Carlson v. Charter Communications

Brief/Memorandum in Support re MOTION to Dismiss Plaintiff's Second Amended Complaint

D. Mont.June 7, 2017

Joshua B. Kirkpatrick (Bar No. 6258) Michelle L. Gomez (Bar No. 41661037) LITTLER MENDELSON, P.C. 1900 Sixteenth Street, Suite 800 Denver, CO 80202 Telephone: 303.629.6200 Facsimile: 303.629.0200 Email: jkirkpatrick@littler.com mgomez@littler.com UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA HELENA DIVISION LANCE CARLSON, Plaintiff, v. CHARTER COMMUNICATIONS, LLC, Defendant. Case No. 6:16-cv-00086-SEH CHARTER COMMUNICATIONS, LLC’S BRIEF IN SUPPORT OF ITS PARTIAL MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT Defendant Charter Communications, LLC (“Charter”), by and through its undersigned counsel, respectfully submits the following Brief in Support of its Partial Motion to Dismiss Plaintiff’s Second Amended Complaint. Case 6:16-cv-00086-SEH Document 51 Filed 06/07/17 Page 1 of 26 i TABLE OF CONTENTS I. INTRODUCTION ................................................................................ 1 II. FACTS .................................................................................................. 2 III. ARGUMENT ....................................................................................... 3 A. Legal Standard ...................................................................................... 3 B. Mont. Code. Ann. § 50-46-320 Bars Plaintiff’s WDEA and Human Rights Act Claims .................................................................... 4 1. The Montana Supreme Court Has Already Ruled that the MMA Does Not Provide a Cause of Action Against Employers .................................................................................. 5 C. Plaintiff’s Declaratory Judgment Claim Should Be Dismissed ........... 7 1. Charter is a Federal Government Contractor Required to Comply With 41 U.S. Code § 8102(a) which Preempts Montana’s Marijuana Act .......................................................... 9 2. Sections 50-46-320(4)(b) and (5), MCA Do Not Violate Plaintiff’s Equal Protection Rights .......................................... 12 3. Sections 50-46-320(4)(b) and (5), MCA Are Not Arbitrary And Unreasonable As Applied To Plaintiff And Therefore Do Not Violate His Substantive Due Process Rights ....................................................................................... 14 IV. CONCLUSION .................................................................................. 19 Case 6:16-cv-00086-SEH Document 51 Filed 06/07/17 Page 2 of 26 ii TABLE OF AUTHORITIES Page(s) Cases Burlington Northern Santa Fe Corp. v. Anderson, 959 F. Supp. 1288 (D. Mont. 1997) .................................................................... 10 Conley v. Gibson, 355 U.S. 41 (1957) ................................................................................................ 3 Curry v. MillerCoors, Inc., No. 12-cv-02471-JLK, 2013 WL 4494307 (D. Colo. Aug. 21, 2013) ..................................................................................................................... 6 English v. Gen. Elec. Co., 496 U.S. 72 (1990) .............................................................................................. 10 Gov’t Emp. Ins. Co. v. Dizol, 133 F.3d 1220 (9th Cir. 1998) .............................................................................. 8 Johnson v. Columbia Falls Aluminum Company, LLC, 2009 MT 108N, 350 Mont. 562, 213 P.3d 789 .................................................... 5 Kershaw v. Mont. Dep’t of Transp., 2011 MT 170, 361 Mont. 215, 257 P.3d 358 ............................................... 12, 13 Mont. Cannabis Indust. Ass’n. v. State, 2012 MT 201, 366 Mont. 224, 286 P.3d 1161 ....................................... 17, 18, 19 Mont. Cannabis Indust. Ass’n. v. State, 2016 MT 44, 382 Mont. 256, 368 P.3d 1131 ............................... 8, 14, 15, 18, 19 Mont. Sports Shooting Ass’n, Inc. v. State of Mont., 2008 MT 190, 344 Mont. 1, 185 P.3d 1003 ....................................................... 16 PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011) ............................................................................................ 10 Powell v. State Comp. Ins. Fund, 2000 MT 321, 302 Mont. 518, 15 P.3d 877 ........................................... 12, 13, 14 Case 6:16-cv-00086-SEH Document 51 Filed 06/07/17 Page 3 of 26 iii Ronan Tel. Co. v. Alltel Commc’n, Inc., No. 06-99-2007, 2007 WL 433278 (D. Mont. Feb. 2, 2007) ............................... 3 Swaw v. Safeway, Inc., No. C15-939 MJP, 2015 WL 7431106 (W.D. Wash. Nov. 20, 2015) ..................................................................................................................... 6 United States v. McIntosh, 2016 U.S. App. LEXIS 15029 (9th Cir. Aug. 16, 2016) .................................... 17 Zempel v. Uninsured Employers’ Fund (1997), 282 Mont. 424, 938 P.2d 658 ............................................................... 