Death of Romer's Medical Marijuana Bill Presents Meaningful Opportunity for Quality Reform

The legislation would have required Coloradans to inform on each other Soviet-style. It sought to forfeit power to the federal government at the expense of rights afforded under the Colorado Constitution. And it advocated for industry rules that would have turned law-abiding entrepreneurs into marked targets for unrepentant thieves.

The bill deserved to die. And on Saturday evening, it was pronounced dead by its own author.
Amidst the current and often passionate debate over medical marijuana regulation, Denver Democrat Chris Romer was never able to move the proposal beyond relentless criticism coming from all sides.

Shredded by opponents, questioned by reporters, mocked by constitutional scholars, and ignored by law enforcement officials, it also faced the threat of a mountain of lawsuits had it even dared to pass.

Still, as Senator Romer and his fellow lawmakers prepared to kick off the 2010 legislative session this week, it promised to play a starring role in the Capitol's opening days. Thousands of medical marijuana activists organized to descend upon Denver for a Thursday lobbying day. Then Senator Romer announced he was pulling the bill.

While we sincerely applaud him for making the right decision, and have no reason to believe he has acted at any step of the process with anything other than the best of intentions, we remain deeply concerned about his fundamental misunderstanding of why his bill failed before it was ever even introduced. His response suggests he confuses anecdotes with documented trends, and emotion with fact.

"Without a patient face like Janice Beecher or an effective lobbying and education campaign by the MMJ community, I see more and more obstacles to any editorial, bi-partisan or even limited partisan support for a set of common sense rules," he concluded as part of his announcement, made on this site Thursday evening.

As Romer went on to explain, Beecher is a Colorado medical marijuana patient who contacted him months ago to express concern about the explosive growth in medical marijuana dispensaries following favorable legal developments at the state and federal levels. As he tells it, her compelling personal story inspired him to take action, ultimately resulting in his bill.

"Unfortunately for Janice--and thousands of patients like her--access to sophisticated care is being jeopardized because both sides in this debate cannot seem to grasp the importance of finding common ground."

While Romer courageously entered the lion's den of his opponents multiple times to engage in respectful dialogues, his specific proposal made finding common ground nearly impossible. (See Mr. Corry's 12-page in-depth analysis of the bill by clicking here.

For starters, as a Senate bill, it violated state rules mandating that tax bills originate in the House. It also sought changes in tax policy that violated the state's Taxpayer's Bill of Rights (TABOR). It unconstitutionally removed a federally granted Fifth Amendment right against self-incrimination for many patients. And these are just a few of its technical problems.

As we've publicly noted, it also neglected genuine opportunities for worthy regulatory changes in favor of imposing new rules that would have inevitably created a whole new host of issues. As our above-mentioned analysis pointed out, "In general, the top three problems facing Medical Marijuana patients are (1) high cost of medicine; (2) choices and consistent supply of medicine; and (3) quality control and labeling of medicine."

Romer could have put forth a proposal that would have gotten to a major culprit behind these woes, namely by encouraging increased supply as a way to lower costs and incentivize quality competition. But his plan did just the opposite.

Troubling on multiple levels, it created a cumbersome administrative structure granting government bureaucrats an almost endless discretion to restrict patient and caregiver access to those who could prove "good moral character." For those hoping to open dispensaries, the process was even more bizarre, requiring them to provide fingerprints ultimately passed on to the FBI, as well as "personal history information concerning the applicant's qualifications." Allowing government to pick winners and losers to such a degree, both when it comes to evaluating private health information and candidates for market participation, is nothing short of Communism.

While Senator Romer attributes greed and ignorance to the lack of support behind his bill, this assessment couldn't be further from the truth. The vast majority of dispensary owners see responsible regulation as a way to gain legitimacy as an industry. They view commonsense changes as a way to protect their own financial interests, creating a level playing field from which all participants are required to compete with the same set of rules.

