Monday, August 15, 2022
Nevada Supreme Court rejects claim that state's "lawful use" statute protects casino worker from discharge for off-duty marijuana use
Nearly a decade ago, a fascinating employment law case began working its way through the Colorado state court system following the termination of Brandon Coats by the Dish Network. Coats, who used medical marijuana following a car accident that left him a quadriplegic, claimed that Colorado state law protected him from discharge simply for having tested positive for marijuana since he used the drug only off-duty and lawfully under state law. The case involved sympathetic facts early in the modern marijuana reform era, and the case generated lots of amicus briefs and media attention when it reached the state's Supreme Court. In the end, the Colorado Supreme Court ruled in Coats v. Dish Network, 350 P.3d 849 (Colo. 2015) that "an activity such as medical marijuana use that is unlawful under federal law is not a "lawful" activity under" the applicable state employment law.
I was reminded of Coats and all the attention it generated when I tripped across this morning a very similar ruling handed down late last week by the Nevada Supreme Court. In Ceballos v. NC Palace, No. 82797 (Nev. Aug 11, 2022) (available here), the underlying facts are a bit different: employee's termination comes after state-lawful recreational marijuana use and the language of the applicable state-law statutory employment protections are a bit different. But the result is the same, as the start and end of the unanimous ruling reveals:
NRS 613.333 creates a private right of action in favor of an employee who is discharged from employment for engaging in "the lawful use in this state of any product outside the premises of the employer during the employee's nonworking hours." The question presented is whether adult recreational marijuana use qualifies for protection under this statute. We agree with the district court that it does not. Although Nevada has decriminalized adult recreational marijuana use, the drug continues to be illegal under federal law. Because federal law criminalizes the possession of marijuana in Nevada, its use is not "lawful ... in this state" and does not support a private right of action under NRS 613.333. Further, because NRS 678D.510(1)(a) authorizes employers to prohibit or restrict recreational marijuana use by employees, an employee discharged after testing positive at work based on recreational marijuana use does not have a common-law tortious discharge claim. We therefore affirm....
The interplay between adult recreational marijuana use and employment law, moreover, is one the Legislature has addressed in NRS 678D.510(1)(a) and, to a lesser extent, in NRS 613.132. Palace Station terminated Ceballos for failing a workplace drug test after engaging in adult recreational marijuana use before his shift. NRS 678D.510(1)(a) specifically authorizes employers to adopt and enforce workplace policies prohibiting or restricting such use. If the Legislature meant to require employers to accommodate employees using recreational marijuana outside the workplace but who thereafter test positive at work, it would have done so. Cf. NRS 678C.850(3) (requiring employers to accommodate the medical needs of employees who use medical marijuana unless certain exceptions exist). It did not. It also did not extend the protections afforded by NRS 613.333 and NRS 613.132 to reach the circumstances giving rise to Ceballos's termination. See supra Section II.A. (discussing the limits the Legislature has set on the protections NRS 613.333 and NRS 613.132 afford). This court declined to allow the employees in Chavez and Sands Regent to pursue common-law tortious discharge claims to redress the discrimination they alleged, because doing so would intrude on the prerogative of the Legislature, which had enacted statutes addressing the same subject matter. See Chavez, 118 Nev. at 294, 43 P.3d at 1026; Sands Regent, 105 Nev. at 440, 777 P.2d at 900. Doing so would be even less appropriate here.
Thursday, August 19, 2021
Medical marijuana prisoner cites recent Justice Thomas statement questioning federal prohibition in support of sentence reduction
In this post a couple of months ago, I noted Justice Thomas's five-page statement respecting denial of cert in Standing Akimbo v. US questioning whether the Raich decision upholding federal power to prohibit all marijuana activity is still good law. As noted in this recent Marijuana Moment article, headlined "SCOTUS Justice’s Marijuana Comments Should Help Federal Prisoner Win Freedom, Attorney Says," a high-profile federal prisoner is now using this statement to support his argument for a sentence reduction. Here are the details:
Lawyers for a man serving time in federal prison for operating a state-legal medical marijuana dispensary are making the case that a U.S. Supreme Court justice’s recent statement denouncing the inconsistencies of federal cannabis policy underscore the need for the relief to be granted to their client.
Luke Scarmazzo, who was sentenced to 22 years in federal prison while acting in compliance with California’s marijuana laws, filed a motion for compassionate release in June. And his legal team recently submitted a supplementary brief that cites statements from one of the Supreme Court’s most conservative justices, Clarence Thomas.
While the high court recently declined to take up case related to an Internal Revenue Service investigation into tax deductions claimed by a Colorado marijuana dispensary, Thomas issued a statement that more broadly addressed the federal-state marijuana disconnect.
Now, Scarmazzo’s team is arguing that the U.S. District Court for the Eastern District of California should take the justice’s comments into account when considering his motion for compassionate release.... The crux of the new brief from Scarmazzo’s lawyers concerns Thomas’s statement in the unrelated IRS case.
Attorneys asserted that the justice’s comment “is an acknowledgement by the highest court in the land of the monumental change that has occurred throughout the nation in the attitudes and laws governing marijuana, and therefore provides further, compelling, support to the extraordinary and compelling reason the defendant should be eligible for Compassionate Release based on a change in law.”
“While Justice Thomas’s opinion does not embody the resolution or determination in a specific case, his opinion rests upon a solid foundation and is no less applicable to the Defendant’s case,” it continues. “Thomas felt compelled under the circumstances to expound upon the history and current state of the federal prohibition on cultivation and use of marijuana, the many changes to the laws at the state level, and the contradictory federal marijuana policy that are virtually unsustainable at this point.”
“This court should join the majority of District Courts who have granted Compassionate Release when the law has changed, and reform has occurred. Since the long sentence is not consistent with the current state of law, or the sentences imposed upon his co-defendants, and since he may provide life saving support to his father, Mr. Scarmazzo should be granted compassionate release.”
Prior related post:
Sunday, August 15, 2021
California Supreme Court rules Prop 64 did not undo criminalization of possession of cannabis in prison
This past week, the California Supreme Court ruled in People v. Raybon, No. S256978 (Cal. Aug. 12, 2021) (available here), that state prisoners cannot legally possess marijuana while in prison. The start of the court's ruling highlights why this was not quite a no-brainer given the law of Proposition 64:
This case requires us to interpret Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act (Prop. 64, as approved by voters, Gen. Elec. (Nov. 8, 2016) (Proposition 64 or the Act)). The question we must answer is whether Proposition 64 invalidates cannabis-related convictions under Penal Code section 4573.6, which makes it a felony to possess a controlled substance in a state correctional facility. Although Proposition 64 generally legalizes adult possession of cannabis, it contains several exceptions. One such exception provides that the Act does not amend or affect “[l]aws pertaining to smoking or ingesting cannabis or cannabis products on the grounds of, or within, any facility or institution under the jurisdiction of the Department of Corrections and Rehabilitation . . . .” (Health & Saf. Code, § 11362.45, subd. (d).) The Attorney General contends this exception applies to violations of Penal Code section 4573.6, meaning that possession of cannabis in a correctional facility remains a felony. Defendants disagree, arguing that because the exception only refers to “[l]aws pertaining to smoking or ingesting cannabis,” it does not apply to laws that merely criminalize possession of cannabis.
