Three of the four marijuana lawsuits filed against Colorado officials and businesses were organized and at least partially funded by out-of-state anti-drug organizations and socially conservative law firms, a Denver Post analysis shows.
Only one lawsuit, filed by the states of Nebraska and Oklahoma, appears to be entirely homegrown.
For those who oppose Colorado’s marijuana laws, the out-of-state money offers a chance to fight back against what they characterize as a well-heeled marijuana lobby that changed public opinion with misleading messages.
But supporters of the law that made the recreational use and sale of marijuana legal in Colorado say the money gives outsized influence to secretive coalitions of drug-rehab professionals, for-profit prison owners and others with a financial stake in keeping pot illegal.
The lawsuits, which make allegations of racketeering and claim that Colorado’s pot laws violate the U.S. Constitution, represent the opposition’s last-ditch effort to put the brakes on recreational marijuana legalization before five other states vote on the issue in November.
The lawsuits are known by plaintiff-oriented nicknames. There’s the “sheriffs’ lawsuit,” the
“I don’t think the general public understands who is really behind these cases,” said Christian Sederberg, a Denver attorney who focuses on marijuana law. “It’s critical that the people of Colorado know that there are out-of-state legal interests and policymakers who are essentially and entirely backing these cases.”
Matthew Buck, an attorney for six defendants in a racketeering case filed on behalf of Pueblo County horse ranchers, says gathering local plaintiffs gives the lawsuits instant public legitimacy and legal standing.
“It’s easier to pitch these lawsuits as local sheriffs getting together to file a lawsuit rather than saying it’s East Coast, right wing, oftentimes evangelical organizations pumping money into these lawsuits to affect local politics,” Buck said.
Thoughts about suing
The sheriffs’ lawsuit cites the U.S. Constitution’s Supremacy Clause to argue that because use and possession of pot remains a federal crime, Colorado cannot allow people to possess or use marijuana and cannot license stores to sell it.
Some of the involved sheriffs and county attorneys had thought about suing, individually and in groups, but didn’t know how to fund the cases — until an unfamiliar attorney named Mark de Bernardo came calling.
“Obviously there was interest in (a lawsuit) like that, but figuring out how to fund an effort like that and how to actually find the resources to get it done, those are completely different things,” said plaintiff Yuma County Sheriff Chad Day, whose Colorado county borders both Nebraska and Kansas. “Had Mr. de Bernardo and his firm not stepped up …”
De Bernardo, a partner in the Washington, D.C., office of Am Law 100-ranked firm Jackson Lewis, is an authority on drug testing and related workplace issues. He is the founder and executive director of the Institute for a Drug-Free Workplace, and he also founded the now-defunct Foundation for Drug Education and Awareness. He has written 19 books, mostly on drug testing and workplace substance-abuse prevention, according to his bio.
“I have a presence on this issue,” de Bernardo told The Post recently.
But how did that presence expand into Colorado? The talks started among a coalition of anti-drug colleagues that de Bernardo declined to identify.
“I was asked to do legal research into who would be an appropriate party to challenge Colorado Amendment 64 vis-a -vis standing,” he said.
De Bernardo considered a number of potential plaintiffs, including a group of Colorado public schools keen to sue the state.
“People kept coming up with ideas,” he said. ” ‘How about this?’ and ‘How about that?’ ”
The sheriffs and county attorneys, he said, had the best chance of successfully suing Colorado officials and overturning the state’s recreational pot law.
“I’m glad that some people who disagree with the legalization of marijuana have stepped up and spent their money to try and affect that,” said Mark Overman, a plaintiff and sheriff of Scotts Bluff County in western Nebraska. He said national legalization activists far outspent the opposition during the Amendment 64 campaign.
“I kept waiting, wondering, ‘Where are the people on the other side of this?’ They weren’t motivated,” he said, “and now some of them are.”
University of Denver law professor Sam Kamin agrees with Overman on the anti-drug lobby’s sudden motivation.
In “The Battle of the Bulge: The Surprising Last Stand Against State Marijuana Legalization,” published last year in the Annual Review of American Federalism, Kamin argues that these lawsuits are the opposition’s “last stand.”
“Anti-marijuana groups are losing at the Battle of the Bulge,” Kamin said in an interview. “With the exception of Ohio, marijuana law reform is generally winning and winning. … If you have a majority of states and a majority of people living in states that are legal, that makes the federal prohibition of marijuana hard to sustain. With that prospect, you can see why anti-marijuana groups are turning to the courts.”
