretation of the word "lawful" in Colo. Const. art. XVIII, § 14(4)(a) renders both the word, and the entire subsection, contrary to its common usage, meaningless, and nugatory. Specifically, the trial court held that "[t]he amendment does not make the use of medical marijuana a lawful activity." Record PDF Pgs. 173-175. The term "lawful" in the Amendment would be contrary to its common usage, meaningless, and superfluous if it only reiterated that certain use and possession of medical marijuana constituted an affirmative defense to a Colorado criminal prosecution. Colo. Const. art. XVIII, § 14(4)(a) does not reference § 14(2)(a) nor state that it is defining the term "lawful", only as used in § 14(2)(a).

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Furthermore, interpreting the word "lawful" as only referring to an affirmative defense to criminal laws is wholly inconsistent with the requirement that courts attribute meaning to every word and subsection of a constitutional amendment. Patterson, 209 P.3d at 215. B. The Legislature Has Recognized the Legality of Medical Marijuana in Section 18-18-406.3(1)(f), C.R.S.

The General Assembly's construction of the Medical Marijuana Amendment is another useful tool for constitutional construction, and "is to be given great weight." Beinor, 262 P.3d at 976. In response to the enactment of the Medical Marijuana Amendment in 2000, the legislature passed section 18-18-406.3, C.R.S. in 2001. In subsection (1) of section 18-18-406.3, the legislature made findings and declarations. In section 18-18-406.3(1)(a) the legislature recognized that the voters passed the Amendment in 2000. In section 18-18-406.3(1)(b) the legislature recognized that the Amendment “creates limited exceptions to the criminal laws of this state for patients, primary care givers, and physicians concerning the medical use of marijuana by a patient to alleviate an appropriately diagnosed debilitating medical condition.” Most importantly, in section, 18-18-406.3(1)(f), the legislature recognized that the Amendment makes the use of marijuana lawful within the parameters of the
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Amendment. Section 18-18-406.3(1)(f) states, “Section 14 of article XVIII of the state constitution sets forth the lawful limits of medical use of marijuana.” (Emphasis supplied). Not only did the General Assembly define medical marijuana treatment within certain limits as "lawful," it specifically omitted the term "lawful" in any other section addressing affirmative defenses to criminal prosecution. It is clear the General Assembly did not interpret the term "lawful" in Colo. Const. art. XVIII, § 14(4)(a) as merely defining circumstances when an affirmative defense could be available. Therefore, the trial court's interpretation of "lawful" as only relating to affirmative defenses is inconsistent with the General Assembly's interpretation. C. The Court of Appeal Has Recognized The Legality of Medical Marijuana

In People v. Watkins, 2012 WL 310776 (Colo. App. 2012) this Court held: The Amendment provides that it shall be an exception from the state's criminal laws for any patient in lawful possession of a “registry identification card” to use marijuana for medical purposes. Colo. Const. art. XVIII, § 14(2)(b). While possession of marijuana remains a criminal offense in Colorado, § 18-18-406(1), C.R.S. 2011, a patient's medical use of marijuana within the limits set forth in the Amendment is deemed “lawful” under subsection (4)(a) of the Amendment. Colo. Const. art. XVIII, § 14(4)(a). Id., 2012 WL 310776 at *4 (emphasis supplied).
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This Court could come to no other conclusion based on the plain language of section 14(4)(a). See also Judge Gabriel’s dissent in Beinor v. Indus. Claim Appeals Office, 262 P.3d 970, 979 (Colo. App. 2011), (“A patient’s medical use of marijuana, within [certain listed] limits, is lawful…”). But instead of following this Court’s holding in Watkins that “a patient’s use of marijuana within the limits set forth in the Amendment is deemed ‘lawful’ under subsection (4)(a) of the Amendment,” the trial court quoted dicta from Beinor, "[b]ecause subsection (4) also provides specific limits for the quantity of marijuana and the number of marijuana plants that may be possessed, we understand the purpose of this subsection as setting the limits beyond which prosecution is not exempted, and not the creation of a separate constitutional right." Beinor, 262 P.3d at 975. This interpretation was not necessary in Beinor for the court's conclusion that a state-issued medical marijuana card is not a "prescription" under Colorado unemployment benefits law, making it nonbinding dicta. See Hardesty v. Pino, 222 P.3d 336, 340 (Colo. App. 2009). Additionally, Mr. Coats never alleged that he had a broad and limitless constitutional right to treat his condition with medical marijuana, rather only that his treatment was lawful. The trial court had a duty to follow the holding in Watkins on the parameters of the lawful use of marijuana. C.A.R. 35.
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D.