7, 8 Statutes 28 U.S.C. § 2201(a) ................................................................................................... 8 41 U.S.C. § 8102 ........................................................................................................ 9 MCA § 39-2-204 ........................................................................................................ 2 MCA § 39-2-901, et seq. ............................................................................................ 1 MCA § 49-1-101, et seq. ............................................................................................ 1 MCA § 49-2-101(19)(b) .......................................................................................... 16 MCA § 49-2-203 ........................................................................................................ 2 MCA § 50-46-301, et seq. .......................................................................................... 4 MCA § 50-46-301(2)(a) ............................................................................................. 4 MCA § 50-46-319 ...................................................................................................... 9 MCA § 50-46-320 .............................................................................................. 1, 4, 9 MCA § 50-46-320(4)(b) ..................................... 1, 2, 4, 7, 12, 14, 15, 16, 17, 18, 19 MCA §§ 50-46-320(4)(b) and (5) .....................................................................passim MCA § 50-46-320(5) ....................................................................................... 4, 7, 19 U.S. Code § 8102(a) ................................................................................................... 9 Case 6:16-cv-00086-SEH Document 51 Filed 06/07/17 Page 4 of 26 iv Other Authorities Fed. R. Evid. 201 ....................................................................................................... 3 Mont. Const. Art II, § 4 ............................................................................................ 12 Mont. Const. Art. II, § 17 ......................................................................................... 14 Montana Constitution ......................................................................................... 12, 14 Case 6:16-cv-00086-SEH Document 51 Filed 06/07/17 Page 5 of 26 1 I. INTRODUCTION Plaintiff alleges that in terminating his employment due to his use of medical marijuana, Charter violated Montana’s Wrongful Discharge From Employment Act, MCA § 39-2-901, et seq. (“WDEA”) and Human Rights Act, MCA § 49-1- 101, et seq. However, the statute permitting medical use of marijuana in Montana, MCA § 50-46-320, specifically provides that “[n]othing in this part may be construed to permit a cause of action against an employer for wrongful discharge pursuant to 39-2-904 or discrimination pursuant to 49-1-102.” The statute could not be clearer, and Plaintiff’s first and fourth claims for relief should be dismissed with prejudice. Plaintiff’s third claim for relief seeks declaratory judgment that Sections 50- 46-320(4)(b) and (5), MCA are unconstitutional. That claim should also be dismissed with prejudice for multiple reasons. First, Charter is a federal contractor required to comply with the federal Drug-Free Workplace Act. That mandate would preempt Montana state law to the extent the Montana Marijuana Act (“MMA”) purported to require Montana employers to tolerate medical marijuana use. Second, regardless of the federal contractor issue, Sections 50-46-320(4)(b) and (5), MCA do not violate Plaintiff’s equal protection or substantive due process rights as a matter of law. Case 6:16-cv-00086-SEH Document 51 Filed 06/07/17 Page 6 of 26 2 II. FACTS1 Plaintiff alleges that he has a valid medical marijuana card to treat alleged debilitating medical conditions. Dkt. No. 22, at ¶¶ 5 and 8. Plaintiff’s first claim for relief, Wrongful Discharge, alleges that “Charter terminated Plaintiff without good cause, pursuant to Section 39-2-204, MCA. In particular, Charter terminated Plaintiff for legal use of medical marijuana, which was a prescribed, lawful treatment for a diagnosed medical condition.” Dkt. No. 22, at ¶ 50. Plaintiff’s third claim seeks a judicial declaration that Sections 50-46- 320(4)(b) and (5), MCA are unconstitutional as applied in this case. Dkt. No. 22, at ¶ 70. In support of his allegation, Plaintiff contends that there is “no rational basis for distinguishing between Plaintiff’s use of prescribed pharmaceutical medicines such as hydrocodone, and medical marijuana that is also prescribed and lawfully used . . . .” Dkt. No. 22, at ¶ 68. Plaintiff’s fourth claim for relief, Discrimination under the Montana Human Rights Act, alleges that “Plaintiff’s termination constitutes discrimination in employment under Section 49-2-203, MCA. Plaintiff was terminated based on his physical disability and his lawful use of medical marijuana to treat a legitimate medical condition.” Dkt. No. 22, at ¶ 72. 