Carl Olsen (“Petitioner” hereafter) respectfully petitions for judicial review of the following actions of the Iowa Board of Pharmacy (“Board” hereafter):
(2) the Board’s March 9, 2015, decision (attached hereto as Exhibit #3, at p. 2) denying Petitioner’s January 12, 2015, Marijuana Scheduling Petition for Reconsideration (attached hereto as Exhibit #4); and
(3) the Board’s November 3, 2015, decision (attached hereto as Exhibit #5) not to recommend the change it approved on January 5, 2015 (attached hereto as Exhibit #1, at Addendum B) for the reclassification of cannabidiol.
Marijuana is listed in Schedule 1 of the Iowa Uniform Controlled Substances Act (Iowa Code Chapter 124). Iowa Code § 124.204(4)(m). Schedule 1 of the Act is restricted to substances that have no “accepted medical use in treatment in the United States.” Iowa Code § 124.203(1)(b). See Ruling on Petition for Judicial Review, McMahon v. Iowa Board of Pharmacy, No. CV 7415, Polk County District Court (April 21, 2009), at page 4, footnote 1 (“A finding of accepted medical use for treatment in the United States alone would be sufficient to warrant recommendation for reclassification or removal pursuant to the language of Iowa Code section 124.203”) (attached hereto as Exhibit #6, at p. 4, n. 1).
At the time the Petitioner filed his request asking the Board to recommend the reclassification of marijuana, there were thirty-four (34) jurisdictions, twenty-three (23) states[fn1] and the District of Columbia[fn2] that had legally recognized the medical use of marijuana in the United States, and another ten (10) states[fn3] that had accepted extracts of marijuana. Iowa is one of those ten (10) states that recognized extracts of marijuana.[fn4]
Between July 7, 2014, the time the Petitioner filed his request asking the Board to recommend the reclassification of marijuana, and the Board’s November 3, 2015, scheduling recommendations to the legislature for 2016,[fn5] an additional nine (9) jurisdictions had accepted some form of medical marijuana,[fn6] bringing the total to forty-two (42) jurisdictions in the United States that had accepted some form of medical marijuana as of November 3, 2015.
On July 21, 2009, the Board issued a proposal to hold public hearings on the question of marijuana’s accepted medical use in the United States (attached as Exhibit #7). The proposal was reported in an editorial in the Des Moines Register on July 27, 2009 (attached as Exhibit #8). Hearings were held at the following times and locations (attached as Exhibit #9):
Both written and oral testimony was received during the four months of hearings. Each of the four hearings was transcribed by a certified court reporter, SueAnn Jones, CSR, RPR, Johnson Reporting Services, Ltd., Certified Shorthand Reporters, 913 27th Street, West Des Moines, Iowa 50265, (515) 224-1166.
On February 17, 2010, the Board reached the unanimous conclusion that marijuana should be removed from Schedule 1 (attached as Exhibit #10).
On November 24, 2010, the Board approved legislation recommending that marijuana be removed from Schedule 1 (attached as Exhibit #11).
Prior to the start of the 2011 session, the Legislative Services Agency also submitted the Office of Drug Control Policy (“ODCP” hereafter) scheduling recommendation to maintain marijuana in Schedule 1 as a pre-filed agency bill[fn8] (attached as Exhibit #13).
And, prior to the start of the 2012 session, the Legislative Services Agency again submitted a pre-filed agency bill[fn9] by ODCP opposing the Board’s bill and recommending that marijuana remain classified in Schedule 1 (attached as Exhibit #14).
The decision of the Board is unconstitutional because it violates due process for the Board to ignore the statutory provisions of Iowa Code § 124.203(2) when a citizen brings it to their attention. The legislature has not given the Board the option of ignoring the scheduling criteria. The scheduling criteria exist to protect the public health.
The decision of the Board exceeds the discretion given to the Board as a matter of law, because the Board has no authority to ignore the provisions of Iowa Code § 124.203(2).
The decision of the Board is based upon an erroneous interpretation of the law whose interpretation has not clearly been vested by a provision of law in the discretion of the agency. The Board must recognize accepted medical use of marijuana in the United States when state laws show it has been accepted for medical use.
