patient caregiver rights litigation project medical marijuana lawsuit
TRANSCRIPT
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DISTRICT COURT, CITY AND COUNTY OF
DENVER, COLORADO
1437 Bannock Street, Room 431
Denver, Colorado 80202
_______________________________________________________________________________
PATIENT CAREGIVER RIGHTS LITIGATION
PROJECT, COLORADO PATIENTS ALLIANCE,
ROCKY MOUNTAIN CAREGIVERS COOPERATIVE,
GREENFAITH MINISTRY, KATHLEEN CHIPPI, and
DAMIEN LaGOY,
Plaintiffs,
v.
GENERAL ASSEMBLY OF THE STATE OF
COLORADO, STATE OF COLORADO, JOHN
HICKENLOOPER, Governor of the State of Colorado,
ROXY HUBER, Executive Director of the Colorado
Department of Revenue, and MARTHA E. RUDOLPH,
Executive Director of the Colorado Department of Public
Health and Environment,
Defendants.
_____________________________________
Attorney for Plaintiffs:
Name: Andrew B. ReidAddress: Springer and Steinberg, P.C.
1600 Broadway, Suite 1200
Denver, Colorado 80202
Phone Number: (303) 861-2800FAX Number: (303) 832-7116
E-mail: [email protected]
Atty. Reg. No.: 25116
COURT USE ONLY
_______________________
Case No.: 2011-CV- _____
Div.: ____
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COMPLAINT FOR DECLARATORY JUDGMENT
AND INJUNCTION PURSUANT TO C.R.C.P. 57 AND 65
PLAINTIFFS, Patient Caregiver Rights Litigation Project, Colorado
Patients Alliance, Rocky Mountain Caregivers Cooperative, Greenfaith Ministry,
Kathleen Chippi, and Damien LaGoy, by and through their counsel, Andrew B.
Reid of the law firm of Springer and Steinberg, P.C., hereby allege and avers the
following as their Complaint for Declaratory Judgment and Injunction Pursuant to
C.R.C.P. 57 and 65 against the Defendant General Assembly of the State of
Colorado, and for Declaratory Judgment and Injunction Pursuant to C.R.C.P. 57
and 65 against the Defendant State of Colorado and all of its subdivisions, the
Defendant John Hickenlooper as the Governor of the State of Colorado, the
Defendant Roxy Huber as the Executive Director of the Colorado Department of
Revenue, and the Defendant Martha E. Rudolph as the Executive Director of the
Colorado Department of Public Health and Environment.
I. PARTIES, JURISDICTION, AND VENUE
1. Plaintiff Patient Caregiver Rights Litigation Project (PCRLP) is a
group of registered medical marijuana patients, primary care-givers, and
physicians, and others associated with the provision of medical marijuana
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medication to qualifying patients and primary care-givers from Colorado having as
its purpose the reformation of the medical marijuana laws in Colorado.
2. Plaintiff Colorado Patients' Alliance (CPA) is a non-profit
organization working for the rights of medical marijuana patients and caregivers in
Colorado. Members include a broad base of patients, caregivers, medical marijuana
centers, other organizations, and companies that believe that a responsible and
constitutional approach to the regulation of medical marijuana benefit both
patients, caregivers and the medical marijuana industry.
3. Plaintiff Rocky Mountain Caregivers Cooperative (RMCC) is a
private legal cannabis patient collective, which is over eight years old and
maintains relationships with over 1,000 qualifying medical marijuana patients
throughout Colorado. Many RMCC patients lost their caregivers when the limits in
HB 10-1284 were passed.
4. Plaintiff Greenfaith Ministry is a compassionate care and spiritual
church located in Northern Colorado and led by Rev. Brandon Baker. Rev. Baker
was the caregiver for over 20 low income and indigent qualifying medical
marijuana patients before the passage of HB 10-1284, when he was forced to give
up almost all of his patients. In addition to being forced to abandon its former
patients, the Ministry has been faced with increasing demand from more patients
who have lost their caregivers or who have had medical marijuana banned in their
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community.
5. Plaintiff Kathleen Chippi (Chippi) is a resident of Nederland,
Colorado, and a PCRLP founding member. She is a qualifying medical marijuana
patient and, until the enactment of the medical marijuana legislation1, operated a
medical marijuana dispensary in Nederland with a state-issued retail sales tax
license for medical marijuana. She was also a primary care-giver for numerous
patients. Upon the resolution of the issues raised in this petition, it is Ms. Chippis
intent to reopen her dispensary and continue her caregiver services.
