Politics Meet the Lawyer Suing Jeff Sessions to End Cannabis Prohibition Sara Brittany Somerset February 20, 2018 Share Twitter Facebook Share Print Iraq war veteran Jose Belen, who takes marijuana to treat post-traumatic stress disorder, poses in front of federal court, Tuesday, Feb. 13, 2018, in New York. Belen is one of five plaintiffs in a lawsuit challenging federal marijuana laws. He is set to appear in a New York courtroom on Wednesday for arguments in a lawsuit that claims classifying marijuana as a dangerous drug is irrational and unconstitutional. (AP Photo/Mark Lennihan)

Last week, in a lawsuit that could put an end to federal cannabis prohibition, a federal judge in New York acknowledged the healing potential of medical marijuana. “It’s saved a life,” he said, referring to a Colorado girl with epilepsy. “She has no more epileptic seizures.”

The judge then turned to lawyers for the federal government, who have argued that cannabis is a dangerous drug with no accepted medical benefit. “If there is an accepted medical use,” he told them, “your argument doesn’t hold.”

The five plaintiffs have clearly obtained, and are able to maintain, a better quality of life because of cannabis. David C. Holland, attorney for plaintiffs

The case of Washington v. Sessions has generated great interest. Five plaintiffs, including former NFL player Marvin Washington; 12-year-old Colorado medical refugee Alexis Bortell; youngster Jagger Cotte; US military veteran Jose Belen; and the Cannabis Cultural Association, a nonprofit that helps people of color benefit from cannabis in states where it’s legal, have challenged the constitutionality of the classification of marijuana under the federal Controlled Substances Act. The case, filed in 2017, finally received its first hearing in federal court last week, when US District Court Judge Alvin Hellerstein heard the federal government argue for the case’s dismissal.

Leafly sat down with David C. Holland, a member of the legal team representing plaintiffs in the suit, following the Feb. 14 hearing. Holland is a litigator in New York City and the executive and legal director of Empire State NORML. He’s former counsel to High Times Magazine and a member of the New York Cannabis Bar Association.

Holland walked us through what’s at stake in the lawsuit and the significance of the government’s recent effort to dismiss it.

Leafly: Why have the plaintiffs sued US Attorney General Jeff Sessions?

Holland: The five plaintiffs have sued Sessions and the DEA to declare the classification of cannabis under the Controlled Substances Act unconstitutional on claims it violates their rights, including that to travel, to be engaged in business’ interests, and to be free from racial discrimination and in enforcement of the law against communities of color. The federal government denies those claims and has moved to dismiss the action.

What are the main components of the Controlled Substances Act? Take us through its procedural history.

In 1970, the federal Controlled Substances Act established five classifications, from Schedule I to V, ranging from prohibited to prescription, which classify and categorize drugs and how they may be researched, used, and administered. Marijuana was placed in Schedule I, the most restrictive category, based upon three criteria: high risk of abuse, no medical efficacy or use, and no ability to use or research it in a safe manner. Cannabis has never been rescheduled since 1970.

He was clearly wrestling with the reality that 30 states have already found cannabis to be a useful medical treatment, which directly contradicts one of the criteria of the CSA.

That Schedule I classification of cannabis can be changed by one of three ways: through an act of Congress, an act of the US attorney general, or an act of the FDA. Within the CSA is an administrative remedy where anyone can petition the FDA to have cannabis rescheduled where it would no longer be prohibited in that most restricted classification.

If anyone can petition the FDA, why haven’t more patients done so?

The petitioning process can take years, if not a decade to get an FDA determination on a rescheduling request. The FDA has repeatedly denied those petitions, as recently as 2013 (Americans for Safe Access v. FDA), and 2016 (Krumm Petition), finding that cannabis still should sit as a Schedule I substance based on those three criteria.

Tell us a bit more about the plaintiffs.

