Lawsuit Would Completely Remove Cannabis From Csa

[peanutbutter]

http://weedpress.wordpress.com/2011/08/08/lawsuit-against-state-of-iowa-challenges-constitionality-of-controlled-substances-act-seeks-to-completely-deschedule-cannabis/

 

Lawsuit Against State of Iowa Challenges Constitionality of Controlled Substances Act, Seeks to Completely Deschedule Cannabis

Posted by jsnsoc8 ⋅ August 8, 2011 ⋅ 1 Comment

Filed Under Cannabis, Controlled Substances Act, Carl Olsen, Iowa Legislature, iowa medical marijuana, Schedule I, Descheduling

 

This June, Carl Olsen filed a lawsuit against the State of Iowa for failure to remove cannabis from Schedule I. Read the lawsuit here.

 

After asking for an extra 30 days to reply to the lawsuit’s constitutional allegations against the State of Iowa, the Iowa Attorney General’s Office filed a motion to dismiss the case. Read the state’s motion to dismiss the lawsuit here.

 

Today, petitioner Carl Olsen responded to the state’s motion to resist. In his brief today, Olsen shot down the State’s feeble attempt to dismiss a legal question that has been a long time coming: Does cannabis have “accepted medical use,” “in the United States?”

 

In 1971, the Iowa Legislature placed marijuana in Schedule I, a Schedule that says that marijuana has “no accepted medical use.” Olsen is arguing that the Full Faith and Credit Clause of the United States Constitution requires Iowa to acknowledge that cannabis is misclassified in Schedule I, as the requirement of “accepted medical use” that the Legislature set in 1971 has been met, “in the United States.” Citing the 16 state medical marijuana laws (and D.C.), Olsen argues that 16 state laws (and the District of Columbia) requires the state of Iowa to remove marijuana from the Controlled Substance Act, “because controlling facts have changed significantly since 1971.”

 

If Olsen has his way, cannabis will be completely removed from the Controlled Substances Act. Read today’s filing here.

[LongHairBri]

He's trying to remove cannabis from the CSA, IN THE STATE OF IOWA. Not federally

[sho]

He's trying to remove cannabis from the CSA, IN THE STATE OF IOWA. Not federally

Sets precedent... but what Lawmaker is going to step up to "correct" this "mistake".

[Kevin]

They'll have that tied up in courts for a decade or more as is their way.

 

Go Iowa !

 

 

[peanutbutter]

is this real pb? man it can be over that easily you think?

 

Someday something will click into place.

 

Carl is a real bulldog. He is one of the parties in the current ASA federal suit.

 

He was there when it was filed nine years ago.

 

For over ten years, he has been filing pro per in lots of court action.

[peanutbutter]

BTW this builds a foundation to go after federal change.

 

I believe he intends to sue for the state to demand the federal to change. In support of the people of Iowa.

[peanutbutter]

UNITED STATES COURT OF APPEALS

 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

 

 

 

 

 

Americans for Safe Access, et al., )

 

)

 

Petitioners, ) No. 11-1265

 

)

 

v. )

 

)

 

Drug Enforcement Administration, )

 

)

 

Respondent. )

 

 

 

 

 

MOTION TO INTERVENE IN PETITION FOR JUDICIAL REVIEW

 

 

 

 

 

CARL ERIC OLSEN

 

130 E. Aurora Ave.

 

Des Moines, IA 50313-3654

 

515-288-5798 home phone

 

515-343-9933 cell phone

 

 

 

Pro Se

 

 

 

 

 

Carl Eric Olsen (“Olsen” hereafter), pursuant to Federal Rules of Appellate Procedure Rule 15(d) and District of Columbia Circuit Rule 15(b), moves for leave to intervene in the petition for judicial review of the final order of the Drug Enforcement Administration (“DEA” hereafter), reported at 76 FR 40552 on July 8, 2011, filed by Americans for Safe Access (“ASA” hereafter) and others on July 22, 2011. Olsen has been granted leave to intervene in a companion case related to this petition, In re Coalition to Reschedule Cannabis, No. 11-5121, but is unsure if District of Columbia Circuit Rule 15(b) has already granted him leave to intervene in this case. The local rule says all cases involving the same “agency action or order”. Olsen was granted leave to intervene in Case No. 11-5121 on July 12, 2011, but this court was not notified of the final agency action or order until July 19, 2011, so Olsen is not sure exactly how local rule 15(b) is interpreted.