The Amendment Creates a Legal and Enforceable Property Interest in Medical Marijuana

Section 14(2)(e) of the Medical Marijuana Amendment states: (e) Any property interest that is possessed, owned, or used in connection with the medical use of marijuana or acts incidental to such use, shall not be harmed, neglected, injured, or destroyed while in the possession of state or local law enforcement officials where such property has been seized in connection with the claimed medical use of marijuana. Any such property interest shall not be forfeited under any provision of state law providing for the forfeiture of property other than as a sentence imposed after conviction of a criminal offense or entry of a plea of guilty to such offense. Marijuana and paraphernalia seized by state or local law enforcement officials from a patient or primary caregiver in connection with the claimed medical use of marijuana shall be returned immediately upon the determination of the district attorney or his or her designee that the patient or primary care-giver is entitled to the protection contained in this section as may be evidenced, for example, by a decision not to prosecute, the dismissal of charges, or acquittal. Property law forms one of the pillars of Anglo-American jurisprudence. When the state recognizes a property interest, the state confers legality and legitimacy on that property. Patients would never be allowed to sue law enforcement for damage or destruction to marijuana, if the medical use of marijuana were merely an affirmative defense, or otherwise “illegal” as the trial court implies. E. Voters approved an Amendment that declared the medical use and possession of medical marijuana "legal" within the Amendment's limits

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The Blue Book distributed for the 2000 election, the year the Medical Marijuana Amendment was approved, is also a "helpful source equivalent to the legislative history of a proposed amendment." Macravey v. Hamilton, 898 P.2d 1076, 1079 n.5 (Colo. 1995). "While not binding, the Blue Book provides important insight into the electorate's understanding of the Amendment when it was passed and also shows the public's intentions in adopting the amendment." Grossman v. Dean, 80 P.3d 952, 962 (Colo. App. 2003). Because "[w]hen interpreting a constitutional amendment, we should ascertain and give effect to the intent of those who adopted it," the language the voters approved is of great significance. Grossman, 80 P.3d at 962. In regard to the Amendment, the 2000 Blue Book provided, in relevant part: The proposed amendment to the Colorado Constitution allows patients diagnosed with a serious or chronic illness and their care-givers to legally possess marijuana for medical purposes. . . . Current Colorado and federal criminal law prohibits the possession, distribution, and use of marijuana. The proposal does not affect federal criminal laws, but amends the Colorado Constitution to legalize the medical use of marijuana for patients who have registered with the state. . . . Individuals on the registry may possess up to two ounces of usable marijuana and six marijuana plants. Because the proposal does not change current law, distribution of marijuana will still be illegal in Colorado. Patients on the registry are allowed to legally acquire, possess, use, grow, and transport marijuana and marijuana paraphernalia. . . . Legal use of marijuana will be limited to patients on the state registry. - Colorado Legislative Council, Research Pub. No. 475-6, An Analysis of 2000 Ballot Proposals 1 (2000).
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From the plain language of the 2000 Blue Book, Colorado voters approved an Amendment that declared the medical use and possession of medical marijuana "legal" within the Amendment's limits, and not merely a defense to criminal prosecution. The trial court's dismissal of Mr. Coats's claim is inconsistent with this plain language, which Colorado voters approved. F. Distinguishing Beinor and Watkins 1. Beinor In Beinor v. Indus. Claim Appeals Office, 262 P.3d 970 (Colo. App. 2011) cert. denied, this Court interpreted the term “medically prescribed controlled substances” in Colorado's unemployment benefits statute to exclude medical marijuana because a state-issued marijuana card did not amount to a “prescription.” Id. at 974-74. This holding has no bearing on whether Colorado’s Lawful Activity Statute protects the lawful act of using medical marijuana. Factually, the appellant in Beinor only appealed a final order of the Industrial Claim Appeals Office disqualifying him from unemployment benefits because of his medical marijuana treatment, but did not challenge his actual termination. Id. at 971-72. Legally, and in the narrow context of unemployment benefits, this Court interpreted the term “medically prescribed controlled substances” in Colorado's unemployment benefits statute to exclude

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medical marijuana because a state-issued marijuana card did not amount to a “prescription.” Id. at 974-75. This Court in Beinor explicitly acknowledged the narrowness of its holding, stating, “We are not deciding whether the amendment limits an employer from discharging an employee for using marijuana.” Beinor, 262 P.3d at 976. Mr. Coats seeks different relief from the appellant in Beinor, further distinguishing the cases. The Beinor Court rejected the appellant's contention that denial of unemployment benefits violated his broad constitutional right to use medical marijuana under the Amendment, which superseded Colorado unemployment benefit statutory requirements. Beinor, 262 P.3d at 977. Here, Mr. Coats does not contend that the Amendment provides a limitless or broad constitutional right, but only that his medical use was “lawful,” as defined in Sec. 14(4)(a) of the Amendment and supported in statutory and case law, and therefore subject to the benefit and protections of Colorado laws such as § 24-34402.5. See also Judge Gabriel’s dissent in Beinor v. Indus. Claim Appeals Office, 262 P.3d 970, 979 (Colo. App. 2011) cert. denied, (“A patient’s medical use of marijuana, within [certain listed] limits, is lawful…”). 2. Watkins

