Jerry Kopel


People who were in high school when the Drug War began are now proud grandparents. What happened over the past several decades was an increase in criminal penalties for manufacture, sale and use of illegal drugs, a larger portion of persons in federal and state prisons for drug crimes, and new growth industries: Prison guards, prison construction, private prisons.

Ever so often, the Colorado legislature tries some new tack. In 1988, it was HB 1167 by then-Majority Leader Chris Paulson to impose a stamp tax on marijuana and controlled substances. You were supposed to buy stamps from the Dept. of Revenue and affix them to packages containing the drugs. If you owned illegal drugs and did not have the proper stamps attached, the original penalty was to be 10 times the amount of the tax owed.

Of course the only people to buy the stamps were stamp collectors or newspaper columnists. From 1989 through 1994, 36 people bought stamps. In 1994, the U.S. Supreme Court held that imposing a tax on illegal drugs amounted to double jeopardy and a tax on goods that the taxpayer never legally possessed.

In 1996, the legislature passed SB 133 to increase the amount of drug fines and repeal the drug stamp tax law. While there had been a total of $1 billion in "assessments" over the six year period against persons illegally possessing drugs without proper stamps, the return to the state was miniscule, about $77,000.

This year's approach to the problem is SB 150 by Sen. Mary Ellen Epps, R-Colorado Springs and Rep. Russ George, R-Rifle, "Concerning Civil Liability Relating to Illegal Drugs." The first section states "This...may be cited as the Drug Dealers Liability Act." However, the term "drug dealer" never again appears in the bill. While the bill covers hard drugs, it also includes marijuana as a source of civil liability.

Drug users can presently sue drug suppliers for injuries suffered. But SB 150 is NOT for drug users. They aren't included in the list of those who can sue. Practically anyone else or any "entity" (government or otherwise) can bring an action based on economic or non-economic loss (such as loss of companionship, or pain and suffering), caused by the illegal drug use.

There is no need for sale of the substance. Simply giving away marijuana to another who uses the drug triggers the law. There is no need for an arrest or conviction of the giver. There is a presumption based on the giving and use that the use has been going on for two years, unless "the defendant proves otherwise by clear and convincing evidence."

The standard of proof for the plaintiff is also "clear and convincing evidence". But once you prove any damage, you are also entitled to exemplary damages, reasonable attorney fees, costs of the suit and investigative services.

Plaintiff can get a prejudgment attachment of all the assets of defendant without notice to the defendant. Once attachment is approved, defendant can get a hearing to substitute a bond or demonstrate sufficient assets to cover any damages.

SB 150 has a severability clause to try to save part of the law in case the court finds other parts of the law invalid. There is ALREADY a severability statute to do just that, CRS 2-4-204. Usually a bill contains a severability clause if the sponsors know they might be on thin ice.

Will SB 150 work any better than the Drug Tax law? There is no priority among those who can sue, so as to allow next of kin or persons injured by the drug user to get first crack at any funds.

If there had earlier been a seizure under forfeiture law, or a judgment rendered in a criminal proceeding, it takes precedence over a judgment under SB 150.

The one organized group that can easily shift gears to use the law is a police or sheriff's office. If they use funds "expended on behalf of the individual illegal drug user", that can trigger the right to sue for economic damages, plus exemplary damages, attorney fees and costs. I believe "expended on behalf" would include the costs of incarcerating the illegal drug user.

Why would law enforcement use SB 150? Presently they are limited under state forfeiture law to only seize assets traceable to the illegal drug involved. Under SB 150, any assets of defendant may be attached. And since SB 150 is not a forfeiture law, there is no requirement for accounting on how the damages awarded can be spent by law enforcement.

* * *

HB 1278 was one of those bills overlooked by many in the course of reporting on the legislature. But the measure does contain an important lesson: Business interests don't always win. The bill, by Rep. Tambor Williams, R-Greeley, and Sen. Doug Lamborn, R-Colorado Springs, dealt with administrative law judges who hear workers' compensation cases.

The original version was fairly libelous, if not simply outrageous in a legislative declaration stating "The system of using administrative law judges to conduct workers' compensation cases has been subject to increasing criticism from all participants, such as a perception of lack of fairness and inefficiency of the administrative law judges. Therefore, the General Assembly believes the entire system should be evaluated for fairness and objectivity."

There was to be a "task force" to conduct a review and make recommendations to a legislative interim committee. It doesn't take a college degree to recognize that businesses on the losing end of administrative law judge hearings were pushing the bill.

The 10 page bill which passed the House was turned into a half page bill in the Senate providing only that Colorado rules of evidence and requirements of proof in workers' compensation hearings conform with those in civil nonjury cases in district courts.

The House rejected the Senate amendments and asked for a conference committee. The committee report pushed an interim committee but struck the libelous language. The Senate rejected the compromise. The House tried again with a second conference committee which did pretty much what the first committee did. This time the Senate not only rejected the committee report, it adhered to its version, and the House receded.

Moral of the story: Invective may "feel good" but it rarely wins the day.


Jerry Kopel writes a column for the Statesman based on 22 years past experience as a state legislator.

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