Friday, June 13, 2014

Where there's smoke...

Posted By on Fri, Jun 13, 2014 at 1:21 PM

"Legalize it and tax it" has long been part of the cry for supporters of Amendment 64. Denver attorney Robert Corry is suing Governor John Hickenlooper and Denver Mayor Michael Hancock to get rid of that second bit.

Correy claims taxing marijuana is a violation of the 5th amendment. A press release from the Cannabis Therapy Institute elaborates:
Attorney Robert J. Corry, Jr. filed a lawsuit on June 9, 2014 in Denver District Court seeking to permanently end Colorado's marijuana taxes, on the grounds that payment of the taxes violates a citizen's Fifth Amendment right against self-incrimination, since marijuana remains illegal under federal law.

Corry also accuses Colorado Governor John Hickenlooper and Denver Mayor Michael Hancock of violating the federal "Kingpin" statute (aka, the federal law against operating a "continuing criminal enterprise") for collecting taxes and laundering money on a federally illegal substance.

The complaint was filed on behalf of an unnamed licensed medical and retail marijuana center, the "No Over Taxation" issue committee (which campaigned against Proposition AA, the marijuana tax issue approved by Colorado voters in 2013) and several individuals, including Kathleen Chippi, Larisa Bolivar, Miguel Lopez and William Chengelis.

Corry is seeking unspecified damages and a refund of all tax monies collected by the state.

If successful, Corry's lawsuit could be the basis for overturning ALL regulations regarding marijuana licensing and registration in Colorado on the same grounds. As long as marijuana remains illegal under federal law, states cannot require people to give any information about themselves in order to distribute or purchase marijuana. ANY and ALL requirements to identify oneself would result in a "real and appreciable" risk of self-incrimination, and would require a citizen to implicate himself in federal crimes.

Read more about the Fifth Amendment here: http://en.wikipedia.org/wiki/Fifth_Amendment_to_the_United_States_Constitution

Corry cites a 1973 Colorado Supreme Court case (People vs. Duleff) that overturned a man's conviction for "selling marijuana without a license" because compliance with the licensing requirement would have required that person to violate his constitutional right against self-incrimination and reveal a violation of federal law. Corry writes, "The Colorado Supreme Court held specifically that the Fifth Amendment prohibits state licensing requirements that force a person to reveal a violation of federal law."

From the Duleff decision, Corry quotes the Colo. Sup. Ct.: "The Fifth Amendment prohibits licensing requirements from being used as a means of discovering past or present criminal activity which is subject to prosecution by calling attention to the licensee and his activities....There is no doubt that the information which Duleff would have been required to disclose would have been useful to the investigation of his activities, would have substantially increased the risk of prosecution, and may well have been a direct admission of guilt under federal law. The Fifth Amendment protects individuals from such compulsory, incriminating disclosures and provides a complete defense to prosecution." — Colorado Supreme Court (1973)

Corry also cites a 1969 US Supreme Court case (Timothy Leary v. United States) in which the highest court in the country overturned Leary's marijuana possession conviction and ruled that the federal Marihuana Tax Act of 1937 was illegal, due to the fact that a person seeking a tax stamp and complying with the law would be forced to incriminate himself, in violation of the Fifth Amendment.

Corry writes, "Marijuana-specific taxes require plaintiffs and any other person paying said taxes to incriminate themselves as committing multiple violations of federal law, including but not limited to, participating in, aiding and abetting, or conspiring to commit a 'continuing criminal enterprise' and 'money laundering.' These illegally-collected taxes are ultimately laundered by the State of Colorado through J.P. Morgan Chase Bank, which also participates knowingly in the continuing criminal enterprise." Item 67, Corry complaint filed 6/9/14.

Corry concludes, "It is illegal for government to retain tax monies illegally collected in violation of the constitution, so all amounts must be returned, and all records related to previous tax payments, destroyed."

Corry asks the Court to: "Enter a temporary restraining order, preliminary injunction, and/or permanent injunction ordering the Defendants, and all those acting in concert with them, to cease and desist from enforcement of the marijuana tax statutes, to cease and desist from any further collection, deposit, or laundering of the marijuana taxes, for a full refund of marijuana tax monies paid by any person or entity, and for destruction of all tax records and identifying information after full refunds are made."

"The state can't have it both ways. If it's illegal under federal law, you cannot collect taxes on it," says Kathleen Chippi, a plaintiff and member of the Patient and Caregiver Rights Litigation Project. "We have another case pending in the Colorado Supreme Court now, Coats v. Dish Network, where Colorado Attorney General John Suthers argues that medical marijuana patients can be fired from their jobs for using medical marijuana off-duty, even though it is legal under state law. Suthers argues in the Coats case that, since marijuana is still illegal under federal law, patients have no rights."

"Yet Suthers and Hickenlooper, as kingpins in their continuing criminal enterprise, happily collect and spend the marijuana taxes, even though they were collected in spite of multiple clear violations of federal law," Chippi concludes.

Read Boulder Weekly article on Federal Preemption issues and the Coats v. Dish Lawsuit (5/22/14): http://www.boulderweekly.com/article-12900-local-attorney-argues-fed-laws-donrst-apply-to-mmj.html
Specific laws and statutes aside, this suit addresses a major concern: the role of the supremacy clause of the Constitution. The clause says, in short, federal laws and treaties supersede state laws and treaties, and federal law is the supreme law of the land. It was first used to strike down a state law in 1796. More recently, in 2012, it was used to strike down a controversial immigration law in Arizona, as noted in this report from the New York Times. Amendment 64 contradicts the federal Controlled Substances Act, as Corry states above, as do all laws allowing medical and recreational marijuana. If Amendment 64 ever went to the Supreme Court, that would be the end of Colorado's marijuana industry.

"I think there's a rule of law problem here," says William Moschella, former U.S. Assistant Deputy Attorney General. "There's a real confusion with people in these states [that have laws allowing marijuana use and industry]. [It's hard] to understand what's legal and what isn't."

Corry's lawsuit, the Rohrabacher amendment (see this blog post from May 16), and a friend-of-court brief claiming the Controlled Substances Act was never intended to restrict medical marijuana (see the Boulder Weekly's May 22 story here) are all signs of the legal mess Colorado's great green experiment is making in DC. 

Moschella says the cleanest solution would be to change the Controlled Substances Act. He says, "At some point, as more states legalize medical or recreational marijuana, a decision has to be made about how to deal with this federal law that's on the books."

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