Federal Medical Marijuana Case Dismissed...for now.
Earlier this month, a landmark court hearing happened in the history of the cannabis movement as the legal team from Hiller, PC and their colleagues from the Cannabis Cultural Association (CCA) went to court to give oral arguments in an effort to defeat the government’s motion to dismiss the federal lawsuit against Jeff Sessions and the DEA regarding the unconstitutionality of the Controlled Substance Act (CSA). After taking some time to review the case, Judge Alvin K. Hellerstein has made his decision: the federal government's motion to dismiss has carried.
Hiller, PC and CCA said that their next steps will be to appeal this decision.
"We knew that this could happen, and that this case could be decided on appeal. We were prepared for any outcome, and we intend to take our appeal. This does not end today and is only the beginning." said Lauren Rudick, partner at Hiller, PC.
The judge dismissed for failure to exhaust administrative remedies, but did not issue a decision on the merits of the plaintiffs claims.
While this was not the outcome we were hoping for, this day still marks a big landmark in the cannabis movement. It is obvious that the big wheel is only moving one way in terms of momentum and support for cannabis: forward. Judge Hellerstein recognized that medical cannabis does work for the plaintiffs in this lawsuit, which is farther than the U.S. justice system has come in other cases similar to this one that have challenged federal courts.
As you may know Hiller, PC filed this lawsuit in July, 2017. You can read the full text of the complaint, but essentially the lawsuit contends that the federal government is violating the plaintiffs rights to have access to their medicine. The lawsuit challenges the constitutionality of the Controlled Substances Act (CSA) as it pertains to cannabis. Hiller, PC is representing five plaintiffs and maintains that the CSA, in classifying cannabis as a “Schedule I drug,” is so irrational that it violates the U.S. Constitution. Among the other claims in the lawsuit are that the CSA: was enacted and implemented in order to discriminate against African Americans and to suppress people’s First Amendment rights; and that it violates their plaintiffs’ constitutional Right to Travel.
One of the plaintiffs is Alexis Bortell, a 12 year girl who was forced to move from her home state of Texas to Colorado so she could use cannabis oil to prevent life-threatening epileptic seizures. Other plaintiffs include retired NFL player and Super Bowl Champion, Marvin Washington, the Cannabis Cultural Association, whose membership includes many People of Color who contend that the CSA was enacted and has been enforced in a discriminatory manner, Jagger Cotte, a six-year old Georgia boy suffering from Leigh’s Disease, and disabled military combat veteran Jose Belen.
This case has been gaining national attention, and it is no surprise that some of the attention is from other law firms who work with cannabis clients. THC Legal Group is a firm based in Ohio that offers a variety of legal services for companies in the cannabis industry. Howard Cohn is the Managing Partner at THC Legal and remarked, “On a constitutional level, the now notorious Jeff Sessions Memo is significant because it further pits Federal jurisdiction against principles of State sovereignty. Pragmatically, the memo, which effectively serves to reverse the Federal Government’s laissez-faire approach to State-approved Cannabis operations outlined in the Cole Memo, imperils the entire industry and forces banking institutions along with otherwise cannabis-friendly investors to reconsider the risk and viability of participating in this ever emerging space.”
The full press release is as follows:
Statement from Hiller, PC on Landmark Lawsuit Against Jeff Sessions As It Pertains to Constitutionality of Cannabis under the Controlled Substances Act:
Plaintiffs Vow to Appeal, As Judge Dismisses Federal Cannabis Lawsuit
The plaintiffs, along with Hiller, PC lead counsel Attorneys Michael S. Hiller and co-counsels Lauren A. Rudick and Joseph Bondy, vowed to appeal the lawsuit. The plaintiffs in Washington, et.al v. Sessions, et.al include: Denver Broncos Super Bowl Champion, Marvin Washington; 12-year old girl, Alexis Bortell; seven-year old Jagger Cotte of Georgia, who suffers from Leigh’s Disease; disabled military combat veteran, Jose Belen; and the Cannabis Cultural Association, Inc.
Hiller, PC background and statements on Judge Alvin K. Hellerstein’s decision:
A New York federal district court judge dismissed the lawsuit brought by Marvin Washington, Alexis Bortell and an assortment of other plaintiffs seeking a ruling that the classification of cannabis as a Schedule I drug is unconstitutional.
In dismissing the case, Judge Alvin Hellerstein took pains to "emphasize that this decision is not on the merits of plaintiffs’ claim[s]." Instead, Judge Hellerstein decided that the plaintiffs were first required to exhaust administrative remedies – an agency-driven administrative process, during which petitions are filed with and decided by the DEA to reschedule cannabis.
Judge Hellerstein did not appear to address the plaintiffs’ argument, as reflected in a recent filing, that the petitioning administrative process generally consumes an "average of nine (9) years to complete," and is "overseen by a biased decision-maker (defendant Jeff Sessions), who has pre-determined to reject the evidence before it has even been presented."
Michael Hiller, Hiller, PC lead counsel for the plaintiffs stated: "Resigning the plaintiffs to the petitioning administrative process is tantamount to a death sentence for those patients who need cannabis to live. The time has come for the courts to abandon decades-old precedent, notched with obsolete legal technicalities, and catch up with modern science and contemporary principles of constitutional law."
Lauren Rudick, Hiller, PC co-counsel for the plaintiffs, added: "The plaintiffs weren’t the only ones who experienced a setback today. States and principles of federalism took a black-eye as well, and under the false premise that the courts are constrained by prior decisions to take actions, which the overwhelming majority of Americans, including members of Congress and the President, know are wrong."
Joseph Bondy, co-counsel for the plaintiffs, commented: "We believe that the court didn’t consider a number of our arguments and declined to hear us at oral argument on some of those points. We are exploring all of our legal arguments in furtherance of winning this case."
Michael Hiller concluded: "This case will continue to move forward. Notwithstanding the outcome today, we remain confident that the final disposition of this case will include a finding that the classification of cannabis under the Controlled Substances Act is unconstitutional – freeing millions of Americans to safely treat their conditions with a plant that maintains their health and their lives.”