February 22, 2012

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Spark the Discussion: Organize! The Rising Role of Unions in Colorado’s Medical Marijuana Industry

February 21, 2012 By Leave a Comment
“Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of medical marijuana law. This column is brought to you by Vicente Sederberg, LLC, a full-service, community-focused medical marijuana law firm.

Recently, the United Food and Commercial Worker’s Union, Colorado’s largest labor organization, announced it had unionized its first medical marijuana shop in Denver—with more than a dozen shops predicted to follow suit in the upcoming weeks.

According to Colorado’s UFCW President Kim Cordova, “the Union is committed to representing the hard working and compassionate workers in the Medical Cannabis retail centers and promoting guidelines to safeguard the interests of our members and the communities our members work in.”

What does it mean for Colorado’s medical marijuana industry to have union shops?

Colorado’s newest industry is in a tough position.  It faces near-constant attacks from various branches of the federal government including the IRS, Treasury, and, most recently, the Department of Justice.  Just last month, the United State attorney in Colorado, John Walsh, launched an attack on state-legal medical marijuana providers by sending 23 letters to centers, informing them that that were in areas deemed problematic by the federal government and would have to shut down in 45 days or face property seizure and criminal prosecution.

In the face of these mounting problems, the medical marijuana industry needs allies.  And they have found a powerful one in the Union.

At a basic level, labor unions allow workers to organize and engage in “collective bargaining” to promote better wages, benefits, and working conditions.  There is no denying the vast role that unions have played in positively shaping the American workforce with these organizations leading the charge to end child labor, secure a minimum wage and sick leave, and establish workplace safety measures as far back as the 1800’s.

But perhaps the most important role that unions play is their heavy influence over politics.  Beyond pushing for the interests of workers, unions have long been engaged in successful political campaigns, using lobbying and traditional campaign tactics to ensure the longevity of the industries they represent.  Through sophisticated political maneuvering, labor unions have played a crucial role throughout history in helping to establish and legitimize businesses—a lesson that medical marijuana shops may want to heed.   With the public backing of a state and national powerhouse like the UFCW, these fledgling businesses may be viewed in a new light by legislators, many of whom owe their elections in large part to the political backing of unions.

At the dawn of this new industry in Colorado, having mainstream partners such as labor unions may be crucial to the medical marijuana industry’s legitimacy and, quite possibly, its longevity.

Brian Vicente, Esq., is a founding member of Vicente Consulting, LLC, a law firm providing legal solutions for the medical marijuana community. He also serves as executive director of Sensible Colorado, the state’s leading non-profit working for medical marijuana patients and providers. Brian is the chair of the Denver Mayor’s Marijuana Policy Review Panel, serves on the Colorado Department of Revenue Medical Marijuana Oversight Panel, and coordinates the Colorado Bar Association’s Drug Policy Project.

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.
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Justin Ross: “I think it’s going to be okay” – The Value of Continually Encouraging Your Client

January 25, 2012 By 1 Comment

We are all familiar with the proverbial “bed-side manner,” or lack thereof, associated with physicians. However, rarely do we hear of the same for attorneys. Most times, our clients are relying on us to guide them through the most difficult time in their lives, and most clients have no idea what to make of the situation. Simply acquiring a good result may not be the most important task with which we are assigned.

Although it seems elementary, I think we, as legal professionals, forget that we are obligated, as counselors at law, to reassure our clients. In the words of Ted Borrillo, my mentor’s mentor, it is very important to tell your client, up front and often, “It’s going to be okay.”

Having pondered this concept, I would suggest the following should occur with every single client:

  1. Re-assure your client. Most clients have never gone through a divorce, custody battle, criminal charges, personal injury, etc. They need to be re-assured that the process is (or should be) designed to provide justice and fairness, and that, except for those very unusual cases, a breakdown of the system will not mean that their life is over. Clients need to be told this from the beginning of your representation. Do not patronize your client. Be honest about the risks and repercussions. However, do not forget to tell your client that there is “a light at the end of tunnel.”
  2. Share a professional, or personal, experience. Think of a case that you have handled, or a personal situation that you have gone through, that could be of benefit to your client. Without divulging confidence, share that story with your client. This is a moment when your experience as an attorney uniquely equips you to counsel your client.
  3. Repeat step 1 and, if necessary, step 2. Most every case is a marathon. Clients will experience emotional ups and downs throughout. Merely encouraging your client at the beginning of the case likely will not suffice for the entirety of the case. Make a mental note to be encouraging to your client every single time you have contact with them. If you do not have frequent contact, consider placing a call or e-mail to your client solely for the purpose of encouraging your client.
Justin Ross is an attorney at Pickard & Associates PC and focuses his practice on domestic relations, dependency & neglect, criminal defense, and personal injury. Justin is also chair of the First Judicial District Bar Membership Committee. He contributes to the First Judicial District’s monthly Proclamation, where this article originally appeared.
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Aaron Solomon: First Amendment Retaliation in the Context of an Employment Dispute

January 20, 2012 By Leave a Comment

Editor’s Note: The Tenth Circuit issued its opinion in Morris v. City of Colorado Springs on January 18, 2012.

In Morris v. City of Colorado Springs (No. 10-1572), the Tenth Circuit, among other things, affirmed the dismissal of the plaintiff’s First Amendment retaliation claim on the pleadings. The plaintiff was a nurse who worked for Colorado Spring’s Memorial Health System, which is run by the city. The plaintiff submitted a “Notice of Claim” to Memorial, alleging that she has been subject to various torts while a member of the heart surgery team. Shortly thereafter, she was reassigned away from the heart team. The plaintiff alleged that this reassignment constituted improper retaliation, and she also brought Title VII claims based on the underlying conduct.

