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. 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. According to the court’s ruling the language of the amended medical cannabis statute is clear.
In his ruling, Judge Biedscheid said
“This statute, plainly and unambiguously, does away with the requirement of residence of the state of New Mexico. … it does not allow the Department of Health to withhold identification cards to qualifying patients who live outside 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.”
Governor Michelle Lujan Grisham strongly criticized the ruling saying the state would appeal the decision 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.”
According to the New Mexico Department of health, there are 80,257 patients enrolled in New Mexico’s medical cannabis program as of last month with 421 out-of-state residents have enrolled. Most of the out of state residents are from Texas.
The Plaintiffs’ attorney suing the state on behalf Ultra Health LLC, a prominent licensed medical cannabis producer and its President Duke Rodriquez, is New Mexico Speaker of the House Brian Egolf, a prominent Santa Fe trial attorney. Speaker Egolf voted for the original amendments in the 2019 legislature and then challenged the legislation in court.
AMENDMENT TO LAW PROPOSED
The 2020 New Mexico legislature began on January 21, 2020, and with its start came the introduction of Senate Bill 139 sponsored by Democrat NM State Senator Gerald Ortis y Pino. The legislation is intended to correct the state law to prohibit out of state residents from obtaining medical cannabis cards and to require “in state residency”. According to Senator Ortiz y Pino:
“The whole intent from Day One was not to throw it open” .
Not surprising, Governor Michelle Lujan Grisham is backing the proposed “fix” to the state’s medical marijuana laws and has added it to the call agenda. Lujan Grisham spokesman Tripp Stelnicki said that if the bill wins approval, these out-of-state individuals who enrolled after the judge’s ruling will get to keep accessing medical marijuana in New Mexico until their one-year medical cannabis cards expire and they will not be allowed to renew the identification cards.
Last year’s bill permits reciprocity between New Mexico and other states with similar programs. If Senate Bill 139 passes, the reciprocity would not be affected. Further, the state is still appealing last year’s ruling by District Judge Bryan Biedscheid and the Court of Appeals has yet to take action on the appeal.
OPPOSTION TO CHANGE
Duke Rodriguez, president and CEO of Ultra Health LLC, the cannabis producer that sued the state last year, said the Lujan Grisham administration’s stance on the issue makes no sense. Rodriquez argued many of the out-of-state residents who have enrolled in New Mexico’s medical pot program either work or live part time in the state. Rodriguez pointed out that the proposal to legalize recreational cannabis would not limit use to New Mexicans, but would allow anyone ages 21 or older to purchase marijuana from licensed dispensaries.
“It makes no logical sense why they should … [punish out of state residents] We continue to be totally confused about justifying the logic for protecting the medical program.”
SPEAKER EGOLF CHALLENGED FOR RE ELECTION
On December 10, 2019, the Santa Fe New Mexican reported that a New Mexico climate activist with Navajo roots plans to challenge state House Speaker Brian Egolf for his seat in 2020. Lyla June Johnston, a Stanford-educated climate activist whose social media presence swelled during the Dakota Access Pipeline protests, plans to take on incumbent Egolf, one of the most powerful Democrats in New Mexico politics. Johnston said that she intends to focus her campaign on environmental issues and criticized Egolf and other Democratic leadership for not doing enough to decrease greenhouse gas emissions in the oil-rich Permian Basin and had this to say:
“Of course [Democratic leadership are] telling us that we need oil revenue to fund our children’s education, but fossil fuel extraction destroys the future of those very same children … We’re educating them for a future they’re not gonna see. And that’s how I know a lot of our leadership is insincere”
Johnston earned a degree in environmental anthropology from Stanford and is now pursuing her Ph.D. in sustainable food systems online from the University of Alaska Fairbanks. She works as a community organizer in Santa Fe.
COMMENTARY AND ANALYSIS
It is more likely than not that Senate Bill 139 will be passed by the New Mexico Senate and referred to the New Mexico House for passage. It is also highly likely that the legislation will pass, become law and sent on to the Governor for her signature. If the law does indeed become law, it will render the state’s appeal moot and the case would be dismissed. What is not at all certain is what will Speaker of the House Brian Egolf do with the legislation.
Last year’s Santa Fe District Court State 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 an absolute surprise and raised more than a few eyebrows in the legal community was when the Plaintiffs’ attorney suing the state was the New Mexico Speaker of the House Brian Egolf, who also voted for the amendments to the law last year.
Speaker Egolf representing the Plaintiff in the case against the State on a law he voted for raised more than a few questions of “conflict of interest” and the “appearance of impropriety”, at least in the court of public perception and public opinion. Speaker Egolf strenuously objected to the criticism, especially to that leveled against him by the Albuquerque Journal. Egolf proclaimed that there was no conflict and that he has a right to make a living as and attorney given New Mexico’s citizen legislature.
A remarkable exchange occurred between the Albuquerque Journal when it editorialized and Speaker Egolf responded to the Journal. It is obvious there is no love shared between the Albuquerque Journal and Speaker of the House Brian Egolf.
You can view both the Albuquerque Journal Editorial and the Speaker’s response at these links:
Speaker Egolf now has a major problem with the introduction of Senate Bill 139, a problem he created himself. Speaker Egolf will now be forced to decide does he vote to amend the statute to include Mew Mexico residency or does he take the position of his client and oppose it?
With the New Ethics Commission up and running, Egolf needs to be extremely cautious in the event Senate Bill 139 (SB 139) passes the Senate and is forwarded to the House. Egolf needs to secure an advisory opinion from the New Mexico Ethics Commission as to what he can or cannot do with respect to SB 139 in his capacity as Speaker of the House.
Until an advisory opinion is issued by the Ethics Commission, Speaker Egolf would be wise not to make House Committee referrals or even vote on SB 139. Another problem for the Speaker is that he now has opposition within the Democratic Party as he seeks another term. What he does with Senate Bill 139 will no doubt surface in the campaign that just may be too close for comfort and perhaps even end his political career as Speaker of the House.