Jason Beinor Petition for Cert in Colorado Supreme Court

Certification of Word Count: 3,595 IN THE SUPREME COURT FOR THE STATE OF COLORADO 101 W. Colfax Ave., Suite 8~0 Denver, Colorado 80202 FILED IN THE SUPREME COURT, ACT - 3 2011 RyanLCIeADO TH 0~ toTheT Chris P
♦COURT USE ONLY

COLORADO COURT OF APPEALS
Court of Appeals Case No. 10CA1685

Industrial Claim Appeals Office, Case No. DD No. 10948-2010

Petitioner: JASON M. BEINOR Respondents: INDUSTRIAL CLAIM APPEALS OFFICE of the State of Colorado, and Service Group, Inc. Attorney for Petitioner: Name: Andrew B. Reid, #25116 Address: Springer and Steinberg, P.C. 1600 Broadway, Suite 1200 Denver, Colorado-80202 Phone Number: (303)861-2800 FAX Number: (303)832-7116 E-mail: areid(a)springer-and-steinberq.com Case Number: 11 SC676

PETITION FOR WRIT OF CERTIORARI Petitioner hereby submits this Petition for Writ of Certiorari:

I. ISSUES PRESENTED FOR REVIEW

ISSUE I: Does a drug test alone showing a trace amount of medical marijuana used ofF-thejob by the Petitioner pursuant to the medical marijuana provisions of the Colorado Constitution disqualify benefits? him from State unemployment compensation

ISSUE II: Does the Colorado Constitution secure to Petitioner the right to use medical marijuana such that he cannot constitutionally be deprived therefor of eligibility for his State unemployment compensation benefits?

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II. COURT OF APPEALS OPINION The unreported opinion of the Court of Appeals is attached hereto. In a split decision on matters of first impression, the Court of Appeals per Judge David J. Richman, Judge David Furman concurring, ruled that medical marijuana was not a "medically prescribed controlled substance" under the disqualification provisions of the Colorado unemployment compensation benefits statute, C.R.S. § 8-73-108(5)(e)(IX.5). The Court further ruled that Petitioner as a qualifying medical marijuana patient possesses no right under the medical marijuana provisions of the Colorado Constitution to use the medication, but is only protected from criminal prosecution. Judge Richard L. Gabriel dissented, finding that the Colorado Constitution secured to Petitioner the right to use medical marijuana as medication and that his unemployment compensation benefits could not be subject to an unconstitutional condition.

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III. GROUNDS FOR JURISDICTION OF THE SUPREME COURT The opinion and judgment of the Court of Appeals were announced on August 18, 2011. The jurisdiction of the Supreme Court is invoked pursuant to 13-4-108, C.R.S., and Rules 49, 51, and 52(b).

IV.

STATEMENT OF THE CASE

On August 18, 2009, Petitioner Jason M. Beinor was employed by Service Group, Inc. (employer) as a fulltime operator assigned to clean the 16th Street Mall in downtown Denver, Colorado, with a broom and dustpan. He was terminated from employment on February 17, 2010, when a random test by the employer detected a trace amount of marijuana in his urine. The employer found this to be in violation of the employer's zero tolerance policy which states: "[I]f ._..the results of the screening are positive ...for illegal drugs, the employee will be terminated." The policy covered the use of "illegal" drugs on or off the workplace. It was undisputed that Petitioner was not under the influence of, in possession of, or using marijuana on the job. The Petitioner possessed a clean employment record with no written reprimands or warnings. The only ground for his termination was the detection of a trace amount of marijuana in his urine.
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The Petitioner occasionally suffers very severe, debilitating migraine headaches as the result of head injuries he sustained from an assault and battery. He uses marijuana as medication once or twice per week as needed pursuant to a certified recommendation from his physician to ease

his severe pain and had used his medication within a week of the February
17, 2010 random urine test. It was undisputed-that Petitioner was in compliance with the medical marijuana provisions of the Colorado Constitution and Colorado law. Colo. Const. art. XVIII, § 14. Following his termination, Petitioner applied for unemployment compensation benefits. A hearing officer, reversing an earlier denial of benefits, found that Petitioner was not at fault for his separation because there was "no reliable evidence to suggest that ...claimant was not eligible for a medical marijuana license" or that his use of the substance negatively impacted his job performance." The hearing officer further noted that Mr. Beinor "has a constitutional right to use marijuana." An administrative appellate panel disagreed and set aside the hearing officer's order. The panel concluded article XVIII, section 14 of the Colorado Constitution does not create an exception to section 8-73108(5)(e)(IX.5), C.R.S., which disqualifies from unemployment benefits an s

employee who:tests positive for the presence of "not medically prescribed controlled substances" the individual's system "during working hours." Petitioner then appealed that decision to the Colorado Court of Appeals. On August 18, 2011, in a split 2-1 decision per Judge Richman, the Court of Appeals ruled that the use of medical marijuana pursuant to the Colorado Constitution is not pursuant to a "prescription," and therefore does not constitute use of medically prescribed controlled substances under the governing statute. The Court then ruled that the medical marijuana provisions of Colorado Constitution created an exception to criminal prosecution, not- abroad constitutional right to use the medication. Judge Gabriel, in a strong dissent, reasoned that the Colorado Constitution does not merely decriminalize the use of medical marijuana, but legalizes the use of the medication by qualifying patients and that the presence of medical marijuana in one's blood does not amount to "use" or "possession" as defined by section 14(1)(b) of the Constitution. He concluded that medical marijuana patients, such as Petitioner, have "a constitutional right to possess and use medical marijuana pursuant to the limitations contained in the medical marijuana amendment".

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Applying the "doctrine of unconstitutional conditions" to the settled rule that unemployment compensation benefits cannot be conditioned on a willingness to abandon one's constitutional rights, Judge Gabriel found that the state's interest in denying unemployment benefits to a qualifying medical marijuana patient did not outweigh the Petitioner's constitutional rights. Judge Gabriel then concluded that the lawful use of medical marijuana by a qualifying patient such as Petitioner outside the workplace, where there is no evidence of any impairment of performance in the workplace, cannot constitutionally be used as a basis for denying the claimant unemployment benefits. The question of whether or not the medical marijuana provisions of the Colorado Constitution are preempted by the Supremacy Clause of the United States Constitution was not raised by either party and was not before or decided by the Court of Appeals below'.

'Although the U.S. Supreme Court in Gonzales v. Raich, 545 U.S. 1 (2005), held that the production and consumption of medical marijuana under state programs are subject to Congress's power to regulate the activity under the Commerce Clause, it did not reach the issue of whether

Congress had in fact done so through the federal Controlled Substances Act( "CSA"). City of Garden Grove v. Superior Court, 157 Cai.App.4th 355, 382(Cal. App. 2008); see also, discussion, R.A. Mikos, On the Limits of Supremacy: Medical Mar~uana and the States' Overlooked Power to Legalize Federal Crime, 62 Vand. L. Rev. 1421, 1441-2(2009) "Mikos"). ( Congress by section 903 of the CSA expressly disavowed any intent to occupy the field of drug regulation. 21 U.S.C. § 903; see, City of Garde n Grove, 157 Cal:App.4th at 383; County of San Diego v. San Diego NORM L,

165 Cal.App.4th 798, 818-28 (Cal.App. 2008)(noting that medical practi ce is a field historically occupied by the states). Mere "use" of marijuana whether for medicinal purposes or not does not violafe any federal law. People v. Tilehkooh, 113 Cal.App.4th 1433, 1445 (Cal.App. 2003}. Furthermore, Congress's preemptive authority under the Supremacy Clause is very narrowly applied and may be significantly limited further under the anti-commandeering doctrine. K.K. DuVivier, State Ballot Initiatives in the Federal Preemption Equation: A Medical Marijuana Case Study, 40 Wake Forest L. Rev. 241 (2005)(noting the value of direct democracy and the obligation of courts to make a greater effort to reconc ile s

V. ARGUMENT A. The Petition Raises Issues of First Impression And Great Public Importance This Petition raises issues of substance not heretofore determined by the Court concerning matters of great importance affecting Petitioner and hundreds of thousands of other citizens and residents of Colorado. See, Appendix 5. Fundamentally, it poses the question of whether a person suffering from a debilitating medical condition must choose between a constitutionally secu-red treatment for the condition and his or her employment and unemployment compensation benefits. A ruling on this issue would further impact the rights of Colorado citizens and residents to education, financial assistance, licenses, permits, _and other State benefits otherwise available to all Colorado citizens and residents. the ballot initiative with the federal regulatory scheme); Prinz v. United States, 421 U.S. 898, 935 _(1995); New York v. United States, 505 U.S. 144, 188 (1992); Mikos, at 1445-48; see also, City of Garden Grove, 157 Cal.App.4th at 382-86. Regardless, the issue of federal preemption is not before the Court and will have to wait to another day. D

B. Petitioner's Off-Work Use of Medical Marijuana Does Not Disqualify Him From Unemployment Compensation Benefits Because a trace amount of marijuana was detected in a random urine drug test by his employer, Petitioner Beinor was disqualified from unemployment benefits pursuant to Colorado statute which provides in relevant part: The presence in an individual's system, during working hours, of.not medically prescribed controlled substances, as defined in section 12-22-303(7), C.R.S., ...as evidenced by drug ...test administered pursuant to a ...previously established, written drug ...policy of the employer .... C.R.S. § 8-73-108(5)(b)(IX.S). The provision is a categorical disqualification of eligibility for unemployment benefits to anyone testing positive for controlled substances regardless of amount of the substance in the individual's system, of the length of days or time between the use of the substance and the test, of any evidence of intoxication or compromised condition, or of any interference with job performance, and irrespective of evidence that the substance was not possessed or used on the job. Compare, e.g., C.R.S. § 8-73-108(5)(b)(VIII)(disqualifying individuals who
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engaged in off-thejob use of not medically prescribed controlled substances "to a degree resulting in interference with job performance); C.R.S. 8-73-108(5)(b)(IX)(disqualifying individuals who engage in on-thejob use of not medically prescribed controlled substances). The term "medically, prescribed controlled substances" is clearly intended to include within those provisions only the use of "illegal" substances, not the "legal" use of such substances lawfully "recommended" in writing by an employee's physician as medical treatment. Otherwise, read literally, a physician could unlawfully "prescribe" a controlled substance such as cocaine, heroine, or LSD, to an employee without disqualifying the employee from unemployment benefits. A broader interpretation of "prescribed" is further reflected in the definition of "controlled substances" referenced in these statutory provisions. Section 12-22-303(7)states that the term "shall have the same meaning as in section 18-18-102(5), C.R.S." Section 18-18-102(5) in turn defines "controlled substance" as meaning "a drug, substance, or immediate precursor included in schedules I through V of part 2 of this article...." Marijuana( "tetrahydrocannabinols") is listed in schedule I. C.R.S. § 18-18-203(2)(c)(XXIII). The listed substances are classified ~1

