Brandon Coats Opening Brief

7/31/2019 Brandon Coats Opening Brief

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Certification of Word Count: 6,373COURT OF APPEALS, STATE OFCOLORADO101 West Colfax Avenue, Suite 800Denver, CO 80202

COURT USE ONLY

District Court of Arapahoe CountyThe Honorable Elizabeth VolzCase Number 2011CV1464BRANDON COATS

Plaintiff-Appellant

v.

DISH NETWORK, L.L.C.

Defendant-Appellee

Attorneys for Plaintiff:

Michael D. Evans, Atty. Reg. #39407The Evans Firm, LLC4610 South Ulster St., Suite 150

P.O. Box 371896Denver, CO 80237(303) 221-3634 (Telephone)(303) 221-3747 (Fax)[email protected]

Thomas K. Carberry # 19707149 West Maple AvenueDenver, Colorado 80223(303) 722-3929 (Telephone)(303) 929-0067 (Cellular)[email protected]

Case Number:

2012CA0595

OPENING BRIEF
mailto:[email protected]:[email protected]


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CERTIFICATION

I hereby certify that this brief complies with all requirements of C.A.R. 28 andC.A.R. 32, including all formatting requirements set forth in these rules. Specifically,the undersigned certifies that:

The brief complies with C.A.R. 28(g).Choose one:It contains 6,373 words.

The brief complies with C.A.R. 28(k).For the party raising the issue:It contains under a separate heading (1) a concise statement of the applicablestandard of appellate review with citation to authority; and (2) a citation to the

precise location in the record (Record PDF p._), not to an entire document,where the issue was raised and ruled on.

For the party responding to the issue:

It contains, under a separate heading, a statement of whether such party agreeswith the opponents statements concerning the standard of review and preservationfor appeal, and if not, why not.

________________________Michael D. Evans, Atty. Reg. #39407


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TABLE OF CONTENTS

STATEMENT OF THE ISSUE 1

Reversible error was committed by the trialcourt dismissing Brandon Coats complaintpursuant to C.R.C.P. 12(b)(5) because his state-approved medical use of marijuana, off hisemployers premises, during nonworking hours,and in full compliance with Colo. Const. art.XVIII, 14 (the Medical Marijuana Amendmentor the Amendment), is a lawful activityprotected under Colorados Lawful Activity

Statute, 24-34-402.5, C.R.S. 2011.

STATEMENT OF THE CASE 1

STATEMENT OF THE FACTS 3

FACTS NOT IN DISPUTE

SUMMARY OF THE ARGUMENT

5

7

ARGUMENT 10

I. Issue Raised and Ruled On 10

II. Standard of Review De Novo 11

III. Colorados Lawful ActivityStatute 24-34-402.5

11

IV. The Medical MarijuanaAmendment, Colo. Const.art. XVIII, 14

17

A. Medical Marijuana IsLawful Under 14(4)

18


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B. The Legislature HasRecognized the Legality ofMedical Marijuana in Section18-18-406.3(1)(f), C.R.S.

C. The Court of Appeal HasRecognized The Legality ofMedical Marijuana

D. The Amendment Creates aLegal and EnforceableProperty Interest in MedicalMarijuana

E.

Voters approved anAmendment that declared themedical use and possession ofmedical marijuana "legal"within the Amendment's limits

20

21

23

23

F. DistinguishingBeinorandWatkins

1. Beinor2. Watkins

25

25

26

CONCLUSION 28

CERTIFICATE OF MAILING 30


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TABLE OF CASES

Beinor v. Indus. Claim Appeals Office, 262 P.3d 970 (Colo.App. 2011) cert. denied.

2, 11, 20, 22, 25, 26,28

Cacioppo v. Eagle Cnty. Sch. Dist. Re-50J, 92 P.3d 453(Colo. 2004)

19

Colorado School of Mines v. Neighbors, 203 P.2d 904 (Colo.1949)

15

Grossman v. Dean, 80 P.3d 952 (Colo. App. 2003) 24

Hardesty v. Pino, 222 P.3d 336 (Colo. App. 2009) 22

Hurtado v. Brady, 165 P.3d 871 (Colo. App. 2007) 11

Independence Institute v. Coffman, 209 P.3d 1130 (Colo.App. 2008)

18

Lobato v. State, 218 P.3d 358 (Colo. 2009) 11

Macravey v. Hamilton, 898 P.2d 1076 (Colo. 1995) 24

Patterson Recall Committee, Inc. v. Patterson, 209 P.3d 1210(Colo. App. 2009)

19, 20

People v. Watkins, ___ P.3d ___ 2012 WL 310776 (Colo.App. 2012)

9, 17, 21, 22, 25, 26,27, 28

Phillips v. Monarch Recreation Corp., 668 P.2d 982, 985(Colo. App. 1983)

14

State v. Nieto, 993 P.2d 493, 500 (Colo. 2000) 12

Watson v. Public Service Co. of Colo., 207 P.3d 860, 864(Colo. 2008)

9, 13, 14, 17, 27


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TABLE OF STATUTES AND RULES

C.A.R. 35 22

C.R.C.P. 12(b)(5) 1, 2, 8, 10

2-4-101, C.R.S. 2011 12

18-18-406.3, C.R.S. 2011 8, 17, 20, 21

24-34-402.5, C.R.S. 2011 1, 3, 7, 8, 9, 10, 11, 12,13, 14, 15, 16, 26, 28

21 U.S.C. 801 et. seq. 2

CONSTITUTIONAL AUTHORITIES

Colo. Const. art. XVIII, 14 1, 2, 3, 8, 9, 10, 17, 18,19, 21, 22, 23, 24, 26, 28

OTHER AUTHORITIES

1B Colo. Prac., Methods of Practice, 19:21 (5th Ed.) 15

Colorado Legislative Council, Research Pub. No. 475-6,An Analysis of 2000 Ballot Proposals1 (2000)

