Carl Olsen’s Letter to the Colorado Department of Revenue

Carl Olsen
Jan­u­ary 15, 2012

Bar­bara J. Brohl
Col­orado Depart­ment of Rev­enue
State Capi­tol Annex
1375 Sher­man Street, Room 409
Den­ver, Col­orado 80261

Dear Exec­u­tive Direc­tor Brohl,

Bar­bara Brohl — Exec­u­tive Direc­tor of the Col­orado Depart­ment of Revenue

On Novem­ber 7, 2000, the Peo­ple of Col­orado amended the Col­orado Con­sti­tu­tion by adding Arti­cle XVIII, Sec­tion 14, Med­ical use of mar­i­juana for per­sons suf­fer­ing from debil­i­tat­ing med­ical con­di­tions[1], specif­i­cally stat­ing, “‘Med­ical use’ means the acqui­si­tion, pos­ses­sion, pro­duc­tion, use, or trans­porta­tion of mar­i­juana or para­pher­na­lia related to the admin­is­tra­tion of such mar­i­juana to address the symp­toms or effects of a patient’s debil­i­tat­ing med­ical con­di­tion, which may be autho­rized only after a diag­no­sis of the patient’s debil­i­tat­ing med­ical con­di­tion by a physi­cian or physi­cians, as pro­vided by this section.”

As a con­di­tion for place­ment in fed­eral Sched­ule I, Con­gress directed the U.S. Attor­ney Gen­eral to remove any­thing from Sched­ule I that has accepted med­ical use in the United States.  21 U.S.C. § 812(b)(1)(B).[2]

Leg­is­la­tors in Col­orado seem to be con­fused as to the mean­ing of “med­ical use” and the role of the fed­eral gov­ern­ment in reg­u­lat­ing the med­ical use of con­trolled sub­stances, because on June 7, 2010, the Col­orado leg­is­la­ture enacted a statute pur­port­edly requir­ing state offi­cials to tell the U.S. Drug Enforce­ment Admin­is­tra­tion that mar­i­juana has “poten­tial med­ical value.”  See Col­orado 2010 Ses­sion Laws, Chap­ter 355, Sec­tion 12–43.3–202(1)(g) (Col­orado House Bill 10–1284)[3].  Poten­tial med­ical value and actual med­ical value are not the same.  The Peo­ple of Col­orado did not autho­rize state offi­cials to sub­vert the will of the peo­ple by dis­tort­ing the mean­ing of the Col­orado Constitution.

I see you have decided not to join the states of Wash­ing­ton and Rhode Island in their peti­tion to have mar­i­juana reclas­si­fied by the DEA[4].  Instead, you have decided to make your own request to have mar­i­juana reclas­si­fied by the DEA[5].  I’m writ­ing to tell you that you’ve made the wrong deci­sion, as have the states of Wash­ing­ton and Rhode Island.  You are giv­ing away the store by virtue of your fail­ure to assert states’ rights accord­ing to the U.S. Supreme Court rul­ing in Gon­za­les v. Ore­gon, 546 U.S. 243 (2006).  Your let­ter does not assert that mar­i­juana is mis­clas­si­fied under the fed­eral Con­trolled Sub­stances Act as a mat­ter of law, which is the key to this whole mess.

The rea­son you should lis­ten to me is because I’m cur­rently an inter­venor in the fed­eral mar­i­juana resched­ul­ing peti­tion for judi­cial review, Amer­i­cans for Safe Access, et al. v. DEA, No. 11–1265, in the United States Court of Appeals for the Dis­trict of Colum­bia Cir­cuit.  My motion to inter­vene was granted on Sep­tem­ber 1, 2011[6].  The DEA filed a motion to dis­miss me from the case on Sep­tem­ber 9, 2011[7].  A three judge panel denied the DEA’s motion to dis­miss me on Decem­ber 7, 2011[8], and set a brief­ing sched­ule for the par­ties (includ­ing me) on Decem­ber 8, 2011[9].  My orig­i­nal argu­ment for inter­ven­ing was that none of the states that have accepted the med­ical use of mar­i­juana have noti­fied the fed­eral gov­ern­ment that mar­i­juana must be removed from its cur­rent clas­si­fi­ca­tion as a sub­stance with no med­ical use in the United States.  And, of course, on Novem­ber 30, the states of Wash­ing­ton and Rhode Island filed requests with the DEA to have mar­i­juana reclassified.

Unfor­tu­nately, the Gov­er­nor of Wash­ing­ton tells me the deci­sion on whether mar­i­juana has accepted med­ical use in the United States should be made by a fed­eral reg­u­la­tory admin­is­tra­tor, not by state law­mak­ers[10].  I’m writ­ing to you to make the same objec­tion to Colorado’s let­ter to the DEA, which also cedes state sov­er­eignty to a fed­eral reg­u­la­tory admin­is­tra­tor.  I will be com­plain­ing about your states in my argu­ment before the U.S. Court of Appeals, because what you are doing vio­lates the Tenth Amend­ment bal­ance between state and fed­eral gov­ern­ments, for­mally known as “fed­er­al­ism” and sub­verts the will of the peo­ple who elected you to rep­re­sent the state, not the DEA.  State can­not cede their power to the fed­eral gov­ern­ment unless Con­gress specif­i­cally pre­empts them in clear and unam­bigu­ous lan­guage.  Gon­za­les v. Ore­gon makes it clear that Con­gress never intended to pre­empt the states from decid­ing what to accept or reject for med­ical use.  That is why we have 50 state con­trolled sub­stances acts, instead of one fed­eral law to rule them all.

John Hick­en­looper — Gov­er­nor of Colorado

If I can be of any fur­ther assis­tance to you, please let me know.  Your state seems to under­stand that its cit­i­zens deserve pro­tec­tion from fed­eral mis­clas­si­fi­ca­tion of mar­i­juana, but you don’t seem to under­stand who is actu­ally in con­trol.  It is within your power to pro­tect the cit­i­zens of your state, so I wish you every suc­cess in ful­fill­ing your con­sti­tu­tional duty to pro­tect and serve the peo­ple who elected you.

Sin­cerely,

Carl Olsen
130 NE Aurora Ave., Des Moines, IA 50313–3654
515–288-5798 (home) • 515–343-9933 (cell)
carl@carl-olsen.com • www.carl-olsen.com