according to "accepted medical use in treatment in the United States" and "accepted safety for use under medical supervision." CR.S. §§ 18-18203(1)(b) and (c), 18-18-204(1)(b) and (c), 18-18-205(1)(b) and (c), 18-18206(1)(b), 18-18-207(1)(b). The Constitution provides that the medication is "authorized" pursuant to a "written" diagnosis by a physician of an appropriately qualifying debilitating condition and the physician's "advice" that the patient "might benefit from the medical use of marijuana" as medicine for the condition. Colorado Constitution, article XVIII, sections 14(1)(b), 14(2)(a)(II), 14(2)(c)(I) and (II), 14(4)(a) and (b). A "prescription" is defined as: "a written direction for a therapeutic or corrective agent; specifically one for the preparation and use of a medicine." http:/ /www.merriamwebster.com/dictionary/prescription. A medical prescription is not limited to controlled substances. A physician may and often does prescribe over-thecounter medication including pain killers and other analgesics, and may "prescribe" non-medicinal treatment such as bed rest or physical therapy. The unemployment benefits disqualification provision, C.R.S. § 8-73108(5)(b)(IX.5), must be interpreted consistent with the Colorado Constitution. Renferia v. Colo. St. Dept. of Personnel, 811 P.2d 797, 799
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(Colo. 1991). The term "medically prescribed," read in light of the medical marijuana provisions of the Colorado Constitution, must thus be interpreted as including marijuana used as medicine under the Constitution pursuant to the written advice of the patient's physician. Furthermore, in C.R.S. § 8-73-108(5)(b)(IX.S), the term "controlled substances" is defined pursuant to Colorado, not federal, law and there are no corresponding medical marijuana provisions under federal law. The citizens of the state and their government are free to fashion their own definition of the term, particularly when in regard to constitutionally protected rights and the provision of purely state benefits, such as unemployment compensation, to its citizens and residents. Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044, 1054 (Colo. 2002)(Colorado's Constitution may provide more expansive protections of fundamental rights than the federal Constitution). The substances listed under schedule I of the Colorado controlled substances law are expressly identified as those that have "no currently accepted medical use in treatment in the United States" and lack "accepted safety for use under medical supervision." C.R.S. 18-18-203(1)(b) and (c). Through the adoption of Amendment 20, the Medical Marijuana
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Amendment, in 2000 by the clear majority of the People, the State formally recognized in its constitution the "accepted medical use [of marijuana] in treatment" of certain debilitating conditions under "medical supervision" of the qualifying patient's physician. Thus,"medical marijuana" no longer be constitutionally considered a controlled substance under schedule 1 and is not listed under any other of the schedules for controlled substances. At a minimum, C.R.S. 18-18-203 is "inoperative" as to medical marijuana. Walgreen Co. v. Charnes, 819 P.2d 1039, 1049_ n. 19 (Colo. 1991). For these reasons, C.R.S. § 8-73-108(5)(b)(IX.5) cannot be read to disqualify and employee such as Petitioner Beinor from unemployment compensation benefits solely on a positive drug test for medical marijuana used off-thejob as medicine pursuant to the physician's recommendation as treatment for a qualifying debilitating medical condition.

C.

There Is a Constitutional Right to Use Medical Marijuana

The Court of Appeals split on the issue of whether the medical marijuana provisions of the Colorado Constitution merely "decriminalize" medical marijuana or "legalizes the use" of the medicine and secures a constitutional right thereto. See, e.g., Mikos, supra, for a discussion of the
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essential distinction between criminalization and legalization in regards to medical marijuana. Sixteen states and the District of Columbia have enacted laws largely by citizen initiative providing for the use of marijuana as medicine. http://medicalmarijuana.procon.org/view.resource.php?resourcelD=000881 Colorado is the only state in the Union to have adopted constitutional provisions to do so. As of July 31, 2011, the State had issued medical marijuana registration ID cards to 127,816 patients residing in every county of the State. Appendix 5. In construing a constitutional provision, our obligation is to give effect to the intent of the electorate that adopted it. In giving effect to that intent, we look to the words used, reading them in context and according to their plain and ordinary meaning. Where ambiguities exist, we interpret the constitutional provision as a whole in an attempt to harmonize all of its parts.

Harwood v. Senate Majority Fund, LLC, 141 P.3d 962, 965(Colo. 2006).
Construing the provisions of Amendment 20, the Medical Marijuana Amendment, as a who/e, the decriminalization of medical marijuana found in Section 14(2) is clearly only a small part of the whole measure intended to facilitate the access of qualifying patients to the medicine. Colo. Const., article XVIII, section 14(2). Numerous provisions both before, within, and is

after that section create the policy and structure necessary to facili tate the qualifying patient's "access" to, and "use" of, the medicine. See, e.g., Colorado Constitution, article XVIII, sections 14(1)(b), 14(2)(a)(II) , 14(2)(c)(I) and (II), 14(4)(a) and (b). Section 14(4)(a), for example, provides that "[a] patient may engage: ... in the medical use of marijuana" and restricts such use to only that "necessary to address a debilitating medical condition." Id. (emphasis supplied}. As defined by the Constitution, "medical use" refers to the "acquisition, possession, production, use, or transportation of marijuana or paraphernalia_ related to the administration of such marijuana to address the symptoms or effects of a patient's debilitating medical condition, which may be authorized only after a diagnosis of the patient's debilitating medical condition by a physician or physicians, as provided by this section. Colo. Const., art. XVIII, sec. 14(1 }(b)(emphasis supplied). The intent of the voters is clear from the plain and ordinary meaning of the word s of the Amendment construed as a whole. The People of the State are not merely decriminalizing the medical use of marijuana, but declare the benef icial nature of marijuana as medicine and establish the parameters of a constitutional right of access and use of the medicine in certain persons. "Courts should not engage in a narrow or technical construction of the initiated amendment if doing so would contravene the intent of the
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electorate." Davidson v. Sandstrom, 83 P.3d 648, 654(Colo. 2004}. If the Amendment is construed as merely decriminalizing medical marijuana, it would allow the legislature to effectively defeat the intent of the voters and deprive qualifying patients of their medication through civil legislation placing excessive, prohibitive, and overly restrictive regulations, taxes, and fees Colorado citizens and residents suffering from debilitating medical
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conditions and on those care-givers assisting them. The very heart of the Amendment could be torn from it, rendering it meaningless. That is no less than the predicament faced by-the Petitioner in this matter who is forced to choose between working or attempting to work while suffering from frequent debilitating migraine headaches or forgo employment or and unemployment compensation benefits due to the use of medicine recommended by his physician as treatment for his medical condition. Even if, arguendo, the intent of the voters were ambiguous, the courts should construe the Amendment "in light of the objective sought to be achieved and the mischief to be avoided by the amendment." Id. 83 P.3d at 655. Courts may determine this by considering other relevant materials, including the "Bluebook" analysis of the measure. Id. In regards to Amendment 20, the Bluebook states:

The proposed amendment to the Colorado Constitution Background and Provisions of the Proposal Current Colorado and federal criminal law prohibits the possession, distribution, and use of marijuana. The proposal does not affect the federal criminal laws, but amends the Colorado Constitution to legalize the medical use of marijuana for patients who have registered with the state. ...A doctor's signed statement or a copy of the patient's pertinent medical records indicating that the patient might benefit from marijuana is necessary for a patient to register. ... Arguments For 1) This proposal gives patients with certain debilitating medical conditions and their medical providers one additional treatment option. THC, the active ingredient in marijuana, has been shown to relieve the pain and suffering of some patients. It can be beneficial for individuals suffering from nausea, vomiting or lack of appetite due to chemotherapy or AIDS/HIV, pressure within the eye due to glaucoma, and severe muscle spasms from some neurological and movement disorders such as multiple sclerosis. 2) For patients suffering from serious illnesses, marijuana can be more effective than taking prescription drugs that contain synthetic THC. Further, many drugs have side effects, but the- adverse effects of marijuana are no worse than those of some prescription drugs used to treat the illnesses- listed in the proposal.

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Appendix 6(emphasis supplied). The purpose of the measure is expressly stated in the Bluebook. It "amends the Colorado Constitution to legalize the medical use of marijuana for patients". The decriminalization of medical marijuana is hardly mentioned. It is almost an afterthought intended rather to prevent State interference with the ready access of the medicine to qualifying patients. As a qualifying medical marijuana patient, Petitioner Beinor clearly possesses a constitutional right to use the medicine recommended by his physician. This right is consistent with other provisions of Colorado law C.R.S. § 15-18.5-101(1) provides: (1) The general assembly hereby finds, determines, and declares that: (a) All adult persons have a fundamental right to make their own medical treatment and health care benefit decisions, including decisions regarding medical treatment, artificial nourishment and hydration, and private or public heal#h care benefits. In the Interest of Yeager, 93 P.3d 589, 596 (Colo.App. 2004). "A clear and convincing standard of proof is required in cases where a fundamental right is concerned." Id. The fundamental right to make decisions regarding medical treatment and health care has long been recognized in other

situations as well. /n the Interest of S.P.B., 651 P.2d 1213(Colo. 1982) (ruling that a woman has a fundamental right to decide in conjunction with her physician whether to terminate her pregnancy). The general assembly and the people of the State may extend constitutional protections to Colorado residents that are even more extensive than that under federal law. Tattered:Cover, Inc. v. City of Thornton, 44 P.3d 1044, 1054 (Colo. 2002). Indeed, fundamental constitution rights may be created under the Colorado Constitution that do not even exist under the federal Constitution. In the Matter of Title, Ballot Title and Submission Clause for Proposed lnitiafive, 46 P.3d 438, 448 (Colo. 2002)(the rights of initiative and referendum); Margolis v. Dist. Ct., 638 P.2d 297, 302-3 (Colo. 1981). The Petitioner possesses a fundamental right under state law to make decisions regarding- his lawful medical treatment, including the use of physician recommended medic al marijuana for his debilitating medical condition. The State is bound, and has wholly failed, to demonstrate by clear and convincing evidence any

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interests of the State that sufficiently justify interfering with and effectively depriving the Petitioner of his fundamental constitutional right.2 Over 50 years ago, the U.S. Supreme Court in Sherbert v. Verner, 374 U.S. 398 (1963), applied to unemployment compensations benefits the rule that has become know as the "doctrine of unconstitutional conditions." In Sherbert, the Court held that a state could not constitutionally apply unemployment compensation statutory eligibility provisions as to deny
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benefits to a claimant, directly or indirectly, because of the claimant's religious beliefs. The Court affirmed the Sherbert rule in Thomas v. Review Bd., 450 U.S. 707(1981) and again in Hobble v. Unemp. Appeals Comm'n, 480 U.S. 136 (1987). The Court applied the rule to free speech in Perry v. Sindermann, 408 U.S. 593(1972) and to political party affiliation in Elrod v. Burns, 427 U.S. 347(1976).

