Certification of Word Count: 3,595
IN THE SUPREME COURT FOR THE STATE OF
COLORADO
101 W. Colfax Ave., Suite 8~0
Denver, Colorado 80202
COLORADO COURT OF APPEALS
Court of Appeals Case No. 10CA1685
FILED IN THE
SUPREME COURT,
ACT - 3 2011
RyanLCIeADO
TH
0~ toTheT
Chris P
♦COURT USE ONLY
Industrial Claim Appeals Office,
Case No. DD No. 10948-2010
Petitioner:
JASON M. BEINOR
Respondents:
INDUSTRIAL CLAIM APPEALS OFFICE
of the State of Colorado, and Service Group,
Inc.
Case Number: 11 SC676
Attorney for Petitioner:
Name: Andrew B. Reid, #25116
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(a)springer-and-steinberq.com
PETITION FOR WRIT OF CERTIORARI
Petitioner hereby submits this Petition for Writ of Certiorari:
I. ISSUES PRESENTED FOR REVIEW
ISSUE I: Does a drug test alone showing a trace amount of
medical marijuana used ofF-thejob by the Petitioner pursuant to
the medical marijuana provisions of the Colorado Constitution
disqualify
him
from
State
unemployment compensation
benefits?
ISSUE II: Does the Colorado Constitution secure to Petitioner
the right to use medical marijuana such that he cannot
constitutionally be deprived therefor of eligibility for his State
unemployment compensation benefits?
2
II. COURT OF APPEALS OPINION
The unreported opinion of the Court of Appeals is attached hereto. In
a split decision on matters of first impression, the Court of Appeals per
Judge David J. Richman, Judge David Furman concurring, ruled that
medical marijuana was not a "medically prescribed controlled substance"
under the disqualification provisions of the Colorado unemployment
compensation benefits statute, C.R.S. § 8-73-108(5)(e)(IX.5). The Court
further ruled that Petitioner as a qualifying medical marijuana patient
possesses no right under the medical marijuana provisions of the Colorado
Constitution to use the medication, but is only protected from criminal
prosecution. Judge Richard L. Gabriel dissented, finding that the Colorado
Constitution secured to Petitioner the right to use medical marijuana as
medication and that his unemployment compensation benefits could not be
subject to an unconstitutional condition.
3
III. GROUNDS FOR JURISDICTION OF THE SUPREME COURT
The opinion and judgment of the Court of Appeals were announced
on August 18, 2011. The jurisdiction of the Supreme Court is invoked
pursuant to 13-4-108, C.R.S., and Rules 49, 51, and 52(b).
IV.
STATEMENT OF THE CASE
On August 18, 2009, Petitioner Jason M. Beinor was employed by
Service Group, Inc. (employer) as a fulltime operator assigned to clean the
16th Street Mall in downtown Denver, Colorado, with a broom and dustpan.
He was terminated from employment on February 17, 2010, when a
random test by the employer detected a trace amount of marijuana in his
urine. The employer found this to be in violation of the employer's zero
tolerance policy which states: "[I]f ._..the results of the screening are positive
...for illegal drugs, the employee will be terminated." The policy covered
the use of "illegal" drugs on or off the workplace. It was undisputed that
Petitioner was not under the influence of, in possession of, or using
marijuana on the job. The Petitioner possessed a clean employment
record with no written reprimands or warnings. The only ground for his
termination was the detection of a trace amount of marijuana in his urine.
4
The Petitioner occasionally suffers very severe, debilitating migraine
headaches as the result of head injuries he sustained from an assault and
battery. He uses marijuana as medication once or twice per week as
needed pursuant to a certified recommendation from his physician to ease
his severe pain and had used his medication within a week of the February
17, 2010 random urine test. It was undisputed-that Petitioner was in
compliance with the medical marijuana provisions of the Colorado
Constitution and Colorado law. Colo. Const. art. XVIII, § 14.
Following his termination, Petitioner applied for unemployment
compensation benefits. A hearing officer, reversing an earlier denial of
benefits, found that Petitioner was not at fault for his separation because
there was "no reliable evidence to suggest that ...claimant was not eligible
for a medical marijuana license" or that his use of the substance negatively
impacted his job performance." The hearing officer further noted that Mr.
Beinor "has a constitutional right to use marijuana."
An administrative appellate panel disagreed and set aside the
hearing officer's order. The panel concluded article XVIII, section 14 of the
Colorado Constitution does not create an exception to section 8-73108(5)(e)(IX.5), C.R.S., which disqualifies from unemployment benefits an
s
employee who:tests positive for the presence of "not medically prescribed
controlled substances" the individual's system "during working hours."
Petitioner then appealed that decision to the Colorado Court of
Appeals. On August 18, 2011, in a split 2-1 decision per Judge Richman,
the Court of Appeals ruled that the use of medical marijuana pursuant to
the Colorado Constitution is not pursuant to a "prescription," and therefore
does not constitute use of medically prescribed controlled substances
under the governing statute. The Court then ruled that the medical
marijuana provisions of Colorado Constitution created an exception to
criminal prosecution, not- abroad constitutional right to use the medication.
Judge Gabriel, in a strong dissent, reasoned that the Colorado
Constitution does not merely decriminalize the use of medical marijuana,
but legalizes the use of the medication by qualifying patients and that the
presence of medical marijuana in one's blood does not amount to "use" or
"possession" as defined by section 14(1)(b) of the Constitution. He
concluded that medical marijuana patients, such as Petitioner, have "a
constitutional right to possess and use medical marijuana pursuant to the
limitations contained in the medical marijuana amendment".
D
Applying the "doctrine of unconstitutional conditions" to the settled
rule that unemployment compensation benefits cannot be conditioned on a
willingness to abandon one's constitutional rights, Judge Gabriel found that
the state's interest in denying unemployment benefits to a qualifying
medical marijuana patient did not outweigh the Petitioner's constitutional
rights. Judge Gabriel then concluded that the lawful use of medical
marijuana by a qualifying patient such as Petitioner outside the workplace,
where there is no evidence of any impairment of performance in the
workplace, cannot constitutionally be used as a basis for denying the
claimant unemployment benefits.
The question of whether or not the medical marijuana provisions of
the Colorado Constitution are preempted by the Supremacy Clause of the
United States Constitution was not raised by either party and was not
before or decided by the Court of Appeals below'.
'Although the U.S. Supreme Court in Gonzales v. Raich, 545 U.S. 1
(2005), held that the production and consumption of medical marijuana
under state programs are subject to Congress's power to regulate the
activity under the Commerce Clause, it did not reach the issue of whether
Congress had in fact done so through the federal Controlled Substances
Act("CSA"). City of Garden Grove v. Superior Court, 157 Cai.App.4th
355,
382(Cal. App. 2008); see also, discussion, R.A. Mikos, On the Limits of
Supremacy: Medical Mar~uana and the States' Overlooked Power to
Legalize Federal Crime, 62 Vand. L. Rev. 1421, 1441-2(2009)("Mikos").
Congress by section 903 of the CSA expressly disavowed any intent
to occupy the field of drug regulation. 21 U.S.C. § 903; see, City of Garde
n
Grove, 157 Cal:App.4th at 383; County of San Diego v. San Diego NORM
L,
165 Cal.App.4th 798, 818-28 (Cal.App. 2008)(noting that medical practi
ce
is a field historically occupied by the states). Mere "use" of marijuana
whether for medicinal purposes or not does not violafe any federal law.
People v. Tilehkooh, 113 Cal.App.4th 1433, 1445 (Cal.App. 2003}.
Furthermore, Congress's preemptive authority under the Supremacy
Clause is very narrowly applied and may be significantly limited further
under the anti-commandeering doctrine. K.K. DuVivier, State Ballot
Initiatives in the Federal Preemption Equation: A Medical Marijuana Case
Study, 40 Wake Forest L. Rev. 241 (2005)(noting the value of direct
democracy and the obligation of courts to make a greater effort to reconc
ile
s
V. ARGUMENT
A. The Petition Raises Issues of First Impression
And Great Public Importance
This Petition raises issues of substance not heretofore determined by
the Court concerning matters of great importance affecting Petitioner and
hundreds of thousands of other citizens and residents of Colorado. See,
Appendix 5. Fundamentally, it poses the question of whether a person
suffering from a debilitating medical condition must choose between a
constitutionally secu-red treatment for the condition and his or her
employment and unemployment compensation benefits. A ruling on this
issue would further impact the rights of Colorado citizens and residents to
education, financial assistance, licenses, permits, _and other State benefits
otherwise available to all Colorado citizens and residents.
the ballot initiative with the federal regulatory scheme); Prinz v. United
States, 421 U.S. 898, 935 _(1995); New York v. United States, 505 U.S.
144, 188 (1992); Mikos, at 1445-48; see also, City of Garden Grove, 157
Cal.App.4th at 382-86. Regardless, the issue of federal preemption is not
before the Court and will have to wait to another day.
D
B. Petitioner's Off-Work Use of Medical Marijuana
Does Not Disqualify Him
From Unemployment Compensation Benefits
Because a trace amount of marijuana was detected in a random urine
drug test by his employer, Petitioner Beinor was disqualified from
unemployment benefits pursuant to Colorado statute which provides in
relevant part:
a
The presence in an individual's system, during working
hours, of.not medically prescribed controlled substances,
as defined in section 12-22-303(7), C.R.S., ...as
evidenced by
drug ...test administered pursuant to a
...previously established, written drug ...policy of the
employer ....
C.R.S. § 8-73-108(5)(b)(IX.S). The provision is a categorical
disqualification of eligibility for unemployment benefits to anyone testing
positive for controlled substances regardless of amount of the substance in
the individual's system, of the length of days or time between the use of the
substance and the test, of any evidence of intoxication or compromised
condition, or of any interference with job performance, and irrespective of
evidence that the substance was not possessed or used on the job.
Compare, e.g., C.R.S. § 8-73-108(5)(b)(VIII)(disqualifying individuals who
10
engaged in off-thejob use of not medically prescribed controlled
substances "to a degree resulting in interference with job performance);
C.R.S. 8-73-108(5)(b)(IX)(disqualifying individuals who engage in on-thejob use of not medically prescribed controlled substances).
The term "medically, prescribed controlled substances" is clearly
intended to include within those provisions only the use of "illegal"
substances, not the "legal" use of such substances lawfully "recommended"
in writing by an employee's physician as medical treatment. Otherwise,
read literally, a physician could unlawfully "prescribe" a controlled
substance such as cocaine, heroine, or LSD, to an employee without
disqualifying the employee from unemployment benefits.
A broader interpretation of "prescribed" is further reflected in the
definition of "controlled substances" referenced in these statutory
provisions. Section 12-22-303(7)states that the term "shall have the same
meaning as in section 18-18-102(5), C.R.S." Section 18-18-102(5) in turn
defines "controlled substance" as meaning "a drug, substance, or
immediate precursor included in schedules I through V of part 2 of this
article...." Marijuana("tetrahydrocannabinols") is listed in schedule I.