Ultimately, we find the Attorney General’s proposed reading of Health and Safety Code section 11362.45, subdivision (d) to be more persuasive. As discussed below, the phrase “[l]aws pertaining to smoking or ingesting cannabis” (ibid.) is broad enough to encompass statutes that criminalize possession. Moreover, there is no law that makes it a crime to smoke, ingest or use cannabis (or any other form of drug) in prison. Instead, the Legislature has taken a “ ‘ “prophylactic” ’ ” approach to the problem of drug use in prison by criminalizing only the possession of such drugs. (People v. Low (2010) 49 Cal.4th 372, 388.) Thus, under defendants’ interpretation, section 11362.45, subdivision (d)’s carve-out provision would fail to preserve any preexisting law regulating cannabis in prisons from being “amend[ed], repeal[ed], affect[ed], restrict[ed], or preempt[ed]” (§ 11362.45), and would instead render the possession and use of up to 28.5 grams of cannabis in prison entirely lawful. It seems unlikely that was the voters’ intent. Stated differently, it seems implausible that the voters would understand the requirement that Proposition 64 does not “amend, repeal, affect, restrict, or preempt” any “[l]aws pertaining to smoking or ingesting cannabis” (§ 11362.45, subd. (d)) to convey that, as of the date of the initiative’s enactment, possessing and using up to 28.5 grams of cannabis would now essentially be decriminalized in prisons. In our view, the more reasonable interpretation of section 11362.45, subdivision (d) is that the statute is intended “to maintain the status quo with respect to the legal status of cannabis in prison.” (People v. Perry (2019) 32 Cal.App.5th 885, 893.) Thus, possession of cannabis in prison remains a violation of Penal Code section 4573.6.
Monday, June 28, 2021
One of many interesting stories of modern marijuana reform has been the relative lack of Supreme Court engagement with the issue in modern times (which, of course, is partially a function of the relative lack significant federal reforms passed by Congress to date). Against that backdrop, it was especially surprising and exciting that Justice Thomas today decided to pen this five-page statement respecting the denial of cert in a tax case, Standing Akimbo v. US, in order to question whether the Raich decision upholding federal power to prohibit all marijuana activity is still good law. The whole statement is a must read, and here are just a few passages that I especially enjoyed (cites and footnotes removed):
Whatever the merits of Raich when it was decided, federal policies of the past 16 years have greatly undermined its reasoning. Once comprehensive, the Federal Government’s current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana. This contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the unwary....
though federal law still flatly forbids the intrastate possession, cultivation, or distribution of marijuana, Controlled Substances Act, the Government, post-Raich, has sent mixed signals on its views. In 2009 and 2013, the Department of Justice issued memorandums outlining a policy against intruding on state legalization schemes or prosecuting certain individuals who comply with state law. In 2009, Congress enabled Washington D. C.’s government to decriminalize medical marijuana under local ordinance. Moreover, in every fiscal year since 2015, Congress has prohibited the Department of Justice from “spending funds to prevent states’ implementation of their own medical marijuana laws.” That policy has broad ramifications given that 36 States allow medicinal marijuana use and 18 of those States also allow recreational use.
Given all these developments, one can certainly understand why an ordinary person might think that the Federal Government has retreated from its once-absolute ban on marijuana. One can also perhaps understand why business owners in Colorado, like petitioners, may think that their intrastate marijuana operations will be treated like any other enterprise that is legal under state law.
Yet, as petitioners recently discovered, legality under state law and the absence of federal criminal enforcement do not ensure equal treatment....
Suffice it to say, the Federal Government’s current approach to marijuana bears little resemblance to the watertight nationwide prohibition that a closely divided Court found necessary to justify the Government’s blanket prohibition in Raich. If the Government is now content to allow States to act “as laboratories” “‘and try novel social and economic experiments,’” Raich, 545 U. S., at 42 (O’Connor, J., dissenting), then it might no longer have authority to intrude on “[t]he States’ core police powers . . . to define criminal law and to protect the health, safety, and welfare of their citizens.” Ibid. A prohibition on intrastate use or cultivation of marijuana may no longer be necessary or proper to support the Federal Government’s piecemeal approach.
Of course, Justice Thomas dissented in Raich, so perhaps it should not seem lke a big surprise that he would be inclined to talk up the possibility that it is no longer good precedent. Still, I do not think the tax issue in Standing Akimbo directly called for considering Raich's standing and status. And, of course, Justice Thomas "had me at hello," given that a mere eight months ago I was talking up in this post the prospects of "Raich 2.0" challenges to federal prohibition because so much has changed in the 16 years since the original Raich ruling. (In my prior post, I suggested a number of new Justices might not only be inclined to join Justice Thomas to reconsider the Commerce Clause ruling in Raich, but also might be inclined to breathe some life into the Ninth and Tenth Amendments in this unique context. And one could further speculate that Justices Breyer, Kagan and Sotomayor might be open to considering Fifth and Eighth Amendment challenges to the modern functioning of federal marijuana prohibition.)
Disappointingly, none of Justice Thomas's fellow Justices joined his statement, and so it is unclear whether there could be others inclined to now reconsider Raich. But I am hopeful that perhaps this statement by Justice Thomas alone could fuel some more lower court litigation and discussion, perhaps on a number of different grounds, concerning whether blanket federal marijuana prohibition now functions in constitutionally problematic ways. I think it is only a matter of time before we start to see more Supreme Court engagement with marijuana reform issues, and broadside constitutional issues always make for an interesting place to start.
Wednesday, April 14, 2021
New Jersey Supreme Court unanimously upholds employer obligation to reimburse medical marijuana for workplace injury
The New Jersey Supreme Court yesterday issued a unanimous decision that serves as a reminder of just some of the legal questions that continue arising amid continued marijuana reforms. Specifically, in Vincent Hager v. M&K Construction, No. A-64-19 (N.J. Apr. 13, 2021) (available here), the top NJ court ruled that medical marijuana expenses were fairly covered under the state's workers' compensation act and that the federal Controlled Substances Act did not preclude or preempt the employer's reimbursement obligations. Here is how the extended opinion gets started:
Vincent Hager injured his back in a work-related accident in 2001 while employed by M&K Construction (M&K). For years thereafter, Hager received treatment for chronic pain with opioid medication and surgical procedures to no avail. In 2016, he enrolled in New Jersey’s medical marijuana program both as a means of pain management and to overcome an opioid addiction. Thereafter, a workers’ compensation court found that Hager “exhibit[ed] Permanent Partial Total disability” and ordered M&K to reimburse him for the ongoing costs of his prescription marijuana (the Order). The Appellate Division affirmed.