6. Plaintiff Damien LaGoy is an HIV/AIDS activist and survivor and
qualifying medical marijuana patient. He has been living with HIV/AIDS since
1985. He uses cannabis to help keep his HIV/AIDS medicines down and to help
stimulate his appetite so he can maintain a healthy weight. Damien is concerned
about the state's new database system that will replace the formerly confidential
registry information with a database and surveillance system that will be open to
law enforcement and other government agencies. Damien is also concerned about
1House Bill 10-1284 (2010); Senate Bill 10-109 (2010); and House Bill 11-1043
(2011), codified in a number of different sections of the Colorado Code. To avoid
confusion, this legislation will be referred to in this petition collectively as the
medical marijuana legislation.
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the possible theft of his information by other criminal elements, who may use the
information to harm him.
7. Barbara M. is a member of the PCRLP is a cannabis patient.
Barbara M. has been disabled since January 1988. Her primary diagnosis
is hronic Pain, Degenerative Disc Disease, Cervical & Lumbar Spine with
radicalopathy L4-S1 & L3-L4, Fx & deformed L Pelvis, Fx T11, L & R
Shoulder Tendenitis, Carpal Tunnel Syndrome, arthritis in both knees,
and osteopenia with recent sprained ankle and small bone fractures.
Barbara M. lives in a rural location and cannot find a caregiver, due to
the restrictions on caregivers in HB 10-1284.
8. Another PCRLP member is Lannette F., a registered medical
marijuana patient living in Federal Heights, Colorado (Adams County). She is
typical of many thousands of medical marijuana patients in Colorado. Her
debilitating medical condition, diagnosed as severe pain due to fibromyalgia,
diabetic neuropathy, and myofacial trigger points, causes her to be home bound.
She is also unable to cultivate her own medication and therefore has to employ
care-givers in order to access her medication. Because of her condition, she
arranged for her medication to be delivered to her by her care-givers. Due to the
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medical marijuana legislation, her care-givers recently had to close their business2.
On November 2, 2010, pursuant to the medical marijuana legislation, Federal
Heights where she resides voted to ban all medical marijuana dispensing,
cultivation, and medication manufacturing businesses. She now has to look
outside her own city for a new care-giver and source for the delivery of her
medication.
9. PCRLP member Kendra C. is a 20-year old student at the University
of Colorado and is a qualified medical marijuana patient who suffers from
fibromyalgia. Under H.B. 10-1284, due to her age she is not permitted to enter any
medical marijuana dispensary and must depend upon care-givers for her
medication. However, the legislations restrictions on care-givers (limiting care-
2
Since the passage of the medical marijuana legislation, only a fraction of the
medical marijuana related businesses in some communities have continued in
business due to its broad extension of the Colorado Department of Revenue into
the business records and affairs of these businesses, raising significant issues under
Article II, 7, 16, 18 and 25 of the Colorado Constitution and the Fourth, Fifth,
and Fourteen Amendments of the United States Constitution in addition to those
under Amendment 20. See, e.g., Daily Camera, Boulder medical marijuana shops
struggle with laws (11/06,/2010), http://www.dailycamera.com/ ci_16544716.
http://www.dailycamera.com/http://www.dailycamera.com/ -
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givers to no more than 3 patients) caused her care-giver, who was 1 patient over
the statutory limit, to drop her depriving her of her medication. Ms. C. testified
before the State Legislature on the medical marijuana legislation3.
10. PCRLP member Gary I., a qualified medical marijuana patient
resident of Golden, Colorado, suffers from crushed vertebrae in his neck,
compression factures in his lower back, and nausea from chemotherapy for his
liver. Following the passage of the medical marijuana legislation, its restrictions
on care-givers forced his care-giver out of business.
11. PCRLP member John E. is a 50-year old qualified medical marijuana
patient living in Larimer County who suffers from degenerative disc disease,
redicalopothy, two herniated discs in his lower back, failed back surgery, and
severe insomnia due to chronic pain and discomfort. Use of medical marijuana for
pain management has enabled him to cut down on his prescription of morphine, a
far more potent and highly addictive narcotic.
12. PCRLP member Scott S. is a qualified medical marijuana patient
living in unincorporated Adams County from suffering severe spinal stenosis,
3http://www.leg.state.co.us/Clics/clics2010a/commsumm.nsf/
b4a3962433b52fa787256e5f00670a71/b91b213837dcc0c0872577190069c4be?
