|
Transcript of Court
Record of Government's Motion To Dismiss
Medical Marijuana Class Action Case
(Marijuananews note: This transcript may seem
like "little-to-do-about much" to the layman, but the hearing was simply to
determine whether the medical marijuana class action case should be dismissed, because the
government has the right to do anything that it wants as long as they pretend that there
is a "rational basis" for their actions. In effect, the Judge agreed with the
government with one very major exception: Why do eight people have the right to
receive medical marijuana from the government, but no one else does?
The government cannot answer this question.
The transcript is a bit long, but the most obvious point is
that the governent's attorney did not know what he was talking about.
The basis of the judge's ruling is also apparent from the
questions he asked.)
See
Major Disaster
For Marijuana Prohibition!
Federal Court To Allow Class Action To Proceed On Equal Protection Question:
Why do eight people have the right to receive medical marijuana from the government, but
no one else does?
and
A Legal
Overview of the Medical Marijuana Class Action Case -- By Michael D. Cutler, Esq.
and
Report From
Philadelphia:
The Class Action Suit Goes Forward With The Government on The Defensive
– 3 Prominent Lawyers Join Plaintiffs’ Team
and
Not Fit to Print?
The Medical Marijuana Class Action Hearing Media Blackout Documented By Mapinc
| IN THE UNITED
STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ------
KIYOSHI KUROMIYA, et al : CIVIL ACTION NO. 98-CV-3439
v.
THE UNITED STATES OF AMERICA:
-----
March 3, 1999
Philadelphia, Pennsylvania
-----
MOTION TO DISMISS
BEFORE: HONORABLE MARVIN KATZ, S.J.
APPEARANCES:
for the Plaintiffs:
HIRSCH & CAPLAN PUBLIC INTEREST LAW FIRM
BY: LAWRENCE ELLIOTT HIRSCH, ESQ.,
1735 Market Street
Philadelphia, PA 19103
MICHAEL D. CUTLER, ESQ.,
46 Kenwood street
Brookline, MA 02146-2413
GATEWOOD GALBRAITH, ESQ.,
P.O. Box 1438
Lexington, KY 40588
WILLIAM G. PANZER, ESQ.,
370 Grand Avenue, Suite 3
Oakland, CA 94610
for the Defendant:
ARTHUR R. GOLDBERG, ESQ.,
KARYN A. TEMPLE, ESQ.,
United States Department of Justice
901 E Street N.W.
Washington, DC 20044 |
| for the Defendant:
DANIEL DORMONT, ESQ., United States Department of Justice
Reported by: Joel Gerstenfeld, C.S.R.
Official Court Reporter
1234 U.S. Courthouse
Philadelphia, PA 19106
Proceedings recorded by mechanical stenography;
Transcript produced by dictation.
The HIRSCH & CAPLAN PUBLIC INTEREST LAW FIRM and fairlaw.org furnish the
publication of this proceeding. Inquiries about the content and context may be addressed
to:
Lawrence Elliott Hirsch, Esq.
Tel: (215) 496-9530; Fax: (215) 496-9532
E-mail: actionclass@fairlaw.org
leh36@aol.com |
| THE COURT: Good
morning, everybody. I will be glad to hear both sides on the motion. Actually,
we should start with the Government, if that is agreeable.
MR. GOLDBERG: Thank you, your Honor. My name is Arthur Goldberg. I represent
the United States. This is our Motion to Dismiss the plaintiffs' Complaint in this matter.
Your Honor, plaintiffs seek to have this Court announce an unprecedented and
totally unfounded Constitutional right for a purported class of 97 million people to use
marijuana for various ailments, ranging from AIDS to itching disorders to wound care. No
court in this country has come anywhere close to suggesting that such a right exists under
the Constitution, and this Court should not do so here this morning. Rather, the Court
should dismiss the Complaint now because plaintiffs have failed to state a claim upon
which relief can be granted for any of the theories in their Complaint. They've got a
Commerce Clause claim. They've got a Fifth Amendment due process equal protection claim, a
Ninth Amendment claim which appears to be some sort of fundamental right and a Tenth
Amendment claim suggesting that this is a matter reserved only for the States and not for
the Federal Government. |
| But first let me
point out a procedural matter. And that is that our motion is effectively unopposed here
this morning. We've twice moved to dismiss the plaintiffs' Complaint, once last summer of
their first amended Complaint, your Honor granted them an opportunity to amend it. They
filed a second amended Complaint which in all significant respects was identical to the
first amended Complaint. And they've not opposed our second motion to
dismiss either. Whether it's an inability, unwillingness for some belief that their quest
is righteous, it's really immaterial. They haven't opposed our motion. And for this reason
alone under the local rules of this Court our motion ought to be granted and their
Complaint ought to be dismissed.