Before us, M&K contends that New Jersey’s Jake Honig Compassionate Use Medical Cannabis Act (Compassionate Use Act or the Act) is preempted as applied to the Order by the federal Controlled Substances Act (CSA). Compliance with the Order, M&K claims, would subject it to potential federal criminal liability for aiding-and-abetting or conspiracy. M&K also asserts that medical marijuana is not reimbursable as reasonable or necessary treatment under the New Jersey Workers’ Compensation Act (WCA). Finally, M&K argues that it fits within an exception to the Compassionate Use Act and is therefore not required to reimburse Hager for his marijuana costs.
We conclude that M&K does not fit within the Compassionate Use Act’s limited reimbursement exception. We also find that Hager presented sufficient credible evidence to the compensation court to establish that the prescribed medical marijuana represents, as to him, reasonable and necessary treatment under the WCA. Finally, we interpret Congress’s appropriations actions of recent years as suspending application of the CSA to conduct that complies with the Compassionate Use Act. As applied to the Order, we thus find that the Act is not preempted and that M&K does not face a credible threat of federal criminal aiding-and-abetting or conspiracy liability. We therefore affirm the judgment of the Appellate Division.
Wednesday, March 3, 2021
As reported in this AP article, a "man who was prescribed medical marijuana to help with back pain has won a second victory in his legal battle over whether workers’ compensation insurance can reimburse him for the cost, the New Hampshire Supreme Court determined Tuesday." Here is more:
The court ruled in favor of Andrew Panaggio, saying “we are not persuaded” by the state’s arguments that an insurance carrier, under the federal Controlled Substances Act, could be prosecuted for aiding and abetting a marijuana possession crime if it has to reimburse Panaggio. In 2019, the court had ruled that a state labor appeals board was wrong to determine that workers’ compensation insurance couldn’t reimburse Panaggio. But the federal law question was unresolved.
Panaggio had hurt his back at work and was approved by the state Department of Health and Human Services to participate in a therapeutic cannabis program in 2016. He used the medical marijuana to treat ongoing pain and sought reimbursement through workers’ compensation....
The New Hampshire court noted Tuesday that other courts have considered whether the Controlled Substances Act preempts a state order requiring medical marijuana reimbursement, and that the results are mixed. In a 2018 case in Maine, the state supreme court ruled against a paper mill worker who was disabled after being hurt on the job in 1989. But last year, in New Jersey, an appeals court ruled that a contractor must reimburse a former employee for the cost of medical marijuana that he uses to treat pain from a work-related injury.
At least five states have found medical marijuana treatment is reimbursable under their workers’ compensation laws, and other states have proposed similar laws, according to the National Council on Compensation Insurance. Several states have passed laws excluding medical marijuana treatment from workers’ compensation reimbursement.
The full unanmous ruling from the Supreme Court of New Hampshire is available at this link.
Wednesday, November 4, 2020
After big (red) marijuana reforms, is it time for a Raich 2.0 challenge to federal marijuana prohibition?
Eighteen years ago, Angel Raich and her co-plaintiffs filed this complaint that argued that federal marijuana prohibition was unconstitutional on multiple theories. She claimed not only that federal marijuana prohibition exceeded Congress's authority under the Commerce Clause, but also that it violated the Fifth, Ninth and Tenth Amendments. A few years later, the Supreme Court took up and rejected only the Commerce Clause claim 6-3 in Gonzales v. Raich, 545 U.S. 1 (2005). In light of the remarkable and continuing nationwide citizen support for ending marijuana prohibition, I think it is time to consider a renewed constitutional attack on federal prohibition, a Raich 2.0, that renews these claims and adds one under the Eighth Amendment.
Notably, the Court's composition has changed dramatically since its ruling in Raich, with only Justice Breyer remaining from the Court's majority and only Justice Thomas remaining from the Raich dissent. Among the new Justices, there is a reasonable basis to speculate that at least two Justices (Justices Gorsuch and Barrett) and perhaps as many as four Justices (add in Chief Justice Roberts and Justice Kavanuagh) might be inclined to join Justice Thomas to reconsider the Commerce Clause ruling in Raich.
These same groups of Justices might likewise be inclined, perhaps, to breathe some life into the Ninth and Tenth Amendments in this context. One might further speculate that Justices Breyer, Kagan and Sotomayor might be open to considering a Fifth Amendment claim in this content. And, given established precedent that the Eighth Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society," Trop v. Dulles, 356 U.S. 86, 110 (1958), and that "the modern practices of the States ... are indicative of our 'evolving standards of decency'," Ford v. Wainwright, 477 U.S. 399, 419 (1986), I believe the dramatic modern state medical and recreational marijuana reform could make at least some enforcement of federal marijuana prohibition problematic under the Eighth Amendment.
I am not here seeking to assert that a federal constitutional challenge to federal marijuana prohibition will be sure to prevail on any of these fronts. But a whole lot has changed quite dramatically since the ruling in Gonzales v. Raich, 545 U.S. 1 (2005), including a bunch of red state reforms via voters this election cycle. All these changes lead me to continue to wonder if and when we might soon see an effective effort to renew constitutional challenges to federal marijuana prohibitions.
Wednesday, October 28, 2020
Massachusetts Supreme Judicial Court rules, based on state law, that workers' comp insurer not required to cover medical marijuana
The Supreme Judicial Court of Massachusetts issued a notable ruling yesterday in Daniel Wright's Case, No. SJC-12873 (Oct. 27 2020) (available here). The full introduction of the opinion from the unanimous court nicely highlights the issue and its resolution:
In the instant case we are asked to determine whether an insurance company may be ordered to reimburse an employee for medical marijuana expenses pursuant to a general provision of the Massachusetts workers' compensation scheme that requires reimbursement of necessary and reasonable medical expenses. The claimant, Daniel Wright, sought compensation for $24,267.86 of medical marijuana expenses to treat chronic pain stemming from two work-related injuries he sustained in 2010 and 2012. His claim was denied by an administrative judge, and the denial was affirmed on appeal by the reviewing board of the Department of Industrial Accidents (department). The reviewing board concluded that marijuana's status as a federally illicit substance preempted any State level authority to order a workers' compensation insurer to pay for Wright's medical marijuana expenses. We likewise conclude that the workers' compensation insurer cannot be required to pay for medical marijuana expenses, but do so based on the medical marijuana act itself.