OpenDocument.
http://www.leg.state.co.us/Clics/clics2010a/commsumm.nsf/%20b4a3962433b52fa787256e5f00670a71/b91b213837dcc0c0872577190069c4be?%20OpenDocumenthttp://www.leg.state.co.us/Clics/clics2010a/commsumm.nsf/%20b4a3962433b52fa787256e5f00670a71/b91b213837dcc0c0872577190069c4be?%20OpenDocumenthttp://www.leg.state.co.us/Clics/clics2010a/commsumm.nsf/%20b4a3962433b52fa787256e5f00670a71/b91b213837dcc0c0872577190069c4be?%20OpenDocumenthttp://www.leg.state.co.us/Clics/clics2010a/commsumm.nsf/%20b4a3962433b52fa787256e5f00670a71/b91b213837dcc0c0872577190069c4be?%20OpenDocumenthttp://www.leg.state.co.us/Clics/clics2010a/commsumm.nsf/%20b4a3962433b52fa787256e5f00670a71/b91b213837dcc0c0872577190069c4be?%20OpenDocumenthttp://www.leg.state.co.us/Clics/clics2010a/commsumm.nsf/%20b4a3962433b52fa787256e5f00670a71/b91b213837dcc0c0872577190069c4be?%20OpenDocument -
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nerve and muscle spasms, degenerative disc disease, radiculopathy in cervical and
lumbar regions as well as flare ups with sciatica. His wife is his care-giver. Scott
S. was a care-giver for another patient but had to cease following the passage of
the medical marijuana legislation because it bars patients with care-givers from
serving as care-givers for other patients.
13. PCRLP member C. M. is a 16-year-old high school student4
and
resident of Colorado Springs, El Paso County, Colorado, and a qualifying medical
marijuana patient. He was diagnosed with myoclonic diaphragmatic flutter which
was not sufficiently controlled by non-marijuana medication to physically allow
him to attend school. Upon his doctors recommendations of medical marijuana he
was finally able to return to school after an absence due to his disability of
approximately one year. However, his high school pursuant to the legislation at
issue here, specifically C.R.S. 25-1.5-106(12)(b)(IV), after allowing him back
into school, first refused to allow him to receive his medication from the high
school nurse and then refused to allow him to attend school while on his
medication, even if he received it off school grounds.
14. PCRLP member Nick L. is a qualified medical marijuana patient and
care-giver. He was associated with a medical marijuana dispensary in Loveland,
4He is represented herein by his next friend and legal guardian.
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Colorado, until the city voted in November, 2010, to ban medical marijuana
businesses pursuant to the medical marijuana legislation.
15. PCRLP member Jason D. owns a medical marijuana products
manufacturing business in unincorporated Mesa County, Colorado, which supplied
free medicine to terminally ill patients. PCRLP members Randy and Suzanne S.
own a medical marijuana dispensary in unincorporated Mesa County, Colorado.
Their businesses ceased operation in November, 2010, following Mesa Countys
vote to ban of medical marijuana businesses pursuant to the medical marijuana
legislation leaving their patients and care-givers without access to their medication.
16. Defendant General Assembly of the State of Colorado is the
legislative body of the State of Colorado having authority and responsibility for
drafting and enacting legislation, statutes, and laws of the State of Colorado
pursuant to and in compliance with the Constitution of Colorado. The Sixth-
Seventh General Assembly drafted and enacted the legislation at issue herein,
House Bill 10-1284 (H.B. 10-1284), Senate Bill 10-109 (S.B. 10-109), and
House Bill 11-1043 (H.B. 11-1043).
17. Defendant State of Colorado is the governing entity of the People of
Colorado created by and acting pursuant to, and limited by, the Constitution of
Colorado. It acts directly by its General Assembly and Governor and indirectly
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through its subdivisions, including the various counties and municipalities of
Colorado.
18. Defendant John Hickenlooper is sued individually and in his official
capacity as the Governor of the State of Colorado. Pursuant to the Colorado
Constitution, the Governor is authorized and responsible for signing, executing,
and enforcing legislation enacted by the General Assembly. The Governor, by his
predecessor, signed and thereby enacted into law the legislation at issue herein,
H.B. 10-1284, S.B. 10-109, and H.B. 10-1043. As Governor, Defendant
Hickenlooper is further engaged in the implementation and enforcement of said
challenged legislation by regulation and otherwise through the agencies and
officials under his authority, including but not limited to the Colorado Department
of Public Health and Environment and the Colorado Department of Revenue.
19. Defendant Roxy Huber is sued individually and in her official
capacity as the Executive Director and chief executive officer of the Colorado
Department of Revenue who was charged by the Colorado General Assembly with
the implementation of the medical marijuana legislation.
20. Defendant Martha E. Rudolph is sued individually and in her official
capacity as the Executive Director and chief executive officer of the Colorado
Department of Public Health and Environment (CDPHE) who was charged by
the Colorado General Assembly with the implementation of S.B. 10-109. The
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CDPHE is the state health agency designated by the Governor to implement and
administer the medical marijuana program, including the confidential medical
marijuana patient registry, under the Colorado Constitution.
21. Jurisdiction arises in this Court pursuant to C.R.S. 13-51-101, et. seq.
(2010) and C.R.C.P. 57 and 65. A declaratory judgment in this case would
terminate the extreme and widespread uncertainty or controversy giving rise to this
proceeding. An injunction would stop the extreme and widespread harm and
jeopardy resulting from the challenged legislation to the Plaintiffs and hundreds of
thousands of citizens and residents of Colorado suffering from debilitating and life-
threatening medical conditions.
