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Litigation

  • by Erik Altieri, NORML Communications Director January 22, 2013

    In a 28-page decision, the US Court of Appeals for the District of Columbia Circuit has denied petitioners request to overturn the July 2011 denial by the Drug Enforcement Administration to initiate proceedings to reschedule marijuana under federal law.

    In October 2002, the Coalition to Reschedule Cannabis, a coalition of reform organizations including NORML, ASA, Patients Out of Time and High Times, among others, petitioned the DEA to reschedule marijuana as a Schedule III, IV, or V drug. Following years of administrative delay, on July 8, 2011, the DEA denied the petition, finding that “[t]here is no currently accepted medical use for marijuana in the United States,” and that “[t]he limited existing clinical evidence is not adequate to warrant rescheduling of marijuana under the CSA.”

    Petitioners then sought review in the federal Court of Appeals, alleging the decision by the DEA was arbitrary and capricious when it concluded that marijuana lacks a “currently accepted medical use” and has a “high potential for abuse.” They ask this court to remand the case to the DEA for reconsideration of its decision.

    Written by Senior Circuit Judge Edwards, the decision ruled “On the record before us, we hold that the DEA’s denial of the rescheduling petition survives review under the deferential arbitrary and capricious standard. The petition asks the DEA to reclassify marijuana as a Schedule III, IV, or V drug, which, under the terms of the CSA, requires a ‘currently accepted medical use.’ The DEA’s regulations, which we approved in Alliance for Cannabis Therapeutics v. DEA, 15 F.3d 1131 (D.C. Cir. 1994), define ‘currently accepted medical use’ to require, inter alia, ‘adequate and well-controlled studies proving efficacy.’ Id. at1135. We defer to the agency’s interpretation of these regulations and find that substantial evidence supports its determination that such studies do not exist.

    “In its scientific and medical evaluation,” the court held, “DHHS concluded that marijuana lacks a currently accepted medical use in the United States. In reaching this conclusion, DHHS applied the DEA’s established five-prong test, which requires a known and reproducible drug chemistry, adequate safety studies, adequate and well-controlled studies demonstrating efficacy, acceptance of the drug by qualified experts, and widely available scientific evidence.”

    “We will not disturb the decision of an agency that has ‘examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made.’”

    In this case, we need only look at one factor, the existence of “adequate and well-controlled studies proving efficacy,” to resolve Petitioners’ claim.

    At bottom, the parties’ dispute in this case turns on the agency’s interpretation of its own regulations. Petitioners construe “adequate and well-controlled studies” to mean peer-reviewed, published studies suggesting marijuana’s medical efficacy. The DEA, in contrast, interprets that factor to require something more scientifically rigorous.

    In making this assessment, we must “remind ourselves that our role in the Congressional scheme is not to give an independent judgment of our own, but rather to determine whether the expert agency entrusted with regulatory responsibility has taken an irrational or arbitrary view of the evidence assembled before it.

    The DEA’s construction of its regulation is eminently reasonable. Therefore, we are obliged to defer to the agency’s interpretation of “adequate and well-controlled studies.” Judged against the DEA’s standard, we find nothing in the record that could move us to conclude that the agency failed to prove by substantial evidence that such studies confirming marijuana’s medical efficacy do not exist.”

    Petitioners are considering their legal options at this time.

  • by Paul Armentano, NORML Deputy Director December 18, 2012

    A 2010 voter-approved Arizona state law authorizing “the local cultivation, sale, and use, of medical marijuana” is not preempted by the federal Controlled Substances Act, according to the Superior Court of Arizona, Maricopa County.

    The ruling, issued earlier this month by Superior Court Judge Michael Gordon, allows for the establishment of state-licensed medicinal cannabis dispensaries within Arizona — the first of which opened its doors last week. State-licensed medical marijuana facilities now operate in several states, including Colorado, New Jersey, New Mexico, and Maine.

    A majority of Arizona voters approved the AMMA in 2010. Under the law, qualified patients may possess and, depending on where they reside, cultivate cannabis. The program also mandates the state to license citizens to form not-for-profit dispensaries to grow and dispense cannabis. AMMA requires that each of the state’s 126 Community Health Care Analysis Areas permit at least one dispensary operator. Maricopa County’s prosecutor sought to block the establishment of local dispensaries by claiming that AMMA was preempted by federal anti-drug laws.

    Writing for the Court in White Mountain Health Center, Inc. v. Maricopa County, Judge Gordon declared that nothing in the Arizona Medical Marijuana Act circumvents federal law since Justice Department officials, if they wished to do so, could still continue to locally enforce the Controlled Substances Act. “No one can argue that the federal government’s ability to enforce the CSA is impaired to the slightest degree [by Arizona’s medical marijuana law],” Gordon opined, adding that the new law “affirmatively provides a roadmap for federal enforcement of the CSA, if they so wished to” since the statute requires patients and proprietors to register their activities with the state.

    Judge Gordon further suggested that Arizona’s law did not conflict with the federal lawmakers’ intentions when they enacted the federal Controlled Substances Act. He declared, “Instead of frustrating the CSA’s purpose, it is sensible to argue that the AMMA furthers the CSA’s objectives in combating drug abuse and the illegitimate trafficking of controlled substances.”

    He concluded: “The Court rejects … arguments that the [law] violates public policy simply because marijuana use and possession violate federal law. Eighteen states and the District of Columbia have passed legislation permitting the use of marijuana in whole or in part. The Court will not rule that Arizona, having sided with the ever-growing minority of States, and having limited it to medical use, has violated public policy.”

    Maricopa County Attorney Bill Montgomery is appealing Judge Gordon’s ruling.

    Arizona regulations regarding patient access and dispensary operations is available from the Arizona Department of Health Services here.

  • by Keith Stroup, NORML Legal Counsel April 9, 2008

    On Monday, March 31, in the case of Commonwealth v. Cusick and Stroup, the defense team filed a Motion to Reconsider, along with three new expert witness affidavits.

    The defendants had previously filed a Motion to Dismiss, along with an extensive supportive affidavit from Lester Grinspoon, M.D., requesting a full evidentiary hearing where we would proffer testimony that would support our position that there is no longer a rational basis for the Commonwealth of Massachusetts to criminalize the personal use of marijuana by adults. It has been 29 years since the Massachusetts courts last made a comprehensive constitutional review of their marijuana laws, and a lot of new scientific evidence is now know about marijuana, and it is important for the courts to take another look at this matter. More than 7,300 marijuana smokers were arrested in the last year in Massachusetts, causing significant harm to the lives and careers of those individuals. More after the jump…

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  • by Keith Stroup, NORML Legal Counsel March 27, 2008

    When the court clerk finally called our case, the judge almost immediately called the attorneys to a bench conference, where he quickly indicated he would not have the time to hold this evidentiary hearing, but that he would refer the case to another judge in another courtroom, and we would have our evidentiary hearing that very day.

    Marijuana Challenge Dream Team
    Attorney Matt Feinberg; law student Brendan Hickey; Co-Defendant Rick Cusick; Lester Grinspoon, M.D.; Co-Defendant Keith Stroup; Professor Charles Nesson; and Keith Saunders, Ph.D.

    We had actually filed a motion to dismiss the case, based on our allegation that the marijuana laws are unconstitutional, and we had requested a full evidentiary hearing where we could call a number of witnesses to make our case. We had expected that the 30-page affidavit from Lester Grinspoon, M.D., would be sufficient to convince a judge to schedule an evidentiary hearing in 30 or 45 days. We were certainly not anticipating holding a hearing that very day, nor would we expect the government would be ready to hold such a hearing without some time to prepare their case.

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