C.R.S. § 18-18-203(2)(c)(XXIII). The listed substances are classified
~1
according to "accepted medical use in treatment in the United States" and
"accepted safety for use under medical supervision." CR.S. §§ 18-18203(1)(b) and (c), 18-18-204(1)(b) and (c), 18-18-205(1)(b) and (c), 18-18206(1)(b), 18-18-207(1)(b).
The Constitution provides that the medication is "authorized" pursuant
to a "written" diagnosis by a physician of an appropriately qualifying
debilitating condition and the physician's "advice" that the patient "might
benefit from the medical use of marijuana" as medicine for the condition.
Colorado Constitution, article XVIII, sections 14(1)(b), 14(2)(a)(II),
14(2)(c)(I) and (II), 14(4)(a) and (b). A "prescription" is defined as: "a
written direction for a therapeutic or corrective agent; specifically one for
the preparation and use of a medicine." http://www.merriamwebster.com/dictionary/prescription. A medical prescription is not limited to
controlled substances. A physician may and often does prescribe over-thecounter medication including pain killers and other analgesics, and may
"prescribe" non-medicinal treatment such as bed rest or physical therapy.
The unemployment benefits disqualification provision, C.R.S. § 8-73108(5)(b)(IX.5), must be interpreted consistent with the Colorado
Constitution. Renferia v. Colo. St. Dept. of Personnel, 811 P.2d 797, 799
IZ
(Colo. 1991). The term "medically prescribed," read in light of the medical
marijuana provisions of the Colorado Constitution, must thus be interpreted
as including marijuana used as medicine under the Constitution pursuant to
the written advice of the patient's physician.
Furthermore, in C.R.S. § 8-73-108(5)(b)(IX.S), the term "controlled
substances" is defined pursuant to Colorado, not federal, law and there are
no corresponding medical marijuana provisions under federal law. The
citizens of the state and their government are free to fashion their own
definition of the term, particularly when in regard to constitutionally
protected rights and the provision of purely state benefits, such as
unemployment compensation, to its citizens and residents. Tattered Cover,
Inc. v. City of Thornton, 44 P.3d 1044, 1054 (Colo. 2002)(Colorado's
Constitution may provide more expansive protections of fundamental rights
than the federal Constitution).
The substances listed under schedule I of the Colorado controlled
substances law are expressly identified as those that have "no currently
accepted medical use in treatment in the United States" and lack "accepted
safety for use under medical supervision." C.R.S. 18-18-203(1)(b) and (c).
Through the adoption of Amendment 20, the Medical Marijuana
13
Amendment, in 2000 by the clear majority of the People, the State formally
recognized in its constitution the "accepted medical use [of marijuana] in
treatment" of certain debilitating conditions under "medical supervision" of
the qualifying patient's physician. Thus,"medical marijuana" no longer be
constitutionally considered a controlled substance under schedule 1 and is
not listed under any other of the schedules for controlled substances. At a
minimum, C.R.S. 18-18-203 is "inoperative" as to medical marijuana.
Walgreen Co. v. Charnes, 819 P.2d 1039, 1049_ n. 19 (Colo. 1991).
For these reasons, C.R.S. § 8-73-108(5)(b)(IX.5) cannot be read to
disqualify and employee such as Petitioner Beinor from unemployment
compensation benefits solely on a positive drug test for medical marijuana
used off-thejob as medicine pursuant to the physician's recommendation
as treatment for a qualifying debilitating medical condition.
C.
There Is a Constitutional Right to Use Medical Marijuana
The Court of Appeals split on the issue of whether the medical
marijuana provisions of the Colorado Constitution merely "decriminalize"
medical marijuana or "legalizes the use" of the medicine and secures a
constitutional right thereto. See, e.g., Mikos, supra, for a discussion of the
14
essential distinction between criminalization and legalization in regards to
medical marijuana.
Sixteen states and the District of Columbia have enacted laws largely
by citizen initiative providing for the use of marijuana as medicine.
http://medicalmarijuana.procon.org/view.resource.php?resourcelD=000881
Colorado is the only state in the Union to have adopted constitutional
provisions to do so. As of July 31, 2011, the State had issued medical
marijuana registration ID cards to 127,816 patients residing in every county
of the State. Appendix 5.
In construing a constitutional provision, our obligation
is to give effect to the intent of the electorate that adopted
it. In giving effect to that intent, we look to the words
used, reading them in context and according to their plain
and ordinary meaning. Where ambiguities exist, we
interpret the constitutional provision as a whole in an
attempt to harmonize all of its parts.
Harwood v. Senate Majority Fund, LLC, 141 P.3d 962, 965(Colo. 2006).
Construing the provisions of Amendment 20, the Medical Marijuana
Amendment, as a who/e, the decriminalization of medical marijuana found
in Section 14(2) is clearly only a small part of the whole measure intended
to facilitate the access of qualifying patients to the medicine. Colo. Const.,
article XVIII, section 14(2). Numerous provisions both before, within, and
is
after that section create the policy and structure necessary to facili
tate the
qualifying patient's "access" to, and "use" of, the medicine. See,
e.g.,
Colorado Constitution, article XVIII, sections 14(1)(b), 14(2)(a)(II)
,
14(2)(c)(I) and (II), 14(4)(a) and (b). Section 14(4)(a), for example,
provides that "[a] patient may engage:
... in the medical use of marijuana" and restricts such use
to only that "necessary to address a debilitating medical
condition." Id. (emphasis supplied}. As defined by the
Constitution, "medical use" refers to the "acquisition,
possession, production, use, or transportation of
marijuana or paraphernalia_ related to the administration of
such marijuana to address the symptoms or effects of a
patient's debilitating medical condition, which may be
authorized only after a diagnosis of the patient's
debilitating medical condition by a physician or
physicians, as provided by this section.
Colo. Const., art. XVIII, sec. 14(1 }(b)(emphasis supplied). The
intent of
the voters is clear from the plain and ordinary meaning of the word
s of the
Amendment construed as a whole. The People of the State are
not merely
decriminalizing the medical use of marijuana, but declare the benef
icial
nature of marijuana as medicine and establish the parameters of
a
constitutional right of access and use of the medicine in certain
persons.
"Courts should not engage in a narrow or technical construction of
the
initiated amendment if doing so would contravene the intent of the
]6
electorate." Davidson v. Sandstrom, 83 P.3d 648, 654(Colo. 2004}. If the
Amendment is construed as merely decriminalizing medical marijuana, it
would allow the legislature to effectively defeat the intent of the voters and
deprive qualifying patients of their medication through civil legislation
fees
on
placing excessive, prohibitive, and overly restrictive regulations, taxes, and
Colorado citizens and residents suffering from debilitating medical
conditions and on those care-givers assisting them. The very heart of the
Amendment could be torn from it, rendering it meaningless. That is no less
than the predicament faced by-the Petitioner in this matter who is forced to
choose between working or attempting to work while suffering from
frequent debilitating migraine headaches or forgo employment or and
unemployment compensation benefits due to the use of medicine
recommended by his physician as treatment for his medical condition.
Even if, arguendo, the intent of the voters were ambiguous, the courts
should construe the Amendment "in light of the objective sought to be
achieved and the mischief to be avoided by the amendment." Id. 83 P.3d
at 655. Courts may determine this by considering other relevant materials,
including the "Bluebook" analysis of the measure. Id. In regards to
Amendment 20, the Bluebook states:
The proposed amendment to the Colorado Constitution
Background and Provisions of the Proposal
Current Colorado and federal criminal law prohibits the
possession, distribution, and use of marijuana. The
proposal does not affect the federal criminal laws, but
amends the Colorado Constitution to legalize the medical
use of marijuana for patients who have registered with the
state. ...A doctor's signed statement or a copy of the
patient's pertinent medical records indicating that the
patient might benefit from marijuana is necessary for a
patient to register. ...
Arguments For
1) This proposal gives patients with certain debilitating
medical conditions and their medical providers one
additional treatment option. THC, the active ingredient in
marijuana, has been shown to relieve the pain and
suffering of some patients. It can be beneficial for
individuals suffering from nausea, vomiting or lack of
appetite due to chemotherapy or AIDS/HIV, pressure
within the eye due to glaucoma, and severe muscle
spasms from some neurological and movement disorders
such as multiple sclerosis.
2) For patients suffering from serious illnesses, marijuana
can be more effective than taking prescription drugs that
contain synthetic THC. Further, many drugs have side
effects, but the- adverse effects of marijuana are no worse
than those of some prescription drugs used to treat the
illnesses- listed in the proposal.
is
Appendix 6(emphasis supplied). The purpose of the measure is expressly
stated in the Bluebook. It "amends the Colorado Constitution to legalize
the medical use of marijuana for patients". The decriminalization of
medical marijuana is hardly mentioned. It is almost an afterthought
intended rather to prevent State interference with the ready access of the
medicine to qualifying patients.
As a qualifying medical marijuana patient, Petitioner Beinor clearly
possesses a constitutional right to use the medicine recommended by his
physician. This right is consistent with other provisions of Colorado law
C.R.S. § 15-18.5-101(1) provides:
(1) The general assembly hereby finds, determines,
and declares that:
(a) All adult persons have a fundamental right
to make their own medical treatment and health care
benefit decisions, including decisions regarding medical
treatment, artificial nourishment and hydration, and
private or public heal#h care benefits.
In the Interest of Yeager, 93 P.3d 589, 596 (Colo.App. 2004). "A clear and
convincing standard of proof is required in cases where a fundamental right
is concerned." Id. The fundamental right to make decisions regarding
medical treatment and health care has long been recognized in other
situations as well. /n the Interest of S.P.B., 651 P.2d 1213(Colo. 1982)
(ruling that a woman has a fundamental right to decide in conjunction with
her physician whether to terminate her pregnancy).
The general assembly and the people of the State may extend
constitutional protections to Colorado residents that are even more
extensive than that under federal law. Tattered:Cover, Inc. v. City of
Thornton, 44 P.3d 1044, 1054 (Colo. 2002). Indeed, fundamental
constitution rights may be created under the Colorado Constitution that do
not even exist under the federal Constitution. In the Matter of Title, Ballot
Title and Submission Clause for Proposed lnitiafive, 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). The Petitioner possesses a
fundamental right under state law to make decisions regarding- his lawful
medical treatment, including the use of physician recommended medic
al
marijuana for his debilitating medical condition. The State is bound, and
has wholly failed, to demonstrate by clear and convincing evidence any
Zo
interests of the State that sufficiently justify interfering with and effectively
depriving the Petitioner of his fundamental constitutional right.2
Over 50 years ago, the U.S. Supreme Court in Sherbert v. Verner,
374 U.S. 398 (1963), applied to unemployment compensations benefits the
rule that has become know as the "doctrine of unconstitutional conditions."
unemployment compensation statutory eligibility provisions
so
In Sherbert, the Court held that a state could not constitutionally apply
as to deny
benefits to a claimant, directly or indirectly, because of the claimant's
religious beliefs. The Court affirmed the Sherbert rule in Thomas v. Review
Bd., 450 U.S. 707(1981) and again in Hobble v. Unemp. Appeals Comm'n,
480 U.S. 136 (1987). The Court applied the rule to free speech in Perry v.
Sindermann, 408 U.S. 593(1972) and to political party affiliation in Elrod v.