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So significant is this right that a patient's access to often life-saving

medication has been viewed as a "human right" under international law. Alicia E. Yamin, Not Just a Tragedy: Access to Medications as a Right Under International Law, 21 Boston University International Law Journal 325(2003). al

This well-established doctrine was applied by this Court in Everitt Lumber Co., Inc. v. /ndus. Comm'n, 565 P.2d 967 (Colo. 1977), holding that unemployment benefits could not be conditioned on a waiver of Fifth Amendment protections. In Colo. Div. of Employ. v. Hewlett, 777 P.2d 704 (Colo. 1989), the Court further held a claimant could not be disqualified from receiving unemployment benefits for quitting her job due to sexual harassment. In Lorenz v. State, 928 P.2d 1274, 1283 (Colo. 1996), this Court ruled that "...the doctrine of `unconstitutional conditions' requires in order to condition the grant of a discretionary benefit on the release of a constitutional right, the government must have an interest which outweighs the particular right at issue." As Judge Gabriel noted below, there is "nothing in the record to suggest that the state's interest in denying benefits here outweighs claimant's constitutional rights." Beinor v. Indus. C/aim Appeals Office, P.3d 2011 WL 3612226 at *14 (Colo.App. 2011).

No assertions of any state interests were made by the State and, having rejected outright the existence of any constitutional right, the majority below did not weigh the Petitioner's rights against any State interests. Id. The statutory provision at issue, C.R.S. § 8-73-108(5)(b)(IX.5), fails to state any
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basis at all for the denial of benefits under the facts at bar other than the purported detection of medical marijuana, a lawful medication, in a drug test. The State states no interests to weigh against Petitioner's rights that would disqualify him from receiving his unemployment compensation benefits.

VI.

CONCLUSION

Petitioner Jason M. Beinor requests that the decision of the Court of Appeals below be reversed and that he be awarded his unemployment compensation benefits.

Respectfully submitted, SPRINGER AND STEINBERG, P.C.

~ ~_ ~~ rew B. Reid Attorneys for Petitioner Jason M. Beinor

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CERTIFICATE OF SERVICE This is to certify that I have duly served two copies of the above and foregoing PETITION FOR WRIT OF CERTIORARI by placing same in the United States mail, postage prepaid, this 3rd day of October, 2011, addressed to the following:

John W. Suthers, Attorney General John August Lizza, First Assistant Attorney General ATTORNEY GENERAL'S OFFICE 1525 Sherman Street, 5th Floor Denver, Colorado 80203 Service Group, Inc. P.O. Box 70 40 Lloyd Avenue, Suite 101 Malvern, PA 19355

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APPENDIX 1

COURT OF APPEALS DECISION

Colo.App.,2011. Beinor v. Industrial Claim Appeals Office --- P.3d ----, 2011 WL 3612226 (Colo.App.) Only the Westlaw citation is currently available. NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. A PETITION FOR REHEARING IN THE COURT OF APPEALS OR A PETITION FOR CERTIORARI IN THE SUPREME COURT MAY BE PENDING. Colorado Court of Appeals, Div. VII. Jason M. BEINOR, Petitioner,

INDUSTRIAL CLAIM APPEALS OFFICE of the State of Colorado and Service Group, Inc., Respondents. No. 1 OCA1685. Aug. 18, 2011. [Westlaw annotations omitted] Industrial Claim Appeals Office of the State of Colorado, DD No. 109482010.Jason M. Beinor, Pro Se. John W. Suthers, Attorney General, John August Lizza, First Assistant Attorney General, Denver, Colorado, for Respondent Industrial Claim Appeals Office.

Opinion by Judge RICHMAN. *1 This unemployment compensation benefits case raises a question of first impression: whether an employee terminated for testing positive for marijuana in violation of an employer's zero-tolerance drug policy may be denied unemployment compensation benefits even if the worker's use of marijuana is "medical use" as :defined in article XVIII, section 14 of the Colorado Constitution. We conclude the benefits were properly denied in this case. Claimant, Jason M. Beinor, appeals the final order of the Industrial Claim Appeals Office (Panel) disqualifying him from unemployment compensation benefits under section 8-73-108(5)(e)(IX .5), C.R.S.2010 (disqualification for the presence of "not medically prescribed controlled substances" in worker's system during working hours). He contends that he is entitled to benefits because he legally obtained and used marijuana under the Colorado Constitution for a medically-documented purpose and

consequently had a right to consume the drug. We conclude that although the medical certification permitting the possession and use of marijuana may insulate claimant from state criminal prosecution, it does not preclude

:him from being denied unemployment benefits based on a separation from employment for testing positive for marijuana in violation of an emplo yer's express zero-tolerance drug policy. We therefore affirm the Panel's :_decision. I. Background Claimant was employed by Service Group, Inc. (employer) as an operator assigned to sweep the 16th Street Mall in Denver with a broom and dustpan. He was discharged in February 2010 for violating employer's zero-tolerance drug policy after testing positive for marijuana in a rand om drug test ordered- by employer. Employer's policy states: "[I]f a current employee is substance tested for any reason ... and the resul ts of the screening are positive for ... illegal drugs, the employee will be termi nated." Claimant contends, and employer does not dispute, that he obtai ned and used the marijuana for severe headaches, as recommen ded by a physician pursuant to article XVIII, section 14 of the Colorado Const itution, which provides an exemption from state criminal prosecution to indiv iduals issued a "registry identification card" to use marijuana for medical purposes. Colo. Const. art. XVIII, § 14(2)(b). In pertinent part, the amendment provides:

[I]t shall be an exception from the state's criminal laws for any patient or primary care-giver in lawful possession of a registry identification card to engage or assist in the medical use of marijuana, except as otherwise provided in subsections(5)and (8} of this section. Colo. Const. art. XVIII, § 14(2)(b) (emphasis added). The amendment also specifies: A patient may engage in the medical use of marijuana, with no more marijuana than is medically necessary to address a debilitating medical condition. A patient's medical use of marijuana, within the following limits, is lawful: ~2 (I) No more than two ounces of a usable form of marijuana; and (II) No more than six marijuana plants, with three or fewer being mature, flowering plants that are producing a usable form of marijuana. Colo. Const. art. XVIII, § 14(4)(a). Claimant asserts that his use and possession of marijuana was therefore legal. A deputy initially denied claimant's request for

unemployment benefits, but a hearing officer reversed that decision, finding that claimant. was not at fault for his separation from employment because there was "no reliable evidence to suggest that ... claimant was not eligible for a medical marijuana license" or that his use of the substance negatively impacted his job performance. Moreover, the hearing officer noted that "claimant has a state constitutional right to use marijuana." Although claimant did not produce a registry identification card, he did

produce a physician certification form, contending that he had not yet been provided with the registry card. Employer did not contest his eligibility to receive the registration card. Nor did employer argue that the use of marijuana negatively impacted his job performance. On employer's appeal, the Panel disagreed and set aside the hearing officer's order. Relying on a precedential case.decided by the entire Panel, the Panel here concluded that article XVIII, section 14 of the Colorado Constitution does not create an exception to section 8-73-108(5)(e)(IX.5), which disqualifies from benefits an employee who tests positive for the presence of "not medically prescribed controlled substances" in his or her system "during working hours." The Panel accordingly disqualified claimant from receiving benefits pursuant to section 8-73-108(5)(e)(IX.5). Claimant now appeals. II..Analysis Claimant contends that the Panel erred in setting aside the hearing officer's decision because the Colorado Constitution protects his marijuana use. He argues, essentially, that his constitutional right to "medical use" of marijuana was violated by the application of the disqualifying provision to his situation and the Ranel's consequent denial of his request for

unemployment benefits. He also argues that the Panel should have recognized that employer's categorization of marijuana with other more harmful illegal substances is inappropriate and "prejudicial" because marijuana can remain in one's system for several days after its use and long after it has lost its influence, as demonstrated by the lack of evidence that claimant's use of marijuana negatively affected his job perFormance. Although claimant appears pro se, :we liberally interpret his brief and discern that his appeal raises three separate issues: (1) whether the statutory disqualification in section 8-73-108(5)(e) (IX .5) applies to claimant's case; (2) if so, whether the statute violates a constitutional right of claimant; and (3) whether the record was sufficient to support the Panel's decision. *3 We are not persuaded that the statute was misapplied in this case or that any of claimant's rights under article XVIII, section 14 of the Colorado Constitution were violated. Because the record supports the Panel's determination, we affirm it. A. Application of the Disqualification Provision [1] Under Colorado's unemployment compensation provisions, an employee may be disqualified from receiving unemployment compensation

benefits if a separation from employment occurs because of [t]he presence in an individual's system, during working hours, of not medically prescribed controlled substances, as defined in section 72 -22303(7), C.R.S., ... as evidenced by a drug ... test administered pursuant to a statutory or regulatory requirement or a previously established, written drug ... policy of the employer and conducted by a medical facility or laboratory licensed or certified to conduct such tests: § 8-73-108(5)(e)(IX.5)(emphasis added); see Slaughter v. John Elway Dodge Sw. /AutoNation, 107 P.3d 1165, 1170 (Colo.App.2005)( "[Section] 8-73-108(5)(e)(IX.S) ... provides that an employer shall not be charged for unemployment benefits when it has a previously established written drug policy and terminates an employee as the result of a drug test showing the presence of marijuana in the employee's system during working hours."). A "controlled substance" is defined in relevant part as "a drug, substance, or immediate precursor ... including cocaine, marijuana, [and] marijuana concentrate." See§ 12-22-303(7), C .R.S.2010 (incorporating the definition of "controlled substance" set forth in section 18-18-102(5), C.R.S.2010). As noted above, the disqualification from receiving unemployment benefits is triggered if an employee tests positive for the presence of a controlled substance that is "not medically prescribed." § 8-73-108(5)(e) (IX.5). Underlying claimant's argument is an assumption that his

authorization to use medical marijuana is equivalent to a medical prescription. This assumption is inaccurate. Under article XVIII, section 14, a physician does not prescribe marijuana, but may only provide "written documentation" stating-:that the patient has a debilitating medical condition and might benefit from the medical use of marijuana. SeeColo. Const. art. XVIII, § 14(2)(c)(II). Indeed, a physician's inability to prescribe marijuana under Colorado. law is reflected in the very physician certification upon which claimant relies to legally consume marijuana. That document specifies that "[t]his

assessment is not a prescription for the use of marijuana" (emphasis added). Moreover, federal law, to which Colorado physicians are subject, requires a practitioner prescribing controlled substances to be registered with the Drug Enforcement Administration (DEA). See21 C.F.R. § 1301.11 (2009). Such registration for the prescription of controlled substances can only be obtained for Schedule II through V controlled substances. See21 C.F.R. § 1301.13 (2010). Marijuana, in contrast, remains a Schedule controlled substance under the applicable federal statute and consequently cannot be prescribed. 21 U.S.C. § 812(c) (1999); see United States v.

