Big Disappointment in Schweder

Schweder

On April 15, 2015, U.S. District Judge Kimberley Mueller denied the defendants’ motion to dismiss the case against them on the basis that their equal protection rights under the 14th Amendment had been violated because there is no rational basis for treating marijuana as a Schedule I substance in light of the current scientific and medical research. The Constitution meets cannabis. Not a happy outcome.

 

Dashed Expectations

The legal marijuana community had high hopes for this case in the Eastern District of California because Judge Mueller had granted a motion that permitted introduction of evidence about the medical uses of marijuana that would have weighed against its classification as a Schedule I substance. Anticipation cooled, however, as the decision was delayed repeatedly throughout the late winter and early spring. Even today, after another, final, hour-long delay, the judge ruled orally, promising the long-anticipated written decision at the end of the week. It was bad news.

This was clearly not an easy call for the court, but the repeated delays and absence of a written explanation have tainted the process in the eyes of some court observers.

Many of the defendants, who were convicted of running an illegal grow site in 2011, have already spent years in prison. There will likely be an appeal. Some may die; some have been or may be deported and others will complete their sentences. Time will pass. The wheels of justice grind slow but grind fine. This is why your attorney Bernie drinks a bit. However, all is not lost for the legal marijuana industry, where declassification or reclassification of marijuana could spark exponential growth.

 

Remaining Value for Future Litigants

Even if the Schweder defendants lose again on appeal, the judge’s evidentiary ruling, which permitted the introduction of information about marijuana’s medical uses, still has precedential value. This is where the ground was gained, and it is not an insignificant victory.

Defendants in marijuana prosecutions may now feel emboldened to offer medical evidence in support of the position that the federal administrative decision to treat marijuana as a Schedule I drug has no rational basis and should be overturned. That evidence is changing and improving steadily with each case. It’s a trench war, not an air war. The barrier will fall eventually, if not because of legal challenges, then because of administrative action, which may still be the best option.

 

Shake It Off, Start Over

Many things have changed since 2011. The Justice Department now guides federal law enforcement toward eight priorities, which might have actually picked up the Schweder defendants because of the involvement of federal lands. Federal law now blocks federal enforcement action against medical marijuana operations conducted in accordance with state law. The next case to use the “irrationality of Schedule I classification” defense could get through.

Look for action in the Court of Appeals for the D.C. Circuit, which has responsibility for reviewing administrative decisions of federal agencies. Challenges to the DEA’s denial of rescheduling petitions filed by Americans for Safe Access and several doctors groups appear with increasing frequency.

Yesterday was disappointing, for sure. Why this happened is still a mystery. It will not be the last of these days. Yet still, the momentum toward greater access and increased rationality in cannabis policy continues.

Anne Wallace is a New York lawyer who writes extensively on legal and business issues. She also teaches law and business writing at the college and professional level. Anne graduated from Fordham Law School and Wellesley College.

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