Word Count 4599
COURT OF APPEALS, STATE OF COLORADO
101 W. Colfax, #800, Denver CO 80203
303 861 1111
________________________________________
INDUSTRIAL CLAIM APPEALS OFFICE
Docket No. 16415-2011
________________________________________
IN THE MATTER OF THE CLAIM OF
CHARLES MEYERS, Claimant
v.
ECHOSPHERE, LLC, Employer.
________________________________________
Case Number:
11 CA 1982
CLAIMANT’S OPENING BRIEF
Question 1: Was it error for the ICAO to ignore the fact that the drug policy at
issue was vague and ambiguous and instead, hold that consent to drug testing
cured a vague and ambiguous policy?
Question 2: Did the ICAO err in holding that a physician’s certification for the
use of medical marijuana is not the same as a “prescription” because the DEA
so as held in Beinor? Is the Court of Appeals exploiting a poorly expressed pro
se argument?
Question 3: Did the ICAO misinterpret the Supremacy Clause by holding that
federal law supersedes State law when federal law actually addresses, and
provides for, an exception for medical marijuana?
Question 4: Did the ICAO err when applying Beinor v. ICAO, 11 CA 1685
(August 18, 2011) to this case when the facts are different and the acts
occurring here were prior to such decision?
TABLE OF AUTHORITIES
CONSTITUTION OF THE UNITED STATES
OF AMERICA
4th, 5th, 14th and 10th Amendments ............................................................................... 4
Supremacy Clause ...................................................................................................... 14
Ex post Facto protection .........................................................................................19
Article I, § 9 and § 10 ................................................................................................. 19
CONSTITUTION OF THE STATE OF COLORADO
Amendment 20 .................................................................................................... 4, 8, 12
STATUTES
C.R.S. 24-34-402.5 ................................................................................................. 4, 7
C.R.S. 8-73-108(5)(e)(IX.5) ............................................................................. 1, 12, 15
21 U.S.C. 802 (definitions) ................................................................................... 16, 18
21 U.S.C. 822(c) .............................................................................................. 1, 13, 15
21 U.S.C. 903 ............................................................................................................. 18
CASE LAW
Baltimore & Ohio R. Co. v. United States, 261 U.S. 592
(1923) ....................................................................................................................... 6
Beinor v. ICAO, 10 CA 1685(2011) ............................................................... 2, 11, 14
Bond v. U.S., 09-1227, June, 2011 ....................................................................... 16, 17
Breard v. Green, 523 U.S. 371 (1998) ...................................................................... 18
Brady v. U.S., 397 U.S. 742, 748 ................................................................................. 7
Dennis Watson v. Public Service of Colorado, 207 P. 3d 860
(Colo.App. 2008) ......................................................................................................... 12
Miller v. U.S., 230 ......................................................................................................... 7
Reid v. Covert, 354 U.S. 1 (1957) .............................................................................. 18
State v. Nieto, 993 P. 2d 493, 501(Colo. 2006) ........................................................ 12
MISCELLANEOUS
Blacks Law Dictionary ............................................................................................... 11
International Drug Treaty of 1988 ............................................................................. 17
STATEMENT OF CASE & ISSUES PRESENTED
This action is an appeal from a ruling denying Claimant unemployment
benefits. Claimant was terminated after a random drug test revealed trace amounts of
marijuana in his system. The ruling cited § 8-73-108(5)(e)(IX.5), C.R.S (presence of
not medically prescribed controlled substance in system during working hours). At the heart of this appeal is the fact that it is obvious the ICAO did not read the testimony in the transcript, nor the legal authorities in Meyers’ brief – resulting in a denial of due process.
Question 1: The Ruling ignored facts and evidence regarding the vagueness
of the employer’s “drug policy” which precluded the employee’s ability to act in a reasonable manner and comply with the policy. Instead, the Ruling assumes the Policy at issue here was clear and forthright.