22. Venue is proper in this Court pursuant to C.R.C.P. 98(c).
II. FACTUAL BACKGROUND AND GENERAL ALLEGATIONS
A. The Medical Marijuana Guarantees of the Colorado Constitution
23. On November 7, 2000, the People of Colorado acting by
approximately one million Colorado voters, including the adult Plaintiffs and
PCRLP members, approved Amendment 20 as an initiated constitutional
amendment. Colorado Constitution, Art.18, 14 (Appendix 1). Sixteen states and
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the District of Columbia have enacted laws legalizing the use of medical marijuana
and legislation is pending in many more states.
24. Amendment 20 was a compassionate measure designed to address the
compelling medical need for improvement of the quality of life, and often the
saving and extension of life, of hundreds of thousands of Colorado citizens and
residents with debilitating medical conditions. It was a medical need unmet by any
other medication and subject to the expert diagnosis and recommendation by
Colorado physicians as the appropriate medication. So significant is this right that
even prior to the Amendment a patients access to life-saving medication has been
viewed as a medical necessity in defense to criminal charges and as a human
right under international law.
25. Amendment 20, now Section 14 of Article 18 of the Colorado
Constitution, guarantees patients diagnosed by physicians as having a debilitating
medical condition, and their primary care-givers, a constitutional right to engage in
the use of marijuana for medical purposes. Id. The medical marijuana provisions
of the Colorado Constitution secure individual constitutional rights available to all
citizens and residents statewide.
26. Use under the Colorado Constitution includes the acquisition,
possession, production, use, and transportation of marijuana and paraphernalia
related to the administration of marijuana. Id. Read consistent with Article 18,
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Section 14(2)(d) of the Colorado Constitution, this definition also includes the
manufacture, sale, distribution, and dispensing of medical marijuana.
27. Recognizing that many patients may need or desire assistance in the
use of medical marijuana, the Colorado Constitution also authorizes patients to
employ primary care-givers to assist them. Id.
28. Primary care-givers are defined as persons having significant
responsibility for managing the well-being of a patient. Id. at 14(1)(f).
29. Section 14 constitutionally further excepts the medical use of
marijuana from Colorados criminal laws governing the acquisition, possession,
manufacture, production, use, sale, distribution, dispensing, or transportation of
marijuana and provides medical marijuana patients and care-givers an affirmative
defense to arrest and prosecution. Id. at 14(2)(a) and (b).
30. As additional protection for both medical marijuana patients and care-
givers and to encourage participation by those who might benefit from the
medication, the Colorado Constitution established a confidential registry under
the state health agency with the issuance of state identification cards to verify if
necessary to law enforcement officials that the patient or care-giver is lawfully
using marijuana as medication. Id. at 14(3).22. 23. The state health agency is
tasked with screening patient and care-giver applicants for the registry, issuing
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registry ID cards, collecting fees, and issuing rules of administration of the
registry. Id. at 14(3), (9); Appendix 3.
31. The Colorado Constitution further provides for strict confidentiality of
medical marijuana patient and care-giver information. It expressly forbids
disclosure of any such information to any other agency other than the state health
agency, except to law enforcement agencies and, even then, solely for the
purpose of establishing the patients or care-givers status as a registered medical
marijuana user. Id. at 14(3)(a).
32. Participation in the registry is optional. A qualifying patient or care-
giver is not required to register or obtain an identification card to have
constitutional protection or to assert the affirmative defense to any criminal
prosecution. Id. at 14(2)(a). The Constitutions intent for the broadest ready
access of qualifying patients to their medication is evidenced by the fact that it
does not require registration of either the patient or the care-giver in order to assert
the affirmative defense. Id.
33. These provisions of the Colorado Constitution established a state
regulatory scheme for qualifying patient access to medical marijuana administered
by the state health agency designated by the Governor. Id. at 14(1)(g),
14(2)(b), and 14(3).
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34. The Constitution directed the state health agency to enact rules of
administration. Id. at 14(9).
35. Pursuant to the Colorado Constitution, the Governor designated the
CDPHE as the state health agency having the sole constitutional authority and
responsibility for the implementation and administration of the Colorado medical
marijuana program.
36. As of June 30, 2010, less than 10 years later, the CDPHE reported that
it had issued approximately 100,000 valid registry ID cards to patients in every
county in Colorado. Sixty-six percent of the patients designated a primary care-
giver. More than 1,100 different physicians have signed for the patients. Many,
many more patients with qualifying medical conditions and physician
recommendations are also using the medication, but have chosen not to register.