18, 24

Colorado General Assembly: Legislative History onHouse Bill 1123 (1990) (audio files)

13, 14, 15

Keynen J. Wall, Jr. & Jacqueline Johnson, Colorado's

Lawful Activity Statute: Balancing Employee Privacy and theRights of Employees, 35 COLO.LAW. 41, 41 (Dec. 2006); 24-34-402.5(1) (2011)

12, 13, 14

Unspecified lawful activities, 4 Emp. Discrim. Coord.Analysis of State Law 9:11

13, 14


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STATEMENT OF THE ISSUE

Reversible error was committed by the trial court dismissing Brandon

Coats complaint pursuant to C.R.C.P. 12(b)(5) because his state-approved

medical use of marijuana, off his employers premises, during nonworking

hours, and in full compliance with Colo. Const. art. XVIII, 14 (the Medical

Marijuana Amendment or the Amendment), is a lawful activity protected

under Colorados Lawful Activity Statute, 24-34-402.5, C.R.S. 2011.

STATEMENT OF THE CASE

This is an appeal of the trial courts dismissal of plaintiff-appellant Brandon

Coats complaint for failure to state a claim upon which relief can be granted pursuant

to C.R.C.P. 12(b)(5). Mr. Coats filed a complaint against his former employer,

Colorado-based DISH Network, L.L.C., alleging it violated Colorado's Lawful

Activity Statute, 24-34-402.5, C.R.S. 2011 when it terminated him in 2010. Record

PDF Pgs. 4-9. Colorados Lawful Activity Statute prohibits employers from

discriminating against or terminating employees for engaging in legal off-duty

conduct. Mr. Coats, a quadriplegic and medical marijuana patient, asserted that his

state-approved medical use of marijuana, off his employers premises, during

nonworking hours, and in full compliance with Colo. Const. art. XVIII, 14, was a

lawful activity protected under 24-34-402.5, C.R.S. 2011.


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DISH filed a motion to dismiss the complaint pursuant to C.R.C.P. 12(b)(5).

Record PDF pp. 26-38. DISH asserted that Colorado's Lawful Activity statute does

not protect marijuana use for any purpose because it remains illegal under the Federal

Controlled Substances Act, 21 U.S.C. 801 et. seq. A Response and Reply followed,

respectively.

The trial court dismissed Mr. Coats complaint under C.R.C.P. 12(b)(5), but on

other groundsconcluding that the use of marijuana, even when used in full

compliance with Colorados Medical Marijuana Amendment, is not a lawful activity

under Colorados Lawful Activity Statute because the Amendment is limited

exclusively to providing an affirmative defense to a criminal prosecution. Record

PDF p. 175. The trial court ignored the plain language of Colo. Const. article XVIII,

14(4)(a), (which expressly defines the use of marijuana within the parameters of the

constitution as lawful), and misplaced its reliance on non-binding dicta from a

narrow holding in Beinor v. Indus. Claim Appeals Office, 262 P.3d 970 (Colo. App. 2011)

cert. denied. See Record PDF pp. 173-75 (no citation to the amendments plain

language).

This appeal by Mr. Coats follows and asserts that an employees medical use of

marijuana, off the employers premises, during nonworking hours, and in full


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compliance with Colo. Const. art. XVIII, 14 is a lawful activity protected under

Colorados Lawful Activity Statute, 24-34-402.5, C.R.S. 2011.

STATEMENT OF THE FACTS

This statement will give a brief narrative, followed by record citations to the

undisputed facts.

Mr. Coats became a quadriplegic at the age of sixteen while riding as a

passenger in a vehicle that hit a tree. He is confined to a wheelchair, and has limited

use of his hands. Despite his ability to think and speak, his employment options are

obviously limited due to his physical condition.

Mr. Coats quadriplegia has many related symptoms, such as involuntary muscle

movements, or spasms. These spasms cause Mr. Coats both pain and embarrassment,

adversely affecting his quality of life. Treatment with prescribed conventional

medications failed.

In 2009, Mr. Coats received a licensed Colorado physicians recommendation

to medically use marijuana for treatment of the muscle spasms. Mr. Coats applied for

and received state-approval for medical marijuana use. Thereafter he used medical

marijuana in his own home, within the parameters of Colo. Const. art. XVIII, 14.


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For Mr. Coats, medical use of marijuana has dramatically decreased the symptoms he

experiences and improved his quality of life.

Prior to engaging in medical marijuana use, Mr. Coats secured a job as a

telephone Customer Service Representative ("CSR") for DISH in 2007, possibly the

only job that he could realistically perform with his physical limitations. This position

did not involve any hazardous activities, danger to other employees or himself, nor

compliance with any occupational safety regulations. For three years Mr. Coats sat at a

desk pushing a button to answer customer phone calls. During his three years as a

CSR, Mr. Coats had little to no disciplinary history and had satisfactory performance

reviews. DISH never accused or suspected him of being under the influence of

marijuana at work, nor of using marijuana on company property during work hours.

During a company drug test in May 2010, Mr. Coats tested positive for THC.