Three of the plaintiffs in the Washington case—Alexis Bortell, Jagger Cotte, and Jose Belen—suffer life-threatening or severely debilitating diseases. They are seeking to bypass the FDA’s administrative petitioning process in order to get more immediate relief, because they may not live long enough to otherwise await and hear the determination.

The CSA petitioning process does not have any realistically viable means for them to expedite review of a petition to bring relief to their life-altering and life-threatening circumstances. Therefore, for them, the petitioning process is futile. They seek relief from the federal court for the CSA’s violation of their constitutional rights, with regard to this medicine as well as redress of other violations and due process.

The government has moved to dismiss the plaintiffs’ claims on a multitude of theories rather than put in an answer to the claims and let them be heard and determined by the judge or jury.

On Feb. 14, Judge Hellerstein entertained written opposition to the motion to dismiss and heard oral argument from the parties. At the conclusion of oral argument, the judge reserved his decision and retired to his chambers to deliberate and draft an opinion about all the legal issues he was wrestling with in regard to motion.

Why did Judge Hellerstein seem so conflicted when speaking in court?

He was clearly wrestling with several legal issues pertaining to the Controlled Substances Act, and the reality that 30 states have already found cannabis to be a useful medical treatment, which directly contradicts one of the criteria of the CSA.

The first issue is referred to in legal terms as “exhaustion of remedies.” That is, the judge may be considering whether he must defer to the prior decisions of the FDA regarding the scheduling of cannabis. The government based its dismissal motion in part on a claim that the five plaintiffs had failed to exhaust their administrative remedies under the CSA. In other words, because no petition had first been filed with the FDA to reschedule cannabis, [the government argued that the court] does not have the jurisdiction to entertain the claims of the plaintiffs. Thus, their reasoning goes, the case should be dismissed.

Judge Hellerstein, however, did not seem particularly swayed by that argument. Several federal criminal cases have found that there is no requirement to file a petition to exhaust that administrative petition remedy when there are claims that constitutional rights are being violated by the enforcement of cannabis as a Schedule I drug under the CSA. That rule was upheld in late 2017 by the federal court in upstate New York, in a case known as US v. Green, which caused Judge Hellerstein to pause during the course of oral argument.

Do you think that was Hellerstein’s primary concern?

Not really. The issues that seemed to trouble Judge Hellerstein the most about the CSA petition process was whether he, as a judge, was without jurisdiction to hear, or must defer to, the administrative agency role of the FDA and prior findings in 2013 and 2016. In those findings, the FDA determined that cannabis was properly classified as a Schedule I substance.

If he did have such jurisdiction, could he then stand in the shoes of the FDA and make his own determination about the propriety of that schedule?

He further was concerned about any restrictions on the court’s analysis of the language of the statute, and the proper evidence to be evaluated, to determine whether the three criteria of Schedule I status continues to be met by cannabis. Some of the factors he noted included the fact that 30 states have legalized marijuana for medical purposes; the federal government has filed a patent on certain cannabinoids from the cannabis plant; and the five plaintiffs have clearly obtained, and are able to maintain, a better quality of life because of [medical cannabis].

The language of the CSA regarding the three scheduling criteria seems straightforward.

It is straightforward as “conjunctive,” in that cannabis seemingly must satisfy each and every one of the three factors to qualify as a Schedule I substance. The failure to satisfy any one of those factors renders the designation void. In other words, if the plaintiffs prove that cannabis fails to meet any one of the three criteria, [then the question becomes: Is the court] required to declare the Schedule I classification null and void?

What seemed to concern Judge Hellerstein was that generally, when a federal court reviews an agency’s determinations, like those of the FDA, and that agency has repeatedly determined that cannabis satisfies the Schedule I criteria, the court must generally evaluate and disjunctively weigh all the factors in the aggregate to determine if they are satisfied with the intent of the criteria and classification.

