Cannabis activists who are gearing up to sue the state over its new medical-marijuana rules, which Gov. Bill Ritter signed into law last week, might want to muse on the bitter experience of those who sued Colorado over a property tax law they had reason to believe violated the Taxpayer’s Bill of Rights.
Not only did the Colorado Supreme Court uphold the statute last year but it also gave an unexpected green light to lawmakers to raise dozens of other taxes, too, by eliminating tax exemptions.
For taxpayers, obviously, it would have been better if the lawsuit had never been filed.
Could a similar setback await those who seek looser rules on medical marijuana? It could if Adams County District Attorney Don Quick has his way. Although he and other law enforcement officials have no plans to sue the state over the new marijuana dispensary law, which they oppose, they may try to hitch a ride if the pro-cannabis side proceeds with a lawsuit.
At that point, they may file a counterclaim arguing that, yes, the new law is unconstitutional, but not because it’s too restrictive. It’s unconstitutional, Quick insists, because it allows dispensaries at all.
“The legislature could legalize marijuana altogether if it wanted to,” he told me, because voters haven’t put a provision in the constitution that limits legislators’ freedom to do so. But voters have spoken on medical marijuana. A decade ago, they passed Amendment 20, which deals with patients and caregivers while never saying a word, the prosecutor correctly notes, about the retail outlets known as dispensaries.
If a constitutional amendment “is clear and unambiguous,” Quick wrote in a memo he shared with me, “it must be enforced as written. Amendment 20 clearly is limited to patients and caregivers.”
Voters created a “narrowly defined system” that lawmakers can’t disregard, he says. Dispensaries simply do not fall “within the lawful limits of Amendment 20. This is clear from the: 1) plain language of the amendment, 2) legislative history, and 3) controlling appellate case law.”
Quick offers the analogy of casino gambling. When voters approved limited-stakes gambling at three mountain towns in 1991, they set betting limits and hours of operation. Significantly, when gambling interests sought to raise the limits and expand the hours in 2008, they went back to voters. They did not take their case to lawmakers, who would have understood they had no room to maneuver.
Would the state high court buy such an argument? It may be a long shot, but the possibility can’t be dismissed. Those who believe regulated dispensaries meet a genuine patient need, as I do, need to consider the risk of litigating the new law over flaws that in many cases could be addressed in future legislation.
To be sure, cannabis advocates will bring serious arguments to bear as well, particularly against the two-year residency requirement for dispensary owners — an obnoxious, parochial regulation — and the right of local communities to ban dispensaries. I support a local option to ban dispensaries, but admit that it could result, as attorney Jessica Corry told me, in many rural patients having difficulty accessing medical marijuana.
Then again, Amendment 20 never contemplated dispensaries in the first place, as Quick will be eager to remind the courts. And if there’s one thing worse than patients having limited access to their painkiller of choice in rural Colorado, it is having patients face a similar situation in cities, too — where the vast majority live.
E-mail Vincent Carroll at vcarroll@denverpost.com.