Mr. Coats voluntarily provided DISH his state-issued medical marijuana card. DISH

terminated his full-time employment of three years based on the results of the drug

test. DISH informed Mr. Coats that DISHs policy prohibited THC in his system

because it violated the DISH's "drug-free workplace policy. To date, Mr. Coats

remains unemployed.


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FACTS NOT IN DISPUTE

1. Coats, as a quadriplegic, suffers from a debilitating medical condition. RecordPDF p. 20; p. 27, 2; p. 173, 2.

2. On August 27, 2009, Coats was placed on the Medical Marijuana Registry.Record PDF p. 27, 2; p. 173, 2.

3. Coats worked full time for DISH as a telephone customer servicerepresentative for three years. Record PDF p. 27, 1. As such, Coats position

was not a high profile or hazardous occupation that would endanger himself or

others.

4. Coats limited his use of medical marijuana to the privacy of his home. RecordPDF p. 28, 3; p. 173, 2.

5. Coats never possessed or used medical marijuana while on company property,whether before, during, or after work hours. Record PDF p. 28, 3; p. 125, 19;

p. 143, 1.

6. DISH never accused or suspected Coats of being intoxicated or under theinfluence while on company property, whether before, during, or after work

hours. Record PDF p. 36, 5; p. 151, 1-2.

7. Coats had little to no disciplinary history and received average or satisfactoryperformance reviews. Record PDF p. 6, 18-19; p. 151, 1-2.


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8. Coats tested positive for THC during a company drug test. Record PDF p. 28,4-5; p. 125, 20.

9.The drug test was accurate about the presence of THC. Record PDF p. 28,4-5; p. 125, 20.

10.The presence of THC is not dispositive about a persons intoxication or beingunder the influence of marijuana. Record PDF p. 36, 5; p. 125, 22; p. 143, 1.

11.DISH terminated Coats solely based on the drug test showing the presence ofTHC in his system. Record PDF pp. 16-17; p. 28, 6; p. 36, 5; p. 141, 1; p.

143, 1.

12.DISH did not terminate Coats because of any evidence of intoxication or beingunder the influence of marijuana at any time. Record PDF pp. 16-17; p. 28, 6;

p. 36, 5; p. 141, 1; p. 143, 1; p. 151, 1-2.

13.DISH is a Colorado corporation. Record PDF p. 14; p. 125, 25; p. 143, 1.14.Coats procurement and use of medical marijuana occurred within the frame

work of Colorados Medical Marijuana Amendment, including but not limited

to:

a. Residency in the State of Colorado; Record PDF p. 4, 4; p. 124, 17; p.125, 27; p. 143, 1.


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b.At all relevant times, possessed a valid state-issued marijuana card;Record PDF p. 15; p. 124, 17; p. 143, 1. p. 143, 1.

c. Used and possessed equal to or less than the permitted amount; RecordPDF p. 124, 17, p. 143, 1.

d.A state-approved Colorado physician diagnosed and recommendedmarijuana use to Coats as a patient after a legitimate examination.

Record PDF p. 27, 2; p. 124, 17; p. 143, 1.

SUMMARY OF THE ARGUMENT

Colorados Lawful Activity Statute, 24-34-402.5, prohibits employers from

discriminating against or terminating employees for engaging in legal off-duty

conduct. DISH violated this statute when it terminated Mr. Coats employment based

solely on the presence of Tetrahydrocannabinol (THC) found in his body during a

company drug test. The mere presence of THC found in the body is not dispositive

of marijuana intoxication, and the termination of Mr. Coats by DISH was not based

upon Coats being under the influence or intoxicated while at work, exhibiting poor

job performance, nor endangering the health or well-being of any person. Mr. Coats

never possessed or used marijuana at the work place, nor requested any work place

accommodation. No exception applies to Mr. Coats as a telephone customer service

representative under 24-34-402.5, C.R.S. 2011. Mr. Coats state-approved use of


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medical marijuana, off his employers premises, during nonworking hours, and in full

compliance with Colo. Const. art. XVIII, 14,is a lawful activity protected under

Colorados Lawful Activity Statute, 24-34-402.5, C.R.S. 2011.

The trial court erred when it dismissed Mr. Coats complaint against DISH

pursuant to C.R.C.P. 12(b)(5), on the grounds that the use of marijuana, even when

used in full compliance with Colorados Medical Marijuana Amendment, is not a

lawful activity under Colorados Lawful Activity Statute because the Amendment is

limited exclusively to providing an affirmative defense to a criminal prosecution.

Record PDF p. 175.

Contrary to the trial courts conclusion, Colo. Const. art. XVIII, 14 does

more than provide for an affirmative defense to a criminal prosecution. First, the

ordinary and common meaning of citizen-initiated measures, like Colo. Const. art.

XVIII, 14, require that every word be operative and given effect. Section 14(4)(a)

expressly and unconditionally tells a state-approved patient in plain language that the

use of medical marijuana is lawful. Second, based on the plain language contained

in the Medical Marijuana Amendment, the General Assembly enacted and codified

18-18-406.3, C.R.S. the following year, in which subsection (1)(f) states, [s]ection 14

of article XVIII of the state constitution sets forth the lawful limits on the medical

use of marijuana. (Emphasis supplied). Third, this Court held that a patient's


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medical use of marijuana within the limits set forth in the Amendment is deemed

lawful under subsection (4)(a) of the Amendment. People v. Watkins, ___ P.3d ___

2012 WL 310776 at *4 (Colo. App. 2012). Fourth, Colo. Const. art. XVIII, 14(2)(e)

creates a legal and enforceable property interest in medical marijuana. Fifth, as

evidenced through the 2000 Blue Book, Colorado voters approved the Medical

Marijuana Amendment to permit state-approved patients to legally acquire, possesses,

use, grow, and transport marijuana and marijuana paraphernalia.