The decision of the Board is based on faulty logic and errors in fact. The Board did not find that any facts that had changed that would have cast doubt on the validity of the unanimous decision it made in 2010 to recommend reclassification of marijuana. The Board’s finding that opium plants are in Schedule 1 was a critical error and a finding that marijuana should be in the same schedule as opium plants should have resulted in a finding that marijuana should be removed from Schedule 1.
The decision of the Board was based on improper interference from another executive branch agency, the Office of Drug Control Policy, in flagrant disregard for a district court order making it clear that abuse potential is not a relevant fact in moving a substance from Schedule 1 to Schedule 2. The Office of Drug Control Policy filed legislation opposing the Board in 2011 and 2012, and it incorrectly stated the positions of the Monitoring the Future study and the National Institute on Drug Abuse in 2014, neither of which as ever taken any position on scheduling. It is an unconstitutional violation of separation of powers for two executive branch agencies to oppose each other when one has been authorized by the legislature to make a specific decision (scheduling) and the other has not.
The decision of the Board was based on an erroneous finding that opium plants are in Schedule 1. Opium plants are in Schedule 2 and always have been. Opium plants have never been in Schedule 1.
The decision of the Board not to recommend the removal of marijuana from Schedule 1 is inconsistent with the Board's prior finding that marijuana should be removed from Schedule 1. The Board has not justified the inconsistency by stating credible reasons sufficient to indicate a fair and rational basis for the inconsistency.
The decision of the Board is so illogical as to render it wholly irrational because opium plants are not in Schedule 1 and the Board said marijuana should be in the same schedule as opium plants which are in fact in Schedule 2 and not in Schedule 1. Other arguments that only products can be moved to lower schedules are also illogical as there are many substances in the lower schedules that are not products.
The decision of the Board is a result of a decision-making process in which the agency did not accurately identify relevant and important matter relating to the propriety or desirability of the action in question that a rational decision maker in similar circumstances would have considered prior to taking that action. The Board incorrectly stated that opium plants are in Schedule 1 and marijuana belongs in the same classification as opium plants. Opium plants have always been in both state and federal Schedule 2 and marijuana is in Schedule 1. If marijuana belongs in the same classification as opium plants, then marijuana is clearly in the wrong schedule.
The decision of the Board was not required by law and has a negative impact on public health so grossly disproportionate to the benefits accruing to the public interest that it must necessarily be deemed to lack any foundation in rational agency policy. The Board has no legal authority to withhold its advice from the legislature and the Board has a duty to protect the public interest by advising the legislature annually. The Board’s arguments that the legislature must reclassify a substance before the Board can reclassify it is completely backward from the plain meaning of the statute. The Board’s role is to advise the legislature, not to wait for advice from the legislature.
The decision of the Board was based on an irrational, illogical, and wholly unjustifiable application of law to fact because the Board said it can only reclassify products and then recommended the reclassification of cannabidiol which is not a product. The Board said it had no idea what was in the various products covered by the Iowa Medical Cannabidiol Act and then recommended that cannabidiol be reclassified. Cannabidiol is not a product.
The decision of the Board was an abuse of discretion because the Board made up its mind to deny the petition and then tried to come up with reasons for it. The reasons given were just opinions of various Board members that were not based in fact or law.
