Updated Dec. 17, 2015 at 2:57 p.m.
The U.S. government has taken Colorado’s side in a dispute with neighboring states over marijuana legalization and is urging the Supreme Court to not hear a major challenge to the state’s recreational cannabis laws.
The new brief filed Wednesday by U.S. Solicitor General Donald Verrilli Jr. could have a significant impact on the Supreme Court’s willingness to hear the case against Colorado, drug law experts say.
Update: Colorado AG unimpressed with brief, expects SCOTUS decision in January
The Solicitor General’s brief comes seven months after the Supreme Court first asked the top government lawyer for an opinion on the lawsuit filed against Colorado’s legal cannabis laws by neighboring states Nebraska and Oklahoma. The new brief addresses Nebraska and Oklahoma’s complaint — and questions its place within the Supreme Court’s original jurisdiction.
“The motion for leave to file a bill of complaint should be denied because this is not an appropriate case for the exercise of this Court’s original jurisdiction,” the brief says. “Entertaining the type of dispute at issue here — essentially that one State’s laws make it more likely that third parties will violate federal and state law in another State — would represent a substantial and unwarranted expansion of this Court’s original jurisdiction.”
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The new brief ultimately says Nebraska and Oklahoma’s proposed lawsuit isn’t the type of claim the Supreme Court normally hears, according to Robert Mikos, a professor at Vanderbilt Law and an expert on federalism and drug law.
“They hit on a very important issue without having to directly weigh in on the merits of the suit,” Mikos said. “The thrust of the argument from the SG is that the Supreme Court shouldn’t be the first one to hear this dispute.”
Marijuana law expert Sam Kamin said the Solicitor General’s brief is “great news for Colorado.”
“Oklahoma and Nebraska allege that our state regulations are preempted by federal law,” said Kamin, a law professor at the University of Denver, “and here we have a statement from the federal government’s highest legal official saying that’s not the case.”
In December 2014, Nebraska and Oklahoma filed the lawsuit directly with the nation’s highest court asking to strike down Colorado’s history-making marijuana laws.
The states argued that “the State of Colorado has created a dangerous gap in the federal drug control system … Marijuana flows from this gap into neighboring states, undermining Plaintiff States’ own marijuana bans, draining their treasuries, and placing stress on their criminal justice systems,” the lawsuit alleged.
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In March, Colorado Attorney General Cynthia Coffman said Nebraska and Oklahoma “filed this case in an attempt to reach across their borders and selectively invalidate state laws with which they disagree.” A representative with Coffman’s office said Wednesday they had no comment on the U.S. Solicitor General’s new brief.
The brief makes it less likely that the Supreme Court will actually hear the case, Vanderbilt’s Mikos said.
“I think the court will give a lot of weight to the SG’s opinion,” Mikos said. “So I think this brief and the position the SG has taken makes it even less likely than it was before that the Supreme Court would actually take on this act.”
The Supreme Court could still decide to hear the case. But if it declines the suit, Nebraska and Oklahoma could then take the case to a federal district court if they choose to, Mikos said.
Legalization advocates celebrated the Solicitor General’s response on Wednesday afternoon in a rush of statements sent to media outlets.
“This is a meritless and, quite frankly, ludicrous lawsuit,” said Mason Tvert, communications director with the Marijuana Policy Project and a co-author of Colorado’s pot-legalizing Amendment 64. “We hope the court will agree with the Solicitor General that it’s not something it should be spending its time addressing.”
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Drug Policy Alliance staff attorney Jolene Forman wrote, “We are pleased the DOJ agrees that this lawsuit borders on the frivolous.”
Added Tom Angell, chairman of advocacy group Marijuana Majority: “This is the right move by the Obama administration. The Justice Department is correct here: This lawsuit is without merit and should be dismissed.”
DU Law’s Kamin said the new brief is “perfectly consistent with what the Obama administration has been saying (on marijuana): ‘We’re going to let states experiment, let states reform their laws and see what happens.’ ” But Vanderbilt’s Mikos adds that legalization advocates shouldn’t read too much into the brief regarding the federal government’s attitude toward the federal legalization of marijuana.
“I don’t think it has any broader meaning, there’s no reading the tea leaves here on anything about marijuana legalization at the state or federal level,” Mikos said. “(The brief) is really about Supreme Court practice.”
Denver Post reporter John Ingold contributed to this report.
Mobile users: View the U.S. Solicitor General’s statement on the Nebraska-Oklahoma marijuana lawsuit filed before the U.S. Supreme Court
U.S. Solicitor General response to Colorado marijuana legalization lawsuit: