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Title: Colorado Supreme Court: Employers can fire for off-duty pot use
Source:
The Denver Post
URL Source: http://www.denverpost.com/marijuana ... ms-lower-court-rulings-medical
Published: Jun 15, 2015
Author: Alicia Wallace
Post Date: 2015-06-15 14:23:07 by cranky
Keywords: None
Views: 13107
Comments: 80
Lawyer for Dish Network employee fired after using medical pot to treat muscle spasms calls ruling "devastating". Brandon Coats, right, with his mother Donna Scharfenberg sitting by his side, Sept. 30, 2014. The Colorado Supreme Court on Monday affirmed lower courts' rulings that businesses can fire employees for the use of medical marijuana — even if it's off-duty. The 6-0 decision comes nine months after the state's highest court heard oral arguments in Brandon Coats' case against Dish Network. Coats, who had a medical marijuana card and consumed pot off-duty to control muscle spasms, was fired in 2010 after failing a random drug test. Coats challenged Dish's zero-tolerance drug policy, claiming that his use was legal under state law. The firing was upheld in both trial court and the Colorado Court of Appeals. DOCUMENT: Colorado Supreme Court affirms ruling When the case went to the state Supreme Court, legal observers said the case could have significant implications for employers across Colorado. They also noted that the ruling could be precedent-setting as Colorado and other states wrangle with adapting laws to a nascent industry that is illegal under federal law. As such, the question at hand is whether the use of medical marijuana — which is in compliance with Colorado's Medical Marijuana Amendment — is "lawful" under the state's Lawful Off-Duty Activities Statute. That term, the justices said, refers to activities lawful under both state and federal law. "Therefore, employees who engage in an activity, such as medical marijuana use, that is permitted by state law but unlawful under federal law are not protected by the statute," Justice Allison H. Eid wrote in the opinion. The justices said the court will not make a new law. Current Colorado law allows employers to set their own policies on drug use. Coats' attorney Michael Evans, of Centennial-based The Evans Group, called the decision "devastating." "For people like Brandon Coats, there really isn't a 'choice,' as MMJ is the only substance both he and his (Colorado-licensed) physicians know of to control his seizures due to his quadriplegia," Evans said. "He has to have it. " A silver lining of the decision, Evans said, is that it provides clarity in a "scary, gray area" of state law. "Today's decision means that until someone in the House or Senate champions the cause, most employees who work in a state with the world's most powerful MMJ laws will have to choose between using MMJ and work," Evans said in a statement. Six of the seven justices decided on the case. Justice Monica Marquez recused herself because her father, retired Senior Judge Jose D.L. Marquez, was on the Court of Appeals panel that upheld Coats' firing. Sam Kamin, a law professor at the University of Denver, said the justices' decision comes as no surprise. "It's easy to make too much of this decision," he said. "It really comes down to interpreting this one word in this one statute." As a matter of statutory interpretation, the court got it right, he said. But for Coats and medical marijuana advocates, this is a blow, Kamin said. Coats was a "dream plaintiff" in that marijuana served as medicine, he said. Coats was rendered a quadriplegic by a car accident and used marijuana to control leg spasms. The cause likely would land in the hands of the state legislature, Kamin said. "I think (Coats') case is very sympathetic, and I think his case would be quite compelling before the legislature," Kamin said. 
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Begin Trace Mode for Comment # 48.
#6. To: cranky, SOSO, liberator, CZ82, TooConservative (#0)
"Today's decision means that until someone in the House or Senate champions the cause, most employees who work in a state with the world's most powerful MMJ laws will have to choose between using MMJ and work," Evans said in a statement. Well like all of these stories there's more to it I'm sure. If CO has legalized medical pot for prescription use then the company must make that clear to its employees that they won't allow it. Think of it. A company which probably has several corporate locations throughout the country and has a zero tolerance drug policy cannot make exceptions for one state. The only ace in the hole for the defendant is if he went to the company with a doctor's note with the prescription in hand. Then the company would be on notice he is a medical user. The problem with this article is how the information is presented. Did this man notify his employers before using the medical pot? If no and he waited to test positive for pot then there is not much a company with a zero tolerance policy can do.