Question 2: The Ruling usurps the intent of the Colorado Constitution by
interpreting a “physician’s certification” (which is required for consumption of medical marijuana) as something other than a prescription, which causes an “absurd result”. (This brief addresses the dilemma caused by the (federal) DEA’s control over a State licensed physician’s practice of medicine).
Question 3: The Ruling ignored Claimant’s argument addressing federal law
which carves out an exception for medical marijuana (21 U.S.C. § 822(c)) but instead the Ruling quoted Beinor v. ICAO, 10 CA 1685 (Aug 18, 2011) which addressed a different federal statute not applicable to the facts in this case.
Question 4: If the Beinor decision is the basis for denying Claimant benefits –
then the application of the Beinor decision violates Claimant’s right to be protected from the application of ex post facto laws. (Claimant was fired on May 10, 2011 and Beinor was entered on August 18, 2011).
NATURE OF CASE, COURSE OF PROCEEDINGS AND DISPOSITION BELOW Nature: This case raises constitutionally protected issues, from the right of the
people to self-govern to the limits of International treaty versus federal and state law. This case raises the issue of a vague and ambiguous “drug policy” that is deceptive by omission and entraps an employee. This case also addresses the implied contract law as created by the Handbook.
Course, Proceedings & Disposition: Claimant Meyers was terminated by the
employer, Dish Network, who identify themselves as Echosphere/Echostar in this action, on May 10, 2011. Meyers applied for unemployment benefits, and was denied. He appealed to a Hearing Officer who affirmed the denial. Meyers appealed to the ICAO who also affirmed the denial on September 22, 2011. Relying on his right to due process before a Court, Meyers presents his arguments here, for a de novo review.
STATEMENT OF FACTS
1. At the time of his termination from employment, Meyers was a
registered user of medical marijuana, with a “card” issued by the State of Colorado
on November 22, 2010. See Claimant’s Exh. A & B, CD record at pages 55-57,
and “Findings of Facts” recorded by the hearing officer’s decision dated July 6, 2011. 2. The employer’s drug policy that was provided to Claimant is in the record here as Claimant’s Exh. D, CD record at page 59.
3. The employer stated, on the record, that Exh. D (drug policy), had been revised subsequent to its publication in the employee handbook given to Meyers in 2007, to clarify that medical marijuana was considered an illegal drug regardless of State Law, but not provided to Claimant. Tr. 20:7, (linked here or on
CD record at page 79).
4. Employer had no exhibit for the alleged revised drug policy and no
signature proving that Claimant was made aware of a revised drug policy, and Claimant denied being taught the new drug policy. Tr: 54:12 – 57:13, linked
here or on CD record at page 113.
5. Meyers was not terminated due to performance issues. Tr: 48:23,
linked here or on CD record at 107.
SUMMARY OF ISSUE 1 – Vague/Undisclosed Drug Policy
Meyers asserts that the drug policy in the Employee Handbook is vague in
that it does not reveal a “zero tolerance” policy nor does it define “illegal drugs”.
The contract between the Employee and the Employer is unconscionable due to
deliberate vagueness. The policy at issue here, as written, precludes a meeting of
the minds and therefore renders the policy void.
Standard of Review – 4th, 5th Amendment and 14th Amendments,
Amendment “20”, Colorado’s Public Policy, C.R.S. § 24-34-402.5 and Contract Law
Meyers has been deprived of his right to enjoy a benefit – unemployment
insurance – without due process, in violation of the 5th and 14th Amendments.
Additionally, Public Policy, § 24-34-402.5, C.R.S., makes it illegal for an
employer to prohibit a lawful activity. The use of medical marijuana within
carefully defined medical parameters is lawful in the State of Colorado. Amendment 20 does NOT limit its protection to criminal actions, only, as has been assumed (fully argued below). Lastly, Meyers had the right to privacy under the 4th amendment.
ARGUMENT - ISSUE 1 – Undisclosed Drug Policy The ICAO rejected Meyers claims by holding that the drug policy at issue
here warned employees of potential random drug tests, and Meyers signed a consent for the same (Decision, page 2). THAT’S NOT THE ISSUE! Meyers had
no objection to drug tests. The issue is that medical marijuana was not disclosed
as a prohibited drug!
