De­fen­dants pared in pot law­suit

The gov­er­nor and other state and Pue­blo County of­fi­cials have been re­moved from the case.

The Denver Post - - BUSINESS - By Ri­cardo Baca

A fed­eral judge this week re­moved the gov­er­nor and other state and Pue­blo County of­fi­cials as de­fen­dants in a high­pro­file rack­e­teer­ing law­suit that is at­tempt­ing to stop le­gal mar­i­juana in Colorado. Pue­blo County horse ranch­ers Hope and Michael Reilly and Wash­ing­ton, D.C., anti-drug group Safe Streets Al­liance, sued to stop con­struc­tion of Rocky Moun­tain Or­gan­ics’ cannabis cul­ti­va­tion fa­cil­ity, claim­ing that fed­eral pot laws su­percede Colorado’s pot laws and al­leg­ing vi­o­la­tions of the Rack­e­teer In­flu­enced and Cor­rupt Or­ga­ni­za­tions Act.

The case, known as the “horse ranch-

ers’ law­suit,” named the grow, busi­nesses that work with it, Gov. John Hick­en­looper, the Pue­blo County Com­mis­sion, the head of the state Depart­ment of Rev­enue and other of­fi­cials and agen­cies as de­fen­dants.

But U.S. District Judge Robert E. Black­burn on Tues­day is­sued a writ­ten or­der sid­ing with pre­vi­ous fed­eral court rul­ings say­ing that govern­ment en­ti­ties are not sub­ject to RICO claims and “that there is no pri­vate right-of-ac­tion un­der the (U.S. Con­sti­tu­tion) Supremacy Clause.”

Brian Barnes, a lawyer for Safe Streets and the Reillys, said the case will pro­ceed against the other named de­fen­dants, in­clud­ing the Black Hawk pot shop Rocky Moun­tain Or­gan­ics, which grows its cannabis in Pue­blo County. He also is con­tem­plat­ing an ap­peal.

“But we haven’t made any fi­nal de­ci­sions about how we’re go­ing to pro­ceed,” he said.

Pue­blo County spokes­woman Paris Carmichael said the county has spent more than $100,000 on the case.

“It’s pretty clear it was a friv­o­lous law­suit be­ing pushed by an ide­o­log­i­cal agenda, and the net re­sult is it cost­ing Pue­blo County tax­pay­ers time and money to fight it,” Pue­blo County com­mis­sioner Sal Pace said. “The folks who would have liked to see them suc­ceed would have been the black mar­ket drug car­tels, since they’re the big­gest losers un­der de­crim­i­nal­iza­tion and le­gal­iza­tion in Colorado.”

At­tor­ney Matthew Buck, who rep­re­sents Rocky Moun­tain Or­gan­ics and some other re­main­ing de­fen­dants, said the rul­ing Tues­day “likely sig­nals where the court is go­ing to go in our RICO ac­tion — I be­lieve all of the cases will be dis­missed when they get around to it.”

The court ad­dresses cases in or­der of im­por­tance, he said, which is likely why Black­burn ruled on the state and county is­sues be­fore those in­volv­ing pri­vate par­ties.

“RICO was de­signed to al­low (the govern­ment) to go af­ter the mafia in civil court — not for out-of-state spe­cial in­ter­est groups to go af­ter lo­cal busi­nesses for com­ply­ing with Colorado law,” Buck said.

At­tor­ney Gen­eral Cyn­thia Coff­man, who rep­re­sented Hick­en­looper and other state of­fi­cials in the case, said Wed­nes­day she will con­tinue to de­fend the Colorado law that le­gal­ized the recre­ational use and pos­ses­sion of mar­i­juana.

“I con­tinue to be­lieve th­ese cases lack merit and are not the way to fix Amer­ica’s mar­i­juana pol­icy; a pol­icy which con­tin­ues to raise sig­nif­i­cant chal­lenges for our state and le­git­i­mate con­cerns by our neigh­bor states,” Coff­man said in an e-mailed state­ment.

She was re­fer­ring to the next big le­gal chal­lenge to Colorado’s pot laws, a case filed by Ne­braska and Ok­la­homa ask­ing the U.S. Supreme Court to over­turn Amend­ment 64. The states claim mar­i­juana flow­ing across the bor­der un­der­mines their own pot pro­hi­bi­tions and stresses crim­i­nal jus­tice sys­tems. The high court has not yet said whether it will hear the case.

Univer­sity of Den­ver law pro­fes­sor Sam Kamin, who spe­cial­izes in cannabis law, com­pared the ranch­ers’ claims to the Ne­braska and Ok­la­homa case.

“To me, what (the judge) was say­ing here is, ‘You wish fed­eral pol­icy were dif­fer­ent, but that is not how we do this. You wish the fed­eral govern­ment would en­force (the Con­trolled Sub­stances Act) more ro­bustly. But the fed­eral govern­ment has spo­ken, and you don’t get to se­cond-guess them,’ ” he said.

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