April 26, 2017

Colorado Supreme Court: Amendment 64 Applies to Sentences for Crimes Being Appealed at Effective Date

The Colorado Supreme Court issued its opinion in People v. Boyd on Tuesday, January 17, 2017.

Amendment 64—Marijuana Legalization—Constitutional Amendment.

The Colorado Supreme Court considered whether Amendment 64 deprived the state of the power to continue to prosecute cases where there was a non-final conviction for possession of less than one ounce of marijuana and where there was a pending right to appeal when Amendment 64 became effective. The court concluded that Amendment 64 nullified the state’s authority to continue to prosecute respondent on appeal because the amendment superseded the underlying statutory authority for the prosecution. The court contemplated United States v. Chambers, 291 U.S. 217 (1934), in which the U.S. Supreme Court held that when a statute is rendered inoperative, no further proceedings can be had to enforce it in pending prosecution. Accordingly, the court affirmed the Colorado Court of Appeals’ judgment reversing respondent’s conviction.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Amendment 64 Deprives State of Power to Prosecute Crimes of Possession of Small Amounts of Marijuana

The Colorado Supreme Court issued its opinion in Russell v. People on Tuesday, January 17, 2017.

Expert Testimony—Amendment 64—Marijuana Legalization—Constitutional Amendment.

The Colorado Supreme Court considered whether a police officer’s testimony that defendant was under the influence of methamphetamine was properly admitted as lay testimony or should have been qualified as expert testimony. Because any error in admitting the officer’s testimony as lay testimony was harmless given the otherwise overwhelming evidence, the court declined to answer whether the trial court erred in admitting the testimony. The court also considered whether Amendment 64 deprived the state of the power to continue to prosecute cases where there was a conviction for possession of less than one ounce of marijuana pending on direct appeal when the amendment became effective. The court concluded that under People v. Boyd, 2017 CO 2, Amendment 64 nullified the state’s authority to continue to prosecute petitioner/cross-respondent during her appeal because Amendment 64 superseded the underlying statutory authority for the prosecution. Accordingly, the court affirmed the Colorado Court of Appeals’ judgment.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Amendment 64 Deprived State of Power to Continue Prosecutions of Small Amount Marijuana Offenses

The Colorado Supreme Court issued its opinion in People v. Wolf on Tuesday, January 17, 2017.

Amendment 64—Marijuana Legalization—Constitutional Amendment.

The Colorado Supreme Court considered whether Amendment 64 deprived the state of the power to continue to prosecute individuals for possession of less than one ounce of marijuana after Amendment 64 became effective. The court concluded that under People v. Boyd, 2017 CO 2, Amendment 64 nullified the state’s authority to continue to prosecute respondent at his jury trial because Amendment 64 superseded the underlying statutory authority for the prosecution. Accordingly, the court affirmed the Colorado Court of Appeals’ judgment vacating respondent’s conviction and sentence.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: No Statutory Enforcement Mechanism Exists for Respondent Fee Awards

The Colorado Court of Appeals issued its opinion in McGihon v. Cave on Thursday, May 19, 2016.

Defendant Thomas Cave filed a complaint with the Secretary of State, alleging that plaintiff Anne McGihon, a lobbyist, violated the Fair Campaign Practices Act by allowing her name to be placed on an event invitation on behalf of a candidate for the Colorado House of Representatives. Following a hearing, an ALJ dismissed Cave’s claims and awarded McGihon attorney fees jointly against Cave and his attorney, Jessica Peck. The ALJ found that Cave’s claims were substantially groundless, frivolous, and vexatious.

McGihon filed an enforcement action in district court. Cave and Peck filed separate motions to dismiss, arguing the district court lacked jurisdiction over the enforcement action. The district court granted the motions and McGihon appealed.

On appeal, the Colorado Court of Appeals found that although fee awards are contemplated by both C.R.S. § 1-45-111.5(2) and Colo. Const. art. XVIII, § 9(2)(a), there is no enforcement mechanism available for prevailing respondents. Because McGihon did not raise equal protection and due process arguments in district court, the court of appeals declined to consider them.

The court affirmed the district court’s dismissal.

