A cannabis lawsuit challenging the constitutionality of prohibition is set to be heard by the U.S. Supreme Court.
The plaintiffs argue it is unconstitutional that cannabis is illegal as a Schedule I drug since the government “does not believe, and upon information and belief never has believed” that cannabis meets the requirements for a Schedule I designation under the Controlled Substances Act (CSA). Their case also argues the mechanisms in place for the reconsideration of cannabis’ Schedule I classification are “illusory.”
Former NFL player Marvin Washington is the lead plaintiff. Hence the case is Washington v. Barr, directed at Attorney General Bill Barr.
Along with Washington, the other two plaintiffs need medical marijuana to live. One of them is Alexis Bortell, a sickly child who needs medical cannabis daily. Bortell must carry her medicine to prevent symptoms of seizures from occurring, which stops her from setting foot on federal property. The third is Jagger Cotte, who has a similar situation.
The lawsuit was launched by the Cannabis Cultural Association (CCA), which is a nonprofit that “helps marginalized and underrepresented communities engage in the legal cannabis industry, emphasizing criminal justice reform, access to medical cannabis, and adult-use legalization.”
Michael Hiller and Joseph A. Bondy, who was at the center of Russiagate, are the lead attorneys on the case. Hiller is the counsel on record. Bondy is on the board of the CCA and on the national Board of NORML.
The cannabis lawsuit is the latest of the CCA’s efforts to legalize cannabis via judicial means. They first took up the issue when former Attorney General Jeff Sessions held that office in 2017. They then sued the Drug Enforcement Agency (DEA) in 2018 to remove cannabis from the CSA. A judge ruled they needed to follow the process set up by the DEA, even if that process seemed designed to fail or move it to Schedule II.
Cannabis is currently a Schedule I drug that has no medicinal value. At the same time, cocaine is a Schedule II drug, indicating that while it has a high potential for abuse, it has redeeming medicinal properties.
Cannabis Lawsuit Fight
“The claim itself really has now become an individual and medical case,” Bondy said. He noted the latest federal court ruling hurt the social justice argument that was the focus of the CCA.
“It’s a significant case,” Bondy said.
If the Supreme Court decides in favor of Washington v. Barr, it creates a very legal framework than the current system of patchwork state laws while cannabis remains illegal.
“The most exciting thing is for people to come together on this marijuana legal movement and put their own ideas together, and it spans a lot of emotional, heartfelt beliefs. It’s remarkable to see,” Bondy said.
Congress has the power under the “Supremacy Clause” to squash the state markets. However, the federal budget’s Rohrabacher-Farr Amendment,” named after former Congressmen Sam Farr (D-CA) and Dana Rohrabacher (R-CA), has prevented the Department of Justice (DOJ) from spending money on fighting the state markets. The amendment was condoned in a 2016 federal court decision.
Cannabis being federally illegal and state legal, has raised several questions about how a cannabis company goes through bankruptcy laws to be dissolved.
Bondy said the Supreme Court is set down for conference Oct. 9, 2020, on whether or not to hear the case. However, he noted the overwhelming amount of cases are not granted certiorari. He said he’s lost a few times seeking a writ of certiorari for the Supreme Court to hear a case.
To grant certiorari to a petition where the court hears the case, among the nine justices, four need to agree to hear a case. The death of longtime liberal Supreme Court Justice Ruth Bader Ginsburg has not greatly changed the process to Bondy because he does not see it as an issue that falls on traditional party lines.
“It’ not clear to me that the passing of Justice Ginsburg makes it more or less likely,” Bondy said.
Going to the Supreme Court is a risk. There is a chance they will not hear the case. Or they might decide in favor of the opposition. While it is agreed the Supreme Court has a conservative bent, there are exceptions to the rule.
“No matter what happens in the Supreme Court, we’ve already won,” Bondy said, arguing that the issue has been raised significantly to the point where a movement has formed, and action is being taken by politicians to protect the state markets.
“It’s tragic for the court, Bondy said on the death of Ginsburg.
The National Organization for the Reform of Marijuana Laws (NORML), Empire State NORML, the New York City Cannabis Industry Association (NYCCIA), the Hudson Valley Cannabis Industry Association (HVCIA), and the New York City Cannabis Bar, among others, have filed a Friend-Of-The-Court Brief with the Supreme Court in Washington v. Barr.
Empire State NORML Director and lawyer David Holland wrote the NORML brief.
“There’s a different issue than just the kids,” Holland explained.
The legal situation of the multi-billion-dollar industry and the patients who rely upon it for medicine is precarious. All three branches of government have protected state markets against the CSA.
NORML argues that federal law, including the CSA, is supposed to be the supreme law of the land. If state law conflicts, it has to be invalidated.
“If that happens, you have a nullification crisis. What has happened since 1996, you have now 33 states plus D.C. have passed some form of legalization… the vast majority are acting in a way that’s contrary to the federal law, and it’s nullifying the federal law,” Holland said.
Holland also cited the Ogden and Cole memos issued by the DOJ to protect the medical and adult-use cannabis markets.
“Despite the fact that it’s all federally illegal,” Holland said.
In his amicus brief to the Supreme Court, Holland cites the doctrine estoppel, in fairness.
His point is that the state legal markets have been created based on state legalization.
“People are relying on those statements and entering into the space,” Holland said. “They (the government) should not be allowed to later go back and penalize people who relied on those actions and agreements and entered into the space.”
Holland explained that the estoppel doctrine has been used to stop federal agencies.
“What’s the point of having it on the books if it’s not enforced?” Holland asked.
Holland is optimistic the cannabis lawsuit will be heard because it addresses a serious issue of national policy. The majority of the U.S. has legalized at least medical cannabis.
“I think there’s more than 50-50 shot because at least under the argument I’m bringing of estoppel, it’s time to figure out how should the be when it’s in a state of flux with vast uncertainty that affects the entire nation,” Holland said.
NJ Ties to Cannabis Lawsuit
A couple of people with New Jersey ties have filed Amicus briefs. Gary Weinstein of Hoboken has filed a brief on behalf of the Last Prisoner Project (LPP), started by cannabis industry leader Steve De Angelo. He is listed as the counsel of record.
LPP brief focuses on the nature of how so many people are in jail for cannabis and seeking to free them.
“Perversely, many such individuals are incarcerated in the very same states where corporate executives generate impressive profits (and where those states collect significant tax revenues) from legalized commercial marijuana activity. This is patently unfair and must be addressed,” the LPP brief says.
NJWeedman has a similar argument. He has also pointed out the nature of the state markets is legally precarious.
The American Journal of Endocannabinoid Medicine, a scientific medical cannabis journal, also utilized a New Jersey-based lawyer to assist in their brief.