Burns, 427 U.S. 347(1976).
2
So significant is this right that a patient's access to often life-saving
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 Journal
325(2003).
al
This well-established doctrine was applied by this Court in Everitt
Lumber Co., Inc. v. /ndus. Comm'n, 565 P.2d 967 (Colo. 1977), holding
that unemployment benefits could not be conditioned on a waiver of Fifth
Amendment protections. In Colo. Div. of Employ. v. Hewlett, 777 P.2d 704
(Colo. 1989), the Court further held a claimant could not be disqualified
from receiving unemployment benefits for quitting her job due to sexual
harassment.
In Lorenz v. State, 928 P.2d 1274, 1283 (Colo. 1996), this Court ruled
that "...the doctrine of `unconstitutional conditions' requires in order to
condition the grant of a discretionary benefit on the release of a
constitutional right, the government must have an interest which outweighs
the particular right at issue." As Judge Gabriel noted below, there is
"nothing in the record to suggest that the state's interest in denying benefits
here outweighs claimant's constitutional rights." Beinor v. Indus. C/aim
Appeals Office,
P.3d
2011 WL 3612226 at *14 (Colo.App. 2011).
No assertions of any state interests were made by the State and, having
rejected outright the existence of any constitutional right, the majority below
did not weigh the Petitioner's rights against any State interests. Id. The
statutory provision at issue, C.R.S. § 8-73-108(5)(b)(IX.5), fails to state any
22
basis at all for the denial of benefits under the facts at bar other than the
purported detection of medical marijuana, a lawful medication, in a drug
test. The State states no interests to weigh against Petitioner's rights that
would disqualify him from receiving his unemployment compensation
benefits.
VI.
CONCLUSION
Petitioner Jason M. Beinor requests that the decision of the Court of
Appeals below be reversed and that he be awarded his unemployment
compensation benefits.
Respectfully submitted,
SPRINGER AND STEINBERG, P.C.
~
~~
~_
rew B. Reid
Attorneys for Petitioner Jason M. Beinor
23
CERTIFICATE OF SERVICE
This is to certify that I have duly served two copies of the above and
foregoing PETITION FOR WRIT OF CERTIORARI by placing same in the
United States mail, postage prepaid, this 3rd day of October, 2011,
addressed to the following:
John W. Suthers, Attorney General
John August Lizza, First Assistant Attorney General
ATTORNEY GENERAL'S OFFICE
1525 Sherman Street, 5th Floor
Denver, Colorado 80203
Service Group, Inc.
P.O. Box 70
40 Lloyd Avenue, Suite 101
Malvern, PA 19355
24
APPENDIX 1
COURT OF APPEALS DECISION
Colo.App.,2011.
Beinor v. Industrial Claim Appeals Office
--- P.3d ----, 2011 WL 3612226 (Colo.App.)
Only the Westlaw citation is currently available.
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR
PUBLICATION IN THE PERMANENT LAW REPORTS. A PETITION FOR
REHEARING IN THE COURT OF APPEALS OR A PETITION FOR
CERTIORARI IN THE SUPREME COURT MAY BE PENDING.
Colorado Court of Appeals,
Div. VII.
Jason M. BEINOR, Petitioner,
INDUSTRIAL CLAIM APPEALS OFFICE of the State of Colorado and
Service Group, Inc., Respondents.
No. 1 OCA1685.
Aug. 18, 2011.
[Westlaw annotations omitted]
Industrial Claim Appeals Office of the State of Colorado, DD No. 109482010.Jason M. Beinor, Pro Se.
John W. Suthers, Attorney General, John August Lizza, First Assistant
Attorney General, Denver, Colorado, for Respondent Industrial Claim
Appeals Office.
Opinion by Judge RICHMAN.
*1 This unemployment compensation benefits case raises a question of
first impression: whether an employee terminated for testing positive for
marijuana in violation of an employer's zero-tolerance drug policy may be
denied unemployment compensation benefits even if the worker's use of
marijuana is "medical use" as :defined in article XVIII, section 14 of the
Colorado Constitution. We conclude the benefits were properly denied in
this case.
Claimant, Jason M. Beinor, appeals the final order of the Industrial Claim
Appeals Office (Panel) disqualifying him from unemployment compensation
benefits under section 8-73-108(5)(e)(IX .5), C.R.S.2010 (disqualification
for the presence of "not medically prescribed controlled substances" in
worker's system during working hours). He contends that he is entitled to
benefits because he legally obtained and used marijuana under the
Colorado
Constitution
for
a
medically-documented
purpose
and
consequently had a right to consume the drug. We conclude that although
the medical certification permitting the possession and use of marijuana
may insulate claimant from state criminal prosecution, it does not preclude
:him from being denied unemployment benefits based on a separation
from
employment for testing positive for marijuana in violation of an emplo
yer's
express zero-tolerance drug policy. We therefore affirm the
Panel's
:_decision.
I. Background
Claimant was employed by Service Group, Inc. (employer)
as an
operator assigned to sweep the 16th Street Mall in Denver with
a broom
and dustpan. He was discharged in February 2010 for violating
employer's
zero-tolerance drug policy after testing positive for marijuana in a rand
om
drug test ordered- by employer. Employer's policy states: "[I]f a
current
employee is substance tested for any reason ... and the resul
ts of the
screening are positive for ... illegal drugs, the employee will be termi
nated."
Claimant contends, and employer does not dispute, that he obtai
ned
and used the marijuana for severe headaches, as recommen
ded by a
physician pursuant to article XVIII, section 14 of the Colorado Const
itution,
which provides an exemption from state criminal prosecution to indiv
iduals
issued a "registry identification card" to use marijuana for
medical
purposes. Colo. Const. art. XVIII, § 14(2)(b).
In pertinent part, the amendment provides:
[I]t shall be an exception from the state's criminal laws for any patient or
primary care-giver in lawful possession of a registry identification card to
engage or assist in the medical use of marijuana, except as otherwise
provided in subsections(5)and (8} of this section.
Colo. Const. art. XVIII, § 14(2)(b) (emphasis added). The amendment
also specifies:
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:
~2 (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.
Colo. Const. art. XVIII, § 14(4)(a).
Claimant asserts that his use and possession of marijuana was
therefore legal. A
deputy
initially
denied
claimant's
request for
unemployment benefits, but a hearing officer reversed that decision, finding
that claimant. was not at fault for his separation from employment because
there was "no reliable evidence to suggest that ... claimant was not eligible
for a medical marijuana license" or that his use of the substance negatively
impacted his job performance. Moreover, the hearing officer noted that
"claimant has a state constitutional right to use marijuana."
Although claimant did not produce a registry identification card, he did
produce a physician certification form, contending that he had not yet been
provided with the registry card. Employer did not contest his eligibility to
receive the registration card. Nor did employer argue that the use of
marijuana negatively impacted his job performance.
On employer's appeal, the Panel disagreed and set aside the hearing
officer's order. Relying on a precedential case.decided by the entire Panel,
the Panel here concluded that article XVIII, section 14 of the Colorado
Constitution does not create an exception to section 8-73-108(5)(e)(IX.5),
which disqualifies from benefits an employee who tests positive for the
presence of "not medically prescribed controlled substances" in his or her
system "during working hours." The Panel accordingly disqualified claimant
from receiving benefits pursuant to section 8-73-108(5)(e)(IX.5). Claimant
now appeals.
II..Analysis
Claimant contends that the Panel erred in setting aside the hearing
officer's decision because the Colorado Constitution protects his marijuana
use. He argues, essentially, that his constitutional right to "medical use" of
marijuana was violated by the application of the disqualifying provision to
his situation and the Ranel's consequent denial of his request for
unemployment benefits. He also argues that the Panel should have
recognized that employer's categorization of marijuana with other more
harmful illegal substances is inappropriate and "prejudicial" because
marijuana can remain in one's system for several days after its use and
long after it has lost its influence, as demonstrated by the lack of evidence
that claimant's use of marijuana negatively affected his job perFormance.
Although claimant appears pro se, :we liberally interpret his brief and
discern that his appeal raises three separate issues: (1) whether the
statutory disqualification in section 8-73-108(5)(e) (IX .5) applies to
claimant's case; (2) if so, whether the statute violates a constitutional right
of claimant; and (3) whether the record was sufficient to support the Panel's
decision.
*3 We are not persuaded that the statute was misapplied in this case or
that any of claimant's rights under article XVIII, section 14 of the Colorado
Constitution were violated. Because the record supports the Panel's
determination, we affirm it.
A. Application of the Disqualification Provision
[1] Under Colorado's unemployment compensation provisions, an
employee may be disqualified from receiving unemployment compensation
benefits if a separation from employment occurs because of
[t]he presence in an individual's system, during working hours, of not
medically prescribed controlled substances, as defined in section 72-22303(7), C.R.S., ... as evidenced by a drug ... test administered pursuant to
a statutory or regulatory requirement or a previously established, written
drug ... policy of the employer and conducted by a medical facility or
laboratory licensed or certified to conduct such tests:
§ 8-73-108(5)(e)(IX.5)(emphasis added); see Slaughter v. John Elway
Dodge Sw./AutoNation, 107 P.3d 1165, 1170 (Colo.App.2005)("[Section]
8-73-108(5)(e)(IX.S) ... provides that an employer shall not be charged for
unemployment benefits when it has a previously established written drug
policy and terminates an employee as the result of a drug test showing the
presence of marijuana in the employee's system during working hours."). A
"controlled substance" is defined in relevant part as "a drug, substance, or
immediate precursor ... including cocaine, marijuana, [and] marijuana
concentrate." See§ 12-22-303(7), C .R.S.2010 (incorporating the definition
of "controlled substance" set forth in section 18-18-102(5), C.R.S.2010).
As noted above, the disqualification from receiving unemployment
benefits is triggered if an employee tests positive for the presence of a
controlled substance that is "not medically prescribed." § 8-73-108(5)(e)
(IX.5). Underlying claimant's argument is an assumption that his
authorization to use medical marijuana is equivalent to a medical
prescription. This assumption is inaccurate.
Under article XVIII, section 14, a physician does not prescribe
marijuana, but may only provide "written documentation" stating-:that the
patient has a debilitating medical condition and might benefit from the
medical use of marijuana. SeeColo. Const. art. XVIII, § 14(2)(c)(II). Indeed,
a physician's inability to prescribe marijuana under Colorado. law is
reflected in the very physician certification upon which claimant relies to
legally
consume
marijuana. That document specifies that "[t]his
assessment is not a prescription for the use of marijuana" (emphasis
added).