1 For purposes of this Motion only, all well pleaded facts in Plaintiff’s Second Amended Complaint are assumed to be true. Case 6:16-cv-00086-SEH Document 51 Filed 06/07/17 Page 7 of 26 3 Charter is a federal government contractor. See, e.g., https://www.usaspending.gov/Pages/AdvancedSearch.aspx?sub=y&ST=C,G,L,O& FY=2017,2016,2015,2014,2013,2012,2011,2010,2009,2008&A=0&SS=USA&k=c harter%20communications&pidx=1&SB=RN&SD=ASC. According to USASpending.gov, an official website of the U.S. Government, Charter and its related entities, including Bresnan Communications (a Montana service provider acquired by Cablevisions Systems and later Charter), Charter Cable Partners, Charter Communications Entertainment, Charter Communications Holdings, LLC, Charter Communications Inc., and Charter Communications Incorporated, have had hundreds of contracts with the U.S. government.2 III. ARGUMENT A. Legal Standard. Claims in a complaint should be dismissed when “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). While the Court “must accept all allegations of material fact as true,” and “construe the pleading in the light most favorable to the nonmoving party,” dismissal is appropriate where “there is a lack of cognizable legal theory.” Ronan Tel. Co. v. Alltel Commc’n, 2 The Court may take judicial notice of the fact that Charter is a federal government contractor pursuant to Fed. R. Evid. 201 as the fact “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Case 6:16-cv-00086-SEH Document 51 Filed 06/07/17 Page 8 of 26 4 Inc., No. 06-99-2007, 2007 WL 433278, at *1 (D. Mont. Feb. 2, 2007) (citations omitted). B. Mont. Code. Ann. § 50-46-320 Bars Plaintiff’s WDEA and Human Rights Act Claims. Plaintiff’s WDEA and Montana Human Rights Act claims are premised solely on the fact that Charter terminated his employment based on his “legal use of medical marijuana.” Montana’s Medical Marijuana Act, MCA § 50-46-301, et seq., is designed, in part, to “provide legal protections to persons with debilitating medical conditions who engage in the use of marijuana to alleviate the symptoms of the debilitating medical condition.” MCA § 50-46-301(2)(a). However, the Montana legislature put a strict and unambiguous limitation on the legal protections provided in the workplace. Specifically, MCA § 50-46-320(4)(b) provides that an employer need not “accommodate the use of marijuana by a registered cardholder.” Further, and defeating Plaintiff’s first and fourth claims, is the fact that “[n]othing in this part may be construed to . . . permit a cause of action against an employer for wrongful discharge pursuant to 39-2-904 or discrimination pursuant to 49-1-102.” MCA § 50-46-320(5). As a result, Montana’s legislature has determined that an employer’s decision to terminate an employee’s employment based on the use of marijuana under the MMA - the sole basis for Plaintiff’s WDEA and Human Rights Act claims - cannot give rise to wrongful discharge or discrimination claims. Case 6:16-cv-00086-SEH Document 51 Filed 06/07/17 Page 9 of 26 5 1. The Montana Supreme Has Already Ruled that the MMA Does Not Provide a Cause of Action Against Employers. In a case similar to the one before the Court, Johnson v. Columbia Falls Aluminum Company, LLC, 2009 MT 108N, 350 Mont. 562, 213 P.3d 789, the Montana Supreme Court dismissed claims premised on the MMA. In this unpublished decision, the plaintiff began treating his pain with medical marijuana for which he paid with personal funds and which he limited his use to after-work hours; his employment was ultimately terminated after he tested positive for marijuana. Id. at ¶ 2. Plaintiff brought negligence and negligence per se claims based upon the MMA, in addition to other claims. Id. at ¶ 5. The Court ruled, however, that the “MMA is essentially a ‘decriminalization’ statute that protects qualified patients, caregivers and physicians from criminal and civil penalties for using, assisting the use of, or recommending the use of marijuana. However, the MMA does not provide an employee with an express or implied private right of action against an employer. The MMA specifically provides that it cannot be construed to require employers ‘to accommodate the medical use of marijuana in any workplace.’” Id. at ¶ 5 (citing to MCA §§ 50-46-201 and 205(2)(b)) (emphasis added). As to plaintiff’s ADA and MHRA claims, the Court dismissed them as well, reiterating that, “the MMA clearly provides that an employer is not required to accommodate an employee’s use medical of marijuana.” Id. at ¶ 11. Montana’s ruling is consistent with rulings in other states with similar Case 6:16-cv-00086-SEH Document 51 Filed 06/07/17 Page 10 of 26 6 medical marijuana laws. See Swaw v. Safeway, Inc., No. C15-939 MJP, 2015 WL 7431106, at *1 (W.D. Wash. Nov. 20, 2015) (“Plaintiff asserts