2. Under any analysis or "level of scrutiny," the
plaintiff should prevail.
The "privileges and immunities" clause couldn't be more
straightforward:
No law shall be passed granting to any citizen, class of
citizens, or corporation other than municipal, privileges
or immunities which upon the same terms shall not equally
belong to all citizens, or corporations.
Wash. Const. art. 1 § 12.
The plaintiff's situation regarding medicinal marijuana may be
phrased in several ways which invoke the clause:
The plaintiff is denied the privilege of ending his suffering by the
use of a therapeutic drug while others are granted the privilege
of ending their suffering with access to far more harmful and
addictive drugs, such as morphine, cocaine, amphetamines,
barbiturates and opium. Additionally, patients who need THC and
may absorb it effectively through their gastro-intestinal tract
have the privilege of the relief of their suffering, while the
plaintiff, whose GI tract is not functioning when he needs THC,
is denied the privilege.
Other citizens are granted immunity from arrest for possession of
therapeutic but potentially harmful drugs by virtue of
prescriptions, while the plaintiff is denied that immunity.
Whatever "level of scrutiny" the Court deems appropriate, the
plaintiff's right to be free of discrimination by his own government
is being violated, in that the plaintiff is being made to suffer
physically for reasons which serve no legitimate government purpose.
THE DISCRIMINATION INVOLVES A FUNDAMENTAL RIGHT AND IS ENTITLED TO
STRICT SCRUTINY.
As set forth in State v. Smith, supra, if government
discrimination or classification involves a "fundamental right," the
courts must apply "strict scrutiny," and uphold the classification
only if it is "necessary to accomplish a compelling state interest."
Id. The Washington Supreme Court has found that a physician has a
fundamental right to freely practice medicine. Bering v. Share, 106
Wn.2d 212, 721 P.2d 918 (1986). Clearly, it is no stretch to state
the corollary -- that a patient has a fundamental right to the aid
of his physician to relieve suffering. In any event, the court in
Bering held that the state has a "substantial interest in ensuring
its citizens unimpeded access to necessary medical care." Id. at
225. That decision dealt with access to abortions; it is difficult
for the plaintiff to see how that might be more "necessary" than
ending the suffering of chemotherapy-induced, uncontrolled nausea
and diarrhea.
If the court finds that a fundamental right is involved and
applies strict scrutiny, the state must justify maintaining
marijuana in Schedule I as "necessary to accomplish a compelling
state interest." Frankly, the plaintiff is at a loss to anticipate
what sort of argument the state might put forward, if the attorneys
involved intend to keep straight faces while addressing the Court.
What is the "compelling state interest" in having the plaintiff
lying on the floor retching and defecating on himself when he could
be sleeping peacefully? What "compelling state interest" justifies
forcing the plaintiff to endure 14-hour "highs" in an attempt to
relieve his suffering with synthetics? What is the "compelling
state interest" to force the plaintiff to pay $5 per THC tablet,
many of which disappear down the toilet undissolved?
Or is the "compelling state interest" the larger one of
controlling marijuana as a recreational drug? If so, why is it not
"necessary" to place cocaine, opium, morphine, barbiturates, and
amphetamines also in Schedule I? Note that the penalty for
manufacture or possession with intent to deliver a Schedule I or II
drug is exactly the same. RCW 69.50.401. Clearly, the legislature
attaches no symbolic or exemplary difference between the two crimes.
Thus, any contention by the Attorney General that placing marijuana
in Schedule II and permitting its prescriptive, medicinal use will
"send a signal" that recreational use of the drug is condoned should
be given the merit it deserves -- none.
In short, the classification of marijuana in Schedule I
violates a fundamental right of the plaintiff, and the state cannot
show a necessary reason for the classification that accomplishes a
compelling state interest. Therefore, the plaintiff's motion for
declaratory relief should be granted.
IF THE COURT DOES NOT FIND THAT A FUNDAMENTAL RIGHT HAS BEEN
VIOLATED, THE LAW SHOULD STILL BE STRUCK DOWN UNDER "INTERMEDIATE
SCRUTINY."
