The Marijuana Scheduling Story

Jon Gettman wrote an article in High Times Magazine by the title Pot Matters: The Rescheduling Trap, on Monday, February 29, 2016, detailing his attempts to have marijuana federally rescheduled. I was a petitioner in Mr. Gettman’s most recent attempt to have marijuana rescheduled, and I will share my perspective.

The trap Mr. Gettman refers to is known in technical legal jargon as the rational basis test[1]. What that means is the expert decision of the administrative agency charged with keeping marijuana’s classification current will not be overturned by a court if the decision is rational. Mr. Gettman argued that the classification was not rational. Like many before him and many after him, Mr. Gettman’s argument was rejected. It’s an argument that is guaranteed to fail. If Mr. Gettman wants to call that a trap, so be it. The outcome was predictable.

Judges are not medical experts and differences of opinion between medical experts on marijuana’s medical use are simply resolved in favor of the status quo. To win the rational basis argument the witnesses would have to be in total agreement[2].

The 1972 Rescheduling Petition

I was a petitioner in the marijuana rescheduling petition filed by NORML in 1972. I joined the NORML petition in 1985. The petition was granted by the DEA’s Chief Administrative Law Judge, Francis L. Young, in 1988[3]. The administrative law judge’s ruling was overruled by the DEA Administrator citing a difference of opinion among medical experts[4]. The appeal court applied the “rational basis” analysis and upheld the administrator’s denial of the administrative law judge’s ruling citing a difference in opinion among the expert witnesses.

My 1983 Rescheduling Petition

I filed a petition with the DEA in 1983 asking for an exemption from federal scheduling for the Ethiopian Zion Coptic Church, similar to the one that exists for the sacramental use of peyote by the Native American Church[5]. The Ethiopian Zion Coptic Church is a Rastafarian church incorporated in Jamaica in 1976 that uses cannabis as it’s sacrament[6]. My request was denied, but the court specifically said I had Article III (U.S. Constitution) standing to access the federal courts[7].

In 1990, the United States Supreme Court rejected my request by refusing to recognize a federal exemption for the sacramental use of peyote[8]. This ruling was later overturned by Congress[9]. However, the court had the last word and overruled Congress[10]. So, the end result is that state law trumps a federal regulation as long as the state law is neutral toward religion and generally applicable (hold that thought of state law being of greater authority than a federal regulation, because I’m going to come back to it again later).

My 1992 Rescheduling Petition

I filed a petition with the DEA in 1992 arguing that THC had been rescheduled to federal schedule 2 in 1986 and internationally in 1991. I argued the plant THC comes from should be scheduled no higher than the principle psychoactive ingredient in the plant. My petition was denied because THC was being manufactured synthetically and marijuana was not used to make it[11].

While my appeal was pending in the federal courts, my attorney started a class action based on the rational basis argument that failed to make it out of federal district court in Pennsylvania[12].

Gettman’s 1995 Rescheduling Petition

Dr. Gettman and High Times Magazine filed their first petition to reschedule marijuana in 1995. When they tried to appeal from the denial of their request, the United States Court of Appeals said they did not have standing to access federal courts[13]. Standing is a legal term that means a concrete injury. The court ruled that because Dr. Gettman and High Times were merely advocates, they did not have the direct injury required to have Article III (U.S. Constitution) standing to access the federal courts.

Gettman’s 2002 Rescheduling Petition

Dr. Gettman filed another rescheduling petition in 2002 and asked me and several others, including Americans for Safe Access (ASA) and the National Organization for the Reform of Marijuana Laws (NORML), to join as co-petitioners. Dr. Gettman told me the rescheduling petitions I filed in 1983 and 1992 inspired him to file his own rescheduling petitions and he wanted to include me.

My 2008 Rescheduling Petition

I want to come back now to that thought I told you to hold about state laws superseding federal regulations. In 2006 the United States Supreme Court ruled that state laws defining medical use of controlled substances to assist in suicide were lawful because the federal government does not have the authority to preempt them using federal regulations[14]. I spoke to Mr. Gettman about this and suggested that we amend our petition to include this argument, because there were 8 states that had accepted the medical use of marijuana in 2002 and several more by 2006. Mr. Gettman said he did not want to amend the petition and that we were going to win based on science (the rational basis argument).

So, in 2008 I filed a petition to reschedule marijuana with the Iowa Board of Pharmacy and the only evidence I presented was 12 state laws accepting the medical use of marijuana. I said this was accepted medical use in the United States. Iowa law says marijuana must continue to have no accepted medical use in the United States, just like federal law, so I argued the accepted medical use of marijuana in other states was proof that marijuana is incorrectly classified under both state and federal law. Federal scheduling is done by regulation, not by statute, so I argued state laws supersede federal regulations and Iowa law refers to other laws in other states (because Iowa gets that phrase from federal scheduling).