 

Olsen is an original member of the Coalition to Reschedule Cannabis as reflected in the Letter from Michael Kennedy to DEA, dated October 9, 2002 [found at http://www.safeaccessnow.org/downloads/CRC_Letter.pdf], cited in ASA’s Petition for Writ of Mandamus, Case No. 22-5121, at pages 11 and 13.

 

Olsen was also a petitioner in the Marijuana Rescheduling Petition, DEA Docket No. 86-22 (Sept. 6, 1988) [found at http://www.ukcia.org/pollaw/lawlibrary/young.php], cited in ASA’s Petition for Writ of Mandamus at page 10.

 

Olsen is not represented by the attorney representing ASA.

 

On August 14, 2010, Olsen sent a letter to the Coalition for Rescheduling Cannabis (“Coalition” hereafter) asking to be removed from the coalition and notifying them that in addition to petitioning the DEA for reclassification of cannabis, legal action must also be taken against the states for their failure to file for federal rescheduling [found at http://www.iowamedicalmarijuana.org/States/pdfs/CannabisReschedulingCoalition_20100814.pdf].

 

In 2008, Olsen filed a petition to remove marijuana from schedule I of the Iowa Uniform Controlled Substances Act, Iowa Code 124.204(4)(m). On February 17, 2010, in a unanimous ruling, the Iowa Board of Pharmacy found that marijuana no longer meets the statutory requirement of having “no accepted medical use in treatment in the United States” and recommended the Iowa Legislature remove marijuana from state schedule I:

 

http://www.iowa.gov/ibpe/pdf/2010_02_17minutes.pdf

 

Since 1996 a total of 16 states and the District of Columbia (with Congressional approval) have enacted medical marijuana legislation, and yet not one of those states has reviewed the classification of marijuana under their own versions of the Uniform Controlled Substances Act (with the exception of Oregon[1]) or applied for federal reclassification of marijuana. Oregon reclassified marijuana into schedule II on July 1, 2010, but it was forced legislatively and not by administrative action. 2009, SB 728. The Oregon Legislature ordered the Oregon Board of Pharmacy to pick one of the other four schedules and forbid them from picking schedule I. 2009 Oregon Acts, c.898 § 2.

 

 

 

OLSEN DISAGREES WITH ASA AND DEA

 

All of the Coalition members have either failed to seek state reclassification of marijuana under their own state’s Uniform Controlled Substances Act and/or file civil actions in state courts complaining of the failure of their own states to apply for federal rescheduling. Because of this failure on the part of the Coalition there is a difference of opinion between Olsen and the Coalition which forced Olsen to withdraw and separate from the Coalition.

On page 9 of the Petition for Writ of Mandamus, Case No. 11-5121, ASA cites the reliance of the DEA on a letter written in 1975 from the Acting Secretary of the U.S. Department of Health and Human Services to the Acting Deputy Administrator of the U.S. Drug Enforcement Administration, 40 FR 44167, which concluded there was no accepted medical use of marihuana in the United States. There were no State laws recognizing the medical use of marijuana in 1975. Since 1996, a total of 16 states and the District of Columbia (with Congressional approval) have enacted laws defining marijuana as medicine.

 

The Marijuana Rescheduling Petition referred to in ASA’s Petition for Writ of Mandamus at page 10, received a final ruling from this court in 1994 in Alliance for Cannabis Therapeutics, 15 F.3d 1131 (D.C. Cir. 1994). Again, at that time, in 1994, no State had accepted the medical use of marijuana. States did not begin defining marijuana as medicine until 1996.

 

The Gettman petition referred to in ASA’s Petition for Writ of Mandamus at page 10, was filed in 1995, which, again, was a year before any State had enacted a State law defining marijuana as medicine.