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In People v. Watkins, 2012 WL 310776 (Colo. App. 2012), this Court held that the trial court erred when it approved a probationer's request to obtain a state-issued medical marijuana card although the terms of his probation prohibited him from possessing or using “any narcotic, dangerous or abusable substance without a prescription.” Watkins, 2012 WL 310776 at *1. The Court in Watkins did not address Colorado’s Lawful Activity Statute and did not address any of the issues raised in Mr. Coats’ case. First, the statutes at issue in Watkins and this case are highly distinguishable. The Watkins Court emphasized the “recognized purpose” of probation conditions is “to ensure that the defendant will lead a law-abiding life and to assist the defendant in doing so.” Watkins, 2012 WL 310776 at 2 (citing § 18-1.3-204(1)). In contrast, the purpose and public policy behind Colorado's Lawful Activity Statute, at issue in this case, is to protect Colorado employees from discrimination by their employers based upon their personal choices and habits that do not interfere with their work performance. See Watson v. Pub. Serv. Co., 207 P.3d 860, 864 (Colo. 2008). Thus, because the probationary conditions at issue in Watkins were interpreted in light of their restrictive purpose, the statutory cause of action in this case should be interpreted in light of its protective and remedial purpose in favor of individual freedom of choice.
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Second, as in Beinor, the Watkins Court focused on the term “prescription,” holding that a state-issued marijuana card under the Amendment did not amount to a “written lawful prescription,” as used in the terms of the defendant's probation agreement. Watkins, 2012 WL 310776 at *4. In Watkins, this Court interpreted the word “prescription” and not the term “lawful,” at issue in Mr. Coats’ case. Watkins, 2012 WL 310776 at *4. This Court found that “a patient’s medical use of marijuana within the limits set forth in the Amendment is deemed ‘lawful’ under subsection (4)(a) of the Amendment.” Watkins, 2012 WL 310776 at *4 (referring to Colo. Const. art. XVIII, § 14(4)(a)). Here, Mr. Coats does not allege that his state-issued marijuana card amounts to a prescription, but only that his medical use pursuant to the Amendment is “lawful” as the term is used in both Colo. Const. art. XVIII, § 14(4)(a) and in § 24-34-402.5. . CONCLUSION An employee’s state-approved medical use of marijuana, off his employer’s premises, during nonworking hours, and in full compliance with Colo. Const. art. XVIII, § 14 (the Medical Marijuana Amendment or the Amendment), is a “lawful activity” protected under Colorado’s Lawful Activity Statute, § 24-34-402.5, C.R.S. 2011. DISH violated this statute when it terminated Mr. Coats’ employment based

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solely on the presence of Tetrahydrocannabinol (“THC”) found in his body during a company drug test. The mere presence of THC found in the body is not dispositive of marijuana intoxication, and the termination of Mr. Coats by DISH was not based upon Coats being under the influence or intoxicated while at work, exhibiting poor job performance, nor endangering the health or well-being of any person. Mr. Coats never possessed or used marijuana at the work place, nor requested any work place accommodation. No exception applies to Mr. Coats as a telephone customer service representative under § 24-34-402.5, C.R.S. 2011. Mr. Coats, as a state resident following state law, brought a claim based on a state statute, in a state court, against a state corporation. Colorado’s Lawful Activity Statute protects employees such as Mr. Coats from termination based on “any lawful activity” outside of work. “Any lawful activity” includes his lawful use of medical marijuana under Colo. Const. art. XVIII, § 14. Because the trial court erroneously dismissed Mr. Coats's complaint against DISH, he asks this Court to reverse and remand this case back to the trial court for proper adjudication and presentation of evidence consistent with this Court's opinion.

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Dated: June 21, 2012 Respectfully submitted, _________________________________________ Attorney: Michael D. Evans, Atty. Reg. #39407

CERTIFICATE OF MAILING I certify that on June 21, 2012, I mailed or Lexis E-Filed a copy of this Opening Brief and Exhibit 1 to: The Honorable Elizabeth Volz Arapahoe County District Court 7325 S. Potomac Street Centennial, CO 80112 Attorney Meghan W. Martinez Barkley Martinez, P.C. 14426 East Evans Ave. Aurora, CO 80014 _________________________________________ Attorney: Michael D. Evans, Atty. Reg. #39407

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