We've cited cases in your recent submission that shows that the Courts in this
District and in the circuit are not hesitant to dismiss a Complaint for failure to follow
the local rules.
THE COURT: May I get the benefit of your advocacy on a particular issue? In
your motion you attach a letter from a physician addressed to, I believe, Congressman
Hamburg.
MR. GOLDBERG: That's right.
THE COURT: And other materials that raise issues about whether the
Compassionate Use Program was efficacious or deleterious.
If I get involved in those particular issues, is there a factual issue that's
raised? Your papers are not in affidavit form. And I take it there are eight people who do
receive marijuana under the Compassionate Program? |
| MR. GOLDBERG: Seven or eight. THE COURT: Seven
or eight to this point, and what is the viability of the equal protection claim that
the Government is providing to those seven or eight but not to others?
Is there a rational basis for the distinction that does
not involve the factual issue of the kind that the physician explained to Congressman
Hamburg?
MR. GOLDBERG: Well, let me just explain, your Honor. As we pointed out in our
brief, we did attach that material. And we think it's appropriate on a Motion to Dismiss
when plaintiff refers to this program and with nothing else it's in their Complaint, that
we can then attach publicly available materials to sort of add an explanation to the
program that the plaintiffs refer to in the Complaint. We think that's appropriate, that
does not create a factual issue, it does not somehow undermine our Motion to Dismiss.
And if the Court says, well that, you may then, that converts your Motion to
Dismiss into a motion for summary judgment, we don't necessarily agree with that. But even
if it were, there's been no opposition to our motion for now summary judgment. There are
no factual disputes, and I don't think there are any contested facts with regard to this
program. The material we provided simply gave the explanation why this program was
terminated. Now -- |
| THE COURT: I'm
sorry, go ahead. MR. GOLDBERG: I will try to answer the second part of
your Honor's question.
THE COURT: Go ahead.
MR. GOLDBERG: But I would be happy to --
THE COURT: No, no, please.
MR. GOLDBERG: Okay. With respect to the equal protection
argument they make with respect to this program, they made two separate arguments. They
make one with respect to this program, that it somehow violates their rights to equal
protection because the Government has refused to revive or expand this program that was
discontinued in 1992, and there are seven or eight people now in the program, and at its
maximum there were 15 people, I believe, in the program.
But first of all, because we're not dealing with a
fundamental right, we're not dealing with some sort of suspect classification such as
racial discrimination or gender discrimination.
As the Court is well aware, this decision is judged on a
rational basis test. The Supreme Court has said that the Court must reject these sorts of
claims so long as there's any reasonably conceivable state of facts.
THE COURT: Explain to me what, I agree, the rational basis test.
MR. GOLDBERG: Okay. |
| THE COURT: Explain
to me the rational basis. MR. GOLDBERG: I think I ought to do that.
This may be a long-winded answer, but I want the Court to get the full benefit of all the
thinking that goes into this answer. I want to just kind of go through the history of this
program.
In May of 1978 a Mr. Randall who apparently had glaucoma
filed a suit in District Court for the District of Columbia asking that Court to declare
unconstitutional certain Federal laws and regulations that govern the use of marijuana in
research programs. Apparently he had previously been in a program, a
research program and had been receiving marijuana by volunteering to be a patient in a
study that was being conducted for the FDA, the Food and Drug Administration's
regulations.
Those studies were originally controlled in terms of patients' ability to take
marijuana, to take it at home. I think they probably were not
allowed to take it at home, they had to take it in some sort of laboratory setting.
And Mr. Randall objected to those limitations and sought an injunction ordering the
Government to provide him with marijuana based upon his own doctor's prescription so he
could then, I guess, decide how much and when to use it on his own.
A month after that suit was filed, it was settled. And those
settlement papers we appended to our Motion to Dismiss. And the settlement enabled Mr.
Randall to use marijuana as part of what the FDA calls an investigational new drug
program, I refer to it as IND program.
(Marijuananews note: Actually, he doesn’t know what he is
talking about.
Kenneth Starr would indict him for
perjury! In fact, he has seriously misled the court in his statements.
Randall was arrested for growing his own marijuana to treat his glaucoma, after he had
discovered on his own that the government was suppressing information about
marijuana’s value as a treatment.
The program was started as the result of
Randall's using a medical necessity defense, when the government prosecuted him.
Some of the other members of the group
also got in the program in that way.
