The most comprehensive cannabis lawsuit ever filed against the federal government has been dismissed — through a questionable procedural technicality.
The lawsuit, filed in July 2017 against U.S. Attorney General Jeff Sessions, the Department of Justice, the DEA and the federal government, asserted that the classification of cannabis as a Schedule I drug under the Controlled Substances Act violates a range of constitutionally guaranteed rights and freedoms, including due process, equal protection and free speech.
The dismissal shocked many, including the 200-plus people attending the government’s motion to dismiss on Valentine’s Day in New York. The plaintiffs’ lawyers, including myself, anticipated the case would pass through the 2nd Circuit Court of Appeals and perhaps the U.S. Supreme Court, but we did not anticipate that District Judge Alvin Hellerstein would dismiss matters of grave importance without analyzing the cases put forth.
During that hearing, Judge Hellerstein turned to the parents of the two minor plaintiffs, Alexis Bortell, who suffers from intractable epilepsy, and Jagger Cotte, who has Leigh Disease, and acknowledged that cannabis is medicine that is saving their children’s lives. This acknowledgement alone defeats two of the three requirements for Schedule I, that the drug in question: (a) has no accepted medical use; and (b) cannot be used safely, even under strict medical supervision. Given the judge’s remarks and the government’s failure to meet just one of those requirements, dismissal seemed unlikely.
Yet, Judge Hellerstein ruled that the plaintiffs, before suing, were required to exhaust administrative remedies (in other words, to petition the DEA to reschedule cannabis using an administrative review process set forth in the Controlled Substances Act).
The doctrine of administrative exhaustion is intended to promote judicial efficiency and protect the authority of administrative agencies; however, courts are required to balance these interests against the litigants’ need for expeditious resolution. Plaintiffs have the right to forego the petitioning process and proceed directly to court if administrative exhaustion would be futile, result in delays or if the administrative body is shown to be biased or has predetermined an issue.
Prior petitions to reschedule cannabis have taken an average of nine years, and each has been systematically denied — against the weight of medical evidence. Three of the plaintiffs — Alexis, Jagger and Jose Belen, a disabled military veteran who seeks access to medical cannabis through his Veterans Affairs benefits — rely on medical cannabis to live. They cannot wait nine years for an administrative ruling. And the decision-maker with respect to the reclassification (or declassification) of cannabis would be Sessions, who has openly and repeatedly expressed extreme antipathy for cannabis and the people who use it. Furthermore, binding law, which the court misapprehended, makes clear that the claims brought by the plaintiffs here were specifically not subject to the administrative exhaustion requirement.
Judge Hellerstein barely paid lip service to plaintiffs’ claims regarding states’ rights, resting solely upon an adverse Supreme Court ruling issued in 2005 (Gonzalez v. Raich). He also cited United States v. Kiffer, decided in 1973, to support his opinion that the Schedule I classification of cannabis is constitutional.
Ironically, the Kiffer decision, while hostile to plaintiffs’ due process claims, was among the binding precedent on the issue of administrative exhaustion that Judge Hellerstein used to dismiss the complaint. Had the judge followed Kiffer consistently, he would have had no choice but to deny the government’s motion to dismiss. Instead, he chose to apply those aspects of Kiffer that were most harmful to the plaintiffs’ case and disregard parts of the ruling that would have preserved it against dismissal.
The court also disregarded changes in circumstances that warrant re-evaluation of the judiciary’s perspective involving cannabis. For example, since the majority of prior cannabis jurisprudence was decided, 30 states have legalized medical cannabis, nine states have legalized adult-use cannabis, the government obtained a patent on CBD as an antioxidant and neuroprotectant, witnesses who served in the Nixon administration have revealed that the inclusion of cannabis in the Controlled Substances Act was rooted in racial animus and a desire to suppress opposition to the Vietnam War and the government has instructed prosecutors not to prioritize enforcement of the Controlled Substances Act regarding cannabis in the absence of trafficking, organized crime, money laundering or other public safety concerns.
Conceptually, the court simply misconstrued the very nature of plaintiffs’ lawsuit. Judge Hellerstein opined that the plaintiffs seek a right to use cannabis. Rather, plaintiffs seek a ruling that the Controlled Substances Act, as it pertains to cannabis, is unconstitutional. According to lead counsel Michael Hiller, “Judge Hellerstein issued a fascinating decision, rejecting arguments we never actually made, arising from facts largely disregarded, and claims plainly misapprehended.”
An appeal is underway.
Lauren Rudick represents investors and startup organizations in all aspects of business and intellectual property law, specializing in cannabis, media and technology. Her law firm, Hiller, PC (www.hillerpc.com), is a white-shoe boutique firm with a track record for success and handling sophisticated legal matters that include business and corporate law.