dissenting.
I agree with the majority's conclusion that the medical use of marijuana by an employee holding a registry card under article XVIII, section 14 of the Colorado Constitution (medical marijuana amendment) is not pursuant to a prescription and therefore does not constitute the use of "medically prescribed controlled substances" within the meaning of section 8-78-108(5)(e) (IX.5), C.R.S8.2010. The question thus becomes whether application of section 8-78-108(5)(e) (IX.5) to deny claimant benefits here violated the medical marijuana amendment. The majority holds that it did not, because in its view, the medical marijuana amendment merely created an immunity from eriminal prosecution, and not a separate constitutional right. Because I disagree with that conclusion and believe that the amendment, in fact, established a right to possess and use medical marijuana in the limited circumstances described therein, 1 respectfully dissent.
I. Constitutional Construction
"In construing a constitutional provision, our obligation is to give effect to the intent of the electorate that adopted it." Harwood v. Senate Mojority Fund, LLC, 141 P.8d 962, 964 (Colo.App.2006). We look to the words used, reading them in context and according them their plain and ordinary meaning. Id. If the language is clear and unambiguous, we must enforce it as written. Davidson v. Sandstrom, 88 P.8d 648, 654 (Colo.2004).
"Language in an amendment is ambiguous if it is 'reasonably susceptible to more than one interpretation.'" Id. (quoting Zaner v. City of Brighton, 917 P.2d 280, 288 (Colo. 1996)). If the language of a citizen-initiated measure is ambiguous, "a court may ascertain the intent of the voters by considering *979other relevant materials such as the ballot title and submission clause and the biennial 'Bluebook,' which is the analysis of ballot proposals prepared by the legislature." In re Submission of Interrogatories on House Bill 99-1325, 979 P.2d 549, 554 (Colo.1999). "We consider the object to be accomplished and the mischief to be prevented by the provision." Harwood, 141 P.3d at 964.
Here, as the majority points out, several provisions of the medical marijuana amendment state that the authorized use of medical marijuana establishes an affirmative defense or an exception from the state's criminal laws for the possession or use of marijuana. Seq, e.g., Colo. Const. art. XVIII, § 14(2)(a)-(c), (4)(b). Section 14(4)(a) of that amendment, however, provides, "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 [certain listed] limits, is lawful ...." (Emphasis added.)
Because section 14(2)(a)-(c), on the one hand, and (4)(a), on the other hand, appear to be separate and do not modify one another, in my view, one could reasonably read the amendment, as the majority does, merely to establish an affirmative defense or exception to prosecution for possession or use of marijuana. Conversely, one could reasonably read the amendment as creating a right to use medical marijuana (within established limits). Accordingly, I believe that the language of the amendment is ambiguous. See Davidson, 88 P.3d at 654 (language in an amendment is ambiguous if it is reasonably susceptible of more than one interpretation). Thus, I turn to extrinsic aids to attempt to ascertain the voters' intent in passing this amendment. See In re Submission of Interrogatories, 979 P .2d at 554.
As presented to Colorado voters, the ballot title of the medical marijuana amendment read, in pertinent part:
An amendment to the Colorado Constitution authorizing the medical use of marijuana for persons suffering from debilitating medical conditions, and, in connection therewith, establishing an affirmative defense to Colorado criminal laws for patients and their primary caregivers relating to the medical use of marijuana; establishing exceptions to Colorado criminal laws for patients and primary caregivers in lawful possession of a registry identification card for medical marijuana use and for physicians who advise patients or provide them with written documentation as to such medical marijuana use; - defining "debilitating medical condition" and authorizing the state health ageney to approve other medical conditions or treatments as debilitating medical conditions....
Colorado Legislative Council, Research Pub. No. 475-0, An Analysis of 2000 Ballot Proposals (Bluebook) 85 (2000) (emphasis added).
Although this title may not be a model of clarity, I read it to provide that the general intent of the amendment was to authorize the medical use of marijuana, and then to list specific provisions that would implement that general intent.
My interpretation finds further support in the Bluebook, which provided an analysis of the medical marijuana amendment. That analysis nowhere mentioned any immunity from or exception to state criminal laws. Rather, it stated, in pertinent part:
The proposed amendment to the Colorado Constitution:
e - allows patients diagnosed with a serious or chronic illness and their caregivers to legally possess marijuana for medical purposes....
allows a doctor to legally provide a seriously or chronically ill patient with a written statement that the patient might benefit from medical use of marijuana. ...
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Current Colorado and federal eriminal law prohibits the possession, distribution, and use of marijuana. The proposal does not affect federal criminal laws, but amends the Colorado Constitution to legalize the medical use of marijuana for patients who have registered with the state.
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*980Patients on the registry are allowed to legally acquire, possess, use, grow, and transport marijuana and marijuana paraphernalia. Employers are not required to allow the medical use of marijuana in the workplace.
Id. at 1 (emphasis added).
Similarly, in the section of the Bluebook entitled, "Arguments For," the proponents of the amendment stated, "Using marijuana for other than medical purposes will still be illegal in Colorado. Legal use of marijuana will be limited to patients on the state registry." Id. at 2 (emphasis added).
