NM cannabis producer sues state, claims retaliation

A prominent New Mexico medical cannabis producer filed a lawsuit Wednesday against the state Department of Health, alleging the department violated a previous court order and discriminated against the company regarding cannabis plant limits.  

Albuquerque-based attorney Jacob Candelaria, who is also a New Mexico state senator, filed the motion on behalf of Ultra Health, a medical cannabis company that has previously taken the state to court numerous times. In the motion, which effectively reopened a previous lawsuit against the state, Candelaria argued that the Department of Health, which oversees the state’s Medical Cannabis Program, failed to obey a court order that plant limits for medical cannabis producers be based on reliable data and that the department discriminated against Ultra Health specifically. 

The case that was reopened was originally filed in 2016 and argued that the state’s then-limit of 450 plants was not enough to provide an adequate supply of medical cannabis to the more than 26,000 medical cannabis patients at the time. In November 2018 a state district judge ordered the state’s Department of Health to come up with a data-based plant limit for medical cannabis producers by March 2019. 

With five days until the state’s deadline, then Secretary of Health Kathyleen Kunkel sent an email to Jane Wishner, a policy advisor for Gov. Michelle Lujan Grisham, about the department’s next steps in coming up with a data-driven limit on cannabis plants. The email chain began with the former director of the Medical Cannabis Program explaining that New Mexico seemed to be the only state with a medical cannabis program that used plant counts as a limit, opposed to facility size. Wishner, in reply, contemplated taking a look at the state’s medical cannabis law and coming up with a temporary plant limit for producers.

Legislators seek to reform drug laws

New Mexico lawmakers have tried to take on drug addiction and deadly overdoses for decades. During previous years, lawmakers from both major parties attempted to address opiate epidemics in the state through both increased penalties and more progressive measures. 

This year, with not only a Democratic majority and a Democratic governor, but also a new incoming class of  more progressive Democrats in the Senate, the state could see movement on bills that would lower penalties for drug possession as well as public health minded approaches to addiction. 

Rep. Debbie Armstrong, D-Albuquerque, told NM Political Report that she plans to sponsor a bill that would allow for safe and legal places to use illegal narcotics, often referred to as safe injection sites. The idea, Armstrong said, is that people would be able to bring already obtained narcotics to a designated location where there would be medical professionals on hand to assist in the event of an overdose and provide resources for recovery. 

“It makes sense to me, for public safety, for the health and safety of the individual and a different attempt to try and get folks help,” Armstrong said. 

Armstrong, who has consistently sponsored healthcare related bills during her six years in the Legislature, said safe consumption sites would hopefully address concerns in many communities regarding used needles scattered around public areas like parks and playgrounds. But, she said, it would also address over-criminalization of substance addiction. 

“It is definitely a healthcare issue,” Armstrong said. “But it is a criminal justice reform as well, because this is a safe place with no threat of being arrested.

An anti-discrimination bill to help protect LGBTQ expected to be filed next month

An anti-discrimination bill to help protect the LGBTQ community in the state will be filed in January ahead of the state legislative session. State Sen. Jacob Candelaria, D-Albuquerque, is sponsoring the panic defense bill, which he introduced in the 2019 Legislature. That year, SB 159 passed two committees but Candelaria said he pulled the bill to wait for a friendlier time in the Legislature. He noted that after the Nov. 3 election, there will be six lawmakers, including Candelaria, who are openly members of the LGBTQ community.

NM court rules DOH can limit medical cannabis reciprocity through rules

A state district court judge ruled Thursday that the New Mexico Department of Health is allowed to limit who can become a reciprocal medical cannabis patient through department rules. 

First Judicial District Court Judge Matthew Wilson said that his previous order to stop the department from proceeding with an emergency rule change regarding reciprocity did not prohibit the department from adopting rules regarding reciprocity in general. 

 “The writ does not say that the requirements for reciprocal participation imposed by the emergency rule and the mandate were incompatible with the [state law] or go beyond the Department of Health’s rulemaking authority,” Wilson said during the hearing on Thursday. “The writ does not forbid the creation or promulgation of a regulation through normal rulemaking process the court did not conclude the emergency rule conflicted with the act.”