Colorado Court of Appeals: Constitutional Claim Requires Inquiry into Reasonableness of Statutory Ammunition Limits

The Colorado Court of Appeals issued its opinion in Rocky Mountain Gun Owners v. Hickenlooper on Thursday, March 24, 2016.

HB 12-1224—HB 13-1229—Firearms—Colorado Constitution—Right to Bear Arms—Police Power—Legislative Powers—Executive Powers—Due Process Clause.

In 2013, the Colorado General Assembly passed House Bills 13-1224 and 13-1229, which banned the sale, possession, and transfer of “large capacity ammunition magazines,” and expanded mandatory background checks to recipients of firearms in some private transfers. Plaintiffs Rocky Mountain Gun Owners, National Association for Gun Rights, Inc., John A. Sternberg, and DV-S, LLC (collectively, plaintiffs) filed a complaint challenging the constitutionality of both bills. The district court analyzed the bills under a “reasonable exercise of police powers” test rather than an intermediate or strict scrutiny test and dismissed the complaint for failure to state a claim under CRCP 12(b)(5).

On appeal, plaintiffs contended that the district court erred in dismissing their claim that HB 13-1224 violated the Colorado Constitution’s right to bear arms clause. Because this case presented a challenge based on the Colorado Constitution, the district court did not err in using the “reasonable exercise of police power” test to assess the validity of HB 13-1224. However, the district court erred in its application of that test to this case. At a minimum, the claim asserts that the magazine limits violate the constitutional right to bear arms, which requires a factual inquiry into the reasonableness of the limits. When viewed in the light most favorable to plaintiffs, the allegations state a claim for relief, and plaintiffs are entitled to present evidence of the basis for their claim.

Plaintiffs contended that HB 13-1229 is unconstitutional because it (1) infringes on individuals’ rights to keep and bear arms; (2) delegates legislative and executive licensure powers to nongovernmental agents; and (3) violates the Due Process Clause, because licensed gun dealers will refuse to facilitate background checks, and they have discretion to impose criminal liability and punishments.

As to the first argument, HB 13-1229 imposes the same mandatory background check requirements on some firearm transfers between private parties as those required for retail sales and sales at gun shows. Thus it does not prevent the sale of firearms but merely creates an additional step for those sales not taking place through a licensed gun dealer. Furthermore, HB 13-1229 does not implicate a fundamental right and does not infringe on individuals’ rights to keep and bear arms for a lawful purpose; both Colorado and federal law bar certain individuals from possessing firearms.

Second, HB 13-1229 does not unconstitutionally delegate legislative or executive powers. Licensed gun dealers do not have the power to make rules regarding mandatory background checks; they are required to follow the same procedures in place for retail firearm transactions. The fact that they are not legally obligated to facilitate sales between private parties is not a delegation of legislative authority. Similarly, HB 13-1229 does not unconstitutionally delegate executive powers. Again, the process for these transfers is no different than that for retail firearm transactions and gun show sales. Licensed gun dealers are not agents of state law enforcement charged with keeping firearms away from criminals; they are only required to initiate a background check.

Third, plaintiffs presented no facts that licensed firearm dealers will refuse to facilitate background checks, thus depriving parties of a right to firearms sales. Additionally, licensed firearms dealers merely collect information; they do not have the discretion to impose criminal liability and punishments. Thus HB 13-1229 does not violate the Due Process Clause.

Therefore, the district court correctly concluded that plaintiffs failed to state a claim for relief on HB 13-1229.

As to HB 13-1224, the case was reversed and remanded. Other aspects of the court’s decision were affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: State Payments Were Not Made for Purpose of Funding or Reimbursing Abortion Services

The Colorado Court of Appeals issued its opinion in Norton v. Rocky Mountain Planned Parenthood, Inc. on Thursday, January 14, 2016.

Jane Norton, in her capacity as former executive director of the Colorado Department of Public Health & Environment, instigated an audit to determine whether Rocky Mountain Planned Parenthood, Inc. (Planned Parenthood) was separately incorporated, maintained separate facilities, and maintained financial independence from Planned Parenthood of the Rocky Mountains Services Corporation (Services). Because the audit showed Planned Parenthood was charging below-market rent to Services, Norton concluded Planned Parenthood was subsidizing Services and therefore, because Services performed abortions, the state had been indirectly subsidizing abortions in violation of Colorado Constitution article V, section 50. After Norton’s audit and at her instigation, the state terminated its contractual relationship with Planned Parenthood and ceased all taxpayer funding of the organization.