"Legalize" means "[tlo make lawful; to authorize or justify by legal sanction." Black's Low Dictionary 977 (Oth ed. 2009); accord Webster's Third New International Dictionary 1290 (2002) (defining "legalize" to mean "to make legal: give legal validity or sanction to"). Accordingly, in my view, the medical marijuana amendment was intended not merely to create a defense to a charge of marijuana possession or use, but rather to make medical marijuana possession and use legal under the conditions identified in the amendment.
Although in Roe v. TeleTech Customer Care Mgt. (Colo.), LLC, 171 Wash.2d 786, 257 P.8d 586, -- (2011), the Washington Supreme Court reached the opposite conclusion, I note that the language of the Washington State Medical Use of Marijuana Act is quite different from that of the relevant portions of Colorado's medical marijuana amendment. For example, as adopted by Washington voters, the Washington act's statement of purpose provided, as pertinent here,
Therefore, the people of the state of Washington intend that ... [qualifying patients with terminal or debilitating illnesses who, in the judgment of their physicians, would benefit from the medical use of marijuana, shall not be found guilty of a crime under state law for their possession and limited use of marijuana....
Wash. Rev.Code $ 69.51A.005 (version in ef-feet from adoption in 1998 until amended July 22, 2007) (quoted in Roe, 257 P.8d at 590). The act further stated the intent of the voters to provide a defense to caregivers and physicians and to provide an affirmative defense to both qualifying patients and caregivers. Wash. - Rev.Code - §§ 69.51A.005, 69.51A.040(2). As noted above, Colorado's medical marijuana amendment is not similarly limited, when read as a whole.
Nor am I persuaded that section 14(10)(b) of the medical marijuana amendment provides the broad exception that the Panel asserts. That section provides, "Nothing in this section shall require any employer to accommodate the medical use of marijuana in any work place." Colo. Const. art. XVIII, § 14(10)(b). "Medical use," in turn, is defined as
the acquisition, possession, production, use, or transportation of marijuana or paraphernalia related to the administration of such marijuana to address the symptoms or effects of a patient's debilitating medical condition, which may be authorized only after a diagnosis of the patient's debilitating medical condition by a physician or physicians, as provided by this section.
Id. at § 14(1)(b).
In my view, these provisions are clear and unambiguous and refer solely to the acquisition, possession, production, use, or transportation of medical marijuana, or paraphernalia related to it, in the workplace I do not believe that these provisions encompass the presence of marijuana in one's blood after the lawful use of medical marijuana at home. In particular, I am not persuaded that the presence of medical marijuana in one's blood amounts to either "use," which I believe connotes contemporaneous - consumption, - or "possession," which I interpret as holding at one's disposal, within the meaning of the above-quoted definition. If it did, then under a zero-tolerance policy like that at issue here, many patients who are eligible to use medical marijuana would likely abandon their right to do so, because even lawful use at home would put their benefits, and perhaps even their jobs, at risk. I do not believe that the voters who passed the medical marijuana amendment intended section 14(10)(b) to sweep that broadly. CJ § 24-84-402.5, C.R.S.2010 (providing that, subject to certain exceptions, it is a discriminatory or unfair employment practice for an employer to terminate the em*981ployment of an employee for engaging in lawful activity off the premises of the employer during nonworking hours).
Given my view that sections 14(1)(b) and (10)(b) of the medical marijuana amendment are unambiguous, I would not resort to extrinsic aids to ascertain their meaning. Were I to do so, however, I believe that the available extrinsic evidence supports my interpretation of those provisions. Thus, as noted above, the analysis contained in the Bluebook noted, "Employers are not required to allow the medical use of marijuana in the workplace." Bluebook, at 1. To me, this analysis makes clear that the voters' intention was precisely what the amendment says it was, namely, to give employers the right to prohibit the acquisition, possession, production, use, or transportation of medical marijuana, or paraphernalia related to it, in the workplace.
For these reasons, I would conclude that claimant had a constitutional right to possess and use medical marijuana pursuant to the limitations contained in the medical marijuana amendment. I recognize that such an interpretation could potentially implicate Supremacy Clause issues, given prevailing federal law. In my view, the same issues could apply to the majority's interpretation because the medical marijuana amendment creates a regulatory scheme that potentially conflicts with federal law. Because no party has raised any issue concerning the Supremacy Clause, however, I do not address that question.
II. Constitutionality of Denial of Benefits
The question thus becomes whether the denial of benefits to claimant here was consistent with his constitutional rights. In my view, it was not.
"[EJven though a person has no 'right' to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests ...." Perry v. Sindermamm, 408 U.S. 598, 597, 92 S.Ct. 2694, 38 LEd.2d 570 (1972); accord 44 L+i-quormart, Inc. v. Rhode Island, 517 U.S. 484, 518, 116 S.Ct. 1495, 184 L.Ed.2d 711 (1996); Alliance for Open Society Int'l, Inc. v. U.S. Agency for Int'l Dev., 651. F.8d 218, -- (2d Cir.2011). This rule, known as the doctrine of "unconstitutional conditions," however, is not absolute. Thus, the doctrine allows the government to condition the grant of a discretionary benefit on the release of a constitutional right when the government has an interest that outweighs the particular constitutional right at issue. See Lorenz v. State, 928 P.2d 1274, 1288 (Colo.1996).