that Defendant unlawfully discriminated against him by terminating his employment for testing positive for a controlled substance because Plaintiff has a valid medical marijuana prescription allowing him to use marijuana after hours to treat his disabilities . . . . However, Washington law does not require employers to accommodate the use of medical marijuana where they have a drug-free workplace, even if medical marijuana is being used off site to treat an employee’s disabilities, and the use of marijuana for medical purposes remains unlawful under federal law.”); Curry v. MillerCoors, Inc., No. 12-cv-02471-JLK, 2013 WL 4494307, at **1, 3 (D. Colo. Aug. 21, 2013) (Although plaintiff claimed that he used marijuana within the terms of his license, he never used it on his employer’s premises, and he was never under the influence at work, the court held that “anti-discrimination law does not extend so far as to shield a disabled employee from the implementation of his employer’s standard policies against employee misconduct . . . . [T]hough Mr. Curry may never have used medical marijuana absent his disability, MillerCoors did not unlawfully terminate him.”). Plaintiff’s first and fourth claims should be dismissed with prejudice as Plaintiff has provided no basis for disregarding Montana Supreme Court case law and Montana legislation. Case 6:16-cv-00086-SEH Document 51 Filed 06/07/17 Page 11 of 26 7 C. Plaintiff’s Declaratory Judgment Claim Should Be Dismissed. Plaintiff argues that Sections 50-46-320(4)(b) and (5), MCA “have no reasonable relationship or rational basis to a legitimate government objective,” Dkt. No. 22, at ¶ 61, and that if they are interpreted to bar his claim, then they violate his rights to equal protection, substantive due process, and to seek employment, life’s necessities, and health. Dkt. No. 22, at ¶ 62. Section 50-46- 320(4)(b) provides that “Nothing in this part may be construed to require an employer to accommodate the use of marijuana by a registered cardholder.” Section 50-46-320(5), for its part, provides that “Nothing in this part may be construed to: (a) prohibit an employer from including in any contract a provision prohibiting the use of marijuana for a debilitating medical condition; or (b) permit a cause of action against an employer for wrongful discharge pursuant to 39-2-904 or discrimination pursuant to 49-1-102.” Plaintiff cannot overcome the presumed constitutionality of these MMA provisions, especially under his circumstances where federal law preempts state law, and his declaratory judgment claim should be dismissed. “[A] legislative enactment ‘is presumed to be constitutional and will be upheld on review except when proven to be unconstitutional beyond a reasonable doubt.’” Zempel v. Uninsured Employers’ Fund (1997), 282 Mont. 424, 428, 938 P.2d 658 (quoting City of Billings v. Laedeke (1991), 247 Mont. 151, 154, 805 P.2d Case 6:16-cv-00086-SEH Document 51 Filed 06/07/17 Page 12 of 26 8 1348)) (emphasis added). “If any doubt exists, it must be resolved in favor of the statute.” Mont. Cannabis Indust. Ass’n. v. State, 2016 MT 44, at ¶ 12, 382 Mont. 256, 368 P.3d 1131. Indeed, “[a] party attacking the constitutionality of a statute bears a significant burden in establishing its invalidity.” Zempel, 282 Mont. at 428 (citing In re Matter of Wood (1989), 236 Mont. 118, 122, 768 P.2d 1370). For the reasons expressed below, the Court should dismiss Plaintiff’s declaratory action claim with prejudice. The Court also may exercise its discretion to not hear Plaintiff’s declaratory judgment claim. See Gov’t Emp. Ins. Co. v. Dizol, 133 F.3d 1220, 1223 (9th Cir. 1998) (“If the [lawsuit seeking federal declaratory relief] passes constitutional and statutory muster, the district court must also be satisfied that entertaining the action is appropriate. This determination is discretionary, for the Declaratory Judgment Act is ‘deliberately cast in terms of permissive, rather than mandatory, authority.’ The Act ‘gave the federal courts competence to make a declaration of rights; it did not impose a duty to do so.’”) (quoting Public Serv. Comm’n of Utah vs. Wycoff Co., 344 U.S. 237, 250 (1952) (J. Reed, concurring) and Public Affairs Assocs. v. Rickover, 369 U.S. 111, 112 (1962)); see also 28 U.S.C. § 2201(a) (“any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration”) (emphasis added). Case 6:16-cv-00086-SEH Document 51 Filed 06/07/17 Page 13 of 26 9 1. Charter is a Federal Government Contractor Required to Comply With 41 U.S. Code § 8102(a) which Preempts Montana’s Marijuana Act. Charter is a federal government contractor required to comply with the Drug-Free Workplace Act of 1988 (“DFWA”). The DFWA provides that federal contractors must provide a drug-free workplace by “publishing a statement notifying employees that the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited in the workplace,” giving a copy of such statement to each employee engaged in the performance of the contract, and notifying such employees that as a condition of employment the employee must abide by the terms of the statement. 