Moreover, federal law, to which Colorado physicians are subject,
requires a practitioner prescribing controlled substances to be registered
with the Drug Enforcement Administration (DEA). See21 C.F.R. § 1301.11
(2009). Such registration for the prescription of controlled substances can
only be obtained for Schedule II through V controlled substances. See21
C.F.R. § 1301.13 (2010). Marijuana, in contrast, remains a Schedule
controlled substance under the applicable federal statute and consequently
cannot be prescribed. 21 U.S.C. § 812(c) (1999); see United States v.
Oakland Cannabis Buyers' Coop., 532 U.S. 483, 491, 121 S.Ct. 1711, 149
L.Ed.2d 722 (2001)("In the case of the Controlled Substances Act, the
statute reflects a determination that marijuana has no medical benefits
worthy of an exception.... Whereas some other drugs can be dispensed
and prescribed for medical use, the same is not true for marijuana. Indeed,
for purposes of the Controlled Substances Act, marijuana has `no currently
accepted medical use' at all.")(citation omitted).
*4 The federal prohibition against prescribing marijuana was reiterated
by the Office of National Drug Control Policy in 1997 when it issued a
notice mandating that enforcement of federal drug laws would remain in
effect despite California's and Arizona's passage of medical marijuana
provisions, because "prescribing Schedule I controlled substances is not
consistent with the `public interest' ... and will lead to administrative action
by the [DEA] to revoke the practitioner's registration." 62 Fed.Reg. 6164,
6164 (Feb. 11, 1997); see also Conant v. Walters, 309 F.3d 629, 633 (9th
Cir.2002)(noting that under the federal policy "physicians who `intentionally
provide their patients with oral or written statements in order to enable them
to obtain controlled substances in violation of federal law ... risk revocation
of their DEA prescription authority' ") (quoting joint policy letter of
Department of Justice and Department of Health and Human Services).
Under this policy,
the federal government may: 1) prosecute any physician who prescribes
or recommends marijuana to patients; 2) prosecute any patient who uses
prescribed marijuana; 3) revoke the DEA registration numbers of any
physician who prescribes or recommends marijuana to patients; 4)
exclude any physician who prescribes or recommends marijuana to
patients from the Medicaid and Medicare programs; and 5) enforce all
federal sanctions against physicians and patients.
Pearson v. McCaffrey, 139 F.Supp.2d 113, 116 (D.D.C.2001).
Although the Department of Justice has indicated it may not- prosecute
"individuals with cancer or other serious illnesses who use marijuana as
part of a recommended treatment regimen consistent with applicable state
law, or those caregivers in clear and unambiguous compliance with existing
state law who provide such individuals with marijuana," the Department
nonetheless remains "committed to the enforcement of the Controlled
Substances Act in all States." Memorandum from Deputy Attorney General
David W. Ogden to Selected United States Attorneys, Investigations and
Prosecutions in States Authorizing the Medical Use of Marijuana (Oct. 19,
2009), available at http:// blogs.usdoj.gov/blog/archives/ 192. In a recent
memorandum to the Colorado Attorney General, the United States Attorney
for. Colorado reiterated the Department's position as set forth in the Ogden
memorandum. Memorandum from United States Attorney John F. Walsh to
Attorney General John Suthers (Apr. 26, 2011), available at http://
extras.mnginteractive.com/live/media/site36/2011/0427/2
0110427_121943_pot.pdf. Consequently, the policies expressed by the
Office of National Drug Control Policy remain in effect.
In addition, we give consideration to the opinion of Colorado's Attorney
General that under Colorado's medical marijuana amendment "no such
prescription is contemplated." See Applicability of State Sales Tax to the
Purchase and Sale of Medical Marijuana, Colo. Att'y Gen. Formal Op. No.
09-06 (Nov. 16, 2009); see also Co%rado Common Cause v. Meyer, 758
P.2d 153, 159(Colo.1988)("Since the Attorney General's opinion is issued
pursuant to statutory duty, the opinion is obviously entitled to respectful
consideration as a contemporaneous interpretation of the law by a
governmental
official
charged
with
the
responsibility
of
such
interpretation.")
*5 We conclude that the medical use of marijuana by an employee
holding a registry card under amendment XVIII, section 14 is not pursuant
to a prescription, and therefore does not constitute the use of "medically
prescribed controlled substances" within the meaning of section 8-73—
108(5)(e)(IX.S). Accordingly, the presence of medical marijuana in an
individual's system during working hours is a ground for a disqualification
from unemployment benefits under that section.
B. Interpretation of Medical Marijuana Amendment
[2] Claimant also argues that we should reinstate the hearing officer's
conclusion that "claimant has a constitutional right to use marijuana" and
therefore is not at fault for his separation from employment. The Panel, in
setting aside the hearing officer's decision, concluded that the constitutional
provisions "address exceptions to state criminal laws" and disagreed with
the
hearing
officer's
inferences
regarding
the
interplay
of the
unemployment compensation act and the constitutional amendment.
On appeal, claimant contends that the basis for disqualification set forth
in section 8-73-108(5)(e)(IX.S) should not apply to him because he may
legally obtain and consume marijuana as a "medical marijuana" user. We
are not persuaded that the constitutional amendment provides the broad
protections claimant asserts or broadly grants an unlimited right to use
marijuana, and
we decline to
hold the disqualification
provision
unconstitutional under article XVIII, section 14.
[3][4][5][.6][7] When interpreting constitutional provisions enacted by
voter referendum, it is this court's "duty ... to give effect to the will of the
people." Washington Cnty. Bd. of Equalization v. Petron Dev. Co., 109 P.3d
146, 150 (Colo.2005). In so doing, "we afford the language of constitutions
and statutes their ordinary and common meaning; we ascertain and give
effect to their intent." Id. at 149. Further, "[w]e construe statutory and
constitutional provisions as a whole, giving effect to every word and term
contained therein, whenever possible." Bd. of Cnty. Commis v. Vail
Assocs., lnc., 19 P.3d 1263, 1273 (Colo.2001). Nor can we add or subtract
language from the express words of the amendment. See Turbyne v.
People, 151 P.3d 563, 567 (Colo.2007)("We do not add words to the
statute or subtract words from it."). "Where the language of the Constitution
is plain and its meaning clear, that language must be declared and
enforced as written." Colo. Assn of Pub. Emps. v. Lamm, 677 P.2d 1350,
1353,(Colo.1984).
As noted above, since passage of the medical marijuana amendment,
the Colorado Constitution expressly provides that "it shall be an exception
from the state's criminal laws for any patient or primary care-giver in lawful
possession of a registry identification card to engage or assist in the
medical use of marijuana, except as otherwise provided in subsections (5)
and (8) of this section." Colo. Const. art. XVIII, § 14(2}(b)
(emphasis
added). Although subsection (4) of the amendment provi
des more
generally that "[a) patient may engage in the medical use of marij
uana, with
no more marijuana than is medically necessary to address a debil
itating
condition," we do not read this as creating a broader constituti
onal right
than exemption from prosecution. Because 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.
*6 In addition to placing quantity limits on possession of
medical
marijuana, it is also apparent that the constitutional amendmen
t was not
intended to create an unfettered right to medical use of marij
uana. The
amendment expressly prohibits the medical use of marijuana in
a way that
endangers the health or well-being of any person. Colo. Const. art.
XVIII, §
14(5)(a)(I). It also prohibits the medical use of marijuana in plain
view, or in
a place open to the general public. /d.§ 14(5)(a)(II).
Subsection (8) of the amendment also .provides that the Gene
ral
Assembly shall define the terms and enact legislation. to impl
ement the
amendment. In response, in 2001, the General Assembly enacted section
18-18^406.3, C.R.S.2010, which established the criminal penalties for
violation of the prohibitions contained in the amendment. In enacting this
legislation, the General Assembly declared the purpose of the amendment
as follows:
(b)[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; ...
(f) [The amendment] sets forth the lawful limits on the medical use of
marijuana; ...
(h) In interpreting the provisions of [the amendment], the general
assembly ... has attempted to give the ... words of the constitutional
provision their plain meaning;
(i) This section reflects the considered judgment of the general assembly
regarding the meaning and implementation of the provisions of [the
amendment].
§ 18-18406.3(1), C.R.S.2010(emphasis added).
[8] Thus, contrary to claimant's interpretation, the General Assembly
understood Colorado's medical marijuana amendment to have created an
exception to criminal prosecution, and not to be a grant to medical
marijuana users of an unlimited constitutional right to use the drug in any
place or in any manner. The General Assembly's construction of an
initiated constitutional amendment made shortly after its adoption is to be
given great weight. See Zaner v. City of Brighton, 899 P.2d 263, 267
(Colo.App.1994), affd,917 P.2d 280(Colo.1996).
[9] Moreover, the amendment specifically provides: "Nothing in this
section shall require any employer to accommodate the medical use of
marijuana in any work place." Colo. Const. art. XVIII, § 14(10)(b). The
"medical use of marijuana" is broadly defined in the amendment to mean
"the acquisition, possession, production, use or transportation of marijuana
or paraphernalia related to the administration of such marijuana to address
the symptoms or effects of a patient's debilitating medical condition." Id.§
14(1)(b). Thus, the Colorado Constitution does not give medical marijuana
users the unfettered right to violate employers' policies and practices
regarding use of controlled substances.
To interpret the .medical marijuana amendment as claimant suggests—
as a blanket "right to use marijuana as long as it is recommended by a
physician and registered with the state"—would require us to disregard the
amendment's
express
limitations
protecting
only
against
criminal
prosecution and allowing employers not to accommodate the use of
marijuana in the workplace, as well as the General Assembly's
interpretation of the amendment. We decline to do so.
*7[10] Our interpretation is consistent with other cases that have
examined the scope of medical marijuana provisions in this and other
states. Colorado has already recognized that the medical marijuana
amendment to Colorado's Constitution is not limitless. Rather, as a division
of this court noted, because all provisions and language in the amendment
must be given their full force and effect, "primary care-giver" under the
provision does not encompass everyone who may "supply marijuana for
medical use," but. is instead limited to those who "do more than merely
supply a patient who has a debilitating medical condition with marijuana."
People v. Clendenin, 232 P.3d 210, 212, 214 (Colo.App.2009). In addition,
exercising parenting time did "not constitute
a
a prohibition in a parenting plan against using medical marijuana while
restriction of parenting time."
In re Marriage of Parr, 240 P.3d 509, 511 (Colo.App.2010).
We also emphasize that the issue presented here is whether
unemployment compensation benefits may be denied due to the presence
of "not medically prescribed controlled substances" in a tested employee.
We are not deciding whether the amendment limits an employer from
discharging an employee for using medical marijuana. Nonetheless, we
note that in the context of wrongful termination cases, language similar to
section 14(10)(b)("Nothing in this section shall require any employer to
accommodate the medical use of marijuana in any work place.") has been
interpreted not to require employers to accommodate employees' off-site
use of medical marijuana. Roe v. TeleTech Customer Care Mgmt. (Colo.),
LLC, 171 Wash.2d 736, 257 P.3d 586, 2011: WL 2278472, at * 6 (Wash.