This was a concern to the court in the Green case I mentioned earlier. It also troubled the Eastern District of California court in the US v. Picard case. In Picard, the court allowed a five-day hearing of evidence on the science behind the Schedule I classification, and then ultimately concluded that any determination to reschedule cannabis is best left to Congress.

Do you think Hellerstein will defer to Congress?

This quandary of whether to defer to Congress invokes the “political question” doctrine, which says courts should generally not make decisions that are political in nature and best left to the legislative process. It is difficult to tell where Judge Hellerstein will ultimately fall on this political question issue. But he surely will wrestle with the fact that 30 states have already legalized cannabis despite its Schedule I status. That means that as a matter of politics, the actions of Congress should already have responded to the legislative actions already taken by an overwhelming majority of the states.

One argument advanced by your lawsuit is that the Controlled Substances Act and federal law enforcement should not govern cannabis in the 30 legalized states.

That is correct. The plaintiffs argue that although Congress may regulate interstate commerce—a.k.a. the commerce clause—between the states, the state-based activity of medical marijuana in those 30 states does not impact upon interstate commerce. Judge Hellerstein seemed to dismiss the argument out of hand, citing federal case law which finds that even a negligible or de minimis impact on commerce is enough to give the federal government jurisdiction over the issue.

There was also the argument about racism and equal protection under the law. While the history of cannabis prohibition, ignited by former federal drug czar Harry Aslinger, wasn’t addressed in court, President Nixon and his administration’s racist motivations for instituting the Controlled Substances Act were definitely called into question. Hellerstein seemed dismissive of the Nixon argument. How is Nixon’s racism still a contributing factor to the Controlled Substances Act?

It is unclear how Judge Hellerstein will rule on this “as applied” claim of the Cannabis Cultural Association (CCA). The CCA brought a claim on behalf of their members of color, who were disproportionately targeted for prosecution for marijuana offenses under the CSA. People of color unequally suffered collateral consequences stemming from those convictions as a result.

Judge Hellerstein seemed unpersuaded by statements of President Richard Nixon and his advisor, John Ehrlichman, which made clear that the criminalizing of marijuana under the CSA was done as a means to suppress minorities and social dissent against the Vietnam War. Judge Hellerstein suggested that any racist tendencies of the Nixon administration were not attributable to Congress under the separation of powers doctrine—where the powers of one branch of government are not affected by the actions of another. While there are compelling arguments to the contrary, which were not heard during the hearing, the plaintiffs hope that the issue is revisited in Judge Hellerstein’s opinion. Since so much of that claim seems to be a question of fact that will require lots of discovery and information to be tendered by the government, however, it’s unlikely to be the primary focus of the judge’s anticipated decision.

It seems that there are various possible outcomes. Do you think Hellerstein will dismiss the case? He hinted that he was going to kick the case to the Second Circuit Court.

There are three possible resolutions to the federal government’s motion to dismiss. Firstly, there is the potential dismissal of the claims. Secondly, Judge Hellerstein could deny the motion, and all claims will proceed to trial. Or, lastly, some mixture of the two.

Based on the comments and concerns [expressed by the] court, there is a possibility that the court will follow the precedent of the district courts in Picard and Green and find this to be a political question. However, if Judge Hellerstein finds that there are some claims that may be dismissed but [that] others are tenable, then there is a strong possibility that the court will berate both the FDA and Congress for failing to reschedule or deschedule cannabis, especially in light of the fact that 30 states have found that there is medical validity to marijuana. After all, as he openly stated, the plaintiffs are the best evidence of the effectiveness of cannabis as a medical cure.

For now, we will just have to wait and see. A ruling is expected as soon as this coming week.

Correction: An earlier version of this story mistakenly referred to Holland as the lead attorney for the plaintiffs.

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Sara Brittany Somerset New York-based reporter and photographer Sara Brittany Somerset has covered cannabis culture for 15 years. She has been the U.N. Bureau Chief for High Times, and occasionally works from remote places like Timbuktu. View Sara Brittany Somerset's articles