B. Medical Marijuana Implementing Legislation
37. The Colorado Constitution further directed the State legislature to
enact such legislation as may be necessary for implementation of [the
Amendment]. Colorado Constitution, Article 18, Section 14(8).
38. Under the Constitution, the General Assembly was tasked with
implement[ing] rules to ensure patients suffering from legitimate debilitating
medical conditions are able to safely gain access to medical marijuana .
Colorado Constitution, Article 18, Section 14(2)(d). On June 7, 2010, the
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Governor signed into law House Bill 10-1284 and Senate Bill 10-109, enacted by
the General Assembly to implement Article 18, Section 14 of the Colorado
Constitution. H.B. 10-1284 (2010) (the Colorado Medical Marijuana Code, C.R.S.
12-43.3-101 et. seq. and the Medical Marijuana Program, C.R.S. 25-1.5-106);
S.B. 10-109 (2010). Numerous issues arose regarding the new legislation. The
General Assembly attempted to address some of these issues through the
enactment of revisions, House Bill 11-1043 (the Medical Marijuana Clean-up
Bill), which were signed into law by the Governor in June, 2011, with an effective
date of July 1, 2011.
39. This legislation was supposed to address the practical anomaly of
having a constitutional right of access to medication but no infrastructure to
provide it. The focus of the implementing legislation and the statutory
authorization and establishment of medical marijuana businesses was thus
constitutionally required to be on making medical marijuana readily available to
patients suffering from debilitating medical conditions.
40. The General Assembly created a regulatory business scheme of state
licensed medical marijuana cultivators, product manufacturers, and dispensers of
medical marijuana purportedly to make the constitutionally secured medication
readily available to qualifying patients and care-givers. C.R.S. 25-1.5-106(1)(a);
C.R.S. 12-43.3-101 et. seq.
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Unconstitutional Restraints
on Patient Access to Medication
41. However, in addition to establishing the state scheme for making
medical marijuana available to patients, the General Assembly added provisions
which defeated its very purpose of guaranteeing ready access to the medication by
authorizing local authorities, counties, cities and other municipalities, to each issue
their own regulatory schemes of local licenses and regulations. C.R.S. 12-43.3-
103(2)(a), 12-43.3-301, and 12-43.3-310. In a further unconstitutional restraint on
access to medication, the General Assembly gave local authorities the power to
prohibit altogether state licensed medical marijuana cultivators, product
manufacturers, and dispensers from their counties and communities. C.R.S. 12-
43.3-103(2)(a), 12-43.3-106 (Local Option), 12-43.3-310(1).
42. Within weeks of the enactment of H.B. 10-1284, while many
Colorado communities and counties approved of these medical marijuana
businesses, a number of communities banned medical marijuana cultivators,
product manufacturers, and dispensers, including the municipalities of Bayfield,
Broomfield, Castle Rock, Cedaredge, Durango, Grand Junction, Greeley, Hayden,
Kremmling, Superior, Vail, and Westminster, and the county of Las Animas.
Many other municipalities and counties put bans on their November 2010, ballots.
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43. On November 2, 2010, the municipalities of Akron, Antonito, Aurora,
Broomfield, Castle Pines North, DeBeque, Dinosaur, Elizabeth, Federal Heights,
Fountain, Granby, Hillrose, Hot Sulfur Springs, Jamestown, La Junta, Lake City,
Lone Tree, Loveland, Olathe, Otis, Ouray, Paonia, Ramah, Sugar City, and
Windsor, and the counties of Broomfield, Conejos, Custer, Douglas, Las Animas,
Mesa, Moffat, Montrose, Otero, and Washington approved bans of medical
marijuana cultivators, product manufacturers, and dispensers.
44. In December, 2010, Adams County became the 26th county in
Colorado to ban medical marijuana businesses in their unincorporated areas. At
least 47 municipalities have also banned the businesses.
45. These numerous bans threaten to bar access to medical marijuana
medication to broad, checker-boarded, swaths of the State and tens of thousands of
registered Colorado patients and their care-givers having constitutionally secured
patient access to doctor recommended medication. These bans effectively prevent
the delivery of this medication by dispensaries, cultivators, or manufacturers to
patients in those municipalities and counties, and the operation of medical
marijuana centers by patients and their care-givers.
46. Many patients like Lannette F., who are very seriously ill or bed
ridden and due to their medical conditions unable travel to a provider in a county
or municipality that has not banned medical marijuana dispensaries, and now
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cannot even have their medication delivered to them, are effectively and
unconstitutionally denied access to their medication. They are condemned by
these unconstitutional bans on their access to medication to suffer unnecessarily
and even die prematurely.