No. 83768-6, June 9, 2011).
We therefore conclude that the Panel did not err in determining that
claimant was not shielded by Colorado's medical marijuana amendment
from being at fault for his separation from employment and could be
disqualified from receiving unemployment compensation benefits under
section 8-73-108(5)(e)(IX.5).
C. Substantial Evidence
Claimant contends that the evidence did not establish that he violated
employer's "previously established" policy regarding the use of drugs
because the policy was unclear or did not apply to him. He apparently
refers to employer's policy which states:
Employees who operate vehicles as part of their Service Group
responsibilities must notify their supervisors or appropriate Company
manager when they are taking prescription or non-prescription medication
which contains a WARNING LABEL stating that use of that drug may
impair their ability to safely operate machinery or vehicles.
It is undisputed that claimant did not operate any machinery or drive any
vehicles for employer. Therefore, he argues, because he was legally taking
a drug, he was not obligated to advise employer of his use of marijuana
and should not have been penalized for his positive drug test.
[11]While claimant's "sweeping and panning" duties may have rendered
the above-quoted employer's policy inapplicable, and absolved him from
the obligation to notify his supervisor of his marijuana usage, we do not
read that provision as precluding the Panel from finding that claimant was
terminated under employer's zero-tolerance drug policy set forth above.
The separate zero-tolerance policy prohibits the presence of any "illegal
drugs." Although Colorado's medical marijuana provision may protect
claimant from prosecution under Colorado's criminal laws, as noted above
the amendment has no bearing on federal laws, under which marijuana
remains an illegal substance. See21 U.S.C. §§ 802, 812, 841.
*8 As employer's representative noted, the illegality of marijuana use
under federal law made its presence in any worker's system inappropriate
under employer's policy. We therefore conclude that substantial evidence
supports the Panel's conclusion that claimant's status as a "sweeper and
panner" who was not required to alert his supervisor of his marijuana use
did not render his termination inappropriate under employer's zerotolerance drug policy.
[12] Having determined that claimant was subject to employer's zerotolerance drug policy and could be disqualified from benefits by section 8—
73-108(5)(e) (IX.5), we turn to the evidence supporting the Panel's
determination that claimant was not entitled to benefits because he had the
presence of marijuana in his system. "A decision of the [P]anel may not be
set aside where there are findings of fact supported by substantial
evidence." Colo. Div. of Emp't& Training v. Hewlett, 777 P.2d 704, 707
(Colo.1989).
[13] Claimant admitted he had used marijuana in the days preceding
employer's drug test, and he does not dispute that marijuana was still in his
system at the time of the testing. Moreover, the laboratory report of the
positive drug test results was introduced into evidence before the hearing
officer. Cf. Sosa v. Indus. Claim Appeals Office,
P.3d
, 2011
WL 2650490 (Colo.App. No. 10CA1671, July 7, 2011). Claimant did not
dispute the accuracy of the reported test results or the qualifications of the
laboratory performing the test. Thus, there was substantial evidence that
claimant had a controlled substance in his system that was not medically
prescribed.
Claimant also raises arguments concerning the properties of marijuana
and its potency. He first argues that marijuana should not be categorized
as a "Schedule I substance" because other substances so categorized
"have no medicinal value." However, it is not within -the power of this court
to determine what substances should be included on Schedule I. United
States v. Phifer, 400 F.Supp. 719, 736 (E.D.Pa.1975) ("Congress has
designated marijuana as a controlled substance and has listed it in
Schedule I as such. 21 U.S.C. § 812(c)[(Sched.l) ](c)(10). Congress has
thus made the determination that, as a matter of law, marijuana is a
controlled substance."), aff'd,532 F.2d 748 (3d Cir.1976)(unpublished table
decision).
He further contends that the trace amount of marijuana detected in his
sample was insubstantial and he consequently was not "under the
influence" of marijuana while at work. We need not address these
arguments, however, for two reasons.
[14] First, claimant was not denied benefits for being "under the
influence" of marijuana at work. Section 8-73-108(5)(e)(Vlil), C.R .S.2010,
provides for disqualification when use of drugs results in "interference with
job performance," but the denial of benefits to claimant was not based on
this section. Second, although claimant discussed the level of marijuana
reported in his drug test at the hearing, the hearing officer declined to
consider claimant's statements because no expert addressed the meaning
of the results or the effects due to the reported level of marijuana.
*9[15] Because evidence as to the effect of the amount of marijuana
detected in claimant was neither offered nor considered below, we may not
address these contentions here. Like the Panel, we may not consider any
factual assertions or documentation offered by claimant in support of his
arguments in this appeal that he did not raise or present before the hearing
officer, nor any arguments that were expressly rejected by the hearing
officer as unsupported. See§ 8-74-107(1), C.R.S.2010; Huddy v. Indus.
Claim Appeals Office, 894 P.2d 60, 62 (Colo.App.1995) (appellate court
has no authority under section 8-74-107, C.R.S.2010, to consider
supplemental evidence); Goodwill Indus. v. Indus. Claim Appeals Office,
862 P.2d 1042, 1047 (Colo.App.1993).
In our view, the evidence supports the Panel's determination that
claimant was disqualified from benefits from his employment under section
8-73-108(5)(e) (IX.S). Because the Panel's decision is supported by
substantial evidence in the record, we may not set the decision aside.,See§
8-74-107(6), C.R.S.2010; Tilley v. Indus. Claim Appeals Office, 924 P.2d
1173, 1177 (Colo.App.1996).
III. Conclusion
We conclude that the Panel did not err in setting aside the hearing
officer's order.
The order is affirmed.
Judge FURMAN concurs.
Judge GABRIEL dissents.
Judge GABRIEL dissenting.
agree with the majority's conclusion that the medical use of marijuana
by an employee holding a registry card under article XVIII, section. 14 of the
Colorado Constitution (medical marijuana amendment) is not pursuant to a
prescription and therefore does not constitute the use of "medically
prescribed controlled substances" within the, meaning of section 8-73—
108(5)(e) (IX.5), C.R.S.2010. The question thus becomes whether
application of section 8-73-108(5)(e)(IX.5) to deny claimant benefits here
violated the medical marijuana amendment. The majority holds that it did
not, because in its view, the medical marijuana amendment merely created
an immunity from criminal prosecution, and not a separate constitutional
right. Because I disagree with that conclusion and believe that the
amendment, in fact, established a right to possess and use medical
marijuana in the limited circumstances described therein, I respectfully
dissent.
I. Constitutional Construction
"In construing a constitutional provision, our obligation is to give effect to
the intent of the electorate that adopted it." Harwood v. Senate Majority
Fund, LLC, 141 P.3d 962, 964 (Colo.App.2006). We look to the words
used, reading them in context and according them their plain and ordinary
meaning. /d. If the language is clear and unambiguous, we must enforce it
as written. Davidson v. Sandstrom, 83 P.3d 648, 654 (Colo.2004).
"Language in an amendment is ambiguous if it is `reasonably
susceptible to more than one interpretation.' " Id. (quoting Zaner v. City of
Brighton, 917 P.2d 280, 283 (Colo.1996)). If the language of a citizeninitiated measure is ambiguous, "a court may ascertain the intent of the
voters by considering other relevant materials. such as the ballot title and
submission clause and the biennial `Bluebook,' which is the analysis of
ballot proposals prepared by the legislature." In re Submission of
Interrogatories on House Bill 99-7325, 979 P.2d 549, 554 (Colo.1999)."We
consider the object to be accomplished and the mischief to be prevented by
the provision." Harwood, 141 P.3d at 964.
*10 Here, as the majority points out, several provisions of the medical
marijuana amendment state that the authorized use of medical marijuana
establishes an affirmative defense or an exception from the state's criminal
laws for the possession or use of marijuana. See, e.g.,Colo. Const. art.
XVIII, § 14(2)(a)-(c), (4)(b). Section 14(4)(a) of that amendment, however,
provides, "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 [certain
listed] limits, is lawful ...." (Emphasis added.)
Because section 14(2)(a)-(c), on the one hand, and (4)(a), on the other
hand, appear to be separate and do not modify one another, in my view,
one could reasonably read the amendment, as the majority does, merely to
establish an affirmative defense or exception to prosecution for possession
or use of marijuana. Conversely, one could reasonably read the
amendment as creating a right to use medical marijuana (within established
limits). Accordingly, I believe that the language of the amendment is
ambiguous. See Davidson, 83 P.3d at 654 (language in an amendment is
ambiguous if it is reasonably susceptible of more than one interpretation).
Thus, I turn to extrinsic aids to attempt to ascertain the voters' intent in
passing this amendment. See In re Submission of Interrogatories, 979 P.2d
at 554.
As presented to Colorado voters, the ballot title of the medical marijuana
amendment read, in pertinent part:
An amendment- fo the Colorado Constitution authorizing the medical use
of marijuana for persons suffering from debilitating medical conditions,
and, in connection therewith, establishing an affirmative defense to
Colorado criminal laws for patients and their primary care-givers relating
to the medical use of marijuana; establishing exceptions to Colorado
criminal laws for patients and primary caregivers in lawful possession of a
registry identification card for medical marijuana use and for physicians
who advise patients or provide -them with written documentation as to
such medical marijuana use; defining "debilitating medical condition" and
authorizing the state health agency to approve other medical conditions or
treatments as debilitating medical conditions....
Colorado Legislative Council, Research Pub. No. 475-0, An Analysis of
2000 Ballot Proposals(Bluebook)35(2000)(emphasis added).
Although this title may not be a model of clarity, I read it to provide that
the ,general intent of the amendment was to authorize the medical use of
marijuana, and then to list specific provisions that would implement that
general intent.
My interpretation finds further support in the Bluebook, which provided
an .analysis: of the medical marijuana amendment. That analysis nowhere
mentioned any immunity from or exception to state criminal laws. Rather, it
stated, in pertinent part:
*11 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....
• allows a doctor to legally provide a seriously or chronically ill patient with
a written statement that the patient might benefit from medical use of
marijuana.....
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 mar~uana for patients who have registered with the state.
Patients on the registry are allowed to legally acquire, possess, use,
grow, and transport marijuana and marijuana paraphernalia. Employers
are not required to allow the medical use of marijuana in the workplace.
Id. at 1 (emphasis added).
Similarly, in the section of the Bluebook entitled, "Arguments For," the
proponents; of the- amendment stated, "Using marijuana for other than
medical purposes will still be illegal in Colorado. Legal use of marijuana will
be limited to patients on the state registry." Id. at 2(emphasis added).