We recognize that the current legal landscape of medical marijuana law may, at best, be described as a hazy thicket. Marijuana is illegal at the Federal level and has been deemed under Federal law to have no medicinal purposes, but Massachusetts, as well as the majority of States, have legalized medical marijuana and created regulatory schemes for its administration and usage. Complicating and confusing matters further, Congress has placed budgetary restrictions on the ability of the United States Department of Justice to prosecute individuals for marijuana usage in compliance with a State medical marijuana scheme, and the Department of Justice has issued, revised, and revoked memoranda explaining its marijuana enforcement practices and priorities, leaving in place no clear guidance.
The Commonwealth's original medical marijuana act, St. 2012, c. 369 (act or medical marijuana act), was carefully drafted by its sponsors to take into account this most difficult regulatory environment, with provisions specifically designed to avoid possible conflicts with the Federal government. One such provision of the law expressly states that "[n]othing in this law requires any health insurance provider, or any government agency or authority, to reimburse any person for the expenses of the medical use of marijuana." St. 2012, c. 369, § 7 (B). See G. L. c. 94I, § 6 (i). This provision recognizes that when medical marijuana patients seek to recover the costs of such use from third parties, including insurance companies engaged in interstate commerce, the regulatory environment becomes even more problematic. Under the plain language of this provision, those insurers are not required to reimburse medical marijuana expenses for a substance that remains illegal under Federal law.
We conclude that this specific language, and the Federal concerns it seeks to address and avoid, is controlling and not overridden by the general language in the workers' compensation laws requiring workers' compensation insurers to reimburse for reasonable medical expenses. A contrary reading of this specific language, which states that health insurers and government agencies and authorities are not required to reimburse medical marijuana expenses, would have been completely misleading to those who voted on it. It is one thing for a State statute to authorize those who want to use medical marijuana, or provide a patient with a written certification for medical marijuana, to do so and assume the potential risk of Federal prosecution; it is quite another for it to require unwilling third parties to pay for such use and risk such prosecution. The drafters of the medical marijuana law recognized and respected this distinction
Wednesday, March 11, 2020
The title of this post is the title of this short piece just posted to SSRN authored by Heather Razook concerning a case currently pending before the California Supreme Court. Here is its abstract:
In 2019, the first and third California Appellate courts both decided cases examining the same issue: whether proposition 64 decriminalized marijuana possession in state correctional institutions. People v. Perry, from the first district, held that Prop 64 did not decriminalize and People v. Raybon, from the third district, held that Prop did decriminalize marijuana possession in correctional institutions. The cases presented two exceptionally similar arguments with opposite outcomes. This paper compares those arguments and predicts an outcome for People v. Raybon that is currently up for review in the California Supreme Court.
Thursday, May 30, 2019
Split Second Circuit panel gives small victory to medical marijuana users while turning away their high-profile court challenge to Schedule I placement
I have noted in a number of prior posts linked below the notable lawsuit seeking to ensure legal access to medical marijuana that was filed in federal district court in New York in July 2017 (first discussed in this post.) In February of 2018, as noted in this post, US District Judge Alvin Hellerstein dismissed the suit, ruling the litigants had "failed to exhaust their administrative remedies” while concluding that "it is clear that Congress had a rational basis for classifying marijuana in Schedule I." In response to that ruling, I said "plaintiffs in this suit could appeal this dismissal to the US Court of Appeals for the Second Circuit, and doing so would likely keep the case in the headlines [but] I am not optimistic it would achieve much else."
In fact, an appeal was brought to the Second Circuit, and it did achieve something: an interesting split panel ruling that provides an interesting small victory to the plaintiffs despite ultimately failing to provide an real relief. Specifically, the majority opinion authored by Judge Guido Calabresi in Washington v. Barr, No. 18-859 (2d Cir. May 30, 2019) (available here), gets started this way:
This is the latest in a series of cases that stretch back decades and which have long sought to strike down the federal government’s classification of marijuana as a Schedule I drug under the Controlled Substances Act (CSA), 2 U.S.C. § 801 et seq. See, e.g., Krumm v. Drug Enforcement Admin., 739 F. App’x 655 (D.C. Cir. 2018) (mem.); Ams. for Safe Access v. Drug Enforcement Admin., 706 F.3d 438 (D.C. Cir. 2013); Alliance for Cannabis Therapeutics v. Drug Enforcement Admin., 15 F.3d 1131 (D.C. Cir. 1994) (mem.). The current case is, however, unusual in one significant respect: among the Plaintiffs are individuals who plausibly allege that the current scheduling of marijuana poses a serious, life‐or‐death threat to their health. We agree with the District Court that Plaintiffs should attempt to exhaust their administrative remedies before seeking relief from us, but we are troubled by the Drug Enforcement Administration (DEA)’s history of dilatory proceedings. Accordingly, while we concur with the District Court’s ruling, we do not dismiss the case, but rather hold it in abeyance and retain jurisdiction in this panel to take whatever action might become appropriate if the DEA does not act with adequate dispatch.
Judge Jacobs dissents from the panel's failure to just dismiss the lawsuit, and his opinion starts this way:
The plaintiffs seek a declaration that the classification of marijuana as a Schedule 1 substance is unconstitutional because it does not reflect contemporary learning regarding the drug’s medicinal uses. I agree with the District Court that this case must be dismissed for failure to exhaust administrative remedies in the Drug Enforcement Agency (“DEA”). The majority opinion does not actually disagree, though it seems to treat lack of jurisdiction as a prudential speed bump. I dissent from the majority opinion’s decision to hold the case in abeyance so that we may turn back to it if, at some future time, we get jurisdiction.
Prior related posts:
- Latest effort to take down federal marijuana prohibition via constitutional litigation filed in SDNY
- "Colorado girl suing U.S. attorney general to legalize medical marijuana nationwide"
- Could a high-profile lawsuit help end federal marijuana prohibition?
- Mixed messages from US District Judge hearing legal challenge to federal marijuana prohibition
- Federal judge dismisses high-profile suit challenging marijuana's placement on Schedule 1 under the Controlled Substances Act
May 30, 2019 in Court Rulings, Federal Marijuana Laws, Policies and Practices, History of Marijuana Laws in the United States, Medical Marijuana Commentary and Debate, Who decides | Permalink | Comments (0)
Wednesday, May 29, 2019
Last year, an intermediate appellate court in Arizona ruled that a medical marijuana patient could still be criminal prosecuted for possession of hashish because, in the court's view, the Arizona Medical Marijuana Act retained a distinction between cannabis and marijuana and preserved the criminality of the former. But yesterday, in Arizona v. Jones, No. CR-18-0370-PR (Ariz. May 28, 2019) (available here), the Arizona Supreme Court ruled unanimously that "AMMA’s definition of marijuana includes both its dried-leaf/flower form and extracted resin, including hashish." Here is an excerpt from the tail end of the opinion:
AMMA appeared on the 2010 ballot as Proposition 203. The accompanying ballot materials stated Proposition 203’s purpose was to “protect patients with debilitating medical conditions . . . from arrest and prosecution” for their “medical use of marijuana.” Ariz. Sec’y of State, 2010 Publicity Pamphlet 73 (2010). Proposition 203 was intended to allow the use of marijuana in connection with a wide array of debilitating medical conditions, including “cancer, glaucoma, . . . amyotrophic lateral sclerosis, Crohn’s disease, [and] agitation of Alzheimer’s disease,” including “relief [from] nausea, vomiting and other side effects of drugs” used to treat debilitating conditions. Id. It is implausible that voters intended to allow patients with these conditions to use marijuana only if they could consume it in dried-leaf/flower form. Such an interpretation would preclude the use of marijuana as an option for those for whom smoking or consuming those parts of the marijuana plants would be ineffective or impossible. Consistent with voter intent, our interpretation enables patients to use medical marijuana to treat their debilitating medical conditions, in whatever form best suits them, so long as they do not possess more than the allowable amount....