When asked what the drug policy covered, the employer’s representative
responded by quoting the Company’s Policy (Tr. 23:16) linked here or on CD
record at p. 82, which forbids an employee from “the possession, use or sale of
illegal drugs . . . on company property . . . in working areas, including parking lots
or while on company business on company time . . .”. See Tr.18:5; Tr. 19:9, linked here or on CD record at p. 77. When asked, the company representative
could not identify any time when Meyers had possessed, used or sold illegal using lawful, medical marijuana in the privacy of one’s own home, would violate the employer’s drug policy. In so doing, the ICAO, in concert with Dish Network, is violating Meyers’ right to property (unemployment benefits) and violated the most fundamental element of contract law, to wit: a clear intent between the parties. Of course, the company asserts that employment with them is not under a contract - but the maxim of law holds that if it “walks like a duck, quacks like a duck – then it IS a duck.” The contract is implied due to the signature elements. Contract law has been interpreted by the U.S. Supreme Court since the beginning of time, and holds that implied contracts are subject to the same obligations as
drugs on company property or on company time, Tr: pp 18-19, linked here or on
CD record at p. 77. Meyers asserts that the policy failed to inform the employee
that
express contracts. Baltimore & Ohio R. Co. v. United States, 261 U.S. 592
(1923); 43 S.Ct. 425, 67 L.Ed. 816 (1923). There, the US Supreme Court held that a contract must be based upon a meeting of the minds – not vague, ambiguous and deceptive terms, as is here with an undisclosed drug policy for which a signature was required. "An agreement ... founded upon a meeting of minds, which, although not embodied in an express contract, is inferred, as a fact, from conduct of the parties showing, in the light of the surrounding circumstances, their tacit understanding." Baltimore & Ohio R. Co. v.
United States, 261 U.S. 592, 597 (1923)
The reasoning is that a party should not be held to a contract that they
were not even aware existed. It is only when all parties involved are aware of the
formation of a legal obligation is there a meeting of the minds.
The company, (as opposed to law enforcement), has no lawful authority to control what a person does in their own home, outside of company hours. The fact that medical marijuana (lawful under Colorado Law) showed up in a random drug test is as immaterial as any other not medically prescribed controlled substance such as Ma Huang, a botanical source of ephedrine, that can be purchased at just about any grocery or drug store in Colorado. America has long protected the right to privacy, and testing for lawful drugs is an invasion of that privacy when the employee is not advised that a lawful drug would be classified as illegal. “Waivers of Constitutional Rights, not only must they be voluntary, they must be knowingly intelligent acts done with sufficient
awareness.” Brady v. U.S., 397 U.S. 742, 748. The exercise of a constitutionally
protected right cannot be converted into a crime.” Miller v. U.S. 230 F. 486, 489.
Meyers relied on Colorado’s Public Policy when making the decision to employ homeopathic pain relief in the privacy of his own home, on his own time. 24-34-402.5. Unlawful prohibition of legal activities as a
condition of employment.
(1) It shall be a discriminatory or unfair employment practice for
an employer to terminate the employment of any employee due
to that employee's engaging in any lawful activity off the
premises of the employer during nonworking hours unless such a
restriction:
(a) Relates to a bona fide occupational requirement or is
reasonably and rationally related to the employment activities
and responsibilities of a particular employee or a particular group
of employees, rather than to all employees of the employer; or
(b) Is necessary to avoid a conflict of interest with any
responsibilities to the employer or the appearance of such a
conflict of interest.
Title 24-34-402.5 protects an employee from discharge for doing something
lawful on their own time. The exception to that provision is if the employee does something detrimental to the employer – interpreted by the courts as something like simultaneously working for a competitor, or exposing trade secrets. Lawfully
consuming medical marijuana on one’s own time does not pose a conflict to the
employer. Additionally, Meyers is NOT accused of being impaired due to residual medical marijuana in his system, therefore, no such position can be taken by the employer now. Meyers had received multiple awards for performance during his time with the Company. Tr. 48:23, linked here or on CD record at p. 107.