Others benefited from Randall's working to
make the application process rational. When that happened, and there was a large number of
successful applicants, the program was closed and hundreds of successful applicants were
refused the marijuana for which they had already been approved.
The head of the Public Health Service,
James O. Mason, explained closing the program by saying that people with AIDS should not
be given access to medical marijuana because they might not practice safe sex.
Really.
This is the "rational" basis for
closing the program. There was no research cited, partly because the government chose
never to use the data offered by the "Compassionate IND."
Compassion had nothing to do with it.
There was never any
"investigation," and marijuana is not a "new drug." Other than that,
it was perfectly "rational.") |
| That's a program
that allows individuals whose physicians think they will benefit from an unapproved drug,
a drug that's not yet been approved by the FDA, allows them to receive these drugs under a
physician's supervision and care. So, he started on that program. The
original commitment by the Government was to allow it up to two years. Apparently it was extended.
Between 1978 when Mr. Randall started in that program and 1992 the FDA ordered
single patient IND status for marijuana to a total of 15 patients.
In 1991 the FDA reviewed this program and decided it was not a good idea. In
1992 the Government ceased allowing new patients into the program, but it didn't terminate
those who were already in. There were a whole lot of applications that had been approved.
People were waiting to get into the program. The Government said we're not going to allow
any of these new people in. And then the question was, what do we do about the 15 people
we've already got in that program? The Government decided we're not going to cut them off.
We're going to keep them in the program. But at the same time we're going to advise them
that we've concluded that this is not a beneficial therapy for them and we're going to
encourage them to look into alternative therapies. |
| Now, what the
Government concluded is that there are two reasons for this decision: One, it was bad
medical and scientific practice, and two, it was bad public health policy. In terms of the medical scientific aspect the people who looked at this
program determined that smoked marijuana was at bottom harmful to people, particularly
people who are seriously ill to begin with.
THE COURT: Where is that in the record? Where do I look
for that?
MR. GOLDBERG: It's in the materials that we appended to our Motion to Dismiss. There are statements there about the Government concluding that this is
bad medical practice and bad public policy.
THE COURT: But they are not, for one thing, in affidavit
form, right?
MR. GOLDBERG: That's right. But this again, we think
these things can be subsumed into the pleadings and dealt with as part of the pleadings in
this case. This is not a record review case, your Honor. This is not an Administrative
Procedure Act challenge. This is a straight Constitutional challenge at which at this
point we're testing the sufficiency of the allegations in the plaintiff's Complaint.
THE COURT: But if as you say the Government terminated
the program because it was not beneficial or if it was deleterious, am I required then to
give the other side an opportunity to examine whether there are facts that would support
that as a rational decision? It has to be a rational decision. |
| MR. GOLDBERG: Not
at this point because, your Honor, the Court can conclude that there is a reasonably conceivable set of facts would show there's a reasonable
basis, and at that point I think that's the end of the inquiry. If
I may proceed, you know, they conclude that there are chemical components in marijuana
that could cause lung problems, particularly people with cancer who are prone to lung
infections to begin with. There was no evidence, and all of this, in this material that's
appended to our motion, no evidence to smoke marijuana was any better than other available
therapies. And at this point in the late '80's and early '90's, people have concluded that
Marinol was going to be, which contains the active ingredient THC from marijuana, it was
going to be useful as an alternative therapy.
See
Two
Days After The Medical Marijuana Initiatives
The DEA Proposes Making Marinol A Schedule III Drug!! "Like Codeine With
Tylenol."
More Like Cynicism With Desperation and links
In terms of public health, these same officials looked at the program and said
this is not providing any scientifically valid evidence that marijuana is going to be
beneficial. This was not a controlled laboratory study. You had a variety of patients with
a variety of different conditions being treated by different doctors, taking different
doses of marijuana in uncontrolled settings. And the experts who looked at this said, this
is not the way to conduct any kind of valid scientific study to determine whether this
drug is going to be safe and effective. |
| So, in short, those
are the reasons. They are contained in these materials. And they, I think, clearly show
there's a rational basis for these conclusions. Now, in terms of why
they didn't shut everybody off of the program and kept this handful of people in there,
again the Government had made a commitment to these people and decided in exercise of some
judgment that is we have two alternatives. We can tell these people they can't use it
anymore, or we can let them continue, but at the same time tell them we don't think this
is good for you and we would like to encourage you to, you know, use alternative therapies
such as Marinol.
THE COURT: May I ask, how does the program work for the
small group? Is there a department or an agency or a person who administers it, or what
happens to these seven or eight people?
