There are over 76,000 people enrolled statewide in New Mexico’s medical cannabis program which became law in 2007. On August 29, 2019, Santa Fe District Judge Bryan Biedscheid ruled that New Mexico must allow non-residents to participate in its medical cannabis program. According to the court’s ruling the language of the amended medical cannabis statute is clear: “it does not allow the Department of Health to withhold identification cards to qualifying patients who live outside of New Mexico.”
After the court hearing, Judge Biedscheid ruled:
“This statute, plainly and unambiguously, does away with the requirement of residence of the state of New Mexico … Continuing to insist on a showing of residence for eligibility in the program, when that has been taken out by the Legislature, is not appropriate.”
In announcing that the State will appeal the court ruling, Governor Michelle Lujan Grisham strongly criticized the ruling by issuing the following statement:
“We remain of the opinion that New Mexico’s medical cannabis program should not be bulldozed by an out-of-state litigant operating with his own financial interests at heart rather than those of the state’s medical program or of the many New Mexicans who depend upon it … [The ruling] contradicts both the intent of the legislative sponsor and the interpretation of the New Mexico Department of Health, and the state plans to appeal the decision.”
The court ruling centers on amendments made to the medical cannabis law by the 2019 New Mexico Legislature and which Governor Lujan Grisham signed into law. The changes took effect on July 1, 2019. The legislature changed the definition of “qualified patient” by removing a requirement that an enrolled member of the medical cannabis program must be a New Mexico resident.
The Health Department argued that the legislative intent of the change was aimed at providing reciprocity to residents of other states who have valid medical marijuana cards. An example would be a resident of another state who has a medical marijuana card from that state and who travels through or comes to New Mexico for an extended period of time and needs to refill their prescription, they can do so in New Mexico.
You can review other legislative changes to the medical cannabis statute in the postscript below to this article.
Matthew Garcia, general counsel for the Governor’s Office and Thomas Bird, the Health Department’s attorney, argued that the change was not intended to allow non-New Mexico residents to obtain medical marijuana cards, and that such a shift would encourage the transport of marijuana across state lines, which is illegal under both federal and state laws. They further argued that the change on residency was aimed at providing reciprocity to residents of other states with valid medical marijuana cards.
Thomas Bird, the Health Department’s attorney, argued to the court:
“The department is justifiably concerned about that problem because it could threaten the whole program. … This isn’t ‘chicken little,’ this isn’t ‘the sky is falling,’ these are the legal realities of the anomalous relationship between the program and federal law.”
Plaintiffs’ attorney suing the state, who is also the Speaker of the House Brian Egolf, argued that there was “no clear evidence” that the Legislature intended to require New Mexico residency. Egolf argued there is nothing to back up the concern that the change would impede the state’s ability to maintain regulatory control and he told the court:
“There is no evidence offered to support this theory [that] … anyone who’s driving through the state of New Mexico will be able to pull over to the side of the road to get a registry identification card like it’s a Snickers bar … That’s completely wrong.”
Egolf noted that the federal law prohibits U.S. government resources being used for the prosecution or dismantling of any medical cannabis program and New Mexico’s program will not be in jeopardy.
COMMENTARY AND ANALYSIS
The State Court ruling came as no surprise to anyone in the legal community given the language, or lack of clarifying language, in the medical cannabis statute. What did come as a surprise and raised more than a few eyebrows in the legal community is that the Plaintiffs’ attorney suing the state is the New Mexico Speaker of the House Brian Egolf, a prominent Santa Fe trial attorney, who also voted for the amendments to the law. Egolf representing the Plaintiff in the case against the State on a law he voted for does indeed raise more than a few questions of “conflict of interest” and the “appearance of impropriety” at least in the court of public perception.
One of the plaintiffs in the case Egolf represents is Duke Rodriguez, the president and CEO of Ultra Health LLC, a prominent licensed medical marijuana producer. Rodriguez is also a former New Mexico Human Services Secretary who now is an Arizona resident. It is likely Mr. Rodriquez knew that hiring the Speaker of the House as his attorney to represent his firm in litigation was an advantage on more than one level when it comes to New Mexico politics.
Ostensibly, the state had no problem with Egolf representing the plaintiff in that Matthew Garcia, general counsel for the Governor and Thomas Bird, the Health Department’s attorney, were not reported by the media objecting to Egolf representing the Plaintiffs and did not ask the Court to remove Egolf from the case for any sort of perceived conflict. Notwithstanding, Egolf should have declined the case or at the very minimum had an associate argue the case for his firm before the court to avoid the public perception that the Speaker Egolf had a conflict.
