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Colo. AG Suthers finds two potential flaws in marijuana legalization

By Bethany Krajelis | Nov 12, 2012

DENVER (Legal Newsline) - Colorado Attorney General John Suthers last week pointed out two potential issues with a constitutional amendment that voters approved to legalize recreational marijuana use.

In a statement released the day after the election, Suthers said the U.S. Department of Justice had not yet announced its position on the matter and that the measure does not impose a tax to benefit schools as some proponents claimed while pushing for the passage of Amendment 64.

Under the constitutional amendment Colorado voters approved, pot use would be regulated and taxed similarly to alcohol. Voters in Washington passed a similar ballot measure last week.

Suthers said "Despite my strongly held belief that the 'legalization' of marijuana on a state level is very bad public policy, voters can be assured that the Attorney General's Office will move forward in assisting the pertinent executive branch agencies to implement this new provision in the Colorado Constitution."

In order to move forward, however, Suthers said he wants to hear from the DOJ.

Because using, possessing and distributing pot remains illegal under federal law, the DOJ could still criminally sanction these activities in the states, even ones that decriminalized these activities. The situation is similar to states that have legalized marijuana use for medicinal purposes.

"Therefore, absent action by Congress, Coloradans should not expect to see successful legal challenges to the ability of the federal government to enforce its marijuana laws in Colorado," Suthers said.

"Accordingly, I call upon the United States Department of Justice to make known its intentions regarding prosecution of activities sanctioned by Amendment 64 (particularly large wholesale grow operations) as soon as possible in order to assist state regulators and the citizens of Colorado in making decisions about the implementation of Amendment 64."

In addition, Suthers said residents should be aware that "Amendment 64 did not comply with required language under the Taxpayers Bill of Rights and no such tax will be imposed."

Proponents of the measure told voters that the measure would impose a tax on pot sales that would bring up to $40 million a year to the state's schools.

Suthers, however, said "it will be up to the Colorado Legislature whether to refer such a tax to the voters and up to the voters of Colorado whether to actually impose the tax. Therefore, such revenue is speculative and will not be forthcoming when Amendment 64 begins to be implemented."

The ballot measure requires the state legislature to enact an excise tax, but Colorado's Constitution forbids lawmakers to be bound to vote a certain way.

"Because of this inherent conflict, the excise tax outlined in the measure might not be imposed," the Legislative Council of the Colorado General Assembly wrote in its analysis of the amendment. "Additionally, this issue may result in significant litigation."

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