First, the disclaimer: I am not an attorney. I just play one on the Internet.

That said, I find this a very curious decision, and many others also find it surprising. I have posted both the Judge’s original ruling from March 10, 1999 and the Summary Judgement dated December 1, 1999. It is not easy to reconcile the two.
See
December 1 Judge Katz Dismisses The Class Action, Saying The Government Is "Rational."
But "If morphine were thus dispensed, the absurdity would be even more apparent."
and
March 10 Ruling By Judge Katz Upholding Equal Protection Questions:
"The Motion to Dismiss is DENIED
as to the equal protection challenges to the compassionate use program."
and
"The laws are what the laws are.
If people want the laws changed, there has to be a sound basis in science.
We haven't changed our position. Users could be prosecuted."
"Justice" Department Defiant In Philadelphia Class Action.
and
Science And The End Of Marijuana Prohibition By Jon Gettman

In posting the opinions I have highlighted in red – and sometimes with underlining what I consider to be the most important points. Also, in my comments below all of the direct quotes are in Italics.

At the very least, I recommend that readers scan the opinions to get some understanding of how the law is supposed to work. Particularly as regards marijuana prohibition, it is not a pretty picture. However, it was also interesting to see the degree to which case law on marijuana has developed as the result of NORML litigation over the years. Alas, with little effect.

It is important to keep in mind that this was a "Summary Judgement" which the judge had previously refused to grant to the government. The question at hand centers around the fact that the government is giving a few people medical marijuana and treating everyone else who tries to use it as criminals. According to the March ruling, the case is about "the distinction between those who may and may not legally use medicinal marijuana, as to which the test is whether the government's distinction is rational. The answer must come from facts…"

The government – of course – came back with "facts" which showed that it was indeed "rational." Consider, however, some of these "facts."

1. Dr. James O. Mason of the Public Health Service is quoted as saying that the "widespread use of marijuana for medical purposes, especially where alternative medications are available, is bad public policy and bad medical practice." Is that a fact? It sounds rather like an opinion to me. Are there alternative medications available? That is precisely the question at hand. If the government were not opposing medical marijuana then there would be no need for a lawsuit.
   
2. It was claimed that the expansion of the medical marijuana program "threatened the availability of marijuana for future single patient INDs and other research projects." This is laughable. It is also a lie, and it contradicts the government’s own documents. In fact, there was a large supply of government medical marijuana on hand at the time, and it would have been very easy to increase the production of medical marijuana. The farm in Mississippi told them as much. Moreover, the whole point was that there were not going to be any more patients in the IND, and the Judge explicitly recognizes in his opinion here that the government was not doing any research on medical marijuana:
   "The government has finally instituted a program to make its supply of marijuana available to serious researchers to determine the utility of the substance as medicine based on scientific empiricism rather than shibboleth. In time, knowledge sometimes has a chance to prevail over ignorance."
   In other words, the Judge himself recognized that one of the excuses given for closing the IND was simply a lie.
   
3. The Judge says, "The government emphasized that these individuals [in the program] had relied on the government-supplied marijuana for many years and that it did not wish to harm those individuals by abruptly cutting off their supply…. This holding also suggests that the plaintiffs are not similarly situated to those already in the program, which constitutes an independent reason to reject plaintiffs' equal protection claim."
   That does not make any sense at all to me, but the government is acknowledging that the people in the program would be harmed by cutting them off, but denying that people outside of the program with similar medical problems are being harmed. That is what the suit was about. In any case, it is a question of fact.
   
4. The government also quotes Dr. Mason as saying that "[l]ittle or no useful data has been obtained" from the program, and "there is consensus within the Public Health Service that the single-patient IND process would not yield useful data in the future that would resolve the remaining safety and effectiveness issues."
   In fact, there has never been any effort to get any data from the patients in the IND. The government simply did not want to know that there were people getting benefit from medical marijuana and not suffering any of the supposed side-effects. The government then used its own failure to get data to claim that there was nothing to be learned by getting data. That is not "rational." That is either fraud or negligence -- or both.
   Here again Judge Katz himself notes: "Even odder is the government's having provided marijuana to a small group of people over the years in the compassionate use program without having obtained a single useful clinical result as to the utility or safety of marijuana as a medicine to alleviate the symptoms of illness. If morphine were thus dispensed, the absurdity would be even more apparent."
   Remember the Judge is saying that the government has been behaving "rationally" within the meaning of the law. Absurdity equals rationality only in making marijuana policy.
   
5. A further measure of this view of "rationality" can be found in the Judge’s statement "While there is obviously tension between the government's repeated statements that marijuana has not been proven to provide any beneficial results and its decision to continue supplying it to eight individuals for medical needs, the government has argued that there is a difference between individuals who have used government-supplied marijuana for many years, in some cases, and those who have not."
   Of course the government would say that there is a difference, but the only real difference is that those who were in were in, and those who are out are criminals or suffering, and that is precisely what the lawsuit is all about.
   
