Wednesday, 22 July 2015

Was the marijuana user denied justice                        

The person I am writing this article about is Brandon Coates, a man whose doctor has prescribed marijuana to ease the spasms he suffers from a back injury he got in a car accident when he was younger. He is a quadriplegic. As such, he was smoking legal medical marijuana as authorized by the State of Colorado.

He was employed by a firm called, Data Networks a TV satellite provider. He had good work reviews. His explanation for using medical marijuana was described by him in an interview.               

“If I don’t smoke marijuana, I get debilitating muscle spasms.  I’m a C4, C5 quadriplegic, so the messages between my lower body and my brain don’t get sent through.  So, when my body sends a message to my brain, it gets sent back and makes my muscles spasm intensely.  The muscles flex as hard as they can.  It just doesn’t stop after that.  It goes on and on and on if I didn’t smoke marijuana.  I would be suffering from spasms 24 hours a day, seven days a week, and I wouldn’t be able to work because I wouldn’t be able to sit down a desk and remain still. It also makes me sick and nauseous and hot.” unquote

One day he was advises that he (and all other employees of the firm) were to take a drug test. He told a clerk in Human Resources that he would fail the test because he is talking medical marijuana. I should point out that he also said that he only takes it only when he is at home and nowhere else.        

The test was taken by a swab in his mouth and he proved positive for marijuana. He tried to explain that as per State law, he was permitted to take medical marijuana if prescribed by his doctor—which it was. Despite that, he was fired. I should point out that there was no evidence that his smoking marijuana in his home had an effect on his ability to do his duties at his employment.

When he was later interviewed, he said, “I never used it at work.  I was never intoxicated at work.  I did it in the evening on my own time.  I’d smoke some marijuana. I’d be intoxicated for maybe 20, 30 minutes.  It was gone after that.

I should point out that some growers of medical marijuana have removed the intoxicating element from the marijuana.                                                    

He also said in the interview, I’d wake up the next day. I’d go to work perfectly sober. I was never intoxicated at work.  I was always getting 100 percent QAs, good job reviews.  I have never had bad ones.  Never a write-up; nothing like that. unquote        

Why then would a company fire an employee when they had no complaint about his work?     That was a question that the courts would have to answer.  He sued the company on the basis of improper dismissal.

Coats filed his action in the first court claiming that his termination violated the Lawful Activities Statute, section 24-34-402.5, which provides an employment discrimination provision of the Colorado Civil Rights Act. The statute prohibits an employer from discharging an employee for “engaging in any lawful activity off the premises of the employer during nonworking hours.”

The primary question before the courts (original trial court and court of appeal) was whether federally prohibited but state-licensed medical marijuana use is “lawful activity” under section 24-34-402.5, C.R.S. 2012, Colorado’s Lawful Activities Statute. If it is, employers in Colorado would be effectively prohibited from discharging an employee for off-the-job use of medical marijuana, regardless that such use was in violation of federal law.

The trial judge decided that Coats medical marijuana use was not “lawful activity” under Colorado law but rather the law created an affirmative defense from prosecution for such use. The court therefore dismissed the complaint for failure to state a legitimate claim.

At the time of Coats termination, all marijuana use in Colorado and all the other states were prohibited by federal law since there is a federal statute that prohibits the use of marijuana for any purpose whatsoever.

It is obvious that the federal statue should not have included the use of medical marijuana as being prohibitive. Currently, No state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law, even for medical users.

There were previous cases before the courts where the courts ruled that state law authorizing possession and cultivation of marijuana does not circumscribe federal law prohibiting use and possession.

Coates` lawyer acknowledged that medical marijuana use is illegal under federal law, but he argued that his client`s use was nonetheless lawful activity for purposes of section 24-34-402.5 because the statutory term “lawful activity” refers to the state of Colorado state and not federal law.

When interpreting a statute, one has to ascertain and give effect to the intent of the legislature based on the plain and ordinary meaning of the statutory language.

