VIA ELECTRONIC MAIL Attorney.General@state.co.

us
AND FACSIMILE 303-866-5691

May 27, 2011

The Honorable John Suthers

Colorado Attorney General
1525 Sherman Street, 7th Floor
Denver, CO 80203

Re: Effort to Confer on Legal Challenge to Medical Marijuana

Legislation, House Bill 10-1284 and Senate Bill 10-109

Dear Attorney General Suthers:

On April 26, 2011, you sent a letter to Colorado Governor John

Hickenlooper and Members of the Colorado General Assembly suggesting that
state government officials defending or implementing Colorado’s medical
marijuana laws are subject to federal criminal prosecution for violation of federal
controlled substances laws. Thus, your letter implies that you and your staff
would be committing a federal criminal offense if you defend against legal
challenge the “scheme” (as you call it) created by HB 10-1284 and SB 10-109.

Given your belief, it would make sense for you to assess at the threshold
whether your office would be the proper entity to defend HB 10-1284 and SB 10-
109 against my contemplated legal challenge, detailed below.

To summarize, I am an attorney specializing in Marijuana who represents a

coalition of Medical Marijuana patients, caregivers, business owners,
professionals, and voters, who plan to file a State District Court lawsuit
challenging unconstitutional and illegal aspects of House Bill 10-1284 and Senate
Bill 10-109, principal aspects of which will become effective July 1, 2011.
Implementing regulations will also become final shortly, and these regulations in
some instances exacerbate the constitutional affront of this legislation.
 The legal action will likely include a request for declaratory relief related to
the facial and as applied constitutionality of the two pieces of legislation.

I write this letter to comply with C.R.C.P. Rule 121, requiring me to confer
with you to reach some agreement on any disputed issues before involving the
Court, and also in hopes of conserving Colorado taxpayers’ limited resources
during these lean economic times. My clients and I are ready, willing, and able to
pursue this litigation, but would prefer to resolve, or at least clarify, as many issues
as possible before bringing the case.

To my knowledge, I am the only attorney in Colorado to prevail in Medical

Marijuana-related litigation involving federal, state, and local entities. I have tried
more jury trials related to Medical Marijuana than all other attorneys in Colorado
combined, and such criminal prosecutions can end with “not guilty” verdicts and
my client departing the courthouse with all Medical Marijuana seized. I provide
you this brief summary of my qualifications to demonstrate that my clients are
serious about this lawsuit, and serious about prevailing. My clients are suffering
now from this legislation, which causes them immediate harm, and violates their
civil and constitutional rights.

However, my clients are also serious about compromising to avoid costly

and uncertain court battles, if we can find some common ground.

A global concern with both HB 10-1284 and SB 10-109 is that the

Legislature has acted too late in regulating Medical Marijuana. The Constitution
provides: “Not later than April 30, 2001, the General Assembly shall define such
terms and enact such legislation as may be necessary for the implementation of
this section, as well as determine and enact criminal penalties …”. Colorado
Constitution, Article XVIII § 14(8) (emphasis added). The voters enacted the
constitutional provision in November 2000, and it was reasonable to expect the
legislature to act within six months thereof, which the legislature did in 2001,
enacting C.R.S. § 18-18-406.3, effective April 27, 2001.

Citizens had well-settled expectations and acted and made investments in

reliance on the former laws. In changing the rules significantly well after people
had relied on the previous regime, the State violates Article XVIII § 14(8) and
commits a regulatory “taking” and deprivation of property interest, for which it
must pay just compensation for all property interests taken pursuant to the
Colorado Constitution, Article II §§ 14, 15 (generic “takings” clause); and Article
XVIII § 14(2)(e) (specific protection for “any” property interest related to medical
marijuana).

Instead of the State compensating each property owner for the full value of
their taken property interests, it would minimize the State’s fiscal exposure for you
to stipulate that to the extent the new laws deprive people of existing businesses,
they are unconstitutional and that said business can re-open without penalty.

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 Another global concern with both of these bills is that they limit patient
access to medicine through a host of artificial devices, limiting patient choice of
place or type of medicine and increasing costs.

Specific constitutional problems with these bills include, but are not limited
to, the following (page references are to the final versions signed by Governor Bill
Ritter -- a co-conspirator to a violation of federal law under your analysis -- but I
also include the citation from the Colorado Revised Statutes for your
convenience):

I. House Bill 10-1284

Page 2 (C.R.S. § 12-43.3-102): Makes it unlawful to “cultivate, manufacture,

distribute, or sell medical marijuana, except in compliance with” the Constitution
and H.B. 1284. The statute cannot make it unlawful to the extent such
prohibitions are inconsistent with the Constitution, and these inconsistencies are
legion, detailed below.

