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.