Oakland Cannabis Buyers' Coop., 532 U.S. 483, 491, 121 S.Ct. 1711, 149
L.Ed.2d 722 (2001)( the case of the Controlled Substances Act, the "In statute reflects a determination that marijuana has no medical benefits worthy of an exception.... Whereas some other drugs can be dispensed and prescribed for medical use, the same is not true for marijuana. Indeed, for purposes of the Controlled Substances Act, marijuana has `no currently accepted medical use' at all.")(citation omitted). *4 The federal prohibition against prescribing marijuana was reiterated by the Office of National Drug Control Policy in 1997 when it issued a notice mandating that enforcement of federal drug laws would remain in effect despite California's and Arizona's passage of medical marijuana provisions, because "prescribing Schedule I controlled substances is not consistent with the `public interest' ... and will lead to administrative action by the [DEA] to revoke the practitioner's registration." 62 Fed.Reg. 6164, 6164 (Feb. 11, 1997); see also Conant v. Walters, 309 F.3d 629, 633 (9th Cir.2002)(noting that under the federal policy "physicians who `intentionally provide their patients with oral or written statements in order to enable them to obtain controlled substances in violation of federal law ... risk revocation of their DEA prescription authority' ") (quoting joint policy letter of

Department of Justice and Department of Health and Human Services). Under this policy, the federal government may: 1) prosecute any physician who prescribes or recommends marijuana to patients; 2) prosecute any patient who uses prescribed marijuana; 3) revoke the DEA registration numbers of any physician who prescribes or recommends marijuana to patients; 4) exclude any physician who prescribes or recommends marijuana to patients from the Medicaid and Medicare programs; and 5) enforce all federal sanctions against physicians and patients.

Pearson v. McCaffrey, 139 F.Supp.2d 113, 116 (D.D.C.2001).
Although the Department of Justice has indicated it may not- prosecute "individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana," the Department nonetheless remains "committed to the enforcement of the Controlled Substances Act in all States." Memorandum from Deputy Attorney General David W. Ogden to Selected United States Attorneys, Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana (Oct. 19, 2009), available at http:// blogs.usdoj.gov/blog/archives/ 192. In a recent memorandum to the Colorado Attorney General, the United States Attorney for. Colorado reiterated the Department's position as set forth in the Ogden

memorandum. Memorandum from United States Attorney John F. Walsh to Attorney General John Suthers (Apr. 26, 2011), available at http:// extras.mnginteractive.com/live/media/site36/2011/0427/2 0110427_121943_pot.pdf. Consequently, the policies expressed by the Office of National Drug Control Policy remain in effect. In addition, we give consideration to the opinion of Colorado's Attorney General that under Colorado's medical marijuana amendment "no such prescription is contemplated." See Applicability of State Sales Tax to the Purchase and Sale of Medical Marijuana, Colo. Att'y Gen. Formal Op. No. 09-06 (Nov. 16, 2009); see also Co%rado Common Cause v. Meyer, 758 P.2d 153, 159(Colo.1988) ("Since the Attorney General's opinion is issued pursuant to statutory duty, the opinion is obviously entitled to respectful consideration as a contemporaneous interpretation of the law by a governmental interpretation.") *5 We conclude that the medical use of marijuana by an employee holding a registry card under amendment XVIII, section 14 is not pursuant to a prescription, and therefore does not constitute the use of "medically prescribed controlled substances" within the meaning of section 8 -73— official charged with the responsibility of such

108(5)(e)(IX.S). Accordingly, the presence of medical marijuana in an individual's system during working hours is a ground for a disqualification from unemployment benefits under that section. B. Interpretation of Medical Marijuana Amendment [2] Claimant also argues that we should reinstate the hearing officer's conclusion that "claimant has a constitutional right to use marijuana" and therefore is not at fault for his separation from employment. The Panel, in setting aside the hearing officer's decision, concluded that the constitutional provisions "address exceptions to state criminal laws" and disagreed with the hearing officer's inferences regarding the interplay of the

unemployment compensation act and the constitutional amendment. On appeal, claimant contends that the basis for disqualification set forth in section 8-73-108(5)(e)(IX.S) should not apply to him because he may legally obtain and consume marijuana as a "medical marijuana" user. We are not persuaded that the constitutional amendment provides the broad protections claimant asserts or broadly grants an unlimited right to use marijuana, and we decline to hold the disqualification provision

unconstitutional under article XVIII, section 14. [3][4][5][.6][7] When interpreting constitutional provisions enacted by

voter referendum, it is this court's "duty ... to give effect to the will of the people." Washington Cnty. Bd. of Equalization v. Petron Dev. Co., 109 P.3d 146, 150 (Colo.2005). In so doing, "we afford the language of constitutions and statutes their ordinary and common meaning; we ascertain and give effect to their intent." Id. at 149. Further, "[w]e construe statutory and constitutional provisions as a whole, giving effect to every word and term contained therein, whenever possible." Bd. of Cnty. Commis v. Vail Assocs., lnc., 19 P.3d 1263, 1273 (Colo.2001). Nor can we add or subtract language from the express words of the amendment. See Turbyne v. People, 151 P.3d 563, 567 (Colo.2007)( "We do not add words to the statute or subtract words from it."). "Where the language of the Constitution is plain and its meaning clear, that language must be declared and enforced as written." Colo. Assn of Pub. Emps. v. Lamm, 677 P.2d 1350, 1353,(Colo.1984). As noted above, since passage of the medical marijuana amendment, the Colorado Constitution expressly provides that "it shall be an exception from the state's criminal laws for any patient or primary care-giver in lawful possession of a registry identification card to engage or assist in the medical use of marijuana, except as otherwise provided in subsections (5)

and (8) of this section." Colo. Const. art. XVIII, § 14(2}(b) (emphasis added). Although subsection (4) of the amendment provi des more generally that "[a) patient may engage in the medical use of marij uana, with no more marijuana than is medically necessary to address a debil itating condition," we do not read this as creating a broader constituti onal right than exemption from prosecution. Because subsection (4) also provides specific limits for the quantity of marijuana and the number of marijuana plants that may be possessed, we understand the purpose of this subsection as setting the limits beyond which prosecution is not exempted, and not the creation of a separate constitutional right. *6 In addition to placing quantity limits on possession of medical marijuana, it is also apparent that the constitutional amendmen t was not intended to create an unfettered right to medical use of marij uana. The amendment expressly prohibits the medical use of marijuana in a way that endangers the health or well-being of any person. Colo. Const. art. XVIII, § 14(5)(a)(I). It also prohibits the medical use of marijuana in plain view, or in a place open to the general public. /d.§ 14(5)(a)(II). Subsection (8) of the amendment also .provides that the Gene ral Assembly shall define the terms and enact legislation. to impl ement the

amendment. In response, in 2001, the General Assembly enacted section 18-18^406.3, C.R.S.2010, which established the criminal penalties for violation of the prohibitions contained in the amendment. In enacting this legislation, the General Assembly declared the purpose of the amendment as follows: (b)[The amendment] creates limited exceptions to the criminal laws of this state for patients, primary care givers, and physicians concerning the medical use of marijuana by a patient to alleviate an appropriately diagnosed debilitating medical condition; ... (f) [The amendment] sets forth the lawful limits on the medical use of marijuana; ... (h) In interpreting the provisions of [the amendment], the general assembly ... has attempted to give the ... words of the constitutional provision their plain meaning; (i) This section reflects the considered judgment of the general assembly regarding the meaning and implementation of the provisions of [the amendment]. § 18-18406.3(1), C.R.S.2010(emphasis added). [8] Thus, contrary to claimant's interpretation, the General Assembly understood Colorado's medical marijuana amendment to have created an exception to criminal prosecution, and not to be a grant to medical marijuana users of an unlimited constitutional right to use the drug in any place or in any manner. The General Assembly's construction of an initiated constitutional amendment made shortly after its adoption is to be

given great weight. See Zaner v. City of Brighton, 899 P.2d 263, 267 (Colo.App.1994), affd,917 P.2d 280(Colo.1996).

[9] Moreover, the amendment specifically provides: "Nothing in this section shall require any employer to accommodate the medical use of marijuana in any work place." Colo. Const. art. XVIII, § 14(10)(b). The "medical use of marijuana" is broadly defined in the amendment to mean "the acquisition, possession, production, use or transportation of marijuana or paraphernalia related to the administration of such marijuana to address the symptoms or effects of a patient's debilitating medical condition." Id.§ 14(1)(b). Thus, the Colorado Constitution does not give medical marijuana users the unfettered right to violate employers' policies and practices regarding use of controlled substances. To interpret the .medical marijuana amendment as claimant suggests— as a blanket "right to use marijuana as long as it is recommended by a physician and registered with the state"—would require us to disregard the amendment's express limitations protecting only against criminal

prosecution and allowing employers not to accommodate the use of marijuana in the workplace, as well as the General Assembly's

interpretation of the amendment. We decline to do so. *7[10] Our interpretation is consistent with other cases that have examined the scope of medical marijuana provisions in this and other states. Colorado has already recognized that the medical marijuana amendment to Colorado's Constitution is not limitless. Rather, as a division of this court noted, because all provisions and language in the amendment must be given their full force and effect, "primary care-giver" under the provision does not encompass everyone who may "supply marijuana for medical use," but. is instead limited to those who "do more than merely supply a patient who has a debilitating medical condition with marijuana." People v. Clendenin, 232 P.3d 210, 212, 214 (Colo.App.2009). In addition, a prohibition in a parenting plan against using medical marijuana while exercising parenting time did "not constitute restriction of parenting time."
a