The Tenth Circuit thoroughly reviewed the test for a First Amendment retaliation claim and concluded, like the district court, that the plaintiff “could not show that her notice contained speech on a matter of public concern.” In so doing, it appeared to hold that a communication “framed as lodging a complaint regarding an employment dispute and seeking damages for it” could never rise to the level of a matter of public concern, unless the subject matter fell within a “narrow range”, such as allegations of corruption by city officials, that was “so imbued with the public interest that speech regarding g it will almost always be a matter of public concern.”

Aaron Solomon is an associate at Hale Westfall and focuses his practice on both commercial litigation and public policy/appellate law. He contributes to the firm’s Rocky Mountain Appellate Blog, where this post originally appeared on January 19, 2012.
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Spark the Discussion: The Inevitability of Marijuana Legalization

January 17, 2012 By Leave a Comment
“Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of medical marijuana law. This column is brought to you by Vicente Sederberg, LLC, a full-service, community-focused medical marijuana law firm.

In an impressive step forward in citizen activism, advocacy groups in both Colorado and Washington recently turned in ample signatures to place marijuana legalization measures on the 2012 Presidential ballot in their respective states.  These measures, which seek to regulate marijuana like alcohol at the statewide level—limiting its use to those 21 and over and requiring sales to take place in strictly regulated stores—would shake the foundation of the nation’s long-standing and increasingly unpopular War on Drugs.  And here’s the kicker: these measures are likely to pass.

Both national and local polling shows the country trending toward marijuana reform.  For the first time in thirty years of polling, the Gallup poll showed a record-high 50% of Americans support making marijuana legal.  This data is matched by a series of regional polls that show western states, in particular, are ready to end the decades-old policy of marijuana prohibition.

Why this surge in support?  Increasingly, marijuana reform is being recognized as a pressing social justice issue that demands attention.  At a recent drug policy reform conference in Los Angeles, Ira Glasser, former head of the national ACLU, gave an impassioned speech citing the Drug War’s disparate impact of people of color and likening the nation’s drug laws with Jim Crow laws.  This sentiment has been echoed by the NAACP, who came out in support of a California measure to legalize marijuana in 2010 with Hilary O. Shelton, vice president of advocacy for the NAACP, saying “We are usually conservative in terms of the issues that we support, but disproportionate prosecution of [African-Americans for] drug-related offenses for marijuana has called us to fight for decriminalization in our community.”

Joining this call for reform are increasing numbers of Latinos, an important and growing section of the electorate, who are growing weary of racial profiling and the inescapable disproportionate racial impact of current drug laws.  Studies indicate that Latinos are arrested for marijuana possession at much higher rates than whites, despite their lower usage rate.  For major cities in California, the 2006-08 arrest rate for Latinos is two to three times higher than for whites.  In New York City, the rate is almost four times higher.  Minority communities are becoming increasingly weary of the collateral consequences experienced by those convicted of drug possession offenses, consequences like denial of federal student loan and housing benefits and lifelong difficulty in securing employment due to a lingering “criminal” record.

In Colorado, where 69% of people in state prisons for drug offenses are people of color, the pending Regulate Marijuana Like Alcohol Act is inspiring a coalition of supporters that includes leaders in the Latino community like Kim Cordova, president of the state’s largest union, and civil rights organizations like the ACLU and the Colorado Criminal Defense Bar.  Just last week, columnists from both sides of the political spectrum penned their support for legalization in both the conservative Colorado Springs Gazette and the mainstream Denver Post.

Together these groups represent the changing face of the drug policy reform movement with impacted parties, opinion makers, and civil rights defenders adding their voices to the call for systemic change.  Given national opinion trends and a growing and diverse coalition in support of reform, it seems increasingly likely that this targeted push back signals the beginning of the end of the failed policy of marijuana prohibition.

Brian Vicente, Esq., is a founding member of Vicente Consulting, LLC, a law firm providing legal solutions for the medical marijuana community. He also serves as executive director of Sensible Colorado, the state’s leading non-profit working for medical marijuana patients and providers. Brian is the chair of the Denver Mayor’s Marijuana Policy Review Panel, serves on the Colorado Department of Revenue Medical Marijuana Oversight Panel, and coordinates the Colorado Bar Association’s Drug Policy Project.

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.
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D. Colo. Civil Settlement Conferences No Longer Routine

January 10, 2012 By 1 Comment

In a surprise move by the Colorado federal district court last month, the customary D. Colo. magistrate judge settlement conference has essentially been cut back significantly. Apparently frustrated with the typical half-day exercise, sometimes stretching over several sessions, featuring oft-times unprepared litigants, the district judges implemented revised Local Rule 16.6, effective December 1, 2011. The revised rule and the redline edits can be viewed below.

As Magistrate Judge Boland explained at the Faculty of Federal Advocates annual meeting in mid-December, parties will now need to file a motion with their district judge, or the magistrate judge if exercising consent jurisdiction, to warrant a classic settlement conference: “It is going to be hard to obtain, and you will have to persuade a judge that you are close to settlement and need help.” In short, for those parties who historically dropped in unprepared for an early settlement meeting, or did not wish to make the first move – hoping that the magistrate judge would extract offers, uncover and convey key information, and do the heavy lifting in settlement – the game is over. As Boland elaborated, “there is a booming industry of private mediators, and there is only a small cadre who can adjudicate cases. It makes sense in a very busy court to use resources to adjudicate.”

The revised rule puts the burden on counsel to show some good reason (the rule does not require the high showing of “good cause”) to trigger the traditional magistrate-judge-led settlement conference. Though probably not very early in the litigation process, as it appears that any “early” request will qualify only for “early neutral evaluation” (“ENE” in the ADR vernacular) (Rule 16.6A), which theoretically could be quite an abbreviated effort. Thus, parties will likely need to turn to private ADR options unless they can explain in detail to the court that far reaching settlement steps have already been taken by both sides, or perhaps that one of the litigants cannot afford his or her half of the cost of a private neutral.

