January 6, 2011

Colorado Being Sued Over Medical Marijuana Rules

January 6, 2011
Marijuana Patient Cop

We received this from the Cannabis Therapy Institute of Colorado. Hopefully the members of the Colorado Supreme Court have their heads on straight.

Andrew B. Reid, Senior Counsel
Springer and Steinberg, P.C.
Phone: 303-861-2800

Kathleen Chippi
Patient and Caregiver Rights Litigation Project
Phone: 1-888-328-4367

Patients File Petition to Overturn Unconstitutional Laws

{Denver} — A original jurisdiction petition was filed with the Colorado Supreme Court on Wed. (1/5) asking the court to overturn large parts of laws passed by the Colorado legislature last year (HB 10-1284 and SB 10-109) because they restrict medical marijuana patient access to medicine and violate patient privacy rights guaranteed by the Colorado Constitution.

Click here to read the petition:

The petition was filed by Andrew B. Reid, senior counsel for Springer and Steinberg, P.C., a Denver law firm, on behalf of Kathleen Chippi, a Nederland caregiver and dispensary owner, and the Patient and Caregivers Rights Litigation project, an association of patients, caregivers and physicians that have been harmed by the passage of these laws.

Chippi says, “This petition was necessary to stop the state’s blatant attack on fundamental constitutional patient and caregiver rights. Coloradans need immediate clarification on rights they enjoyed from 2000 through 2009 and why some of those rights were extinguished by the state legislature in 2010. Medical marijuana patients are sick of being treated like second-class citizens. Cannabis in Colorado is a Constitutional right, just like the right to free speech, and the state has no authority to destroy those rights. I hope that the Supreme Court takes this case out of compassion for the patients, because we have found none in the state legislature, the Health Department or the Department of Revenue.”

Damien LaGoy has been Colorado’s most outspoken patient for years. Damien is concerned about the state’s new database system that will replace the formerly confidential registry information with a massive database and surveillance system and open to law enforcement and other government agencies.

Damien has been living with HIV/AIDS since 1985 and uses cannabis to treat a variety of symptoms. “We went through this 20 years ago with HIV/AIDS patients when the government decided to create a national AIDS database. People were afraid to come out and get tested because they feared their information would be made public. A lot of my friends died because they were afraid to get treatment because they didn’t want to get on the list. The same thing is happening now with medical marijuana. I don’t want to see patients die because their confidentiality is no longer protected and they are afraid to get their medicine.”

The Supreme Court has the power of original jurisdiction to hear this case and declare these laws unconstitutional on their face. This is different from its appellate jurisdiction when the Supreme Court reviews a lower court’s decision. Relief under the original jurisdiction rule is discretionary. Although the Supreme Court can decline to take this case, the plaintiffs are calling on the court to take action in this urgent manner and have compassion for the thousands of patients negatively affected by these laws statewide who need access to their medicine restored immediately.

Attorney Reid’s petition asks the Supreme Court to rule on two questions:
1) Do HB 10-1284 and SB 10-109 violate patients’ rights to their medication as secured by the Colorado Constitution?
2) Do the information disclosure provisions of HB 10-1284 violate patients’ Constitutional rights to privacy?

Attorney Reid also asks the court to overturn the “local option” provision of HB 10-1284 that allows cities and counties to ban medical marijuana distribution. Reid argues that there is neither a rational basis for this provision nor is there a compelling state interest. Reid writes:

“There is no ‘rationality’ in allowing municipalities and counties to regulate to death and ban access of patients to doctor recommended, constitutionally sanctioned, medical marijuana medication while not giving these same local governments authority to similarly regulate and ban far more potent and dangerous, if abused, substances such as pharmaceutical narcotics and alcohol.”

The petition asks the Court to rule that it is unconstitutional to give the Department of Revenue or local governments the authority to regulate
medical marijuana in any way.

Attorney Reid writes, “Nowhere in Constitution is there the slightest reference to participation by the State Department of Revenue in the regulation or administration of the medical marijuana program.” “The medical marijuana program was clearly designed in the Constitution as primarily a program for the provision of healthcare, not revenue.”

The petition also attacks HB 10-1284’s restrictions on caregivers, such as their ability to serve more than 5 patients and to make a profit off their business.

Reid writes, “The existence and ready and widespread availability of primary care givers to patients is an integral part of the scheme set out in the Colorado Constitution” for providing medicine to patients.

Reid writes that “virtually all attendants, home-visit nurses, therapists, hospice employees, and other providers of medical services to persons with debilitating conditions” serve more than 5 patients.

Reid concludes, “The restrictions undercut the scheme of the Colorado Constitution and the ready access of patients to their medication in a de facto denial of their constitutional rights under the Constitution.”

The petition also asks the court to rule restrictions on physicians in SB 10-109 are unconstitutional. SB 10-109 attempted to redefine the definition of a physician “in good standing” to restrict physicians who could recommend medical marijuana. Reid writes, “This severely restrictive legislative redefining of the constitutional phrase ‘in good standing’ has the result of disqualifying hundreds of physicians for reasons having nothing to do with the physician’s competency to recommend medical marijuana.”

“Placing such irrational restrictions on available physicians deprives qualified patients of access to their medication in contravention of the express language of the Colorado Constitution.”

Reid concludes, “The General Assembly was without any authority to legislatively rewrite provisions in the Colorado Constitution.”

HB 10-1284 VIOLATES PATIENT PRIVACY RIGHTS The petition asks the court to rule that the confidentiality and privacy provisions of the Constitution will be violated by HB 10-1284’s requirement that Medical Marijuana Centers collect patient information and share it with law enforcement.

Reid writes that this will “expose the confidential information of the hundreds of thousands of medical marijuana patients and care-givers in blatant violation of the Colorado Constitution.”

Reid continues “Only last week, a large number of confidential ‘medical marijuana registry forms with all these people’s personal information on each one of those sheets’ was found by happenstance by a passerby in a box by an alleyway trash bin behind a medical marijuana dispensary. H.B. 10-1284 required the dispensary to collect this information from patients and their care-givers.”

Reid writes, “There is an additional confidentiality concern in regards to medical marijuana because its possession and cultivation and acquisition may still be illegal under federal law although legal under state law.” He continues, “Patients who are ‘outed’ as users of medical marijuana, although legal and constitutional, risk losing their freedom, health insurance coverage, government benefits, college tuition loans and grants, employment, children, and other such harms.”

Reid asks the court to take swift action. “The constitutionally secured privacy of over 100,000 qualified medical marijuana patients and Colorado residents and citizens stands to be irreparably invaded unless there is immediate action by the Court.”

The petition concludes:
“Amendment 20 was not only approved by the citizens of Colorado but made part of the highest law of our State, its Constitution. The right of qualified medical marijuana patients to their medication to ease their suffering is now enshrined in our Constitution. Certain legislators, even a majority of them, or a majority of voters in some communities, may want to second guess medical experts and the People of their State and disagree with the limited and highly controlled use of marijuana as a physician recommended medication by fellow citizens and residents diagnosed with debilitating medication conditions. But, that does not give these ‘representatives’ nor the majorities of limited geographical areas of the State the right to veto the will of the People or deny the fundamental constitutional rights of others, anymore than the majority can silence free speech, or take one’s liberty or property or life or health without due process of law.”

“It is the duty of this Court to interpret and enforce and protect those rights. The will of the clear majority of the People of Colorado and the health and quality of life of hundreds of thousands of citizens and residents of this State suffering from debilitating and life-threatening conditions lie with this Court.”


Recent & Related Posts
Recent & Related Posts