As Senator Romer now pledges to revamp his legislative strategy, we hope to work with him in whatever way possible. We owe it to our clients, our friends, our neighbors, and even ourselves as invested taxpayers, however, to fight any future proposal that unjustly restricts constitutional rights, patient access, or free market competition.

As part of his announcement, Senator Romer wrote that he hoped to "buy a few weeks" to mobilize patients in support of his latest strategy. We'd encourage him to shift his focus a bit, first evaluating why his original bill failed to ever gain any sort of measurable support from the tens of thousands of Colorado voters who are medical marijuana patients and caregivers.

He now plans to introduce two bills. The first, a Senate bill, will "deal solely with the need for a meaningful doctor patient relationship to get a MMJ referral and the creation of a 24-hour per day registry for patients."

In an effort to spare Senator Romer more wasted energy, we caution him to avoid drafting another bill that rushes to impose arbitrary and emotional requirements on all doctor-patient relationships as a way to somehow address the abuses of a handful of doctors who have failed to use proper restraint in recommending patients for the state's medical marijuana registry. In fact, legislative action may be an inappropriate response together, with health care licensing officials now investigating and exploring disciplinary options against specific physicians accused of abusing the system.

In the second bill Senator Romer announced Saturday, he says he will attempt to impose a five patient per caregiver cap. His justification here is downright incoherent. His last bill would have allowed dispensaries to serve over 1,000 patients. A few days later, he wants to handicap caregivers by imposing a five-patient restriction. At minimum, the proposal would make operating a viable dispensary more difficult and more expensive. It would also force more transactions into private homes and the random street corners that too often lack the safety and security of most dispensaries.

Even while proposing this new limit, however, he goes on to say, "I will continue to fight for clinics to serve patients like Janice, but I am getting increasingly skeptical that either side understands her needs."

He wants to fight for clinics, but then significantly limit their legal ability to operate. He wants to fight for patients but then proposes a plan that would drive up costs and decrease centralized access. The strategy just doesn't make sense. The last thing the legislature should be doing is driving more patients to obtain their medicine from the black market.

A five-patient limit is also likely to fail in court as an arbitrary restriction on a constitutionally-protected right. Senator Romer need look no further than the experience of the State Health Board, a body that has seen its repeated efforts to impose a similar limit on caregivers struck down over administrative violations. If wise, Romer should review court transcripts to hear the scolding the state's attorneys received from one judge over their pompous disregard of patient needs and constitutional rights. In closing his announcement Sunday, Senator Romer lamented the death of his bill. "What a shame," he wrote. "We really could have set the national model for medical marijuana including research and sophisticated evidence-based medicine, but the same old fight on both sides--and the failed status quo--appears to have prevailed."

He talks of voter outrage over the growth in dispensaries around Denver, but offers no viable evidence to prove his point. While certainly a handful of affluent neighborhood organizations have fought dispensaries coming into their communities, law enforcement statistics overwhelmingly demonstrate that dispensaries have not proven to be the magnets for crime prohibition supporters would want the average voter to believe. As we noted in a recent Denver Post column, Colorado banks have recently proven far more attractive to criminals.

During a recent successful challenge to the City of Centennial's efforts to shut down CannaMart, a dispensary that was also our client in the case, city officials were forced to admit under oath that not a single complaint had been registered with the city against CannaMart, either by homeowners, other businesses, or even by a single one of the approximately 600 patients CannaMart served.

Senator Romer, if your goal is to create a model for other states to follow, don't destroy viable opportunities or incentives for patients and caregivers to interact in a well-lit system that leaves violent drug dealers scurrying for black markets elsewhere.

Jessica Corry is a Denver land use attorney with Hoban & Feola, LLC. Robert J. Corry, Jr., is a Denver attorney specializing in medical marijuana. He serves as chairman of the Colorado Wellness Association, a business organization devoted to improving self-regulation of medical marijuana dispensaries. Together, the Corrys represent several medical marijuana patients and caregivers.