Pubdate: Tue, 11 Oct 2011
Source: Denver Post (CO)
Copyright: 2011 The Denver Post Corp
Contact:  http://www.denverpost.com/
Details: http://www.mapinc.org/media/122
Author: John Ingold
Bookmark: http://www.mapinc.org/find?277 (Cannabis - Medicinal -  Colorado)

COLORADO SUPREME COURT COULD TAKE ON MEDICAL-MARIJUANA APPEAL

The Colorado Supreme Court may soon take up a debate that could 
fundamentally alter Colorado's medical-marijuana landscape.

The question: Does Colorado's constitution, amended by voters in 2000 
to include a medical-marijuana provision, give people a right to cannabis?

The Colorado Court of Appeals this summer said no, in a case 
involving a man fired from his job over legal medical-marijuana use. 
That man, Jason Beinor, has now asked the state Supreme Court to 
review his case.

What the court decides will have broad-reaching implications for 
medical-marijuana law.

The legality of the state's dispensary regulations, the limits the 
state puts on how many people small-time caregivers can serve, and 
the boundaries the state places on when and where people can use 
medical marijuana all could rest on the court's answer. The fate of a 
number of lawsuits challenging those laws hangs in the balance, not 
to mention the viability of dispensaries in communities that have 
banned or are considering banning the businesses.

"It's a very big question," said attorney Andrew Reid, who is 
representing Beinor in his petition to the supreme court. "It's a 
very important question."

Medical-marijuana advocates contend the state constitution creates a 
fundamental right to medical marijuana, equal to state protections of 
due process or speech. If that is the case, then it would be illegal 
for the state to infringe upon patient access to medical marijuana. 
Dispensary bans would likely be struck down, as would caregiver patient caps.

"If they rule against us, then no one has any rights, and amendments 
to the constitution don't seem to mean anything," said Kathleen 
Chippi, the leader of the Patient and Caregiver Rights Litigation 
Project, which backs Beinor's appeal and is suing to overturn 
dispensary bans. "If they rule in our favor, then we have set 
precedent nationwide."

But others, most notably the state attorney general's office, say the 
constitution merely opens up a hole in the state's criminal law to 
give an exemption to marijuana used medically. That would mean the 
state has no obligation to make sure medical-marijuana patients can 
actually obtain cannabis. Employers could fire workers who use 
marijuana. Colleges wouldn't need to accommodate students' 
medical-marijuana use.

"The plain language of Amendment 20 didn't create a right," attorney 
general spokesman Mike Saccone said, referencing the measure voters 
approved. "It created an affirmative defense."

That's the logic the Court of Appeals sided with in August. The court 
ruled that Beinor - a legal medical-marijuana patient who was fired 
from his job as a 16th Street Mall street-sweeper after testing 
positive for marijuana even though he wasn't impaired at work - 
wasn't owed unemployment benefits because he was fairly dismissed.

"[T]he constitutional amendment was not intended to create an 
unfettered right to medical use of marijuana," Appeals Court judges 
David Richman and David Furman wrote in their majority opinion.

A third judge on the court panel, Richard Gabriel, disagreed, saying 
the constitution does create a right to medical marijuana and that 
Beinor should be given unemployment benefits.

Beinor, Gabriel wrote, "was denied benefits solely because he 
exercised his constitutional right to use medical marijuana."

Reid said he leaned heavily on Gabriel's dissent when writing his 
petition asking the state Supreme Court to review the case. The court 
will likely make a decision in the next month. If the court decides 
not to review the decision, the Appeals Court's majority opinion 
stands as the final word.

Either way, medical-marijuana attorney Warren Edson doesn't think the 
case will be as far-reaching as predicted. Instead, he said the 
Appeals Court's decision might be confined only to the narrow world 
of employment law. Applying it beyond that, Edson said, would be a stretch.

"It would just be about that individual's right to use cannabis 
without their job being at risk," he said.
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MAP posted-by: Jay Bergstrom