The board denied my petition without ruling on my argument, but an Iowa District Court remanded the case and ordered them to rule on my argument[15]. The board then ruled unanimously in 2010 that marijuana is medicine and should be removed from schedule 1. I contacted Mr. Gettman again and showed him my results. Mr. Gettman still refused to amend our petition, saying he was going to win on science (the rational basis argument). I then notified all of the parties and the DEA that I was withdrawing from the other petitioners and intervening separately on my own.

The Rest of the Story

In 2011, the DEA rejected Mr. Gettman’s petition citing a difference in expert medical opinion, and in 2013, the U.S. Court of Appeals rejected Mr. Gettman’s petition citing a rational basis based on conflicting expert testimony[16]. The Court did not rule on my argument, but simply said I had a religious interest in marijuana. The dissenting judge said my argument was federalism and that was not the argument the other petitioners were making.

The most ironic part of the case was that the petitioners almost failed to show standing. They failed to show standing in their opening appeal brief, and failed again to show standing in their reply brief. At the oral argument, one of the petitioners who said he was being denied Veterans Administration benefits in Virginia (a state that did not allow medical use of marijuana) said that he lived in Oregon part of the year and possessed an Oregon medical marijuana card. The court asked for supplemental briefs and affidavits on standing and then gave the petitioner standing to lose the case on the merits because of the rational basis analysis. It’s ironic, because that was my argument. State laws matter.

So, Mr. Gettman’s warning should simply be don’t do what he did. There is an argument for rescheduling, but it’s not the one he made.

[1] Americans for Safe Access v. DEA, 706 F.3d 438 (D.C. Cir. 2013); Americans for Safe Access v. DEA, 134 S. Ct. 267, 187 L. Ed. 2d 151 (U.S., 2013); Olsen v. DEA, 134 S. Ct. 673, 187 L. Ed. 2d 422 (U.S., 2013).

[2] See, United States v. Pickard, 100 F. Supp. 3d 981 (E.D. Cal., Apr. 17, 2015).

[3] DEA Docket No. 86-22, Sept. 6, 1988.

[4] Alliance for Cannabis Therapeutics v. DEA, 930 F.2d 936, 289 U.S. App. D.C. 214 (1991); 15 F.3d 1131, 304 U.S. App. D.C. 400 (1994).

[5] 21 C.F.R. § 1307.31.

[6] Olsen v. DEA, 279 U.S. App. D.C. 1, 878 F.2d 1458 (1989); Olsen v. DEA, 495 U.S. 906, 110 S. Ct. 1926, 109 L. Ed. 2d 290 (1990); See, Town v. State ex rel. Reno, 377 So.2d 648 (Fla. 1979) (“the Ethiopian Zion Coptic Church represents a religion within the first amendment to the Constitution of the United States, the use of cannabis is an essential portion of the religious practice, the Ethiopian Zion Coptic Church is not a new church or religion but the record reflects it is centuries old and has regularly used cannabis as its sacrament”).

[7] Olsen v. DEA, 878 F.2d 1458 (D.C. Cir. 1989), cert. denied, 495 U.S. 906 (1990). The Court of Appeals found: “Olsen is a member and priest of the Ethiopian Zion Coptic Church,” 878 F.2d at 1459, “the Ethiopian Zion Coptic Church is a bona fide religion with marijuana as its sacrament” 878 F.2d at 1460, and “even if the DEA were not empowered or obliged to act, Olsen would be entitled to a judicial audience” 878 F.2d at 1461.

[8] Employment Division v. Smith, 494 U.S. 872 (1990).

[9] Religious Freedom Restoration Act of 1993 (RFRA), Public Law 103-141, 187 Stat. 1488, Nov. 16, 1993.

[10] Boerne v. Flores, 521 U.S. 507 (1997).

[11] 1996 U.S. App. LEXIS 30353; Olsen v. DEA, 519 U.S. 1118, 117 S. Ct. 964, 136 L. Ed. 2d 849 (1997).

[12] Kuromiya v. United States, 37 F. Supp. 2d 717, 1999 U.S. Dist. LEXIS 2627 (E.D. Pa., 1999); Kuromiya v. United States, 78 F. Supp. 2d 367, 1999 U.S. Dist. LEXIS 18297 (E.D. Pa., 1999).

[13] Gettman v. DEA, 290 F.3d 430 (D.C. Cir. 2002).

[14] Gonzales v. Oregon, 546 U.S 243 (2006).

[15] McMahon v. Iowa Board of Pharmacy, No. CV7415 (Iowa District Court, Polk County, April 21, 2009). I filed the petition and McMahon intervened in it. McMahon filed the appeal and I intervened in it. McMahon was represented by the ACLU of Iowa, and I represented myself.

[16] See footnote 1.