Norton sued Planned Parenthood, the governor, and the directors of the Department of Health Care Policy & Financing and Department of Public Health & Environment on her own behalf as a taxpayer. In her complaint, Norton alleged that the state resumed making payments to Planned Parenthood in 2009 in violation of section 50. She asserted claims for declaratory and injunctive relief against the government defendants, unjust enrichment against Planned Parenthood for allegedly receiving unlawful payments of public funds, and the imposition of a constructive trust against Planned Parenthood.

The Colorado Court of Appeals held that, even read broadly, Norton’s complaint failed to allege that defendants made payments for the purpose of paying for any induced abortion. The court emphasized that the focus of section 50 is on the purpose of the payment as asserted by the payor, not the ultimate distribution of funds by the payee. The court noted that under Norton’s broad reading of section 50, if a state issued a paycheck to an employee and that employee then donated funds to Services, it would violate section 50, finding this an illogical and unsupportable construction of the section. The court rejected Norton’s interpretation as exceeding the plain language of section 50, noting the section cannot rationally be read to prohibit the state from paying money that may eventually end up in the hands of someone who performs abortions.

The court affirmed the district court’s order dismissing Norton’s complaint for failure to state a viable claim of violation of section 50.

Colorado Court of Appeals: C.R.C.P. 12(b)(5) Motions Disfavored and Should Only Be Granted If No Facts Support Plaintiff

The Colorado Court of Appeals issued its opinion in Masters v. School District No. 1 in the City & County of Denver on Thursday, November 5, 2015.

Teacher Employment, Compensation, and Dismissal Act—Contract Clause—Due Process.

Plaintiffs were employed as full-time teachers by Denver Public Schools and had achieved non-probationary status under the Teacher Employment, Compensation, and Dismissal Act (TECDA). Plaintiffs brought the underlying action in district court, alleging that TECDA violated their rights under the Colorado Constitution’s contract clause and due process clause. The trial court granted defendant’s motion to dismiss both claims.

On appeal, plaintiffs contended that the district court erred by dismissing their contract clause claim. TECDA created a contractual relationship between school districts and teachers. Non-probationary status is achieved under TECDA after a teacher completes a probationary teaching period, and that status conferred on the teacher protections against dismissal. Therefore, the district court erred by dismissing plaintiffs’ contract clause claim under CRCP 12(b)(5) for failure to state a claim upon which relief can be granted.

Plaintiffs also contended that the district court erred by dismissing their due process challenge to the mutual consent provisions of TECDA. TECDA provides that non-probationary teachers may be dismissed only for statutorily specified reasons constituting “good and just cause” and only after certain procedures are followed. Before Senate Bill (SB) 191 was passed, TECDA required a school district to find a new position for a displaced non-probationary teacher, and the receiving school was required to accept the teacher. Such for-cause dismissal provisions create a constitutionally protected property interest in continued employment. Through SB 191, the legislature replaced this procedure with a “mutual consent” procedure whereby a displaced non-probationary teacher may be assigned to a position at another school only with the receiving principal’s consent and input from at least two teachers at the school, and the school district was authorized to place on unpaid leave any displaced non-probationary teacher who has not secured a mutual consent position in the district within 12 months or two hiring cycles, whichever is longer. Before being placed on unpaid leave, however, non-probationary teachers have a due process right to a hearing in which the teacher may attempt to show that the purported reason for which she was placed on unpaid leave was not the actual reason or that the placement was effected in an arbitrary or unreasonable fashion. Therefore, the district court erred in dismissing the plaintiffs’ due process claim for failure to state a claim upon which relief can be granted. The judgment was reversed and the case was remanded with directions.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: No Violation of Laws or Constitution When District Offers Scholarships to Students of Private Schools

The Colorado Court of Appeals issued its opinion in Taxpayers for Public Education v. Douglas County School District on Thursday, February 28, 2013.

Choice Scholarship Program—Standing—Public School Finance Act of 1994—Colorado Constitution.

