People v. Clendenin

*217 Judge LOEB

specially concurring.

I agree with the majority’s disposition and reasoning with respect to all issues in this case. However, I write separately with respect to the primary care-giver issue to express my concern about a practical anomaly regarding the application of Colorado’s medical marijuana constitutional amendment, which, in my view, cries out for legislative action.

The fundamental legal issue we are called on to resolve in this appeal is whether to qualify as a “primary care-giver” under Colorado Constitution article XVIII, section 14(l)(f), a person must do more to manage a qualifying patient’s well-being than merely supply marijuana. In resolving that issue of constitutional interpretation, we should strive to ascertain and give effect to the intent of those who adopted the amendment. See Grossman v. Dean, 80 P.3d 952, 962 (Colo.App.2003). To do so, we “must determine what the voters believed the language of the amendment meant when they approved it, by giving the language the natural and popular meaning usually understood by the voters.” Id. Applying this plain language analysis, the majority concludes, and I agree, that the constitutional definition of “primary care-giver” means something more than simply supplying a qualifying patient with medical marijuana.

The practical problem with this result, however, is that the medical marijuana constitutional amendment adopted by the voters almost ten years ago essentially closes its eyes to the reality that a qualifying patient or his or her primary care-giver (as defined in the amendment and interpreted in the majority opinion) must somehow engage in an initial transaction to acquire the marijuana from some other person who is not protected from criminal prosecution and conviction by the constitutional amendment or any legislative enactment. Thus, although qualifying patients and primary caregivers may be protected from criminal liability, nothing in the amendment protects their original suppliers from prosecution or conviction on drug-related charges.

Indeed, it appears this was the very intent of the amendment, as presented to the voters. As noted by the majority, when interpreting a constitutional amendment, courts often look to the explanatory publication of the Legislative Council of the Colorado General Assembly, otherwise known as the Blue Book. Id. Here, in the background section of the Blue Book’s analysis of the medical marijuana amendment, it states that because the proposed amendment “does not change current law, distribution of marijuana will still be illegal in Colorado.” See Colorado Legislative Council, Research Pub. No. 475-6, An Analysis of 2000 Ballot Proposals 1 (2000). Further, in describing the arguments against the proposed amendment, the Blue Book noted, “[T]he proposal does not provide any legal means by which a patient may obtain marijuana. Under state criminal law, it will still be illegal to sell marijuana or marijuana plants to another individual, including a patient on the state registry.” Id. at 2.

Thus, the amendment has created a system by which qualifying patients and their primary care-givers can legally use medical marijuana (which includes the act of acquiring it) but they still have to acquire it from someone who will violate the law by selling or providing the marijuana to them. In my view, while this result may not be absurd, and, indeed, appears to be exactly what the voters intended in passing the amendment, it poses a bizarre practical anomaly — in order to effectuate the purpose of the amendment, namely, to provide an affirmative defense or immunity from prosecution to patients truly in need of medical marijuana, it forces such persons or their primary care-givers to engage in an illegal transaction (at least from the standpoint of the supplier) to obtain the marijuana in the first place. This is because neither the amendment nor any subsequent legislation passed by the General Assembly sets forth any mechanism (such as state licensed dispensaries) by which patients or their caregivers can acquire medical marijuana. Nor does the amendment make any attempt to distinguish between types of suppliers or dealers of marijuana. A drug dealer on the street and a person who grows marijuana plants in his or her home solely for the purpose of providing it to qualified medical patients are treated the same; both *218 are subject to criminal prosecution and conviction if they provide medical marijuana to a qualifying patient or his or her primary caregiver. Thus, this system seems to provide a disincentive for patients in need to acquire medical marijuana, and it certainly provides no incentive, other than pure monetary gain, for anyone to provide medical marijuana to a qualifying patient or primary care-giver.

To some extent, I suspect this anomaly is the result of the vagaries and weaknesses in the voter initiative process in Colorado. It is probably nearly impossible to draft a proposed constitutional amendment that could anticipate and provide for all conceivable practical problems that may arise in actually applying and implementing the amendment. I recognize there are obviously political aspects to proposed constitutional initiatives as well; proponents of such initiatives, as may have been the case here, will make concessions and compromises in the ultimate proposal submitted to the voters in order to maximize the chances of getting it passed.

It is not the province of this court to involve itself in policy or legislative considerations, and I express no opinion whatsoever on the wisdom of the original constitutional amendment or how the practical anomaly discussed herein might be alleviated. My purpose in writing separately is simply to identify the flaw I perceive in the current system and to suggest that some legislative action will be required if the salutary medical purposes of the amendment are to be fully effectuated.