MR. GOLDBERG: I'm not sure exactly which agency. It might
be the Food and Drug Administration that was running it. I'm really not sure. And if it's
not set forth in that attachment to our Motion to Dismiss, I think it was the FDA, but I'm
not a hundred percent certain.
THE COURT: And there's no medical supervision? In other
words, the doctor doesn't examine the people?
MR. GOLDBERG: Well, the individual doctor is responsible for supervising the
patient's, his patient's use of the drug. But there's no control, there's no Government
official controlling this study. They're relying on the individual doctors. |
| THE COURT: And the
Government does what? It sends the marijuana to the physician? MR.
GOLDBERG: Yes, the Government supplies the marijuana to the physician.
THE COURT: To the physician in a specified quantity?
MR. GOLDBERG: Well, that's the point. I think it was up
to the individual physician to specify to the patient how much the patient was going to
use. Again, that just shows how sort of freewheeling and unscientific the program was.
(Marijuananews note: What this really shows is how ignorant
the government’s lawyer was about its program!)
And again, you know, these are hard decisions that
Government officials have to make.
THE COURT: Suppose it wasn't marijuana. Let's just say it
was food stamps or some other benefit like that. Could the government just provide the
food stamps to seven or eight people and not others?
MR. GOLDBERG: Well, it's interesting that your Honor raised that point because
there is a case, Dandridge v. Williams which is an old case in 1969. And I think it dealt
either with food stamps or with AFDC benefits. I know it was a HHS run program and there's
a very, I think, important point made by the Supreme Court in that case. And it says: |
| If the
classification has some reasonable basis, it does not offend the Constitution simply
because is not made with mathematical nicety or because in practice it results in some
inequality, the problems of Government are practical ones and may justify, if they do not
require, rough accommodations that may, the Supreme Court said, sometimes appear to be
illogical and appear to be unscientific. But if we're not talking about a fundamental
right that's all the Government need to do. And let me point out
there's another case that I think is important on this point. And this case which is not
cited in our brief, it's Steffan v. Perry from the D.C. Circuit at 41 F.3d 677 on pages
684 and 685, 1994.
This was a question of whether or not the Naval Academy could dismiss someone
who was a homosexual. And it was a case of rational basis review on a equal protection
claim. And the D.C. Circuit said this rational basis review is not a license for Courts to
judge the wisdom, fairness or logic of these legislative or regulatory choices. The
Government has no obligation, and this is really relevant to this point in this case, the
Government has no obligation to produce evidence to sustain the rationality of a
regulatory classification. Because a classification neither
involving fundamental rights nor proceeding along suspect lines is accorded a strong
presumption of validity, the burden is on the one attacking the governmental arrangement
to negative every conceivable basis which might support it, whether or not the basis has a
foundation in the record. And the Court went on to say this presumption of
regularity and rationality applies to administrative and regulatory schemes and decisions
as well as legislative. It's exactly what we have here, your Honor. |
| THE COURT: May I
ask in that case, the Steffan v. Perry, how did that come up procedurally? Was that on a
motion to dismiss or motion for summary judgment or what? MR. GOLDBERG:
I frankly don't know. It was one or the other, but I really don't
know.
THE COURT: And what was the holding actually?
MR. GOLDBERG: The holding was that there was a rational basis.
THE COURT: For?
MR. GOLDBERG: For dismissal of this individual from the Naval Academy.
So, again we have provided ample information here from which I think the Court
can conclude that there was a rational basis for the Government's decision in this regard.
THE COURT: May I ask, is the Government's documentation about this particular
Compassionate Access Program centered in one place? Is there a person in the Government
who is familiar with its operation and its history?
MR. GOLDBERG: It may not be one person. It may be somebody at the FDA. It may
also include some people at the National Institute of Health. |
| THE COURT: I take
it that the physician who wrote the letter that you attached is familiar with it? MR.
GOLDBERG: I think, yes, it's either from NIH or FDA.
THE COURT: It's Assistant Secretary of Health?
MR. GOLDBERG: Here, here it is, Assistant Secretary of HHS. He was above both
NIH and FDA. They're both components of HHS.
Your honor, I really think that I've covered everything I want to cover with
respect to the equal protection claim regarding the termination of this program.
There is a second equal protection claim that the plaintiffs have. And that is
the claim that, as best I can decipher it, they appear to be complaining that there's an
equal protection denial because marijuana is listed as a Schedule I drug under the
Controlled Substances Act. But Marinol, which is available through
prescriptions, is a Schedule II drug. And again this only has to pass the rational basis
test in order to be sustained.