In 2011, the Douglas County Board of Education (County Board) adopted the Choice Scholarship Program (CSP). Pursuant to the CSP, parents of eligible elementary school, middle school, and high school students residing in the Douglas County School District (District) may choose to have their children attend certain private schools, including some with religious affiliation. The District would pay parents of participating students “scholarships” covering some of the cost of tuition at those schools, and the parents would then remit the scholarship money to the schools.

Plaintiffs are nonprofit organizations, Douglas County taxpayers, District students, and parents of District students. They filed suit to enjoin implementation of the CSP, claiming that it violates the Public School Finance Act of 1994, CRS §§ 22-54-101 to -135 (Act), and various provisions of the Colorado Constitution.

Plaintiffs claimed that the CSP violated the Act because the District will impermissibly use state money distributed by the Colorado Department of Education to pay for private school tuition at private schools. The Court of Appeals did not reach the merit on this claim, however, because it found that plaintiffs did not have standing to bring a private cause of action seeking enforcement of the Act.

Plaintiffs further contended that the court erred in rejecting their claim alleging a violation of article IX, § 2, of the Colorado Constitution, which requires the General Assembly to “provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state.” Article IX, § 2 plainly is not violated where a local school district decides to provide educational opportunities in addition to the free system the Constitution requires. It also is not violated merely because some students’ parents may choose to have their children forego the available opportunity to attend a school within the system the Constitution requires. Therefore, plaintiffs failed to prove beyond a reasonable doubt that the CSP violates the Colorado Constitution.

Plaintiffs also contended that the court erred in rejecting their claim alleging a violation of article IX, § 3, of the Colorado Constitution because the public school fund is used for private schools. There was no record support for this argument. Therefore, the Court assumed that the CSP was funded out of the 95% of total per-pupil revenue that does not come from the public school fund.

Plaintiffs further argued that the CSP violated article IX, § 15, of the Colorado Constitution, and that the district court erred in ruling to the contrary. However, article IX, § 15, does not apply to the CSP because the directors of the boards of education of local school districts have control of instruction in the public schools of their respective districts.

Plaintiffs also argued that the CSP violated article II, § 4; article V, § 34; and article IX, §§ 7 and 8, of the Colorado Constitution. The CSP is neutral toward religion generally and toward religion-affiliated schools specifically. The CSP is intended to benefit students and their parents, and any benefit to the participating schools is incidental. Further, the CSP does not compel anyone to do anything, much less attend religious services. To the extent students would attend a particular private school or religious services at that school, they would do so as a result of parents’ voluntary choices. Therefore, the CSP does not violate the Colorado Constitution.

Finally, plaintiffs argued that the CSP violated article V, § 34, of the Colorado Constitution by providing funds to private schools and religious organizations. The General Assembly appropriates state money for elementary and secondary education to the Colorado Department of Education, which in turn distributes it to local school districts in the form of total per pupil revenue. At that point, ownership of the funds passes to the local school districts. The District’s expenditure of funds under the CSP, therefore, does not constitute an appropriation by the General Assembly. As a result, the CSP does not violate article V, § 34.

Summary and full case available here.

Spark the Discussion: The “Amendment 64 Implementation Task Force”

Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of marijuana law. This column is brought to you by Vicente Sederberg, LLC, the country’s first national medical marijuana law firm.

By Joshua Kappel, Esq. and Rachelle Yeung

When Governor Hickenlooper signed Amendment 64 into law, proclaiming marijuana legal to use, possess and purchase for adults 21 years-old or older in Colorado, advocates barely paused to celebrate their victory – and opponents barely recognized their defeat.

Instead, all sides immediately began working on implementing this historic initiative through the Governor’s “Amendment 64 Implementation Task Force.” The Task Force, created by an Executive Order of the Governor, is comprised of 26 members, which were selected for their wide range of interests and expertise – from representatives of the Attorney General’s Office and the Department of Revenue to medical marijuana industry groups and other stakeholders.[1]

The Task Force is assisted by committees, or “Working Groups,” each of which is co-chaired by a member of the Task Force and made up of additional stakeholders and members of the public. The five Working Groups are:

  1. Regulatory Framework
  2. Local Authority and Control
  3. Tax/Funding and Civil Law
  4. Criminal Law
  5. Consumer Safety and Social Issues

The various Working Groups have discussed a large range of issues, some of the issues are already addressed in the text of Amendment 64 while other issues appear almost unrelated. A full list of all the issues discussed, agendas, meeting times, and audio recordings are available on the Department of Revenue’s Amendment 64 Task Force website. The Task Force is scheduled to make its recommendations to the Governor, the State Legislature, and the Department of Revenue by the end of February.

