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October 30, 2009 12:24 AM UTC

Colorado - Marijuana Court Decision

  • 59 Comments
  • by: Sharon Hanson

( – promoted by ClubTwitty)

Stacy Clendenin NOT A ‘Primary Care-Giver,’ Should Face Marijuana Charges: Court

The Colorado Court of Appeals ruled Thursday that selling medical marijuana to licensed patients does not qualify someone as a “primary care-giver,” and thus does not necessarily shield them from state and federal marijuana laws.

At issue was whether Stacy Clendenin, a Longmont woman, was subject to charges for cultivating marijuana plants in her home, even though the was selling exclusively to licensed medical marijuana patients. She argued that this qualified her as a “primary care-giver,” making her growing operation legal.

The court’s decision read:

In this case, we conclude that to qualify as a “primary care-giver,” a person must do more to manage the health and well-being of a patient who has a debilitating medical condition than merely supply marijuana.

The Denver Post reports that the ruling “could change the process now in place to supply the burgeoning medical marijuana industry in Colorado.”

Attorney General John Suthers, a Medical Marijuana foe, praised the decision:

“I am pleased to see the Court of Appeals’ has provided legal support for our case that a caregiver, under Amendment 20, must do more than simply provide marijuana to a patient. I also was pleased to see the assertion in the special concurrence that Amendment 20 ‘cries out for legislative action.’ I could not agree more. I hope the legislature will act and create a regulatory framework that gives substance to the Court of Appeals’ findings.”

http://www.huffingtonpost.com/…

As the state is reeling from budget cuts and trying to meet budgets by furloughing state workers this is just what we didn’t need.  John Suthers is probably frothing at the mouth.  And prosecuting providers of medical marijuana costs a bundle and doesn’t provide anyone with any benefits what-so-ever.  This is a travesty of justice.  

Does anyone know the make-up of the Colorado Supreme Court? Perhaps it’s time to pass state legislation prohibiting this kind of prosecution.  

Comments

59 thoughts on “Colorado – Marijuana Court Decision

  1. It sticks in the right’s craw that Colorado has had a Democratic governor since 1975 with the exception of a few unfortunate years under Boll Owens. Supreme Court justices are lifetime gubernatorial appointments, so although they do turn over a little more than the US Supreme Court the membership is relatively steady and relatively liberal.

    It’s why we get the Republican judicial term limit talk all the time.

    The problem is likely (because it always is) that the constitutional amendment was written too vaguely. See also: Amendment 41:

    http://coloradopols.com/showDi

    1. They serve for 10-year terms, at which time they are up for retention election (thus cluttering the ballot with a bunch of no-names).  Also, I read once that there is a mandatory retirement age for the state court, but I don’t remember what it is.

      Also, I don’t see why the court of appeals’ decision here is so crazy, but, then again, I am high right now.

  2. Unfortunately there is a lot of ambiguity in Amendment 20, and when this happens there is going to be litigation and court rulings in an attempt to clear up ambiguities.

    I actually tend to agree with Suther’s in that the legislature may have to step in and give some direction, regulatory or otherwise, addressing the ambiguities of 20, although Speaker Carroll said last week he wasn’t really interested in getting involved.

  3. And for a drug that is less harmful than alcohol and actually has medicinal properties. The reason it’s illegal in the first place is political and not for the public good. I guess the DEA needed to keep their jobs and creating public outrage about Marijuana was the way to go.

      1. in the dry (no alcohol sales allowed) counties of Kentucky and Tennessee were often the “moonshine” makers. Keeping alcohol illegal was the best thing they could do to improve sales.

        1. License marijuana production.

          This provides the possibility to packaging reliable products; possibly (I don’t know the chemistry etc) measurable impact, rather like % of alcohol; and a business opportunity for alcohol and, even better, tobacco companies looking for something new. Plus it facilitates tax collections.

          Everyone knows that banning a substance or activity is irrelevant in terms of restricting its use. Heroin, cocaine, meth are just three examples. Not to say that I endorse legalizing  any and every substance/activity, but I do suspect the marijuana is the least objectionable of the illegal “drugs” and might…just might…cut into demand for others that are more destructive.

          Certainly there is no single answer to the issue of self-destructive behavior. Take voting for Republican candidates as another example…. Oops, off subject. Sorry.

          Admittedly everyone here knows this. Perhaps the real issue here is overcoming objections of the entrenched competition, viz. alcohol producers, by giving them an entree not easily open to amateur producers who now dominate the market with untested and possibly unreliable products.