It is a legally correct ruling. Pot is unlawful. It is not made legal by state law. It is made not criminal under state jurisdiction. Within Federal jurisdiction, it is as illegal as ever. The state can repeal any state statute that criminalizes possession and use under state law. It cannot lawfully pass an affirmative statute to the effect that pot is legal, in direct conflict with controlling federal law. It could, perhaps, pass a statute that the state employment protection applieds to activity not unlawful pursuant to state statute. Prohibition could not be repealed in a state, by virtue of state law, when it was prohibited within federal jurisdiction. The states did not have to enact state laws prohibiting the sale of alcoholic beverages, but they could not lawfully enact legislation making such sale lawful within the state jurisdiction. An attempt to hold that a state statute overrides a federal statute will invite the Feds to come in and prove otherwise. A state may get away with not enforcing a federal statute, but it is unlikely the Feds would stand by as a state declared that its law had nullified a federal law. The statute was originally passed in 1990 to protect smokers (of tobacco). http://www.lpdirect.net/casb/crs/24-34-402_5.html (1) 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 unless such a restriction: (a) Relates to a bona fide occupational requirement or is reasonably and rationally related to the employment activities and responsibilities of a particular employee or a particular group of employees, rather than to all employees of the employer; or (b) Is necessary to avoid a conflict of interest with any responsibilities to the employer or the appearance of such a conflict of interest. (2)(a) Notwithstanding any other provisions of this article, the sole remedy for any person claiming to be aggrieved by a discriminatory or unfair employment practice as defined in this section shall be as follows: He or she may bring a civil action for damages in any district court of competent jurisdiction and may sue for all wages and benefits that would have been due him or her up to and including the date of the judgment had the discriminatory or unfair employment practice not occurred; except that nothing in this section shall be construed to relieve the person from the obligation to mitigate his or her damages. (b)(I) If the prevailing party in the civil action is the plaintiff, the court shall award the plaintiff court costs and a reasonable attorney fee. (II) This paragraph (b) shall not apply to an employee of a business that has or had fifteen or fewer employees during each of twenty or more calendar work weeks in the current or preceding calendar year. Coats v. Dish Network, [footnotes omitted] [excerpt] I. ¶5 We take the following from the complaint. Brandon Coats is a quadriplegic and has been confined to a wheelchair since he was a teenager. In 2009, he registered for and obtained a state-issued license to use medical marijuana to treat painful muscle spasms caused by his quadriplegia. Coats consumes medical marijuana at home, after work, and in accordance with his license and Colorado state law. ¶6 Between 2007 and 2010, Coats worked for respondent Dish as a telephone customer service representative. In May 2010, Coats tested positive for tetrahydrocannabinol ("THC"), a component of medical marijuana, during a random drug test. Coats informed Dish that he was a registered medical marijuana patient and planned to continue using medical marijuana. On June 7, 2010, Dish fired Coats for violating the company's drug policy. ¶7 Coats then filed a wrongful termination claim against Dish under section 24-34-402.5, which generally prohibits employers from discharging an employee based on his engagement in "lawful activities" off the premises of the employer during nonworking hours. § 24-34-402.5(1). Coats contended that Dish violated the statute by terminating him based on his outside-of-work medical marijuana use, which he argued 5 - - - - - was "lawful" under the Medical Marijuana Amendment and its implementing legislation. ¶8 Dish filed a motion to dismiss, arguing that Coats's medical marijuana use was not "lawful" for purposes of the statute under either federal or state law. ¶9 The trial court dismissed Coats's claim. It rejected Coats's argument that the Medical Marijuana Amendment made his use a "lawful activity" for purposes of section 24-34-402.5. Instead the court found that the Amendment provided registered patients an affirmative defense to state criminal prosecution without making their use of medical marijuana a "lawful activity" within the meaning of section 24-34-402.5. As such, the trial court