The Marijuana Scheduling Story

Jon Gettman

Jon Gettman

Jon Gettman wrote an arti­cle in High Times Mag­a­zine by the title Pot Mat­ters: The Resched­ul­ing Trap, on Mon­day, Feb­ru­ary 29, 2016, detail­ing his attempts to have mar­i­jua­na fed­er­al­ly resched­uled. I was a peti­tion­er in Mr. Gettman’s most recent attempt to have mar­i­jua­na resched­uled, and I will share my per­spec­tive.

The trap Mr. Gettman refers to is known in tech­ni­cal legal jar­gon as the ratio­nal basis test[1]. What that means is the expert deci­sion of the admin­is­tra­tive agency charged with keep­ing marijuana’s clas­si­fi­ca­tion cur­rent will not be over­turned by a court if the deci­sion is ratio­nal. Mr. Gettman argued that the clas­si­fi­ca­tion was not ratio­nal. Like many before him and many after him, Mr. Gettman’s argu­ment was reject­ed. It’s an argu­ment that is guar­an­teed to fail. If Mr. Gettman wants to call that a trap, so be it. The out­come was pre­dictable.

Judges are not med­ical experts and dif­fer­ences of opin­ion between med­ical experts on marijuana’s med­ical use are sim­ply resolved in favor of the sta­tus quo. To win the ratio­nal basis argu­ment the wit­ness­es would have to be in total agree­ment[2].

The 1972 Rescheduling Petition

I was a peti­tion­er in the mar­i­jua­na resched­ul­ing peti­tion filed by NORML in 1972. I joined the NORML peti­tion in 1985. The peti­tion was grant­ed by the DEA’s Chief Admin­is­tra­tive Law Judge, Fran­cis L. Young, in 1988[3]. The admin­is­tra­tive law judge’s rul­ing was over­ruled by the DEA Admin­is­tra­tor cit­ing a dif­fer­ence of opin­ion among med­ical experts[4]. The appeal court applied the “ratio­nal basis” analy­sis and upheld the administrator’s denial of the admin­is­tra­tive law judge’s rul­ing cit­ing a dif­fer­ence in opin­ion among the expert wit­ness­es.

My 1983 Rescheduling Petition

I filed a peti­tion with the DEA in 1983 ask­ing for an exemp­tion from fed­er­al sched­ul­ing for the Ethiopi­an Zion Cop­tic Church, sim­i­lar to the one that exists for the sacra­men­tal use of pey­ote by the Native Amer­i­can Church[5]. The Ethiopi­an Zion Cop­tic Church is a Rasta­far­i­an church incor­po­rat­ed in Jamaica in 1976 that uses cannabis as it’s sacra­ment[6]. My request was denied, but the court specif­i­cal­ly said I had Arti­cle III (U.S. Con­sti­tu­tion) stand­ing to access the fed­er­al courts[7].

In 1990, the Unit­ed States Supreme Court reject­ed my request by refus­ing to rec­og­nize a fed­er­al exemp­tion for the sacra­men­tal use of pey­ote[8]. This rul­ing was lat­er over­turned by Con­gress[9]. How­ev­er, the court had the last word and over­ruled Con­gress[10]. So, the end result is that state law trumps a fed­er­al reg­u­la­tion as long as the state law is neu­tral toward reli­gion and gen­er­al­ly applic­a­ble (hold that thought of state law being of greater author­i­ty than a fed­er­al reg­u­la­tion, because I’m going to come back to it again lat­er).

My 1992 Rescheduling Petition

I filed a peti­tion with the DEA in 1992 argu­ing that THC had been resched­uled to fed­er­al sched­ule 2 in 1986 and inter­na­tion­al­ly in 1991. I argued the plant THC comes from should be sched­uled no high­er than the prin­ci­ple psy­choac­tive ingre­di­ent in the plant. My peti­tion was denied because THC was being man­u­fac­tured syn­thet­i­cal­ly and mar­i­jua­na was not used to make it[11].

While my appeal was pend­ing in the fed­er­al courts, my attor­ney start­ed a class action based on the ratio­nal basis argu­ment that failed to make it out of fed­er­al dis­trict court in Penn­syl­va­nia[12].