          1. the big tobacco companies have already licenced many traditional marijuana terms, “Maui Wowie”, for instance, so that they would be positioned for this eventuality.

          2. we couldn’t even buy liquor on Sunday until just recently.

            Still can’t let the free market be free and let liquor retailers have multiple locations.  ANd then there’s the whole thing about having to buy form one of the few licensed wholesalers.

            1. Off topic, to be sure, but I wonder whether our esteemed representatives in foreign cultures, such as Afghanistan, ably explain the importance of Wealth and Business Ownership in the American scheme of democracy, or whether they’re limited to 5th grade notions of people going to the polls and voting and thereby controlling/influencing the government. If they are so limited, might that explain why their credibility is also limited?

    1. Reading the “facts and procedural background” one learns:

      Longmont police dept, acting on a tip from an informant, assigned a detective to investigate Ms. Clendenin. In the course of said investigation, assessor records and utility statements were obtained not only of Ms. Clendenin’s residence but of her neighbors residences for comparative analysis, which established Ms. Clendenin’s power usage was 3 to 4 times greater than similar houses in her neighborhood. A “solid waste” investigation (they snooped through her garbage) turned up some marijuana stalks.

      Thanks to the stellar gumshoe work by the Longmont police dept., probable cause was established, a search warrant obtained, Ms. Clendenin’s residence was searched and she was busted, and the wheels of justice in the war on drugs were put in motion.

      The cost of prosecuting Ms. Clendenin after she was charged notwithstanding, it would be interesting to know how many man hours were spent by the Longmont police dept. in their investigation, man hours that may have been better spent investigating more serious crimes against persons or property.

          1. I know very little of the ag conditions required.

            How water intensive is it?

            How long a growing season is required?

            Are  you sure that name is not just marketing hype?

            Why is the popular perception hat N. California and some parts of Mexico are the best growing conditions in N America?

            1. It is a significant cash crop in Colorado and many other places.

              Nancy’s ‘Just Say No’ campaign did wonders for the domestic pot industry.  Rather than take it across the border, many folks began growing it here, primarily indoors where one can more carefully control the lighting(which, I think, triggers its flowering or something), water, etc.  The rise in potency is related to these improved techniques.

              As Duke said, it is grown all over, but it is primarily (as in the majority of it is) grown indoors around here.

              Kentucky, TN, places that are subtropical and temperate are the best places for outdoor growing.  

              Outdoor growing here takes substantial irrigation, and a good crop takes lots of work–you don’t just plant seeds and let it go.   Thus when outdoor operations get busted it is usually with lots of irrigation piping, etc. and little camps where the tenders stay.

              I think that weed should either be decriminalized or legal so enforcement can focus on serious problems–like real crime, and meth, etc.

              CNN or someone just did a big series called Marijuana, Inc.. Oh, and I watched Weeds.

            2. Some guy from the Feds showed up to tell my dad he was about to be arrested for growing pot. My dad had no clue what he was talking about. Apparently, some shmoe had planted a few acres in between our cornfields. My dad went out and mowed it all down, plowed it under and yet, for the next 25 years, it would show up growing amongst my mom’s tiger lilies and lilac bushes. It’s a tough plant–almost impossible to get rid of and if you don’t get the entire root, it just keeps growing. We had plants that reached the height of small trees down by our silo. Me and a couple of my friends tried smoking it–it was all leaves and just pure awful.

              The best way to grow it is in a greenhouse type setting. You have to use a lighting system that shocks the plants into flowering and then you have to cull the plants. My friend in college had a huge system set up in his trailer. He created his own water system and blackened all the windows and used a lighting system and was growing about 2 pounds at a time. Naturally, he got busted when his electricity bill went through the ceiling. 🙂

              1. Because as you note it grows fast and big.  But it takes a lot of water.  It is very fibrous, and hemp has many practical uses.  (Hemp is what happens when you don’t tend it and it just seeds itself).  As you mention it takes lots of work to get the goods.  From what I gather the utility issue is how most operations get busted, but its so ubiquitous makes one think someone has figured a workaround.  

                I don’t (think I) know anyone who grows, but my gf and I were in Ouray once, and a friend of a friend of her’s was hanging out, claimed to be a caregiver and we were watching the TV show Weeds(HBO or Showtime) and they were saying its pretty accurate as far as the operation side of things goes.  The CNN or MSNBC or some such show I saw, and mentioned above, corroborated much of what we were told.  