While Echosphere LLC insisted that the Policy had been changed
presumably to clarify their take on medical marijuana – there is no evidence in the
record of that assertion. Meyers denied having been alerted to that fact, Tr. 56:23
through Tr. 57:7, linked here or on CD record at p. 115. When the hearing officer
asked the employer if Meyers had signed a subsequent receipt for a revised policy, the employer admitted that there was no such receipt in existence, Tr. 55:12,
linked here or on CD record at p. 114.
Amendment 20:
(4) (a) A patient may engage in the medical use of marijuana, with no more marijuana
than is medically necessary to address a debilitating medical condition. A patient's
medical use of marijuana, within the following limits, is lawful: {Emphasis added}
(I) No more than two ounces of a usable form of marijuana; and (II) No more than six marijuana plants, with three or fewer being mature, flowering plants that are producing a usable form of marijuana. . . . (b) Nothing in this section shall require any employer to accommodate the medical use of marijuana in any work place. [Emphasis added].
Beinor has held that Amendment 20 merely provides an affirmative defense
to a criminal prosecution. In fact (4)(a)(I)(II) (quoted above) clearly and unequivocally provides that medical marijuana IS LAWFUL under criminal and
civil jurisdictions. The ICAO flatly stated the party line in their imaginative
interpretation of the employer “accommodation” clause. While Amendment 20
does conclude by stating that employers are not required to “accommodate” the
legal use of marijuana – no one is asking them to. The Beinor Court stated that
Amendment 20 did NOT give medical marijuana users,
“. . . an unlimited constitutional right to use the drug in any
place or in any manner.”
GOOD GRIEF CHARLIE BROWN! Who said medical marijuana
users wanted to use medical marijuana anywhere but in their own homes? If not
there – where? They are not asking for an unfettered right to use medical
marijuana at work! The Beiner court also stated that,
“ Thus, the Colorado Constitution does not give medical
marijuana users the right to violate employers’ policies and practices regarding the use of controlled substances.”
No one is violating the employers’ policies when using medical marijuana at home. What about the citizen rights? Medical marijuana users are not using it at
work, the only place the amendment says they cannot use it! Therefore users are
not “violating” the employer’s policy nor the limitations imposed by Amendment 20. Amendment 20 precludes any obligation upon the employer to provide a
smoking room on company premises and no one is asking them to provide the same. PLEASE DO NOT USE THE DICTA IN BEINOR’S ARGUMENTS TO
SET PRECEDENT! No one is using medical marijuana at the work place. So, by what flight of fancy does the ICAO interpret an employee’s lawful activity in his own home a violation of a policy because the employer does not have to “accommodate” that private activity? There is no definition for “accommodation” - so it is unlawful for the Colorado Courts to manufacture a convenient definition for accommodation that perversely negates the whole intent of Amendment 20 and excludes an entire class of citizens, Colorado workers, who cannot help but have trace amounts of medical marijuana in their systems during the work day when they’ve lawfully medicated in the privacy of their own homes 3 days (even 3 months) earlier. It is willful and wanton discrimination. Amendment 20 does not give an employer license to interfere with an
employee’s privacy rights at home. Meyers is not accused of smoking or using
medical marijuana in the workplace. Meyers was in full compliance with
Colorado’s provision for using medical marijuana and also in compliance with federal Drug Free Workplace guidelines which forbids “unlawful manufacture,
distribution, dispensing, possession or use of any controlled substance . . . at the
site”. Tr.46:15 and Tr. 18:5, or CD record at page 105 and 77.
Lastly, why does the Beinor decision justify an employer’s arbitrary
classification of medical marijuana an illegal drug? It is not.