The revised rule is somewhat controversial. The comment period was relatively short and no comments were disclosed by the court, though several respondents went public with their opposition to the change. In addition, several senior Article III judges were concerned that the freeing up of magistrate judges from settlement work would inexorably lead to an unconstitutional expansion of adjudications by the Article I magistrate judges. Read Judge Kane’s dissent concerning revised Rule 72.2 on magistrate judge consent jurisdiction here.

It is too early to speculate about the ultimate impact of the Rule 16.6 revision. Each judge retains the right to direct the parties, presumably either by motion or sua sponte, to pursue either ENE or an “other” (undefined) ADR proceeding:  this could presumably still be the traditional magistrate judge settlement conference, or more likely a private-sector mediation, or any of a host of different ADR approaches, such as binding arbitration, so-called med/arb (mediation, followed by binding arbitration), a mini-trial, or whatever the parties might jointly consent to. Public reports indicate that the dissenting senior judges are continuing with their traditional approach, and that some other district judges have granted requests for settlement conferences since the revision was implemented in December. Nonetheless, given the new approach, it seems likely that at least a few hundred cases each year will no longer receive free settlement help from the District Court.

There were approximately 700 settlement conferences convened in the District last year. Some 25% involved employment and ERISA disputes, 10% involved personal injury matters, and single-digit percentages were taken up by, in order, contract disputes, civil rights complaints, fair debt collection work, insurance disputes, intellectual property cases, and business and product liability matters. (Notably, the vast majority of these cases settled for less than anticipated defense costs through trial).

How will these now be handled? Although the D. Colo. clerk of the court is designated to “implement, administer, oversee, and evaluate” the court’s ADR program (Rule 16.6 D), the court has quite purposefully chosen not to assemble a referral roster of potential neutrals, as it does not wish to provide an imprimatur for any private person or group. It will thus be left to the ADR professionals in the district to help litigants make their way in the new paradigm.

It is worth noting that this new approach is the way that many federal districts already operate. For those raised in this district court, it might have been assumed that all 94 districts have magistrate judge settlement conferences, but that is not the case. For instance, the Utah federal court refers out its settlement cases, as does the Southern District of Florida, for the most part.

It is possible that the district court or the ADR-designee clerk of the court might later choose to establish a more formal program, or at least a roster of eligible neutrals. The Alternative Design Resolution Act of 1998, 28 U.S.C. § 651, found that “alternative dispute resolution, when supported by the bench and bar, and utilizing properly trained neutrals in a program adequately administered by the court, has the potential to provide a variety of benefits . . . .” The Act provides that the district designee, who should be knowledgeable in ADR practices and processes, “may also be responsible for recruiting, screening, and training attorneys to serve as neutrals and arbitrators” in the court’s ADR program.

Although the private sector ADR community in Colorado is very active (the Dispute Resolution section of the CBA has over 250 members), there are only a few seasoned veterans of this District Court who are serving as neutrals locally, mainly former magistrate judges and senior federal litigators. There is no formal “federal neutral” roster, and the FFA and other similar groups may wish to establish some training programs and eligibility rosters to help fill this gap. As Vice-Chair of the DR section of the CBA, I will personally be contacting the Federal Judicial Center and the Administrative Office of the U.S. Courts to find out what assistance they may make available pursuant to the Act.

Revised Rule:

D.C.COLO.LCivR 16.6 – ALTERNATIVE DISPUTE RESOLUTION

A. Alternative Dispute Resolution. Pursuant to 28 U.S.C. § 652, all litigants in civil cases shall consider the use of an alternative dispute resolution process. A district judge or a magistrate judge exercising consent jurisdiction may direct the parties to a suit to engage in an early neutral evaluation or other alternative dispute resolution proceeding. To facilitate settlement or resolution of the suit, the district judge or a magistrate judge exercising consent jurisdiction may stay the action in whole or in part during a time certain or until further order. Relief from an order under this section may be had upon motion showing good cause.

B. Definition of Early Neutral Evaluation. Early neutral evaluation means a nonbinding, non-adjudicative assessment of a case by a magistrate judge.

C. Disqualification of Neutrals. A magistrate judge serving as a neutral providing early neutral evaluation may be disqualified under the provisions of 28 U.S.C. §§ 144 or 455.

D. Designation of Court ADR Administrator. Pursuant to 28 U.S.C. § 651(d), the Clerk of the Court is designated to implement, administer, oversee, and evaluate the court’s alternative dispute resolution program.

Redline Edits:

D.C.COLO.LCivR 16.6 – A. Alternative Dispute Resolution. Pursuant to 28 U.S.C. § 652, all litigants in civil cases shall consider the use of an alternative dispute resolution process. At any stage of the proceedings, on a A district judge’s initiative or [sic – or] a magistrate judge exercising consent jurisdiction pursuant to motion or stipulation of counsel or the pro se parties, a district judge may direct the parties to a suit to engage in an early settlement conference neutral evaluation or other alternative dispute resolution proceeding. To facilitate settlement or resolution of the suit, the district judge or a magistrate judge exercising consent jurisdiction may stay the action in whole or in part during a time certain or until further order. Relief from an order under this section may be had upon motion showing good cause. Unless otherwise ordered by a judicial officer, cases exempt from this rule are:

1. those in which the plaintiff is a prisoner proceeding pro se; and

2. habeas corpus actions.

B. Definition of Early Neutral Evaluation. Early neutral evaluation means a nonbinding, non-adjudicative assessment of a case by a magistrate judge.