 

The current Rescheduling Petition by the Coalition, filed in 2002, mentions that 8 States that had enacted laws defining marijuana as medicine at the time that petition was filed.

 

 

 

STANDING TO SEEK JUDICIAL REVIEW

 

Olsen questions the standing of the petitioners to make an argument based on state sovereignty in this petition for judicial review now that the DEA has responded to the petition to reschedule cannabis. Olsen cannot risk the lives of patients on a defect in the petition which may deprive the petitioners of an essential argument that should have been included in this petition for judicial review.

 

In Gettman v. DEA, 290 F.3d 430 (D.C. Cir. 2002), the court found that the petitioner did not have standing to seek judicial review from the final order of the Drug Enforcement Administration (“DEA” hereafter). The petitioners in the current rescheduling petition think they have cured that defect by including patients and caregivers in the Coalition. Olsen thinks a State government would have standing to seek judicial review from a final order of the Drug Enforcement Administration on the question of whether marijuana has accepted medical use in treatment in the United States because that question is a matter of law (state statutes) not a question of fact (medical opinion). Olsen bases his opinion on the decision of the U.S. Supreme Court in Gonzales v. Oregon, 546 U.S. 243, 258 (2006):

 

The Attorney General has rulemaking power to fulfill his duties under the CSA. The specific respects in which he is authorized to make rules, however, instruct us that he is not authorized to make a rule declaring illegitimate a medical standard for care and treatment of patients that is specifically authorized under state law.

 

 

 

Federal scheduling of controlled substances is an administrative rule making process. For the same reason the Attorney General (the DEA) cannot make a rule which would declare an accepted State medical standard for care and treatment specifically authorized by State law illegal under federal law, the Attorney General (the DEA) cannot maintain an existing rule if it declares an accepted State medical standard for care and treatment specifically authorized by State law illegal under federal law. In other words, the DEA cannot legally deny a petition for rescheduling of marijuana if the petition is authorized by a State government and supported by a State law defining marijuana as medicine.

 

Olsen agrees the petitions have standing to seek judicial review on the question of fact (medical opinion), but Olsen has serious doubts about the ability of the Coalition to seek judicial review of any adverse decision by the DEA which would make an accepted State medical practice illegal because of a federal regulation (scheduling is an administrative rule making process). There is no excuse for 16 State governments and the District of Columbia, which have accepted the medical use of marijuana, failing to join the Coalition or file separately for federal reclassification of marijuana.

 

Olsen also disagrees with the DEA for its failure to tell the States they must file for federal reclassification of marijuana when they enact a State law defining marijuana as medicine. Filing for federal reclassification is not optional. The States have a duty to file for federal reclassification because they can’t honestly say they are protecting their citizens if they don’t file. DEA should have the integrity to remind them of this duty if they fail to recognize it.

 

OLSEN HAS SUCCESSFULLY CHALLENGED

 

THE CLASSIFICATION OF MARIJUANA IN IOWA

 

Unlike Oregon, Iowa does use the same statutory criteria for scheduling as found in the federal act. The eight factor test found in Iowa Code 124. 201 is the same 8 factor test found in 21 U.S.C. 811. The schedule I criteria found in 124.203 are the same criteria found in 21 U.S.C. 812. This is no coincidence. The scheduling criteria in Iowa are derived from the Uniform Controlled Substances Act [found at http://www.law.upenn.edu/bll/archives/ulc/fnact99/1990s/ucsa94.pdf]. See Iowa Code 124.601. The Uniform Controlled Substances Act, in turn, references the federal Controlled Substances Act, Prefatory Note for Uniform Controlled Substances Act (1990):

 

The Uniform Controlled Substances Act (1990) is designed to supplant the Uniform Controlled Substances Act adopted by the National Conference of Commissioners on Uniform State Laws in 1970. The 1970 Uniform Act was designed to complement the federal Controlled Substances Act, which was enacted in 1970.

 

. . .

 

This Uniform Act was drafted to maintain uniformity between the laws of the several States and those of the federal government.

 

. . .

 

A main objective of this Uniform Act is to continue a coordinated and codified system of drug control initiated with the federal act and the 1970 Uniform Act.

 

 

 

Thus, the similarity in scheduling criteria is no coincidence. It is also no coincidence that each of the States that have adopted the uniform act has maintained its state sovereignty to make scheduling decisions independently of the federal government. In other words, federal rescheduling begins with a state determination of accepted medical use.

 

CONCLUSION

 

For the foregoing reasons, Olsen moves for leave to intervene in the petition for judicial review filed by ASA.

 

Dated: August 8, 2011

 

Respectfully submitted,

 

/s/ Carl Olsen

 

 

 

Carl Olsen, Pro Se

 

Post Office Box 4091

 

Des Moines, IA 503333

 

515-288-5798 home phone

 

515-343-9933 cell phone

 

 

 

 

 

 

 

CERTIFICATE OF SERVICE

 

I hereby certify that a copy of the foregoing was served via first class mail upon the following parties:

 

United States Attorney General

 

950 Pennsylvania Avenue, N.W.

 

Washington, DC 20530

 

 

 

Drug Enforcement Administration

 

800 K Street, N.W., Suite 500

 

Washington, DC 20001

 

 

 

Joseph D. Elford

 

Americans for Safe Access

 

1322 Webster Street, Suite 402

 

Oakland, CA 94612

 

 

 

David C. Holland

 

Law Offices of Michael Kennedy, P.C.

 

419 Park Avenue South, 16th Floor

 

New York, NY 10016

 

 

 

Dated: August 8, 2011

 

Respectfully submitted,

 

/s/ Carl Olsen

 

 

 

Carl Olsen, Pro Se

 

Post Office Box 4091

 

Des Moines, IA 503333

 

515-288-5798 home phone

 

515-343-9933 cell phone

 

 

 

 

 

 

 

--------------------------------------------------------------------------------

 

[1] Because Or. Rev. Stat. § 475.035 antedates the Federal Controlled Substances Act, 21 USC §§ 811 to 812, Or. Rev. Stat. § 475.005(6) and Or. Rev. Stat. § 475.035 show a legislative policy to apply different criteria from those of the federal act when classifying controlled substances; Oregon has not chosen to include medical use as a factor. State v. Eells, 72 Or. App. 492, 696 P.2d 564 (1985), review denied by 299 Ore. 313, 702 P.2d 1110 (1985).

 

 

 

Although Or. Rev. Stat. § 475.005(6) states that a controlled substance is defined by reference to the schedules under the Federal Controlled Substances Act, 21 USC §§ 811 to 812, the statute does not adopt the federal criteria, as Oregon has its own standards for amendment of the schedule, as set out in Or. Rev. Stat. § 475.035. State v. Eells, 72 Or. App. 492, 696 P.2d 564 (1985), review denied by 299 Ore. 313, 702 P.2d 1110 (1985).

 

 

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[lawyercaregiver]

This is a federal case. Obama through his justice department could agree to the relief requested in the petition, enter a consent order, and yeah that would be it. Marijuana would be rescheduled. The legislature could come back later and change the "law" as interpreted by the courts and the order but that would almost never happen. So yeah, the ball is in Obama's court. Any bets?

[peanutbutter]

This is a federal case. Obama through his justice department could agree to the relief requested in the petition, enter a consent order, and yeah that would be it. Marijuana would be rescheduled. The legislature could come back later and change the "law" as interpreted by the courts and the order but that would almost never happen. So yeah, the ball is in Obama's court. Any bets?

 

Carl will not stop until the job is done.

[peanutbutter]

Oh bet ..

 

The last week of October 2012.

[+EdwardGlen]

Bump...

[copper]

It's nice to see we have people out there at least making attempts for changes in a positive direction.

[Dr. Bob]

The interesting thing on the Federal Level is that the US Congress had a hand in approving the District of Columbia's MMA. Ideally, removal of Marijuana from the CSA, except for perhaps large scale interstate trafficking, will put it back on the states where it should be. This is further supported by the fact many states have passed medical use laws in defiance of federal law.

