SUPERIOR COURT OF THE STATE OF WASHINGTON COUNTY OF PIERCE RALPH SEELEY, No. 94-2-11862-1 Plaintiff, PLAINTIFF's BREIF SUPPORTING SUMMARY JUDGMENT OF DECLARATION vs. "SCHEDULE I" UNDER RCW 69.50.204 IS A VIOLATION OF THE WASHINGTON THE STATE OF WASHINGTON, CONSTITUTION Defendant. NOTED FOR AUGUST 25, 1995 ________________________________ The first casualty when war comes is truth. -- Hiram Warren Johnson Senate speech, 1917 I. INTRODUCTION Plaintiff Ralph Seeley, a lawyer, brought this action pro se, seeking a declaration that the placing of marijuana in "Schedule I" in RCW 69.50.204 is a violation of the liberties guaranteed by the Washington constitution. The plaintiff has standing to sue because he is a cancer patient, facing ongoing treatment for his disease, who has a legitimate need for marijuana to relieve suffering, and cannot legally obtain it. The plaintiff contends that two sections of Article I of the Washington constitution should protect him from the withholding of a valuable therapeutic herb. In brief: Persons who need opium, cocaine, morphine, barbiturates or amphetamines have the privilege of using the drugs and immunity from arrest with a doctor's prescription; the plaintiff needs cannabis in its vegetable state (marijuana), and has neither privilege nor immunity available to him. Article I § 12, the "privileges and immunities" clause, specifically prohibits such arbitrary classification. Article 1 § 32 states in full, "A frequent recurrence to fundamental principles is essential to the security of individual right and the perpetuity of free government." Prohibiting physicians from providing needed medicine to sick people has created legal and social consequences which should be changed as a matter of fundamental principle. The parties agreed to the procedural course now undertaken -- to file for summary judgment with simultaneous briefs, with the losing party to seek direct review by the Supreme Court. II. FACTS A. FACTS REGARDING THE PLAINTIFF'S MEDICAL HISTORY AND USE OF MARIJUANA. The plaintiff was diagnosed with chordoma, a rare form of bone cancer, in 1986. He has undergone eight surgeries on his spine, two lung surgeries (including the removal of one lung), neutron radiation, electron radiation, and several bouts of chemotherapy. Declaration of Ernest Conrad, Exhibit A; Declaration of Ralph Seeley, Exhibit B. In the course of chemotherapy, the plaintiff became so violently ill that he considered discontinuing the treatment and allowing the disease to run its course. At the suggestion of one of his physicians, and after discussion with other cancer patients, he smoked marijuana before the next injection of chemicals. The result was overwhelming. Without smoking marijuana, the plaintiff's suffering from chemotherapy included hours of agony ending with minutes of helplessly lying in his own vomit and excrement on the floor, unable to summon the energy to pull the "nurse call" cord inches away. After smoking marijuana, the same regimen of chemotherapy resulted in a mildly uncomfortable hour followed by a restful night's sleep. Declaration of Seeley, Exhibit B. With synthetic THC (Marinol or dronabinol) and other antiemetics, the relief was not as effective, and the side effects were much more troubling. There are three principal problems with legal, synthetic THC as opposed to illegal, vegetable-state marijuana: The synthetic drug takes a long time to take effect -- from two to four hours. Smoking marijuana brings results in five to ten minutes. The synthetic drug dose is impossible to "titrate," or adjust, and the lowest dosage supplied results in a more debilitating "high" than smoking marijuana. The "high" from the legal synthetic lasts about 14 hours, while it is typically gone in four to five hours with smoked marijuana. Declaration of Seeley, Exhibit B; Declaration of Grinspoon, Exhibit C. To stay legal, then, a patient must take the synthetic drug at least two hours before the chemotherapy; then plan on at least 14 hours of being "out of commission." If you don't take the drug two hours before the chemotherapy, the violent nausea takes over. Id. In the two to four days following weekly chemotherapy, the plaintiff would undergo unpredictable onsets of violent nausea and diarrhea. Trying to take the prescribed synthetic THC was futile, because the tablets were vomited up whole. Declaration of Seeley, Exhibit B. It cannot be over-emphasized that chemotherapy-induced nausea is not "an upset tummy." It is violent, unrelenting retching and gagging, often accompanied by an uncontrollable release of bowel control. The plaintiff underwent adriamycin/cysplatin chemotherapy at the University of Washington, one of the most sophisticated cancer-care facilities in the nation. Yet with legal THC, he still wound up on the treatment room floor, as described above. The non-medical realities for the plaintiff during chemotherapy were these: During his first bout of chemotherapy, he used legal antiemetics. He was in the second semester of the first year of law school, and wrote barely passing grades. During the second bout of chemotherapy (same chemo regimen), he smoked marijuana instead of or in addition to taking prescribed medications. The chemotherapy lasted most of the law-school semester, and he smoked marijuana virtually every day. He made the Dean's List, as well as winning an AmJur award for what his professor stated was "the best evidence exam I have ever seen." During the first chemotherapy, the THC tablets cost 84 cents each. Later, the cost went to more than $5 each, from the same pharmacy. (The plaintiff will produce the pharmacy vials at oral argument.) This cost increase of ___ percent coincides with the timing of the end of a federal program for supplying sick people with vegetable-state marijuana. The plaintiff paid nothing for the vegetable-state marijuana, which was donated. (Vegetable- state marijuana is typically free to sick people, since it costs virtually nothing -- other than risk of imprisonment -- to produce, and numerous people grow it for the exclusive use of sick people.) B. FACTS REGARDING THE LEGAL HISTORY OF MEDICAL MARIJUANA. 1. Marijuana as medicine, pre-prohibition. As summarized from Grinspoon, Marijuana, the Forbidden Medicine, pp 1-23 (attached to Declaration of Grinspoon, Exhibit C): Cannabis has been used as a soporific (sleep-inducement), analgesic (pain reduction), for constipation, to relieve headaches and nausea and numerous other health problems in various cultures throughout the world for more than 5,000 years. In all those centuries, there has never been a death recorded as a result of overdose, making it one of the safest, if not the safest chemicals ever ingested in human beings for healing purposes. The first Western physician to take notice of the plant was an English doctor who observed its use in India, and concluded that it was safe and helpful. In a report published in 11839, he wrote that it was an effective analgesic, and that its muscle relaxant properties made it "an anticonvulsive remedy of the greatest value." Cannabis was considered a routine part of the physician's pharmacopea in this country and others in the 18th and 19th centuries; it was even prescribed for Queen Victoria by her court physician. It was listed in the United States Dispensatory in 1854. Commercial cannabis preparations could be bought in drug stores. Numerous favorable reports on the drug were published in the second half of the last century, remarking on how the drug differed from narcotics such as opium by not causing debilitating side effects such as loss of appetite and constipation, not causing addiction, and not requiring higher doses to be effective over time. Several developments led to the discontinuance of marijuana as medicine. First, the advent of the hypodermic syringe led to quicker results in pain relief by injection of narcotics -- not possible with cannabis because it is not soluble in water. Next, the invention of synthetic drugs such as aspirin, chloral hydrate and barbiturates in the early part of this century had two results: First, as a plant, marijuana/hemp can't be patented, so profits drove pharmaceutical companies toward synthetics; and second, the dose could not be determined as specifically as with something such as an aspirin tablet. (It should be noted that between 500 and 1,000 people die of aspirin-induced bleeding every year in America, and barbiturates are, of course, even more dangerous. Thus, in hindsight, we may question the wisdom of replacing cannabis with synthetics.) Thus, when Congress was considering the Marijuana Tax Act of 1937, few voices in the medical community were raised in protest, because it appeared that no problems would be created; the act was aimed at recreational users. The film Reefer Madness may be a joke to sophisticated people today, but it was a genuine effort on the part of the government to sway the public about "dangerous and addictive" marijuana at the time. The effect of the Act was to make obtaining marijuana for medicinal use so administratively burdensome that its use fell off to virtually nonexistent, and the drug was removed from the United States Pharmacopoeia and National Formulary in 1941. 2. Marijuana as medicine, post-prohibition. Two social forces converged in the 1960s which have led to reconsideration of marijuana as medicine. One was the "coming out of the closet" of recreational marijuana users, which led to the discovery by some ill, recreational users that smoking it helped more and cost less than prescribed medicines. This led to a fund of "anecdotal evidence" that marijuana was effective in the treatment of glaucoma and spasticity from diseases such as multiple sclerosis. The other social force was the advent of chemotherapy for the attempted cure of cancer. (Since the plaintiff has standing as a cancer patient, this brief will primarily deal with that aspect of the issue.) Chemotherapy is, in a word, poison. Nurses who administer the chemicals wear protective clothing, face shields, and doubled rubber gloves, then inject the chemical directly into the patient's blood. Declaration of Seeley, Exhibit B. The concept of the treatment (roughly the same as radiation) is that the poison kills faster-dividing cells before it kills normally-growing cells. Since tumors are virtually defined by their characteristic runaway, uncontrolled growth, theoretically an amount of poison can be administered which kills the tumor but not the "host organism" (in this case, the plaintiff). The patient can only withstand a given amount of the therapy before dying of the cure, and in the process, the patient gets very sick, as described above, and tends to lose appetite and the ability to hold down food and digest it just when doing so to maintain strength and fight off the effects of the poison is most critical. A study by the Institute of Medicine, National Academy of Sciences released in 1981 noted the potential for therapeutic use and recommended further research: Until 10 or 15 years ago, there was virtually no systematic, rigorously controlled research on the human health-related effects of marijuana and its major constituents. Even now, when standardized marijuana and pure synthetic cannabinoids are available for experimental studies, and good qualitative methods exist. . .well- designed studies on human beings are relatively few. * * * Our major recommendation is that there be a greatly intensified and more comprehensive program of research into the effects of marijuana on the health of the American people. "Marijuana and Health," U.S. Institute of Medicine, Washington D.C., prepared for National Institutes of Health, Bethesda MD, Dec. 1981, pages 4-5. Despite such recommendations by such a prestigious body of scientists, little research has been done, and the federal government has erected one roadblock after another to prevent the gathering of legitimate, scientific evidence, discussed further below. From the scientific studies available despite the efforts of the federal government, smoked marijuana has been shown to be an extremely effective and inexpensive remedy to counter the truly horrific effects of undergoing cancer chemotherapy. Affidavit of Grinspoon, Exhibit C. It is, however, illegal. 3. State statutory law. Washington adopted the Uniform Controlled Substances Act in 1971, under which drugs are listed in "schedules," allegedly depending upon their therapeutic value and the potential safety. RCW 69.50. The "scheduling" of the drugs is allegedly done by the Board of Pharmacy. However, this is largely a fiction, since the schedules simply follow the federal model, as provided under RCW 69.50.201(a)(2); 201(e). If any drug has been scheduled differently in Washington than by the federal government, it remains mysterious to this plaintiff as to what that drug might be. Marijuana is listed as a "Schedule I" drug, meaning that (1) it has no currently accepted therapeutic use, (2) has a high potential for abuse, and (3) is not safe to use under medical supervision. RCW 69.50.203. (It is listed for some mysterious reason as a ""hallucinogenic substance." RCW 69.50.204(c)(14)). Synthetic THC, amphetamine, methamphetamine, cocaine, morphine and opium are Schedule II drugs, meaning they have "high potential for abuse," "currently accepted medical use,", and "the abuse of the substance may lead to severe psychological or physical dependence." RCW 69.50.205, 206. Barbiturates are Schedule III drugs. RCW 69.50.208. In simple terms, doctors may prescribe synthetic THC, cocaine, morphine, amphetamine, methamphetamine, barbiturates and opium, but may not prescribe marijuana. Numerous states, including Washington, enacted legislation to provide marijuana to medically certified patients as a combination of experimental and compassionate legislation. The Washington Controlled Substances Therapeutic Research Act became law in 1979 (RCW 69.51), stating The legislature finds that recent research has shown that the use of marijuana may alleviate the nausea and ill effects of cancer chemotherapy and glaucoma. The legislature further finds that there is a need for further research and experimentation regarding the use of marijuana under strictly controlled circumstances. The statute created a board of physicians to administer the program, in conjunction with federal agencies. It was amended in 1989 for "housekeeping" reasons (changing "department" to "board" and so forth), but long before, in 1981, for reasons that defy explanation on the surface, the legislature killed the program by not funding it. Exhibit D, letter to plaintiff from Donald Williams, Executive Director, Board of Pharmacy. The alleged reason is that the research proved that THC was effective, and THC was synthesized and marketed as dronabinol or Marinol, therefore no further need for vegetable-state "smokeable" marijuana was required. For reasons set forth in Section A above, and in the Declaration of Grinspoon, Exhibit C, the contention is absurd. 