Medical marijuana residency rules: Jessica Corry threatens litigation if they're not changed
At this writing, an emergency hearing of the new Department of Revenue Medical Marijuana Licensing Authority is underway. And like MMJ activist Laura Kriho, attorney Jessica Corry feels the residency rules that will be up for discussion are extremely problematic -- a position spelled out in a document on view below that Corry calls "groundwork" for potential litigation.
Corry understands that the Department of Revenue can't simply rewrite HB 1284, the measure passed to regulate the medical marijuana industry in the state.
"Under Colorado administrative law, the Department of Revenue is limited in its ability to strike down the discriminatory residency provision," she concedes. "But we see today as an opportunity to fully communicate our concerns about the unconstitutional reality of any attempt to ban participation by new residents or out-of-staters."
While Kriho was unclear about whether citizen comment will be allowed at this morning's meeting, Corry says she's been assured that the public can attend, and she's hopeful individuals will be able to share their concerns. She synopsizes those identified by her and law partner Bob Hoban like so:
"The state is allowed to discriminate against out-of-state residents in very limited cases -- and if somehow the state was able to demonstrate that out-of-state investors in the medical marijuana industry were creating problems sufficient to justify discrimination, they could possibly be able to do so legally. But thus far, the state has put forth no evidence whatsoever that out-of-staters have caused any problems, and we don't believe they'll be able to provide that evidence if we move forward in litigation.
"Out-of-state investors have provided thousands of jobs, as well as lines of credit at a time when it's extremely difficult if not impossible for medical marijuana businesses to obtain conventional lending. So this provision fails not only on legal grounds, but also on public policy grounds. How can the state even begin to justify excluding market participants who have together provided one of the only bright spots for Colorado's economy in recent years."
Corry adds that "the state now estimates that there will be 150,000 applications every year for medical marijuana patients. That's a tremendous number, and if indeed the state is committed to having an open, transparent marketplace that best protects the rights of patients, the discriminatory residency requirement can only be seen as hurting patients. It limits competition and has already forced many patients to see out new caregivers."
Not that Corry is entirely down on the Department of Revenue. "They've taken what we consider to be good-faith efforts to interpret the rules ina way that's as accommodating to the constitution as possible," she allows. For example, "we see the Department of Revenue is allowing promissory notes from out-of-state investors, which is a step in the right direction. But it's certainly not enough."
She adds that "today is about laying the groundwork for litigation -- litigation we hope we don't have to pursue. But we will should the state not act in a constitutional way."
Page down to read Corry and Hoban's argument against the current residency rule: