Medical marijuana attorney Lauren Davis tells why lawyer group hasn't sued to stop HB 1284
Last week, medical marijuana advocate Kathleen Chippi, who's collecting funds for a lawsuit to stop HB 1284, Colorado's main MMJ regulatory measure, criticized attorneys who'd announced their intention to sue over the bill last year but haven't done so. Why not? Lauren Davis, a lawyer in the group, offers a variety of reasons, most pertaining to divergent opinions among members.
"There were disagreements in legal analysis and legal strategy," Davis says.
There's no hint of such a schism in a May 17, 2010 press release entitled "Attorneys Announce Plan to Sue if House Bill 1284 is Approved." The document, on view in its entirety below, declares that a cadre of attorneys, including Bob Hoban, Jessica Corry, Brian Vicente, Rob Corry, Sean McAllister and Davis "will head to court should lawmakers grant final approval to a measure seeking to unconstitutionally restrict patient and caregiver rights."
But once Governor Bill Ritter signed HB 1284 into law, Davis notes, a variety of views emerged about what to do next "in terms of when would be the right time to file a lawsuit -- whether we should wait for someone to be prosecuted under the caregiver provision and challenge it as part of the defense of that suit, or whether we could bring an injunction prospectively to prevent those provisions from taking effect. There was a question of whether we would have standing, and whether we could meet the burden of a court finding irreparable harm without a prosecution having been undertaken. And because of those differences, there was never a meeting of the minds as to what the right approach would be to challenge 1284."
In addition, Davis continues, "there was a school of thought that we should sit back and wait for the legislature to correct some of the provisions that lobbyists were telling us would be changed in the next legislative session. A lot of people adopted a wait-and-see attitude, thinking that we wouldn't lose the ability to challenge down the road. And if the legislature fixed what their staff conceded off the record to lobbyists and other advocates -- that the staff knew some sections were unconstitutional -- it would be better to let them do it rather than filing a lawsuit to force them."
So... did HB 1043, the so-called MMJ clean-up bill, take care of these problems?
"Not even close," Davis acknowledges. Among the issues she mentions are the ability of municipalities to ban MMJ retail sale, the lifetime prohibition against individuals with past felony convictions from participating in the industry, and the rule requiring dispensaries to grow at least 70 percent of their product while obtaining no more than 30 percent from other sources, aka the 70-30 rule. "That's completely arbitrary," she believes.
Moreover, she goes on, "I think the caregiver provision got even worse. The constitution doesn't require a primary caregiver of a patient to register with the state. So a provision that requires the primary caregiver to register the location of the cultivation operation is highly problematic -- because you've essentially modified the constitution through a statutory requirement that should be outside the ability of the legislature."
Onetime group member Rob Corry agrees. In a post published yesterday, Corry said he would encourage Governor John Hickenlooper to veto HB 1043 in part because of this change for caregivers.
Is a suit against HB 1284 still possible?
"I don't think the window has closed," Davis allows, "but we've lost momentum, lost steam. The reason the primary caregiver provisions were so important was that, pre-1284, everybody was operating as a primary caregiver. But now, primary caregivers and center owners, employees and providers are two different routes to provide medicine, with two very separate sets of rules -- and most people are operating under the regulatory structure."
As such, entrepreneurs most financially able to fund a suit no longer have as great an incentive to do so. The result is what Davis calls "the freeloader effect. Everybody wants something for nothing. They want someone else to bear the brunt of the costs, and unfortunately, that's just not how lawsuits work in our society. They're extremely expensive, and it boggles my mind why people think attorneys who are already doing lots of pro bono work and dedicating lots of free time to educating patients, holding forums and essentially giving people free legal advice should be responsible for all the cost."
For this reason, Davis believes 1284 will likely be challenged in piecemeal fashion. Take the rule that prevents one caregiver from helping another during vacations, illnesses and the like. She predicts that "somebody will get prosecuted for assisting someone in providing medical marijuana to a patient, and they'll be charged under a complicity or conspiracy theory based on 1284. Then we would be able to challenge the legislature's ability to limit the authority of the primary caregiver to have others assist them."
But unless Chippi is able to raise the $25,000 to $50,000 needed to sue, Davis doubts that a full frontal assault on HB 1284 will be undertaken in the near future.
Look below to read the aforementioned press release.