We hold that the definition of marijuana in § 36-2801(8) includes resin, and by extension hashish, and that § 36-2811(B)(1) immunizes the use of such marijuana consistent with AMMA. We reverse the trial court’s ruling denying Jones’s motion to dismiss, vacate the court of appeals’ opinion, and vacate Jones’s convictions and sentences.
Tuesday, May 28, 2019
Split Colorado Supreme Court gives notable new interpretation of limits on drug-sniffing searches due to marijuana legalization
Last week, the Colorado Supreme issued a lengthy split ruling in Colorado v. McKnight, 2019 CO 36 (Col. May 20, 2019) (available here) which concludes that the state's marijuana reform initiative impacted criminal procedure rules related to drug-detection dog sniffs. The court's ruling is summarized this way before the lengthy majority and dissenting opinions begins:
In this opinion, the supreme court considers the impact of the legalization of small amounts of marijuana for adults who are at least twenty-one years old on law enforcement’s use of drug-detection dogs that alert to marijuana when conducting an exploratory sniff of an item or area.
The supreme court holds that a sniff from a drug-detection dog that is trained to alert to marijuana constitutes a search under the Colorado Constitution because that sniff can detect lawful activity, namely the legal possession of up to one ounce of marijuana by adults twenty-one and older. The supreme court further holds that, in Colorado, law enforcement officers must have probable cause to believe that an item or area contains a drug in violation of state law before deploying a drug-detection dog that alerts to marijuana for an exploratory sniff.
The supreme court concludes by determining that there was no probable cause in this case to justify the sniff of the defendant’s truck by a drug-detection dog trained to alert to marijuana, and thus, the trial court erred in denying the defendant’s motion to suppress. The supreme court further concludes that the appropriate remedy for this violation of the Colorado Constitution is the exclusion of the evidence at issue. Thus, the supreme court affirms the court of appeals’ decision to reverse McKnight’s judgment of conviction.
This lengthy local press report about the ruling provides lots of context about how much is contested about this ruling. The extended headline of the press piece highlights its themes: "Did the Colorado Supreme Court just throw the state’s marijuana-legalization regime into question? The chief justice seems to think so. A case about drug-sniffing dogs could turn into a watershed moment in Colorado marijuana law. Or not. Legal experts are split."
Sunday, February 17, 2019
As reported in this local article, headlined "Norfolk judges unite to block prosecutor from dropping marijuana cases," a fascinating tussle has broken out as an elected prosecutor tries to move away from criminally prosecuting marijuana offenders. Here are the details:
The judges on the city’s top court have decided to block Norfolk’s chief prosecutor from essentially decriminalizing marijuana possession, a setback he’s thinking about appealing to the state Supreme Court.
On Tuesday, prosecutors under Commonwealth’s Attorney Greg Underwood went to court for at least the third time to try to drop or dismiss misdemeanor marijuana charges. Prosecuting people for having marijuana disproportionately hurts black people and does little to protect public safety, he’s said.
For the third time, a judge rebuffed them, and told prosecutors she’s not alone, but joined by her seven colleagues. “We are of one mind on this,” Circuit Judge Mary Jane Hall said.
The decisions adds to the confusion about whether it’s OK to have a small amount of weed in the city. Norfolk police have said they will continue to cite people for misdemeanor marijuana possession as they’ve always done. Circuit Court judges appear determined to make sure offenders are tried, even if the commonwealth’s attorney refuses to prosecute them....
In 2016 and 2017, more than 1,560 people have been charged with first- or second-offense marijuana possession, prosecutor Ramin Fatehi told the judge in court Tuesday. Of them, 81 percent were black in a city that’s 47 percent white and 42 percent black.
This “breeds a reluctance on the part of African Americans, particular young African American men, to trust or cooperate with the justice system,” according to a Commonwealth’s Attorney’s Office memo announcing the policy changes. “Such prosecution also encourages the perception that the justice system is not focusing its attention on the legitimately dangerous crimes that regrettably are concentrated in these same communities.”
On Tuesday, Hall denied Fatehi’s motion to dismiss charges against Zemont Vaughan. The 24-year-old Norfolk man, who is black, had been convicted in a lower court in October, but on Tuesday, he went to the higher Circuit Court to appeal that conviction.
Prosecutors’ motions to dismiss or drop charges are typically formalities. They don’t generally like giving up on cases, so when they make what amounts to an admission of defeat, judges almost always grant them. Not this time.
Hall told Fatehi she and the other seven judges think the Norfolk commonwealth’s attorney is trespassing on the state legislature’s territory: making laws. The judge said Fatehi made an “extremely compelling case” with his statistics on racial disparities, but should pitch it to lawmakers in Richmond.
“I believe this is an attempt to usurp the power of the state legislature,” Hall said. “This is a decision that must be made by the General Assembly, not by the commonwealth’s attorney’s office.”
Fatehi countered: Underwood is exercising the executive power voters gave him when they elected him the city’s top prosecutor. Part of the job is prosecutorial discretion, or deciding which laws should be enforced, especially since he has a limited amount of resources. In contrast to the misdemeanor possession charges, Underwood’s lawyers will keep prosecuting people accused of trafficking or dealing marijuana. “This is an exercise of our discretion,” Fatehi said.
Fatehi said Underwood is thinking about asking the state Supreme Court to reverse the judges’ decisions, adding that he’s “very close” to making a decision.
Lots can be said on the substance of the decisions being made by the city prosecutor and city judges in this case, but I will be content for now (1) to note that broad prosecutorial discretion in charging (and not charging) is the norm, and (2) to wonder aloud how prosecutions could or would move forward in these cases if city prosecutors refuse to be involved. And, finally, this story highlights yet again how disparate marijuana enforcement seems to be everywhere and how interesting legal issues surrounds all kinds of modern marijuana reform efforts.