In re Marriage of Parr, 240 P.3d 509, 511 (Colo.App.2010). We also emphasize that the issue presented here is whether unemployment compensation benefits may be denied due to the presence of "not medically prescribed controlled substances" in a tested employee. We are not deciding whether the amendment limits an employer from discharging an employee for using medical marijuana. Nonetheless, we

note that in the context of wrongful termination cases, language similar to section 14(10)(b)( "Nothing in this section shall require any employer to accommodate the medical use of marijuana in any work place.") has been interpreted not to require employers to accommodate employees' off-site use of medical marijuana. Roe v. TeleTech Customer Care Mgmt. (Colo.), LLC, 171 Wash.2d 736, 257 P.3d 586, 2011: WL 2278472, at * 6 (Wash. No. 83768-6, June 9, 2011). We therefore conclude that the Panel did not err in determining that claimant was not shielded by Colorado's medical marijuana amendment from being at fault for his separation from employment and could be disqualified from receiving unemployment compensation benefits under section 8-73-108(5)(e)(IX.5). C. Substantial Evidence Claimant contends that the evidence did not establish that he violated employer's "previously established" policy regarding the use of drugs because the policy was unclear or did not apply to him. He apparently refers to employer's policy which states: Employees who operate vehicles as part of their Service Group responsibilities must notify their supervisors or appropriate Company manager when they are taking prescription or non-prescription medication

which contains a WARNING LABEL stating that use of that drug may impair their ability to safely operate machinery or vehicles. It is undisputed that claimant did not operate any machinery or drive any vehicles for employer. Therefore, he argues, because he was legally taking a drug, he was not obligated to advise employer of his use of marijuana and should not have been penalized for his positive drug test. [11]While claimant's "sweeping and panning" duties may have rendered the above-quoted employer's policy inapplicable, and absolved him from the obligation to notify his supervisor of his marijuana usage, we do not read that provision as precluding the Panel from finding that claimant was terminated under employer's zero-tolerance drug policy set forth above. The separate zero-tolerance policy prohibits the presence of any "illegal drugs." Although Colorado's medical marijuana provision may protect claimant from prosecution under Colorado's criminal laws, as noted above the amendment has no bearing on federal laws, under which marijuana remains an illegal substance. See21 U.S.C. §§ 802, 812, 841. *8 As employer's representative noted, the illegality of marijuana use under federal law made its presence in any worker's system inappropriate under employer's policy. We therefore conclude that substantial evidence

supports the Panel's conclusion that claimant's status as a "sweeper and panner" who was not required to alert his supervisor of his marijuana use did not render his termination inappropriate under employer's zerotolerance drug policy. [12] Having determined that claimant was subject to employer's zerotolerance drug policy and could be disqualified from benefits by section 8— 73-108(5)(e) (IX.5), we turn to the evidence supporting the Panel's determination that claimant was not entitled to benefits because he had the presence of marijuana in his system. "A decision of the [P]anel may not be set aside where there are findings of fact supported by substantial evidence." Colo. Div. of Emp't& Training v. Hewlett, 777 P.2d 704, 707 (Colo.1989). [13] Claimant admitted he had used marijuana in the days preceding employer's drug test, and he does not dispute that marijuana was still in his system at the time of the testing. Moreover, the laboratory report of the positive drug test results was introduced into evidence before the hearing officer. Cf. Sosa v. Indus. Claim Appeals Office, P.3d , 2011

WL 2650490 (Colo.App. No. 10CA1671, July 7, 2011). Claimant did not dispute the accuracy of the reported test results or the qualifications of the

laboratory performing the test. Thus, there was substantial evidence that claimant had a controlled substance in his system that was not medically prescribed. Claimant also raises arguments concerning the properties of marijuana and its potency. He first argues that marijuana should not be categorized as a "Schedule I substance" because other substances so categorized "have no medicinal value." However, it is not within -the power of this court to determine what substances should be included on Schedule I. United States v. Phifer, 400 F.Supp. 719, 736 (E.D.Pa.1975) ( "Congress has designated marijuana as a controlled substance and has listed it in Schedule I as such. 21 U.S.C. § 812(c)[(Sched.l) ](c)(10). Congress has thus made the determination that, as a matter of law, marijuana is a controlled substance."), aff'd,532 F.2d 748 (3d Cir.1976)(unpublished table decision). He further contends that the trace amount of marijuana detected in his sample was insubstantial and he consequently was not "under the influence" of marijuana while at work. We need not address these arguments, however, for two reasons. [14] First, claimant was not denied benefits for being "under the

influence" of marijuana at work. Section 8-73-108(5)(e)(Vlil), C.R .S.2010, provides for disqualification when use of drugs results in "interference with job performance," but the denial of benefits to claimant was not based on this section. Second, although claimant discussed the level of marijuana reported in his drug test at the hearing, the hearing officer declined to consider claimant's statements because no expert addressed the meaning of the results or the effects due to the reported level of marijuana. *9[15] Because evidence as to the effect of the amount of marijuana detected in claimant was neither offered nor considered below, we may not address these contentions here. Like the Panel, we may not consider any factual assertions or documentation offered by claimant in support of his arguments in this appeal that he did not raise or present before the hearing officer, nor any arguments that were expressly rejected by the hearing officer as unsupported. See§ 8-74-107(1), C.R.S.2010; Huddy v. Indus. Claim Appeals Office, 894 P.2d 60, 62 (Colo.App.1995) (appellate court has no authority under section 8 -74-107, C.R.S.2010, to consider supplemental evidence); Goodwill Indus. v. Indus. Claim Appeals Office, 862 P.2d 1042, 1047 (Colo.App.1993). In our view, the evidence supports the Panel's determination that

claimant was disqualified from benefits from his employment under section 8-73-108(5)(e) (IX.S). Because the Panel's decision is supported by substantial evidence in the record, we may not set the decision aside.,See§ 8-74-107(6), C.R.S.2010; Tilley v. Indus. Claim Appeals Office, 924 P.2d 1173, 1177 (Colo.App.1996). III. Conclusion We conclude that the Panel did not err in setting aside the hearing officer's order. The order is affirmed. Judge FURMAN concurs. Judge GABRIEL dissents. Judge GABRIEL dissenting. agree with the majority's conclusion that the medical use of marijuana by an employee holding a registry card under article XVIII, section. 14 of the Colorado Constitution (medical marijuana amendment) is not pursuant to a prescription and therefore does not constitute the use of "medically prescribed controlled substances" within the, meaning of section 8-73— 108(5)(e) (IX.5), C.R.S.2010. The question thus becomes whether application of section 8-73-108(5)(e)(IX.5) to deny claimant benefits here

violated the medical marijuana amendment. The majority holds that it did not, because in its view, the medical marijuana amendment merely created an immunity from criminal prosecution, and not a separate constitutional right. Because I disagree with that conclusion and believe that the amendment, in fact, established a right to possess and use medical marijuana in the limited circumstances described therein, I respectfully dissent. I. Constitutional Construction "In construing a constitutional provision, our obligation is to give effect to the intent of the electorate that adopted it." Harwood v. Senate Majority Fund, LLC, 141 P.3d 962, 964 (Colo.App.2006). We look to the words used, reading them in context and according them their plain and ordinary meaning. /d. If the language is clear and unambiguous, we must enforce it as written. Davidson v. Sandstrom, 83 P.3d 648, 654 (Colo.2004). "Language in an amendment is ambiguous if it is `reasonably susceptible to more than one interpretation.' " Id. (quoting Zaner v. City of Brighton, 917 P.2d 280, 283 (Colo.1996)). If the language of a citizeninitiated measure is ambiguous, "a court may ascertain the intent of the voters by considering other relevant materials. such as the ballot title and

submission clause and the biennial `Bluebook,' which is the analysis of ballot proposals prepared by the legislature." In re Submission of

Interrogatories on House Bill 99 -7325, 979 P.2d 549, 554 (Colo.1999)."We
consider the object to be accomplished and the mischief to be prevented by the provision." Harwood, 141 P.3d at 964. *10 Here, as the majority points out, several provisions of the medical marijuana amendment state that the authorized use of medical marijuana establishes an affirmative defense or an exception from the state's criminal laws for the possession or use of marijuana. See, e.g.,Colo. Const. art. XVIII, § 14(2)(a) -(c), (4)(b). Section 14(4)(a) of that amendment, however, provides, "A patient may engage in the medical use of marijuana, with no more marijuana than is medically necessary to address a debilitating medical condition. A patient's medical use of marijuana, within [certain listed] limits, is lawful ...." (Emphasis added.) Because section 14(2)(a) -(c), on the one hand, and (4)(a), on the other hand, appear to be separate and do not modify one another, in my view, one could reasonably read the amendment, as the majority does, merely to establish an affirmative defense or exception to prosecution for possession or use of marijuana. Conversely, one could reasonably read the

amendment as creating a right to use medical marijuana (within established limits). Accordingly, I believe that the language of the amendment is ambiguous. See Davidson, 83 P.3d at 654 (language in an amendment is ambiguous if it is reasonably susceptible of more than one interpretation). Thus, I turn to extrinsic aids to attempt to ascertain the voters' intent in passing this amendment. See In re Submission of Interrogatories, 979 P.2d at 554. As presented to Colorado voters, the ballot title of the medical marijuana amendment read, in pertinent part: An amendment- fo the Colorado Constitution authorizing the medical use of marijuana for persons suffering from debilitating medical conditions, and, in connection therewith, establishing an affirmative defense to Colorado criminal laws for patients and their primary care-givers relating to the medical use of marijuana; establishing exceptions to Colorado criminal laws for patients and primary caregivers in lawful possession of a registry identification card for medical marijuana use and for physicians who advise patients or provide -them with written documentation as to such medical marijuana use; defining "debilitating medical condition" and authorizing the state health agency to approve other medical conditions or treatments as debilitating medical conditions.... Colorado Legislative Council, Research Pub. No. 475-0, An Analysis of 2000 Ballot Proposals(Bluebook)35(2000)(emphasis added). Although this title may not be a model of clarity, I read it to provide that the ,general intent of the amendment was to authorize the medical use of

marijuana, and then to list specific provisions that would implement that general intent. My interpretation finds further support in the Bluebook, which provided an .analysis: of the medical marijuana amendment. That analysis nowhere mentioned any immunity from or exception to state criminal laws. Rather, it stated, in pertinent part: *11 The proposed amendment to the Colorado Constitution: • allows patients diagnosed with a serious or chronic illness and their care-givers to legally possess marijuana for medical purposes.... • allows a doctor to legally provide a seriously or chronically ill patient with a written statement that the patient might benefit from medical use of marijuana..... Current Colorado and federal criminal law prohibits the possession, distribution, and use of marijuana. The proposal does not affect federal criminal laws, but amends the Colorado Constitution to legalize the medical use of mar~uana for patients who have registered with the state. Patients on the registry are allowed to legally acquire, possess, use, grow, and transport marijuana and marijuana paraphernalia. Employers are not required to allow the medical use of marijuana in the workplace. Id. at 1 (emphasis added). Similarly, in the section of the Bluebook entitled, "Arguments For," the proponents; of the- amendment stated, "Using marijuana for other than medical purposes will still be illegal in Colorado. Legal use of marijuana will be limited to patients on the state registry." Id. at 2(emphasis added).