                1. A watering system on a timer works the best but we are talking about a large amount of water that is distributed multiple times throughout the day.

                  Our friend’s nickname was Wiz and he lived up to it–this was back in 1991 and he had a system that he probably could have patented and sold, if it weren’t for the fact that it was illegal. He also had figured out a way to crossbreed different types and make hybrids from them. I just smoked it. I didn’t get into the “how” of it but I do know that you have to pinch off the flowers from the female (?) plants to keep them from breeding. It’s kind of complicated but when it’s done right, it can produce some amazing results.

                  Personally, I’d like to see marijuana grown as a cash crop for hemp. Hell, our constitution is written on hemp and that’s held up rather well, hasn’t it? Seeds from plants can be used as a fuel source and rope and clothes and paper products can be produced from the plants. It’s potential is endless and as DavidT pointed out, if it was legalized, we could tax it and raise some serious revenue. It would probably also save small farmers from being bought up by giant conglomerates while allowing them to make an actual living.

                  My mom told me the other day that the price of corn per bushel is only 10 cents higher right now than it was when we were farming and we quit farmer in 1979. How a small farmer is supposed to continue to make a living is beyond me. In fact, they aren’t. The system is designed so that Big Ag like Con Agra or Farm Service can buy up thousands of acres and mass farm cheaply while driving the little guy into bankruptcy.  

            3. partly for growing season and partly for law enforcement.

              If it’s legalized here, and became big dough (legal and taxable) then it would quickly be legalized elsewhere, and somewhere with better – cheaper and ezier –  growing conditions

            4. My neighbor has a license to grow it for medical use and he grows it outside in the summer and brings it indoors during winter. I’m not an expert but he seems to be able to do it just fine here in Colorado.  

    1. if people came to Boulder from all over the country just to smoke marijuana whenever they wanted?

      I mean aside from 90% of the out-of-state CU student population, of course.

    1. …some will blame the CO Supreme Court for this decision because it’s too conservative and just mean!

      …some will blame the CO Supreme Court for being too liberal, cuz you know it’s a liberal wasteland.

      And the best part is….the CO Supreme Court had nothing to do with this decision!  

  4. Check out http://www.cppc-cog.com

    Regulation is coming, but Suthers is going the wrong way.  His DAs feel like dispensaries are the enemy.  WRONG, WRONG AND WRONG!!!  Every dollar spent in a dispensary takes a dollar away from the black market.  If you do not want people growing in our national forest, allow for a safe, legal and taxable business.

    All this press this week has been complete hysteria and falsehoods.  There are over 60,000 patients in Colorado.  Not 15,000.  The Health Department is 4 – 6 months behind in issuing cards.  By their count they claim that 400 – 600 people a day present applications for the card.  In one month that equals at least 10,000 people in Oct 2009 alone.  In July we had approximately 10,000 people.

    So, 60,000 patients and 100 dispensaries.  Hardly a dispensary on every corner, but an industry that is growing to meet demand.  

    As far as people getting a license that don’t need it…  Really, can you look at person and determine if they need an aspirin?  I look healthy, I am healthy.  But I have chronic hip pain, in which I have to cortisone shots for.  Does the AG get to tell me that I don’t suffer enough to have an MMJ recommendation?  Are we going to regulate suffering?

    I would also like to see lawyers not defend drug dealers under the MMJ laws.  If you are dealing illegally you go to jail.  You are not a caregiver because you sell pot.

    The hysteria needs to stop and calmer, smarter minds need to interject.  This is a good, worthy business.  Patients need access to safe medicine in a safe environment.  

    John “Let’s have your grandma buying weed in Civic Park” Suthers needs to get a grip on reality.

    1. When is the Health Department going to update us on the actual number of patients?

      The last update posted on the CDPHE web site says there are just over 11,000 patients — and that number was released on July 31, 2009, three months ago to the day.

      It’s ludicrous to use that outdated number in order to make some point about the number of dispensaries operating today.

  5. legit, IMHO.

    To the decision, the constitutional language is very clear:

    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

    I believe nurses, hospice workers and others would be insulted if pharmacies claimed they had ‘significant responsibility for managing the well-being of a patient’.

    Pharmacies push drugs; dispensaries push a drug – that’s all.

    Because the authors of Amendment 20 wanted to decriminalize growing pot, they defined primary care giver their way.  The court disagreed and this happens often with initiatives passed by the voters.

