Two of Colorado’s neighboring states, arguing that the legalization of marijuana for Coloradans is causing crime problems across state borders, asked the Supreme Court on Thursday to allow them to file a lawsuit directly before the Justices.  If the suit goes forward, Nebraska and Oklahoma’s filing said, the Court should rule that the commercial part of the Colorado scheme is unconstitutional and could no longer be enforced.

Under the Constitution, states with legal complaints against other states have a right to sue them in the Supreme Court without first going through a lower court, but they need the Justices’ permission to do so.  Nebraska and Oklahoma chose that route, their filing said, because no other court can protect neighboring states from the impact of Colorado’s marijuana marketing law and rules.

Colorado voters in 2012 passed Amendment 64, which allows the personal use of marijuana for recreation and creates a system of marijuana growing and marketing across the state, which is taxed and is supposedly regulated closely.

While this scheme is confined within the boundaries of the state, its two neighbors argued that Colorado-sourced marijuana is showing up increasingly in their states, in violation of their anti-drug laws.

“In passing and enforcing Amendment 64,” the lawsuit said, “the state of Colorado has created a dangerous gap in the federal drug control measures enacted by the United States Congress.  Marijuana flows from this gap into neighboring states, undermining [their] own marijuana bans, draining their treasuries, and placing stress on their criminal justice systems.”

The lawsuit stressed that it does not demand that Colorado now ban personal use of marijuana or return to prosecuting marijuana use as a crime.  The target, it said, is the part of the scheme that authorizes “the manufacture, possession, and distribution of marijuana.” That, it said, is what conflicts with federal drug law.

Colorado’s state attorney general, John Suthers, said in reaction to the lawsuit that the neighboring states’ real grievance is with the federal Department of Justice for failing to enforce the federal laws that have long made marijuana trafficking and possession a federal crime.  Suthers called the lawsuit “without merit” and said he would “vigorously defend against it” in the Court.

The states’ legal complaint was technically based on their status as sovereign members of the Union, and on their claim to the right to have federal laws prevail over contradictory state laws, under the Supremacy Clause of Article VI of the Constitution.   No state, the complaint contended, has the power to “authorize the violation of federal law.”

Typically, if the Court allows such an “Original” lawsuit (“original” because it starts in the Supreme Court rather than reaching the court in an appeal), the case unfolds very much as a lawsuit would in a lower court, with the gathering of evidence as at a trial.  However, the Court seldom does the trial work itself, customarily farming it out to an individual known as a “special master.”  The special master gathers the evidence and recommends a decision for the Justices to consider.

There is no guarantee that the Court will permit any such lawsuit to be filed.  If it denies a motion to file, that ends the case.

Most “Original” cases take years to develop.  Most often, such lawsuits are between states fighting over where their boundaries are located, and over shared use of the waters of rivers that flow through the states.

The Nebraska-Oklahoma complaint said they want the Court to allow them to file and then take these steps:

First, declare that the commercial regime set up by Colorado’s Amendment 64 is preempted by federal law, and is therefore unenforceable under Article VI.

Second, issue an order blocking “any and all application and implementation” of the amendment’s marketing provisions.

Third, issue a separate order blocking “any and all application and implementation” of state laws and regulations that put the amendment’s commercial aspects into effect.

Fourth, require Colorado to pay the legal costs and expenses of the two states during this litigation.

The complaint, Nebraska and Oklahoma v. Colorado, has not yet been assigned an Original number.  Colorado will have the right to oppose the motion to file the lawsuit, and to defend against it if it proceeds.  In this situation, because federal laws are directly implicated, it is likely that the Court will ask the U.S. Solicitor General for the federal government’s views before taking on the case.


Posted in Nebraska and Oklahoma v. Colorado, Cases in the Pipeline, Featured

Recommended Citation: Lyle Denniston, Two states sue to block Colorado marijuana markets, SCOTUSblog (Dec. 19, 2014, 8:31 AM),