And it's clear that Marinol has gone through the proscribed testing and
evaluation under the FDA's procedures. And it's been concluded that it has a lower
potential for abuse and it has some efficacious uses and therefore, it's been approved by
the Food and Drug Administration. |
| Marijuana, on the
other hand, has been determined to be a drug that's highly susceptible to abuse and has no
acceptable medical uses, and therefore it has been and remains a Schedule I -- THE
COURT: People, people, there can't be any exclamations from the audience or reaction. You
have to remain silent in the courtroom.
MS. CANNISTRACI: I'm sorry.
MR. GOLDBERG: In any event, marijuana is a Schedule I drug. There's a rational
basis for its categorization as a Schedule I drug. And we don't think there's any
substance to this aspect of plaintiffs' equal protection claim as well as the other
aspects.
I would like to, your Honor delved into the equal protection aspect. First, I
would like to, if your Honor is interested, to go also over the commerce clause Tenth
Amendment and Ninth Amendment issues, but --
THE COURT: I really don't think for my research that's necessary.
MR. GOLDBERG: All right, thank you.
THE COURT: Thank you.
I'll be glad to hear the other side.
MR. HIRSCH: Good morning, your Honor.
THE COURT: Good morning, sir. |
| MR. HIRSCH: My name
is Lawrence Hirsch and I am counsel for the plaintiffs in this case. There are a number of
plaintiffs who have, Kiyoshi Kuromyia is sitting with me at counsel table. And there are,
I guess, approximately 50 or 60 plaintiffs in the courtroom. I wanted to know what your
Honor would like to do with respect to identification of these people for the record. THE
COURT: It isn't really necessary.
MR. HIRSCH: Not necessary?
THE COURT: It's a public proceeding. I'll be glad to hear your legal argument
on the motion.
MR. HIRSCH: Yes, your Honor. With respect to the legal argument, the government
has taken the position since the first day: that this case started that there was no cause
of action; that Congress has the right under the Commerce Clause to pass the Controlled
Substances Act which they did in 1970;, and that's the end of the issue. That's all your
Honor has to look at. And they have persisted in that type of argument from the start.
They're wrong.
And, it is obvious that their Motion to Dismiss the Complaint based on Rule 12
is not consistent with our Rules of Civil Procedure in the federal system.
They attached for the Court's consideration
documentation. It was parsed. It was snipped. It was not really ample documentation. For
example, the materials that they included with respect to the Robert Randall settlement
with the government were merely - I mean who could understand that? Who could understand
what the nature of Robert Randall's claims were against the Government of the United
States and other defendants? We don't know who the other defendants were. |
| We
don't know what the issues in that case were. We don't know what the settlement was. The
settlement created a policy. The settlement created some course of action that happened
after that with respect to medical marijuana. Randall
asserted a medical necessity position. He said that he was entitled to marijuana from the
government because he was going blind from glaucoma and that he needed marijuana. That was
the most efficacious treatment for his condition and the Government gave it to him. After
he struggled, and he litigated, they decided that Robert Randall would be the first person
in the United States to get government supplied marijuana - marijuana grown on a
government farm in Oxford, Mississippi.
Now, we have argued in the Complaint, among other things, that when Randall got
that deal with the government, that that deal created a policy, and that that deal
recognized, that they didn't give Robert Randall new rights. It restored and reinvested
his fundamental rights.
And with respect to the portions of the record that the government included,
they're inadequate. They don't tell anybody anything. And their position that those papers
and the papers that were trimmed from the records of Health and Human Services, don't add
anything to the picture either because they are only part of what would be a voluminous
record of whatever the actions were that were taken by HHS. I -- |
| THE COURT: May I
interrupt you? MR. HIRSCH: Yes, sure.
THE COURT: And ask, is it your position that your clients are entitled to
marijuana prescribed by a physician as a matter of law or is it your position that there
are facts in dispute which have to be resolved before that question can be answered?
MR. HIRSCH: Well, there are facts that have to be placed on the record for the
Court's consideration in the context of a summary judgment proceeding on both sides.
The record has to be there for this Court. This is a case of judicial review of
Congressional action.
THE COURT: What facts? That's what I'm trying to get at.