    To your comment on passing state legislation prohibiting this kind of prosecution, all I can say is, are you serious? A) I’m not sure I know a single, serious politician who would sponsor such a bill, and B) said bill would die very quickly.

    You want something like that, pass it via initiative.

    1. I wonder if the state is now going to set up a licensing and bonding scheme for medical marijuana caregivers, just like for nurses and hospice workers.

              1. Lets do it honestly

                Just legalize it. And then tax it – we need the revenue.

                Go here for info on the Boulder City Council Election Candidates

                by: DavidThi808 @ Thu Oct 29, 2009 at 22:08:13 PM MDT

                [ Reply ]

                1. However, I don’t see any legislators hopping on board to propose such legislation.

                  There are legitimate medical uses for marijuana, which I’m sure some legislators knew — but they didn’t do anything about that either. So, however honest or dishonest one happens to believe it was, citizens took it into their own hands to legalize medical marijuana. Sick people are in fact getting it now, under our state law. Dispensaries selling medical marijuana exist, for now at least, and the sky hasn’t fallen. Taxes are being taken in from the sales of that marijuana, as well. Additionally, the public’s consciousness about marijuana in general has been raised by this process.

                  Perhaps California will legalize in the next couple of years at the ballot. We’ll have to see. That would be the next step, it seems, towards legalization.

  6. If the court is saying that a “caregiver” has to have face-to-face and personal contact with the patient, are they also saying that the radiologist who reads my X-rays and whom I’ve never met, is not a caregiver?  Are the lab workers who test my blood, whom I have never met, not caregivers?  

    When the only thing I know my anesthesiologist did or said to me when I had my knee surgery was “count backwards from 10”, does that qualify for caregiver status?

    1. They provide a service that is part of the health care system.

      A caregiver, is someone that

      has significant responsibility for managing the well-being of a patient who has a debilitating medical condition

      That is the wording in the Constitution. A radiologist, anesthesiologist, or lab worker don’t meet that criteria.  

  7. Dispensaries aren’t “merely supplying marijuana” as the defendant in this case was.  Dispensaries / Care-Givers are assisting numerous patients (properly registered with the State of Colorado), providing a facility for the purchase of product, selling product under a valid retail license and paying taxes on all sells, growing and/or purchasing products for their patients, providing information to patients concerning product, keeping track of patient’s purchases and plants grown on the behalf of their patients.  

    I agree.  Dispensaries / Care-Givers provide overall management of patient care pursuant to the dictates of the Colorado constitution.

    The defendant in this case, Ms. Clendenin, was simply growing and distributing marijuana to her clients, nothing more.

    I have taken on the role of working with legislators to create regulation that works for patients, citizens and dispensaries.

    Over the next few weeks you see more in the news from our perspective and more about the common sense lawmakers that understand dispensaries are helping people and helping to limit the amount of harmful, additive prescription drugs that so many are taking.

    I am looking forward to this new political role. Stand by!

    1. Are we talking about licensing a new pharmaceutical product, marijuana, or is this about establishing a backdoor to quasi-legalizing a psychoactive substance taken for pleasure?

      If the former, why is the supply and distribution of medical marijuana taking place outside the established channel of drug manufacturing and distribution?

      If the latter, are we entirely persuaded that maneuvering under the cover of medicine is the way to go, in terms of avoiding the long-time ban on this substance? Merely by asking I suppose I’m expressing doubt.

      I admit to being a tad confused on this issue, though it could certainly give a whole new meaning to the phrase “mile high city.”

      1. That is what we are looking at.

        If the former, why is the supply and distribution of medical marijuana taking place outside the established channel of drug manufacturing and distribution?

        Good question.  Why has Big Pharma not embraced Cannabis? I don’t sit on any Big Phama Boards so I don’t have the real answer.  Perhaps because it can be grown by anyone, anywhere.  And if everyone had access to Cannabis, they would ease issues of pain, sleeping, depression and nausea.  That alone would put a huge dent in the amount of money coming from OxyContin, Ambien, Valium and Nausea drugs.

        If the latter, are we entirely persuaded that maneuvering under the cover of medicine is the way to go, in terms of avoiding the long-time ban on this substance? Merely by asking I suppose I’m expressing doubt.

        Am I in favor of legalization? Yes, I am.  And many in our cause are. But right now, we need to focus on the patients that need help.  And Cannabis, by the patient’s testimonies, is helping them without the ugly side effects.

        Legalization is up to you, the voter.  And we are not there yet.

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