41 U.S.C. § 8102. MCA § 50-46-319 provides that a “registered cardholder may possess up to 1 ounce of usable marijuana,” and “[e]xcept as provided in 50-46-320 . . . an individual who possesses a registry identification card issued pursuant to this part may not be arrested, prosecuted, or penalized in any manner or be denied any right or privilege . . . solely because . . . the registered cardholder acquires or uses marijuana.” To the extent that the MMA section quoted above regulates the conduct of private employers and employment at Charter is a “right or privilege” that cannot be impaired by the MMA—both of which must be true for Plaintiff’s claim to proceed—MCA § 50-46-319 “stands as an obstacle to the accomplishment and Case 6:16-cv-00086-SEH Document 51 Filed 06/07/17 Page 14 of 26 10 execution of the full purposes and objectives of Congress” as set forth in the DFWA. English v. Gen. Elec. Co., 496 U.S. 72, 79 (1990) (citation omitted). Therefore, while Plaintiff contends that the Montana Marijuana Act requires Charter to allow him to use medical marijuana, because the federal Drug-Free Workplace Act of 1988 and Montana’s Marijuana Act conflict as applied to Plaintiff, federal law pre-empts state law: The Supremacy Clause establishes that federal law “shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const., Art. VI, cl. 2. Where state and federal law directly conflict, state law must give way. We have held that state and federal law conflict where it is impossible for a private party to comply with both state and federal requirements. PLIVA, Inc. v. Mensing, 564 U.S. 604, 617-618 (2011) (quotations and citations omitted). See also Burlington Northern Santa Fe Corp. v. Anderson, 959 F. Supp. 1288, 1296 (D. Mont. 1997) (discussing conflict preemption and noting that “although hypothetically it may be possible, as Defendants argue, for a party to comply with both state and federal requirements, state regulation of Plaintiffs’ actions with regard to agencies in Montana clearly would stand as an obstacle to Congress’ stated purpose of deregulation of rail transportation.”). Plaintiff seeks to avoid the implications of the DFWA by focusing on the fact that his after-work use of medical marijuana is permitted under the DFWA. But the MMA itself, as written, does not restrict medical marijuana use to after- Case 6:16-cv-00086-SEH Document 51 Filed 06/07/17 Page 15 of 26 11 work. Furthermore, even if Plaintiff could avoid conflict preemption by strained one-off exceptions, Plaintiff has not alleged that it would be possible for Charter to effectively permit marijuana after-work hours, but not during work hours, because of testing limitations. Taking Plaintiff’s allegations in his Second Amended Complaint as true,3 Plaintiff tested positive even though he was not actively under the influence. See, e.g., Dkt. No. 22, at ¶¶ 37 and 42. If Plaintiff is going to test positive regardless of when he actually uses medical marijuana, then Plaintiff’s proposed “exception” would essentially protect Plaintiff from using medical marijuana during work hours. Charter, or any Montana employer, should not be required to accept an employee’s word that he does not use medical marijuana during work hours (even if Charter must accept that allegation as true for purposes of this motion only). As Plaintiff cannot demonstrate that Charter is capable of enforcing a drug- free workplace as required under the DFWA, while also allowing its employees to use medical marijuana under the MMA, the Court should dismiss Plaintiff’s declaratory judgment claim with prejudice on the basis of preemption. 3 It should be noted that those allegations are dubious and inconsistent. Plaintiff claims that his “symptoms of pain would keep him from working without the therapeutic benefit of the medical marijuana.” [Dkt. No. 22, at ¶ 12; internal quotation omitted.] His doctor also notes that “use of medical marijuana has been the best avenue for pain management and ability to work.” [Dkt. No. 22-1.] Put another way, Plaintiff apparently contends that he needs medical marijuana in order to feel good enough to drive his vehicle for work. This is facially inconsistent with his claim that he “has never been under the influence of medical marijuana while working.” [Dkt. No. 22, at ¶ 42.] Indeed, his doctor’s statements can only be read as an admission that the “influence of medical marijuana” is what permits him to work. Case 6:16-cv-00086-SEH Document 51 Filed 06/07/17 Page 16 of 26 12 2. Sections 50-46-320(4)(b) and (5), MCA Do Not Violate Plaintiff’s Equal Protection Rights. Even in the absence of preemption - for example, as applied to employers without federal contracts - Sections 50-46-320(4)(b) and (5), MCA do not violate Plaintiff’s right to equal protection under the Montana