"Legalize" means "[t]o make lawful; to authorize or justify by legal sanction." Black's Law Dictionary 977 (9th ed.2009); accord Webster's Third New International Dictionary 1290 (2002)(defining "legalize" to mean "to make legal: give legal validity or sanction to"). Accordingly, in my view, the medical marijuana amendment was intended not merely to create a defense to a charge of marijuana possession or use, but rather to make medical marijuana possession and use legal under the conditions identified in the amendment. Although in Roe v. TeleTech Customer Care Mgt. LLC, P.3d
(Colo.),

(Wash. No. 83768-6, June 9, 2011), the Washington Supreme reached the opposite conclusion, I note that the language of the
Court

Washington State Medical Use of Marijuana Act is quite different from that of the relevant portions of Colorado's medical marijuana amendment. For example, as adopted by Washington voters, the Washington act's statement of purpose provided, as pertinent here, Therefore, the people of the state of Washington intend that ... [gJualifying patients with terminal or debilitating illnesses who, in the judgment of their physicians, would benefit from the medical use of marijuana, shall not be found guilty of a crime under state law for their possession and limited use of marijuana.... Wash. Rev.Code § 69.51A.005 (version in effect from adoption in 1.998

until amended July 22, 2007)(quoted.in Roe,

P.3d at

). The act

further stated the intent of the voters to provide a defense to caregivers and physicians and to provide an affirmative defense to both qualifying patients and caregivers. Wash. Rev.Code §§ 69.51A.005, 69.51A.040(2). As noted above, Colorado's medical marijuana amendment is not similarly limited, when read as a whole. *12 Nor am I persuaded that section 14(10)(b) of the- medical marijuana amendment provides the broad exception that the Panel asserts. That section provides, "Nothing in this section shall require any employer to accommodate the medical use of marijuana in any work place." Colo. Const. art. XVIII, § 14(10)(b). "Medical use," turn, is defined as
in

the acquisition, possession, production, use, or transportation of marijuana or paraphernalia related to the administration of such marijuana to address the symptoms or effects of a patient's debilitating medical condition, which may be authorized only after a diagnosis of the patient's debilitating medical condition by a physician or physicians, as provided by this section. Id. at § 14(1)(b). In my view, these provisions are clear and unambiguous and refer solely to the acquisition, possession, production, use, or transportation of medical marijuana, or paraphernalia related to it, in the workplace. I do not believe

that these provisions encompass the presence of marijuana in one's blood after the lawful use of medical marijuana at home. In particular, I am not persuaded that the presence of medical marijuana in~ one's blood amounts to either "use," which I believe connotes contemporaneous consumption, or "possession," which I interpret as holding at one's disposal, within the meaning of the above-quoted definition. If it did, then under a zerotolerance policy like that at issue here, many patients who are eligible to use medical marijuana would likely abandon their right to do so, because even lawful use at home would put their benefits, and perhaps even their jobs, at risk. I do not believe that the voters who passed the medical marijuana amendment intended section 14(10)(b) to sweep that broadly. Cf.§ 24-34-402.5, C.R.S.2010 (providing that, subject to certain exceptions, it is a discriminatory or unfair employment practice for an employer to terminate the employment of an employee for engaging in lawful activity off the premises of the employer during nonworking hours). Given my view that sections 14(1)(b) and (10)(b) of the medical marijuana amendment are unambiguous, I would not resort to extrinsic aids to ascertain their meaning. Were I to do so, however, I believe that the available extrinsic evidence supports my interpretation of those provisions.

Thus, as noted above, the analysis contained in the Bluebook noted, "Employers are not required to allow the medical use of marijuana in the workplace." Bluebook, at 1. To me, this analysis makes clear that the voters' intention was precisely what the amendment says it was, namely, to give employers the right to prohibit the acquisition, possession, production, use, or transportation of medical marijuana, or paraphernalia related to it, in the workplace. For these reasons, I would conclude that claimant had a constitutional right to possess and use medical marijuana pursuant to the limitations contained in the medical marijuana amendment. I recognize that such an interpretation could potentially implicate Supremacy Clause issues, given prevailing federal law. In my view, the same issues could apply to the majority's interpretation because the medical marijuana amendment creates a regulatory scheme that potentially conflicts with federal law. Because no party has raised any issue concerning the Supremacy Clause, however, I do not address that question. II. Constitutionality of Denial of Benefits *13 The question thus becomes whether the denial of benefits to claimant here was consistent with his constitutional rights. In my view, it

was not. "[E]ven though a person has no `right' to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests ...." Perry v. Sindermann, 408 U.S. 593, 597 (1972); accord 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 513, 116 S.Ct. 1495, 134 L.Ed.2d 711 (1996); Alliance for Open Society lnt'l, lnc. v. U.S. Agency for Int'I Dev., F.3d (2d Cir. No. 08— as the doctrine of

4917—CV, July 6, 2011). This rule, known

"unconstitutional conditions," however, is not absolute. Thus, the doctrine allows the government to condition the grant of a discretionary benefit on the release of a constitutional right when the government has an interest that outweighs the particular constitutional right at issue. See Lorenz v. State, 928 P.2d 1274, 1283(Colo.1996). The United States Supreme Court has long held that unemployment compensation benefits constitute one type of governmental benefit that cannot be conditioned on a willingness to abandon one's constitutional rights. See, e.g., Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136,

139—~42, 107 S.Ct. 1046, 94 L.Ed.2d 190 (1987); Thomas v. Review Bd., 450 U.S. 707, 716-18, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981); Sherbert v. Verner, 374 U.S. 398, 403 -06, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963); see also Everitt Lumber Co. v. Indus. Comm'n, 39 Colo.App. 336, 339 & n. 3, 565 P.2d 967, 969 & n. 3(1977)(holding that "invoking the protection of the Fifth Amendment, or refusing to waive its protections, may not be used as the basis for denying ... claimants- unemployment compensation benefits," but not reaching the question of whether a denial of benefits due solely to a private employee's assertion of Fifth Amendment rights would be precluded on the basis that such action would amount to state action under the Fourteenth Amendment). Thus, where the state conditions receipt of an important benefit on conduct protected by the constitution, or where it denies such a benefit based on constitutionally protected conduct, thereby putting substantial pressure on an adherent to modify his or her behavior and forgo the exercise of a constitutional right, a burden on that right exists. See Hobbie, 480 U.S. at 141;Thomas, 450 U.S. at 717-18. "While the compulsion may be indirect, the infringement upon [the exercise of that constitutional right] is nonetheless substantial." Thomas, 450 U.S.. at 718;accord Hobbie, 480

U.S. at 141. The foregoing case law thus suggests three issues to be decided in this case: (1) whether the denial of benefits here constituted state action; (2) if so, whether the state conditioned the receipt of such benefits on the release of a constitutional right; and (3} if so, whether the state's interest outweighs the constitutional right in question. I address each of these issues in turn. *14 First, in Hobble, Thomas, and Sherbert, the Supreme Court made clear, albeit implicitly, that a denial of unemployment benefits arising from the exercise of a constitutional right constitutes state action. See Hobble, 480 U.S. at 139-42;Thomas, 450 U.S. at 716-18;Sherbert, 374 U.S. at 403-06. I would so hold here. Second, for the reasons set forth above, I believe that claimant had a constitutional right to use medical marijuana, and in my view, the denial of benefits based on his exercise of that right infringed the right. Specifically, claimant was denied benefits solely because he exercised his constitutional right to use medical marijuana. In this regard, this case is similar to Hobble, Thomas, and Sherbert, in which the claimants were denied benefits solely because they .chose to exercise their religious beliefs, which resulted in

their being discharged from employment. Hobbie, 480 U.S. at 138;Thomas, 450 U.S. at 709-13;Sherberf, 374 U.S. at 399-401. In my view, the denial of benefits here, like the denial of benefits in Hobbie, Thomas, and Sherbert, placed substantial pressure on claimant to forgo the exercise of his constitutional rights, and thereby burdened his exercise of those rights. Although the compulsion may have been indirect, it was nonetheless substantial. See Hobbie, 480 U.S. at 141;Thomas, 450 U.S. at 718;cf.

Employment Div., Dept of Human Resources of Oregon v. Smith, 494 U.S.
872, 883 -85, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) (distinguishing Sherbert, Hobbie, and Thomas in a case, unlike the present one, in which the court construed the claimant to be seeking an exemption from generally applicable criminal law on free exercise of religion grounds); see also

Church of fhe Lukumi8abalu Aye, Inc. v. City of Hialeah, 508 U.S. 520,
559-77, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993)(Souter, J., concurring) (criticizing Smith and calling for its reexamination). Finally, I perceive nothing in the record to suggest that the state's interest in denying benefits here outweighs claimant's constitutional rights. In their appellate brief, the People asserted, in conclusory fashion, that claimant had no constitutional right at all. Based on that premise, which.

believe to be incorrect, the People did not proceed to address the balancing of interests and, thus, failed to indicate any state interest that outweighs claimant's rights. Because my own review of the record and applicable case law failed to reveal such an interest, I would conclude that the state's interests do not outweigh claimant's interests here. For these reasons, I believe that claimant's lawful use of medical marijuana outside of the workplace—particularly where, as here, there is no evidence of any impairment of performance in the workplace—cannot constitutionally be used as a basis for denying claimant unemployment benefits. Accordingly, I respectfully dissent.

(C)2011 Thomson Reuters.

APPENDIX 2

COLORADO CONSTITUTION (relevant provisions)

39

C.R.S. Const. Art. XVIiI, § 14. Medical use of marijuana for persons suffering from debilitating medical conditions (1) As used in this section, these terms are defined as follows: (a)"Debilitating medical condition" means: (I) Cancer, glaucoma, positive status for human immunodeficiency virus, or acquired immune deficiency syndrome, or treatment for such conditions; (II) A chronic or debilitating disease or medical condition, or treatment for such conditions, which produces, for a specific patient, one or more of the following, and for which, in the professional opinion of the patient's physician, such condition or conditions reasonably may be alleviated by the medical use of marijuana: cachexia; severe pain; severe nausea; seizures, including those that are characteristic of epilepsy; or persistent muscle spasms, including those that are characteristic of multiple sclerosis; or (III) Any other medical condition, or treatment for ,,

such condition, approved by the state health agency, pursuant to its rule making authority or its approval of any petition submitted by a patient or physician as provided in this section. (b)"Medical use" means the acquisition, possession, production, use, or transportation of marijuana or paraphernalia related to the administration of such marijuana to address the symptoms or effects of a patient's debilitating medical condition, which may be authorized only after a diagnosis of the patient's debilitating medical condition by a physician or physicians, as provided by this section.