February 17, 2019 in Campaigns, elections and public officials concerning reforms, Court Rulings, Criminal justice developments and reforms, Race, Gender and Class Issues, Who decides | Permalink | Comments (0)
Friday, November 16, 2018
Ohio judge finds unconstitutional state law requiring some medical marijuana licenses go to minority-owned businesses
As reported in this local article, this week "a Franklin County judge threw out a state law requiring that at least 15 percent of cultivation licenses go to businesses owned or controlled by African Americans, Asians, American Indians, Hispanics or Latinos." Here is more on the ruling and reactions thereto:
The Ohio Department of Commerce, the state agency that awards cultivation licenses, will have to decide whether to comply with Franklin County Common Pleas Judge Charles A. Schneider’s Thursday decision and award provisional cultivation licenses to white-owned businesses that scored higher in the review process -- including Greenleaf Gardens, LLC, which challenged the constitutionality of the law in court. Greenleaf Gardens had planned for a large-scale medical marijuana grow operation in Geauga County.
The state could also decide whether to throw out previously awarded licenses to two minority-owned and -controlled businesses that scored lower, although Greenleaf’s attorney wrote in court filings the company did not want that. Commerce can also appeal the decision to a higher court. “We are reviewing the judge’s ruling and considering next steps,” said Kerry Francis, the Department of Commerce’s spokeswoman.
Schneider’s decision only affects part of Ohio’s medical marijuana law, and leaves the rest of it intact.
Greenleaf CEO David Neundorfer said he’s pleased with the court’s ruling. The company has licenses in other parts of the nascent medical marijuana program....
Greenleaf Gardens sued after the Department of Commerce announced recipients of the provisional cultivation licenses, nearly a year ago. It received the 12th highest score among cultivation applicants but did not receive one of the 12 licenses for a large-scale cultivator. The department instead gave licenses to two lower scoring applicants, Parma Wellness Center, LLC and Harvest Grows, LLC.
The Department of Commerce argued it was following Ohio’s medical marijuana law, including provisions the Ohio General Assembly created that not less than 15 percent of cultivator, processor or laboratory licenses be given to entities owned and controlled by Ohio residents who are members of an economically disadvantaged group. The law lists each racial and ethnic group and states that “owned and controlled” means at least 51 percent of the business or business stock is owned by people in the groups....
Harvest Grows argued in a brief that Ohio for nearly 40 years has remedied discrimination in government licensing through set-asides for minority businesses. Hundreds of studies have shown that without the set-asides, “government funds have been, and will be, used in a discriminatory fashion.” It noted that blacks are more than four times more likely than non-minorities to be arrested for marijuana possession, even though studies show marijuana use is almost the same. “The legislature knew about these issues when it created the 15 percent set-aside at issue in this case," Harvest Grows wrote.
The judge, however, sided with Greenleaf Gardens. Schneider relied on a 2003 U.S. Supreme Court case that said a way to examine these issues is by looking at whether there is a compelling governmental interest for racial classification and whether the set-aside is narrowly tailored to achieve the goal.
Schneider wrote that there is a lack of “sufficient evidence of a government compelling interest" because the only evidence the legislature considered were marijuana crime arrests. He wrote that the state didn’t look at arrest rates for racial groups outside of blacks and Latinos, and discrimination in arrest rates and marijuana businesses are different....
The marijuana law’s provisions were different from specifications in Ohio’s Minority Business Enterprise Program, he concluded. And other states' encouragement of minority businesses in their medical marijuana programs were different from Ohio’s, such as Illinois giving minority businesses more points during scoring, not after scoring.
“If the legislature sought to rectify the elevated arrest rates for African Americans and Latinos/Hispanics possessing marijuana, the correction should have been giving preference to those companies owned by former arrestees and convicts, not a range of economically disadvantaged individuals, including preferences for unrelated races like Native Americans and Asians,” he wrote.
The full opinion in Pharmacann Ohio v. Ohio Department of Commerce, 17-CV-10962-Grant-SJ (Ohio Common Pleas Nov. 15, 2018), is available here: Download Pharmacann v. Ohio 17-CV-10962-Grant-SJ
Thursday, November 1, 2018
The title of this post is the headline of this new Reuters article. Here are the interesting details:
Mexico’s Supreme Court on Wednesday ruled that an absolute ban on recreational use of marijuana was unconstitutional, effectively leaving it to lawmakers to regulate consumption of the drug.
Announcing it had found in favor of two legal challenges filed against prohibition of recreational marijuana use, Mexico’s top court crossed the threshold needed to create jurisprudence: five similar rulings on the matter. That creates a precedent other Mexican courts will have to follow.
“This is a historic day,” Fernando Belaunzaran, an advocate of drug reform and member of the opposition leftist Party of the Democratic Revolution (PRD), said.
The Supreme Court made its first ruling to allow a group of people to grow marijuana for personal use in November 2015. In a statement, the court said the ruling did not create an absolute right to use marijuana and that consumption of certain substances could still be subject to regulation. “But the effects caused by marijuana do not justify an absolute prohibition on its consumption,” it said.
The court ordered federal health regulator COFEPRIS to authorize people seeking the right to use marijuana to do so personally, “albeit without allowing them to market it, or use other narcotics or psychotropic drugs.” Congress would now have to act to regulate the use of marijuana in Mexico, Belaunzaran said.
Tuesday, September 18, 2018
Top court in South Africa rules that privacy rights protects adult use of marijuana in private places
As reported in this BBC article, "South Africa's highest court has legalised the use of cannabis by adults in private places." Here is more about a major ruling for marijuana reform:
In a unanimous ruling, judges also legalised the growing of marijuana for private consumption.
South Africa's government had opposed its legalisation, arguing the drug was "harmful" to people's health. It has not yet commented on the ruling, which is binding.
Three cannabis users who had faced prosecution for using the drug brought the case, saying the ban "intrudes unjustifiably into their private spheres".
In his judgement, Deputy Chief Justice Raymond Zondo said: "It will not be a criminal offence for an adult person to use or be in possession of cannabis in private for his or her personal consumption." It will, however, remain illegal to use cannabis in public, and to sell and supply it....
This judgement is a reminder that South Africa's hard-won constitution is among the most liberal in the world, backing individual rights, and in this case the right to grow and smoke your own marijuana in private, against the government's concerns about public health and public order.
The Constitutional Court's ruling focuses on the issue of privacy, and a person's right to do as they please in their own home. The potential implications of the binding judgment are enormous, and unpredictable - particularly in terms of the criminal justice system, which routinely locks up thousands of overwhelmingly poor South Africans for using or dealing in small amounts of cannabis.
It is possible that the ruling, by allowing users to grow their own marijuana at home, could undermine the stranglehold of powerful drug gangs that blight so many communities. But the police, who argued against this change, will worry that the ruling will create more ambiguity and send the wrong signal to criminals.
The court has not approved - in any form - the trade in marijuana, meaning the government will not be able to profit from taxing a legalised industry.