Gettman’s 1995 Rescheduling Petition

Dr. Gettman and High Times Mag­a­zine filed their first peti­tion to resched­ule mar­i­jua­na in 1995. When they tried to appeal from the denial of their request, the Unit­ed States Court of Appeals said they did not have stand­ing to access fed­er­al courts[13]. Stand­ing is a legal term that means a con­crete injury. The court ruled that because Dr. Gettman and High Times were mere­ly advo­cates, they did not have the direct injury required to have Arti­cle III (U.S. Con­sti­tu­tion) stand­ing to access the fed­er­al courts.

Gettman’s 2002 Rescheduling Petition

Dr. Gettman filed anoth­er resched­ul­ing peti­tion in 2002 and asked me and sev­er­al oth­ers, includ­ing Amer­i­cans for Safe Access (ASA) and the Nation­al Orga­ni­za­tion for the Reform of Mar­i­jua­na Laws (NORML), to join as co-peti­tion­ers. Dr. Gettman told me the resched­ul­ing peti­tions I filed in 1983 and 1992 inspired him to file his own resched­ul­ing peti­tions and he want­ed to include me.

My 2008 Rescheduling Petition

I want to come back now to that thought I told you to hold about state laws super­sed­ing fed­er­al reg­u­la­tions. In 2006 the Unit­ed States Supreme Court ruled that state laws defin­ing med­ical use of con­trolled sub­stances to assist in sui­cide were law­ful because the fed­er­al gov­ern­ment does not have the author­i­ty to pre­empt them using fed­er­al reg­u­la­tions[14]. I spoke to Mr. Gettman about this and sug­gest­ed that we amend our peti­tion to include this argu­ment, because there were 8 states that had accept­ed the med­ical use of mar­i­jua­na in 2002 and sev­er­al more by 2006. Mr. Gettman said he did not want to amend the peti­tion and that we were going to win based on sci­ence (the ratio­nal basis argu­ment).

So, in 2008 I filed a peti­tion to resched­ule mar­i­jua­na with the Iowa Board of Phar­ma­cy and the only evi­dence I pre­sent­ed was 12 state laws accept­ing the med­ical use of mar­i­jua­na. I said this was accept­ed med­ical use in the Unit­ed States. Iowa law says mar­i­jua­na must con­tin­ue to have no accept­ed med­ical use in the Unit­ed States, just like fed­er­al law, so I argued the accept­ed med­ical use of mar­i­jua­na in oth­er states was proof that mar­i­jua­na is incor­rect­ly clas­si­fied under both state and fed­er­al law. Fed­er­al sched­ul­ing is done by reg­u­la­tion, not by statute, so I argued state laws super­sede fed­er­al reg­u­la­tions and Iowa law refers to oth­er laws in oth­er states (because Iowa gets that phrase from fed­er­al sched­ul­ing).

The board denied my peti­tion with­out rul­ing on my argu­ment, but an Iowa Dis­trict Court remand­ed the case and ordered them to rule on my argu­ment[15]. The board then ruled unan­i­mous­ly in 2010 that mar­i­jua­na is med­i­cine and should be removed from sched­ule 1. I con­tact­ed Mr. Gettman again and showed him my results. Mr. Gettman still refused to amend our peti­tion, say­ing he was going to win on sci­ence (the ratio­nal basis argu­ment). I then noti­fied all of the par­ties and the DEA that I was with­draw­ing from the oth­er peti­tion­ers and inter­ven­ing sep­a­rate­ly on my own.

The Rest of the Story

In 2011, the DEA reject­ed Mr. Gettman’s peti­tion cit­ing a dif­fer­ence in expert med­ical opin­ion, and in 2013, the U.S. Court of Appeals reject­ed Mr. Gettman’s peti­tion cit­ing a ratio­nal basis based on con­flict­ing expert tes­ti­mo­ny[16]. The Court did not rule on my argu­ment, but sim­ply said I had a reli­gious inter­est in mar­i­jua­na. The dis­sent­ing judge said my argu­ment was fed­er­al­ism and that was not the argu­ment the oth­er peti­tion­ers were mak­ing.

The most iron­ic part of the case was that the peti­tion­ers almost failed to show stand­ing. They failed to show stand­ing in their open­ing appeal brief, and failed again to show stand­ing in their reply brief. At the oral argu­ment, one of the peti­tion­ers who said he was being denied Vet­er­ans Admin­is­tra­tion ben­e­fits in Vir­ginia (a state that did not allow med­ical use of mar­i­jua­na) said that he lived in Ore­gon part of the year and pos­sessed an Ore­gon med­ical mar­i­jua­na card. The court asked for sup­ple­men­tal briefs and affi­davits on stand­ing and then gave the peti­tion­er stand­ing to lose the case on the mer­its because of the ratio­nal basis analy­sis. It’s iron­ic, because that was my argu­ment. State laws mat­ter.