(d)"Patient" means a person who has a debilitating medical condition. (e)"Physician" means a doctor of medicine who maintains, in good standing, a license to practice medicine issued by the state of Colorado. (f)"Primary care-giver" means a person, other than the patient and the patient's physician, who is eighteen years of age or older and has significant responsibility for managing the well-being of a patient who has a debilitating medical condition.
41

(g)"Registry identification card" means that document, issued by the state health agency, which identifies a patient authorized to engage in the medical use of marijuana and such patient's primary caregiver, if any has been designated. (h)"State health agency" means that public health related entity of state government designated by the governor to establish and maintain a confidential registry of patients authorized to engage in the medical use of marijuana and enact rules to administer this program. (i)"Usable form of marijuana" means the seeds, leaves, buds, and flowers of the plant (genus) cannabis, and any mixture.or preparation thereof, which are appropriate for medical use as provided in this section, but excludes the plant's stalks, stems, and roots. (j)"Written documentation" means a statement signed- by a patient's physician or copies of the patient's pertinent medical records. (2) (a) Except as otherwise provided in subsections (5), (6), and (8) of this section, a patient or primary care-giver charged with a violation of the state's criminal laws related to the patient's medical use of marijuana will be deemed to have established an affirmative defense to such allegation where:
42

(I) The patient was previously diagnosed by a physician as having a debilitating medical condition; (II) The patient was advised by his or her physician, in the context of a bona fide physician-patient relationship, that the patient might benefit from the medical use of marijuana in connection with a debilitating medical condition; and (III) The patient and his or her primary care-giver were collectively in possession of amounts of marijuana only as permitted under this section. This affirmative defense shall not exclude the assertion of any other defense where a patient or primary care-giver is charged with a violation of state law related to the patient's medical use of marijuana. (b) Effective June 1, 1999, it shall be an exception from the state's criminal laws for any patient or primary care-giver in lawful possession of a registry identification card to engage or assist in the medical use of marijuana, except as otherwise provided in subsections (5) and (8) of this section. (c) It shall be an exception from the state's criminal laws for any physician to:
43

(I) Advise a patient whom the physician has diagnosed as having a debilitating medical condition, about the risks and benefits of medical use of marijuana or that he or she might benefit from the medical use of marijuana, provided that such advice is based upon the physician's contemporaneous assessment of the patient's medical history and current medical condition and a bona fide physician-patient relationship; or (II) Provide a patient with written documentation, based upon the physician's contemporaneous assessment of the patient's medical history and current medical condition and a bona fide physicianpatient relationship, stating that the patient has a debilitating medical condition and might benefit from the medical use of marijuana. No physician shall be denied any rights or privileges for the acts authorized by this subsection. (d) Notwithstanding the foregoing provisions, no person, including a patient or primary care-giver, shall be entitled to the protection of this section for his or her acquisition, possession, manufacture, production, use, sale, distribution, dispensing, or transportation of marijuana for any use other than medical use.
44

(3) The state health agency shall create and maintain a confidential registry of patients who have applied for and are entitled to receive a registry identification card according to the criteria set forth in this subsection, effective June 1, 1999.

(b) In order to be placed on the state's confidential registry for the medical use of marijuana, a patient must reside in Colorado and submit the completed application form adopted by the state health agency, including the following information, to the state health agency: (I) The original or a copy of written documentation stating that the patient has been diagnosed with a debilitating medical condition and the physician's conclusion that the patient might benefit from the medical use of marijuana; (II) The name, address, date of birth, and social security number of the patient; (III) The name, address, and telephone number of the patient's physician; and (IV) The name and address of the patient's primary
45

care-giver; if one is designated at the time of application. (c)Within thirty days of receiving the information referred to in subparagraphs (3)(b)(I) -(IV), the state health agency shall verify medical information contained in the patient's written documentation. The agency shall notify the applicant that his or her application for a registry identification card has been denied if the agency's review of such documentation discloses that: the information required pursuant to paragraph (3)(b} of this section has not been provided or has been falsified; the documentation fails to state that the patient has a debilitating medical condition specified in this section or by state health agency rule; or the physician does not have a license to practice medicine issued by the state of Colorado. Otherwise, not more than five days after verifying such information, the state health agency shall issue one serially numbered registry identification card to the patient, stating: (I) The patient's name, address, date of birth, and social security number; (II) That the patient's name has been certified to the state health agency as a person who has a debilitating medical condition, whereby the patient may address such condition with the medical use of
46

marijuana; (III) The date of issuance of the registry identification card and the date of expiration of such card, which shall be one year from the date of issuance; and (IV) The name and address of the patient's primary care-giver, if any is designated at the time of application:

(h) A patient who- no longer has a debilitating medical condition shall return his or her registry identification card to the state health agency within twenty-four hours of receiving such diagnosis by his or her physician. (i) The state health agency may determine and levy reasonable fees to pay for any direct or indirect administrative costs associated with its role in this program. (4) (a) A patient may engage in the medical use of marijuana, with no more marijuana than is medically necessary to address a debilitating medical condition. A patient's medical use of marijuana, within the following limits, is lawful: (I) No more than two ounces of a usable form of
47

marijuana; and (II) No more than six marijuana plants, with three or fewer being mature, flowering plants that are producing a usable form of marijuana. (b) For quantities of marijuana in excess of these amounts, a patient or his or her primary care-giver may raise as an affirmative defense to charges of violation of state law that such greater amounts were medically necessary to address the patient's debilitating medical condition. (5) (a) No patient shall: (I) Engage in the medical use of marijuana in a way that endangers the health or well-being of any person; or (II) Engage in the medical use of marijuana in plain view of, or in a place open to, the general public. (b) In addition to any other penalties provided by law, the state health agency shall revoke for a period of one year the registry identification card of any patient found to have willfully violated the provisions of this section or the implementing legislation adopted by the general assembly.
48

(6) Notwithstanding paragraphs (2)(a) and (3)(d) of this section, no patient under eighteen years of age shall engage in the medical use of marijuana unless: (a)Two physicians have diagnosed the patient as having a debilitating medical condition; (b) One of the physicians referred to in paragraph (6)(a) has explained the possible risks and benefits of medical use of marijuana to the patient and each of the patient's parents residing in Colorado; (c)The physicians referred to in paragraph (6)(b) has provided the patient with the written documentation, specified in subparagraph (3)(b)(I); (d) Each of the patient's parents residing in Colorado consent in writing to the state health agency to permit the patient to engage in the medical use of marijuana; (e) A parent residing in Colorado consents in writing to serve as a patient's primary care-giver; (f) A parent serving as a primary care-giver completes and submits an application for a registry identification card as provided in subparagraph (3)(b) of this section and the written consents referred to
49
in

paragraph (6)(d)to the state health agency; (g)The state health agency approves the patient's application and transmits the patient's registry identification card to the parent designated as a primary care-giver; (h)The patient and primary care-giver collectively possess amounts of marijuana no greater than those specified in subparagraph (4)(a)(I) and (II); and (i) The primary care-giver controls the acquisition of such marijuana and the dosage and frequency of its use by the patient. (7) Not later than March 1, 1999, the governor shall designate, by executive order, the state health agency as defined in paragraph (1)(g) of this section. (8) Not later than April 30, 1999, the General Assembly shall define such terms and enact such legislation as may be necessary for implementation of this section, as well as determine and enact criminal penalties for: (a) Fraudulent representation of a medical condition by a patient to a physician, state health agency, or state or local law enforcement official for the purpose of falsely obtaining a registry
50

identification card or avoiding arrest and prosecution; (b) Fraudulent use or theft of any person's registry identification card to acquire,. possess, produce, use, sell, distribute, or transport marijuana, including but not limited to cards that are required to be returned where patients are no longer diagnosed as having a debilitating medics{ condition; (c) Fraudulent production or counterfeiting of, or tampering with, one or more registry identification cards; or (d) Breach of confidentiality of information provided to or by the state health agency. (9) Not later than June 1, 1999, the state health agency shall develop and make available to residents of Colorado an application form for persons seeking to be listed on the confidential registry of patients. By such date, the state health agency shall also enact rules of administration, including but not limited to rules governing the establishment and confidentiality of the registry, the verification of medical information, the issuance and form of registry identification cards, communications with law enforcement officials about registry identification cards that have been suspended where a patient is no longer diagnosed as having a debilitating si

medical condition, and the manner in which the agency may consider adding debilitating medical conditions to the list provided in this section. Beginning June 1, 1999, the state health agency shall accept physician or patient initiated petitions to add debilitating medical conditions to the list provided in this section and, after such hearing as the state health agency .deems appropriate, shall approve or deny such petitions within one hundred eighty days of submission. The decision to approve or deny a petition shall b~ considered a final agency action. (10) (a) No governmental, private, or any other health insurance provider shall be required to be liable for any claim for reimbursement for the medical use of marijuana. (b) Nothing in this section shall require any employer to accommodate the medical use of marijuana in any work place. (11) Unless otherwise provided by this section, all provisions of this section shall become effective upon official declaration of the vote hereon by proclamation of the governor, pursuant to article V, section {1)(4), and shall apply to acts or offenses committed on or after that date.

s2

APPENDIX 3

UNEMPLOYMENT COMPENSATION STATUTE (relevant provisions)

53

COLORADO REVISED STATUTES: §8-73-108. Benefit awards--repeal (1)(a) In the granting of benefit awards, it is the intent of the general assembly that the division at times be guided by the principle
all

that unemployment insurance is for the benefit of persons unemployed through no fault of their own; and that: each eligible individual who is unemployed through no fault of his own shall be entitled to receive a full award of benefits; and that every person has the right to leave any job for any reason, but that the circumstances of his separation shall be considered in determining the amount of benefits he may receive, and that certain acts of individuals are the direct and proximate cause of their unemployment, and such acts may result in such individuals receiving a disqualification..

(5) Disqualification.

(e)Subject to the maximum reduction consistent with federal law, and insofar as consistent-with interstate agreements, if a separation from employment occurs for any of the following reasons, the
54

employer from whom such separation occurred shall not be charged for benefits which are attributable to such employment and, because any payment of benefits which are attributable to such employment out of the fund as defined in section 8-70-103(13) shall be deemed to have an adverse effect on such employer's account in such ;fund, no payment of such benefits shall be made from such fund:

(VIII) Off-thejob use of not medically prescribed intoxicating beverages or controlled substances, as defined in section 1222-303(7), C.R.S., to a degree resulting in interference with job performance; (IX) On-thejob use of or distribution of not medically prescribed intoxicating beverages or controlled substances, as defined in section 12-22-303(7), C.R.S.; (IX.5) The presence in an individual's system, during working hours, of not medically prescribed controlled substances, as defined in section 12-22-303(7), C.R.S., or of a blood alcohol level at or above 0.04 percent, or at or above an applicable lower level as set forth by federal statute or regulation, as evidenced by a drug or alcohol test ss

administered pursuant to a statutory or regulatory requirement or a previously established, written drug or alcohol policy of the employer and conducted by a medical facility or laboratory licensed or certified to conduct such tests;

56

APPENDIX 4

CONTROLLED SUBSTANCES STATUTES (relevant provisions)

5~

COLORADO REVISED STATUTES: § 12-22-303. Definitions As used in this part 3, unless the context otherwise requires:

(7)"Controlled substance" shall have the same meaning as in section 18-18-102(5), C.R.S.