"Heightened" or "intermediate" scrutiny should apply even if
"strict scrutiny" does not, because the classification involves an
"important right," and because the plaintiff is in a class for which
he cannot be held accountable -- he did not choose to be a cancer
patient, or to have his physician place him on chemotherapy in an
attempt to save his life. State v. Smith, supra.
The test is that the law must be seen as "furthering a
substantial interest of the state." As analyzed above, no state
interest, substantial or otherwise, is not equally well served by
placing marijuana in Schedule II.
EVEN UNDER MINIMAL SCRUTINY, THE PLAINTIFF MUST PREVAIL, BECAUSE THE
CLASSIFICATION IS PURELY ARBITRARY.
Absent strict or heightened scrutiny, the test is whether a
"rational relationship" exists between the challenged classification
and a legitimate state interest. What is the "legitimate" state
interest in denying an end to the plaintiff's physical suffering?
The classification must be "purely arbitrary" to overcome the
presumption of constitutionality. State v. Smith, supra at 279. In
fact, the classification is purely arbitrary. As stated by Judge
Young after taking hundreds of hours of testimony, reviewing
thousands of pages of documents, and issuing a 68-page report:
It would be unreasonable, arbitrary and capricious for the
DEA to continue to stand between those sufferers and the
benefits of this substance [marijuana] in light of the
evidence in this record.
Judge Young's report, supra at 68 (emphasis added).
Thus, even under the "minimal scrutiny" test, the state can
show no rational relationship between the classification and a
legitimate state interest, and this court should find that the
classification is purely arbitrary, and grant the declaratory relief
requested.
C. THE PLAINTIFF IS ENTITLED TO THE RELIEF REQUESTED UNDER
ARTICLE I § 32, THE "FREQUENT RECURRENCE TO FUNDAMENTAL
PRINCIPLES" CLAUSE OF THE WASHINGTON CONSTITUTION.
1. Gunwall factors analyzed.
The "Gunwall factors" have come to be, in Gunwall's progeny,
required analysis and briefing at the superior court level in order
for the Supreme Court to consider whether personal liberties are
protected to a greater extent by the state's constitution, compared
to the U.S. Constitution. See, e.g., State v. Wethered, 110 Wn.2d
466, 472, 755 P.2d 787 (1988); In re Mota, 114 Wn.2d 465, 472, 788
P.2d 538 (1990). The plaintiff adopted Justice Utter's analysis
concerning the Privileges and Immunities clause, above, and here
provides the Gunwall analysis of the "Frequent Recurrence to
Fundamental Principles" clause:
1. The textual language of the state constitution.
The text of the state constitution may provide cogent
grounds for a decision different from that which would be
arrived at under the federal constitution. It may be more
explicit or it may have no precise federal counterpart at
all.
Gunwall at 61. Article 1 § 32 of the Constitution of the State of
Washington reads in total:
A frequent recurrence to fundamental principles is
essential to the security of individual right and the
perpetuity of free government.
Since no "precise federal counterpart" exists, the Court may
find greater protection under this factor, and the plaintiff argues
strenuously that it should.
2. Significant differences in the texts of parallel provisions
of the federal and state constitutions.
Such differences may also warrant reliance on the state
constitution. Even where parallel provision of the two
constitutions do not have meaningful differences, other
relevant provisions of the state constitution may require
that the state constitution be interpreted differently.
Id. Since no parallel provision may be found in the federal
constitution, this factor does not seem to apply to either find or
not find greater protection under the state constitution.
3. State constitutional and common law history.
This may reflect an intention to confer greater
protection from state government than the federal
constitution affords from the federal government. The
history of the adoption of a particular state
constitutional provision may reveal an intention that will
support reading the provision independently of federal law.
Id. The constitutional history of Section 32 remains somewhat of a
mystery. The constitutions of Wisconsin, New Hampshire and Illinois
contained clauses referencing fundamental principles, but the
connection to individual rights was unique to Washington. Brian
Snure, "A Frequent Recurrence to Fundamental Principles: Individual
Rights, Free Government, and the Washington State Constitution," 67
Wash. L. Rev. 669 (1992) at 676.