Page 3; Page 6 (C.R.S. § 12-43.3-103(2)(a); § 12-43.3-106); Page 22 (C.R.S. § 12-

43.3-310(1)): Permits a local jurisdiction to prohibit the cultivation or sale of
medical marijuana. In such jurisdictions, amends and restricts the constitutional
affirmative defense only to those registered as a patient or primary caregiver
pursuant to C.R.S. § 25-1.5-106, although the constitutional affirmative defense
itself requires no such registration and does not empower local governments to
override the constitution. This “local ban” option is inconsistent with the Court’s
holding in the Centennial case, above. Local governments cannot ban a
constitutional right, especially when the effect of such a ban is to limit patient
access to necessary medicine.

Page 3 (C.R.S. § 12-43.3-103(2)(b); Page 30 (C.R.S. § 12-43.3-402(4)): By

September 1, 2010, requires a business or operation to “certify that it is cultivating
at least seventy percent of the medical marijuana necessary for its operation.”
Some might call this progress: it empowers government to prosecute or otherwise
penalize for-profit businesses for not growing enough marijuana! No other
business in America has a similar requirement; imagine if a grocery store had to
itself grow 70% of all produce on the shelves. Legislators admit the 70% figure
was completely fabricated out of thin air without rationale. Such an arbitrary
requirement could not survive even the lowest level scrutiny, rationality review.
Since it implicates a fundamental right, this figure must survive strict scrutiny,
which it cannot.

Page 4-5 (C.R.S. § 12-43.3-104(8)): Defines “Medical Marijuana Center” as a

person licensed to sell marijuana, but explicitly who is not a primary caregiver.
This creates an extra-constitutional mechanism to sell marijuana since only
caregivers and patients have the constitutional protection to do so. Your office

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and other prosecutors have expressed the opinion that the Legislature cannot
“expand” the parameters of the constitutional protection for the medical use of
marijuana.

Page 7 (C.R.S. § 12-43.3-201(b)): Requires the Department of Health and

Environment to loan to the State Licensing Authority (Department of Revenue)
the sum of $1,000,000 from the Medical Marijuana Case Fund created by C.R.S. §
25-1.5-106. This is the fund first created by the Colorado Constitution, Article
XVIII § 14(3)(i), which provides that the health agency’s fees charged to patients
pay only for costs of administering the state health agency’s costs associated with
its role in the program, but not for the Department of Revenue.

Page 17-18 (C.R.S. § 12-43.3-307(1)(a)(II) and (V)): Prohibits a person “whose

criminal history indicates he or she is not of good moral character” or “reputation”
from holding a license.

Page 18 (C.R.S. § 12-43.3-307(1)(a)(VIII)): Prohibits a person from holding a

license under this section who has discharged a felony sentence within five years
for any felony, and a lifetime ban for felons convicted of possession, distribution,
or use of a controlled substance. These “good moral character,” “reputation” and
criminal history restrictions violate Double Jeopardy protections in the Colorado
Constitution, Article II § 18, Due Process requirements, Article II § 25.

Page 19 (C.R.S. § 12-43.3-307(1)(a)(XIII); Page 23 (C.R.S. § 12-43.3-310(6)):

Prohibits a person who has not been a Colorado resident for two years, or before
December 15, 2009, from holding a license as an owner, and prohibits non-
residents, without the time limitation, from serving as employees. These
restrictions violate the U.S. Constitution’s Commerce Clause Article I § 8, the
“Right to Travel” as in the Privileges and Immunities Clause of the U.S.
Constitution, Article IV section 2.

Page 20 (C.R.S. § 12-43.3-308(a)): Prohibits a license from being issued for any
location 1000 feet away from a location where a license has been previously
denied, even if the applicant in question had no knowledge of, or involvement in,
the previous denial. This restriction is simply irrational and cannot survive strict
scrutiny or even rationality review.

Page 21 (C.R.S. § 12-43.3-308(d)(I)): Prohibits a license from being issued for a

location 1000 feet from a school, alcohol or drug treatment facility, college,
university, seminary, or day care. Locals are permitted to increase, decrease, or
eliminate the distance restrictions. There has never been a single documented case
of an unauthorized child obtaining marijuana from a dispensary. The 1000 foot
figure and the choice of particular facilities is arbitrary, and this provision too is
irrational and cannot survive strict scrutiny or even rationality review.

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Page 30 (C.R.S. § 12-43.3-402(4)): Prohibits licensees from purchasing or selling
in excess of 30% of its total on-hand inventory. The 30% figure is arbitrary and
was picked out at random by the legislature. No other industry in America is
subject to similar restrictions, which belie basic free market concepts.

Page 40 (C.R.S. § 12-43.3-901(4)(b)): Prohibits licensees from using “advertising

material that is misleading, deceptive, or false, or that is designed to appeal to
minors.” The latter standard is vague, unenforceable, and unconstitutional on its
face in violation of the First Amendment as a content-based prior restraint on free
speech and is not viewpoint-neutral. Many things that appeal to minors can also
appeal to adults. I love watching Sponge Bob with my daughters.