So, Mr. Gettman’s warn­ing should sim­ply be don’t do what he did. There is an argu­ment for resched­ul­ing, but it’s not the one he made.

[1] Amer­i­cans for Safe Access v. DEA, 706 F.3d 438 (D.C. Cir. 2013); Amer­i­cans for Safe Access v. DEA, 134 S. Ct. 267, 187 L. Ed. 2d 151 (U.S., 2013); Olsen v. DEA, 134 S. Ct. 673, 187 L. Ed. 2d 422 (U.S., 2013).

[2] See, Unit­ed States v. Pickard, 100 F. Supp. 3d 981 (E.D. Cal., Apr. 17, 2015).

[3] DEA Dock­et No. 86–22, Sept. 6, 1988.

[4] Alliance for Cannabis Ther­a­peu­tics v. DEA, 930 F.2d 936, 289 U.S. App. D.C. 214 (1991); 15 F.3d 1131, 304 U.S. App. D.C. 400 (1994).

[5] 21 C.F.R. § 1307.31.

[6] Olsen v. DEA, 279 U.S. App. D.C. 1, 878 F.2d 1458 (1989); Olsen v. DEA, 495 U.S. 906, 110 S. Ct. 1926, 109 L. Ed. 2d 290 (1990); See, Town v. State ex rel. Reno, 377 So.2d 648 (Fla. 1979) (“the Ethiopi­an Zion Cop­tic Church rep­re­sents a reli­gion with­in the first amend­ment to the Con­sti­tu­tion of the Unit­ed States, the use of cannabis is an essen­tial por­tion of the reli­gious prac­tice, the Ethiopi­an Zion Cop­tic Church is not a new church or reli­gion but the record reflects it is cen­turies old and has reg­u­lar­ly used cannabis as its sacra­ment”).

[7] Olsen v. DEA, 878 F.2d 1458 (D.C. Cir. 1989), cert. denied, 495 U.S. 906 (1990). The Court of Appeals found: “Olsen is a mem­ber and priest of the Ethiopi­an Zion Cop­tic Church,” 878 F.2d at 1459, “the Ethiopi­an Zion Cop­tic Church is a bona fide reli­gion with mar­i­jua­na as its sacra­ment” 878 F.2d at 1460, and “even if the DEA were not empow­ered or oblig­ed to act, Olsen would be enti­tled to a judi­cial audi­ence” 878 F.2d at 1461.

[8] Employ­ment Divi­sion v. Smith, 494 U.S. 872 (1990).

[9] Reli­gious Free­dom Restora­tion Act of 1993 (RFRA), Pub­lic Law 103–141, 187 Stat. 1488, Nov. 16, 1993.

[10] Boerne v. Flo­res, 521 U.S. 507 (1997).

[11] 1996 U.S. App. LEXIS 30353; Olsen v. DEA, 519 U.S. 1118, 117 S. Ct. 964, 136 L. Ed. 2d 849 (1997).

[12] Kuromiya v. Unit­ed States, 37 F. Supp. 2d 717, 1999 U.S. Dist. LEXIS 2627 (E.D. Pa., 1999); Kuromiya v. Unit­ed States, 78 F. Supp. 2d 367, 1999 U.S. Dist. LEXIS 18297 (E.D. Pa., 1999).

[13] Gettman v. DEA, 290 F.3d 430 (D.C. Cir. 2002).

[14] Gon­za­les v. Ore­gon, 546 U.S 243 (2006).

[15] McMa­hon v. Iowa Board of Phar­ma­cy, No. CV7415 (Iowa Dis­trict Court, Polk Coun­ty, April 21, 2009). I filed the peti­tion and McMa­hon inter­vened in it. McMa­hon filed the appeal and I inter­vened in it. McMa­hon was rep­re­sent­ed by the ACLU of Iowa, and I rep­re­sent­ed myself.

[16] See foot­note 1.

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One Response to The Marijuana Scheduling Story

  1. Keira Wimer says:

    Use­ful post ! I am thank­ful for the analy­sis . Does any­one know where my busi­ness could pos­si­bly find a fil­l­able SSA-827 exam­ple to fill out ?

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