Judge rules against medical marijuana activist in lawsuit against pharmacy board

The Des Moines Reg­is­ter car­ried a blog arti­cle about the court rul­ing against me in my law­suit against the Iowa Board of Phar­ma­cy. The arti­cle was fair­ly accu­rate. The only real error in the arti­cle, and it runs con­sis­tent­ly through­out the his­to­ry of this entire project start­ed in 2006, is that every­one keeps para­phras­ing the argu­ment incor­rect­ly. The author incor­rect­ly states, “Iowa law clas­si­fies ‘sched­ule I’ drugs as hav­ing no med­ical pur­pose.” The prob­lem with this trun­cat­ed ver­sion “med­ical pur­pose” is that it dis­torts the mean­ing of the law. What Iowa law actu­al­ly says is that sched­ule I “sub­stances” (not “drugs”) have “no accept­ed med­ical use in treat­ment in the Unit­ed States.” By trun­cat­ing that phrase to “med­ical pur­pose” the real issue of where a sub­stance has accept­ed med­ical pur­pose gets entire­ly lost.

Where is “in the Unit­ed States?”

Notice it does not say “in Iowa.” The phrase “accept­ed med­ical use in treat­ment in the Unit­ed States” actu­al­ly comes from the fed­er­al Con­trolled Sub­stances Act. And, that phrase has been inter­pret­ed for us by a fed­er­al court in Grin­spoon v. DEA, 828 F.2d 881, 886 (1st Cir. 1987) (“We add, more­over, that the Admin­is­tra­tor’s clever argu­ment con­ve­nient­ly omits any ref­er­ence to the fact that the per­ti­nent phrase in sec­tion 812(b)(1)(B) reads ‘in the Unit­ed States,’ (empha­sis sup­plied). We find this lan­guage to be fur­ther evi­dence that the Con­gress did not intend ‘accept­ed med­ical use in treat­ment in the Unit­ed States’ to require a find­ing of rec­og­nized med­ical use in every state or, as the Admin­is­tra­tor con­tends, approval for inter­state mar­ket­ing of the sub­stance.”) So, you can see my argu­ment gets dis­tort­ed by the phar­ma­cy board, the courts, and the media, when they sub­sti­tute the trun­cat­ed phrase “med­ical pur­pose” for the legal­ly accu­rate phrase “accept­ed med­ical use in treat­ment in the Unit­ed States.”

What to do?

This over­whelm­ing, mono­lith­ic dis­tor­tion of the mean­ing of this statute has made it extreme­ly dif­fi­cult to make any progress because it leaves patients in jeop­ardy. For exam­ple, we now have 20 states that have accept­ed the med­ical use of mar­i­jua­na in treat­ment in the Unit­ed States, and none of them has made the argu­ment that mar­i­jua­na is unlaw­ful­ly clas­si­fied under fed­er­al reg­u­la­tions. The result is an odd sit­u­a­tion of state laws allow­ing med­ical use that fed­er­al reg­u­la­tions for­bid. Although fed­er­al reg­u­la­tions do not specif­i­cal­ly require that mar­i­jua­na be clas­si­fied as hav­ing no accept­ed med­ical use in treat­ment in the Unit­ed States, the absence of any state objec­tion to this unlaw­ful clas­si­fi­ca­tion com­bined with recal­ci­trance from the U.S. Depart­ment of Jus­tice respon­si­ble for main­tain­ing the cur­rent clas­si­fi­ca­tion, results in the illu­sion of a vio­la­tion of fed­er­al law. While it is true that numer­ous peti­tions to have mar­i­jua­na fed­er­al­ly reclas­si­fied as med­i­cine have been filed over the years, includ­ing one cur­rent­ly pend­ing by the states of Wash­ing­ton and Rhode Island, the argu­ments have always been about “med­ical pur­pose” and not about who gets to make the deci­sion. Obvi­ous­ly, 20 states have decid­ed that mar­i­jua­na does indeed have a “med­ical pur­pose.” And, since none of those states thinks fed­er­al law rec­og­nizes a state’s right to deter­mine “accept­ed med­ical use” of a con­trolled sub­stances, these peti­tions obvi­ous­ly cede that author­i­ty to the Attor­ney Gen­er­al of the Unit­ed States.

