Pubdate: Sun, 17 Jan 2016
Source: Denver Post (CO)
Copyright: 2016 The Denver Post Corp
Author: Ricardo Baca


Three of the Four Cases Filed Against Legal Pot Rely on Out-Of-State 
Funds, Support

Three of the four marijuana-centered lawsuits filed against Colorado 
officials and businesses were organized and at least partially funded 
by out-of-state anti-drug organizations and socially conservative law 
firms, a Denver Post analysis shows.

Only one lawsuit, filed by the states of Nebraska and Oklahoma, 
appears to be entirely homegrown.

For those who oppose Colorado's marijuana laws, the out-of-state 
money offers a chance to fight back against what they characterize as 
a well-heeled marijuana lobby that changed public opinion with 
misleading messages.

But supporters of the law that made the recreational use and sale of 
marijuana legal in Colorado say the money gives outsized influence to 
secretive coalitions of drug-rehab professionals, for-profit prison 
owners and others with a financial stake in keeping pot illegal.

The lawsuits, which make allegations of racketeering and claim that 
Colorado's pot laws violate the U.S. Constitution, represent the 
opposition's last-ditch effort to put the brakes on recreational 
marijuana legalization before five other states vote on the issue in November.

The lawsuits are known by plaintiff-oriented nicknames. There's the 
"sheriffs' lawsuit," the "horse ranchers' lawsuit" and the "Nebraska 
and Oklahoma suit," the latter of which was filed by the states and 
claims federal law's supremacy over state law. The fourth case, the 
"Holiday Inn lawsuit," was dismissed in December, after the defendant 
pot shop closed and two of the non-cannabis companies it did business 
with paid a $70,000 settlement.

"I don't think the general public understands who is really behind 
these cases," said Christian Sederberg, a Denver attorney who focuses 
on marijuana law. "It's critical that the people of Colorado know 
that there are out-of-state legal interests and policymakers who are 
essentially and entirely backing these cases."

Matthew Buck, an attorney for six defendants in a racketeering case 
filed on behalf of Pueblo County horse ranchers, says gathering local 
plaintiffs gives the lawsuits instant public legitimacy and legal standing.

"It's easier to pitch these lawsuits as local sheriffs getting 
together to file a lawsuit rather than saying it's East Coast, right 
wing, oftentimes evangelical organizations pumping money into these 
lawsuits to affect local politics," Buck said.

Thoughts about suing

The sheriffs' lawsuit cites the U.S. Constitution's Supremacy Clause 
to argue that because use and possession of pot remains a federal 
crime, Colorado cannot allow people to possess or use marijuana and 
cannot license stores to sell it.

Some of the involved sheriffs and county attorneys had thought about 
suing, individually and in groups, but didn't know how to fund the 
cases - until an unfamiliar attorney named Mark de Bernardo came calling.

"Obviously there was interest in (a lawsuit) like that, but figuring 
out how to fund an effort like that and how to actually find the 
resources to get it done, those are completely different things," 
said plaintiff Yuma County Sheriff Chad Day, whose Colorado county 
borders both Nebraska and Kansas. "Had Mr. de Bernardo and his firm 
not stepped up. ... "

De Bernardo, a partner in the Washington, D.C., office of Am Law 
100-ranked firm Jackson Lewis, is an authority on drug testing and 
related workplace issues. He is the founder and executive director of 
the Institute for a Drug-Free Workplace, and he also founded the 
now-defunct Foundation for Drug Education and Awareness. He has 
written 19 books, mostly on drug testing and workplace 
substance-abuse prevention, according to his bio.

"I have a presence on this issue," de Bernardo told The Post recently.

But how did that presence expand into Colorado? The talks started 
among a coalition of anti-drug colleagues that de Bernardo declined 
to identify.

"I was asked to do legal research into who would be an appropriate 
party to challenge Colorado Amendment 64 vis-a-vis standing," he said.

De Bernardo considered a number of potential plaintiffs, including a 
group of Colorado public schools keen to sue the state.

"People kept coming up with ideas," he said. "'How about this?' and 
'How about that?' "

The sheriffs and county attorneys, he said, had the best chance of 
successfully suing Colorado officials and overturning the state's 
recreational pot law.

"I'm glad that some people who disagree with the legalization of 
marijuana have stepped up and spent their money to try and affect 
that," said Mark Overman, a plaintiff and sheriff of Scotts Bluff 
County in western Nebraska. He said national legalization activists 
far outspent the opposition during the Amendment 64 campaign.

"I kept waiting, wondering, 'Where are the people on the other side 
of this?' They weren't motivated," he said, "and now some of them are."

University of Denver law professor Sam Kamin agrees with Overman on 
the anti-drug lobby's sudden motivation.

In "The Battle of the Bulge: The Surprising Last Stand Against State 
Marijuana Legalization," published last year in the Annual Review of 
American Federalism, Kamin argues that these lawsuits are the 
opposition's "last stand."