During its first meeting, members of the Criminal Law Working Group came to a consensus that they should avoid tackling issues of driving under the influence of drugs (DUID) and industrial hemp.  Despite being tasked with these issues, the Working Group decided discussing these would be a waste of valuable time and resources.  In fact, Brian Connors, co-chair of the Working Group and representative of the Public Defender’s Office, noted, revisiting the DUID issue would be not only time-intensive, but redundant. The legislature and the Colorado Commission on Criminal & Juvenile Justice have been researching the question for well over two years, and have developed far more familiarity with the topic. In fact, a marijuana related DUID bill was recently introduced in the state legislature that appears to strike a compromise between the various stakeholders.

Instead, the Criminal Law Working Group will focus on determining legal definitions and confronting law enforcement issues. For example, can evidence of marijuana alone be the basis for probable cause? In the event of a dismissal or ‘not guilty’ verdict, do law enforcement agencies have a duty to maintain seized marijuana plants? This Working Group has also veered off path to discuss completely unrelated issues such as requiring drug tests for all minors who apply for a driver’s license.

The Tax/Funding and Civil Law Working Group, among other things, addressed the issue of banking for state licensed marijuana businesses. Because marijuana is still illegal under federal law, most banks are fearful of handling funds related to marijuana. However, all parties involved, from marijuana business owners to representatives of the Colorado Bankers Association agreed that the fledgling marijuana industry could not depend entirely on cash transactions. Unfortunately, the Working Group was faced with a serious shortage of viable alternatives, and in the end, resolved only to write to the Federal Government, requesting further guidance.

The Regulatory Framework Working Group kicked off its first meeting by examining existing regulatory frameworks and deciding which framework to model recreational marijuana on – specifically, whether to base it on our medical marijuana code or our alcohol/liquor code. Amusingly, one of the first issues to come up was whether to require vertical integration, which the medical marijuana code mandates, or prohibit it, which is the case with liquor.

One suspect issue was also brought up by the Regulatory Framework Working Group: whether to recommend a residency requirement for those who are going to purchase marijuana from a licensed store.  This issue caught many people by surprise as Amendment 64’s personal protection clause makes clear that “possessing, using, displaying, purchasing, or transporting marijuana” is now legal under state law for persons over the age of 21. The plain language of Amendment 64 applies to all adults aged 21 or older.

In addition to the issues covered by the other Working Groups, the Local Authority and Control Working Group is working to resolve:  What can local jurisdictions regulate? What will be the local controls regarding advertising?  What/who is the local authority over fines and licensing?  Lastly, the Consumer Safety/Social Issues Working Group is working to resolve issues associated with: advertising and marketing to minors; product labeling and packaging; product testing; and consumer, public, and industry education.

Surprisingly, a significant number of vocal marijuana opponents managed to secure positions on the Governor’s Task Force and in the working groups; however, the Task Force is not supposed to debate the merits of Amendment 64 or impede its implementation. Additionally, not all issues discussed by the Task Force will or should become recommendations of the Task Force, let alone a bill or regulation. The Task Force should only make recommendations that are both legally sound and good public policy. For example, a residency requirement on marijuana purchases, although discussed by one of the working groups, would be bad public policy because it would only perpetuate another black market and derive the state of tax revenue – exactly what the voters of Colorado wanted to prohibit with Amendment 64. Additionally, such a significant statutory limitation on Amendment 64 may not withstand legal scrutiny.[2]

Considering the Task Force has a mandate from the 55% of our electorate that voted for Amendment 64 and that they have less than a month now to make their recommendations, we can only hope that the proponents and opponents of marijuana reform can work together, stay on track, and focus on implementing the will of the voters. Nonetheless, we will all have to wait and see on what the Task Force actually recommends.

 


[1] It is worth noting that the Task Force really doesn’t have to address any issues besides funding the Department of Revenue to make rules because Amendment 64 is self-executing.