SUMMARY OF ARGUMENT - ISSUE 2 – “Not medically prescribed”
The use of medical marijuana must be authorized by both a physician and
the State Regulatory Board. Therefore, it is supervised and qualifies as
“prescribed”. Black’s Law Dictionary defines “prescribe” as “ in a medical sense
“prescribe” means to direct, designate or order use of a particular remedy, therapy, medicine or drug.”
Standard of Review – Issue 2 – “not medically prescribed”
The ICAO quoted this Court’s holding in Beinor v. ICAO, 10 CA 1685 (Aug.
2011) to decide that medical marijuana is not “medically prescribed.” The Beinor
court essentially stated that it is impossible for a physician in Colorado to “prescribe”
medical marijuana because our doctors are obligated to be registered with the DEA, and must accept the federal government’s classification of marijuana as illegal under all circumstances, or be prosecuted for something (without saying what). The Beinor
court quoted letters, policies and memos issued by federal agencies - but NOT LAW -- to arrive at this holding. Meyers will address this defect in the next Issue (below). As for the “not medically prescribed” issue related to currently existing law
- Meyers raises the “absurd result” argument. Any interpretation of law that results in absurdity is void. The Colorado Courts have held that they must seek to “avoid an interpretation that leads to an absurd result.” Dennis Watson v. Public Service
of Colorado, 207 P. 3d 860 (Colo. App. 2008); State v. Nieto, 993 P. 2d 493, 501
(Colo. 2006). “There is a presumption that the General Assembly intends a just and reasonable result when it enacts a statute, and a statutory construction that defeats the legislative intent will not be followed.” Kauntz v. HCAHealthone,
LLC, 174 P.3d 813, 816 (Colo.App. 2007). We must adopt
a construction that will serve the purposes underlying the statute, and we avoid interpretations that lead to an absurd result. Wolf Creek Ski
Corp. v. Bd. of County Comm’rs, 170 P.3d 821, 826 (Colo.App. 2007); Gumina v. City of Sterling, 119 P.3d 527, 530 (Colo.App. 2004).
ARGUMENT – ISSUE 2
The ICAO rejected Meyers’ claims for protection under public policy by
quoting § 8-73-108(1)(a) and (5)(e)(IX.5) assuming Title 8 classifies a drug as
illegal if it is not “medically prescribed”. The fact that a physician is required to
authorize the use of medical marijuana demonstrates the intent of the law. It is this
court’s responsibility to uphold the laws of Colorado and if those laws are in conflict to the point where a responsible person cannot know what is lawful - then the decision should be construed in favor of the Claimant. To assert that the physician’s certification for medical marijuana is not a prescription is absurd. To assert that a physician must defer to the federal government’s classification of medical marijuana as illegal is unconstitutional, and
an unlawful reach into State jurisdiction, because the federal government has no legislative power over the states, argued fully below.
SUMMARY OF ARGUMENT - ISSUE 3 – Federal Law versus State Law
Marijuana for medical use is legal in Colorado. It is illegal if used for
recreational purposes. Federal law classifies marijuana as a Schedule I controlled
substance, and illegal unless authorized for medical purposes under 21 USC
822(c). Notwithstanding marijuana for medical purposes IS legal under federal
law, federal jurisdiction is limited to the 10 square miles around Washington D.C., and to International Issues. Federal Statutes have no authority within the four corners of a State – hence the States enact their own laws. Meyers was not crossing state lines, therefore, federal law has no bearing on this case and is not applicable to Meyers. Nevertheless, because federal law carves out an exception for medical marijuana, as not “illegal,” then an employer cannot be allowed to classify it as illegal for purposes of a drug policy.
Standard of Review – Issue 3 – Supremacy Clause
Art. I Section 8 of the U.S. Constitution states that Congress shall “exercise
exclusive Legislation in all cases whatsoever over such District (not exceeding ten
Miles square) as may by cession of particular States, and the Acceptance of
Congress, . . .”. Additionally, the limitations on federal legislation extends to
treaty, interstate commerce and international law, Article I, Section 9, U.S.
