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BREAKING: Federal Judge Dismisses Lawsuit Against Attorney General Sessions That Sought To Overturn Marijuana’s Schedule I Status

By Brandon A. Dorfman
Feb 27, 2018

U.S. District Judge Alvin Hellerstein dismissed a lawsuit on Monday challenging the federal government’s classification of cannabis as a Schedule I controlled substance. As Leafly and other news outlets reported on Monday, the judge, in his 20-page decision for the case of Washington v. Sessions decided the case not on the merits of the plaintiffs’ arguments, but rather on procedural issues. Plaintiffs in the case were instructed to follow the proper administrative procedure as outlined by the government to reconsider marijuana’s placement on the federal schedule.

According to Leafly’s report, it is what is known as the “exhaustion rule.” Hellerstein wrote, “that parties [should[ exhaust prescribed administrative remedies before seeking relief from the federal courts.”

Filed in the Southern District of New York last July, the complaint challenged marijuana’s classification under the controlled substances act as a constitutional issue, with the plaintiffs in the case calling it “irrational.” The suit was filed by medical marijuana patients Marvin Washington, Dean Bartell, Alexis Bartell, Jose Belen, Sebastien Cotte, and Jagger Cotte, with help from the Cannabis Cultural Association.

The fight to deschedule cannabis has previously, and without success, made its way through the administrative process. As Leafly reports, it is a year’s long process that ultimately ends up nowhere.

“Resigning the plaintiffs to the petitioning administrative process is tantamount to a death sentence for those patients who need cannabis to live,” attorney for the plaintiffs’ Michael S. Hiller said in a statement. “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.”

Although Hellerstein rejected the plaintiffs’ argument, he did sympathize with their plight, and in doing so disavowed the government's claims that marijuana has no medical use whatsoever. “How could anyone say that your clients’ lives have not been saved by marijuana?” Hellerstein said, according to The Cannabist.

Still, in dismissing the case, Hellerstein noted, “I cannot say that Congress acted irrationally in placing marijuana in Schedule I [in the 1970’s]”

Cannabis advocate and lawyer Rod Kight

In an exclusive with PotNetwork, cannabis advocate and attorney Rod Kight, author of the blog Kight On Cannabis, The Definitive Word On Weed, spoke about the ruling and its implication on the future of marijuana legalization. “As a lawyer, I understand and appreciate procedure; however, the decision had an air of "protesting too much" about the procedural issues,” Kight said via email. “In other words, I think the Court simply did not believe that it should render a decision on the marijuana issue. However, knowing that a decision on the merits would almost certainly lead to a ruling in the plaintiffs' favor, the court decided to dismiss based on procedure.”

Kight, who recently made headlines himself when he wrote to Senator Thom Tillis (R-NC) arguing in favor of marijuana legalization, did, however, clarify that the issue does belong in the hands of Congress, the government’s legislative body.

“Despite my disappointment, the fact is that this issue is properly within the purview of Congress, not the Courts,” remarked Kight.

Asked what the future holds for legalization, Kight continued to press his point about Congress.

“A supermajority of Americans desire cannabis reform yet Congress has failed to enact anything meaningful. With the Executive Branch's recent decision (by AG Sessions) to withdraw the Ogden and Cole memos and the Judicial Branch's decision today to dismiss this case, Congress is left holding the bag. This is proper. As the lawmaking body, it is ultimately Congress's duty to remedy this situation and enact real cannabis reform. My hope is that these recent acts by the other branches of government will finally force it to do so.”

The plaintiffs also argued that the Controlled Substances Act violated the Equal Protection Clause of the Constitution, basing their argument on the notion that former President Richard Nixon passed a law based on racist ideals. It was old Nixon aide John Ehrlichman who admitted in 1994 that the “War on Drugs” was rooted in racism:

"The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. You understand what I'm saying? We knew we couldn't make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did."

Hellerstein, according to Leafly, made the point that even though one could ascribe racial animus to Nixon, it was hard to do the same to all of Congress, the body responsible for writing the law.

Despite their disappointment, Hiller stated that the plaintiffs plan to move the case 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.”

*Photo Credit: By This photo was taken by participant/team Sheila as part of the Commons:Wikipedia Takes Manhattan project on April 4, 2008.  

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