WHEREFORE, the Petitioner prays for:
I certify under penalty of perjury that on or before January 4, 2016, and in compliance with the notice requirements of Iowa Code Section 17A.19(2), I effected service of notice of this action by mailing copies of this petition to all parties of record in the underlying case before the Iowa Board of Pharmacy addressed to the parties or their attorney of record as follows:
[fn1] Alaska Statutes § 17.37 (1998); Arizona Revised Statutes, Title 36, Chapter 28.1, §§ 36-2801 through 36-2819 (2010); California Health & Safety Code § 11362.5 (1996); Colorado Constitution Article XVIII, Section 14 (2000); Connecticut Public Act No. 12-55, Connecticut General Statutes, Chapter 420f (2012); Delaware Code, Title 16, Chapter 49A, §§ 4901A through 4926A (2011); Hawaii Revised Statutes § 329-121 (2000); Illinois Public Act 98-0122 (2013), 410 Ill. Comp. Stat. Ann. 130/1-130/199 (2014); 22 Maine Revised Statutes § 2383-B (1999); Annotated Code of Maryland Section 13–3301 through 13–3303 and 13–3307 through 13–3311 (2014); Massachusetts Chapter 369 of the Acts of 2012 (2012); Michigan Compiled Laws, Chapter 333, §§ 333.26421 through 333.26430 (2008); Minnesota SF 2470 -- Signed into law by Gov. Mark Dayton on May 29, 2014, Approved: By Senate 46-16, by House 89-40, Effective: May 30, 2014; Montana Code Annotated § 50-46-101 (2004); Nevada Constitution Article 4 § 38 - Nevada Revised Statutes Annotated § 453A.010 (2000); New Hampshire Revised Statutes Annotated Chapter 126-W (2013); New Jersey Public Laws 2009, Chapter 307, New Jersey Statutes, Chapter 24:6I, §§ 24:61-1 through 24:6I-16 (2010); New Mexico Statutes Annotated § 30-31C-1 (2007); New York Pub. Health §§ 3360–3369-e (2014); Oregon Revised Statutes § 475.300 (1998); Rhode Island General Laws § 21-28.6-1 (2006); 18 Vermont Statutes Annotated § 4471 (2004); Revised Code Washington (ARCW) § 69.51A.005 (1998).
[fn2] D.C. Law 18-210; D.C. Official Code, Title 7, Chapter 16B, §§ 7-1671.01 through 7-1671.13 (2010).
[fn3]Alabama, Senate Bill 174, Signed into law by Governor Robert Bentley (Apr. 1, 2014); Florida, Senate Bill 1030, Signed into law by Governor Rick Scott (June 16, 2014); Iowa, Senate File 2360, Signed into law by Governor Terry Branstad (May 30, 2014); Kentucky, Senate Bill 124, Signed into law by Governor Steve Beshear (Apr. 10, 2014); Mississippi, House Bill 1231, Signed by Gov. Phil Bryant (Apr. 17, 2014); North Carolina, House Bill 1220, Signed by Gov. Pat McCrory (July 3, 2014); South Carolina, Senate Bill 1035, The bill became law because Governor Nikki Haley did not sign or veto the bill within five days of its passage (May 29, 2014); Tennessee, Senate Bill 2531, Signed into law by Gov. Bill Haslam (May 16, 2014); Utah, House Bill 105, Signed into law by Governor Gary Herbert (Mar. 21, 2014); Wisconsin, Assembly Bill 726, Signed by Governor Scott Walker (Apr. 16, 2014).
[fn4] Iowa, SF2360, May 30 2014, 2014 Iowa Acts Chapter 1125.
[fn5] “Departments and agencies of state government shall, at least forty-five days prior to the convening of each session of the general assembly, submit copies to the legislative services agency of proposed legislative bills and joint resolutions which such departments desire to be considered by the general assembly.” Iowa Code § 2.16 (2015).
[fn6] Louisiana, SB143, June 29, 2015 (medical marijuana); Georgia, HB1, April 16, 2015 (marijuana extract); Missouri, HB2238, July 14, 2014 (marijuana extract); Oklahoma, HB2154, April 30, 2015 (marijuana extract); Texas, SB339, June 1, 2015 (marijuana extract); Virginia, HB1445, February 26, 2015 (marijuana extract); Wyoming, HB32, March 2, 2015 (marijuana extract); Guam, Proposal 14A, November 4, 2014 (medical marijuana); Puerto Rico, EO 2015-10, May 3, 2015 (medical marijuana).
[fn7] See footnote 5.
[fn8] See footnote 5.
[fn9] See footnote 5.
[fn10] There is a recent federal court ruling on Section 538 of the Consolidated and Further Continuing Appropriations Act of 2015, Pub. L. 113-235, 128 Stat. 2130 (2014) ("2015 Appropriations Act"), which has now been extended for another year. United States v. Marin Alliance, Case 3:98-cv-00086-CRB (Northern District of California, Document 277, Filed 10/19/15).
[fn11] See footnote 5.
[fn12] See footnote 5.
[fn13] Louisiana accepted the medical use of marijuana on June 29, 2015, HB 143.