Based on the above analysis of the Medical Marijuana Amendment, the

protections of Colorados Lawful Activity Statute, 24-34-402.5, C.R.S. 2011, which

are afforded to employees for a variety of situations, also apply in the context of

medical marijuana. As plainly written, 24-34-402.5 is a remedial statute enforcing a

principle of public policy, and therefore broadly construed to protect employees from

unfair or discriminatory employment practices when they are in full compliance with

state law. This is reinforced in legislative history (attached) as well as the Colorado

Supreme Courts interpretive decision on the statute in Watson v. Public Service Co. of

Colo., 207 P.3d 860, 864 (Colo. 2008) (holding "any lawful activity" means "all lawful

activity).


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ARGUMENT

Reversible error was committed by the trial court dismissing Brandon

Coats complaint pursuant to C.R.C.P. 12(b)(5) because his state-approved

medical use of marijuana, off his employers premises, during nonworking

hours, and in full compliance with Colo. Const. art. XVIII, 14 (the Medical

Marijuana Amendment or the Amendment), is a lawful activity protected

under Colorados Lawful Activity Statute, 24-34-402.5, C.R.S. 2011.

I. Issue Raised and Ruled On

Brandon Coats filed a complaint against his former employer, Colorado-based

DISH Network, L.L.C., for violating Colorado's Lawful Activity Statute, 24-34-

402.5, C.R.S. 2011 when it terminated him for his lawful use of medical marijuana.

Record PDF pp. 4-9. The trial court dismissed Mr. Coats complaint against DISH

pursuant to C.R.C.P. 12(b)(5), on the grounds that the use of marijuana, even when

used in full compliance with Colorados Medical Marijuana Amendment, is not a

lawful activity under Colorados Lawful Activity Statute because the Amendment is

limited exclusively to providing an affirmative defense to a criminal prosecution.

Record PDF p. 175. The trial court ignored the plain language of Colo. Const. article

XVIII, 14(4)(a), (which expressly defines the use of marijuana within the parameters


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of the constitution as lawful), and misplaced its reliance on non-binding dicta from

a narrow holding in Beinor v. Indus. Claim Appeals Office, 262 P.3d 970 (Colo. App.

2011) cert. denied. SeeRecord PDF pp. 173-75 (no citation to the amendments plain

language).

II. Standard of Review

The Court of Appeals reviews a trial court's ruling on a motion to dismiss de

novo and applies the same standards of review to a motion to dismiss as the trial

court applies.Hurtado v. Brady, 165 P.3d 871, 873 (Colo. App. 2007). A motion to

dismiss pursuant to C.R.C.P. 12(b)(5) tests the sufficiency of the complaint and the

reviewing court must accept all averments of material fact as true and view the

allegations in the light most favorable to the plaintiff. Lobato v. State, 218 P.3d 358,

367 (Colo. 2009).

III. Colorados Lawful Activity Statute 24-34-402.5

Colorados Lawful Activity Statute, 24-34-402.5, C.R.S. 2011 prohibits

employers from discriminating against or terminating employees for engaging in legal

off-duty conduct. In pertinent part, it states:

(1) It shall be a discriminatory or unfair employment practice for anemployer to terminate the employment of any employee due to thatemployee's engaging in any lawful activity off the premises of theemployer during nonworking hours unless such a restriction:


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(a) Relates to a bona fide occupational requirement or isreasonably and rationally related to the employment activities and

responsibilities of a particular employee or a particular group ofemployees, rather than to all employees of the employer; or

(b) Is necessary to avoid a conflict of interest with anyresponsibilities to the employer or the appearance of such aconflict of interest.

(Emphasis supplied).

The plain meaning of any lawful activity means all legal activity. When

engaging in statutory interpretation, Colorado courts "are first obligated to look to the

plain meaning of the language of the controlling statute." State v. Nieto, 993 P.2d 493,

500 (Colo. 2000). "If courts can give effect to the ordinary meaning of words used by

the legislature, the statute should be construed as written, giving full effect to the

words chosen, as it is presumed that the General Assembly meant what it clearly said."

Nieto, 993 P.2d at 500. Also, "[w]ords and phrases shall be read in the context and

construed according to . . . common usage." 2-4-101, C.R.S. (2011).

The interpretation of any lawful activity means all legal activity. As "one of

the broadest of its kind in the United States," Colorado's Lawful Activity Statute

prohibits the termination of an employee for engaging in "any lawful activity."

Keynen J. Wall, Jr. & Jacqueline Johnson, Colorado's Lawful Activity Statute: Balancing

Employee Privacy and the Rights of Employees, 35 COLO.LAW. 41, 41 (Dec. 2006); 24-34-

402.5(1) (2011). When interpreting 24-24-402.5(1) specifically, the Colorado


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Supreme Court held that "'[a]ny' means 'all.'" Watson v. Public Service Co. of Colo., 207

P.3d 860, 864 (Colo. 2008). Thus, the term "any" is not ambiguous, but rather plainly

means "all." Thus, when preceding the phrase "lawful activity," as it does in 24-24-

402.5(1), the phrase "any lawful activity" means "all lawful activity." Watson, 207 P.3d

at 864.