The original proposed constitution by W. Liard Hill contained
only 31 sections to Article 1. Section 32 was proposed by George
Turner, whose later speeches as a U.S. Senator lead to the
conclusion that Turner, like others of his day, believed that
constitutional interpretation often required a return to natural law
principles beyond the four corners of the constitution. Snure, Id.
at 674, citing 32 Cong. Rec. 783, 785, 789 (1899)(statement of Sen.
Turner against United States imperialism in the Philippines).
The signers of Washington's constitution had witnessed a
hundred years of what happens when power is concentrated in either
government (federal) or private (corporate) bodies, and they clearly
didn't like what they saw. Thus, we have a clause in our "freedom
to bear arms" clause stating that "nothing in this section shall be
construed as authorizing individuals or corporations to organize,
maintain or employ an armed body of men." Wash. Const. art. 1 § 24;
and the mention of "corporations, except municipal" in the
Privileges and Immunities clause, discussed above.
In the decade before the Washington Constitutional Convention,
the territory had grown from a virtual wilderness of 75,000 settlers
cut off from the nation's capital by a month's travel time, to a
state of 350,000 citizens who could reach the east coast by a three-
day train ride. Snure, supra, citing Dorothy Johnson, "Empire of
the Columbia," (2d ed., 1967). Most of the influx of settlers had
experienced legislative abuse elsewhere, and in Washington as well.
Snure, Id. at 671. For example, during the 1862-63 territorial
legislative session, the legislature passed no general laws, but
enacted more than 150 pieces of general legislation for the benefit
of "private interests against the general welfare." Id.
Nor did the delegates trust the other branches of government.
Governors abused their patronage powers, and judges were appointed
from afar and often absent. Id., citing, inter alia, Charles H.
Sheldon, "A Century of Judging: A Political History of the
Washington Supreme Court," (1988). Mining companies amassed armed
guards to thwart unions activities, and railroads charged excessive
rates to farmers. Id., citing Gordon B. Ridgeway, "Populism in
Washington," 39 Pac. N.W. Hist. Q. 284-91 (1948).
All of these infringements on personal liberties came about
despite the guarantees of liberty and democratic government found in
the U.S. Constitution.
It is noteworthy that Washington's Declaration of Rights is not
couched in terms of the federal Bill of Rights, which contains the
repeated phrase "Congress shall make no law. . ." Rather, rights
are stated affirmatively: "The right of petition. . .shall never be
abridged," Art. 1 § 4; "Every person may freely speak, write and
publish on all subjects. . ." Art. 1 § 5.
It is also noteworthy that Washington's constitution contains
checks and balances on power missing from the federal constitution.
The federal government now comprises four branches, the fourth being
federal agencies created by Congress but accountable to nobody.
This has been especially true since the U.S. Supreme Court decided
INS V. Chadha 462 U.S. 919 (1982), which eliminated the "legislative
veto." Prior to that, Congress could set up agencies to administer
programs, then oversee progress by way of committee or single-house
vote. In what constitutional scholar and University of Seattle Law
School Prof. David Skover calls "the second most inane decision ever
handed down," the U.S. Supreme Court virtually guaranteed the sort
of petty tyranny that has resulted in this lawsuit. (The Chadha
decision did away with the "legislative veto," on the theory that
not only must the enabling legislation withstand bicameral majority
vote and presentment for veto, but each subsequent "fine-tuning" of
the agency must be done the same way -- clearly an administratively
impossible task.)
Washington's constitutional delegates may not have had Chadha
as an example, but they had seen where government power was headed.
In Washington, the fourth branch of government is the people: agency
heads such as the Attorney General, Secretary of State, Treasurer,
Auditor, Superintendent of Public Instruction and Commissioner of
Public Lands are elected, not appointed. Judges, likewise, are
elected.