C. Disqualification of Neutrals. A magistrate judge serving as a neutral providing early neutral evaluation may be disqualified under the provisions of 28 U.S.C. §§ 144 or 455.

D. Designation of Court ADR Administrator. Pursuant to 28 U.S.C. § 651(d), the Clerk of the Court is designated to implement, administer, oversee, and evaluate the court’s alternative dispute resolution program.

Greg Whitehair, Esq., is a nationally certified mediator and arbitrator and Vice-Chair of the Dispute Resolution Section of the Colorado Bar Association. He is in the process of creating the website www.DColoADR.com to keep track of developments in the Colorado federal ADR community. He also owns IP Resolution Co. LLC, a national ADR consultancy specializing in intellectual property and high-tech commercial disputes. He can be contacted at jgw@ipresolutionco.com.
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Spark the Discussion: Broken Promises and Federal Threats – A Roller Coaster for the Medical Marijuana Industry

December 19, 2011 By Leave a Comment
“Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of medical marijuana law. This column is brought to you by Vicente Sederberg, LLC, a full-service, community-focused medical marijuana law firm.

By Christian Sederberg and Joshua Kappel

Medical Marijuana activists were ecstatic when President Barack Obama was elected in 2008 due to his campaign promises that an Obama administration would not use the U.S. Justice Department’s limited resources on circumventing state medical marijuana laws.

Shortly after President Obama’s inauguration, he appeared to be honoring that commitment. On October 19, 2009, then Deputy U.S. Attorney General David W. Ogden published a memorandum directing various U.S. Attorneys’ offices to not use “federal resources in [their respective] States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.” In response, medical marijuana activists and patients in Colorado and around the country began to step out of the darkness in large numbers. In Colorado, tens of thousands of patients signed up to receive their state medical marijuana cards from the Colorado Department of Public Health and Environment and numerous individuals began opening up small businesses to help patients obtain the medicine that their doctor had recommended to them. Due in large part to the need to regulate this rapidly expanding industry, the Colorado state legislature passed strict laws in the 2010 legislative session that created a statewide regulatory scheme for medical marijuana businesses.  Several other states quickly followed suit, and the so-called “green rush” was in full force. After facing hundreds of raids under President Bush’s administration, there was a great sense that the future was bright for the nation’s medical marijuana community.

However, things started to change in the first two years of Obama’s presidency. In February of 2011, Melinda Haag, the United States Attorney for the Northern District of California, sent a memo threatening federal criminal enforcement in response to a proposal by the city of Oakland to license large scale medical marijuana cultivation facilities that seemed to be outside the scope of California’s medical marijuana laws. This sparked a flurry of similar memos from various U.S. Attorneys reaffirming their commitment to enforce the federal Controlled Substance Act (CSA), including a memo from the recently appointed Colorado U.S. Attorney John Walsh and another memo from the Deputy U.S. Attorney General, James Cole. All of these memos maintained that prosecuting patients and their immediate caregivers was not a high enforcement priority of the federal government, but emphasized that the federal government reserves the right to prosecute anyone who violates the CSA, particularly large-scale, commercial medical marijuana businesses.

During this tumultuous time, the Colorado medical marijuana industry remained hesitantly optimistic because the federal government had taken what appeared to be a “hands off” approach to the state’s closely-regulated medical marijuana industry.  On December 8, 2011, that optimism grew when U.S. Attorney General Eric Holder reaffirmed—while being questioned by Colorado’s Rep. Jared Polis– that targeting Colorado medical marijuana businesses conforming with state laws is not a high priority for the federal government.  Watch the video here.

In a striking turn, the following week various news agencies reported that a confidential federal official was claiming that the government was considering a “crackdown” in Colorado on any medical marijuana business located near a school, despite an express allowance in the Colorado Medical Marijuana Code, C.R.S. 12-43.3-101 et seq., permitting localities to allow such businesses within a 1000 feet of a school. The federal crackdown will reportedly take the form of “landlord letters”, similar to the letters sent to landlords in California earlier this year, demanding that the landlord evict their medical marijuana business tenants within 45 days or face federal asset forfeiture.

The most recent letters in California did result in many businesses closing their storefront operations or relocating, even though there has been little actual federal enforcement action.

Matt Cook, the former head of the Colorado Department of Revenue’s Enforcement Division and considered by some to be the father of Colorado’s Medical Marijuana Code, found a silver lining in the recent federal threats.  Mr. Cook told the Denver Medical Marijuana Work Group on December 14, 2011 that the federal government’s actions could be seen as an implicit endorsement of our highly regulated system, specifically as it relates to all medical marijuana businesses not within 1000 feet of a school.

If President Obama breaks his campaign promise to respect state medical marijuana laws and his local US Attorneys make good on their threats, the President risks losing the votes of over 88,000 Colorado medical marijuana patients, their families, and supporters– which could make his path to reelection much more difficult in this battleground state.

Christian Sederberg, Esq., is a founding member of Vicente Consulting, LLC, a law firm providing legal solutions for the medical marijuana community. Christian has focused his practice on representing small and medium sized businesses, with a primary focus on real estate, commercial and business transactions. In addition, he provides general guidance to medical marijuana businesses, ancillary businesses, and caregivers about local and state medical marijuana ordinances, regulations and laws.

Joshua Kappel, Esq., recently graduated in the top 10% of his class at the University of Denver, Sturm College of Law. While in law school, Josh received both the Patton Boggs Public Policy Fellowship and the Public Interest Law Clerkship to work for Sensible Colorado. Josh also  interned with the National ACLU’s Drug Law Reform Project in Santa Cruz and the Colorado Criminal Defense Bar. 