The New Mexico Legislature approved medical cannabis patient reciprocity in 2019 as part of a larger overhaul to the state’s medical cannabis program. Last summer the state’s Medical Cannabis Program, overseen by the Department of Health, finalized rules for reciprocity, allowing medical cannabis patients from other states and jurisdictions to purchase and consume their medicine in New Mexico. By September, the Medical Cannabis Program notified New Mexico Dispensaries of an emergency rule change that would require reciprocal patients to provide a matching medical cannabis authorization and identification card. The program also said reciprocal patients could not be a New Mexico resident, which meant New Mexico residents could not use a medical cannabis authorization from another state with looser restrictions.

NM DOH tries again to limit medical cannabis reciprocity

The New Mexico Department of Health is trying, with two different approaches, to restrict rules on medical cannabis reciprocity. 

The Department of Health’s Medical Cannabis Program posted on their website a notice of a rule change hearing, scheduled for early next month. The new rules would only authorize out-of-state residents to become reciprocal medical cannabis patients in New Mexico. That means, under the proposed rules, New Mexico residents could not get authorization to use medical cannabis from another state and then use their out-of-state authorization to purchase, possess and use medical cannabis in New Mexico. The department’s first attempt at changing the rules, through an emergency rule change in October, was thwarted by legal action filed by New Mexico medical cannabis company Ultra Health. Represented by Albuquerque-based attorney Jacob Candelaria, who is also a New Mexico state senator, Ultra Health argued that the emergency rule changes DOH was attempting to put in place went beyond the department’s authority. 

A state district court judge ruled in favor of Ultra Health and ordered DOH to continue accepting reciprocal patients regardless of whether their identification card and medical cannabis authorization came from the same jurisdiction. 

Last week, DOH filed a notice of the department’s intent to appeal the court’s decision.

2020 elections usher in a wave of ‘firsts’ for NM

New Mexico voters embraced candidates in the 2020 elections that have historically been underrepresented, including women, in elected office. The state saw a slew of “firsts” this year. 

For the first time in the state’s history, New Mexico’s three seats in the U.S. House of Representatives will be held by women of color. And both Yvette Herrell, who will represent the state’s 2nd Congressional District, and Deb Haaland, who won reelection to the state’s 1st Congressional District, are enrolled members of Indigenous nations. Haaland is a member of Laguna Pueblo, and Herrell is a member of the Cherokee Nation, making New Mexico the first state in the U.S. to have two Indigenous Representatives. 

Teresa Leger Fernandez, who won New Mexico’s 3rd Congressional District, is Latina. 

Terrelene Massey, Diné (Navajo) and the executive director of Southwest Women’s Law Center, said she’s really excited to see more representation from women, especially women of color and Native American women. “I think they’ll provide different perspectives on the different issues they’ll be working on,” Massey said.

Campaign pushing to change PRC

Some elections can devolve into popularity contests. But one issue on the ballot in New Mexico will be whether or not one of the state’s key regulatory bodies should be made up of elected or appointed officials. 

Currently, the New Mexico Public Regulation Commission is made up of five elected officials, each representing their own area of New Mexico. But voters will have the chance to decide whether or not to change the state’s constitution and make the commission a three-member body, with commissioners appointed by the governor. 

At least one mailer sent out to voters does not seem to explicitly advocate for one side or another, but does frame the issue as professionals versus politicians. 

“Look for constitutional amendment #1 on your ballot in the fall!” the mailer reads. 

It also compares health experts guiding Gov. Michelle Lujan Grisham’s decisions during the COVID-19 pandemic and states that the amendment “would require real experts with defined credentials to oversee our utilities, and these professionals would be prohibited from having any financial interest in any public utility.”

The PRC, which is independent from the governor’s office and the legislature, has been the target of scrutiny from other elected officials for years, and even more so since the Legislature passed what is now known as the Energy Transition Act, a step away from the state’s reliance on coal powered energy. 