Constitution. The States are not subjects of the Federal government and not obligated to enforce federal legislation that is not applicable to state citizens.
ARGUMENT – ISSUE 3
The ICAO quoted this court’s decision in Beinor v. ICAO, Case No 10CA
1685 to reject Meyers arguments regarding the application of federal drug laws. Meyers asserts that medical marijuana is not illegal under either state or federal law.
State Law: Medical marijuana consumption is lawful when its use is
approved by a physician and the user is registered with the State. While the Beinor
decision held that Amendment 20 only protects a user from criminal prosecution,
and is not applicable to civil matters, Meyers asserts that the Amendment does
provide protection to the employee with the language that (a) clearly states that
medical marijuana is lawful and (b) addresses the use of medical marijuana in the
work place (a civil jurisdiction). Amendment 20. Employers are not required to accommodate the medical
use of marijuana “in any work place” and Meyers is not accused of using medical marijuana in the workplace. Meyers was in full compliance with
Colorado’s provision for using medical because he was not using it “at the site”.
Tr.46:15 and Tr. 18:5.
What is illegal? C.R.S. § 8-73-108(e)(IX.5), The Colorado Employment
Security Act, forbids “illegal” drug use. It states:
The presence in an individual's system, during working hours, of not medically prescribed controlled substances, as defined in section 12-22-303 (7), C.R.S. [Alcohol provisions omitted] . . .
CRS § 12-22-303 states: (7) "Controlled substance" shall have the same meaning
as in section 18-18-102 (5), C.R.S.
CRS § 18-18-102 states: (b) The term does not include (II) A substance for which
there is an approved drug application, so long as such substance is in its intended
and unconverted form; . . . [Emphasis added].
Clearly, CRS 8-73-108(5)(e)(IX.5) provides for a controlled substance (medical marijuana) to be used in “an approved drug application” and therefore, Meyers’ lawful use of medical marijuana, in the privacy of his home on his own time, is an exception that does not conflict with the provisions of CRS 8-72- 108(5)(e)(IX.5).
Federal Law: Medical Marijuana at the Federal level: Consumption of medical
marijuana is not prosecuted by the Federal Drug Enforcement Administration because 21 USC 822 (c) carves out an exception to Marijuana for medical use.
21 USC 822 (c) states:
(c) Exceptions The following persons shall not be required to register and may lawfully possess any controlled substance or list I chemical under this subchapter:
16
(1) An agent or employee of any registered manufacturer,
distributor, or dispenser of any controlled substance or list I
chemical if such agent or employee is acting in the usual course
of his business or employment.
(2) A common or contract carrier or warehouseman, or an
employee thereof, whose possession of the controlled substance or
list I chemical is in the usual course of his business or
employment.
(3) An ultimate user who possesses such substance for a purpose
specified in section 802(25) of this title. The definition of an “ultimate user” is identified in 21 USC 802 as:
(27) The term "ultimate user" means a person who has lawfully obtained, and
who possesses, a controlled substance for his own use or for the use of a member of his household or for an animal owned by him or by a member of his household.
Therefore, medical marijuana is legal under federal law and it is illegal
under Title 24 (Public Policy) for an employer to fire an employee for using
medical marijuana. (See Issue1).
Supremacy Clause: The U.S. Constitution limits federal legislation to “10
square miles of Washington D.C.” pursuant to Article I § 8. The federal government does acquire certain powers over the States through Interstate Commerce (when the issue crosses state lines). With regard to the “Supremacy Clause” - Article VI of the Constitution only allows federal law to be supreme when those laws are “made in pursuance to the Constitution”. Treading on State
Law is not “in pursuance to the Constitution.” The U.S. Supreme Court recently (June 16, 2011) issued a decision , Bond v. U.S., 09-1227, which reiterates that
State Sovereignty cannot be usurped by the federal government. If, and when, a
federal statute is enacted that exceeds Congress’ enumerated powers – it “ violates
the Tenth Amendment. . . In short a law beyond the power of Congress, for any reasons, is “no law at all.”” So sayeth Justice Ginsberg and Justice Breyer.