Colorados Lawful Activity Statute was first proposed by the tobacco lobby to

protect the rights of smokers. Unspecified lawful activities, 4 Emp. Discrim. Coord.

Analysis of State Law 9:11 at 8. (Referencing, Jessica Jackson, Colorados Lifestyle

Discrimination Statute: A Vast and Muddled Expansion of Traditional Employment

Law, 67 U. Colo. L.Rev. 143 n. 5 (1996)).

This interpretation is consistent with the 24-34-402.5, C.R.S. legislative

history. A complete digital copy of the statutes legislative historyas House Bill 1123

(1990) is attached for easy review by this Court as Exhibit 1. When discussing

hypothetical situations, the legislature emphasized that the context and locality of the

activity controls whether the activity is "lawful" and protected by the law. For

example, when discussing whether smoking on one's lunch break off the employer's

premises could be protected under the law, legislators agreed that it would depend on

where the employee was smoking. If smoking is prohibited in the establishment, then

the employee's smoking is "unlawful," but if smoking is permitted in the


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establishment, the employee's smoking is "lawful" and protected. The legislature

recognized that the context and locality of the activity would determine its lawfulness

for purposes of the statute. Other examples of off-duty conduct include taking

proscription drugs. Unspecified lawful activities, 4 Emp. Discrim. Coord. Analysis of State

Law 9:11 at 8. (Referencing, Jessica Jackson, Colorados Lifestyle Discrimination

Statute: A Vast and Muddled Expansion of Traditional Employment Law, 67 U. Colo.

L.Rev. 143 n. 5 (1996)). Notably, in over three hours of legislative history tapes

preceding the passage of the 1990 Bill, lawmakers do not discuss whether the law

applies only to Colorado state law, or whether it includes federal law. They passed the

Bill referring explicitly and deliberately to "any" or "all" laws and the same

interpretation was used by the Colorado Supreme Court in Watson v. Public Service Co.

of Colo., 207 P.3d 860, 865 (Colo. 2008).

Additionally, strict statutory interpretation is relaxed when the statute was

"designed to declare and enforce a principle of public policy." Phillips v. Monarch

Recreation Corp., 668 P.2d 982, 985 (Colo. App. 1983). The Colorado Supreme Court

has labeled 24-24-402.5 a "remedial statute" that "should be broadly construed" to

accomplish its objective. Watson, 207 P.3d at 864. Although 24-34-405.2, C.R.S. has

been labeled a "Smoker's Rights Bill," the legislative history shows that lawmakers

were concerned with many lawful off-duty activities, and not merely smoking


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cigarettes. For example, with health care and obesity concerns rising in America,

legislators expressed fear that soon employers could fire employees who eat too many

French fries or doughnuts when off-duty. Also, protection of an employee's choice of

sexual orientation or to drink a beer after work was heavily discussed. Thus, the

legislature's intent was to protect the public policy of one's freedom to engage in

lawful activities after work without fear of losing one's job. Furthermore, the

Colorado Practice Series explains that the Lawful Activity Statute was "foreshadowed"

in a 1949 Colorado Supreme Court case, which held that the Colorado School of

Mines could not terminate a faculty member solely because he chose to work at a

cocktail lounge after his work at the university, showing the law was based upon a

broad spectrum of individual choices and not only smoking cigarettes. 1B Colo. Prac.,

Methods of Practice, 19:21 (5th Ed.) (citingColorado School of Mines v. Neighbors, 203

P.2d 904 (Colo. 1949)). The public policy focus of the law is also apparent in the first

few words of the statute, which describes termination of an employee because of that

"employee's engaging in any lawful activity off the premises of the employer during

nonworking hours" as "discriminatory" and "unfair," and not merely unlawful. 24-

34-402.5(1) C.R.S. 2011.

In Mr. Coats case, the data collected by the Colorado Department for Public

Health (and reflected in the record PDF Pg. 138-139) provides the public policy


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statistics of the patient-employees who would be affected by this Courts adverse

ruling in an already troubled economy. Over one hundred twenty seven thousand,

eight hundred sixteen (127,816) Colorado citizens, who are medical marijuana patients

registered with the state, would likely face immediate termination or become

unemployable. That is roughly the size of two (2) Mile High Stadiums. Of note, the

average age of a patient is forty-one (41) years old, which means not only that they are

contributing members of society, but also likely to be carrying a mortgage and

supporting spouses and children. One thousand, one hundred (1,100) licensed

medical physicians in the State of Colorado have recommended marijuana to one or

more of these patients, of which ninety-four (94%) percent complain of severe pain,

while muscle spasms, like those Mr. Coats experiences, account for the second-most

reported condition at nineteen (19%) percent).

Because of the Colorado Lawful Activity Statutes remedial, anti-discriminatory,

and public policy foundation, it should be broadly and liberally construed to effectuate

its purpose, which is to protect employees from unfair or discriminatory employment

practices when they are in full compliance with state law.

In conclusion, the protections of Colorados Lawful Activity Statute, 24-34-

402.5, C.R.S. 2011, which is afforded to employees for a variety of situations, also

applies in the context of the Medical Marijuana Amendment. This is reinforced in


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legislative history as well as the Colorado Supreme Courts decision in Watson v. Public

Service Co. of Colo., 207 P.3d 860, 864 (Colo. 2008) (holding "any lawful activity" means

"all lawful activity). Employees like Mr. Coats, who comply with state law, should be

protected by state law.