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.
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Immigration Law: DHS – Pilot Project for Deportation Case Review in Denver

November 29, 2011 By Leave a Comment

Editor’s Note: The new CBA-CLE book Immigration Law for the Colorado Practitioner is now available for purchase. In addition to federal laws and regulations, lawyers must understand specific Colorado immigration laws and policies being implemented, and how they can affect their clients. This comprehensive reference covers an incredible range of practice issues, providing the necessary orientation, analysis, and authorities. It’s a new “must have” for the Colorado general practitioner, lawyers who focus their practice in areas that overlap with immigration law, as well as for lawyers who focus exclusively on immigration law. Click here for more information and to order.

The Department of Homeland Security will conduct a review of all pending deportation cases around the country to conduct a triage of the courts’ overwhelmed dockets. The review is intended to focus resources on deporting those who have committed serious crimes or pose national security risks.

The review will include six-week pilot projects in the immigration courts in Denver and Baltimore. During the pilot projects, teams of immigration agency lawyers will evaluate each case pending before those courts. Those cases which are not determined to fit with the government’s priorities may be administratively closed but will not be dismissed. The fact that a person’s case is administratively closed will not entitle him to any work permit or any other immigration status. Additionally, the administratively closed deportation case can be reopened in the future at any time the government chooses.

Click here to see the New York Times article on the review of deportation cases.

Aaron Hall is an associate attorney at the Joseph Law Firm and focuses his practice on immigration law. Aaron contributes to the Immigration Issues blog, where this post originally appeared on November 17, 2011.
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Spark the Discussion: Election Day 2011 – A Mixed Bag for Medical Marijuana in Colorado

November 16, 2011 By Leave a Comment
“Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of medical marijuana law. This column is brought to you by Vicente Sederberg, LLC, a full-service, community-focused medical marijuana law firm.

Election day has come and gone and, once again, numerous Colorado towns weighed in on marijuana policy.  Most notably, four communities rejected bans on medical marijuana businesses (Steamboat Springs, Oak Creek, Routt County, and Palisade) and three areas endorsed bans (Fort Collins, Yampa, and Brush).  A number of communities (Breckenridge, Commerce City, and Palisade) voted to enact higher taxes on medical marijuana sales.

Colorado has a rich history of tackling marijuana policy in the voting booth and most of these reform measures make their way to voters through the ballot initiative process.  Ballot initiatives are a form of “direct democracy” where a group of citizens gather signatures to place a measure on a local or state ballot.  The first Colorado community to use this process to shape marijuana laws was Breckenridge which passed a pro-medical marijuana initiative in 1994.  Next up was Amendment 20, Colorado’s landmark medical marijuana constitutional measure, passed by 56% of voters in the year 2000.  After that we saw campus initiatives which “equalized” marijuana and alcohol penalties under the student code of conduct pass in 2005 at both Colorado University and Colorado State University.  That same year Denver became the first city in history to legalize possession of small amounts of marijuana under its city code, while Telluride narrowly rejected a reform measure. Winding up the decade, both Breckenridge and Nederland passed progressive reforms relating to adult marijuana possession by wide margins.

We are now witnessing a backlash where, after almost two decades of voters passing pro-marijuana reform measures,  citizens in certain communities are banding together to advance anti-marijuana initiatives.  Most of these initiatives seek to ban dispensaries and other medical marijuana business from operating in the targeted community.   As noted above, these “prohibition measures” have been met with mixed feelings by voters.  As an example, last week’s vote to ban medical marijuana businesses in Fort Collins was stunningly close, with only 52% of voters supporting it.

Moving forward, we are likely to see more bans and medical marijuana taxes appear on local ballots as Colorado communities continue to grapple with this new policy topic.  However, the true pulse of Colorado voters will be measured by their support (or rejection) of the statewide marijuana legalization measure, the Initiative to Regulate Marijuana Like Alcohol.  Proponents of this initiative, of which I am one, believe that Colorado would be better off with marijuana being treated like alcohol—taxed, sold from licensed stores, and limited to use by adults 21 and older.  With about 118,000 signatures in hand (and a goal of 145,000) the campaign is poised to place the measure on the 2012 presidential ballot, thereby continuing Colorado’s vibrant conversation about marijuana policy.

Brian Vicente, Esq., is a founding member of Vicente Consulting, LLC, a law firm providing legal solutions for the medical marijuana community. He also serves as executive director of Sensible Colorado, the state’s leading non-profit working for medical marijuana patients and providers. Brian is the chair of the Denver Mayor’s Marijuana Policy Review Panel, serves on the Colorado Department of Revenue Medical Marijuana Oversight Panel, and coordinates the Colorado Bar Association’s Drug Policy Project.

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.
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Aaron Solomon: The Colorado Supreme Court Defines a Broad New Exception to Rule 26

November 8, 2011 By Leave a Comment

Editor’s Note: The Colorado Supreme Court issued its opinion in In re Averyt v. Wal-Mart Stores, Inc. on November 7, 2011.

In Averyt v. Wal-Mart Stores, Inc., (No. 11SA66) the Colorado Supreme Court held that publicly available documents need not be disclosed pursuant to Rule 26.

In this case the plaintiff slipped and injured herself on a grease spill at a Wal-Mart store. At trial, as it had throughout discovery, Wal-Mart claimed that no such grease spill had occurred. The plaintiff impeached this testimony with questions based on a previously unproduced report from the City of Greeley documenting a grease spill that it had located during the trial. After its objection to the use of the report was denied by the trial court, Wal-Mart entered the report into evidence while rehabilitating its witness. The next morning, Wal-Mart informed the plaintiff that it had located a witness who remembered the spill, and numerous documents corroborating the existence of the spill. After it (not surprisingly) lost at trial, Wal-Mart sought and received a mistrial based in part on the plaintiffs’ purported failure to disclose the Greeley report.