Page 45 (C.R.S. § 25-1.5-106(4)): Provides that the if the state health agency
promulgates rules, it need not provide notice of the rulemaking proceeding except
by publication in a newspaper of general circulation and posting on the agency’s
web site. This truncated notice requirement violates the settlement and Court
Order your office voluntarily entered into in the case of LaGoy v. Ritter, Denver
District Court Case No. 2007CV6089, which requires the health agency to notify
every Colorado patient on the Registry in writing of any proposed changes in
regulations related to medical marijuana. The Legislature cannot release the State
from a binding contractual obligation under the ex post facto clause and the
prohibition on impairment of contracts in both the federal and state constitutions.
U.S. Constitution, Article I § 10; Colorado Constitution, Article II § 11.

Page 45 (C.R.S. § 25-1.5-106(5)): Prohibits (a) a primary caregiver from

delegating to any other person authority to provide medical marijuana or engaging
others to assist in providing medical marijuana; (b) two or more primary
caregivers from joining together for the purpose of cultivating marijuana. These
provisions violate the Colorado Constitution, Article XVIII § 14, establishing
constitutional protections for medical marijuana, as well as associational and
assembly rights in the federal and state constitutions. U.S. Constitution, First
Amendment; Colorado Constitution, Article II § 24.

Page 46 (C.R.S. § 25-1.5-106(5)(d)): Requires a caregiver to provide registry card

numbers from the confidential registry card on demand of law enforcement. Then
the health agency is permitted to confirm whether a person is a medical marijuana
patient to law enforcement, without any waiver on the part of the patient. This
violates the confidentiality conferred on patients and caregivers by the Colorado
Constitution, Article XVIII § 14(3)(a).

Page 46 (C.R.S. § 25-1.5-106(6)(a)): Recycles the old limit of five registered

patients per caregiver struck down by the Denver District Court in the
aforementioned LaGoy v. Ritter case. This arbitrary limit violates the Colorado
Constitution and its definition of primary caregiver. Article XVIII § 14(1)(f). It
will cause needless human suffering for the same reasons the Denver District

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Court previously granted a preliminary injunction against the Five Patient Limit
the first time.

Page 46 (C.R.S. § 25-1.5-106(6)(b)): Provides that a patient shall have only one
caregiver at a time. This arbitrary prohibition is inconsistent with and violates the
Colorado Constitution and its definition of primary caregiver. Article XVIII §
14(1)(f). It also significantly limits patient access and choice of medicine because
there are a variety of reasons patients need multiple caregivers, for variety, uneven
participation by caregivers, crop loss, and so forth.

Page 46 (C.R.S. § 25-1.5-106(6)(c)): Provides that a patient who has designed a

primary caregiver cannot be designated as such by another patient. This
prohibition violates the Colorado Constitution and its definition of primary
caregiver. Article XVIII § 14(1)(f).

Page 46-47 (C.R.S. § 25-1.5-106(6)(d)): Provides that a primary caregiver many

not charge a patient more the cost of cultivating or purchasing marijuana. This
arbitrary limit violates the Colorado Constitution and its protection of primary
caregiving activities. “Medical use” includes “acquisition” of marijuana, Article
XVIII § 14(1)(b), and the constitution specifically contemplates the “acquisition,
possession, manufacture, production, use, sale, distribution, dispensing, or
transportation” of marijuana for medical use. Article XVIII § 14(2)(d).

Page 48 (C.R.S. § 25-1.5-106(7)): Provides that a patient or primary caregiver

must have the registry identification card at all times to be in compliance with the
Constitution and statutes. Effectively eliminates the “affirmative defense” in
Article XVIII (2)(a) of the State Constitution, which makes the registry card
optional and does not require the registry card to satisfy the elements of the
affirmative defense.

Page 50 (C.R.S. § 25-1.5-106(8)(c)): Prohibits any person from establishing a

business for the purpose of allowing people to congregate and consume medical
marijuana. This violates the right of association, as detailed above.

Page 50 (C.R.S. § 25-1.5-106(10)): Alters the constitutional affirmative defense to

require a physician certification for amounts in excess of the six-plant, two-ounce
guideline amounts. Unconstitutionally attempts to amend the affirmative defense
enshrined in the Colorado Constitution.

II. Senate Bill 10-109

Page 3 (C.R.S. § 25-1.5-106(2)(a)); Page 5 (C.R.S. § 25-1.5-106(4)(a)): Allows

the State to perform fishing expeditions into the “confidential” (sic) registry for
the purpose of disciplining physicians with referrals to the Colorado Board of
Medical Examiners for “suspected” violations. Such use of the confidential
registry is unconstitutional. Physicians are included in the confidentiality

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protections of the constitutional registry. Colorado Constitution, Article XVIII
section 14.

This is an initial list of potential constitutional problems with these bills.

We reserve the right to assert additional legal arguments in the future.

I hope we can agree to resolve all or some of the above issues, thus saving
the taxpayers some money, and restoring some certainty to the chaotic state of the
Colorado laws related to medical marijuana. Thank you very much for your time
and consideration.

Sincerely,

Robert J. Corry, Jr.