47. Nowhere in the Constitution is there any mention of a local option
or a local licensing authority or of any authorization for local regulations and
standards for, or the banning outright of, the medical use of marijuana, including
the acquisition, possession, manufacture, production, use, sale, distribution,
dispensing, or transportation of the medication. There are no constitutional
provisions authorizing any municipality or county to interfere with patient and
care-giver access to medication by banning outright or regulating to death activities
associated with the acquisition, possession, manufacture, production, use, sale,
distribution, dispensing, or transportation of marijuana of medical marijuana. The
Colorado Constitutions express granting of regulatory authority solely to the
state health agency coupled with its exclusion of any provisions giving
regulatory authority to either the Department of Revenue or local governments
over medical marijuana clearly indicate the intent in the Constitution to limit all
medical marijuana regulation to the state heath agency under a statewide scheme.
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48. Local governments are not empowered to wholly ban within its
boundaries a constitutionally permitted use or industry such as medical marijuana
businesses.
49. The medical marijuana legislation bars a qualifying medical marijuana
patient or their care-givers from changing medical marijuana medication providers
for 120 days. These requirements unconstitutionally interfere with or deny
qualifying medical marijuana patients and their care-givers to access to marijuana
as medication.
50. The medical marijuana legislation bars, for life, any person from
having a medical marijuana license who has been convicted of a felony regarding
the possession, distribution, manufacturing, cultivation, or use of a controlled
substance. C.R.S. 12-43.3-307(1). This restriction is unconstitutionally broad and
deprives or interferes with the constitutional right of access of qualifying patients
and caregivers to medical marijuana as medication.
Care-Giver Limitations As Unconstitutional Restraints
on Patient Access to Medication
51. Contrary to the stated purpose of the legislation, the medical
marijuana legislation also unconstitutionally interferes with a patients access to
medication through limitations placed on primary care-givers.
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52. The Colorado Constitution defines both patient and primary care-
giver. Colorado Constitution, Article 18, 14(d) and (f). Other than being 18
years of age, the sole restriction under the constitutional definition of primary
care-giver is that the care-giver has significant responsibility for managing the
well-being of a patient who has a debilitating medical condition. Id. at 14(f).
53. Without authorization from and contrary to the Colorado Constitution,
as well as the due process rights of medical marijuana patients and care-givers, the
legislation arbitrarily limits each care-giver to 5 patients, bars patients with a care-
giver from acting as a care-giver for another patient, restricts each patient to having
only one care-giver, forbids care-givers from the common cultivation of medical
marijuana, and forbids care-givers from charging more than the cost of cultivating
or purchasing the medication. C.R.S. 25-1.5-106(5)(b), (6)(a), (6)(b), (6)(c),
(6)(d). Nowhere in the Constitution does it impose or authorize these limits.
54. The medical marijuana legislation requires that all qualifying medical
marijuana patients and care-givers be registered with the State to be able to
purchase medical marijuana from a licensed medical marijuana business and to
have the registry identification card in their possession at all times. C.R.S. 12-
43.3-402(5), 25-1.5-106(11). As registration is optional under the Constitution,
these provisions unconstitutionally interfere with or deny the right of qualifying
medical marijuana patients and their care-givers to marijuana as medication.
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55. Notably, PCRLP member Lannette F. had to rely on several care-
givers for her care and a reliable supply of her medication. Prior to H.B. 10-1284,
Plaintiff Kathleen Chippi provided adequate care for many more than 5 patients
as do virtually all attendants, home-visit nurses, therapists, hospice employees, and
other providers of medical services to persons with debilitating conditions.
56. These statutory provision forced PCRLP member Kendra C.s care-
giver to drop her as a patient to come within the restriction.
57. PCRLP member Scott C. also had to cease acting as a care-giver for
another patient under the legislations bar on patients with care-givers acting as
care-givers.
58. 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 the provision of medical marijuana to qualifying patients with
debilitating medical conditions. Many patients are infirm, immobile, lack
transportation, are too young to get their medication on their own, such as PCRLP
member Kendra C., or lack the ability or desire to cultivate their own medication
and need a primary care giver to perform those services for them as many of the
Plaintiffs were doing prior to the medical marijuana legislation.
59. As with nurses and other in-home care givers, it is a service that
requires reasonable compensation and income to make it worthwhile. By limiting
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only to the State health agency and to law enforcement for the sole purpose of
verifying registration of the patient or care-giver as a medical marijuana user.
Colorado Constitution, Article 18, 14(3)(a) and 14(9).
63. Contrary to the Colorado Constitution which expressly and strictly
restricts medical marijuana patient and care-giver information to the CDPHE, the
state health agency, and limited disclosures of registry information to law
enforcement agencies under certain, very limited circumstances, the House Bill
provides for the sharing of patient / care-giver information with a state licensing
authority and a local licensing authority. Under the legislation, the state
licensing authority is the executive or deputy director of the Colorado Department
of Revenue. C.R.S. 12-43.3-201(1). Director of the Department of Revenue is
authorized to conduct searches and investigations and even seizures at will of the
records and contract and sales information of cultivators, product manufacturers, or
dispensers of medical marijuana. C.R.S. 12-43.3-202(2)(a)(IV) and (XVIII),
12-43.3-701, 12-43.3-901(4)(e).