The Colorado Supreme Court held that CRCP 26 did not apply to the Greeley report (and hence there was no duty to disclose it) because it was a public document equally available to all parties. It further held that “nothing in Rule 26 requires disclosure by a party of documents which it would not be required to produce, if requested, under C.R.C.P. 34.” The court held that “[w]e expressly adopt this rule because a contrary rule would require continuing disclosure by one party of voluminous information that the party discovers in the public domain . . . . The burden imposed upon the parties by such continuing disclosure outweighs any benefit of expediency gained by automatically sharing the information where, as here, the public information is readily available and equally accessible to both parties.”

Justice Marquez, joined by Justice Coats, concurred with the judgment in part and wrote separately to express the belief that the rule announced by the Court was too broad and allowed parties to hide responsive and relevant documents in their possession so long as the documents were “public.” The Justice expressed the concern that such documents might be exempt from disclosure even when they went to “disputed issues of knowledge.”

Interestingly no one commented on the irony of Wal-Mart, which appears to have violated its discovery obligations by concealing (or at least failing to locate) documents and a witness relating to the spill, being the party complaining about a failure of disclosure.

Aaron Solomon is an associate at Hale Westfall and focuses his practice on both commercial litigation and public policy/appellate law. He contributes to the firm’s Rocky Mountain Appellate Blog, where this post originally appeared on November 7, 2011.
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Spark the Discussion: Medical Marijuana Law and Policy

October 19, 2011 By Leave a Comment
“Spark the Discussion” is a monthly Legal Connection column highlighting the hottest trends in the emerging field of medical marijuana law. This column is brought to you by Vicente Sederberg, LLC, a full-service, community-focused medical marijuana law firm.

I’ll start with a bold prediction: marijuana reform and same-sex marriage are the two policy areas in which young lawyers will see major movement in their lifetimes. These two “controversial” topics stand at the crossroads of a shift in society, with the younger generation pushing for increased tolerance of alternative lifestyles—whether it’s marriage choice or an individual’s decision to medicate—or recreate—with marijuana—and older Americans increasingly accepting that, at least with these two topics, change is inevitable.

This article will focus on medical marijuana law and policy—a dynamic field that an increasing number of Colorado lawyers are facing in their everyday practice. Currently, sixteen states (and the District of Columbia) have passed statewide medical marijuana laws, and a half-dozen others are poised to take similar action. What started largely as an area within criminal law practice—a small number of lawyers defending medical marijuana patients accused of criminal violations—has expanded into a cottage industry impacting nearly every area of legal practice. This column will highlight some of those areas and discuss the future of this hot topic.

Before reading further, please note that while medical marijuana is legal in Colorado and a growing number of states, and literally thousands of doctors recommend it every year for sick patients, it remains firmly illegal under federal law. Given these conflicting state and federal stances, it’s crucial that lawyers practicing in this area closely follow emerging trends and policies.

  • Business Law:
  • Colorado and several other states have medical marijuana laws with provisions allowing for retail stores known as dispensaries to sell marijuana to qualifying patients.  Budding entrepreneurs need guidance from attorneys who understand not only medical marijuana laws, but also traditional business law. All facets of corporate law, from drafting  operating agreements to negotiating commercial transactions, come into play with the operation of dispensaries.
  • Family Law:
  • An increasingly common theme in the family law realm is the presence of medical marijuana in custody battles or divorce proceedings. Often these disputes arise not from actual neglect or abuse, but merely from the presence of marijuana in the home. Patients need solid guidance to keep this—and all medicine—firmly away from children. There is a desperate need for lawyers who understand both medical marijuana law and family law and can advocate appropriately when the two areas overlap.
  • Elder Law:
  • As medical marijuana patients age they often end up in nursing homes or in-patient hospice care. When Maine’s medical marijuana law changed last November, the state expressly permitted nursing homes and hospice workers to act as registered medical marijuana caregivers for patients. Other states are silent on this issue. Large questions remain about federal funding for this type of care and how one patient’s possession of a federally-illegal substance could place others at legal risk.
  • Civil Law:
  • Legal medical marijuana businesses have the same problems as other, more mainstream businesses, and partnership disputes by owners of such stores are commonplace in Colorado. Some owners came out of a less-mainstream past, and built a million-dollar business without signing an operating agreement. In these messy situations, civil litigation is often the only remedy.
  • Election and Municipal Law:
  • The passage of a statewide medical marijuana law is invariably followed by conservative municipalities attempting to ban sales and cultivation within municipal borders. When Colorado passed a dispensary law in 2010, around 50 municipalities put measures on their local ballots to ban these retail shops in their communities. Whether through ballot initiative or action by a government body, there is a real opportunity for lawyers who understand election and municipal law to engage in this area.
  • First Amendment:
  • The most common complaint from community members about dispensaries is that they have offensive signage. While polls consistently show that roughly 80% of Americans support medical marijuana, most citizens don’t want it shoved in their face. Medical marijuana business owners need lawyers to explain their rights—and encourage discretion.
  • Intellectual Property Law:
  • “Can we patent the recipe for my marijuana cheesecake?” This question may seem peculiar, but my office gets several calls a week of this nature. As more patients turn to alternate forms of administering medical marijuana, such as through edibles or tinctures, interesting questions arise concerning protecting the manufacturer’s recipes and formulas.
  • Criminal Law:
  • As long as federal law continues to classify marijuana as a Schedule I Controlled Substance—the most dangerous and addictive class of drugs—there will be work for criminal defense attorneys representing medical marijuana patients and providers in federal court. On the state and local level, authorities continue to zealously target adults for marijuana crimes,  arresting over 750,000 citizens for possession of marijuana annually. That’s the equivalent of arresting every man, woman, and child in the state of Wyoming once a year!

