Guest Columns

LOWE: Here’s how legislators can craft effective medical marijuana legislation

Being a Colorado legislator right now probably is harder than ever as, on top of the usual litany of matters that claim your attention, you’re really up against it with medical marijuana. Amendment 20 requires that you do something. But, you cannot do whatever you want to do. And, whatever you do will conflict with current federal law.

The existing dispensary model, primarily the result of nine years without any effective legislation, is a good thing, because now, almost everyone agrees that something must be done to get the situation under management.

But if you adopt a bill, like HB10-1284 that is in many respects of highly questionable constitutionality — and even blatantly unconstitutional in others — your enactment will spawn litigation for a very long time. Trial courts are very likely to grant injunctions preserving the status quo, meaning the dispensaries will still be with us, while the Court of Appeals and the Supreme Court sort it all out. There is little to be gained by incurring and inflicting considerable legislative and judicial brain damage only to produce practically the same result as doing nothing.

The MMJ issue is so unique that perhaps new legislation first and foremost must adhere in every respect to sound constitutional principles, common sense and intellectual honesty. Doing so is the right approach, because rational people could not object to legislation crafted primarily to uphold our Constitution itself amid very unique circumstances.

Seven Essential Guidelines

To get there, I suggest the following as key, essential underpinnings of your efforts:

• Honor the plain, ordinary meaning of the words used in Amendment 20, resolving any ambiguity to discern and effectuate the intent of the People.

• Don’t enact legislation that conflicts with or is more restrictive than the constitutional provision unless you can demonstrate good reasons tied to public health, safety and welfare.

Forget about whether MMJ is really medicine. Amendment 20 makes it medicine as a matter of law.

• View existing dispensaries as totally free research sources. Understand their business and revenue models and then improve upon them, consistent with Amendment 20 and legitimate concern for the broader public interest.

• In delegating rule-making authority to administrative agencies, be careful to avoid handing off authority to make laws that affect the substantive rights, duties, liabilities and obligations of persons.

Eliminate the “Primary Care-giver” Conundrum

Crucial to constitutionally sound legislation is to make it plain that high-volume growers and dispensaries are not — and never have been — Amendment 20 “primary caregivers” or any other kind of caregivers except, arguably, under the constitutionally invalid regulation promulgated by the Colorado Department of Public Health and Environment (CDPHE).

In the common parlance of medical care, a caregiver is someone, typically over age 18, who provides care for another. In proper context, the term generally refers to one who gives assistance to another person who is no longer able to perform the critical tasks of personal or household care necessary for everyday survival. That is the essence of the Court of Appeals decision in People v. Clendenin. And, that is the only meaning of which Amendment 20 is capable of construction by its plain language. Importantly, the interpretations given by the courts to the constitution are incorporated in the constitution itself and are beyond the power of the General Assembly to change. People v. Dist. Court, 165 Colo. 253, 260, 439 P.2d 741, 745 (1968). Thus, it makes sense to conform legislation to the rule of Clendenin regarding “primary care-givers.”

The MMJ advocates have succeeded in deluding themselves, a few trial judges and too many governmental officials into believing that commercial growers and dispensaries are “primary care-givers.” Hence, such illogical trial court decisions as that rendered by Judge Cross in CannaMart v. City of Centennial, and the ambiguity in Denver’s new regulation that seems to require that dispensaries be “primary caregivers” to qualify for licensure.

This is critical because by allowing dispensaries to continue to masquerade as primary caregivers, we are implicitly conferring upon persons acting outside the letter of the law constitutional status and, thus, arguably affording them the exceptions and affirmative defenses provided by Amendment 20 and C.R.S. § 18-18-406.3(1)(b).

HB10-1284, Rep. Tom Massey’s bill, almost gets it right by defining “primary caregiver” to be a “natural person.” However, it then leaves it to CDPHE to define “what constitutes ‘significant responsibility for managing the well-being of a patient’ …” That’s a problem, because it is substantive lawmaking, which is your job.

Strive to correct the misguided popular lexicon so that all concerned Coloradans know with certainty that “primary caregiver” means primary caregiver. A simple way to look at it is this: If a person would not be a primary caregiver but for Amendment 20, then that person cannot be a primary caregiver solely on account of Amendment 20.

An immediate result of such cognizance also would be to obviate the rather inane debate over how many patients a “primary caregiver” may serve, because the provision of marijuana should be merely incidental to all other necessary services.

In the future I will address the need to fashion a commercially viable MMJ supply chain that includes licensed and regulated growers, manufacturers of MMJ consumables, and retail outlets (dispensaries toned down), all of whom would be supported scientifically by both private and public laboratories and research institutions.

For now, I invite you to take a fresh, critical look at the pending legislation in light of the principles I have outlined.

Horace A. Lowe is a senior attorney with Webb & Schtul, LLC. He is a former Colorado Court of Appeals clerk and can be reached at Horace@webbschtul.com.