Constitution. The Montana Constitution guarantees equal protection of the laws to all persons. Mont. Const. Art II, § 4. “The basic premise of equal protection ‘is that persons similarly situated with respect to a legitimate governmental purpose of the law must receive like treatment.’” Kershaw v. Mont. Dep’t of Transp., 2011 MT 170, ¶ 17, 361 Mont. 215, 257 P.3d 358 (quoting Satterlee v. Lumberman’s Mut. Cas. Co., 2009 MT 368, ¶ 15, 353 Mont. 265, 222 P.3d 566 (internal quotation omitted)). “The initial step in an equal protection analysis is to identify the classes involved and determine if those classes are similarly situated.” Kershaw, ¶ 17 (citing Jaksha v. Butte-Silver Bow Co., 2009 MT 263, ¶ 16, 352 Mont. 46, 214 P.3d 1248); see also Powell v. State Comp. Ins. Fund, 2000 MT 321, ¶ 22, 302 Mont. 518, 15 P.3d 877 (“[T]he first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.”). A plaintiff challenging a statute on equal protection grounds cannot point to any group and allege differential treatment; rather, he must point to a class that is similarly situated to him. “The equal protection clause does not preclude different Case 6:16-cv-00086-SEH Document 51 Filed 06/07/17 Page 17 of 26 13 treatment of different groups or classes of people so long as all persons within a group or class are treated the same.” Powell, ¶ 22. If the classes identified by the plaintiff are not similarly situated, “then the first criteria for proving an equal protection violation is not met and we need look no further.” Id.; see also Kershaw, ¶ 17 (“If the classes are not similarly situated, then the first criterion for proving an equal protection violation is not met, and it is not necessary for us to analyze the challenge further.”) Here, Plaintiff argues that there is “no rational basis for distinguishing between Plaintiff’s use of prescribed pharmaceutical medicines such as hydrocodone, and medical marijuana that is also prescribed and lawfully used.” Dkt. No. 22, at ¶ 68. The Montana Supreme Court has already addressed this specific contention and ruled that the two classes are dissimilar: The statutes at issue here concern a group of persons who all suffer from a debilitating medical condition but are distinguished by the manner in which they may obtain relief. Some may be treated effectively with pharmaceutical drugs; for others, marijuana is the sole or most effective treatment. The identifying factor that distinguishes them is the method of treatment . . . . One stated purpose of the Act is to provide legal protections to persons with debilitating medical conditions who engage in the use of marijuana to alleviate the symptoms of the debilitating medical condition. There is no need for the Legislature to provide legal protections to persons using prescribed pharmaceutical medication. The distinguishing factor between the two classes, their use of medical marijuana, plainly relates to the underlying justification of the statute. We conclude that the distinctions in regulation of different substances for medical treatment does not create two legitimate Case 6:16-cv-00086-SEH Document 51 Filed 06/07/17 Page 18 of 26 14 classes for an equal protection challenge because the single identifying factor - use of a substance prohibited by federal law - is a fundamental difference that sufficiently distinguishes the two classes to render them dissimilar. Mont. Cannabis Indust. Ass’n., ¶¶ 17-18 (quotations and citations omitted). Because the classes Plaintiff identified are not similar, Plaintiff cannot prove, beyond a reasonable doubt, that Sections 50-46-320(4)(b) and (5), MCA violate his equal protection rights. 3. Sections 50-46-320(4)(b) and (5), MCA Are Not Arbitrary And Unreasonable As Applied To Plaintiff And Therefore Do Not Violate His Substantive Due Process Rights. Pursuant to the Montana Constitution, persons shall not be deprived of their interest in life, liberty or property without due process of law. Mont. Const. Art. II, § 17. An analysis of substantive due process “primarily examines the underlying substantive rights and remedies to determine whether restrictions . . . are unreasonable or arbitrary when balanced against the purpose of the legislature in enacting the statute.” Powell, ¶ 28 (quotation omitted). Courts examining substantive due process claims analyze two factors: “(1) whether the legislation in question is related to a legitimate governmental concern, and (2) whether the means chosen by the Legislature to accomplish its objective are reasonably related to the result sought to be attained.” Mont. Cannabis Indust. Ass’n., ¶ 21 (citation omitted). The Montana Supreme Court has ruled that Montana’s Marijuana Act serves Case 6:16-cv-00086-SEH Document 51 Filed 06/07/17 Page 19 of 26 15 a legitimate state interest: [T]he legislative history demonstrates that the Act was enacted in response to the Legislature’s concern about a number of abuses that occurred following passage of the 2004 