MR. HIRSCH: These are the facts that I think are important. You know, the first
fact that I would look at was who is this person that cut the policy off? Who elected this
person? Where did he get his authority from? Was it possible for him to do it? I mean, or
did the arrangement and the policy that came from it that was created by the government in
1978. Who did they give the authority to? Why do we have a situation where Congress,
people in Congress are writing to Health and Human Services to some unelected,
unanswerable, I mean who does this person answer to and say, please restore this program,
please restore it because it's the right thing to do, it's the compassionate thing to do,
it's good medicine, it’s good policy, do it. |
| Why
does this government get into a position where somebody is making its decisions? We have
three people in this class action, Jackie Rickert, Ladd Huffman and Ron Shaw, all
of whom signed contracts with the government or were admitted into the program, and were
only awaiting the last thing, which was the delivery of their marijuana - one person with
serious multiple sclerosis, one person with serious post-polio syndrome and one person
with a rare bone tumor disease. How could anybody shut these people out? It's
not, it is not up to... I mean were they acting on behalf of the Executive? Were they
acting on behalf of the lawmakers? Who are they? THE COURT: What
would you do to ascertain those facts if you had the opportunity?
MR. HIRSCH: Well, what I would do is get the records, put on the record, that
is, the records from Health and Human Services - every record that had to do with the
Compassionate Access Program. |
| The
government has suggested in the papers that they filed, in this policy report that was
done in 1994, July, 1994, that the program was closed because of the marijuana activists
who were soliciting people because it now, by that time it became easier to get into the
program. There was a protocol that was established, and the AIDS community was involved.
There was an influx of people from the AIDS community. And the government says in its
partial answer in these papers that they attach, that the government... they were afraid,
because of the influx of people, that the government would not have enough capacity on
their farm to supply the marijuana to the people, which is absolutely absurd. Now,
those types of things with respect to how did those people get into the program. Why was
there only, in a course of 13 or 14 years, 15 people in the entire United States that
became entitled to legal marijuana?
THE COURT: Why isn't it rational to continue the program as to those people who
relied on it, be it seven or eight people --
MR. HIRSCH: Well --
THE COURT: -- terminate it as to others? Why isn't the reliance interest
sufficient to support the rationality of the decision?
MR. HIRSCH: The decision by whom, your Honor? Are you talking about the
decision by the --
THE COURT: The government to terminate the program. |
| MR. HIRSCH: By some
branch of the Government to terminate the program? THE COURT: Yes.
MR. HIRSCH: Because, number one, it wasn't rational. I
mean it goes to the, you know, we have argued, among other things that the statutory
framework is not consistent with Constitutional principles because, number one, there was
a Prohibition without Constitutional Amendment.
Number 2, that when the law was passed in 1970, to
replace the Cannabis Tax Act of 1937 that there was no rational basis for that and that
was arbitrary and inconsistent with the facts and inconsistent with medicine.
THE COURT: Has any Court ever --
MR. HIRSCH: No, sir.
THE COURT: Pardon?
MR. HIRSCH: No, sir.
THE COURT: No Court has ever accepted, it's always been rejected, I take it?
MR. HIRSCH: Well, no, it has never been litigated.
The issues that are raised in this case have never been litigated before.
THE COURT: But wasn't there extensive litigation about the FDA's putting
marijuana as a Schedule I substance? |
| MR. HIRSCH: There's
been some. There has never been litigation, that has been... that it has gone the
distance. There have been some lower Court cases that have dealt with certain issues that
involved marijuana, that involved marijuana recreational use. This is the only case that
squarely raises the medical issue with respect to marijuana. This is it as far as I know. And,
you know, when the government filed its motions the second time around. Now we knew that
they were going to file a Motion to Dismiss because they had indicated that before the
Second Amended Complaint was even filed, that that's what they were going to do. They were
going to maintain this position. But this time they filed
attachments to it for the Court's consideration. I want to remark about that.
As your Honor can see from reading my opposition that the
very first thing that I did was I checked to see whether this Court had ever ruled on
fundamental issues involving 12(b)(6) and conversion of it to a Rule 56 motion. And I
cited to this Court your Opinion in a case that had your identical language in the case
that deals with the Rule 12(b) and what happens if the Court is presented with papers for
consideration on a Motion to Dismiss. It is mandatory that it become converted to a Rule
56 motion.
Now, the Government has made what I think is a
preposterous argument. They cite a case in the Third Circuit from a footnote called
Oshiver, that has nothing to do with this. It has to do with a plaintiff attaching papers
to his Complaint, and those papers being considered on a Motion to Dismiss. |
| This case is not
that case. In this case, papers were filed. They were meager. And they tried to get the
most mileage out of them. But, they were filed and for this Court's consideration. So this
Court, must, as a matter of law, convert this, their motion to a Rule 56 motion. I
wanted to comment about the motion to strike the Complaint. I've worked on this case for
about two-and-a-half years.
The first time I wrote the Complaint, it took me, about, I don't know, maybe a
month-and-a-half, to write the Complaint. And that was the First Amended Complaint.