IV. The Medical Marijuana Amendment, Colo. Const. art. XVIII, 14

Contrary to the trial courts conclusion, Colo. Const. art. XVIII, 14 does

more than provide for an affirmative defense to a criminal prosecution. First, the

ordinary and common meaning of citizen-initiated measures, like Colo. Const. art.

XVIII, 14, require that every word be operative and given effect. Section 14(4)(a)

expressly and unconditionally tells a state-approved patient in plain language that the

use of medical marijuana is lawful. Second, based on the plain language contained

in the Medical Marijuana Amendment, the General Assembly enacted and codified

18-18-406.3, C.R.S. the following year, in which subsection (1)(f) states, [s]ection 14

of article XVIII of the state constitution sets forth the lawful limits on the medical

use of marijuana. (Emphasis supplied). Third, this Court held that a patient's

medical use of marijuana within the limits set forth in the Amendment is deemed

lawful under subsection (4)(a) of the Amendment. People v. Watkins, ___ P.3d ___

2012 WL 310776 at *4 (Colo. App. 2012). Fourth, Colo. Const. art. XVIII, 14(2)(e)

creates a legal and enforceable property interest in medical marijuana. Fifth, as


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evidenced through the 2000 Blue Book, Colorado voters approved the Medical

Marijuana Amendment to permit state-approved patients to legally acquire, possesses,

use, grow, and transport marijuana and marijuana paraphernalia.

A. Medical Marijuana Is Lawful Under 14(4)

The express and plain language of section 14(4) of article XVIII of the

Colorado Constitution states, in pertinent part:

(4)(a) A patient may engage in the medical use of marijuana, with nomore marijuana than is medically necessary to address a debilitatingmedical condition.A patient's medical use of marijuana, within thefollowing limits, is lawful:

(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.

(b) For quantities of marijuana in excess of these amounts, a patientor his or her primary care-giver may raise as an affirmative defense tocharges of violation of state law that such greater amounts weremedically necessary to address the patient's debilitating medicalcondition.


The general rules of statutory interpretation and construction apply when

interpreting citizen-initiated measures. Independence Institute v. Coffman, 209 P.3d 1130,

1136 (Colo. App. 2008). Thus, courts must "afford the language of constitutions and

statutes their ordinary and common meaning" while "giving effect to every word and


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term contained therein." Cacioppo v. Eagle Cnty. Sch. Dist. Re-50J, 92 P.3d 453, 463

(Colo. 2004). Also, courts "must favor a construction of a constitutional amendment

that will render every word operative, rather than one that may make some words

meaningless or nugatory." Patterson Recall Committee, Inc. v. Patterson, 209 P.3d 1210,

1215 (Colo. App. 2009).

In violation of the rules of statutory construction, the trial court ignored the

plain language of section 14(4)(a) that the use of medical marijuana is lawful. Here,

the trial court's interpretation of the word "lawful" in Colo. Const. art. XVIII,

14(4)(a) renders both the word, and the entire subsection, contrary to its common

usage, meaningless, and nugatory. Specifically, the trial court held that "[t]he

amendment does not make the use of medical marijuana a lawful activity." Record

PDF Pgs. 173-175.

The term "lawful" in the Amendment would be contrary to its common usage,

meaningless, and superfluous if it only reiterated that certain use and possession of

medical marijuana constituted an affirmative defense to a Colorado criminal

prosecution. Colo. Const. art. XVIII, 14(4)(a) does not reference 14(2)(a) nor

state that it is defining the term "lawful", only as used in 14(2)(a).


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Furthermore, interpreting the word "lawful" as only referring to an affirmative

defense to criminal laws is wholly inconsistent with the requirement that courts

attribute meaning to every word and subsection of a constitutional amendment.

Patterson, 209 P.3d at 215.

B. The Legislature Has Recognized the Legality of MedicalMarijuana in Section 18-18-406.3(1)(f), C.R.S.

The General Assembly's construction of the Medical Marijuana Amendment is

another useful tool for constitutional construction, and "is to be given great weight."

Beinor, 262 P.3d at 976. In response to the enactment of the Medical Marijuana

Amendment in 2000, the legislature passed section 18-18-406.3, C.R.S. in 2001.

In subsection (1) of section 18-18-406.3, the legislature made findings and

declarations. In section 18-18-406.3(1)(a) the legislature recognized that the voters

passed the Amendment in 2000.

In section 18-18-406.3(1)(b) the legislature recognized that 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.

Most importantly, in section, 18-18-406.3(1)(f), the legislature recognized that

the Amendment makes the use of marijuana lawful within the parameters of the


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Amendment. Section 18-18-406.3(1)(f) states, Section 14 of article XVIII of the

state constitution sets forth the lawful limits of medical use of marijuana.


Not only did the General Assembly define medical marijuana treatment within

certain limits as "lawful," it specifically omitted the term "lawful" in any other section

addressing affirmative defenses to criminal prosecution. It is clear the General

Assembly did not interpret the term "lawful" in Colo. Const. art. XVIII, 14(4)(a) as

merely defining circumstances when an affirmative defense could be available.

Therefore, the trial court's interpretation of "lawful" as only relating to affirmative

defenses is inconsistent with the General Assembly's interpretation.

C. The Court of Appeal Has Recognized The Legality ofMedical Marijuana

In People v. Watkins, 2012 WL 310776 (Colo. App. 2012) this Court held:

The Amendment provides that it shall be an exception from the state's

criminal laws for any patient in lawful possession of a registry

identification card to use marijuana for medical purposes. Colo. Const.

art. XVIII, 14(2)(b). While possession of marijuana remains a criminal

offense in Colorado, 18-18-406(1), C.R.S. 2011, a patient's medicaluse of marijuana within the limits set forth in the Amendment is

deemed lawful under subsection (4)(a) of the Amendment. Colo.