Act . . . . The goal of the Act, according to its sponsor, was “to repeal a system that is obviously broken, cleanse the system out, and then restore the laws of the State of Montana in a fashion that will recognize the intent of the Montana voters in 2004.” . . . We conclude that the Act’s purposes serve a legitimate state interest. The Legislature was highly cognizant of the fact that marijuana remains a Schedule I controlled substance, illegal for all purposes, under federal law. Mont. Cannabis Indust. Ass’n., ¶¶ 23 and 28. As the first factor has been answered affirmatively, the Court must now decide whether the means chosen is reasonably related to the result sought. “The question under rational basis review . . . is not whether the provision is necessary, but whether the provision is arbitrary or whether it has a reasonable relation to some permitted end of governmental action . . . .” Mont. Cannabis Indust. Ass’n., ¶ 38 (quotations and citation omitted). The Legislature, as noted above, was “highly cognizant” of the fact that marijuana is still illegal under federal law for all purposes. The Legislature then decided that it was not going to force employers to employ individuals who use medical marijuana, and Sections 50-46-320(4)(b) and (5), MCA are reasonably related to ensure that end. While Plaintiff contends that MCA § 50-46-320(4)(b) is arbitrary and unreasonable as applied to him because he does not seek an accommodation to use marijuana in order to perform his job duties, i.e., a “reasonable accommodation,” Case 6:16-cv-00086-SEH Document 51 Filed 06/07/17 Page 20 of 26 16 Dkt. No. 22, at ¶ 69, MCA § 50-46-320(4)(b) does not refer to “reasonable accommodation” as Plaintiff contends. Accommodate means “to do a kindness or a favor to; oblige.” See http://www.dictionary.com/browse/accommodate, last accessed 11.13.2016. If the Montana legislature wanted “accommodate” in MCA § 50-46-320(4)(b) to mean “reasonable accommodation,” it could have stated so. See MCA § 49-2-101(19)(b) (“Discrimination based on, because of, on the basis of, or on the grounds of physical or mental disability includes the failure to make reasonable accommodations that are required by an otherwise qualified person who has a physical or mental disability. An accommodation that would require an undue hardship or that would endanger the health or safety of any person is not a reasonable accommodation.”) (emphasis added). As its plain language is unambiguous, there is only one way to interpret MCA § 50-46-320(4)(b) – Montana employers do not have to “oblige” any medical marijuana use by their employees. See Mont. Sports Shooting Ass’n, Inc. v. State of Mont., 2008 MT 190, ¶ 11, 344 Mont. 1, 185 P.3d 1003 (“We interpret a statute by looking at its plain language . . . . We will not interpret the statute further if the language is clear and unambiguous.”). The Legislature’s decision is not arbitrary; it is a rational approach to drawing a line between giving those with debilitating medical conditions an ability to use medical marijuana for treatment and giving employers the ability to employ Case 6:16-cv-00086-SEH Document 51 Filed 06/07/17 Page 21 of 26 17 individuals who do not violate federal law - especially crucial where, as here, the employer is a federal contractor.4 Plaintiff relies heavily on United States v. McIntosh, 833 F.3d 1163 (9th Cir. 2016), for the proposition that “the use of medical marijuana was not ‘illegal use’ since at the time of the accident, even the federal government was barred from prosecuting individuals . . . who were using medical marijuana in accordance with state law.” McIntosh, however, is not applicable to Plaintiff’s situation. First, the Ninth Circuit was “asked to decide whether criminal defendants may avoid prosecution for various federal marijuana offenses on the basis of a congressional appropriations rider that prohibits the United States Department of Justice from spending funds to prevent states’ implementation of their own medical marijuana laws.” McIntosh, 833 F.3d at 1168. Plaintiff has not been criminally charged, and whether his use of medical marijuana was a criminal act subject to prosecution is not at issue here. Second, the case certainly does not stand for the proposition that marijuana use is “legal” at the federal level simply because it is legal under state law. The Court itself noted that “§ 542 prohibits DOJ from spending money on 4 While Plaintiff contends that Sections 50-46-320(4)(b) and (5), MCA deny him a right to “pursue life’s necessities through employment,” there are no allegations in his Complaint supporting such claim. Plaintiff does not contend that all Montana employers require their employees to be drug free, only that Charter does. Plaintiff remains free to seek employment from any employer who does not want to take advantage of the rights provided in Sections 50- 46-320(4)(b) and (5), MCA. See Mont. Cannabis Indust. Ass’n. v. State, 2012 