4. State case law. When Samuel Diana was arrested in 1977 for possession of a small amount of marijuana, he argued that it helped him cope with his multiple sclerosis better than prescribed medications. The Court of Appeals held that necessity is always a potential defense to a crime, and remanded the case for determination, by a preponderance of the evidence, whether (1) the defendant reasonably believed his use of marijuana was necessary to minimize the effects of his disease; (2) whether the benefits derived from the drug's use are greater than the harm sought to be prevented by the controlled substance law; and (3) that no other drug is as effective in minimizing the effects of the disease. State v. Diana, 24 Wn. App. 908, 604 P.2d 1312 (1979). With the current state of the literature on the subject, (especially since the release of the report of the DEA's Chief Administrative Law Judge in 1988, discussed further below), any person with glaucoma, multiple sclerosis (or other spasticity problems), chemotherapy-induced nausea or the AIDS "wasting syndrome" has no problem whatsoever meeting the first and third of those, leaving judges only to grapple with the issues of relative harm. The result is that described in the Declaration of Andrew Subin, Exhibit E: Persons who need cannabis for medicinal purposes end up using it quasi-legally, after being arrested, posting bail, paying an attorney, and having their supply confiscated and not returned. See also, State v. Cole, 74 Wn. App. 571, ___ P. 2d ___ (1994), in which (1) Division II specifically adopted the legal reasoning of Division III in State v. Diana, (2) the court held that a marijuana user's own testimony is more than a "scintilla" of evidence, and requires the issue of his reasonableness in using the drug to go to the jury, and (3) in the "facts" section of the opinion, it is established that a superior court judge stated, "I hope they get you a prescription for marijuana if that's the only thing that works. . .[y]ou cannot in the future grow marijuana for your own consumption without a prescription." Cole at 573. This demonstrates the sort of misunderstanding among judges exemplified in the Declaration of Subin, Exhibit E, and which results in unintentional but real injustice on sick and helpless people. This bizarre state of affairs is a keystone to the legal arguments below concerning both the privileges and immunities clause and the "frequent recurrence to fundamental principles." 5. The federal farce. The history of medical marijuana and federal law over the past three decades has resulted in untold unnecessary suffering among some of society's most sick and helpless individuals and their families; has diminished respect for the rule of law; and has resulted in appointed bureaucrats corrupting the system Congress set in place. The suborning of the rule of law to the hysteria of the "war on drugs" reads like Franz Kafka interpreting "Through the Looking Glass." It goes approximately like this: 1972: The National Organization for the Reform of Marijuana Laws (NORML) petitioned the Bureau of Narcotics and Dangerous Drugs (precursor to the DEA) to reclassify medical marijuana. The agency refused to act on the petition. NORML appealed to the U.S. Court of Appeals, District of Columbia Circuit. 1974: The court held that the agency's position had no merit, and that the petition should be processed. NORML v. Ingersoll, 497 F.2d 654 (D.C. Cir. 1974). 1975: The DEA (replacing the BNDD) dismissed the petition without hearing testimony. NORML appealed. 1977: The Court of Appeals reversed the dismissal, criticizing the DEA for not providing scientific and medical evaluations as required by law, which were to be provided by the Department of Health, Education and Welfare (HEW). NORML v. DEA, 559 F.2d 735 (DC Cir. 1977). 1979: Unreasonable delays resulted in NORML filing motions to compel, against both DEA and HEW. Facing sanctions, HEW produced a response. DEA then dismissed the petition once again with no hearings. NORML appealed again. 1980: The Court of Appeals for the third time reprimanded the DEA and affirmed NORML's right to a "full and fair" hearing. 