After I'm 64 

Recently, the Gazette published a letter, written by a precocious Classical Academy student, on why voters should reject Amendment 64. "As a senior in high school, I have seen the affects [sic] of marijuana firsthand," she wrote. "It is used as a pleasurable past time; a way to 'feel relaxed and happy.' This is all illegal of course."

Now, everybody knows that happiness only brings a written warning. But the letter fed our curiosity: What in our state will change if voters Tuesday elect to make some of what's "illegal," legal? If, specifically, they allow adults 21-plus to grow six plants, and possess up to an ounce of marijuana?

Behind closed doors

Brian Vicente, co-director of the backing Campaign to Regulate Marijuana Like Alcohol, says Gov. John Hickenlooper would first be prompted to sign it into law. Hickenlooper has vociferously opposed the amendment, but if he refused to sign, it would become law anyway after 30 days.

At that point, according to the amendment, "possessing, using, displaying, purchasing, or transporting marijuana accessories or one ounce or less of marijuana" would be legal at the state and local levels. (As for whether your boss would have to be OK with your use of it, see CannaBiz, here.) Folks growing at home would be under slightly different rules, however, because a lot more than 1 ounce is produced from a crop. So they could grow up to six plants, with a maximum of three budding at a time, and keep all of the harvest, "provided that the growing takes place in an enclosed, locked space, is not conducted openly or publicly, and is not made available for sale."

All would be prohibited from "consumption that is conducted openly and publicly or in a manner that endangers others."

As far as where to get cannabis in the first place, individuals could give each other an ounce or less "without remuneration," but there won't be retail stores from which to buy it until January 2014. The "where," "what" and "who" of that process won't be determined until after the amendment passes, and the Department of Revenue and state Legislature create specific regulations.

"I think there's a really good chance that the majority, if not all, of the stores will actually be medical marijuana stores that convert over, if the store chooses and if the local community allows them to," predicts Vicente, clarifying that the amendment deliberately changes nothing about current medical marijuana laws, meaning MMJ centers could still only sell to registered patients.

The lack of specificity regarding the new retail-store model, he adds, is also on purpose: "Because we're amending the constitution, we wanted to just create a framework as opposed to spell out every single detail."

Can or can't?

Early next year, the state would be directed by wording in the amendment to begin working on another issue, designed to benefit the financial fund of the Division of Public School Capital Construction Assistance: "The General Assembly shall enact an excise tax to be levied upon marijuana sold ... not to exceed fifteen percent" for five years, and then at whatever rate the Legislature wants after that.

Of course, because of TABOR, citizens would have to approve the new tax. And this — legally compelling the Legislature to add a tax question to the ballot — is murky territory, says Colorado Springs trial lawyer Dennis Hartley.

"It'd be the first time that I'd seen it," quips Hartley, who says he's been litigating related issues for 40 years. "Whether that is constitutional or not, that remains to be seen, but that's kind of an odd practice.

"And the thing is, it'd be stupid if the Legislature didn't pass a tax. But to force 'em to pass a tax ... That's gonna be one where I think the anti-drug people may concentrate on and try to get some [legal] play."

Rep. Mark Waller, an attorney and state legislator for Colorado Springs, says he doesn't see how he, or the General Assembly, could be compelled to do much of anything at all: "I mean, that creates a separation of powers issue."

He envisions a process wherein, after the passage of 64, the Legislature declines, for whatever reason, to place a tax question on the ballot, so somebody sues the state to make them. The lawsuit would hit Denver District Court, be decided, and then the losing party could appeal straight to the Colorado Supreme Court.

"And even if the Supreme Court made a decision and said, 'You know what, Legislature, you have to put this on the ballot,'" Waller says, "I still think the Legislature could say, 'No, we're not going to do that.' And they have no remedy to force us to do it."

Asked for his thoughts on that, Vicente is incredulous.

"It's definitely a theoretical possibility," he says. But "I think it's almost unfathomable to me that the Legislature would not put an excise tax on adult marijuana sales — it's unbelievable.

"The Legislature will have to decide whether they are going to comply with the will of the voters, or are going to slap the voters in the face."



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