concluded that the statute afforded no protection to Coats and dismissed the claim without examining the federal law issue. ¶10 On appeal, Coats again argued that Dish wrongfully terminated him under section 24-34-402.5 because his use of medical marijuana was "lawful" under state law. Dish likewise reiterated that it did not violate section 24-34-402.5 because medical marijuana use remains prohibited under federal law. ¶11 In a split decision, the court of appeals affirmed based on the prohibition of marijuana use under the federal Controlled Substances Act, 21 U.S.C. § 844(a) (2012) (the "CSA"). Looking to the plain language of section 24-34-402.5, the majority found that the term "lawful" means "that which is 'permitted by law.'" Coats, ¶ 13, 303 P.3d at 150. Applying that plain meaning, the majority reasoned that to be "lawful" for purposes of section 24-34-402.5, activities that are governed by both state and federal law must "be permitted by, and not contrary to, both state and federal law." Id. at 1 14, 6 - - - - - 303 P.3d at 151. Given that the federal CSA prohibits all marijuana use, the majority concluded that Coats's conduct was not "lawful activity" protected by the statute. The majority therefore affirmed the trial court's decision on different grounds, not reaching the question of whether the state constitutional amendment created a constitutional right for registered patients to use medical marijuana or an affirmative defense to prosecution for such use. Coats, ¶ 23, 303 P.3d at 152. ¶12 In dissent, Judge Webb argued that the term "lawful" must be interpreted according to state, rather than federal, law. He argued that the majority's interpretation failed to effectuate the purpose of the statute by improperly narrowing the scope of the statute's protection. Id. at ¶ 47, 303 P.3d at 156 (Webb, J., dissenting). Finding that the Medical Marijuana Amendment made state-licensed medical marijuana use "at least lawful," Judge Webb concluded that Coats's use should be protected by the statute. Id. at ¶ 56, 303 P.3d at 157 (Webb, J., dissenting). ¶13 We granted review of the court of appeals' opinion and now affirm. The term "lawful" as it is used in section 24-34-402.5 is not restricted in any way, and we decline to engraft a state law limitation onto the term. Therefore, an activity such as medical 7 - - - - - marijuana use that is unlawful under federal law is not a "lawful" activity under section 24-34-402.5. Accordingly, we affirm the opinion of the court of appeals. II. ¶14 We review de novo the question of whether medical marijuana use prohibited by federal law is a "lawful activity" protected under section 24-34-402.5. DuBois v. People, 211 P.3d 41, 43 (Colo. 2009). ¶15 The "lawful activities statute" provides that "[i]t 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" unless certain exceptions apply. § 24-34-402.5(1) (emphasis added). An employee discharged in violation of this provision may bring a civil action for damages, including lost wages or benefits. § 24-34-402.5(2)(a). ¶16 By its terms the statute protects only "lawful" activities. However, the statute does not define the term "lawful." Coats contends that the term should be read as limited to activities lawful under state law. We disagree. ¶17 In construing undefined statutory terms, we look to the language of the statute itself "with a view toward giving the statutory language its commonly accepted and understood meaning." People v. Schuett, 833 P.2d 44, 47 (Colo. 1992). We have construed the term "lawful" once before and found that its "generally understood meaning" is "in accordance with the law or legitimate." See id. (citing Webster's Third New International Dictionary 1279 (1986)). Similarly, courts in other states have construed "lawful" to mean "authorized by law and not contrary to, nor forbidden by 8 - - - - - law." Hougum v. Valley Memorial Homes, 574 N.W.2d 812, 821 (N.D. 1998) (defining "lawful" as used in similar lawful activities provision); In re Adoption of B.C.H., 22 N.E.3d 580, 585 (Ind. 2014) ("Upon our review of the plain and ordinary meaning of 'lawful custody,' . . . 