Injunction and the Department of Health.

Yesterday an injunction was granted against the Department of Health for adopting the Clendenin definition of primary caregiver without public input. That input currently is scheduled for mid-December. However, it is important to remember that judicial branch of government is responsible for constitutional interpretation and that Amend. 20 is a constitutional amendment. As such, it is the appellate courts that ultimately will decide the constitutional definition of “primary caregiver,” not the Department of Health. Accordingly, I continue to believe that, unless the Colorado Supreme Court says otherwise, the Clendenin definition should be considered “the law” and you should all continue to roll out additional caregiving services immediately. Don’t be a test case for the next wave of judicial decisions. Remember, all such decisions are made in the context of your criminal case!!!

CDPHE decision inevitable.

The CDPHE meeting and adoption of Clendenin is obvious and inevitable. CDPHE is merely charged with administrating the constitutional amendment, which necessarily includes incorporation of any rulings by the Court of Appeals and/or Colorado Supreme Court. It is those two entities who define that which is constitutional (or not) and CDPHE is required to follow such rulings in carrying out its adminstrative function. Rather than “tilt at windmills” and complain about how unfair the ruling is, it would behoove everyone to immediately comply with the strict requirements of Clendenin while law enforcement is still gathering its forces. Perhaps by complying with Clendenin, we can present a different (i.e., winnable) case to help modify this decision going forward. Failure to comply is likely to result in prosecution without the benefit of a MMJ affirmative defense for caregivers. In such a case, the trial would only consist of a presentation by the DA of how much MJ was produced or sold, without any reference to MMJ or caregiving. All of our time is better spent finding new and creative ways to comply with Clendenin, rather than listening to the inevitable adoption of the case by CDPHE.