By Barry Gainsburg
Last week, the U.S. District Court in Northern California declined to declare the federal classification of marijuana as a Schedule I drug as unconstitutional.
A Schedule I drug is defined as a substance with no currently accepted medical use and a high potential for abuse. Many, including myself, were hoping for a different ruling.
Judge Kimberley Mueller conducted an evidentiary inquiry based upon the defense counsel’s motion alleging that marijuana’s Schedule I classification was arbitrary resulting in a denial of equal protection and therefore unconstitutional. Arbitrary here is meant in the sense that there is no reasonable justification for including marijuana as a Schedule I drug.
Although, Judge Mueller considered the scientific evidence introduced by the defendants, which now becomes part of the case’s record, the judge, pending a written decision explaining her rationale, stated, “This is not the court and this is not the time.”
Failure to fulfill a constitutional obligation
Judge Mueller is to be commended for at least allowing the defense team to introduce evidence into the record demonstrating the scientific data supporting marijuana’s medicinal benefits, and noting that 23 states have given credence to this position. By showing judicial restraint, in wishing that Congress will remedy the laws, the Court, when presented with the opportunity to exercise its judicial mandate to determine if federal laws are unconstitutional, failed to fulfill its constitutional obligation.
If Congress wants to regulate and restrict milk usage, for whatever compelling purpose, it should be unconstitutional to label and classify it as alcohol, when scientific evidence strongly suggests otherwise. The legislative body can create specific statutes that correctly identifies milk as a dairy product derived from cows, or synthetics, and regulate it accordingly.
In fact, as far back as 1972 a Michigan State Court justice in People v. Sinclair essentially stated that if a person wanted to smoke hay, unless hay was proved to possess the qualities of a Schedule I drug, then it was not the job of the legislature to define it improperly, regardless of the state’s ultimate objective. The arguments regarding marijuana’s arbitrary classification has been around since the early 1970s when it was at that time defined as a narcotic, which it is obviously not by simple definition.
So in light of Judge Mueller’s ruling what potentially happens next?
She will continue presiding over the case, wherein the federal government is prosecuting the 16 defendants for conspiracy to grow over 1,000 marijuana plants in Shasta-Trinity National Forest.
Will a Federal Appeals Court get involved?
The case may continue on through trial, at which time should the Defendants be found guilty they will have the ability to appeal the rulings in the case to the 9th U.S. Circuit Court of Appeals, based in San Francisco. This option will be a long time coming as the prosecution and ultimate filing of an appeal is a long process so we may be looking at mid-2016 in this situation.
Historically, the 9th Circuit tends to be a liberal leaning court, which makes sense as it encompasses many states with medical and recreational programs. At the Circuit Court level the justices may feel more empowered to address the constitutionality of classifying marijuana as a Schedule I drug, but again there is no guarantee that the judiciary will take on this issue with so many moving pieces on the federal and state level.
The issue may become moot — moot meaning that there is no longer a need for the court to address. This may occur in either of several ways:
- The government and defendants enter into a plea agreement prior to trial;
- Congress legislatively addresses the situation based upon recent bills introduced into both chambers. Additionally, this type of resolution would also have immediate effects on interstate commerce and banking issues surrounding the cannabis industry; or,
- President Obama, through executive order, has the DEA administratively reclassify marijuana from Schedule I drug status. This would likely not occur, if at all, until after the 2016 election cycle is completed.
Questions that still need to be answered
Eventually, the federal government will take some action regarding the classification of marijuana as a Schedule I drug. The questions remaining to be answered are,
- Will be addressed before 2016, when California, the most populous state in the Union, is very likely to legalize recreational marijuana use?; and,
- Which branch of government will be responsible for reclassifying marijuana from its current Schedule I status?
After 20 years of practicing in the securities industry, today Barry Gainsburg primarily concentrates in sharing his legal advice and business expertise to the Cannabis Community through his firm Barry Gainsburg, PA. Barry resides in Plantation, Florida with his wife and four children. Barry can be reached at [email protected].