[2] Generally in Colorado, self-executing initiatives cannot be narrowed, impaired, or limited by the legislature. Yenter v. Baker, 126 Colo. 232, 236-237 (Colo. 1952); See also Zaner v. City of Brighton, 917 P.2d 280, 283 (Colo. 1996).

Joshua Kappel, Esq. is the Associate Director of Sensible Colorado, the leading state-wide non-profit working to educate the public about sensible marijuana policy. Mr. Kappel is also the senior associate at Vicente Sederberg, the first nation-wide medical marijuana law firm.

Rachelle Yeung is currently in her third year at the University of Colorado School of Law and a law clerk at Vicente Sederberg LLC.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Spark the Discussion: Top Five Myths About the Drug-Free Workplace Act

Kimberlie Ryan Head ShotSpark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of marijuana law. This column is brought to you by Vicente Sederberg, LLC, the country’s first national medical marijuana law firm.

By Kimberlie Ryan, Esq.

Headlines screamed across the country when Colorado became the first state to recognize the Constitutional right to use marijuana for any reason by adults ages 21 and older.

One headline reported a CEO’s panic that “legal pot will make it hard to hire, devastate the economy.”  This CEO claimed that “if you sell to the federal government or state government, you are required to certify that you have a drug-free workplace,” so “if you smoke pot, I still can’t hire you.”

These statements confirm a fundamental misunderstanding of the federal Drug-Free Workplace Act of 1988 (DFWA), and such proclamations perpetuate unfounded myths about this law.

Myths like these could deprive unwitting employers of excellent employees – and might give rise to legal claims against companies that violate workers’ rights.  Due to space constraints this article is limited to a discussion of the DFWA, so let’s get to it and set the record straight.

Before we get to the myths and the realities, a brief background on the DFWA is in order.  President Reagan signed the Drug-Free Workplace Act nearly 25 years ago in 1988.  The Act defines a “drug-free workplace” as a site for the performance of work done by a federal contractor or grantee in connection with a specific federal contract or grant at which employees are prohibited from engaging in the unlawful manufacture, distribution, dispensing, possession or use of any controlled substance.  At this time “controlled substance” still includes marijuana.  But that is not the end of the analysis.

By definition, the DFWA limits the “workplace” to the work site for certain “covered” employers and by its terms does not include any other location where work for the contract is not performed. It does not allow employers to prohibit the use of marijuana completely, and it does not apply to all employers or employees.  Now to the myths.

1. Myth #1 – The DFWA applies to all private employers.

Reality:  The DFWA only applies to certain federal contractors and grant recipients.  A company is subject to the Act only if the value of a single contract is more than $100,000, or if it has any federal grant.  Individuals with grants or contracts from any U.S. Federal agency are covered by the Act, regardless of dollar volume.  Last year, only 21.7% of federal contracting dollars went to small businesses.  Unless employers meet the specific requirements for coverage, the DFWA does not apply to them.  The Act does not apply to those that do not have contracts or grants from the federal government, and it does not apply to employees who are not directly engaged in the performance of the covered contract or grant.

2. Myth #2 – The DFWA requires employers to drug test employees. 

Reality: The DFWA does not require or authorize drug testing.  In fact, the legislative history of the Act indicates that Congress did not intend to impose any additional requirements beyond those set forth in the Act, which are very limited as discussed below. Specifically, the legislative history precludes the imposition of drug testing of employees as part of the implementation of the Act.

3.  Myth #3 – The DFWA requires employers to fire employees who use marijuana at home as authorized by Colorado Constitutional Amendments 20 and 64.

Nothing in the DFWA requires employers to fire workers for exercising their Constitutional rights to use marijuana while off-duty and outside the workplace.  The law requires only that in case of a conviction for a criminal drug offense resulting from a violation occurring in the workplace, the employer may take one of two types of action. The employer may take disciplinary action, which may be a less severe penalty than termination, or may refer the employee for rehabilitation or drug abuse assistance program. The choice of which basic course to choose, as well as the specific discipline or treatment option, is left to the employer’s discretion and may be made on a case-by-case basis, provided all state and local laws are followed.  “Conviction” is defined by the Act as limited to afinding of guilt, including a plea of no contest, or imposition of sentence, or both, by any judicial body charged with the responsibility to determine violations of the Federal or state criminal drug statutes.