Then I asked this Court for leave to amend, because I wanted to restyle the
Complaint. I wanted to focus in, not so much on the Prohibition, originally in the period
of reefer madness back in the '30's, that has lasted up to this time. But, I wanted to
focus it specifically on the Controlled Substances Act of 1970.
I have said and we have argued that their Motion to Dismiss or to strike the
Complaint under Rule 8 is frivolous. There is no basis. There is not one word that they
can point to in that Complaint that says anything that is redundant, that doesn't have
meaning, that doesn't have relevance and isn't spelled correctly and grammatically
correct. And I don't think that this government should be raising that type of motion
-which are not favored by any Court. You could read Wright & Miller and pick up its
commentary on Rule 1 about how proceedings are to happen in the Federal Court, Rule 8,
Rule 8(f) -- |
| THE COURT: I think
I understand your argument. I think I understand your argument on the Motion to Dismiss. MR.
HIRSCH: Yes.
THE COURT: To give you one last shot at explaining to me with your advocacy,
why isn't it rational to terminate the Compassionate Access Program except for eight
people who relied on it? Why isn't that a rational distinction between those who relied on
it by receiving the marijuana and those who have not yet, granted there are three who
applied, and whose applications were accepted, as you say? Put aside the Government's
papers.
MR. HIRSCH: I mean they say it's bad medicine, and it's bad health policy.
THE COURT: Put that aside.
MR. HIRSCH: We say it's good medicine. And it's not only
irrational, it's arbitrary. It's arbitrary. We have a person in the courtroom who is one
of the legal recipients of marijuana, Elvy Musikka, who was the third person in the United
States to get it and she fought for it. And she wants everybody else who has her condition
to have it too. And, it's not up to the government to say this is ‘it’, we're
drawing the line right here. We've decided. Who is ‘we’? Who decided that? Who
gave the order to do that? Was it ever considered in any type of judicial forum at work,
any type of hearing forum? Absolutely not! Everything has been done arbitrarily. And the
reason for that, is that this government from 1978, has hidden this program. They have
gone out of their way to hide this program, not to let people know that it even existed.
And they do it even today in the materials that they promulgate to the public and the
things that they pass around. |
| THE COURT: I take
it doesn't exist anymore. MR. HIRSCH: Pardon me?
THE COURT: They are no longer accepting applicants to the program I take it.
MR. HIRSCH: Yes, they have not accepted any applicants for several years now.
Your Honor, I think I have said enough. And what I would like to do is... There
are some lawyers who are joining the plaintiffs' law team, and I would just like to
briefly introduce them to the Court. I don't have a written pro hac vice motions
for these people.
THE COURT: I will be glad to have you introduce them. And then if you file
whatever paper you wish to file, I would be glad to.
MR. HIRSCH: Yes, thanks very much.
THE COURT: Sure. |
| MR. HIRSCH: I would
like to introduce Michael Cutler. THE COURT: Mr. Cutler.
MR. CUTLER: Good morning, your Honor.
MR. HIRSCH: Who is from Boston, Massachusetts.
Gatewood Galbraith.
MR. GALBRAITH: Good morning, your Honor.
THE COURT: Mr. Galbraith, good morning.
MR. HIRSCH: Who is also a plaintiff in the case and he's from Kentucky.
And Mr. William Panzer.
THE COURT: Mr. Panzer.
MR. PANZER: Good morning, your Honor.
Mr. HIRSCH: Who's from California, and has been involved in the parallel
litigation, in some respects, between the government and the cannabis issues in the State
of California. Where, in California, as your Honor might be aware, they passed the law
about medical marijuana. And after they did, the federal government, Mr. Goldberg, and
others have been attempting to nullify the will of the people in California by declaring
that federal Prohibition is total Prohibition. Not one joint, not one grain of grass will
ever be sanctioned by the federal government. Whether it comes from the States or whether
it comes from the federal government, it will never be sanctioned.
Their settlement position was very, very clear: no concessions. They will make
‘no concessions’. |
| And I'm happy to
have these people joining me. And I now thank your Honor for your attention. And speaking
on behalf of all the people in the courtroom that came from all over the place, I would
like to thank you for your courtroom staff for making the accommodations and so forth. THE
COURT: You're certainly welcome.
MR. HIRSCH: Thank you, your Honor.
THE COURT: Mr. Goldberg, if you want the last word, you're welcome to it.
MR. GOLDBERG: Thank you, your Honor, I'll be very brief.
THE COURT: Sure.
MR. GOLDBERG: With the Court's indulgence I just have a couple points to make.
This is a Motion to Dismiss, which as the Court well knows for the purpose of
the motion, accepts as true all of the factual allegations contained in the plaintiffs'
Complaint. That's the posture we're in.