MT 201, at ¶ 18, 366 Mont. 224, 286 P.3d 1161 (noting that the right to employment does not grant an interest in any particular job) (citing Wadsworth v. State, 275 Mont. 287, 299, 911 P.2d 1165, 1172 (1996)). Case 6:16-cv-00086-SEH Document 51 Filed 06/07/17 Page 22 of 26 18 actions that prevent the Medical Marijuana States’ giving practical effect to their state laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” Id. at 1176. While Plaintiff is seeking to prevent Montana from giving practical effect to its state law in arguing that Sections 50-46-320(4)(b) and (5) are unconstitutional, the Court can give practical effect to Montana’s Marijuana law by finding that Sections 50-46-320(4)(b) and (5) bar Plaintiff’s WDEA claim. Finally, it is worth noting, as did the Montana Supreme Court, that other courts have held that use of marijuana is not a substantive due process right that can be subject to a constitutional claim such as Plaintiff’s claim here: [M]any other courts have held that smoking, using, possessing, or manufacturing marijuana is not a substantive due process right. We clearly stated in MCIA I, that Plaintiffs “cannot seriously contend that they have a fundamental right to medical marijuana when it is still unequivocally illegal under the [federal] Controlled Dangerous Substances Act.” Plaintiffs have no right or claim to “access” marijuana; rather the State has chosen to provide a benefit to those medical marijuana users who comply with the terms of the Act. It cannot reasonably be argued that there is a “substantive right” to possess a substance illegal under both federal and state law. Mont. Cannabis Indust. Ass’n., ¶¶ 94-95 (McKinnon, J., concurring and dissenting) (citations omitted); see also Mont. Cannabis Indus. Assoc. v. State, 2012 MT 201, at ¶ 32, 366 Mont. 224, 286 P.3d 1161. Because Plaintiff cannot sustain his burden of proving that Sections 50-46-320(4)(b) and (5), MCA are unconstitutional, his Case 6:16-cv-00086-SEH Document 51 Filed 06/07/17 Page 23 of 26 19 third claim should be dismissed with prejudice.5 IV. CONCLUSION Montana has conclusively determined that the rights afforded under its Medical Marijuana Act cannot serve as a basis for a WDEA claim or a claim for discrimination under the Human Rights Act. As Plaintiff’s alleged legal use of medical marijuana is the basis for Charter’s termination of his employment, his first and fourth claims are barred by MCA § 50-46-320(5) and should be dismissed. The Court should also reject outright - or exercise its discretion to decline to hear - Plaintiff’s third claim seeking a declaratory judgment that Sections 50-46-320(4)(b) and (5), MCA are unconstitutional where Charter’s allowance of its employees’ use of medical marijuana would conflict with its obligations under the federal Drug-Free Workplace Act, where using marijuana is a not a substantive right to which Plaintiff is entitled, and where Plaintiff cannot prove that the provisions are unconstitutional beyond a reasonable doubt. Charter therefore respectfully requests that the Court dismiss Plaintiff’s Count I- Wrongful Discharge, Count III- Declaratory Judgment, and Count IV – Discrimination, with prejudice. 5 Plaintiff admits that as written, MCA § 50-46-320(5) immunizes Charter from Plaintiffs’ WDEA and MHRA claims. Therefore, should the Court dismiss or decline to hear Plaintiff’s third claim seeking a declaratory judgment that Sections 50-46-320(4)(b) and (5), MCA are unconstitutional, the Court should also dismiss Plaintiff’s WDEA and MHRA claims. Case 6:16-cv-00086-SEH Document 51 Filed 06/07/17 Page 24 of 26 20 Dated: June 7, 2017. s/ Joshua B. Kirkpatrick Joshua B. Kirkpatrick Attorneys for Defendant CHARTER COMMUNICATIONS, LLC CERTIFICATE OF COMPLIANCE Pursuant to L.R. 7.1(d)(2)(E), undersigned counsel certifies that Charter Communications, LLC’s Brief in Support of its Partial Motion to Dismiss Plaintiff’s Second Amended Complaint has a word count of 4783, excluding the caption, tables of contents and authorities, and certificate of service. I relied on Microsoft Word to arrive at this word count. s/ Joshua B. Kirkpatrick Joshua B. Kirkpatrick Michelle L. Gomez Attorneys for Defendant CHARTER COMMUNICATIONS, LLC Case 6:16-cv-00086-SEH Document 51 Filed 06/07/17 Page 25 of 26 21 CERTIFICATE OF SERVICE I hereby certify that on this 7th day of June, 2017, a true and correct copy of the foregoing CHARTER COMMUNICATIONS, LLC’S BRIEF IN SUPPORT OF ITS PARTIAL MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT was filed and served via CM/ECF which will send a copy to the following. Brian J. Miller Morrison, Sherwood, Wilson and Deola, P.L.L.P 401 North Last Chance Gulch P.O. Box 557 Helena, Montana 59601 bmiller@mswdlaw.com The duly signed original is on file at the offices of Littler Mendelson, P.C. s/ Joshua B. Kirkpatrick Joshua B. Kirkpatrick Firmwide:147891175.2 047830.1175 Case 6:16-cv-00086-SEH Document 51 Filed 06/07/17 Page 26 of 26