De Bernardo said he and his colleagues — not the plaintiff sheriffs or county attorneys — are covering all expenses related to the lawsuit, by providing pro bono legal services and money contributed by the coalition.
De Bernardo would name only two donors: himself and his wife.
The other donors, he said, are former heads of the Drug Enforcement Administration and the White House’s Office of National Drug Control Policy, “people who have been involved in the criminal justice system.
“We’re not well-heeled, like the other side,” de Bernardo said. “It’s a fairly small club of national policymakers or influencers on these issues.”
But Yuma County Sheriff Day identified one of the suit’s funders: Florida-based Drug Free America Foundation, which has Republican presidential candidate Jeb Bush on its board and a direct link to the Straight Inc. chain of Drug War-era rehabilitation clinics that were shut down after allegations of sexual, physical and psychological abuse of teenage clients.
DFAF executive director Calvina Fay, a former ONDCP adviser, confirmed the organization’s involvement to The Post from her office in central Florida: “We’re supporting (the lawsuit) with information to make the case, as well as some financial support.”
Fay said she couldn’t name other coalition members without their permission, but said some live in Colorado.
“The group has come together a number of times over a period of several years,” Fay said, “and our colleagues in Colorado, since all of this came to task, have begged for some kind of relief — ‘What can the group do to help us?’ — because they’re very concerned about their communities.”
Fay said she expects more lawsuits to be filed against Colorado and other pot-legal states, perhaps related to the use of banned pesticides on marijuana or to traffic fatalities involving marijuana-impaired drivers.
The horse ranchers’ suit and the now-dismissed Holiday Inn lawsuit both made claims under the Racketeer Influenced and Corrupt Organizations Act, a federal anti-mob statute meant to stop organized crime from infiltrating legitimate businesses.
In the Holiday Inn suit, a Summit County hotel owner sued a pot shop that hoped to open across the parking lot, as well as companies that it did business with, including a bank, accountant and insurer.
In the Pueblo County case, ranchers hoping to stop construction of a nearby cannabis cultivation facility sued Gov. John Hickenlooper, the Pueblo County Commission and the head of the state Department of Revenue.
Both suits included a common plaintiff: Safe Streets Alliance, a Washington, D.C.-based anti-drug organization chaired by James Wootton, a former appointee in President Ronald Reagan’s Justice Department.
“You might imagine, it’s not hard to find property owners in the state of Colorado who own property that is proximate to marijuana facilities and believe they’ve been injured,” said Brian Barnes, an attorney with Cooper & Kirk, the Washington, D.C., law firm representing Safe Streets Alliance.
Like the sheriffs’ lawsuit, the racketeering claims aim to stop recreational pot in its tracks, but to do it, they are going after companies doing business with legal cannabis companies.
“We’re putting a bounty on the heads of anyone doing business with the marijuana industry,” Barnes told The Associated Press last year. Barnes recently clerked for conservative U.S. Supreme Court Justice Samuel Alito.
Calls and e-mails to the owners of the Holiday Inn in Frisco went unreturned, and Pueblo County horse ranch owner Hope Reilly declined to comment. But others involved in the racketeering lawsuits argue that the hotel owners and ranchers were recruited by Safe Streets.
“This is being pushed and apparently funded by an anti-marijuana group in D.C.,” said Pueblo County Commissioner Sal Pace, a defendant in the ranchers’ lawsuit.
Court filings show the hotel owners and ranchers are members of Safe Streets, but Barnes would not say when he first met them or when they became members. He also would not say who is covering their legal expenses.
Buck, the attorney representing defendants in the ranchers’ suit, said he’s suspicious of Safe Streets’ origins.
“I’ve spent hours researching Safe Streets, and I couldn’t find anything on it,” Buck said. “If there’s a large membership group, where are they? I think it’s a fake organization. It’s a sham. It’s created solely to file lawsuits, and if you don’t disclose membership numbers, you can file lawsuits against anyone in any jurisdiction.”
Even de Bernardo, the sheriffs’ lawsuit attorney, hadn’t heard of Safe Streets before the organization launched its lawsuit.
“Prior to this, I wasn’t aware of them,” he said.
Multiple e-mails to Safe Streets and Wootton went unreturned, and interview requests for Wootton were denied.
“We are fully aware that this is a national proxy fight,” Pace said. “The result of these lawsuits will have implications for the entire state and nation. If they’re successful in this lawsuit, they can shut down the entire industry in the entire state.”
Ricardo Baca: 303-954-1394, firstname.lastname@example.org or @bruvs