64. The Department of Revenues Medical Marijuana Enforcement
Division has issued approximately 100 pages of final regulations pursuant to the
medical marijuana legislation. Chapter 4 of the proposed regulations authorizes
broad Departmental inspections, searches, and seizures of virtually anything
connected with the cultivation, manufacture, or dispensing of medical marijuana
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including constitutionally protected confidential records of patient and care-giver
identifying information. Chapter 10 requires video surveillance of patients and
care-givers who obtain medication from medical marijuana centers. No regulatory
provisions are made to preserve the confidentiality of such information and these
proposed regulatory provisions are in violation of the privacy provisions contained
in the Colorado Constitution. Colorado Constitution, Article 18, 14(3)(a) and
14(9).
65. Injecting the Department of Revenue and the local licensing
authority into the regulation of the medical marijuana program not only breaches
the strict confidentiality provision but is contrary to the regulatory scheme
established in the Constitution of having the program administered solely by the
state health agency as a health program. 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.
66. Medical marijuana patients also have privacy interests in regards to
their communications with their physicians and to their healthcare records
protected under the Colorado Constitution, statute, and common law. Colorado
Constitution, Article II, Sections 7 and 25; C.R.S. 13-90-107(1)(d). No statutory
or other exception to the privacy right and privilege exists in Colorado at least
until the passage of the medical marijuana legislation.
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67. The medical marijuana legislation gives the Department of Revenue,
and law enforcement agencies, under the medical marijuana legislation broad,
virtually unfettered, authority to invade the privacy of medical marijuana patients.
This not only contravenes the explicit privacy provisions of the Colorado
Constitution, but also discourages qualified patients and citizens, and their
caregivers, from asserting their constitutional right to their medication and denies
them an effective, possibly life-saving, remedy for their debilitating conditions,
and, further, places the success of the program itself at risk. The General
Assembly was without any constitutional authority for its promulgation. And, it is
in direct conflict with the confidentiality provision of the Colorado Constitution.
Qualifying Medical Marijuana Patients Are and Will Be
Severely Harmed by the Challenged Legislation
68. The large number of municipal and county bans being enacted across
the State and the draconian restrictions on care-givers under the medical marijuana
legislation are already impacting the scheme of ready access to medication
established by the Colorado Constitution for medical marijuana patients. The
thousands upon thousands of qualifying patients who reside in these almost 50
municipalities and 20 counties covering a large part of the State are or will be
effectively deprived of ready or all access to their medication. Many will face the
hard choice of going without or of obtaining their medication in violation of the
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medical marijuana legislation and running the risk of arrest and loss of their legal
right to use the medication.
69. A great many other patients, like PCRLP members Lannette F.,
Kendra C., Gary I., and Scott S., have already lost or face the loss of their primary
care-givers or ready access to their medication due to the severe restrictions placed
by the legislation. For those patients without relatives who can act as primary care
givers, the restrictions make the services of care-givers no longer profitable and
there is no longer a sufficient incentive for the provision of such important services
central to the health and well-being of the patients. The patients, who must depend
on care-givers for their medication, cannot and should not wait for years under
unconstitutional legislation for a remedy that will make care-givers and their
medication reasonably available to them.
70. Challenging these great many separate local ordinances banning or
regulating to death medical marijuana businesses in separate legal actions is
unnecessarily burdensome and expensive to both the court and the petitioning
patients. Indeed, it is doubly so to the patients given that these parties are by
nature suffering debilitating and sometimes life-threatening illnesses, including
those formerly served by PCRLP members Kathleen Chippi, Jason D., Nick L.,
and Randy and Suzanne S. Litigation takes much time, often years before final
decisions are rendered on appeal. These already suffering patients cannot wait.
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Their illness will not grant these many thousands of patients any reprieve while
they engage in protracted litigation.
71. The implementation of this program by the Colorado Department of
Revenue under the medical marijuana legislation will also expose the confidential
information of the hundreds of thousands of medical marijuana patients and care-
givers in blatant violation of the Colorado Constitution. 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.
72. For example, in December, 2010, a large number of confidential
medical marijuana registry forms with all these peoples 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. The discarded
dispensary records contained patient names, addresses, and telephone numbers,
social security numbers, dates of birth, and the personal and medical information
of dozens of patients. The medical marijuana legislation required the dispensary
to collect this information from patients and their care-givers.