The three judges in the Appeal Court hearing this case would have to examine the legislative history to discern the policy objective of the statute and to ensure that their interpretation is consistent with the legislature’s intent.

The Colorado legislation re legalized marijuana  (Section 24-34-402.5(1), C.R.S. 2012) provides in a pertinent part: “It shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours.” unquote

The judges recognized that the Statute does not define the word “lawful.” thus they would have to look to its ordinary meaning. When a statute does not define its terms but the words used are terms of common usage, we may refer to dictionary definitions to determine the plain and ordinary meanings of those words. Black’s Law Dictionary (highly respected law dictionary) defines “lawful” as “authorized by the law.” But in this case, what law? There are two laws involved in this case—State and Federal. I think the best way to deal with that question is to bring to your attention two other laws that conflict with one another.

For some time now, some States in the US have forbidden same-sex marriages. However the Supreme Court of the United States recently ruled that same-sex marriages are legal in all of the States in the US.  That being the case, the States that have been prohibiting same-sex marriages now have to conform to the Supreme Court ruling.

The State law in Colorado and the Federal law with respect to legalized medical marijuana conflict with each other and as of the time of this writing, the issue has not yet been dealt with in the Supreme Court. That being the case, the federal law as it currently stands has precedence over the state law. This doesn’t mean that someone in Colorado can be charged with using medical marijuana if prescribed by a doctor but if that person uses it in a State that doesn’t permit the use of medical marijuana, then that person can be charged under the federal law with illegal possession of marijuana.

The Colorado statutes only refer to the authorities in that State not punishing a user of medical marijuana in a criminal court. It doesn’t say anything about employers not being prohibited from firing someone who uses medical marijuana.

The appeal court was quite right when it denied Coates’ appeal. I will explain why.

The two members of the court agreed that any activity that violates federal law but complies with state law cannot be “lawful” under the ordinary meaning of that term. For this reason, applying the plain and ordinary meaning, the term “lawful activity” in section 24-34-402.5, means that the activity in this case,  (Coates’ medical marijuana use)  must comply with both state and federal law.

Based on the premise that although the Colorado legislature intended that section 24-34-402.5 was created to protect employees, the court must interpret “lawful activity” to include activity that is prohibited by federal law, but not state law. Since Coates was smoking marijuana (albeit medical marijuana) his doing so was against a federal law that prohibits the use of marijuana under any circumstances. 

This conflict between the two laws places users of state authorized medical marijuana with a doctor’s prescription, in a quagmire that sucks these unfortunate users into a bottomless pit.

Judge Webb, the dissenting judge had a different take on this issue.  He said in part; “In my view, “lawful activity” under section 24-34-402.5, C.R.S. 2012, Colorado’s off-duty conduct statute, should be measured by state law. I further conclude that use of marijuana in a manner permitted by the Medical Marijuana Amendment is lawful.”

I disagree with his reasoning. Suppose the United States Supreme Court ruled that capital punishment was forbidden anywhere in the United States and that later that became the law of the United States. And suppose one of the States that had capital punishment in its State’s legislation, could that State still execute criminals? Not likely. That is because federal law takes precedence over State law.

No one who is using medical marijuana in Colorado is being prosecuted by the federal government. That is because the federal government recognizes the fact that Colorado has passed a law that permits doctor-approved use of medical marijuana for those who need it. 

But as I said earlier, the legislation in Colorado does not forbid an employer from firing an employee who is using medical marijuana. 

I think what is necessary is for this matter to go to the Supreme Court for a ruling. Alternatively, the federal government can bring in an amendment to the existing legislation that will permit marijuana users who have a doctor-approved document or card that permits the user to use medical marijuana in any form.

In my opinion, no legislation should state that an employer can’t fire an employee who legitimately uses medical marijuana especially if that person’s use would interfere with the safety of others while at work or interfere with his or her work or cause the employer to lose its insurance or be subjected to an increase in the insurance premium. 

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