Did Con­gress actu­al­ly intend the deci­sion on “accept­ed med­ical use” to be deter­mined by the Attor­ney Gen­er­al of the Unit­ed States? It would be extreme­ly hard to believe that when the fed­er­al drug law was enact­ed in 1970 the Uni­form Laws Com­mis­sion would rec­om­mend all 50 states adopt their own ver­sions of the fed­er­al Con­trolled Sub­stances Act, with detailed sched­ul­ing cri­te­ria for deter­min­ing whether sub­stances have accept­ed med­ical use, if that deci­sion was to be deter­mined sole­ly by a fed­er­al admin­is­tra­tive agency. In fact, Iowa law has­n’t been con­sis­tent with fed­er­al reg­u­la­tions since 1979 when the Iowa Board of Phar­ma­cy was giv­en the author­i­ty to make mar­i­jua­na a sched­ule II con­trolled sub­stance in Iowa. If you’re won­der­ing how this could hap­pen, we have an expla­na­tion from the Unit­ed States Supreme Court in Gon­za­les v. Ore­gon, 546 U.S. 243, 258 (2006) (“The Attor­ney Gen­er­al has rule­mak­ing pow­er to ful­fill his duties under the CSA. The spe­cif­ic respects in which he is autho­rized to make rules, how­ev­er, instruct us that he is not autho­rized to make a rule declar­ing ille­git­i­mate a med­ical stan­dard for care and treat­ment of patients that is specif­i­cal­ly autho­rized under state law”). If the Attor­ney Gen­er­al can­not make a rule that vio­lates state author­i­ty, nei­ther can the Attor­ney Gen­er­al main­tain one. How­ev­er, the lack of any objec­tion by any state clear­ly leaves the Attor­ney Gen­er­al in a dilem­ma. The Oba­ma Admin­is­tra­tion has respond­ed by say­ing that Con­gress should resolve the issue. State offi­cials refuse to rep­re­sent the peo­ple who elect­ed them. The Oba­ma Admin­is­tra­tion will not peti­tion the U.S. Depart­ment of Jus­tice to make a deci­sion that clear­ly belongs to the states.

What’s next?

I should have writ­ten my peti­tion for judi­cial review more clear­ly. I alleged the Iowa Board of Phar­ma­cy vio­lat­ed five sec­tions of the Iowa Admin­is­tra­tive Pro­ce­dures Act. And, I prob­a­bly shot myself in the foot here. Iowa Code Chap­ter 17A(10): (b) Beyond the author­i­ty del­e­gat­ed to the agency by any pro­vi­sion of law; © Based on an erro­neous inter­pre­ta­tion of law whose inter­pre­ta­tion has not been clear­ly vest­ed by a pro­vi­sion of law in the dis­cre­tion of the agency; (d) Tak­en with­out fol­low­ing the pre­scribed deci­sion-mak­ing process; (j) The prod­uct of a deci­sion mak­ing process in which the agency did not con­sid­er rel­e­vant and impor­tant mat­ter relat­ing to the pro­pri­ety or desir­abil­i­ty of the action in ques­tion that a ratio­nal deci­sion mak­er in sim­i­lar cir­cum­stances would have con­sid­ered pri­or to tak­ing that action; and, (n) Is oth­er­wise, arbi­trary and capri­cious or an abuse of dis­cre­tion.

In hind­sight, I should have cit­ed these two instead. Iowa Code Chap­ter 17A(10): © Based on an erro­neous inter­pre­ta­tion of law whose inter­pre­ta­tion has not been clear­ly vest­ed by a pro­vi­sion of law in the dis­cre­tion of the agency; (h) Action oth­er than a rule that is incon­sis­tent with the agen­cy’s pri­or prac­tice or prece­dents, unless the agency has jus­ti­fied that incon­sis­ten­cy by stat­ing cred­i­ble rea­sons suf­fi­cient to indi­cate a fair and ratio­nal basis for the incon­sis­ten­cy.

Because I cit­ed Iowa Code Chap­ter 17A(10)©, I have suf­fi­cient grounds to file an appeal. I spoke with my attor­ney today and he agrees with my legal analy­sis, but he is unsure if he has time to file the appeal. I can file the appeal myself, but its always bet­ter to have an attor­ney file it. So, I’ll wait for my attor­ney to make a deci­sion. I have until March 18 to file the notice of appeal.

At tri­al, a ques­tion came up about suf­fi­cien­cy of the evi­dence. My attor­ney moved to amend my com­plaint to include it and the judge grant­ed it. How­ev­er, dur­ing the dis­cus­sion on the motion, the state attor­ney admit­ted that the board still thinks mar­i­jua­na is med­i­cine, which made the argu­ment on suf­fi­cien­cy of the evi­dence moot. How­ev­er, in the rul­ing, the judge said the board no longer believes mar­i­jua­na is mis­clas­si­fied and that we did not include any evi­dence the court could review to see if they made the right deci­sion. The judge was not lis­ten­ing when the state attor­ney said the board agrees with us that the evi­dence shows what we said it does, so there was no rea­son to show the court evi­dence that both par­ties to the case agree means the same thing. What a mess.

We hope the Iowa Supreme Court will straight­en out this mess and we’ll be fil­ing our appeal soon.

I have two legal argu­ments, but they are almost iden­ti­cal: if the board finds for any rea­son that mar­i­jua­na has med­ical use, then it has a duty under Iowa Code Chap­ter 124 Sec­tion 203 to rec­om­mend reclas­si­fi­ca­tion or removal from the sched­ules. So, if the board still thinks mar­i­jua­na is med­i­cine (which the board­’s attor­ney says it still agrees mar­i­jua­na is med­i­cine), then mar­i­jua­na is mis­clas­si­fied as a mat­ter of law. If the board does not think mar­i­jua­na is med­i­cine, that does not change the fact that mar­i­jua­na now has accept­ed med­ical use in treat­ment in 20 states and is mis­clas­si­fied here in Iowa as a mat­ter of law regard­less of whether the board thinks it has med­ical use. Under either of those two argu­ments, the board has a duty under Iowa Code Chap­ter 124 Sec­tion 203 to rec­om­mend reclas­si­fi­ca­tion or declas­si­fi­ca­tion of mar­i­jua­na.