The mailer that rhetorically asks voters, “qualified professionals or politicians?” was paid for by a group called Committee to Protect New Mexico Consumers. The New Mexico Secretary of State’s office does not have a record of such a group registering as a political committee, but a spokesman for the office said the next deadline for groups to register is not until October. 

Bob Perls, a former New Mexico lawmaker and sponsor of a 1996 constitutional amendment  that created the PRC, said he thinks the push to change how the commission is made up was not well thought out. Like all New Mexico constitutional amendments, this one started as legislation.

State judge denies petition for medical cannabis use while on house arrest

A state district judge denied a petition asking the court to force Bernalillo County and its Metropolitan Detention Center to allow those on house arrest to use medical cannabis if they have a medical cannabis card.  

Second Judicial District Judge Erin O’Connell ruled from the bench during a telephone hearing on Tuesday. She said she denied the petition on the basis that it was out of her jurisdiction and that if she granted the petition it would conflict with the judges decision in a tangential criminal case. 

“The criminal court took the plea in this case and sentenced the petitioner and issued conditions of release based on that plea,” O’Connell said. “The court therefore has concern that granting relief would potentially result in conflicting orders with the criminal court. The criminal case O’Connell referred to was that of Joe Montaño. In 2019, Montaño was convicted of drunk driving and, due to a plea agreement, was sentenced to drug court and Bernalillo County’s Community Custody Program, also known as house arrest. 

Montaño previously spoke to NM Political Report about his past criminal convictions which ultimately resulted in him spending more than two decades in and out of prison. 

Montaño didn’t hide the fact from county CCP officers that he used medical cannabis and during a home visit they found cannabis and paraphernalia.

Medical cannabis qualified patient bill moves to the House

A Senate bill that would specify that only New Mexico residents are eligible to enroll in the state’s Medical Cannabis Program is headed to the House. 

SB 139, sponsored by Sen. Jerry Ortiz y Pino, D-Albuquerque, passed the Senate floor Saturday night by a 32-8 vote. Ortiz y Pino told other Senate members that the bill is an attempt to “plug the hole” that was created in a bill he sponsored last year that was signed into law. 

The bill he sponsored last year, among other changes to the state’s medical cannabis laws, removed the words “resident of New Mexico” from the definition of a qualified patient and replaced them with “person.” Shortly after the law was changed last year, Duke Rodriguez, the president and CEO of medical cannabis producer Ultra Health, along with two Texas residents, took the state to court after the three were denied medical cannabis patient cards. Rodriguez is an Arizona resident, but according to court documents owns a home and vehicle in New Mexico. Arizona has a medical cannabis program and Texas has a medical program with limited conditions and only allows cannabis with half a percent of THC—a psychoactive substance in cannabis. 

After a state district judge ruled in favor of the three petitioners, Gov. Michelle Lujan Grisham’s office and the Department of Health took the issue to the Court of Appeals, where it remains pending. 

Sen. Jeff Steinborn, D-Las Cruces, took issue with the bill and repeated some of the same concerns he brought up in a previous committee hearing. He told a story about a friend of his who suffered through cancer treatment and was unable to benefit from medical cannabis because he lived in Texas.

Cannabis legalization bill passes first committee on party lines

A cannabis legalization bill passed its first committee Tuesday. The Senate Public Affairs voted 4-3 along party lines to pass SB 115 after hours of public comment and debate between lawmakers. 

Even though a number of people spoke against legalization, they were largely outnumbered by those in favor of it. 

For the most part, those who spoke out in opposition said they were concerned about safety and health issues like driving while impaired and addiction. 

The bill’s sponsor and the committee chair, Sen. Jerry Ortiz y Pino, D-Albuquerque, did not present the bill. Instead, legalization proponent and medical cannabis patient Sen. Jacob Candelaria, D-Albuquerque, took the lead on selling the bill to the committee

Candelaria answered some concerns about testing drivers for cannabis use. There is no test for levels of cannabis like there is for alcohol. “Just because there is no test, doesn’t mean people won’t get caught for DWI,” Candelaria said.