Cannabis class action suit over insurance moves to federal court

A class action lawsuit challenging health insurance companies’ refusal to cover the costs of medical cannabis has been moved to federal court, for now. 

The lawsuit, filed earlier this year by a group of medical cannabis patients and one cannabis production company, originally asked a state district court judge to order New Mexico healthcare insurance companies to cover the costs of medical cannabis for members. The seven insurance providers in turn refiled the case in federal court, arguing that it is the appropriate venue because the plaintiffs’ claims are inherently tied to federal law. 

In June, six New Mexico medical cannabis patients and cannabis producer Ultra Health filed the class action suit, arguing that the recent enaction of a state law requiring insurance providers to cover the costs of behavioral health services should also include medical cannabis. In turn, last week, lawyers for the insurance companies moved the case to federal court, arguing that the federal Employee Retirement Income Security Act, which sets standards for many health insurance plans, “preempts” the plaintiffs’ claims. Lawyers for the insurance providers also justified moving the case to federal court because the lawsuit “necessarily raises disputed and substantial issues of federal law,” specifically whether the federal Controlled Substances Act allows a state to mandate coverage of a substance that is still federally illegal. The final claim justifying the move to federal court argues that the type of class action lawsuit the defendants filed should be in federal court. 

The lawsuit came just months after the enactment of a state law that prohibits cost-sharing for behavioral health services. After signing the enacting legislation, Gov. Michelle Lujan Grisham praised the bill in a press release. 

“We can make a real, meaningful difference by reducing the costs for those with insurance who seek help by eliminating the copays for behavioral health services – and I’m so proud and grateful to sign this priority measure,” Lujan Grisham said. 

The state agency tasked with regulating insurance has maintained that the department, which is one of the governor’s cabinets, does not have the authority to force insurance providers to cover cannabis. 

One of the plaintiffs is Albuquerque-based attorney and New Mexico state Sen. Jacob Candelaria.

Growing Forward: Let’s Do It Live! (In Las Cruces)

Southern New Mexico arguably has unique issues compared to the central and northern parts of the state. That rings especially true when it comes to the state’s cannabis industry which launched earlier this year after the passage of the Cannabis Regulation Act. 

Growing Forward, the collaborative podcast between New Mexico PBS and NM Political Report, recently visited Las Cruces and spoke with two lawmakers from the area and the director of the state’s Cannabis Chamber of Commerce for a special live episode. New Mexico state Sen. Carrie Hamblen, D-Las Cruces, has been a vocal proponent of both medical and non-medical-use cannabis. She said when she was growing up her brother smoked cannabis, but that she initially had a negative experience with it while she was in high school.    

“I grew up in El Paso, and I had an older brother. At the time, he was a frequent user of cannabis,” Hamblen said.

New Mexico communities bordering Texas hope to capitalize on cannabis sales

Believe it or not, Sunland Park, a southern New Mexico city with a reported population of just 17,000, has an entertainment district. The city’s entertainment district is currently home to an amusement park and a horse racetrack with its own casino and hotel. 

The city is so close to El Paso, Texas that it is oftentimes hard to tell where the two cities’ boundaries are without looking at a map. In fact, just north of the Sunland Park Racetrack and Casino, is the Stateline restaurant, which has an El Paso address, but a portion of the restaurant actually lies in New Mexico. Across the Rio Grande from the racetrack are just a few examples of how El Paso blends in with Sunland Park. 

In one neighborhood there are a series of streets that start in New Mexico, but dead-end in Texas, making it nearly impossible to get to several houses in Texas without first traveling through Sunland Park. 

The seemingly invisible border between the two cities is one reason some in Sunland Park are excited about an expected influx of cannabis retail stores in Sunland Park after adult-use cannabis became legal this year. There are currently only a few operational cannabis dispensaries in Sunland Park, but according to some accounts, there are nearly 30 more companies looking to open for business within walking distance from both Mexico and Texas. 

While it’s abundantly clear that recreational-use cannabis is still illegal in Texas, there is a gray area when it comes to the legal status of cannabis in Mexico.

Growing Forward: Tribal governments navigate legal cannabis

For years, as conversations and debates in Congress and state legislatures about legalizing cannabis took place, an often overlooked piece of the puzzle was what legalization meant for tribal governments. 