"Legalize" means "[t]o make lawful; to authorize or justify by legal
sanction." Black's Law Dictionary 977 (9th ed.2009); accord Webster's
Third New International Dictionary 1290 (2002)(defining "legalize" to mean
"to make legal: give legal validity or sanction to"). Accordingly, in my view,
the medical marijuana amendment was intended not merely to create a
defense to a charge of marijuana possession or use, but rather to make
medical marijuana possession and use legal under the conditions identified
Although in Roe v. TeleTech Customer Care Mgt.
(Colo.),
in the amendment.
LLC,
P.3d
Court
(Wash. No. 83768-6, June 9, 2011), the Washington Supreme
reached the opposite conclusion, I note that the language of the
Washington State Medical Use of Marijuana Act is quite different from that
of the relevant portions of Colorado's medical marijuana amendment. For
example, as adopted by Washington voters, the Washington act's
statement of purpose provided, as pertinent here,
Therefore, the people of the state of Washington intend that ... [gJualifying
patients with terminal or debilitating illnesses who, in the judgment of their
physicians, would benefit from the medical use of marijuana, shall not be
found guilty of a crime under state law for their possession and limited
use of marijuana....
Wash. Rev.Code § 69.51A.005 (version in effect from adoption in 1.998
until amended July 22, 2007)(quoted.in Roe,
P.3d at
). The act
further stated the intent of the voters to provide a defense to caregivers and
physicians and to provide an affirmative defense to both qualifying patients
and caregivers. Wash. Rev.Code §§ 69.51A.005, 69.51A.040(2). As noted
above, Colorado's medical marijuana amendment is not similarly limited,
when read as a whole.
*12 Nor am I persuaded that section 14(10)(b) of the- medical marijuana
amendment provides the broad exception that the Panel asserts. That
section provides, "Nothing in this section shall require any employer to
Const. art. XVIII, § 14(10)(b). "Medical use,"
in
accommodate the medical use of marijuana in any work place." Colo.
turn, is defined as
the acquisition, possession, production, use, or transportation of
marijuana or paraphernalia related to the administration of such marijuana
to address the symptoms or effects of a patient's debilitating medical
condition, which may be authorized only after a diagnosis of the patient's
debilitating medical condition by a physician or physicians, as provided by
this section.
Id. at § 14(1)(b).
In my view, these provisions are clear and unambiguous and refer solely
to the acquisition, possession, production, use, or transportation of medical
marijuana, or paraphernalia related to it, in the workplace. I do not believe
that these provisions encompass the presence of marijuana in one's blood
after the lawful use of medical marijuana at home. In particular, I am not
persuaded that the presence of medical marijuana in~ one's blood amounts
to either "use," which I believe connotes contemporaneous consumption, or
"possession," which I interpret as holding at one's disposal, within the
meaning of the above-quoted definition. If it did, then under a zerotolerance policy like that at issue here, many patients who are eligible to
use medical marijuana would likely abandon their right to do so, because
even lawful use at home would put their benefits, and perhaps even their
jobs, at risk. I do not believe that the voters who passed the medical
marijuana amendment intended section 14(10)(b) to sweep that broadly.
Cf.§ 24-34-402.5, C.R.S.2010 (providing that, subject to certain
exceptions, it is a discriminatory or unfair employment practice for an
employer to terminate the employment of an employee for engaging in
lawful activity off the premises of the employer during nonworking hours).
Given my view that sections 14(1)(b) and (10)(b) of the medical
marijuana amendment are unambiguous, I would not resort to extrinsic aids
to ascertain their meaning. Were I to do so, however, I believe that the
available extrinsic evidence supports my interpretation of those provisions.
Thus, as noted above, the analysis contained in the Bluebook noted,
"Employers are not required to allow the medical use of marijuana in the
workplace." Bluebook, at 1. To me, this analysis makes clear that the
voters' intention was precisely what the amendment says it was, namely, to
give employers the right to prohibit the acquisition, possession, production,
use, or transportation of medical marijuana, or paraphernalia related to it, in
the workplace.
For these reasons, I would conclude that claimant had a constitutional
right to possess and use medical marijuana pursuant to the limitations
contained in the medical marijuana amendment. I recognize that such an
interpretation could potentially implicate Supremacy Clause issues, given
prevailing federal law. In my view, the same issues could apply to the
majority's interpretation because the medical marijuana amendment
creates a regulatory scheme that potentially conflicts with federal law.
Because no party has raised any issue concerning the Supremacy Clause,
however, I do not address that question.
II. Constitutionality of Denial of Benefits
*13 The question thus becomes whether the denial of benefits to
claimant here was consistent with his constitutional rights. In my view, it
was not.
"[E]ven though a person has no `right' to a valuable governmental
benefit and even though the government may deny him the benefit for any
number of reasons, there are some reasons upon which the government
may not rely. It may not deny a benefit to a person on a basis that infringes
his constitutionally protected interests ...." Perry v. Sindermann, 408 U.S.
593, 597 (1972); accord 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484,
513, 116 S.Ct. 1495, 134 L.Ed.2d 711 (1996); Alliance for Open Society
lnt'l, lnc. v. U.S. Agency for Int'I Dev.,
F.3d
4917—CV, July 6, 2011). This rule, known
(2d Cir. No. 08—
as the doctrine of
"unconstitutional conditions," however, is not absolute. Thus, the doctrine
allows the government to condition the grant of a discretionary benefit on
the release of a constitutional right when the government has an interest
that outweighs the particular constitutional right at issue. See Lorenz v.
State, 928 P.2d 1274, 1283(Colo.1996).
The United States Supreme Court has long held that unemployment
compensation benefits constitute one type of governmental benefit that
cannot be conditioned on a willingness to abandon one's constitutional
rights. See, e.g., Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136,
139—~42, 107 S.Ct. 1046, 94 L.Ed.2d 190 (1987); Thomas v. Review Bd.,
450 U.S. 707, 716-18, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981); Sherbert v.
Verner, 374 U.S. 398, 403-06, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963); see
also Everitt Lumber Co. v. Indus. Comm'n, 39 Colo.App. 336, 339 & n. 3,
565 P.2d 967, 969 & n. 3(1977)(holding that "invoking the protection of the
Fifth Amendment, or refusing to waive its protections, may not be used as
the basis for denying ... claimants- unemployment compensation benefits,"
but not reaching the question of whether a denial of benefits due solely to a
private employee's assertion of Fifth Amendment rights would be precluded
on the basis that such action would amount to state action under the
Fourteenth Amendment).
Thus, where the state conditions receipt of an important benefit on
conduct protected by the constitution, or where it denies such a benefit
based on constitutionally protected conduct, thereby putting substantial
pressure on an adherent to modify his or her behavior and forgo the
exercise of a constitutional right, a burden on that right exists. See Hobbie,
480 U.S. at 141;Thomas, 450 U.S. at 717-18. "While the compulsion may
be indirect, the infringement upon [the exercise of that constitutional right]
is nonetheless substantial." Thomas, 450 U.S.. at 718;accord Hobbie, 480
U.S. at 141.
The foregoing case law thus suggests three issues to be decided in this
case: (1) whether the denial of benefits here constituted state action; (2) if
so, whether the state conditioned the receipt of such benefits on the
release of a constitutional right; and (3} if so, whether the state's interest
outweighs the constitutional right in question. I address each of these
issues in turn.
*14 First, in Hobble, Thomas, and Sherbert, the Supreme Court made
clear, albeit implicitly, that a denial of unemployment benefits arising from
the exercise of a constitutional right constitutes state action. See Hobble,
480 U.S. at 139-42;Thomas, 450 U.S. at 716-18;Sherbert, 374 U.S. at
403-06. I would so hold here.
Second, for the reasons set forth above, I believe that claimant had a
constitutional right to use medical marijuana, and in my view, the denial of
benefits based on his exercise of that right infringed the right. Specifically,
claimant was denied benefits solely because he exercised his constitutional
right to use medical marijuana. In this regard, this case is similar to Hobble,
Thomas, and Sherbert, in which the claimants were denied benefits solely
because they .chose to exercise their religious beliefs, which resulted in
their being discharged from employment. Hobbie, 480 U.S. at 138;Thomas,
450 U.S. at 709-13;Sherberf, 374 U.S. at 399-401. In my view, the denial
of benefits here, like the denial of benefits in Hobbie, Thomas, and
Sherbert, placed substantial pressure on claimant to forgo the exercise of
his constitutional rights, and thereby burdened his exercise of those rights.
Although the compulsion may have been indirect, it was nonetheless
substantial. See Hobbie, 480 U.S. at 141;Thomas, 450 U.S. at 718;cf.
Employment Div., Dept of Human Resources of Oregon v. Smith, 494 U.S.
872, 883-85, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) (distinguishing
Sherbert, Hobbie, and Thomas in a case, unlike the present one, in which
the court construed the claimant to be seeking an exemption from generally
applicable criminal law on free exercise of religion grounds); see also
Church of fhe Lukumi8abalu Aye, Inc. v. City of Hialeah, 508 U.S. 520,
559-77, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993)(Souter, J., concurring)
(criticizing Smith and calling for its reexamination).
Finally, I perceive nothing in the record to suggest that the state's
interest in denying benefits here outweighs claimant's constitutional rights.
In their appellate brief, the People asserted, in conclusory fashion, that
claimant had no constitutional right at all. Based on that premise, which.
believe to be incorrect, the People did not proceed to address the
balancing of interests and, thus, failed to indicate any state interest that
outweighs claimant's rights. Because my own review of the record and
applicable case law failed to reveal such an interest, I would conclude that
the state's interests do not outweigh claimant's interests here.
For these reasons, I believe that claimant's lawful use of medical
marijuana outside of the workplace—particularly where, as here, there is no
evidence of any impairment of performance in the workplace—cannot
constitutionally be used as a basis for denying claimant unemployment
benefits.
Accordingly, I respectfully dissent.
(C)2011 Thomson Reuters.
APPENDIX 2
COLORADO CONSTITUTION
(relevant provisions)
39
C.R.S. Const. Art. XVIiI,
§ 14. Medical use of marijuana for persons suffering from
debilitating medical conditions
(1) As used in this section, these terms are defined as follows:
(a)"Debilitating medical condition" means:
(I) Cancer, glaucoma, positive status for human
immunodeficiency virus, or acquired immune deficiency syndrome, or
treatment for such conditions;
(II) A chronic or debilitating disease or medical
condition, or treatment for such conditions, which produces, for a specific
patient, one or more of the following, and for which, in the professional
opinion of the patient's physician, such condition or conditions reasonably
may be alleviated by the medical use of marijuana: cachexia; severe pain;
severe nausea; seizures, including those that are characteristic of epilepsy;
or persistent muscle spasms, including those that are characteristic of
multiple sclerosis; or
(III) Any other medical condition, or treatment for
,,
such condition, approved by the state health agency, pursuant to its rule
making authority or its approval of any petition submitted by a patient or
physician as provided in this section.