In political terms, the landmark ruling emphasises the primacy of South Africa's constitution, which brushed aside the united opposition of numerous government ministries at a time when the authority and credibility of many of this young democracy's other institutions have been eroded by corruption and poor governance.
The court gave parliament 24 months to change the law to reflect its ruling. Adults who used marijuana in private would be protected by the ruling until the law was amended.
The court did not specify the quantity of cannabis a person can grow or use in private. Parliament would have to decide on this, it said.
The full opinion in this case, Minister of Justice and Constitutional Development v Gareth Prince, is available at this link, and here is a key paragraph from its introduction:
It is declared that, with effect from the date of the handing down of this judgment, the provisions of section 5(b) of the Drugs and Drug Trafficking Act 140 of 1992 read with Part III of Schedule 2 of that Act and with the definition of the phrase “deal in” in section 1 of the Drugs and Drug Trafficking Act 140 of 1992 are inconsistent with the right to privacy entrenched in section 14 of the Constitution and, are, therefore, constitutionally invalid to the extent that they prohibit the cultivation of cannabis by an adult in a private place for his or her personal consumption in private
Friday, September 14, 2018
Marijuana, mandatory minimums and jury nullification, oh my: split Ninth Circuit affirms panel federal convictions, though remands to address DOJ spending rider
A big, long and split decision by a panel of the Ninth Circuit yesterday in US v. Lynch, No. 10-50219 (9th Cir, Sept. 13, 2018) (available here), prompted the weak "Wizard of Oz" reference in the title of this post. There is so much of interest in Lynch for sentencing fans and others, I cannot cover it all in this post. The majority's introduction provides a sense of the case's coverage:
Charles Lynch ran a marijuana dispensary in Morro Bay, California, in violation of federal law. He was convicted of conspiracy to manufacture, possess, and distribute marijuana, as well as other charges related to his ownership of the dispensary. In this appeal, Lynch contends that the district court made various errors regarding Lynch’s defense of entrapment by estoppel, improperly warned jurors against nullification, and allowed the prosecutors to introduce various evidence tying Lynch to the dispensary’s activities, while excluding allegedly exculpatory evidence offered by Lynch. However, Lynch suffered no wrongful impairment of his entrapment by estoppel defense, the anti-nullification warning was not coercive, and the district court’s evidentiary rulings were correct in light of the purposes for which the evidence was tendered. A remand for resentencing is required, though, on the government’s cross-appeal of the district court’s refusal to apply a five-year mandatory minimum sentence, which unavoidably applies to Lynch.
Following the filing of this appeal and after the submission of the government’s brief, the United States Congress enacted an appropriations provision, which this court has interpreted to prohibit the federal prosecution of persons for activities compliant with state medical marijuana laws. Lynch contends that this provision therefore prohibits the United States from continuing to defend Lynch’s conviction. We need not reach the question of whether the provision operates to annul a properly obtained conviction, however, because a genuine dispute exists as to whether Lynch’s activities were actually legal under California state law. Remand will permit the district court to make findings regarding whether Lynch complied with state law.
Judge Watford dissented from the panel majority in Lynch, and his dissent starts this way:
I would reverse and remand for a new trial. In my view, the district court went too far in trying to dissuade the jury from engaging in nullification. The court’s actions violated Charles Lynch’s constitutional right to trial by jury, and the government can’t show that this error was harmless beyond a reasonable doubt.
By its very nature, a case of this sort touches a sensitive nerve from a federalism standpoint. At the time of Lynch’s trial in 2008, the citizens of California had legalized the sale and use of marijuana for medicinal purposes; the federal government nonetheless sought to prosecute a California citizen for conduct that arguably was authorized under state law. Because federal law takes precedence under the Supremacy Clause, the government could certainly bring such a prosecution, notwithstanding the resulting intrusion upon state sovereignty interests. See Gonzales v. Raich, 545 U.S. 1, 29 (2005). But the Framers of the Constitution included two provisions that act as a check on the national government’s exercise of power in this realm: one stating that “[t]he Trial of all Crimes, except in Cases of Impeachment, shall be by Jury”; the other requiring that “such Trial shall be held in the State where the said Crimes shall have been committed.” U.S. Const., Art. III, § 2, cl. 3. The Sixth Amendment further mandates that in all criminal prosecutions the accused shall enjoy the right to trial “by an impartial jury of the State and district wherein the crime shall have been committed.” Thus, to send Lynch to prison, the government had to persuade a jury composed of his fellow Californians to convict.
One of the fundamental attributes of trial by jury in our legal system is the power of the jury to engage in nullification — to return a verdict of not guilty “in the teeth of both law and facts.” Horning v. District of Columbia, 254 U.S. 135, 138 (1920). The jury’s power to nullify has ancient roots, dating back to pre-colonial England. See Thomas Andrew Green, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury, 1200–1800, at 236–49 (1985) (discussing Bushell’s Case, 124 Eng. Rep. 1006 (C.P. 1670)). It became a well-established fixture of jury trials in colonial America, perhaps most famously in the case of John Peter Zenger, a publisher in New York acquitted of charges of seditious libel. See Albert W. Alschuler & Andrew G. Deiss, A Brief History of the Criminal Jury in the United States, 61 U. Chi. L. Rev. 867, 871–74 (1994). From ratification of the Constitution to the present, the right to trial by jury has been regarded as “essential for preventing miscarriages of justice,” Duncan v. Louisiana, 391 U.S. 145, 158 (1968), in part because the jury’s power to nullify allows it to act as “the conscience of the community,” Jeffrey Abramson, We, the Jury: The Jury System and the Ideal of Democracy 87 (1994).
Cross-posted at Marijuana Law, Policy and Reform.
Tuesday, July 31, 2018
Constitutional Court in the country of Georgia holds marijuana consumption is protected by the right to free personality
Though I am surely losing something in the translation of Georgian web pages here and here, I am still sure a ruling by Georgia's Constitutional Court this week is a big deal. This press report, headlined "Georgian Court Abolishes Fines For Marijuana Consumption," provides these details:
Georgia's Constitutional Court has abolished administrative punishments for the consumption of marijuana, making the Caucasus country the first former Soviet republic to legalize usage of the drug.
The ruling by four senior court judges on July 30 concerns only the consumption of cannabis, while cultivation and selling remain a crime, the court said in its ruling. It added that punishing a person for consuming cannabis would comply with the constitution only if consumption put a third party at risk.
"According to the applicants [Zurab Japaridze and Vakhtang Megrelishvili], the consumption of marijuana is not an act of social threat. In particular, it can only harm the user's health, making that user him/herself responsible for the outcome. The responsibility for such actions does not cause dangerous consequences for the public," the court said.