In most states that have legalized recreational-use cannabis, state governments have entered into agreements with sovereign nations, allowing tribes to set up their own cannabis programs. New Mexico recently signed on to two of those kinds of agreements, which allows both the Picuris and Pojoaque pueblos to grow and sell cannabis, which will presumably deter federal officials from intervening. 

Pojoaque Governor Janelle Roybal told Growing Forward, the collaborative cannabis podcast between NM Political Report and New Mexico PBS, that she and other tribal leaders were excited to sign the intergovernmental agreement with the state because it gives Pojoaque autonomy to regulate cannabis sales and see direct financial benefits. 

“For us, it gives us the opportunity under the agreement to have all regulatory authority for any dispensaries or even grow operations within our exterior boundaries, meaning they can’t get approved for a state license unless they get approval through our cannabis commission prior to that. So it allows us to have that extra protection for our tribe and our community,” Roybal said. 

Like many other tribal governments, Pojoaque’s physical boundaries are “checkerboarded,” meaning non-tribal land is surrounded by tribal land. Roybal said Pojoaque running its own independent cannabis program also allows the Pueblo to serve surrounding communities.  

“We are checkerboarded, so our library, our wellness center, our senior center, all those are open to the community, they’re not just for our tribal members,” Roybal said. “So when we expand or grow in any of our departments, it’s helping everyone in the area. So this is for not just our Pueblo, but for the whole community.”

Pojoaque’s Lt. Gov. Rafaela Sanchez said although the Pueblo’s cannabis program is not limited to those with a medical cannabis card, the primary focus of the program is holistic. 

“We really do look at it as a form of healing and wellness, and we want to bring that message across to the community, to the people,” Sanchez said.

Otero County Commission denies Couy Griffin legal help in personal lawsuit

On Friday, the Otero County Commission voted against providing legal counsel for controversial Commissioner Couy Griffin. Griffin himself did not vote on the issue but the other two commissioners voted against approving county-provided legal representation for Griffin in a lawsuit against him filed in state district court.   

Griffin has gained national attention, first for leading an organization in support of former President Donald Trump called Cowboys for Trump. Griffin again gained national attention for climbing over barricades during the Jan. 6 insurrection at the U.S. Capitol, an incident that would ultimately lead to a misdemeanor conviction of entering a federally restricted area. Griffin was acquitted of a disorderly conduct charge.

Facing removal from office, criminal charges, Otero County certifies election results

A controversy over certifying election results in Otero County that made national headlines ended quietly on Friday with a 2-1 vote in favor of certifying the results. 

Facing possible criminal charges and removal from office, Otero County Commissioners Gerald Matherly and Vickie Marquardt voted to certify the county’s primary election results, while Commissioner Couy Griffin stayed true to his word and voted against certification. All are Republicans. Griffin, who hours before, was sentenced by a federal judge for being in an unauthorized area during the Jan. 6, 2021 insurrection at the U.S. Capitol, said his reason for voting against the certification wasn’t “based on any evidence,” but instead his intuition. 

“It’s only based on my gut, my gut feeling, and my own intuition and that’s all I need to base my vote on the elections right there,” Griffin said. 

A breath later, Griffin criticized “the media” for ignoring facts that he said the commission had found that allegedly show state elections are fraudulent. 

“I still believe that our elections are fraudulent,” Griffin said. “I believe that we already have enough evidence to prove, to substantiate what the media keeps calling unsubstantiated.

NM cannabis regulation director resigns

After less than a year in the position, the director of New Mexico’s Cannabis Control Division has left the division. 

A spokesperson for the state’s Regulation and Licensing Division, which oversees the Cannabis Control Division, confirmed that Kristen Thomson resigned from her role as director of the division. 

In an email to NM Political Report, regulation and licensing spokesperson Bernice Geiger said Thomson’s resignation was in effect immediately. 

“Yesterday, June 16, 2022, Kristen Thomson submitted her resignation from the position of Director of the Cannabis Control Division of the Regulation and Licensing Department (RLD). Her resignation was effective at that time,” Geiger wrote. “We thank Kristen for her service to the Cannabis Control Division and the State of New Mexico and wish her success in her future endeavors.”