'lawful' means 'not contrary to law.'"). We therefore agree with the court of appeals that the commonly accepted meaning of the term "lawful" is "that which is 'permitted by law' or, conversely, that which is "not contrary to, or forbidden by law." Coats, ¶ 13, 303 P.3d at 150. ¶18 We still must determine, however, whether medical marijuana use that is licensed by the State of Colorado but prohibited under federal law is "lawful" for purposes of section 24-34-402.5. Coats contends that the General Assembly intended the term "lawful" here to mean "lawful under Colorado state law," which, he asserts, recognizes medical marijuana use as "lawful." Coats, ¶ 6, 303 P.3d at 149. We do not read the term "lawful" to be so restrictive. Nothing in the language of the statute limits the term "lawful" to state law. Instead, the term is used in its general, unrestricted sense, indicating that a "lawful" activity is that which complies with applicable "law," including state and federal law. We therefore decline Coats's invitation to engraft a state law limitation onto the statutory language. See State Dep't of Revenue v. Adolph Coors Co., 724 P.2d 1341, 1345 (Colo. 1986) (declining to read a restriction into unrestricted statutory language); Turbyne v. People, 151 P.3d 563, 567 (Colo. 2007) (stating that "[w]e do not add words to the statute"). ¶19 Coats does not dispute that the federal Controlled Substances Act prohibits medical marijuana use. See 21 U.S.C. § 844(a). The CSA lists marijuana as a Schedule I 9 - - - - - substance, meaning federal law designates it as having no medical accepted use, a high risk of abuse, and a lack of accepted safety for use under medical supervision. Id. at § 812(b)(1)(A)-(C). This makes the use, possession, or manufacture of marijuana a federal criminal offense, except where used for federally-approved research projects. Id. at § 844(a); see also Gonzales v. Raich, 545 U.S. 1, 14 (2005). There is no exception for marijuana use for medicinal purposes, or for marijuana use conducted in accordance with state law. 21 U.S.C. § 844(a); see also Gonzales, 545 U.S. at 29 (finding that "[t]he Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail," including in the area of marijuana regulation). Coats's use of medical marijuana was unlawful under federal law and thus not protected by section 24-34-402.5. ¶20 Echoing Judge Webb's dissent, Coats argues that because the General Assembly intended section 24-34-402.5 to broadly protect employees from discharge for outside-of-work activities, we must construe the term "lawful" to mean "lawful under Colorado law." Coats, ¶¶ 46-47, 303 P.3d at 156 (Webb, J., dissenting). In this case, however, we find nothing to indicate that the General Assembly intended to extend section 10 - - - - - 24-34-402.5's protection for "lawful" activities to activities that are unlawful under federal law. In sum, because Coats's marijuana use was unlawful under federal law, it does not fall within section 24-34-402.5's protection for "lawful" activities. ¶21 Having decided this case on the basis of the prohibition under federal law, we decline to address the issue of whether Colorado's Medical Marijuana Amendment deems medical marijuana use "lawful" by conferring a right to such use. IV. ¶22 For the reasons stated above, we affirm the decision of the court of appeals. JUSTICE MARQUEZ does not participate. 11 - - - - -
#56. To: nolu chan (#48)
You had me right there, before all the supporting legal boilerplate and cites. Hard to see what other ruling anyone expected. Seemed like a Hail Mary case but we knew someone just had to try a case like this, sooner than later.
Excellent research. Thanks for clarifying.
Top • Page Up • Full Thread • Page Down • Bottom/LatestA silver lining of the decision, Evans said, is that it provides clarity in a "scary, gray area" of state law.
#48. To: redleghunter, cranky, SOSO, liberator, CZ82, TooConservative, sneakypete (#6)
¶9 The trial court dismissed Coats's claim. It rejected Coats's argument that the Medical Marijuana Amendment made his use a "lawful activity" for purposes of section 24-34-402.5. Instead the court found that the Amendment provided registered patients an affirmative defense to state criminal prosecution without making their use of medical marijuana a "lawful activity" within the meaning of section 24-34-402.5. As such, the trial court concluded that the statute afforded no protection to Coats and dismissed the claim without examining the federal law issue.
24-34-402.5. Unlawful prohibition of legal activities as a condition of employment
¶4 We granted certiorari and now affirm. The term "lawful" as it is used in section 24-34-402.5 is not restricted in any way, and we decline to engraft a state law limitation onto the term. Therefore, an activity such as medical marijuana use that is unlawful under federal law is not a "lawful" activity under section 24-34-402.5. Accordingly, we affirm the opinion of the court of appeals.
Replies to Comment # 48. Pot is unlawful. It is not made legal by state law. It is made not criminal under state jurisdiction. Within Federal jurisdiction, it is as illegal as ever.
#57. To: nolu chan (#48)
End Trace Mode for Comment # 48.
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