As young attorneys in Colorado, we have an incredible opportunity in the field of medical marijuana law. Unlike property law or criminal law, this area is new and has very little case precedent. The young idealist attorney will fight out these important cases in the courtroom and establish laws that make sense both for the patient and the community.

Many lawyers initially chose this patient-centered line of work because they believed the time had come to pursue a more common-sense approach to marijuana and drug policy in America. Now, as lawyers from a diverse range of practice areas are entering this arena, let’s hope all remain true to the core principles that attracted most of us to this work:

Patients before politics; patients before profits.
Brian Vicente, Esq., is a founding member of Vicente Consulting, LLC, a law firm providing legal solutions for the medical marijuana community. He also serves as executive director of Sensible Colorado, the state’s leading non-profit working for medical marijuana patients and providers. Brian is the chair of the Denver Mayor’s Marijuana Policy Review Panel, serves on the Colorado Department of Revenue Medical Marijuana Oversight Panel, and coordinates the Colorado Bar Association’s Drug Policy Project.
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Jennifer Gokenbach: Proposed Denver Paid Sick and Safe Time Ordinance – Nothing To Sneeze At

September 12, 2011 By Leave a Comment

Promoting public health? Sounds good. Making sure working adults stay at home when they are sick? I’m on board. Flexible and supportive working environment? Of course, who doesn’t want that.

Voters in San Francisco, Washington D.C., Milwaukee, and Connecticut were motivated by these ideals when passing paid sick leave ordinances or bills in their cities or state (although Wisconsin Governor Scott Walker nullified Milwaukee’s bill after it was passed). You can bet voters in Denver, too, will be equally motivated by these ideals and the desire to help working families and low income wage earners when deciding Ballot Initiative 300 in November 2011.

But, what exactly is the proposed Denver Paid Sick and Safe Time Ordinance (PDF), and is it really a good idea for Denver? As with any new legislation, the text of the legislation itself is where the rubber meets the road so to speak, and provides critical insight into the protections afforded, as well as the possible unintended consequences.

Key Provisions of Denver’s Proposed Paid Sick and Safe Time Ordinance

  • Provides paid sick and safe time leave for all employees within the geographic boundaries of the City and County of Denver, including part-time and temporary employees, who work at least 40 hours a year (federal and state government employees and union members are exempt).
  • All Colorado employers who employ eligible workers in the City and County of Denver must comply, regardless of size, but new businesses are exempt during their first year of operation.
  • Paid leave would accrue at the rate of 1 hour for every 30 hours worked.
  • Large employers, defined as employers with 10 or more employees, must offer up to 72 hours, or 9 days, of paid leave each calendar year.
  • Small employers, defined as those with less than 10 employees, must offer up to 40 hours, or 5 days, of paid leave each calendar year.
  • Up to 72 hours, or 9 days, of paid leave may be carried over from year to year.
  • Paid leave may be taken after 90 days of employment, and may be taken in as few as 1 hour increments.
  • No advance notice is required for an employee to take leave.
  • No documentation is required until the employee takes 3 or more consecutive days off.
  • Employers cannot require employees to search for, or provide, a replacement worker to cover the hours missed.
  • Employers cannot “take retaliatory personnel action or discriminate” against employees exercising their sick and safe time rights.
  • Paid leave can be taken for:
    • An employee’s own mental or physical illness, injury, health condition, need for medical care or treatment, or need for a medical procedure or preventative medical care;
    • To care for an employee’s family member’s mental or physical illness, injury, health condition, need for medical care or treatment, or who needs a medical procedure or preventative medical care;
    • The closure of the employee’s place of business, or to care for a child whose school or place of care has been closed, due to a public health emergency;
    • To seek a civil protection order to prevent domestic abuse pursuant to Section 13-14-102, C.R.S.;
    • To obtain medical care or mental health counseling, or both, for the employee or employee’s children to address physical or psychological injuries from domestic abuse, stalking, sexual assault, or other crime involving domestic violence;
    • To make the employee’s home secure, or to seek new housing, due to domestic abuse, stalking, sexual assault, or other crime involving domestic violence; and
    • To seek legal assistance to address issues arising from domestic abuse, stalking, sexual assault, or other crime involving domestic violence, and attend or prepare for court-related proceedings.

Unclear and Potentially Troublesome Provisions

1.  Definition of “Family Member” Too Broad

Although seemingly modeled after the San Francisco and D.C. bills, Denver’s new paid leave ordinance includes a far broader definition of “family member” than any prior bill passed. It includes:

  • A person related by blood, marriage or legal adoption, including a child, parent, spouse, sibling, grandparent, or grandchild of the employee;
  • A foster child, parent, sibling, grandparent, or grandchild of the employee;
  • A child to whom the employee stands in loco parentis or for whom the employee is the legal guardian;
  • The employee’s domestic partner;
  • The spouse of an employee’s child, parent, sibling, or grandparent;
  • A legal guardian of the employee or a person who stood in loco parentis to the employee when he or she was a minor;
  • A parent of the employee’s spouse; or
  • Any other individual related by blood or affinity whose close relationship is equivalent to a family relationship.

The spouse of an employee’s sibling? Call me crazy, but I think it is a real problem to obligate a small business owner to provide paid time off for an employee to take his or her sister’s husband to a routine doctor’s appointment. Or, to leave open all the possible individuals covered under the vague phrase “any other individual related by blood or affinity whose close relationship is equivalent to a family relationship.” I wonder when we would see the first complaint involving a worker claiming that his or her college roommate is “like family.”

2.  Unclear How to Count Number of Employees or Who May Be Eligible

It is unclear how employers will be required to count their number of employees to determine the amount of leave benefits that must be offered.  The definition of employer includes all businesses in the State of Colorado.  But, the definition of an eligible employee is anyone employed within the geographic boundaries of the City and County of Denver.  So, for purposes of determining the amount of leave benefits, are employers required to count all employees in Colorado, or only those employed within the City and County of Denver?