1981: NORML filed another motion to compel. Within three days the agencies announced the approval of synthetic THC (Marinol/dronabinol), and promised a "legislative type hearing" would be forthcoming. 1982: With no hearing yet held, NORML filed yet another motion to compel. The Court of Appeals issued a Mandatory Progression Order requiring the DEA and HEW to provide them with 90-day progress notes. 1986: Hearing procedures were finally set. 1987: Written affidavits, evidence and exhibits filed. Hearings were held in New Orleans and San Francisco. 1988: Further evidentiary hearings were held in Washington, D.C. Oral arguments were held before the DEA's Chief Administrative Law Judge, Francis L. Young. In September, Judge Young issued the 68-page "Opinion And Recommended Ruling, Findings Of Fact, Conclusion Of Law And Decision Of Administrative Law Judge In The Matter Of Marijuana Rescheduling Petition, Docket No. 86-22, U.S. Department of Justice, Drug Enforcement Administration." (Hereinafter, "Young Opinion.") Judge Young concluded: The evidence in this record clearly shows that marijuana has been accepted as capable of relieving the distress of great numbers of very ill people, and doing so with safety under medical supervision. It would be unreasonable, arbitrary and capricious for the DEA to continue to stand between those sufferers and the benefits of this substance in light of the evidence in this record. Young Opinion, page 68. Judge Young recommended unequivocally that marijuana be rescheduled as a Schedule II therapeutic drug. Id. 1989: The head bureaucrat at the DEA rejected Judge Young's recommendation and refused to reclassify marijuana, characterizing its medical use as "a cruel and dangerous hoax." 54 Federal Register 53767-53785, Dec. 29, 1989, p. 53784. NORML and the Alliance for Cannabis Therapeutics immediately appealed. 1991: The Court remanded the case to the DEA, noting the circularity of the alleged logic: The DEA administrator refused to reschedule the drug because, inter alia, it did not meet the requirement for "general availability of the substance" and "recognition of its clinical use in generally accepted pharmacopoeia, medical references, journals and textbooks," and for "recognition and use of the substance by a substantial segment of the medical practitioners in the United States." The court pointed out the impossibility of showing that a drug enjoys "availability" or "use" when it is illegal for doctors to obtain it by virtue of it being a Schedule I drug. Likewise, the drug is not going to show up in any manual or pharmacopoeia if it is illegal to prescribe and illegal to possess. Alliance for Cannabis Therapeutics v. DEA, 930 F.2d 936 (DC Cir. 1991). 1992: DEA head bureaucrat Robert Bonner issued a new Denial of Petition leaving out the circular logic, but asserting boldly and in direct contradiction of his Chief Administrative Law Judge's opinion, that his response was based on common sense: Smoking causes lung cancer and other deadly diseases. Americans take their medicines in pills, solutions, sprays, shots, drops, creams and sometimes suppositories, but never by smoking. Final Rule, Denial of Petition for Marijuana Rescheduling, March 18, 1992. In summary: Congress created an agency with the power to "schedule" drugs and to change the scheduling as new information became available; the agency refused to follow the mandates of Congress by investigating new information until forced by citizens to do so through court action over a span of two decades; the recommendation to make the change based on research and information was ignored by a bureaucrat relying on his own belief, superstition, or other imponderable reality. During most of the above-described decades, the federal government had in place a program by which some qualified sick people could obtain marijuana on a compassionate/experimental basis. It was discontinued, and no new applicants are permitted to obtain the drug. 1995 - The final irony: Through the decades, the feds have been citing a "lack of scientific evidence," especially since the approval of synthetic THC -- i.e., "there is no scientific evidence that the benefits of smoked marijuana are superior to those of synthetic THC." (This Court may expect virtual litany of such nonsense from opposing counsel as these briefs are written and filed.) Dr. Donald Abrams of the University of California San Francisco spent three years obtaining the approval of the Food and Drug Administration for a study on that exact issue, regarding the effect of the two regimens (smoked versus oral) on the AIDS "wasting syndrome." In April of this year, the federal government rejected the proposal by refusing to supply the marijuana for the experiment. Affidavit of Doblin, Exhibit F. Thus, the government contends that the prohibition of marijuana as medicine is justified based on lack of