Egolf has now created a problem for himself in the event the Governor and the legislature seek to amend the law once again to include a residency requirement. Egolf will be forced to decide does he vote to amend that statute to include residency or does he take the position of his client and oppose it? With the new ethics commission in the process of booting up, Egolf should have been a little more cautious in taking the case. Egolf should not be surprised if someone within the Republican party or any potential opponent attempts to make an issue of his actions in the court case.
What cannot be dismissed lightly is that Egolf, as an attorney, was representing a plaintiff adverse to the state in a courtroom and argued there was no legislative intent. Egolf argued that there was “no clear evidence” that the Legislature intended to require New Mexico residency for those trying to access the state’s medical cannabis program. Egolf cannot switch off his authority as Speaker of the House by merely walking into a courtroom to argue a case for a client.
When Egolf argued from the court podium on legislation he voted for and that there was no legislative intent, he was essentially testifying as a witness legislator rather than an attorney. The Court should have admonished or cautioned him. The reality is what good is it to piss off the Speaker of the House who has control of the courts budget when you can just ignore what he has to say and make the ruling you want to make, which is what happened.
It is more likely than not that the Court discarded much of what Egolf had to say given that the ruling was based on the clear language, or absent of language taken out, in the statute. It is well settled New Mexico case law that legislative intent is a matter of law and not of fact that must be proven in a court of law. Legislative intent is based strictly on the final language of the statute. It’s the final language of the statute enacted and signed by the governor that embodies the legislatures intent, not arguments made by legislators debating the statute before its enacted. Appellate court decisions have specifically rejected post-hoc affidavits by legislators as not being competent evidence of intent.
GOVERNOR’S CONDEMNATION OF RULING
The Governor’s condemnation of the ruling and the announcement that the State intends to appeal the court’s ruling was an overreaction. An appeal will only benefit the lawyers and would be a waste of time. It is more likely than not that the Court of Appeals and the Supreme Court will uphold the ruling.
The ruling should not be appealed, but should be taken as a recommendation that the New Mexico Legislature should once again amend the statute during the upcoming 2020 session which is within 4 months.
The Governor’s Cannabis Legalization Working Group should submit proposed legislation to include in the definition of “qualified patient” the requirement that an enrolled member of the medical cannabis program must be a New Mexico resident. What the legislature took out can always be put back in along with the 4 options being looked at by the Governor’s Cannabis Legalization Working Group to protect the medical marijuana industry. Those other changes can be viewed in the postscript below.
Expediting legalization of recreational marijuana is one likely result of the Santa Fe District Court ruling.
During the 2019 New Mexico Legislative session, the legislature enacted changes to the medical cannabis laws. In April, 2019, Governor Lujan Grisham signed into law the changes made by the legislature to the program and the changes took effect on July 1, 2019.
The other major changes made to the medical cannabis laws are:
1. The law now provides that it is unlawful in most circumstances for an employer to fire or otherwise discipline a worker based on allowable conduct under the state’s medical marijuana program. It is not clear whether this change in the law will affect employers with policies that require drug testing of applicants before they are hired, with a positive test precluding their hiring regardless of whether they have a medical marijuana card.
2. The second major change to the law specifies that employers can still establish policies barring use of medical marijuana on the job or showing up under the influence of the drug and take action against employees who violate the policy. Concern has been raised in the business community that anything that would limit an employer’s ability to enforce their drug-free workplace programs would be problematic.
3. Allowing medical marijuana in schools, under certain circumstances.
4. Extending the length of an approved patient identification card from one year to three years.
5. Mandating that a licensed medical marijuana user cannot be denied an organ transplant on the basis of their participation in the program.
CANNABIS LEGALIZATION WORKING GROUP
On June 28, 2019, Governor Michelle Lujan Grisham announced the creation of a Cannabis Legalization Working Group. The group has held public hearing throughout the state. The Working Group or Task Force is finalizing its recommendations to the governor that will be incorporated into proposed legislation to be introduced in the 2020 legislative session.
There are at least 4 options being looked at by the task for to protect the medical marijuana industry and they are:
1. Establishing a licensing and fee system to provide an incentive for companies that produce marijuana for medical consumers.
2. State regulators could require that a certain amount of a company’s sales be dedicated to patients.
3. New Mexico could also encourage medical consumers to stay in the program by exempting their purchases from the taxes levied on recreational consumers.
4. The State could require providers to reserve certain products with high potency for medical patients only.