(b)"Medical use" means the acquisition, possession,
production, use, or transportation of marijuana or paraphernalia related to
the administration of such marijuana to address the symptoms or effects of
a patient's debilitating medical condition, which may be authorized only
after a diagnosis of the patient's debilitating medical condition by a
physician or physicians, as provided by this section.
(d)"Patient" means a person who has a debilitating
medical condition.
(e)"Physician" means a doctor of medicine who
maintains, in good standing, a license to practice medicine issued by the
state of Colorado.
(f)"Primary care-giver" means a person, other than the
patient and the patient's physician, who is eighteen years of age or older
and has significant responsibility for managing the well-being of a patient
who has a debilitating medical condition.
41
(g)"Registry identification card" means that document,
issued by the state health agency, which identifies a patient authorized to
engage in the medical use of marijuana and such patient's primary caregiver, if any has been designated.
(h)"State health agency" means that public health related
entity of state government designated by the governor to establish and
maintain a confidential registry of patients authorized to engage in the
medical use of marijuana and enact rules to administer this program.
(i)"Usable form of marijuana" means the seeds, leaves,
buds, and flowers of the plant (genus) cannabis, and any mixture.or
preparation thereof, which are appropriate for medical use as provided in
this section, but excludes the plant's stalks, stems, and roots.
(j)"Written documentation" means a statement signed- by
a patient's physician or copies of the patient's pertinent medical records.
(2) (a) Except as otherwise provided in subsections (5), (6),
and (8) of this section, a patient or primary care-giver charged with a
violation of the state's criminal laws related to the patient's medical use of
marijuana will be deemed to have established an affirmative defense to
such allegation where:
42
(I) The patient was previously diagnosed by a
physician as having a debilitating medical condition;
(II) The patient was 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 medical condition; and
(III) The patient and his or her primary care-giver
were collectively in possession of amounts of marijuana only as permitted
under this section.
This affirmative defense shall not exclude the assertion of any other
defense where a patient or primary care-giver is charged with a violation of
state law related to the patient's medical use of marijuana.
(b) Effective June 1, 1999, it shall be an exception from
the state's criminal laws for any patient or primary care-giver in lawful
possession of a registry identification card to engage or assist in the
medical use of marijuana, except as otherwise provided in subsections (5)
and (8) of this section.
(c) It shall be an exception from the state's criminal laws
for any physician to:
43
(I) Advise a patient whom the physician has
diagnosed as having a debilitating medical condition, about the risks and
benefits of medical use of marijuana or that he or she might benefit from
the medical use of marijuana, provided that such advice is based upon the
physician's contemporaneous assessment of the patient's medical history
and current medical condition and a bona fide physician-patient
relationship; or
(II) Provide a patient with written documentation,
based upon the physician's contemporaneous assessment of the patient's
medical history and current medical condition and a bona fide physicianpatient relationship, stating that the patient has a debilitating medical
condition and might benefit from the medical use of marijuana.
No physician shall be denied any rights or privileges for the acts authorized
by this subsection.
(d) Notwithstanding the foregoing provisions, no person,
including a patient or primary care-giver, shall be entitled to the protection
of this section for his or her acquisition, possession, manufacture,
production, use, sale, distribution, dispensing, or transportation of
marijuana for any use other than medical use.
44
(3) The state health agency shall create and maintain a
confidential registry of patients who have applied for and are entitled to
receive a registry identification card according to the criteria set forth in this
subsection, effective June 1, 1999.
(b) In order to be placed on the state's confidential
registry for the medical use of marijuana, a patient must reside in Colorado
and submit the completed application form adopted by the state health
agency, including the following information, to the state health agency:
(I) The original or a copy of written documentation
stating that the patient has been diagnosed with a debilitating medical
condition and the physician's conclusion that the patient might benefit from
the medical use of marijuana;
(II) The name, address, date of birth, and social
security number of the patient;
(III) The name, address, and telephone number of
the patient's physician; and
(IV) The name and address of the patient's primary
45
care-giver; if one is designated at the time of application.
(c)Within thirty days of receiving the information referred
to in subparagraphs (3)(b)(I)-(IV), the state health agency shall verify
medical information contained in the patient's written documentation. The
agency shall notify the applicant that his or her application for a registry
identification card has been denied if the agency's review of such
documentation discloses that: the information required pursuant to
paragraph (3)(b} of this section has not been provided or has been falsified;
the documentation fails to state that the patient has a debilitating medical
condition specified in this section or by state health agency rule; or the
physician does not have a license to practice medicine issued by the state
of Colorado. Otherwise, not more than five days after verifying such
information, the state health agency shall issue one serially numbered
registry identification card to the patient, stating:
(I) The patient's name, address, date of birth, and
social security number;
(II) That the patient's name has been certified to the
state health agency as a person who has a debilitating medical condition,
whereby the patient may address such condition with the medical use of
46
marijuana;
(III) The date of issuance of the registry
identification card and the date of expiration of such card, which shall be
one year from the date of issuance; and
(IV) The name and address of the patient's primary
care-giver, if any is designated at the time of application:
(h) A patient who- no longer has a debilitating medical
condition shall return his or her registry identification card to the state
health agency within twenty-four hours of receiving such diagnosis by his or
her physician.
(i) The 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.
(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
47
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.
(5) (a) No patient shall:
(I) Engage in the medical use of marijuana in a way
that endangers the health or well-being of any person; or
(II) Engage in the medical use of marijuana in plain
view of, or in a place open to, the general public.
(b) In addition to any other penalties provided by law, the
state health agency shall revoke for a period of one year the registry
identification card of any patient found to have willfully violated the
provisions of this section or the implementing legislation adopted by the
general assembly.
48
(6) Notwithstanding paragraphs (2)(a) and (3)(d) of this section,
no patient under eighteen years of age shall engage in the medical use of
marijuana unless:
(a)Two physicians have diagnosed the patient as having
a debilitating medical condition;
(b) One of the physicians referred to in paragraph (6)(a)
has explained the possible risks and benefits of medical use of marijuana
to the patient and each of the patient's parents residing in Colorado;
(c)The physicians referred to in paragraph (6)(b) has
provided the patient with the written documentation, specified in
subparagraph (3)(b)(I);
(d) Each of the patient's parents residing in Colorado
consent in writing to the state health agency to permit the patient to engage
in the medical use of marijuana;
(e) A parent residing in Colorado consents in writing to
serve as a patient's primary care-giver;
(f) A parent serving as a primary care-giver completes
subparagraph (3)(b) of this section and the written consents referred to
49
in
and submits an application for a registry identification card as provided in
paragraph (6)(d)to the state health agency;
(g)The state health agency approves the patient's
application and transmits the patient's registry identification card to the
parent designated as a primary care-giver;
(h)The patient and primary care-giver collectively
possess amounts of marijuana no greater than those specified in
subparagraph (4)(a)(I) and (II); and
(i) The primary care-giver controls the acquisition of such
marijuana and the dosage and frequency of its use by the patient.
(7) Not later than March 1, 1999, the governor shall designate,
by executive order, the state health agency as defined in paragraph (1)(g)
of this section.
(8) Not later than April 30, 1999, the General Assembly shall
define such terms and enact such legislation as may be necessary for
implementation of this section, as well as determine and enact criminal
penalties for:
(a) Fraudulent representation of a medical condition by a
patient to a physician, state health agency, or state or local law
enforcement official for the purpose of falsely obtaining a registry
50
identification card or avoiding arrest and prosecution;
(b) Fraudulent use or theft of any person's registry
identification card to acquire,. possess, produce, use, sell, distribute, or
transport marijuana, including but not limited to cards that are required to
be returned where patients are no longer diagnosed as having a debilitating
medics{ condition;
(c) Fraudulent production or counterfeiting of, or
tampering with, one or more registry identification cards; or
(d) Breach of confidentiality of information provided to or
by the state health agency.
(9) Not later than June 1, 1999, the state health agency shall
develop and make available to residents of Colorado an application form
for persons seeking to be listed on the confidential registry of patients. By
such date, the state health agency shall also enact rules of administration,
including but not limited to rules governing the establishment and
confidentiality of the registry, the verification of medical information, the
issuance and form of registry identification cards, communications with law
enforcement officials about registry identification cards that have been
suspended where a patient is no longer diagnosed as having a debilitating
si
medical condition, and the manner in which the agency may consider
adding debilitating medical conditions to the list provided in this section.
Beginning June 1, 1999, the state health agency shall accept physician or
patient initiated petitions to add debilitating medical conditions to the list
provided in this section and, after such hearing as the state health agency
.deems appropriate, shall approve or deny such petitions within one
hundred eighty days of submission. The decision to approve or deny a
petition shall b~ considered a final agency action.
(10) (a) No governmental, private, or any other health
insurance provider shall be required to be liable for any claim for
reimbursement for the medical use of marijuana.
(b) Nothing in this section shall require any employer to
accommodate the medical use of marijuana in any work place.
(11) Unless otherwise provided by this section, all provisions of
this section shall become effective upon official declaration of the vote
hereon by proclamation of the governor, pursuant to article V, section
{1)(4), and shall apply to acts or offenses committed on or after that date.
s2
APPENDIX 3
UNEMPLOYMENT COMPENSATION STATUTE
(relevant provisions)
53
COLORADO REVISED STATUTES:
§8-73-108. Benefit awards--repeal
general assembly that the division at
all
(1)(a) In the granting of benefit awards, it is the intent of the
times be guided by the principle
that unemployment insurance is for the benefit of persons unemployed
through no fault of their own; and that: each eligible individual who is
unemployed through no fault of his own shall be entitled to receive a full
award of benefits; and that every person has the right to leave any job for
any reason, but that the circumstances of his separation shall be
considered in determining the amount of benefits he may receive, and that
certain acts of individuals are the direct and proximate cause of their
unemployment, and such acts may result in such individuals receiving a
disqualification..
(5) Disqualification.
(e)Subject to the maximum reduction consistent with
federal law, and insofar as consistent-with interstate agreements, if a
separation from employment occurs for any of the following reasons, the
54
employer from whom such separation occurred shall not be charged for
benefits which are attributable to such employment and, because any
payment of benefits which are attributable to such employment out of the
fund as defined in section 8-70-103(13) shall be deemed to have an
adverse effect on such employer's account in such ;fund, no payment of
such benefits shall be made from such fund:
(VIII) Off-thejob use of not medically prescribed
intoxicating beverages or controlled substances, as defined in section 1222-303(7), C.R.S., to a degree resulting in interference with job
performance;
(IX) On-thejob use of or distribution of not medically
prescribed intoxicating beverages or controlled substances, as defined in
section 12-22-303(7), C.R.S.;
(IX.5) The presence in an individual's system,
during working hours, of not medically prescribed controlled substances, as
defined in section 12-22-303(7), C.R.S., or of a blood alcohol level at or
above 0.04 percent, or at or above an applicable lower level as set forth by
federal statute or regulation, as evidenced by a drug or alcohol test
ss
administered pursuant to a statutory or regulatory requirement or a
previously established, written drug or alcohol policy of the employer and
conducted by a medical facility or laboratory licensed or certified to conduct
such tests;
56
APPENDIX 4
CONTROLLED SUBSTANCES STATUTES
(relevant provisions)
5~
COLORADO REVISED STATUTES:
§ 12-22-303. Definitions
As used in this part 3, unless the context otherwise requires:
(7)"Controlled substance" shall have the same meaning as in
section 18-18-102(5), C.R.S.
