Quote Originally Posted by copobo
Brian Vicente on victory in hearing to void Board of Health's medical-marijuana ruling - Denver News - The Latest Word

"As reported in our live blog about a Denver District Court hearing this morning, Judge Larry Naves ruled in favor of medical-marijuana advocates, who argued against a controversial action by the state's Board of Health. The board's move echoed a Court of Appeals ruling that said a caregiver had to do more than simply provide marijuana to a patient -- but Naves nullified it, concluding that those who objected weren't given adequate warning or preparation time for the emergency meeting at which the decision was made."
(see link for complete article)
It made no sense whatsoever to me that the CDPHE felt they "had to" reconcile their definition of "primary caregiver" with that of the Court of Appeals in Clendenin. The court in Clendenin explicitly decided the case based on its opinion as to the state of the law prior to the CDPHE's definition being in place. It is entirely possible that under exactly the same facts, but for the timing being AFTER the CDPHE's definition was in place, the Court would go the opposite direction based on that regulatory definition of "caregiver." There was no conflict between Clendenin and the regs. That was a load of crap used by government bureaucrats to justify their "emergency" action. In addition, Clendenin is only controlling law in cases where the same fact situation exists. Thus, Clendenin did not change the definition of "caregiver" that would be applied in a case where the defendant was designated as the caregiver by the patient, and said designation is on file with the state. Going "behind" that designation to come up with a definition different than how it is defined by the caregiver and the patient was NOT done by the court, and is not the law now. Even assuming that the appeal in Clendenin is unsuccessful, the decision only says that merely providing medicine is not sufficient to justify the assertion of the affirmative defense, and has nothing to say about the definition for purposes of the bar to prosecution also contained in Amendment 20. It also seems to me that the Court of Appeals may get overturned anyway because they made it too difficult to assert the affirmative defense.