4. Myth #4 – The DFWA requires employers to report positive drug tests to the federal government.

The Act does not require employers to report positive drug tests to the federal government.  The only reporting requirement is triggered solely if an employee is convicted of a drug offense occurring at the workplace.

5.  Myth #5 – The DFWA preempts state and local laws.

The requirements of the Act “coexist with state and local law,” according to the United States Department of Labor.  Colorado does not have any state statute governing drug testing in employment, and adults have a Constitutional right to use marijuana in Colorado.  The City of Boulder Ordinance 5195 prohibits employee drug testing except in clear cases of probable cause, and where a written policy has already been provided to the work force.  In general, Colorado employers should update their drug testing policies to account for the Constitutional right, or expect legal challenges.

6.  Bonus Myth #6 – Employers who recognize Colorado’s Constitutional right of employees to use marijuana at home while off duty will automatically lose federal contracts.

Nothing in the DFWA governs the use of marijuana outside of the covered workplace for companies.  A company that is covered by the DFWA will be subject to penalties only if: 1) it fails to implement the six steps required to establish a drug-free workplace; or 2) the head of the agency determines that the company employs a sufficient number of individuals convicted of a criminal drug offense occurring in the workplace to indicate that the contractor has failed to make a good faith effort to provide a drug-free workplace.  Even then, the head of the agency may waive any possible penalties in certain circumstances, and violations may not result in contract termination or loss of payments.

What does the DFWA actually require?  Only 6 steps. Covered employers must:

  1. Publish and give a policy statement to all covered employees informing them that the unlawful manufacture, distribution, dispensation, possession or use of a controlled substance is prohibited in the covered workplace and specifying the actions that will be taken against employees who violate the policy.
  2. Establish a drug-free awareness program to make employees aware of a) the dangers of drug abuse in the workplace; b) the policy of maintaining a drug-free workplace; c) any available drug counseling, rehabilitation, and employee assistance programs; and d) the penalties that may be imposed upon employees for drug abuse violations.
  3. Notify employees that as a condition of employment on a Federal contract or grant, the covered employee must a) abide by the terms of the policy statement; and b) notify the employer within five calendar days if he or she is convicted of a criminal drug violation in the workplace.
  4. Notify the contracting or granting agency within 10 days after receiving notice that a covered employee has been convicted of a criminal drug violation in the workplace.
  5. Impose a penalty on – or require satisfactory participation in a drug abuse assistance or rehabilitation program by—any employee who is convicted of a reportable workplace drug conviction.  The “penalty” is up the discretion of the employer, and it may consist of a disciplinary warning – termination of employment is not uniformly mandated to comply with the DFWA.  Employers should evaluate penalties on a case-by-case basis and seek legal counsel to avoid violating state law or the Americans with Disabilities Act in imposing any discipline.
  6. Make an ongoing, good faith effort to maintain a drug-free workplace by meeting the requirements of the Act.

Employers have wasted millions of dollars on ineffective, invasive, and unnecessary drug testing that is not required by the DFWA.  Drug tests cannot show impairment, if any, or even when marijuana use occurred. Many employers have relied on information provided by drug testing promoters who have an inherent conflict of interest on the topic.  It has long been recognized that widely cited cost estimates of the effects of drug use on U.S. productivity are based on questionable assumptions and weak measures, according to a report of the National Academy of Sciences.  It is a challenge to locate a single case that has imposed liability on a private employer for opting out of drug testing, and despite beliefs to the contrary, the preventative effects of drug testing programs have never been adequately demonstrated.

The use of marijuana is a Constitutional right in Colorado.  Companies should join employers who are embracing a more sensible approach to drug policies today and seek to understand what the Drug-Free Workplace Act really does – and does not – require.  Only then can they release the unfounded myths of yesterday and work with their employees for a more productive tomorrow.

Kimberlie Ryan is the founding member of Ryan Law Firm, LLC, where she practices all aspects of employment law and has represented workers and advised employers regarding medical marijuana and the workplace.  In addition to her law practice, she serves as a television legal analyst and is frequently called upon to write and speak about cutting-edge employment issues.  This article is for educational purposes only, and it should not be construed as legal advice for a particular situation.  Consult with competent legal counsel for specific questions.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Spark the Discussion: Amendment 64: The Ripples Here at Home

Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of marijuana law. This column is brought to you by Vicente Sederberg, LLC, the country’s first national medical marijuana law firm.