§ 18-18-102. Definitions
As used in this article:
(5)"Controlled substance" means a drug, substance, or
immediate precursor included in schedules I through V of part 2 of this
article, including cocaine, marijuana, marijuana concentrate, any synthetic
cannabinoid, and salvia divinorum.
§ 18-18-203. Schedule 1
(1) A substance shall be added to schedule I by the general
assembly when:
(a) The substance has high potential for abuse;
58
(b)The substance has no currently accepted medical use
in treatment in the United States; and
(c)The substance lacks accepted safety for use under
medical supervision.
(2) Unless specifically excepted by Colorado or federal law or
Colorado or federal regulation or more specifically included in another
schedule, the following controlled substances are listed in schedule I:
(c) Any material, compound, mixture, or preparation
containing any quantity of the following hallucinogenic substances,
including any salts, isomers, and salts of isomers of them that are
theoretically possible within the specific chemical designation:
(XXIII) Tetrahydrocannabinols;
59
APPENDIX 5
OFFICIAL COLORADO
MEDICAL MARIJUANA STATISTICS
60
HomeNiedical !11larijuana RegistryStatistics
The Colorado Medical Marijuana Registry
Statistics
• July 2011
• Archive
Medical Marijuana Registry Program Update
(as of July 31, 2011)
In the November 2000 general election, Coloradoans passed
Amendment 20, and the Colorado Department of Public Health
and Environment(CDPHE)was tasked with implementing and
administering the Medical Marijuana Registry program. In March
of -2001, the State of Colorado Board of Health approved the
Rules and Regulations pertaining to the administration of the
program, and on June 1st, 2001, the Registry began accepting
and processing applications for Registry Identification cards.
Statistics of the registry include:
• 151,025 new patient applications have been received to date
since the registry began operating in June 2001. The total
number of patients who currently possess valid Registry ID
cards is 127,816.
• Sixty-eight percent of approved applicants are male.
• The average age of all patients is 41. Currently forty-five
up
patients are minors (under the age of 18).
• Fifty-six percent of patients reside in the Denver-metro area
(Adams, Arapahoe, Boulder, Broomfield, Denver, Douglas &
Jefferson counties), with the remainder of patients residing
in counties throughout Colorado.
• Patients on the registry represent all the debilitating conditions
covered under Amendment 20. Severe pain accounts for 94
percent of all reported conditions; muscle spasms account
for the second-most reported condition at 19 percent. Note
that percentages do not add
to 100 percent because
some patients have more than one condition.
• Sixty-six percent of patients have designated a primary caregiver (someone who has significant responsibility for
managing the care of a patient with a debilitating medical
condition).
• More than 1,100 different physicians have signed for patients in
Colorado.
Please see the tables below for a complete listing of all statistical
information.
As of October 27, 2008 all applications, renewal and changes to
the Registry must be submitted via mail and include a legible
.photo copy of the patient's Colorado Identification. Faxes and
emails are not accepted.
No general funds have been designated for this program. The
Colorado Constitution authorizes CDPHE to collect fees to cover
the costs of administering the program. Currently the fee is $90,
and is evaluated annually by CDPHE. The fee was lowered from
$110 on June 1, 2007.
Table I: Countv Information
County
Number of Patients
dams
8,927
lamosa
362
62
Percent of Patients
7%
<1
rapahoe
rchuleta
Baia
Bent
Boulder
Broomfield
Chaffee
Cheyenne
Clear Creek
Conejos
Costilla
Crowley
Custer
Delta
Denver
Dolores
Douglas
Eagle
EI Paso
Elbert
Fremont
Garfield
Gilpin
Grand
Gunnison
Hinsdale
HuerFano
Jackson
Jefferson
Kiowa
Kit Carson
La Plata
Lake
Larimer
11,413
420
58
51
11,755
1,264
683
30
526
137
162
73
106
846
19,148
81
4,171
1,397
14,828
439
1,241
1,808
451
430
575
22
210
22
14,552
19
58
1,914
288
8,204
9%
<1
<1
<1
9%
1
1
<1
<1
<1
<1
<1
<1
1
15%
<1
3%
1
12%
<1
1%
1%
<1
<1
<1
<1
<1
<1
11
<1
<1
1
<1
6%
63
Las Animas
291
Lincoln
41
Logan
242
Mesa
3,513
Mineral
15
Moffat
244
Montezuma
698
Montrose
910
Morgan
226
Otero
221
Oura
158
Park
919
Phillips
33
Pitkin
867
Prowers
101
Pueblo
2,941
Rio Blanco
87
Rio Grande
202
Routt
1,179
Saguache
267
San Juan
35
San Miguel
583
Sedgwick
22
Summit
1,456
eller
1,064
ashington
61
eld
4,686
Yuma
83
* Indicates fewer than three patients in each category
Table II: Conditions
Reported
Number of Patients
Condition
Reporting Condition
Cachexia
1,655
64
<1
<1
<1%
3°l0
<1
<1
1
1
<1
<1
<1
1
<1
1
<1
2%
<1
<1
1
<1%
<1
<1 °fo
<1
1
1
<1
4%
<1
Percent of Patients
Reporting
Condition**
1
Cancer
2,828
2%
Glaucoma
1,165
1
HIV/AIDS
-678
1
Muscle Spasms
24,828
19%
Seizures
1,819
1
Severe Pain
120,567
94%
Severe Nausea
15,503
12%
~~`Does not add to 100% as some patients report using medical
marijuana for more than one debilitating medical condition.
Table III: User Characteristics
Sex
Percent:on Registry
Average Age**
Male
68%
40
Female.
32%
42
~~ The overall average age of all patients is 41 years old.
Medical Marijuana Registry 4300 Cherry Creek Drive South
(HSVRD-MMP-A1); Denver, CO 80246-1530
[email protected]
O 2011 State of Colorado, Denver, CO
65
APPENDIX 6
BLUE BOOK — MEDICAL MARIJUANA
AMENDMENT INITIATIVE
(relevant- provisions)
66
Legislative Council of the
Colorado General Assembly
Research Publication
No. 475-0
AN ANALYSIS
OF THE
2000 STATEWIDE
BALLOT PROPOSALS
STATEWIDE ELECTION DAY IS
Tuesday, November 7, 2000
Polling places open from 7 a.m. to 7 p.m.
(Early Voting Begins October 23, 2000)
law
is
issue
any
or
law
is
on
A YES vote
any ba/!ot issue a vote IN FAVOR OF changing
cu rent
existing circumstances, and a NO vote on
ballot
a vote AGAINST.charging current
or existing
circumstances.
67
TABLE OF CONTENTS
Amendment 20 Medical Use of Marijuana ................................1
68
ANALYSES
AMENDMENT 20
MEDICAL USE OF MARIJUANA
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. For a patient unable to administer marijuana to
himself or herself, or for minors under 18, care-givers
determine the amount and frequency of use;
- allows a doctor to legally provide a seriously or chronically ill
patient with a written statement that the patient might
benefit from medical use of marijuana; and
- establishes a confidential state registry of patients and their
care-givers who are permitted to possess marijuana for
medical purposes.
Background and Provisions of the Proposal
Current Colorado and federal criminal law prohibits the
possession, distribution, and use of marijuana. The proposal
69
does not affect the federal criminal laws, but amends the
Colorado Constitution to legalize the medical.use of marijuana
for patients who have registered with the state. Qualifying
medical conditions include cancer, glaucoma, AIDS/HIV, some
neurological and movement disorders such as multiple sclerosis,
and any other condition approved by the state. A doctor's
signed statement or a copy of the patient's pertinent medical
records indicating that the patient might benefit from marijuana
is necessary for a patient to register. 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. Employers are not required to allow the medical
use of marijuana in the workplace. Marijuana may not be used
in any place open to the public, and insurance companies are
not required to reimburse a patient's claim for costs incurred
~o
through the medical use of marijuana. Finally, for a patient who
is under the age of 18 the proposal requires statements from
two doctors and written consent from any parent living in
Colorado to register the patient.
Arguments For
1)This proposal gives patients with certain debilitating medical
conditions and their medical providers one additional treatment
option. THC, the active ingredient in marijuana, has been shown
to relieve the pain and .suffering of some patients. It can be
beneficial for individuals suffering from nausea, vomiting or lack
of appetite due to chemotherapy or AIDS/HIV, pressure within
the eye due to glaucoma, and severe muscle spasms from
some neurological and movement disorders such as multiple
sclerosis.
2) For patients suffering from serious illnesses, marijuana can be
more effective than taking prescription drugs that contain
synthetic THC. Further, many drugs have side effects, but the
adverse effects of marijuana are no worse than those of some
prescription drugs used to treat the illnesses listed in the
~~
proposal.
3) Using marijuana for other than medical purposes will still be illegal
in Colorado. Legal use of marijuana will be limited to patients on
the state registry. The registry will consist only of those
individuals who have submitted written documentation from their
doctor indicating a qualifying medical condition. Registry
identification cards will be valid for one year and must be
renewed annually. Law enforcement officers will be able to
access the registry to verify that an individual who is arrested for
the possession or use of marijuana is registered. The General
Assembly is required to enact criminal penalties for fraudulent
use of the registry
Arguments Against
1) Using marijuana is not necessary to relieve nausea, increase
appetite, and alleviate pain. Many other prescription drugs,
including Marinol, which contains a synthetic version of THC,
are currently available. Further, this proposal sets a dangerous
precedent for approval and regulation of medicines by popular
vote. It circumvents the usual rigorous process by which all
~2
other medicines_ are legalized and regulated. Safe and effective
medicines should be developed through scientific and
reproducible research.
2)The proposal does not provide any legal means by which a patient
may obtain marijuana. Under state criminal law, it will still be
illegal to sell marijuana or marijuana plants to another individual,
including a patient on the state registry. Under federal criminal
law, it will continue to be illegal to sell or use marijuana for any
purpose.
3) Research shows that smoking marijuana can be addictive and has
other damaging health effects on users, such as pneumonia,
cancers, and lower birth weights. The effects of smoking
marijuana may be worse than smoking tobacco, depositing as
much as four times the tar, and carrying as much as 50 percent
more carcinogens than are in a regular cigarette. The proposal
contains no requirements for a prescription, no quality control or
testing standards, and no control over strength, dosage, or
frequency of use, such as those required for prescription drugs.
As a result, patients may use marijuana for up to one year
73
without review by a doctor. Finally, patients have no control
over the dosage of THC received through smoked marijuana
because the potency can vary form use to use, and from plant to
plant.
74