Likewise, if employees need only be employed in the City of County of Denver for 40 hours a year to be eligible, is a worker whose main office is located elsewhere in Colorado, but who travels to Denver frequently throughout the year for deliveries or to conduct business, eligible for the mandated leave benefits?

3.  No Advance Notice Required

Where other paid sick leave bills expressly authorize employers to require reasonable notice to be given where practicable when an employee’s need for leave arises, Denver’s new proposed ordinance vaguely says that employers “may not impose unreasonable barriers to use of paid sick and safe time.”  What does that mean?  An “unreasonable barrier” in one instance could be reasonable under different circumstances.  The use of such vague language, rather than clear language allowing employers to require advance notice where practicable, in my view, tips the scale of this legislation away from fair and balanced, and only invites litigation.

4.  Employers Prohibited From Requesting Documentation

Additionally, where other sick leave bills allow employers to require appropriate documentation to support the leave to prevent abuse, Denver’s proposed ordinance prohibits employers from requesting any documentation, until after 3 consecutive days of absence.

5.  Employers Already Offering Generous Leave Benefits Not Necessarily Exempt

Finally, even though the new ordinance attempts to exempt employers who already provide vacation or personal time off (PTO) in an amount equivalent or greater than the mandated 9 (or 5) days of leave benefits, the rub is that employers must allow the vacation or PTO “under the same conditions as paid sick and safe time” – meaning that if the other leave benefits require prior notice or documentation, this new leave bank must be provided in addition.  This is another major difference between Denver’s proposed sick leave ordinance than those passed in San Francisco, D.C. and Connecticut. At least in those ordinances or bills, employers who offered more leave days than that legislatively mandated, were deemed in compliance, without all the other restrictions.

Food for Thought

The Agency for Human Rights and Community Relations (staffed currently by 10 people) in Denver would be responsible for implementing and administering this new law, taking complaints, conducting investigations, holding hearings, providing conciliation, issuing orders, and imposing fines. With only 10 individuals currently in the Agency, the implementation of this new ordinance along with a potential influx of complaints may likely require expansion, using already-tight taxpayer dollars.

Everyone knows that successful, long-term and mutually beneficial employment relationships require employees and employers to work together, and there are a multitude of good employers in Denver and throughout Colorado who bend over backwards to keep their workforce happy with generous benefit packages. I am certainly not advocating that employees come to work sick or face losing their job if their child is sent home from school sick.

But, is imposing overly broad, vague legislation with unusually restrictive obligations on large and small employers alike, however good in principal, what Denver needs in this economic climate? Governor John Hickenlooper and Mayor Michael Hancock say no, and it is now up to Denver voters to decide in November.

Jennifer Gokenbach is Of Counsel at Ogletree Deakins and focuses her practice on management side trial work and counseling on a wide range of employment law issues. She blogs at Colorado Employer’s Law Blog, where this post originally appeared on September 10, 2011.

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.
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Joe Lusk: Explore New Practice Areas with Co-Counseling Agreements

September 12, 2011 By Leave a Comment

A co-counseling arrangement can allow a solo or small firm lawyer to explore new and complex areas of law.  Co-counseling agreements may also allow a lawyer to take on matters that he or she might not otherwise feel comfortable taking on.  The co-counseling arrangement does all of this, while significantly reducing the danger of committing malpractice. Consider the following situations:

  1. You are an experienced civil litigator and would like to branch out into criminal defense work.  A potential client who has been charged with a serious felony approaches you and you don’t feel comfortable taking this on alone as your first criminal case.
  2. You are an experienced criminal defense lawyer, but have never taken on a divorce matter.  A potential client approaches you with a new matter involving complex issues concerning the children and division of assets.  There are child abuse allegations on both sides, and the husband owns his own business that is worth several million dollars.
  3. You are an experienced civil litigator, who is approached with a multimillion dollar medical malpractice case.  Although you have litigated many personal injury cases, you have never even seen a medical malpractice case, and you have no medical background.

In the above scenarios, would you be inclined to take on these cases?  Would you have reservations about your ability to effectively represent your client?  If your answer to both of these questions is yes, you may want to consider a co-counseling arrangement with another lawyer who has experience in the areas of concern.  In fact, you may be required to do so – see Goff v. People, 35 P.3d 487 (Colo. O.P.D.J. 2000).

The two important written documents for the co-counseling arrangements are your fee agreement, which must authorize a co-counseling arrangement, and a co-counseling agreement with your co-counsel.

The fee agreement with the client should include not only your client’s authorization to hire co-counsel but also an authorization concerning the critical terms of the co-counseling agreement, including, perhaps most importantly, the fees for each of the lawyers.

The co-counseling agreement should be specific as to each lawyer’s role in the matter.  Specifically, the co-counseling agreement should identify which lawyer is the lead counsel (especially in the event of litigation); the fee arrangement for each lawyer; who is responsible for collecting fees; and the procedure for lawyers consulting with each other.  It is important to note that before entering into any co-counseling arrangement, both lawyers should have malpractice insurance in effect.  The representation of the same party should be reflected in the written co-counseling agreement.

In any type of litigation, the co-counseling agreement should identify whether each lawyer should review the pleadings for final approval before they are filed.

A co-counseling agreement can add variety to your practice, increase your number of colleagues, and allow you to see whether you might want to delve more into a new practice area.

Joe Lusk is an attorney with Boatright & Ripp, LLC in Wheat Ridge, Colorado. His practice includes emphases in personal injury and criminal defense. Joe chairs the Solo/Small Firm Section of the Colorado Bar Association and contributes to the CBA’s SOLO in COLO blog, where this post originally appeared on August 30, 2011.
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