The framers had also seen the concept of "natural law" twisted
until it faced the direction opposite any original concept;
originally a guarantee of personal liberty (for example, as set
forth in the Declaration of Independence as "inalienable rights"),
under the influence of the robber barons of the 19th century
"natural law" was the justification for imposition of laessez-faire
economics, i.e., natural law prohibited the courts from interfering
with the right of a laborer to contract for his labor, and never
mind that the laborer starves while the company owner thrives.
Thus, the mention of "a frequent recurrence to fundamental
principles" being linked (uniquely at the time) to individual
liberty, and the lack of any reference to "natural law" along with
the absence of a separation-of-powers clause in Washington's
constitution has led at least one scholar to argue persuasively that
the phrase amounts to retaining the notion that natural law should
be considered when protecting individual rights, but not when
invoking natural law to prevent adherence with social or safety
legislation.
Section 32 designates extra-constitutional fundamental
principles as essential to the security of individual
right.
Snure, supra, note 30, page 687. Again, it is no stretch to extend
the right to be free from unjust action when it originates from a
federal agency as opposed to originating from a corporation or other
state entity.
4. Preexisting state law.
Previously established bodies of state law, including
statutory law, may also bear on the granting of distinctive
state constitutional rights. State law may be responsive
to concerns of its citizens long before they are addressed
by analogous constitutional claims. Preexisting law can
thus help to define the scope of a constitutional right
later established.
Gunwall, supra, 106 Wn.2d at 61, 62.
Much of the preexisting law leading to the "fundamental
principles" clause is discussed above. As for laws preexisting the
state constitution regarding the use of marijuana, medically or
otherwise, there were none. Inhaling opium and operating a house
where inhaling opium took place were made illegal by the territorial
laws of 1881, seven years before the signing of the Washington
constitution. The earliest reference the plaintiff could find to
marijuana ("cannabis") was in the Laws of 1951. As discussed in
Section II B 1 above, marijuana was widely and legally used in the
last century and the early decades of this century, prohibited by
neither state nor federal law.
5. Differences in structure between the federal and state
constitutions.
The former is a grant of enumerated powers to the federal
government, and the latter serves to limit the sovereign
power which inheres directly in the people and indirectly
in their elected representatives. Hence the explicit
affirmation of fundamental rights in our state constitution
may be seen as a guaranty (sic) of those rights rather than
as a restriction on them.
Gunwall, id.
The plaintiff simply asks the Court to take these words at
their face value, and look to fundamental principles, as required by
Article I § 32, to do justice.
6. Matters of particular state interest or local concern.
Is the subject matter local in character, or does there
appear to be a need for national uniformity? The former
may be more appropriately addressed by resorting to the
state constitution.
The plaintiff's physician is licensed to practice by the state.
The plaintiff has undergone his cancer treatment in a state-owned
and -regulated facility. The state legislature has given the state
Board of Pharmacy the power to place drugs in Schedules different
from the federal government's determination, in RCW 69.50.201(e).
And the state's constitution requires a "frequent recurrence to
fundamental principles," which the federal constitution does not.
All of these and more make clear that the plaintiff's access to
medicine is an issue of local significance; Washington's citizens
should not be made to suffer by bureaucratic fiat from 2,000 miles
away.
2. Fundamental principles in Washington case law.
The state constitution requires a "frequent recurrence to
fundamental principles," which raises the question, "What principles
are fundamental?"
Run the phrase "fundamental principles" through Westlaw or
Lexis, and a sampling looks like this:
It is a fundamental principle that the imposition of business and
occupation tax liability must be as equitable as possible.
Fidelity Title Company v. State of Washington, Department of
Revenue, 49 Wn. App 662, 745 P.2d 530 (1987).
Reynolds Metal Company v. State, 65 Wn.2d 882, 400 P.2d 310. Appeal
dismissed 382 US 1.60 (1965).
A fundamental principle of contract damages: An insured should be
put in only as good a position as he would have occupied had the
contract not been breached. Greer v. Northwestern National
Insurance Company, 109 Wn.2d 191, 743 P.2d 1244 (1987).
Fundamental principles of community property law dictate that each
spouse should upon his or her death have the right to dispose of
his or her one-half interest in community property. Standard
Insurance Company v. Schwalbe, 47 Wn. App 639, 737 P.2d 667
(1987).