Const. art. XVIII, 14(4)(a).

Id., 2012 WL 310776 at *4 (emphasis supplied).


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This Court could come to no other conclusion based on the plain language of

section 14(4)(a). See also Judge Gabriels dissent in Beinor v. Indus. Claim Appeals Office,

262 P.3d 970, 979 (Colo. App. 2011), (A patients medical use of marijuana, within

[certain listed] limits, is lawful).

But instead of following this Courts holding in Watkinsthat a patients use of

marijuana within the limits set forth in the Amendment is deemed lawful under

subsection (4)(a) of the Amendment, the trial court quoted dicta from Beinor,

"[b]ecause 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." Beinor, 262 P.3d at

975. This interpretation was not necessary in Beinorfor the court's conclusion that a

state-issued medical marijuana card is not a "prescription" under Colorado

unemployment benefits law, making it nonbinding dicta. See Hardesty v. Pino, 222 P.3d

336, 340 (Colo. App. 2009).

Additionally, Mr. Coats never alleged that he had a broad and limitless

constitutional right to treat his condition with medical marijuana, rather only that his

treatment was lawful. The trial court had a duty to follow the holding in Watkinson

the parameters of the lawful use of marijuana. C.A.R. 35.


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D. The Amendment Creates a Legal and Enforceable PropertyInterest in Medical Marijuana

Section 14(2)(e) of the Medical Marijuana Amendment states:

(e) Any property interest that is possessed, owned, or used inconnection with the medical use of marijuana or acts incidental to suchuse, shall not be harmed, neglected, injured, or destroyed while in thepossession of state or local law enforcement officials where suchproperty has been seized in connection with the claimed medical use ofmarijuana. Any such property interest shall not be forfeited under anyprovision of state law providing for the forfeiture of property other than

as a sentence imposed after conviction of a criminal offense or entry of aplea of guilty to such offense. Marijuana and paraphernalia seized bystate or local law enforcement officials from a patient or primary care-giver in connection with the claimed medical use of marijuana shall bereturned immediately upon the determination of the district attorney orhis or her designee that the patient or primary care-giver is entitled to theprotection contained in this section as may be evidenced, for example,by a decision not to prosecute, the dismissal of charges, or acquittal.

Property law forms one of the pillars of Anglo-American jurisprudence. When

the state recognizes a property interest, the state confers legality and legitimacy on

that property. Patients would never be allowed to sue law enforcement for damage or

destruction to marijuana, if the medical use of marijuana were merely an affirmative

defense, or otherwise illegal as the trial court implies.

E. Voters approved an Amendment that declared the medicaluse and possession of medical marijuana "legal" within the

Amendment's limits


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The Blue Book distributed for the 2000 election, the year the Medical

Marijuana Amendment was approved, is also a "helpful source equivalent to the

legislative history of a proposed amendment." Macravey v. Hamilton, 898 P.2d 1076,

1079 n.5 (Colo. 1995). "While not binding, the Blue Book provides important insight

into the electorate's understanding of the Amendment when it was passed and also

shows the public's intentions in adopting the amendment." Grossman v. Dean, 80 P.3d

952, 962 (Colo. App. 2003). Because "[w]hen interpreting a constitutional amendment,

we should ascertain and give effect to the intent of those who adopted it," the

language the voters approved is of great significance. Grossman, 80 P.3d at 962. In

regard to the Amendment, the 2000 Blue Book provided, in relevant part:

The proposed amendment to the Colorado Constitution allows patients

diagnosed with a serious or chronic illness and their care-givers to legallypossess marijuana for medical purposes. . . .

Current Colorado and federal criminal law prohibits the possession,distribution, and use of marijuana. The proposal does not affect federalcriminal laws, but amends the Colorado Constitution to legalize the medical useof marijuana for patients who have registered with the state. . . . Individuals onthe registry may possess up to two ounces of usable marijuana and sixmarijuana 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, andtransport marijuana and marijuana paraphernalia. . . .

Legal use of marijuana will be limited to patients on the state registry.

- Colorado Legislative Council, Research Pub. No. 475-6, AnAnalysis of 2000 Ballot Proposals1 (2000).


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From the plain language of the 2000 Blue Book, Colorado voters approved an

Amendment that declared the medical use and possession of medical marijuana

"legal" within the Amendment's limits, and not merely a defense to criminal

prosecution. The trial court's dismissal of Mr. Coats's claim is inconsistent with this

plain language, which Colorado voters approved.

F. Distinguishing Beinorand Watkins

1. Beinor

In Beinor v. Indus. Claim Appeals Office, 262 P.3d 970 (Colo. App. 2011) cert.

denied, this Court interpreted the term medically prescribed controlled substances

in Colorado's unemployment benefits statute to exclude medical marijuana because a

state-issued marijuana card did not amount to a prescription. Id. at 974-74. This

holding has no bearing on whether Colorados Lawful Activity Statute protects the

lawful act of using medical marijuana. Factually, the appellant in Beinoronly appealed

a final order of the Industrial Claim Appeals Office disqualifying him from

unemployment benefits because of his medical marijuana treatment, but did not

challenge his actual termination. Id. at 971-72. Legally, and in the narrow context of

unemployment benefits, this Court interpreted the term medically prescribed

controlled substances in Colorado's unemployment benefits statute to exclude


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medical marijuana because a state-issued marijuana card did not amount to a

prescription.Id. at 974-75.

