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Lawsuit over Colorado marijuana legalization takes rare legal path

By John Ingold 

The Denver Post

In suing to stop marijuana legalization in Colorado, two neighboring states have embarked down an arcane legal pathway that could take years to reach a conclusion, legal scholars say.

Nebraska and Oklahoma last week asked the U.S. Supreme Courtto toss out portions of Colorado's pot legalization law. The states contend that Colorado's law — and especially Colorado's licensing and regulation of marijuana stores — violates the U.S. Constitution's Supremacy Clause, which says the federal law reigns when state and federal laws are in irreconcilable conflict.

But the infrequency with which states sue other states makes it impossible to predict how the case will play out. The nation's highest court could shut down Colorado's burgeoning recreational marijuana industry, calling into question the similar industry in Washington state and the planned industries in Alaska and Oregon. Or it could refuse to hear the case, leaving Colorado's law intact.

"The court rarely grants such cases, perhaps one or two a year," James Pfander, a law professor at Northwestern University, wrote in an e-mail.

By U.S. law, states suing other states must file their cases directly to the U.S. Supreme Court. Because they originate with the Supreme Court, such cases are known as "original proceedings."

Only two such cases were filed at the Supreme Court in the court's October 2013 term — out of more than 7,300 filed in total.According to the Federal Judicial Center, fewer than 140 such cases have been filed since 1960, and the court declined to hear roughly half of those cases.

In contrast to typical lawsuits, which are guaranteed at least an initial review by a judge, the first step for any original case is to persuade the Supreme Court to hear it. That's why the Nebraska- Oklahoma filing last week contained three separate elements: a motion asking the Supreme Court for permission to file the lawsuit; a complaint explaining the lawsuit; and a brief providing the legal basis for the lawsuit.

Background Photo Credit: Kasia Broussalian © 2015