There are ample factual allegations about Mr. Randall,
Mr. Randall's case, Mr. Randall's settlement in the Complaint. Clearly for purposes of
resolving this motion, no further information is needed about that.
And when the Court asked Mr. Hirsch what are the facts he would like to put on
the record here, his response was he wants to know who the person was who cut the policy
off, what enabled him to do it and who is he answerable to? Those are not factual
questions, your Honor. Those are legal questions. And again under the law this decision
was rationally based. It does not matter who the person was. If the agency was responsible
for running this program, it had the authority to run it and had it had the authority to
terminate it. |
| THE COURT: Which
agency are you referring to? MR. GOLDBERG: I'm
talking about the overall agency is Health and Human Services. And again it was the FDA
who made the decision and possibly in consultation with NIH. But they’re both arms of
the Department of Health and Human Services.
And again, I'm not going to repeat myself. It was clearly a rational basis on
which to make that decision.
And just finally, this is not a case where it is incumbent upon the Government
to submit an administrative record. It's perfectly admissible and perfectly proper for us
to do what we did, to submit these documents to amplify the very allegations that were
made in plaintiff's Complaint and explain to the Court what this program was about.
THE COURT: But how can I consider those documents that
you submitted when they are not even in summary judgment form, they are not even in
affidavit form? |
| MR. GOLDBERG: We
don't consider this as a motion for summary judgment. These are publicly available
documents which are referred to in the plaintiff's Complaint. And we think that they can
be read as part of the plaintiff's pleadings and added to the facts asserted in the
plaintiff's pleadings. And even upon those facts we argue there is no legal basis for the
claim and therefore it must be dismissed.
THE COURT: What is the best argument that you have against allowing limited
discovery of whatever records there are that would demonstrate, as you point out, as you
argue, the rational basis for terminating the Compassionate Access Program?
MR. GOLDBERG: There's no showing that there are any facts in dispute at this
point.
To the extent that the documents --
THE COURT: The question is whether it was rational to
terminate and limit it to the four or five.
What is the downside of allowing limited discovery on that issue and see what
the documents are that would show why the program was terminated and why it's rational to
continue it as to the four or five, but not others?
MR. GOLDBERG: The downside is I think that what we submitted really summarizes
the basis for a decision. There will not be any other documents that
can show anything else. And this at bottom a claim that has no merit. And there is no
point in letting this case proceed any further. |
| THE COURT: How long would it take to figure out what other documents existed,
original documents that would disclose the rational basis for terminating the program and
limiting it to the four or five who received the marijuana? MR. GOLDBERG: I frankly don't know. I wouldn't think it would take
that long, but I couldn't give the Court any kind of an estimate.
THE COURT: Who would know?
MR. GOLDBERG: I could find out. I mean I have to talk to my contact person at
Health and Human Services, my agency counsel there who is not here this morning. And there
may be several people he would have to consult with in order to figure out what the
universe of material was. I don't think it's very much.
I think as I have said we have given the plaintiffs and the Court the basic
documents that show what this decision was and why it was made. I don't think there's
going to be much else there.
THE COURT: How much time would it take just to ascertain preliminarily what's
there and how long would it take to pull it together?
MR. GOLDBERG: I suppose it would take at least a week, maybe 10 days to
ascertain what's there. It might take a little longer to pull it together. |
| THE COURT: Would
you be kind enough just to ascertain preliminarily what is there and how long it would
approximately take to pull it together? MR. GOLDBERG: Right.
THE COURT: And perhaps let me know, with a copy, of course, to the other sides.
MR. GOLDBERG: Sure.
THE COURT: Much appreciated.
MR. GOLDBERG: Thank you.
THE COURT: Thank you very, very much. I appreciate the argument.
(Court adjourned.) |
(Marijuananews note: The
government’s citing the Randall case was a major blunder, in that it opened up a very
dangerous area of inquiry.
Most of the "facts" cited by the government are incorrect. Moreover, looking
into both the operation of the IND and its closing will show that throughout the process,
from beginning to end, the government acted in bad faith, without ever trying to ascertain
the facts about the medical use of marijuana.
It already knew more than it wanted to admit; however, hiding
patients in a "research program" seemed like a good way out. Of course, it never
paid any attention to the patients after that.
The Federal government really has never had to have any
"rational basis" for anything that it has done about cannabis, from 1937 to the
present. The absolute absence of rational standards for anything relating to marijuana has
made them very lazy and careless intellectually. Consequently, almost any line of inquiry
will be a minefield for them.) |
Supported