§ 18-18-102. Definitions As used in this article:

(5)"Controlled substance" means a drug, substance, or immediate precursor included in schedules I through V of part 2 of this article, including cocaine, marijuana, marijuana concentrate, any synthetic cannabinoid, and salvia divinorum.

§ 18-18-203. Schedule 1 (1) A substance shall be added to schedule I by the general assembly when: (a) The substance has high potential for abuse;
58

(b)The substance has no currently accepted medical use in treatment in the United States; and (c)The substance lacks accepted safety for use under medical supervision. (2) Unless specifically excepted by Colorado or federal law or Colorado or federal regulation or more specifically included in another schedule, the following controlled substances are listed in schedule I:

(c) Any material, compound, mixture, or preparation containing any quantity of the following hallucinogenic substances, including any salts, isomers, and salts of isomers of them that are theoretically possible within the specific chemical designation:

(XXIII) Tetrahydrocannabinols;

59

APPENDIX 5

OFFICIAL COLORADO MEDICAL MARIJUANA STATISTICS

60

HomeNiedical !11larijuana RegistryStatistics

The Colorado Medical Marijuana Registry
Statistics • July 2011 • Archive Medical Marijuana Registry Program Update (as of July 31, 2011) In the November 2000 general election, Coloradoans passed Amendment 20, and the Colorado Department of Public Health and Environment(CDPHE)was tasked with implementing and administering the Medical Marijuana Registry program. In March of -2001, the State of Colorado Board of Health approved the Rules and Regulations pertaining to the administration of the program, and on June 1st, 2001, the Registry began accepting and processing applications for Registry Identification cards. Statistics of the registry include: • 151,025 new patient applications have been received to date since the registry began operating in June 2001. The total number of patients who currently possess valid Registry ID cards is 127,816. • Sixty-eight percent of approved applicants are male. • The average age of all patients is 41. Currently forty-five

patients are minors (under the age of 18). • Fifty-six percent of patients reside in the Denver-metro area (Adams, Arapahoe, Boulder, Broomfield, Denver, Douglas & Jefferson counties), with the remainder of patients residing in counties throughout Colorado. • Patients on the registry represent all the debilitating conditions covered under Amendment 20. Severe pain accounts for 94 percent of all reported conditions; muscle spasms account for the second-most reported condition at 19 percent. Note that percentages do not add to 100 percent because some patients have more than one condition. • Sixty-six percent of patients have designated a primary caregiver (someone who has significant responsibility for managing the care of a patient with a debilitating medical condition). • More than 1,100 different physicians have signed for patients in Colorado. Please see the tables below for a complete listing of all statistical information. As of October 27, 2008 all applications, renewal and changes to the Registry must be submitted via mail and include a legible .photo copy of the patient's Colorado Identification. Faxes and emails are not accepted. No general funds have been designated for this program. The Colorado Constitution authorizes CDPHE to collect fees to cover the costs of administering the program. Currently the fee is $90, and is evaluated annually by CDPHE. The fee was lowered from $110 on June 1, 2007. Table I: Countv Information County Number of Patients dams 8,927 lamosa 362
62
up

Percent of Patients 7% <1

rapahoe rchuleta Baia Bent Boulder Broomfield Chaffee Cheyenne Clear Creek Conejos Costilla Crowley Custer Delta Denver Dolores Douglas Eagle EI Paso Elbert Fremont Garfield Gilpin Grand Gunnison Hinsdale HuerFano Jackson Jefferson Kiowa Kit Carson La Plata Lake Larimer

11,413 420 58 51 11,755 1,264 683 30 526 137 162 73 106 846 19,148 81 4,171 1,397 14,828 439 1,241 1,808 451 430 575 22 210 22 14,552 19 58 1,914 288 8,204
63

9% <1 <1 <1 9% 1 1 <1 <1 <1 <1 <1 <1 1 15% <1 3% 1 12% <1 1% 1% <1 <1 <1 <1 <1 <1 11 <1 <1 1 <1 6%

Las Animas 291 Lincoln 41 Logan 242 Mesa 3,513 Mineral 15 Moffat 244 Montezuma 698 Montrose 910 Morgan 226 Otero 221 Oura 158 Park 919 Phillips 33 Pitkin 867 Prowers 101 Pueblo 2,941 Rio Blanco 87 Rio Grande 202 Routt 1,179 Saguache 267 San Juan 35 San Miguel 583 Sedgwick 22 Summit 1,456 eller 1,064 ashington 61 eld 4,686 Yuma 83 * Indicates fewer than three patients in each category Table II: Conditions Reported Number of Patients Condition Reporting Condition Cachexia 1,655
64

<1 <1 <1% 3°l0 <1 <1 1 1 <1 <1 <1 1 <1 1 <1 2% <1 <1 1 <1% <1 <1 °fo <1 1 1 <1 4% <1

Percent of Patients Reporting Condition** 1

Cancer 2,828 2% Glaucoma 1,165 1 HIV/AIDS -678 1 Muscle Spasms 24,828 19% Seizures 1,819 1 Severe Pain 120,567 94% Severe Nausea 15,503 12% ~~`Does not add to 100% as some patients report using medical marijuana for more than one debilitating medical condition. Table III: User Characteristics Sex Percent:on Registry Average Age** Male 68% 40 Female. 32% 42 ~~ The overall average age of all patients is 41 years old.

Medical Marijuana Registry 4300 Cherry Creek Drive South (HSVRD-MMP-A1); Denver, CO 80246-1530 [email protected] O 2011 State of Colorado, Denver, CO

65

APPENDIX 6

BLUE BOOK — MEDICAL MARIJUANA AMENDMENT INITIATIVE (relevant- provisions)

66

Legislative Council of the Colorado General Assembly

Research Publication No. 475-0

AN ANALYSIS OF THE 2000 STATEWIDE BALLOT PROPOSALS

STATEWIDE ELECTION DAY IS Tuesday, November 7, 2000 Polling places open from 7 a.m. to 7 p.m. (Early Voting Begins October 23, 2000)

A YES vote any ba/!ot issue a vote IN FAVOR OF changing cu rent existing circumstances, and a NO vote on ballot a vote AGAINST.charging current or existing circumstances.
on law or is issue is law any

67

TABLE OF CONTENTS Amendment 20 Medical Use of Marijuana ................................1

68

ANALYSES

AMENDMENT 20 MEDICAL USE OF MARIJUANA

The proposed amendment to the Colorado Constitution - allows patients diagnosed with a serious or chronic illness and their care-givers to legally possess marijuana for medical purposes. For a patient unable to administer marijuana to himself or herself, or for minors under 18, care-givers determine the amount and frequency of use; - allows a doctor to legally provide a seriously or chronically ill patient with a written statement that the patient might benefit from medical use of marijuana; and - establishes a confidential state registry of patients and their care-givers who are permitted to possess marijuana for medical purposes. Background and Provisions of the Proposal Current Colorado and federal criminal law prohibits the possession, distribution, and use of marijuana. The proposal
69

does not affect the federal criminal laws, but amends the Colorado Constitution to legalize the medical.use of marijuana for patients who have registered with the state. Qualifying medical conditions include cancer, glaucoma, AIDS/HIV, some neurological and movement disorders such as multiple sclerosis, and any other condition approved by the state. A doctor's signed statement or a copy of the patient's pertinent medical records indicating that the patient might benefit from marijuana is necessary for a patient to register. Individuals on the registry may possess up to two ounces of usable marijuana and six marijuana plants. Because the proposal does not change current law, distribution of marijuana will still be illegal in Colorado. Patients on the registry are allowed to legally acquire, possess, use, grow, and transport marijuana and marijuana paraphernalia. Employers are not required to allow the medical use of marijuana in the workplace. Marijuana may not be used in any place open to the public, and insurance companies are not required to reimburse a patient's claim for costs incurred ~o

through the medical use of marijuana. Finally, for a patient who is under the age of 18 the proposal requires statements from two doctors and written consent from any parent living in Colorado to register the patient. Arguments For 1)This proposal gives patients with certain debilitating medical conditions and their medical providers one additional treatment option. THC, the active ingredient in marijuana, has been shown to relieve the pain and .suffering of some patients. It can be beneficial for individuals suffering from nausea, vomiting or lack of appetite due to chemotherapy or AIDS/HIV, pressure within the eye due to glaucoma, and severe muscle spasms from some neurological and movement disorders such as multiple sclerosis. 2) For patients suffering from serious illnesses, marijuana can be more effective than taking prescription drugs that contain synthetic THC. Further, many drugs have side effects, but the adverse effects of marijuana are no worse than those of some prescription drugs used to treat the illnesses listed in the ~~

proposal. 3) Using marijuana for other than medical purposes will still be illegal in Colorado. Legal use of marijuana will be limited to patients on the state registry. The registry will consist only of those individuals who have submitted written documentation from their doctor indicating a qualifying medical condition. Registry identification cards will be valid for one year and must be renewed annually. Law enforcement officers will be able to access the registry to verify that an individual who is arrested for the possession or use of marijuana is registered. The General Assembly is required to enact criminal penalties for fraudulent use of the registry Arguments Against 1) Using marijuana is not necessary to relieve nausea, increase appetite, and alleviate pain. Many other prescription drugs, including Marinol, which contains a synthetic version of THC, are currently available. Further, this proposal sets a dangerous precedent for approval and regulation of medicines by popular vote. It circumvents the usual rigorous process by which all
~2

other medicines_ are legalized and regulated. Safe and effective medicines should be developed through scientific and reproducible research. 2)The proposal does not provide any legal means by which a patient may obtain marijuana. Under state criminal law, it will still be illegal to sell marijuana or marijuana plants to another individual, including a patient on the state registry. Under federal criminal law, it will continue to be illegal to sell or use marijuana for any purpose. 3) Research shows that smoking marijuana can be addictive and has other damaging health effects on users, such as pneumonia, cancers, and lower birth weights. The effects of smoking marijuana may be worse than smoking tobacco, depositing as much as four times the tar, and carrying as much as 50 percent more carcinogens than are in a regular cigarette. The proposal contains no requirements for a prescription, no quality control or testing standards, and no control over strength, dosage, or frequency of use, such as those required for prescription drugs. As a result, patients may use marijuana for up to one year
73

without review by a doctor. Finally, patients have no control over the dosage of THC received through smoked marijuana because the potency can vary form use to use, and from plant to plant.

74