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Smith v. Hickenlooper

United States District Court, D. Colorado

February 26, 2016

JUSTIN E. SMITH, CHAD DAY, SHAYNE HEAP, RONALD B. BRUCE, Y SHERIDAN, FREDERICK D. MCKEE, SCOTT DECOSTE, JOHN D. JENSON, MARK L. OVERMAN, BURTON PIANALTO, CHARLES F. MOSER, and PAUL B. SCHAUB, Plaintiffs,
v.
JOHN W. HICKENLOOPER, Governor of the State of Colorado, Defendant.

ORDER ON MOTION TO DISMISS

Wiley Y. Daniel, Senior United States District Judge.

I. INTRODUCTION

This matter is before the Court on Defendant John Hickenlooper, Jr.’s [“Hickenlooper”] Motion to Dismiss Plaintiff’s Complaint Under Rules 12(b)(1) and 12(b)(6) filed on May 1, 2015. A response in opposition to the motion was filed on June 26, 2015, and a reply was filed on July 13, 2015. Thus, the motion is fully briefed. Also, on January 27, 2016, the “Governor’s Notice of Supplemental Authority Supporting His Motion to Dismiss” was filed.

II. BACKGROUND

Colorado’s voters adopted Amendment 64 in 2012, adding Article XVIII, Section 16 to the Colorado Constitution. This amendment legalized the use, possession, sale, distribution, and cultivation of marijuana by persons over the age of twenty-one. Plaintiffs, who are law enforcement officials from Colorado, Kansas, and Nebraska, argue that three provisions of Amendment 64-section 3 (governing the personal use of recreational marijuana), section 4 (governing recreational marijuana facilities), and section 5 (providing for the regulation of recreational marijuana)-are invalid because they conflict with federal law and international treaties and therefore violate the Supremacy Clause. (See Compl., ECF No. 1, ¶¶ 65-73, 106.) Plaintiffs also allege that the pertinent provisions of Amendment 64 are preempted by the Controlled Substances Act [the “CSA”], 21 U.S.C. §§ 801 et seq., and American foreign policy. Plaintiffs seek a declaration that Sections 16(3)-(5) of Amendment 64 are unconstitutional and an injunction barring their continued implementation and enforcement.

Plaintiffs’ theory is that through the CSA and various International Conventions and treaties[1], Bilateral Initiatives, and Trade Agreements [herein collectively referred to as “International Conventions”], Congress intended to prevent the states from adopting marijuana-related laws that do not adhere to a policy of marijuana prohibition. Arguing that Congress has “preeminent federal authority and responsibility over controlled substances, ” Plaintiffs allege that permitting states to regulate marijuana, rather than independently criminalizing it, will create a “patchwork” that “interferes with the federal drug laws.” (Compl., ¶¶ 3, 4.) Plaintiffs fall into three groups:

• Sheriffs from Colorado (Defendants Smith, Day, Heap, Bruce, Sheridan, and McKee) who appear only in their individual capacities;
• Sheriffs from counties in other states (Nebraska and Kansas) (Defendants Hayward, Jensen, Overman, and Pianalto), who appear in their individual and official capacities; and
• County Attorneys Moser and Schaub, both of whom sue the Governor in their individual and official capacities.

(Id., ¶¶ 8-19.)

Defendant Hickenlooper asserts that this case should be dismissed for three reasons. First, he argues that the Plaintiffs lack standing. Second, he asserts that Plaintiffs fail to state a cause of action because the CSA, the Supremacy Clause, and the International Conventions neither include nor create a right of private enforcement. Finally, Hickenlooper argues that Plaintiffs’ claims fail as a matter of law on the merits, as Amendment 64 is not preempted by the CSA or U.S. Foreign Policy conventions or agreements. I find for the reasons set forth below that Hickenlooper’s motion to dismiss should be granted and this case dismissed.

III. ANALYSIS

A. Standard of Review

Hickenlooper seeks to dismiss the case pursuant to Fed.R.Civ.P. 12(b)(1) and (6). Under Rule 12(b)(1), a complaint may be dismissed for lack of subject matter jurisdiction. A facial attack on the complaint’s allegations as to subject matter jurisdiction, as in this case, “questions the sufficiency of the complaint.” Holt v. UnitedStates, 46 F.3d 1000, 1002 (10th Cir. 1995). In ...


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