Colorado has enacted laws governing the medical use of marijuana and the Federal government cannot lawfully impose their own form of “law” over Colorado
citizens. Nothing in the Constitution gives Congress the power to enact drug laws for the states. The only lawful reason the feds have to prosecute drug crimes (as limited by the Constitution) is when the crime involves acts committed interstate or when it involves foreign actors – not when a registered Colorado Citizen is using marijuana in their own home. In the Bond decision, the Supreme Court
gives us a refresher course on Federalism and the construction of our 3-branch government. The Supreme Court held, unanimously, in Bond: “[Federalism]
allows States to respond, through the enactment of positive law, to the initiative of
those who seek a voice in shaping the destiny of their own times without having to
rely solely upon the political processes that control a remote central power . . .
Impermissible interference with state sovereignty is not within the enumerated
powers of the National Government, … and action that exceeds the National
Government’s enumerated powers undermines the sovereign interest of States.” In
addition, Treaty’s such as The United States Conference for the Adoption of a
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances,
(1988) to which Title 21, U.S.C., responds, does not supersede the protections in
the U.S. Constitution. Reid v. Covert, 354 U.S. 1 (1957). It should also be noted,
that the Treaty related to drug control actually provides an exception for medical use of any controlled drug, see Art 14 Sec. 2, of the Treaty (also see attached):
http://www.unodc.org/pdf/convention_1988_en.pdf Therefore, even IF there is a federal law that prohibits the States from enacting laws for the medical use of marijuana – that federal law is rendered unenforceable under the U.S. Constitution, Bond v. U.S., supra; Breard v. Green,
523 U.S. 371 (1998). (See highlighted). Lastly, Federal law provides for honoring the sovereignty of the States, at
21 USC 903, it states:
Application of State law: No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together. To clarify whether Sec. 903 refers to the 50 states (and not international entities):
21 USC 802. (26) The term "State" means a State of the United
States, the District of Columbia, and any commonwealth, territory, or possession of the United States.
SUMMARY OF ISSUE 4 – Ex Post Facto Application of Law.
Meyers was denied benefits by the ICAO with complete reliance on the
Court’s holding in Bienor. Meyers was fired on May 10, 2011. The Beinor
decision came out in August, 2011. It is unfair to apply an interpretation of law
retroactively.
Standard of Review – Issue 4
The U.S. Constitution at Article I § 9 states, “No Bill of Attainder or ex post facto
law shall be passed.” This command is imposed upon the States at Art. I § 10.
ARGUMENT ISSUE 4
It is patently unfair to apply the Beinor decision to Meyers when such
decision did not even exist when Meyers was fired. To do so clearly violates the constitutional protection against ex post facto laws. (Meyers was fired on May 10,
2011 and Beinor was issued on August 18, 2011). It is fundamentally unfair to
deny the Claimant a benefit simply because he was acting under the circumstances as any reasonable person would under Colorado State law. If, as in this case, the law is unclear and seemingly contradictory, relying on art of words to draw fine lines between fair and unfair, reasonable and unreasonable, then it is the clear duty of this Court to overturn the ICAO’s ruling while sending a message to Congress and the legislature to clarify. Clearly Claimant has the right to unemployment benefits as he was wrongfully terminated due to detrimental reliance upon State
law and a vague company drug policy. To the Court of Appeals: This is an easy
call – simply point the finger at Dish Network’s vague drug policy and you can avoid answering the sensitive political issues raised here. Claimant gets his benefit, as he should, and Dish Network (a/k/a Echosphere, a/k/a Echostar, or whatever other corporate shell they hide behind) gets a minor slap on the wrist - as they should. Now that would be fair.
RELIEF REQUESTED
Appellant requests a reversal of the Hearing Officer’s Decision to deny him
State unemployment benefits.
Respectfully submitted,
_____________________
Charles Meyers 11/2/2011