Judge denies petition to remove marijuana from schedule 1

In predictable fashion, Iowa district court judge Eliza Ovrom denied my petition for judicial review in a ruling published on December 10, 2014. You don’t have to read very far to get the sense the judge is reading her own bias into the ruling. She starts by accusing me of trying to clear the way for medical use of marijuana in Iowa, which is clearly not how this law works. The law simply says a substance must be removed from schedule 1 if it has “accepted medical use in treatment in the United States.” The law says nothing about clearing the way for anything “in Iowa.” I tried to hammer that point in my legal memorandum, but it just didn’t penetrate the judge’s preconceived notions and bias.

Judge Ovrom makes what has become a classic mistake of claiming that schedule 2 allows for medical use, when that is clearly false. Schedule 2 substances cannot be prescribed in Iowa unless they have federal FDA approval, so simply moving them to schedule 2 does not allow their medical use in Iowa. All it does is recognize that marijuana does have accepted medical use in treatment in the Unite States. Marijuana now has accepted medical use in treatment in thirty-four (34) states, including Iowa. Iowa enacted a medical marijuana extract law earlier this year (without moving marijuana to schedule 2 – and which the chair of the Iowa Board of Pharmacy now says is a legal error). States can, and states have, accepted the medical use of marijuana without moving it to schedule 2. The only thing moving marijuana to schedule 2 actually does is recognize a statutory condition that requires anything with accepted medical use in treatment in the United States be removed from schedule 1. So, the judge has the cart before the horse. Accepted medical use comes first. Removing marijuana from schedule 1 is required because of that accepted medical use, not the other way around. The judge would have us believe the schedule comes first and then the accepted use, which is impossible and can never happen.

As for my contribution to this mess, I made the stupid mistake of submitting scientific studies. Courts do not evaluate scientific studies without expert witnesses who can testify as to their authenticity and meaning. If the only experts who looked at the evidence are the members of the board who denied the petition, then the judge only has those experts to rely on. You can’t possibly win an appeal from a situation like that. And, unless you have unlimited cash reserves, arguing science in a court room is prohibitively expensive. You have to hire expert witnesses to interpret the scientific studies and explain them to the judge. Without unlimited cash reserves, arguing science is not a good strategy.

Fortunately, the law prohibits anything with accepted medical use in treatment in the United States from being classified in schedule 1 in Iowa. However, I did not stick to that argument and made the stupid mistake of submitting scientific studies. There’s a real lesson here, because the only time I ever won a unanimous ruling from the board was when I filed a petition with the board in 2008 that did not have any scientific studies attached to it. At that time, there were twelve (12) states that had accepted the medical use of marijuana in treatment in the United States and my sole argument was those twelve state laws prove marijuana has been accepted for medical use in treatment in the United States. I filed another petition exactly like it earlier this year, based on thirty-four (34) states that have now accepted the medical use of marijuana in treatment in the United States, and I actually got a subcommittee report on November 19, 2014, recommending the board once again grant my petition. So, this demonstrates that when I petition for rescheduling without any scientific studies, I always win. When I petition with scientific studies, I always lose. I can’t stress this enough. It’s an important lesson that we all need to learn.

Arguing science also sends a message that you don’t think the issue has already been resolved by thirty-four (34) state state laws. If the condition for removing marijuana from schedule 1 has been met by the enactment of thirty-four (34) state laws, then marijuana can no longer be legally classified as schedule 1 without any consideration of scientific studies. Submitting scientific studies sends a message that there is doubt as to whether marijuana actually has been accepted for medical use in treatment in the United States. I hope others can now learn from the mistake I made.

Never introduce evidence to prove a fact that has already been proven – it will confuse the judge.

The judge purposely omitted any mention of the plants in schedule 2 when listing some of the substances in schedule 2. She listed several drugs in schedule 2 which are made from plants in schedule 2, but she never mentions those plants, opium and coca plants. She insists that marijuana must be approved as a prescription drug before it can be deemed to have medical use and removed from schedule 1, in spite of the fact that opium and coca plants are not prescription drugs. We cannot allow courts to hold marijuana plants to a different standard than opium and coca plants. This is the reason the law appears to make no sense, because courts are lying about it.

The judge fails to mention that federal schedule 3 does not include dronabinol derived from cannabis plants (federal schedule 3 only includes synthetic, not natural, dronabinol) and there are no ANDAs approved for it even though she claims there are approved ANDAs for it. The Iowa law clearly has naturally derived dronabinol in schedule 3 that is not legal anywhere in the United States and is currently in federal schedule 1, proving beyond any doubt that down scheduling does not clear the way for medical use of a substance in Iowa. It also proves this judge is dishonest.

I’m going to appeal from this rotten decision, because it should not be allowed to stand.