This Court in Beinor explicitly acknowledged the narrowness of its holding,

stating, We are not deciding whether the amendment limits an employer from

discharging an employee for using marijuana. Beinor, 262 P.3d at 976.

Mr. Coats seeks different relief from the appellant in Beinor, further

distinguishing the cases. The Beinor Court rejected the appellant's contention that

denial of unemployment benefits violated his broad constitutional right to use medical

marijuana under the Amendment, which superseded Colorado unemployment benefit

statutory requirements. Beinor, 262 P.3d at 977.

Here, Mr. Coats does not contend that the Amendment provides a limitless or

broad constitutional right, but only that his medical use was lawful, as defined in

Sec. 14(4)(a) of the Amendment and supported in statutory and case law, and

therefore subject to the benefit and protections of Colorado laws such as 24-34-

402.5. See alsoJudge Gabriels dissent in Beinor v. Indus. Claim Appeals Office, 262 P.3d

970, 979 (Colo. App. 2011) cert. denied, (A patients medical use of marijuana, within

[certain listed] limits, is lawful).

2. Watkins


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In People v. Watkins, 2012 WL 310776 (Colo. App. 2012), this Court held that

the trial court erred when it approved a probationer's request to obtain a state-issued

medical marijuana card although the terms of his probation prohibited him from

possessing or using any narcotic, dangerous or abusable substance without a

prescription.Watkins, 2012 WL 310776 at *1. The Court in Watkinsdid not address

Colorados Lawful Activity Statute and did not address any of the issues raised in Mr.

Coats case.

First, the statutes at issue in Watkinsand this case are highly distinguishable.

The WatkinsCourt emphasized the recognized purpose of probation conditions is

to ensure that the defendant will lead a law-abiding life and to assist the defendant in

doing so. Watkins, 2012 WL 310776 at 2 (citing 18-1.3-204(1)). In contrast, the

purpose and public policy behind Colorado's Lawful Activity Statute, at issue in this

case, is to protect Colorado employees from discrimination by their employers based

upon their personal choices and habits that do not interfere with their work

performance. See Watson v. Pub. Serv. Co., 207 P.3d 860, 864 (Colo. 2008). Thus,

because the probationary conditions at issue in Watkinswere interpreted in light of

their restrictive purpose, the statutory cause of action in this case should be

interpreted in light of its protective and remedial purpose in favor of individual

freedom of choice.


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Second, as in Beinor, the Watkins Court focused on the term prescription,

holding that a state-issued marijuana card under the Amendment did not amount to a

written lawful prescription, as used in the terms of the defendant's probation

agreement. Watkins, 2012 WL 310776 at *4. In Watkins, this Court interpreted the

word prescription and not the term lawful,at issue in Mr. Coats case. Watkins,

2012 WL 310776 at *4. This Court found that a patients medical use of marijuana

within the limits set forth in the Amendment is deemed lawful under subsection

(4)(a) of the Amendment.Watkins, 2012 WL 310776 at *4 (referring to Colo. Const.

art. XVIII, 14(4)(a)).

Here, Mr. Coats does not allege that his state-issued marijuana card amounts to

a prescription, but only that his medical use pursuant to the Amendment is lawful

as the term is used in both Colo. Const. art. XVIII, 14(4)(a) and in 24-34-402.5. .

CONCLUSION

An employees state-approved medical use of marijuana, off his employers

premises, during nonworking hours, and in full compliance with Colo. Const. art.

XVIII, 14 (the Medical Marijuana Amendment or the Amendment), is a lawful

activity protected under Colorados Lawful Activity Statute, 24-34-402.5, C.R.S.

2011. DISH violated this statute when it terminated Mr. Coats employment based


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solely on the presence of Tetrahydrocannabinol (THC) found in his body during a

company drug test. The mere presence of THC found in the body is not dispositive

of marijuana intoxication, and the termination of Mr. Coats by DISH was not based

upon Coats being under the influence or intoxicated while at work, exhibiting poor

job performance, nor endangering the health or well-being of any person. Mr. Coats

never possessed or used marijuana at the work place, nor requested any work place

accommodation. No exception applies to Mr. Coats as a telephone customer service

representative under 24-34-402.5, C.R.S. 2011.

Mr. Coats, as a state resident following state law, brought a claim based on a

state statute, in a state court, against a state corporation. Colorados Lawful Activity

Statute protects employees such as Mr. Coats from termination based on any lawful

activity outside of work. Any lawful activity includes his lawful use of medical

marijuana under Colo. Const. art. XVIII, 14.

Because the trial court erroneously dismissed Mr. Coats's complaint against

DISH, he asks this Court to reverse and remand this case back to the trial court for

proper adjudication and presentation of evidence consistent with this Court's opinion.


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Dated: June 21, 2012

Respectfully submitted,

_________________________________________

Attorney: Michael D. Evans, Atty. Reg.

#39407

CERTIFICATE OF MAILING

I certify that on June 21, 2012, I mailed or Lexis E-Filed a copy of this

Opening Brief and Exhibit 1 to:

The Honorable Elizabeth VolzArapahoe County District Court7325 S. Potomac StreetCentennial, CO 80112

Attorney Meghan W. MartinezBarkley Martinez, P.C.14426 East Evans Ave.Aurora, CO 80014

_________________________________________

Attorney: Michael D. Evans, Atty. Reg.

#39407

Brandon Coats Opening Brief

Documents

Transcript of Brandon Coats Opening Brief