"The Constitutional Court highlights the imposition of responsibility of marijuana consumption when it creates a threat to third parties. For instance, the court will justify responsibility when marijuana is consumed in educational institutions, public places, such as on public transport, and in the presence of children,” it added....
Japaridze told reporters the ruling was a victory for a freer Georgia. "This wasn't a fight for cannabis. This was a fight for freedom," he said.
In late November, the Constitutional Court decriminalized use of marijuana or other forms of cannabis-based drugs but preserved administrative punishment, such as a fine, for marijuana use. Before that, Georgia's Criminal Code defined repetitive use of marijuana and possession of more than 70 grams of dried cannabis as a crime for which individuals could face punishment that does not include imprisonment.
It is striking and somewhat telling that now a former Soviet satellite republic that still shares a border with Russia now has more progressive protections for fee use of marijuana than does the US of A. One might hope that those who preach freedom in the US would take a lesson from this ruling, but I suspect that few know for sure where Georgia is on the map and fewer still will know it now constitutionally protects the freedom to consume marijuana more than does the US government or its federal courts.
Wednesday, June 27, 2018
With Justice Kennedy now retiring and precedents being reversed, is it time for marijuana advocates to urge SCOTUS to reconsider Raich?
The Supreme Court generated a lot of news today, in part by reversing a significant precedent concerning labor unions and in part through Justice Antony Kennedy's retirement announcement. So what does this have to do with marijuana law, policy and reform you might ask? And I would answer with one case cite: Gonzales v. Raich, 545 U.S. 1 (2005) (opinion here, wikipedia entry here).
Raich is the case in which all the liberal members of the Supreme Court all rejected the claim by Angel Raich that the federal government should not have the constitutional power to criminalize her backyard cultivation and use of medical marijuana in compliance with California law. Of course, the liberal members of the Court were not the only ones who rejected Raich's claim that the Commerce Clause should not be read to allow the federal government to criminalize what she grows in her own backyard: joining the liberals voting in favor of broad federal power here were Justice Antonin Scalia (now deceased) and Justice Anthony Kennedy (now about to retire).
Based on a number of his opinions to date, there are lots of reasons to suspect that new Justice Neil Gorsuch, who replaced Justice Scalia, would be a vote for the Angel Raiches of the world against broad federal power. In addition, there are lots of reasons to suspect that whomever Prez Trump selects to replace Justice Kennedy will also be an advocate for limited federal legislative powers. (This accounting alone does not make obvious that Raich could be overturned, as Justice Samuel Alito might be more a fan of broad federal criminal powers than was the Justice he replaced, Justice Sandra Day O'Connor. It is also unclear where Chief Justice John Roberts would come out on these issues, too.)
Personnel change is the main reason I am inclined to suggest a "new" Supreme Court might be inclined to reconsider Raich, but I am also eager to highlight how changing political, social and medical knowledge may also incline the Court to reconsider a past ruling. Changes circumstances are always a formal and informal influence on the strength of stare decisis, and gosh knows there have been a whole lot of changed circumstances in the marijuana space since Raich was decided in 2005.
So, put simply in the form of a call to Raich's lawyer, where is Randy Barnett when marijuana reformers need him?
Tuesday, June 26, 2018
SCOTUS provides a good new First Amendment precedent for doctors interested in recommending marijuana
The modern state medical marijuana laws owe part of their structure to critical lower federal court rulings about the First Amendment's protection of doctors who wish to discuss marijuana use with patients. In the late 1990s after California voters passed the nation's first medical marijuana law, the federal government threatened physicians who recommended or prescribed a Schedule I drug with possible revocation of DEA registration and exclusion from Medicare and Medicaid reimbursements. But this threat was thwarted through litigation which culminated in a ruling by the U.S. Court of Appeals for the Ninth Circuit holding that physicians’ First Amendment freedom of speech rights under the privileged doctor-patient relationship permitted them to issue medical marijuana recommendations. The Ninth Circuit's ruling in Conant v. Walters, 309 F.3d 629 (9th Cir. 2002), has provided a key foundation for modern medical marijuana regimes, but the firmness of that foundation could be questioned because the US Supreme Court has never addressed this issue directly.
As of this morning, the Supreme Court still has not addressed this issue directly, but it has now ruled in National Institute of Family and Life Advocates v. Becerra, available here, that the First Amendment limits what states can tell doctors and other health professional to say or not say. Here is part of a fascinating passage (which even mentions medical marijuana, with my emphasis added) extolling the importance of broad constitutional protections in this realm:
As with other kinds of speech, regulating the content of professionals’ speech “pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information.” Turner Broadcasting, 512 U. S., at 641. Take medicine, for example. “Doctors help patients make deeply personal decisions, and their candor is crucial.” Wollschlaeger v. Governor of Florida, 848 F.3d 1293, 1328 (CA11 2017) (en banc) (W. Pryor, J. concurring). Throughout history, governments have “manipulat[ed] the content of doctor-patient discourse” to increase state power and suppress minorities:
“For example, during the Cultural Revolution, Chinese physicians were dispatched to the countryside to convince peasants to use contraception. In the 1930s, the Soviet government expedited completion of a construction project on the Siberian railroad by ordering doctors to both reject requests for medical leave from work and conceal this government order from their patients. In Nazi Germany, the Third Reich systematically violated the separation between state ideology and medical discourse. German physicians were taught that they owed a higher duty to the ‘health of the Volk’ than to the health of individual patients. Recently, Nicolae Ceausescu’s strategy to increase the Romanian birth rate included prohibitions against giving advice to patients about the use of birth control devices and disseminating information about the use of condoms as a means of preventing the transmission of AIDS.” Berg, Toward a First Amendment Theory of Doctor-Patient Discourse and the Right To Receive Unbiased Medical Advice, 74 B. U. L. Rev. 201, 201– 202 (1994) (footnotes omitted).
Further, when the government polices the content of professional speech, it can fail to “‘preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.’” McCullen v. Coakley, 573 U. S. ___, ___–___ (2014) (slip op., at 8–9). Professionals might have a host of good-faith disagreements, both with each other and with the government, on many topics in their respective fields. Doctors and nurses might disagree about the ethics of assisted suicide or the benefits of medical marijuana; lawyers and marriage counselors might disagree about the prudence of prenuptial agreements or the wisdom of divorce; bankers and accountants might disagree about the amount of money that should be devoted to savings or the benefits of tax reform. “[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market,” Abrams v. United States, 250 U. S. 616, 630 (1919) (Holmes, J., dissenting), and the people lose when the government is the one deciding which ideas should prevail.
Given the modern politics of marijuana reform, I was not that worried that the Ninth Circuit's work in Conant v. Walters would be undermined anytime soon. But it would not be too hard to imagine Attorney General Jeff Sessions or other state or federal officials resistant to marijuana reform trying to heavily regulate how medical professionals can talk to patients about marijuana. This new SCOTUS precedent would seem to limit such efforts.