By Joshua Kappel, Esq.

On Election Day, the voters of Colorado made history with the passage of Amendment 64—the Regulate Marijuana Like Alcohol Act of 2012.

Amendment 64, which received 55% of the vote, legalizes marijuana under Colorado law for adults over the age of 21. Specifically, it removes all civil and criminal penalties under Colorado law for the limited possession, use, and cultivation of marijuana by adults over the age of 21. This measure also requires the Colorado Department of Revenue to create a regulatory system for the production and distribution of marijuana in a manner similar to alcohol.

The passage of Amendment 64 made waves across the world and made headlines from England to India.  Just this week, a handful of Latin America leaders called for a review of international drug policy in light of these measurers passing.  Politically, the 10 point passage of Amendment 64 has prompted other states to consider similar measures, and has even spurred bi-partisan action by Colorado’s congressional delegation to exempt states’ marijuana laws from the federal Controlled Substance Act.

This historic victory also made waves here in Colorado.  Colorado Governor Hickenlooper’s responded with his now infamous comments, telling voters not to “break out the Cheetos” yet because marijuana remains illegal federally.  The Governor’s comments hinted at a lack of interest in fighting on behalf of Colorado voters and led many to wonder what, if any, effect Amendment 64 will have here at home.

The state vs. federal nature of this law change will continue to be of great interest to both legal scholars and voters.  A full analysis of this issue will be saved for another post, but to be clear, the federal government cannot force our state to criminalize anyone – including those who use or produce marijuana.

The removal of criminal penalties for adults using, possessing and cultivating marijuana goes into effect once the election is certified (probably sometime around January 6th), although retail stores won’t be able to open until late 2013 or early 2014.

We still have time before the measure goes into effect, but already, Amendment 64 is making ripples in our communities. This week both the Boulder District Attorney and the Denver District Attorney announced they will dismiss all marijuana charges related to actions that would have been protected by Amendment 64.  In the interest of justice, we hope more District Attorneys follow suit. According to long standing Colorado law, a change in a criminal law that reduces a sentence or eliminates the violation all together should apply retroactively in the interest of justice to all convictions not yet final. C.R.S. § 18-1-410(1)(f); Colo. Crim. P. Rule 35; People v. Thomas, 185 Colo. 395 (1974).  Even if a stubborn district attorney was lucky enough to convict an adult for possessing marijuana now, the case should be dismissed by the trial judge or on appeal once Amendment 64 goes into effect.

Although Amendment 64 is not yet in effect, for the adults currently caught in the system for marijuana offenses, the ripples of last Tuesday are already being felt.

Joshua Kappel, Esq. is the Associate Director of Sensible Colorado, the leading state-wide non-profit working to educate the public about sensible marijuana policy. Mr. Kappel is also the senior associate at Vicente Sederberg, the first nation-wide medical marijuana law firm.The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Beat the Crowds on Election Day—Early Voting and Mail-In Ballots

It may seem distant now, but last year at this time the election focus was on Egypt and the elections in that country. Citizens lined up in very long queues to have the opportunity to vote for their leader. The images are striking, representing the sanctity of choice and election.

In this country, we do not usually have to wait in lines longer than city blocks in order to cast our votes. Poll centers are conveniently located, and we even have early voting and mail-in ballots. Still, there are frequently lines on Election Day, some that may seem interminable.

If you would prefer to avoid the lines on Election Day, there are some excellent options. Early voting locations are scattered throughout Colorado; click here to find one in your county. You can find your Election Day voting location here as well.

Mail-in ballots are another great way to beat the crowds. If you requested a mail-in ballot, you have until 7 p.m. on November 6, 2012 to get it to a drop off center. If you already mailed your ballot in and it has been returned for correction, you can submit your corrected ballot any time up to 7 p.m. on November 6. You can even track the progress of your mail-in ballot at www.govotecolorado.com.

If you are undecided on the ballot issues and would like more information, you can get the official Blue Book 2012 here. Or, for information on judicial retention, go to the Know Your Judge website. Another good website, Just Vote Colorado, provides nonpartisan information and resources. Vote early, vote by mail, vote on Election Day—just vote.