 

The interesting kick to this suit, and I agree that it is designed to bolster the case federally, is that if successful, where are they going to put MJ? Does it need to be scheduled at all?

 

It is an interesting development and I'll follow.

 

Dr. Bob

[CedarSpringsCG]

If they were smart, they would put in an exemption just like they did for Alcohol and Tobacco. Then tax and regulate recreational use just like those, and we could keep somewhere around $30 billion a year in the states instead of sending it to South America. Sure not a lot, but then take out the prison terms for just drug offenders, court time, lawyers, etc etc, and the war on drugs at $24 billion, and I bet we could get somewhere around $100 BILLION in savings per year or more.

 

I won't support taxing for medical use. But recreational sure why not.

[peanutbutter]

If they were smart, they would put in an exemption just like they did for Alcohol and Tobacco. Then tax and regulate recreational use just like those, and we could keep somewhere around $30 billion a year in the states instead of sending it to South America. Sure not a lot, but then take out the prison terms for just drug offenders, court time, lawyers, etc etc, and the war on drugs at $24 billion, and I bet we could get somewhere around $100 BILLION in savings per year or more.

 

I won't support taxing for medical use. But recreational sure why not.

 

And limit production to the medical community. Put cash into the hands of the poorest of the poor in Michigan.

[sho]

And limit production to the medical community. Put cash into the hands of the poorest of the poor in Michigan.

Free the Seed, in all forms.

[+EdwardGlen]

Bump...

[Friendofphotons]

If they were smart, they would put in an exemption just like they did for Alcohol and Tobacco. Then tax and regulate recreational use just like those, and we could keep somewhere around $30 billion a year in the states instead of sending it to South America. Sure not a lot, but then take out the prison terms for just drug offenders, court time, lawyers, etc etc, and the war on drugs at $24 billion, and I bet we could get somewhere around $100 BILLION in savings per year or more.

 

I won't support taxing for medical use. But recreational sure why not.

 

 

$30 billion here and $24 billion there and before you know it, you're talking real money...

 

You don't even have to mention the medical benefits of cannabis for this to make sense. The state, and the national as a whole, are hemorrhaging money at a pace that anyone with a grade school understanding of mathematics can see can't continue. I'm not a formally trained accountant myself and we have elected officials, that work for us, that are. These people are tasked with the well being of the state/nation, and in my opinion, they're failing miserably.

 

As has been pointed out, removing marijuana from the CSA would save a ridiculous amount of federal money, and open the door for states to financially benefit also. Those that would fight against removal from the CSA due to conflicts of interests and fear of loss of personal financial gain from lobbyists should be publicly charged with dereliction of duty and publicly charged with treason. Again, the state/nation are so broke that they've resorted to financial tactics that would see a regular citizen imprisoned.

 

Now once you do consider the medicinal benefits that are more and more being put in front of the citizens, and officials, I can't understand this not happening. Again, due to the obvious benefits medicinally, financially and socially, I'm forced to view those opposed as either lacking the mental acuity required to hold office, or criminally negligent. Addressing them from either of those angles is acceptable to me be it removal from office or prosecution.

[peanutbutter]

From: Carl Olsen <carl-olsen@mchsi.com>

Subject: RE: [iowaMedicalMarijuana] Sibley v. Holder

To: iowamedicalmarijuana@googlegroups.com

Date: Thursday, September 1, 2011, 8:10 PM

 

Wow, I just finished reading the documents in this case. This is a fascinating case. The plaintiff alleges that Congress approved medical use of marijuana by allowing the DC medical marijuana law to take effect. Now (on August 12, 2011) DC is asking each applicant to sign an affidavit confirming they are aware that operating a medical marijuana center is a violation of federal law. Ooh, that sure does sound like Leary v. United States, which held the Marihuana Tax Act unconstitutional because it forced Leary to incriminate himself in violation of the Fifth Amendment to the U.S. Constitution. The plaintiff filed an amended complaint today and added the Mayor of DC as a defendant. The plot thickens.

 

Sibley v. Holder I put most of the documents from this case on this web page: http://www.iowamedicalmarijuana.org/States/District.aspx