"Anti-marijuana groups are losing at the Battle of the Bulge," Kamin 
said in an interview. "With the exception of Ohio, marijuana law 
reform is generally winning and winning. ... If you have a majority 
of states and a majority of people living in states that are legal, 
that makes the federal prohibition of marijuana hard to sustain. With 
that prospect, you can see why anti-marijuana groups are turning to 
the courts."

De Bernardo said he and his colleagues - not the plaintiff sheriffs 
or county attorneys - are covering all expenses related to the 
lawsuit, by providing pro bono legal services and money contributed 
by the coalition.

De Bernardo would name only two donors: himself and his wife.

The other donors, he said, are former heads of the Drug Enforcement 
Administration and the White House's Office of National Drug Control 
Policy, "people who have been involved in the criminal justice system.

"We're not well-heeled, like the other side," de Bernardo said. "It's 
a fairly small club of national policymakers or influencers on these issues."

But Yuma County Sheriff Day identified one of the suit's funders: 
Florida-based Drug Free America Foundation, which has Republican 
presidential candidate Jeb Bush on its board and a direct link to the 
Straight Inc. chain of Drug War-era rehabilitation clinics that were 
shut down after allegations of sexual, physical and psychological 
abuse of teenage clients.

DFAF executive director Calvina Fay, a former ONDCP adviser, 
confirmed the organization's involvement to The Post from her office 
in central Florida: "We're supporting (the lawsuit) with information 
to make the case, as well as some financial support."

Fay said she couldn't name other coalition members without their 
permission, but said some live in Colorado.

"The group has come together a number of times over a period of 
several years," Fay said, "and our colleagues in Colorado, since all 
of this came to task, have begged for some kind of relief - 'What can 
the group do to help us?' - because they're very concerned about 
their communities."

Fay said she expects more lawsuits to be filed against Colorado and 
other pot-legal states, perhaps related to the use of banned 
pesticides on marijuana or to traffic fatalities involving 
marijuana-impaired drivers.

Legitimate businesses

The horse ranchers' suit and the now-dismissed Holiday Inn lawsuit 
both made claims under the Racketeer Influenced and Corrupt 
Organizations Act, a federal anti-mob statute meant to stop organized 
crime from infiltrating legitimate businesses.

In the Holiday Inn suit, a Summit County hotel owner sued a pot shop 
that hoped to open across the parking lot, as well as companies that 
it did business with, including a bank, accountant and insurer.

In the Pueblo County case, ranchers hoping to stop construction of a 
nearby cannabis cultivation facility sued Gov. John Hickenlooper, the 
Pueblo County Commission and the head of the state Department of Revenue.

Both suits included a common plaintiff: Safe Streets Alliance, a 
Washington, D.C.-based anti-drug organization chaired by James 
Wootton, a former appointee in President Ronald Reagan's Justice Department.

"You might imagine, it's not hard to find property owners in the 
state of Colorado who own property that is proximate to marijuana 
facilities and believe they've been injured," said Brian Barnes, an 
attorney with Cooper & Kirk, the Washington, D.C., law firm 
representing Safe Streets Alliance.

Like the sheriffs' lawsuit, the racketeering claims aim to stop 
recreational pot in its tracks, but to do it, they are going after 
companies doing business with legal cannabis companies.

"We're putting a bounty on the heads of anyone doing business with 
the marijuana industry," Barnes told The Associated Press last year. 
Barnes recently clerked for conservative U.S. Supreme Court Justice 
Samuel Alito.

Calls and e-mails to the owners of the Holiday Inn in Frisco went 
unreturned, and Pueblo County horse ranch owner Hope Reilly declined 
to comment. But others involved in the racketeering lawsuits argue 
that the hotel owners and ranchers were recruited by Safe Streets.

"This is being pushed and apparently funded by an anti-marijuana 
group in D.C.," said Pueblo County Commissioner Sal Pace, a defendant 
in the ranchers' lawsuit.

Court filings show the hotel owners and ranchers are members of Safe 
Streets, but Barnes would not say when he first met them or when they 
became members. He also would not say who is covering their legal expenses.

Buck, the attorney representing defendants in the ranchers' suit, 
said he's suspicious of Safe Streets' origins.

"I've spent hours researching Safe Streets, and I couldn't find 
anything on it," Buck said. "If there's a large membership group, 
where are they? I think it's a fake organization. It's a sham. It's 
created solely to file lawsuits, and if you don't disclose membership 
numbers, you can file lawsuits against anyone in any jurisdiction."

Even de Bernardo, the sheriffs' lawsuit attorney, hadn't heard of 
Safe Streets before the organization launched its lawsuit.

"Prior to this, I wasn't aware of them," he said.

Multiple e-mails to Safe Streets and Wootton went unreturned, and 
interview requests for Wootton were denied.

"We are fully aware that this is a national proxy fight," Pace said. 
"The result of these lawsuits will have implications for the entire 
state and nation. If they're successful in this lawsuit, they can 
shut down the entire industry in the entire state."
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