Prior to working for the Cannabis Control Division, Thomson was a lobbyist in Colorado. According to her lobbying company’s website, cannabis was one of a handful of issues Thomspon worked on. 

Geiger did not specify the reason for Thomson’s sudden departure but in a phone interview on Friday, Thomson said she never planned on the division director role being a “forever job” for her. 

“I am a creator, not a regulator,” Thomson told NM Political Report. “That just was never going to be the role for me.”

Thomson said she has long had a passion for helping to come up with “big policy ideas” that help to create positive economic change on the community level and that she had not imagined that she would ever head a government agency.

State Supreme Court orders Otero County Commission to certify primary election results

The New Mexico Supreme Court ordered three county commissioners in southern New Mexico to comply with state law by certifying the county’s primary election results. 

After the three-member Otero County Commission refused to certify election results during a meeting on Monday, New Mexico Secretary of State Maggie Toulouse Oliver filed a petition with the state’s high court asking justices to compel the county commission to follow state law and to do their ministerial duty. On Wednesday, the state supreme court granted the writ of mandamus and ordered the commissioners to “comply with the requirements set forth in [state law].”

The commission has until Friday to meet and certify the election or presumably face a contempt of court charge. 

Otero County Commission Chair Vickie Marquardt could not be reached for comment, but Commissioner Couy Griffin told NM Political Report that he plans to “hold the line.”

“What the state is trying to do to us by leveraging us, and taking control, essentially, of our commission board through the courts, I believe, is very unconstitutional and it’s an absolute disgrace.”

Griffin was found guilty earlier this year of illegally entering a restricted area during the Jan. 6, 2021 insurrection at the U.S. Capitol. 

State law requires that local governments certify election results within 10 days of an election and then send the results to state election officials for further certification. Until that process is completed, the election results are deemed unofficial and the winners of the primary election are not officially candidates. Holding up the certification process also means that Griffin’s colleague, Commissioner Gerald Matherly, who won his Republican primary race by 32 percentage points, is still not considered a general election candidate.

NM cannabis company, medical cannabis patients sue health care providers

The New Mexico Legislature last year approved a bill aimed at eliminating out-of-pocket costs for behavioral health. When Gov. Michelle Lujan Grisham signed the measure into law, she said in a press release that the bill could “make a real, meaningful difference” by eliminating copays for behavioral health services. 

Now, a class action lawsuit filed last week is challenging New Mexico medical insurance providers for not covering medical cannabis expenses. New Mexico cannabis producer Ultra Health, along with six medical cannabis patients, filed the suit against seven New Mexico medical insurance providers and are seeking unspecified damages, reimbursement for their respective cannabis purchases going back to January of this year and for medical cannabis to be covered by medical insurance providers going forward. The case seems to be the first of its kind in the nation. 

The cannabis company and medical cannabis patients are being represented by Christopher Saucedo, who is also a New Mexico State University regent and served last year on the state’s redistricting committee. Ultra Health has established a reputation for filing numerous suits against state departments on various cannabis issues like increasing medical cannabis production limits and overturning medical cannabis rules and regulations.

NM primaries were a mixed bag for state House incumbents

Voters decided on the nominees for the New Mexico House of Representatives in every district in the state on Tuesday. While many incumbents either successfully defended their seats from others in their own respective parties or did not face opponents at all, other races ended with ousted incumbents or new candidates. 

Here are some races that we watched closely. District 12 

Art De La Cruz handily won his three-way primary race against Democrats Melissa Armijo and Nicole Olonovich with 53 percent of the votes. De La Cruz is a former Bernalillo County Commissioner and was appointed to his current seat to fill a previous vacancy. 

De La Cruz was endorsed by two education organizations, a public sector labor union and a real estate development organization. De La Cruz, while a Democrat, received criticism from progressives for his support of the proposed Santolina development in Bernalillo County.  

District 17

Rep. Deborah Armstrong, citing family needs, opted not to run for the seat she has held for four terms. The district also saw significant boundary changes last year when the state Legislature redrew state House districts. 

Former Albuquerque city councilor Cynthia Borrego won the Democratic primary for House District 17 against her opponent Darrell Deaguero by 22 points.