6. The Judge said in March, "Smoking marijuana does not qualify as a fundamental right." However, that was not the question before the court. The question is whether using marijuana medically – when nothing else works – is a fundamental right. He cites a case in which a state outlawed midwifery to show that the choice of medical treatments is not a "fundamental right."
   In his March ruling he said, "The Supreme Court has recognized a penumbral right to privacy in the United States Constitution, but this constitutional protection includes only those ‘personal rights that can be deemed fundamental or implicit in the concept of ordered liberty.’ Roe v. Wade, commenting that only most intimate rights are protected). In determining whether or not a right is fundamental, a court must decide whether a right is explicitly or implicitly guaranteed by the Constitution, but a court should not " 'pick out particular human activities, characterize them as fundamental, and give them added protection.' " NORML v. Bell. If the right in question is fundamental, the state must show a compelling interest in the regulation; if the right is not fundamental, the regulation must pass only rational basis review."
   
   That is the basis for the Summary Judgement; however, the case that he cited is not relevant to the fundamental rights, as it is when a person’s life is in danger. Moreover, on the basis of the Judge’s own comments there would seem to be serious questions about the "rational basis" of the government’s actions.
   
7. Judge Katz explains that "Summary judgment is appropriate ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ … The moving party [the government] has the burden of demonstrating the absence of any genuine issue of material fact. … When ruling on a summary judgment motion, the court must construe the evidence and any reasonable inferences drawn therefrom in favor of the non-moving party."

Nonetheless, even though the government lied to the people for decades and repeated these lies to the court, and even though Judge Katz himself acknowledged the "absurdity" of the government’s position, he ruled that there were no questions of fact and the government has acted "rationally" within the meaning of the law.

Of course, this battle is far from over. The attorney for the Class Action, Lawrence Eliot Hirsch, will be filing a motion to reconsider, which is standard in such a situation. However, this will go beyond the standard. Hirsch says, "We will enter a Motion for Reconsideration to challenge and test every one of the court’s errors of law and misapplication of facts. We are also considering an application for relief from this summary judgement, which will contend was obtained fraud, misrepresentation and misconduct under federal rule 60( B) (3)."

Stay tuned. The government is just digging itself in deeper.

(Marijuananews note: The following article from the Philadelphia is really good journalism from a paper that was originally very skeptical about the suit.)
See
Philadelphia Inquirer Finally Reports On Class Action Suit
And Al Gore Calls For More Accurate Information On Drugs – Sort of…
The Context for Medical Marijuana 

December 4, 1999
From The Philadelphia Inquirer
Inquirer.Opinion@phillynews.com
http://www.phillynews.com/
http://interactive.phillynews.com/talk-show/
By Joseph A. Slobodzian INQUIRER STAFF WRITER

MARIJUANA LAWSUIT IS DISMISSED

In A Class-Action Suit, 160 Plaintiffs Challenged A Government Ban On Medical Use Of The Drug.

Calling for a scientific determination of marijuana's value as a medicine, a federal judge yesterday dismissed an unusual class-action lawsuit challenging the constitutionality of the government ban on medical use of the drug.

U.S. District Judge Marvin Katz said that although a handful of people had been given the drug under a federal "compassionate-use program" since the 1970s, the government is not legally obligated to extend that program to all citizens.

Katz described the compassionate-use program as flawed and "somewhat strange." But, he wrote, "while there is certainly a disparity in treatment in this case, that disparity is either 'invidious nor irrational.' " He said that a decision to end the program by attrition was not an infringement of equal-protection principles.

The Justice Department in 1978 settled a lawsuit that challenged the government's ban on marijuana use by implementing the compassionate-use program. It provides up to 300 government-grown marijuana cigarettes a month to people found to have serious medical conditions that seemed to benefit from the drug's use. Eight of the 14 people continue to receive the drug from the government, which closed the program to new participants in 1992.

Lawrence Elliott Hirsch, the Center City lawyer who last year filed the proposed class-action lawsuit on behalf of 160 people who believe marijuana would benefit their health, said he would appeal, first by asking Katz to reconsider his ruling.

"I really don't think he dealt with the equal-protection issue," Hirsch said. "How can there be a lawful status for eight people and criminal status for everyone else?"

Hirsch said Katz's ruling "at least accelerates the path to the Supreme Court, which will ultimately decide this case."

Hirsch's lawsuit was filed in August 1998 at a time when residents of California and other states had voted in referendums to legalize the medical use of marijuana to treat the symptoms of AIDS, cancer, glaucoma and other diseases.

Hirsch's lawsuit listed 160 plaintiffs nationwide, led by Kiyoshi Kuromiya, 56, an AIDS patient and activist from Philadelphia who says marijuana helped him gain 40 pounds he had lost through "AIDS wasting syndrome."

Since then, Hirsch added, 500 more people have contacted him asking to be included as plaintiffs in the lawsuit.

Katz said yesterday that the government had a "rational reason" for continuing to supply marijuana to people with whom it had settled a lawsuit while continuing to oppose legalization for the larger population.

But Katz, a 16-year veteran of the federal bench appointed by President Ronald Reagan, also urged the government to come up with some scientific proof to end the debate.