March 7, 1999
By Michael D. Cutler, Esq., Member NORML Legal Committee, and Voluntary Committee Of Lawyers

As I listened to the questioning of the Government’s attorney by Senior Judge Marvin Katz, last Wednesday during argument on the Feds’ motion to dismiss (asking the judge to find the class of medical marijuana users had no case, no matter what facts were proven), I began to sense that these patients may be bound for Glory. No legalisms can cloak their pain, nor the unique or superior relief they enjoy from Cannabis. This judge had read their stories (in a 178 page amended [shortened] complaint), and saw over 60 of them (8 in wheelchairs) in his courtroom. I think this Judge is open to the idea that the source of their dramatic relief may be marijuana. Moreover, he appears to be skeptical of the Government’s ability to come up with a legitimate (or even, "merely rational") reason, for denying relief to the needy. Or, not.

But if so, American History is about to pivot again in Philadelphia, because a group of courageous and righteous plaintiffs may have met their peer on the bench. We always have had the facts; it’s about time we had some luck.

The Road to Philadelphia

Last year, on the last court day before the Fourth of July, Philadelphia attorney Larry Hirsch filed a voluminous complaint with his local federal court. After two years’ organizational activity, financed out of his own pocket, he collected 165 patients (several of whom trusted him enough to publicly disclose their marijuana use for the first time), and filed as thorough a condemnation of Prohibition as any American courthouse has ever seen. What it lacked in traditional legal precision in framing the issues presented, it made up for in the eloquent telling of its 165 plaintiffs’ poignant stories.

The Government was surprised to hear at the first meeting with this Judge that he wanted them to seriously consider a settlement, to reopen the federal government’s IND program (closed 8 years ago to all new patients, but still providing government marijuana to 8) and admit all class members who wished to join. The Feds’ responded by refusing to make an "ad hoc" settlement (as they did of course, in the case that started the IND program). They wrote to the Judge that "the [IND] program proved so unsatisfactory that it had to be discontinued in 1992 . . . [because it] failed to provide evidence of any therapeutic benefit."

When the court scheduled a hearing on the Feds’ motion to dismiss, Hirsch decided a show of force at the hearing could be an impressive signal, both to the Judge and the Government. With financial assistance from NORML and Canadian Marc Emery, over a third of the class members traveled to and were housed in Philadelphia.

The First Contested Hearing in the Class Action

Wednesday March 3, 1999, Judge Katz heard argument on the Government’s motion to dismiss the case; its attorney offered several reasons for throwing the case out of court. The Feds did not like Hirsch’s complaint because it was too long and too unusual. Hirsch already had been given a prior chance to amend, and they felt it was still too long. They did not like his opposition pleadings, for they were too short (but cited a case directly on point against the Government, written by Judge Katz). They felt they should win by default.

On the merits (whether the ccmplaint sufficiently stated a plausible case), the Feds’ lawyer told the Judge that no court had "ever even come close" to finding a constitutional right in a case like this class (the class of medically needy who risked incarceration to take their medicine, in contrast to the class of 8 remaining protected patients) had submitted. He argued that any government statutory policy was entitled to a presumption of validity (the politicians must be right), and that the minimum rationality in the Government’s otherwise ordinary law enforcement activity was obvious. I wondered if the state’s attorney had made a similar argument on a similar motion, during the pretrial proceedings in Brown v. Board and Roe v. Wade (politicians statutorily oppressed black and female Americans, until a judge found the Constitution prevented them from doing so).

I awoke from my reverie (Hirsch was the only lawyer actually arguing the patients’ case that day), however, as the Judge began questioning the Government attorney (a 50-something from the Federal Programs Branch of the Dept. of Justice’s Civil Division in D.C., accompanied by two bench warmers, one of whom was a young  DEA lawyer).

"Where in the record," asked Judge Katz, is marijuana’s harm established? "It can be subsumed," answered the Feds’ attorney, from the health agency’s conclusion that marijuana’s use was not beneficial, and even harmful to some.

"But," continued the Judge (speaking very slowly and smiling through most of the hearing), "shouldn’t the plaintiffs have some opportunity" in court to discover and review the evidence which the Government used to decide to close the program, to be sure the closure was "rational"? . . . Who ran the program, what agency monitored it?" asked Judge Katz; the Feds’ lawyer did not know.

The Judge ended the hearing by asking the Government’s lawyer on rebuttal to give him his "best argument," identifying "what is the downside to producing documents limited to the Government’s rational basis evidence?" Referring to a 5 year-old letter from an HHS Asst. Secretary to several Members of Congress attached to his pleading (which appendage appears to be an independent and surprisingly gratuitous basis for denying the Government’s motion as a procedural matter), he replied "That’s all there is, there’s nothing else."

What Happens Next

Judge Katz was too curious to be put off. Before closing the hearing, the Judge indicated he would hold the record of the hearing open, to enable the Government to produce the information about the IND program, its inception, operation and closure. He gave them 10 days to notify him how much longer it would take, to complete the identification and delivery of all appropriate documents.

We know that the 8 surviving IND program participants have thrived from their Cannabis use. We suspect that the program was closed due only to a cresting wave of primarily gay AIDS patients. We know, as Judge Young told us in the Rescheduling administrative litigation in 1988, that marijuana is the one of the safest and most therapeutic substances known to Man. We (and I suspect to my amazement, Judge Katz as well) cannot wait to see what the Government comes up with.