August 18, 2019

Spark the Discussion: The Inevitability of Marijuana Legalization

“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.

Spark the Discussion: Broken Promises and Federal Threats – A Roller Coaster for the Medical Marijuana Industry

“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.

Spark the Discussion: Election Day 2011 – A Mixed Bag for Medical Marijuana in Colorado

“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.

Proposed Legislation for Paid Sick and Safe Time Fails to Pass in Denver

Initiative 300, which would have required Denver employers to provide paid sick and safe time to their employees, was rejected by Denver voters in yesterday’s election. The issue failed by a 2-1 ratio. The initiative would have required city employers to give workers paid sick days at a rate of one hour off per every 30 hours worked. Large businesses would have had to supply up to nine days of paid leave per year, with small businesses having that number capped at five.

Initiative 300 was the subject of a Legal Connection point/counterpoint discussion last month. Those articles can be found here and here.

Mark Your Calendars: Two Denver Mayoral Debates to be Held Tuesday, April 19

Denver’s mayoral election is fast approaching. Ballots will be mailed on April 14 for the May 3 election; should no candidate receive more than fifty percent of the vote in May, a run-off between the top two vote-getters will be on June 7. Before you cast your vote, two Denver groups will be hosting debates with the top tier candidates on Tuesday, April 19. The events are open to the public and will be a great way to get informed about each candidate.

  • Warwick Denver Hotel
    • 1776 Grant Street
      Denver, CO 80203
    • 4:00 – 6:00 pm
    • Hosted by Law Week Colorado and co-sponsored by the Colorado Women’s Bar Association in conjunction with other legal organizations and specialty bar associations.
    • Confirmed candidate participants, to date: Carol Boigon, Michael Hancock, Doug Linkhart, James Mejia, Chris Romer, and Theresa Spahn.
  • Seawell Grand Ballroom of the Denver Center for the Performing Arts
    • 1101 13th Street
      Denver, CO 80202
    • 7:00 – 9:00 pm
    • Hosted by “Colorado Now with Aaron Harber”
    • Confirmed candidate participants, to date: Carol Boigon, Michael Hancock, Doug Linkhart, James Mejia, and Chris Romer.
    • For more information click here, and to RSVP up to six seats click here.

Don’t miss these exciting debates and your chance to learn more about the candidates firsthand!

Finalists Selected to Fill Judgeships in Eighth Judicial District

The Eighth Judicial District Nominating Commission has nominated six candidates for two district court judgeships created as a result of Judges Jolene C. Blair and Terence A. Gilmore not being retained by a majority of voters in the November 2010 election. The vacancies will occur on January 11, 2011.

Nominees for the bench are Julie Kunce Field, Stephen Enderlin Howard, John A. Jostad, Norman Allan Townsend, and Matthew Richard Zehe, all of Fort Collins, and David M. Herrera of Bellvue. All were selected by the commission in a meeting from December 6-7, 2010.

Under the Colorado Constitution, Governor Ritter has until December 23, 2010, within which to appoint two of the nominees as district court judges for the Eighth Judicial District, serving Jackson and Larimer counties.

Comments regarding any of the nominees emailed to the Governor’s office.

Judge W. Michael Porter of Baca County Voted Out

As reported by Law Week Colorado, Fifteenth Judicial District Judge W. Michael Porter was not retained in Tuesday’s retention election by a slim margin. He received a unanimous recommendation in favor of retention by the district judicial performance commission.

With only military and overseas ballots to be counted as of Thursday, Judge Porter has received 50.8% of votes against his retention. Judge Porter had been retained in three previous elections since his appointment to the court in 1995. He will serve out his term on the bench, which ends on January 11, 2011.

The Fifteenth Judicial District nominating commission will convene to recommend replacements to outgoing Governor Bill Ritter, who will appoint Judge Porter’s replacement. The nominating commission is comprised of four Republicans and three Democrats.

All Colorado Supreme Court Justices Retained in Election

As reported by Law Week Colorado, all three Colorado Supreme Court justices up for retention garnered enough support to stay on the bench in Tuesday’s election. Justices Michael Bender, Alex Martinez and Nancy Rice had seen a surge of opposition to their retention bids by Clear The Bench Colorado, which took issue with their rulings on several cases, including the Taxpayer Bill of Rights, or TABOR.

Overall, the margins for victory of the justices were lower than usual in such retention elections. Usually, justices receive 65-75% of supportive votes. Tuesday’s election, fueled by the Clear The Bench Colorado campaign and the poor economy, drew less support for the justices, but not a drastic of fall off from the average. “About 59.3 percent voted to retain Martinez, 60.2 percent voted to retain Bender and 61.7 percent voted to retain Rice. In the last election, 72.4 percent voted to retain Justice Gregory Hobbs and 74.6 voted to retain Justice Allison Eid.”

Elsewhere, three Iowa Supreme Court justices faced a stronger campaign against their retention, and all three lost their bid. The justices were part of the unanimous decision last year allowing same-sex marriage in the state. The vast majority of money raised in the campaign against them came from outside Iowa.

Judge Evaluations Available Online August 3

Evaluations and recommendations for the 134 Colorado justices and judges up for retention in this fall’s general election will be available for public review on Tuesday, State Judicial announced yesterday.

The State Commission on Judicial Performance, together with local judicial evaluation commissions, surveyed over 63,000 Coloradoans having professional encounters with members of the state’s judiciary to evaluate the justices and judges on their “integrity, legal knowledge, communication skills, judicial temperament, and administrative performance.” The commissions reviewed these surveys alongside data from other sources to form the basis of their recommendation for retention for individual justices and judges.

The Judicial Performance Review for each judge is available on the State Commission website as of the afternoon of Tuesday, August 3. Also available online are sample questionnaires used in the commissions’ survey, FAQs, and relevant statutes and rules pertaining to the retention of Colorado’s judiciary.