73. It is for these reasons that the Plaintiffs and the more than 100,000
other medical marijuana patients and care-givers must have immediate, statewide,
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dispensed to him at the school. While he is permitted by the school to have the
prescribed narcotic pain medication in his blood at school, the school does not
permit him to even have the recommended medical marijuana medication if
taken prior to arriving at school - in his blood stream. As he has been unable to
attend school without the use of his doctor recommended medical marijuana
medication due to his debilitating medical condition, he has been further deprived
of his constitutional right to a public education.
76. Under the supervision of his doctor, PCRLP member John E., for
example, has been able to reduce his dependence on these narcotics through careful
pain management with medical marijuana.
77. Nearly all medicines have toxic, potentially lethal effects. But
marijuana (cannabis) is not such a substance. There is no record in the extensive
medical literature describing a proven, documented cannabis-induced fatality.
Marijuana's therapeutic ratio is impossible to quantify because it is so high.
Marijuana, in its natural form, is one of the safest therapeutically active substances
known to man.
78. Even alcohol, which is readily available without a doctors approval,
is immensely more harmful and dangerous to the user and our society than
marijuana.
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79. The right of a qualifying patent or care-giver to medical marijuana is
an individual constitutional right analogous to those civil rights guaranteed by the
Bill of Rights found in Article 2 of the Colorado Constitution. Furthermore, a
denial of medical care is a deprivation of an interest in liberty or life that implicates
rights to due process under both the federal and state constitutions. These vested
interests extend to the care-givers and others who provide medical marijuana
patients with medication under the Colorado Constitution.
80. In addition to the inherent liberty and life issues that establish a
fundamental right to medical care, Article 18, Section 14 of the Colorado
Constitution the Colorado Constitution is more expansive of these rights in
specifically establishing as a fundamental right of all Colorado citizens and
residents the free access to medical marijuana for debilitating medical conditions.
81. In infringing upon the aforesaid constitutional rights of the Plaintiffs,
the medical marijuana legislation fails to promote any compelling state interest and
is not narrowly drawn to achieve any such interest in the least restrictive manner
possible.
82. There is no rationale basis for any of these restrictions let alone any
compelling state interest.
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IV. THE GENERAL ASSEMBLY CANNOT AMEND
THE COLORADO CONSTITUTION BY LEGISLATION
83. Regardless of what the General Assembly may think of a
constitutional amendment express through the will of the People of Colorado, it
can only enact legislation that satisfies the mandates of the Colorado Constitution,
including the provisions on patient access to medical marijuana. It cannot amend
the Colorado Constitution by legislation, as it has done with the Constitutions
scheme through the local option and licensing and the substantive restrictions on
care-givers and physicians.
V. CLAIM FOR DECLARATORY JUDGMENT
AS TO ALL DEFENDANTS
84. Plaintiffs incorporate by reference each and every allegation above.
85. Plaintiffs seek the following disputed issues be resolved by the Court
by ruling as a matter of law, and for the reasons set forth above, House Bill 10-
1284 is in its entirety unconstitutional, and / or, that the following provisions of
House Bill 10-1284 and Senate Bill 10-109 are unconstitutional: C.R.S. 12-
43.3-102(2), 12-43.3-103(2), 12-43.3-104(5), 12-43.3-104(16), 12-43.3-106, 12-
43.3-201, 12-43.3-202, 12-43.3-301, 12-43.3-302, 12-43.3-303, 12-43.3-306, 12-
43.3-307, 12-43.3-310 through 312, 12-43.3-402(5), 12-43.3-601, 12-43.3-701, 12-
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43.3-901, 25-1.5-106(2)(c), 25-1.5-106(4)(a), 25-1.5-106(7), 25-1.5-106(9)(a), (b),
and (d), 25-1.5-106(10)(a) through (d), 25-1.5-106(10)(e)(V), 25-1.5-106(10)(f),
25-1.5-106(11)(a), 25-1.5-106(12)(a), 25-1.5-106(12)(b)(I), (IV), and (V), 25-1.5-
106(13), and 18-18-406.3(6).
V. CLAIM FOR DECLARATORY JUDGMENT
AS TO ALL DEFENDANTS
86. Plaintiffs incorporate by reference each and every allegation above.
87. As to the defendants sued in their individual capacity, Plaintiffs seek
an order permanently, preliminary, and / or temporarily enjoining them from
implementing, enforcing or otherwise acting upon any and all of the provisions of
H.B. 10-1284, S.B. 10-109 or H.B. 11-1043.
WHEREFORE, for the reasons stated above,
A. Plaintiffs respectfully request a declaratory judgment from the
Court that the provisions of H.B. 10-1284, S.B. 10-109, and / or H.B. 11-1043, all
or in part, pertaining to the Colorado medical marijuana program are
unconstitutional.
B. As to the individually sued Defendants, Plaintiffs respectfully
request an order from the Court, permanent, preliminary, and / or temporary,
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