The United States Supreme Court has long held that unemployment compensation benefits constitute one type of governmental benefit that cannot be conditioned on a willingness to abandon one's constitutional rights. See, eg., Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 186, 1839-42, 107 S.Ct. 1046, 94 L.Ed.2d 190 (1987); Thomas v. Review Bd., 450 U.S. 707, 716-18, 101 S.Ct. 1425, 67 LEd2d 624 (1981); Sherbert v. Verner, 874 U.S. 898, 408-06, 88 S.Ct. 1790, 10 L.Ed.2d 965 (1968); see also Everitt Lumber Co. v. Indus. Comm'n, 39 Colo.App. 336, 389 & n. 3, 565 P.2d 967, 969 & n. 3 (1977) {holding that "invoking the protection of the Fifth Amendment, or refusing to waive its protections, may not be used as the basis for denying ... claimants unemployment compensation benefits," but not reaching the question of whether a denial of benefits due solely to a private employee's assertion of Fifth Amendment rights would be precluded on the basis that such action would amount to state action under the Fourteenth Amendment).
Thus, where the state conditions receipt of an important benefit on conduct protected by the constitution, or where it denies such a benefit based on constitutionally protected conduct, thereby putting substantial pressure on an adherent to modify his or her behavior and forgo the exercise of a constitutional right, a burden on that right exists. See Hobbie, 480 U.S. at 141, 107 S.Ct. 1046; Thomas, 450 U.S. at 717-18, 101 S.Ct. 1425. "While the compulsion may be indirect, the infringement upon [the exercise of that constitutional right] is nonetheless substantial." Thomas, 450 U.S. at 718, 101 S.Ct. 1425; *982accord Hobbie, 480 U.S. at 141, 107 S.Ct. 1046.
The foregoing case law thus suggests three issues to be decided in this case: (1) whether the denial of benefits here constituted state action; (2) if so, whether the state conditioned the receipt of such benefits on the release of a constitutional right; and (8) if so, whether the state's interest outweighs the constitutional right in question. I address each of these issues in turn.
First, in Hobbie, Thomas, and Sherbert, the Supreme Court made clear, albeit implicitly, that a denial of unemployment benefits arising from the exercise of a constitutional right constitutes state action. See Hobbig, 480 U.S. at 139-42, 107 S.Ct. 1046; Thomas, 450 U.S. at 716-18, 101 S.Ct. 1425; Sherbert, 374 U.S. at 403-06, 88 S.Ct. 1790. I would so hold here.
Second, for the reasons set forth above, I believe that claimant had a constitutional right to use medical marijuana, and in my view, the denial of benefits based on his exercise of that right infringed the right. Specifically, claimant was denied benefits solely because he exercised his constitutional right to use medical marijuana. In this regard, this case is similar to Hobbie, Thomas, and Sherbert, in which the claimants were denied benefits solely because they chose to exercise their religious beliefs, which resulted in their being discharged from employment. Hobbie, 480 U.S. at 188, 107 S.Ct. 1046; Thomas, 450 U.S. at 709-18, 101 S.Ct. 1425; Sherbert, 374 U.S. at 899-401, 88 S.Ct. 1790. In my view, the denial of benefits here, like the denial of benefits in Hobbie, Thomas, and Sherbert, placed substantial pressure on claimant to forgo the exercise of his constitutional rights, and thereby burdened his exercise of those rights. Although the compulsion may have been indirect, it was nonetheless substantial. See Hobbie, 480 U.S. at 141, 107 S.Ct. 1046; Thomas, 450 U.S. at 718, 101 S.Ct. 1425; of. Employment Div., Dep't of Human Resources of Oregon v. Smith, 494 U.S. 872, 888-85, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) (distinguishing Sherbert, Hobbie, and Thomas in a case, unlike the present one, in which the court construed the claimant to be seeking an exemption from generally applicable criminal law on free exercise of religion grounds); see also Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 559-77, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993) (Souter, J., concurring) (criticizing Smith and calling for its reexamination).
Finally, I perceive nothing in the record to suggest that the state's interest in denying benefits here outweighs claimant's constitutional rights. In their appellate brief, the People asserted, in conclusory fashion, that claimant had no constitutional right at all. Based on that premise, which I believe to be incorrect, the People did not proceed to address the balancing of interests and, thus, failed to indicate any state interest that outweighs claimant's rights. Because my own review of the record and applicable case law failed to reveal such an interest, I would conclude that the state's interests do not outweigh claimant's interests here.
For these reasons, I believe that claimant's lawful use of medical marijuana outside of the workplace-particularly where, as here, there is no evidence of any impairment of performance in the workplace-cannot constitutionally be used as a basis for denying claimant unemployment benefits.
Accordingly, I respectfully dissent.