Monday, June 15, 2015

Dish Network and the U.S. Government Dominating Colorado: A Court Ruling on Marijuana

The Colorado Supreme Court ruled on June 15, 2015 that Brandon Coats, a quadriplegic medical marijuana patient from Colorado who had been fired by Dish Network in 2010 for using the drug while at home and off-duty, was not protected under the state's "lawful activities statute." According to the Court, “Colorado’s ‘lawful activities statute,’ the term ‘lawful’ refers only to 14 those activities that are lawful under both state and federal law. Therefore, employees 15 who engage in an activity such as medical marijuana use that is permitted by state law 16 but unlawful under federal law are not protected by the statute.”[1] This reasoning seems pretty solid, though if we unpack use and consult with the company’s own rationale, the case is considerably messier. In fact, the problem may reside with the American federal system itself, in which case an erroneous judicial decision could be expected.

According to the Huffington Post, “(t)he arguments from both Dish's and Coats' attorneys centered on the question of what exactly constitutes "lawful" use of medical marijuana outside of the workplace -- and how such use can be considered lawful when federal law still classifies marijuana as an illegal substance, even though the state of Colorado has legalized its use both medically and recreationally.”[2]

Meghan Martinez, the attorney for Dish Network, had argued before the Supreme Court that whether or not Coats was ever impaired at the workplace was not the issue. Instead, the point was the "use" itself, which she defined as having THC in a person’s system. "He tested positive, had THC in his system," Martinez said. "We are alleging that he was using THC at the workplace. The definition of use is in the medical marijuana act [Colorado's Amendment 20]. It's the employment of something, the longstanding possession of something. He smoked marijuana while at home, but he crossed the threshold [to his office] with THC in his system. The use is the effects, it's the THC, it's the whole point of marijuana. So when he came to work, he was using."[3] Using in this sense is distinct from impairing.

Because inactive THC can remain in a person’s system for up to 90 days, the definition of “use” in Colorado’s Amendment 20 is problematic if impairment is assumed to apply. According to Martinez, the issue was never about whether the THC was impairing Coat’s work. Instead, he was violating federal law even while he was at work. Therefore, the issue is not that of how far managers can go into their employee’s life outside of work.

However, the company’s own stated rationale for the drug tests implies impairment. “To ensure a safe and productive work environment, Dish Network reserves the right to administer nondiscriminatory, unannounced random drug testing," the company drug policy reads. "No employee shall report to work or be at work with alcohol or with any detectable amount of prohibited drugs in the employee’s system. Any violation of this statement of policy will result in disciplinary action up to and including termination.”[4] Specifically, impairment is implied in such use as would get in the way of “a safe and productive work environment.” Nothing is said about ensuring a workplace environment in which people are not breaking a federal law. In other words, the company’s position is internally contradictory as to which sense of use is relevant.

From Coats’ perspective, impairment would be the only basis on which the managers could justifiably terminate his employment based on the drug-test. “The mere presence of THC is not proof of impairment,” his attorney Michael Evans said in his arguments to the Court.[5] In fact, Coats, who worked at the company as a telephone operator, was a good employee. “I think he was late twice, but that was the extent of any discipline,” Evans told reporters in 2014.[6] Not only had Coats not detracted from a productive work environment; it sounds like he advanced it. “Put that in your pipe and smoke it!,” he could have told the manager firing him.

As for the matter of illegal use, the contradictory Colorado and U.S. laws on medical marijuana were itself the problem. In upholding the trial court’s decision in favor of Dish Network, the appellate judge had ruled that federal law trumps state law on marijuana.[7] Were preemption applicable on any federal law, then the very notion of enumerated powers would be moot. In other words, the judge’s statement ignores the point that federal powers are not unlimited, but, rather, are limited, as enumerated, whereas those of the states are residual.[8]

In regard to medical and even recreational marijuana-use in Colorado, the antipodal U.S. law could arguably be said to apply to the drug in interstate commerce and in going to and from the U.S., rather than within Colorado.

For example, while I was driving eastward across Nebraska after marijuana had been legalized in Colorado, a Nebraska trooper pulled me over because I had not used my turn-signal to shift lanes on the interstate highway. After strangely asking me about my writings, as if they would play any role in my having failed to use my turn-signal after passing a car, the policeman looked me straight in the eyes and asked,

“Are you trafficking marijuana or guns?”

I was stunned at the young man’s assumption of equivalence. I would be very concerned if someone were trafficking guns, but actually indifferent were someone transporting pot. The last thing I wanted to do was to give a Nebraska cop a lesson on category mistakes—his mentality was so very strange, or distorted, in my reckoning. So I offered to have him look in the car, which he did before sheepishly telling me I could go. Cultural differences between the states do indeed exist!

That a Nebraska policeman would enforce a federal law on an interstate highway makes perfect sense, even were the matter at hand legal under Nebraska law. Similarly, the lawful use of marijuana within Colorado does not extend to taking the drug into another state, or abroad for that matter. 

When the federal authority is tied back to its enumerated powers, moreover, the fact that the federal and state laws on marijuana conflict is no longer a problem; rather, both can co-exist within the larger federal system. Indeed, one of the virtues of federalism is its feature of accommodating cultural differences that cannot but exist between country-size states in an empire-scale union. If federal preemption is applicable to any extant federal law, then the accommodating feature is eclipsed by the desire for “one size fits all.”

Adopting a still wider scope, I detect overreaching both by the company and the federal government in that case. The latter’s marked tendency during the twentieth century to take more and more authority at the expense of the state governments is of the same urge, I submit, that prompts managements to encroach on their employees’ lives away from work even on matters that do not impact their work. Such overreaching can become a way of doing business and governing, such that a presumption attaches to it. That is to say, even a slight pulling back on the reins can trigger furious rage, as in how dare you!, even though the expression would be more accurately directed to the people who are encroaching as if doing so were their right. The real loser in the case in Colorado may be balance itself.

1.  No. 13SC394, Coats v. Dish Network, June 15, 2015.
3.  Ibid.
4.  Ibid.
5. Ibid.
6.  Matt Ferner, “Employers Can Fire You For Using Marijuana, But Brandon Coats’ Case Could Change Everything,” The Huffington Post, March 24, 2014.
7.  Ferner, “Employer Can Fire Medical Marijuana Patients.”  See also the appellate decision.
8.  The Tenth Amendment of the U.S. Constitution.