Lawsuit Against Colorado over Pot Unlikely to Succeed

By Allen Smith Jan 5, 2015

The U.S. Supreme Court “is unlikely to grant either damages or an injunction” against Colorado for legalizing marijuana, according to Eugene Volokh, a professor at UCLA School of Law and contributor to TheWashington Post.

In a Dec. 18, 2014, filing with the court, the attorneys general for Nebraska and Oklahoma asked the court to grant them leave to file a complaint and enjoin Colorado from implementing Amendment 64, “a sweeping set of provisions which are designed to permit ‘personal use of marijuana’ and the ‘lawful operation of marijuana-related facilities.’ ”

“I think the court will take the view that the question of when laws in one state cause unacceptable spillover on another state is for Congress and the president (and the state legislatures) to decide, not for the courts to decide,” Volokh told SHRM Online Jan. 2, 2015. “Actual environmental damage, caused by physical spread of contaminants, has historically been an exception to that, under traditional common-law public nuisance rules. But I think the court would view that as a narrow exception and legislative decision-making as the rule.”

‘Dangerous Gap’

The attorneys general argued that federal anti-drug laws such as the Controlled Substances Act “do not permit the development of a patchwork of state and local pro-drug policies and licensed-distribution schemes throughout the country which conflict with federal laws.”

They added that “in passing and enforcing Amendment 64, the state of Colorado has created a dangerous gap in the federal control system enacted by the United States Congress. Marijuana flows from this gap into neighboring states, undermining plaintiff states’ own marijuana bans, draining their treasuries and placing stress on their criminal justice systems.”

The attorneys general noted that in Colorado individuals over 21 without proof of Colorado residency can purchase up to one quarter-ounce of marijuana in a single sales transaction. A person over 21 with proof of Colorado residency may purchase up to an ounce of marijuana in a single sales transaction.

There is no requirement that marijuana purchased at a store be consumed in its entirety at the point of purchase. And there is no prohibition on multiple purchases of marijuana from the same store in a brief period, or from multiple purchases from separate stores in the same day.

“The permanent rules are further devoid of any requirement that a purchaser of marijuana from a retail marijuana store be subjected to a criminal background check,” they noted. “Thus, the permanent rules lack any safeguard to prevent criminal enterprises, gangs and cartels from acquiring marijuana inventory directly from retail marijuana stores.

“The result of increased Colorado-sourced marijuana being trafficked in plaintiff states due to the passage and implementation of Colorado Amendment 64 has been the diversion of a significant amount of the personnel time, budget and resources of the plaintiff states’ law enforcement, judicial system and penal system resources to counteract the increased trafficking and transportation of Colorado-sourced marijuana,” the attorneys general said. “Plaintiff states have incurred significant costs associated with the increased level of incarceration of suspected and convicted felons on charges related to Colorado-sourced marijuana including housing, food, health care, transfer to-and-from court, counseling, clothing and maintenance.”

They noted that under federal law the possession of marijuana is a misdemeanor punishable by up to a year in prison with a fine of up to $1,000. Cultivating, manufacturing or distributing marijuana is a felony under federal law, punishable by up to five years in prison with a maximum fine of $250,000.

“The health and safety risks posed by marijuana, especially to children and teens, are well documented,” Oklahoma Attorney General Scott Pruitt said in a statement. “The illegal products being distributed in Colorado are being trafficked across state lines thereby injuring neighboring states like Oklahoma and Nebraska. As the state’s chief legal officer, the attorney general’s office is taking this step to protect the health and safety of Oklahomans.”

Colorado, Washington Defend Their Laws

Colorado Attorney General John Suthers stated, “Because neighboring states have expressed concern about Colorado-grown marijuana coming into their states, we are not entirely surprised by this action. However, it appears the plaintiffs’ primary grievance stems from nonenforcement of federal laws regarding marijuana, as opposed to choices made by the voters of Colorado. We believe this suit is without merit, and we will vigorously defend against it in the Supreme Court.”

Washington State Attorney General Bob Ferguson added, “I am disappointed that Nebraska and Oklahoma took this step to interfere with Colorado’s popularly enacted initiative to legalize marijuana. I will be following this closely and intend to ensure that Washington’s interests are protected. I will vigorously oppose any effort by other states to interfere with the will of Washington voters.”

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.


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