scientific evidence, while prohibiting the gathering of scientific evidence. This circular and cynical manipulation of logic and legal argument at the expense of suffering and helpless people is another cornerstone of the "fundamental principles" argument set forth below. III. LAW AND LEGAL ARGUMENT The plaintiff is petitioning this Court for equitable relief, by way of a declaration that his right to be free of suffering is being unreasonably withheld in violation of the "privileges and immunities" clause of the Washington Constitution, the "frequent recurrence to fundamental principles" clause, or both. The Court's power to issue such a declaration is set forth in Article 4, § 6 of the Constitution of the State of Washington, and RCW 7.24, the Uniform Declaratory Judgments Act. A. THE WASHINGTON CONSTITUTION CONTAINS SAFEGUARDS TO INDIVIDUAL LIBERTY NOT FOUND IN THE FEDERAL CONSTITUTION. It is well-established law that the U.S. Constitution's Bill of Rights, tacked on as an afterthought years after the Constitution itself was ratified, protects individual liberty to a lesser extent than Washington's constitution, in which the "Declaration of rights" is the first section. Article I § 1 states unequivocally that All political power is inherent in the people, and governments. . .are established to protect and maintain individual rights. The Supreme Court of Washington has held that even where the language of the two constitutions is similar, greater protection may be found under the state's constitution. State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986). The plaintiff asks no more than to have this Court protect his individual right to be free of needless physical suffering, now being caused by his own government. B. THE PLAINTIFF IS ENTITLED TO A DECLARATORY JUDGMENT UNDER ARTICLE 1 § 12 OF THE CONSTITUTION OF THE STATE OF WASHINGTON, WHICH PROHIBITS SPECIAL PRIVILEGES AND IMMUNITIES. 1. Washington's "privileges and immunities" clause is entitled to a more liberal interpretation to protect individual rights than the federal constitution's counterpart. The "privileges and immunities" clause of the state's constitution is analyzed in the same manner as the "equal protection" clause of the 14th Amendment of the U.S. Constitution. State v. Smith, 117 Wn.2d 263, 814 P.2d 652 (1991). That three- prong analysis involves "levels of scrutiny" which are typically determinative of outcome, outlined in Smith at pages 277-79: "Strict scrutiny" is required when a statute affects a "suspect class or a fundamental right." A law may be upheld only if it is "necessary to accomplish a compelling state interest." "Heightened" or "intermediate" scrutiny typically applies to gender- based classifications, but has been held to apply when the challenged law affects both an important right(such as liberty) and a semi-suspect class not accountable for its status (such as the poor). The test is that the law must be seen as "furthering a substantial interest of the state." Minimal scrutiny is applied absent any reason for applying the higher levels. The test is whether a "rational relationship" exists between the challenged classification and a "legitimate state interest." The classification must be "purely arbitrary" to overcome the presumption of constitutionality. In State v. Gunwall, supra., the Washington Supreme Court set out what have become known as "the Gunwall factors," six areas of analysis required to be raised and briefed before the state's Supreme Court will consider invoking higher standards of personal liberty protection under the state constitution, compared to that provided by the U.S. Constitution. In State v. Smith, supra, Justice Utter's concurring opinion provided a complete analysis of the state's privileges and immunities clause as contrasted to the 14th Amendment analysis above, and concluded that all six Gunwall factors were met, requiring an independent analysis to determine whether a challenged law violates Article 1, § 12. While the majority rejected his analysis based on Oregon constitutional analysis (our privileges and immunities clause was derived from Oregon's), there was no statement by the majority that Washington's privileges and immunities clause does not provide a higher level of protection for individual rights than the 14th Amendment, only that "several recent decisions hold that the privileges and immunities clause and the equal protection clause are substantially identical and considered by this court as one issue. We decline to interpret Const. art 1 § 12 independently of the Fourteenth Amendment in this decision as well." The plaintiff adopts Justice Utter's analysis by incorporation, and has attached a copy of the opinion for the convenience of the Court, as Exhibit G.
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