It is a fundamental principle that penal statutes will be strictly
construed as a means of assuring fairness to persons subjected to
the law by giving clear and unequivocal warning in language that
people generally would understand concerning actions that would
expose them to liability for penalties and what those penalties
would be. State v. Enloe, 47 Wn. APp 165, 172, 734 P.2d 520
(1987).
Law against discrimination (RCW 49.60) is not rooted in tort law,
but grows out of the fundamental principle that every citizen
deserves equal treatment without regard to race, color, religion,
sex or handicap. Reese v. Sears Roebuck and Company, 107 Wn.2d,
563, 572, 731 P.2d 497 (1987).
To admit irrelevant, prejudicial evidence which would invite
speculation in a jury is contrary to the fundamental principles
of fairness and due process upon which our criminal justice
system is based. State v. Smith, 106 Wn.2d 772, 780, 725 P.2d
951 (1986).
Fundamental principles applicable to a request for an injunction are
1) the proceeding is equitable and addressed to the sound
discretion of the trial court, 2) The trial court is vested
with broad discretionary power to shape and fashion injunctive
relief to fit the particular facts, circumstances, and equities
of the case before it, and 3) One of the essential criteria for
an injunctive relief is actual and substantial injury sustained
by the person seeking the injunction. Brown v. Voss, 105 Wn.2d
366, 372, 715 P.2d 514 (1986).
General warrants and writs of assistance were "The worst instrument
of arbitrary power, the most destructive of English liberty and
the fundamental principles of law, that ever was found in an
English law book," and so far as they place "the liberty of every
man in the hands of every petty officer." State v. Crandall, 39
Wn. APp 849, 855, 697 P.2d 250 (1985). Citing the works of John
Adams 523-24(Chaz. F. Adams ed. Boston 1850; see also T. Taylor
Two Studies in Constitutional Interpretation 41 (1969)).
It is a fundamental principle regarding the attorney client
relationship that a fiduciary relationship exists as a matter of
law between an attorney and a client. Estate of Larson, 103
Wn.2d 517, 520, 694 P.2d 1051 (1985).
There is a fundamental principle that every competent citizen is
under an obligation to further the administration of justice as a
matter of public policy when summoned by due process of law to
give evidence. State v. Dibley, 38 Wn. APp 824, 828, 691 P.2d
201 (1984).
•The fundamental principle that "the required criminal
conduct must have existed when the conduct at issue
occurred" must apply to bar retroactive criminal
prohibitions emanating from courts as well as legislators.
State v. Gore, 101 Wn.2d 481, 489, 681 P.2d 227 (1984).
Fundamental principle of Washington Electoral Law is that in a
partisan contest there should be only one nominee from each
political party. Democratic Party of Washington v. Spellman, 101
Wn.2d 94, 97, 675 P.2d 1222 (1984).
•It is a fundamental principle that no state may impose a
tax which discriminates against interstate commerce by
providing a direct commercial advantage to local business.
Department of Fisheries v. DeWatto Fish Company, 34 Wn.
APp 135, 146, 660 P.2d 298 (1983).
•It is a fundamental principle that when the state
condemns land for public use, no greater estate or
interest should be taken than reasonably necessary for
contemplated public necessity or use. State v. McDonald,
98 Wn.2d 521, 530, 656 P.2d 1043 (1983).
Clearly, case law analysis shows that "fundamental principles"
may be found outside and in addition to the clear statements
contained in documents such as the Bill of Rights.
3. Fundamental principles and the plaintiff's case.
Three cases citing Article I § 32 bear on the case at bar:
The doctrine of stare decisis should not result in outmoded 19th
century precedents being forced to resolve 20th century disputes
-- automobiles should not be governed by horse and buggy laws.
Foote v. Grant, 55 Wn.2d 797, 806-7, 350 P.2d 870 (1960).
Likewise, in a case involving the "taking" of property by creating
loud jet noise in the airspace over it, the Supreme Court of
Washington held:
The invention of the airplane and the development of modern
air transportation . . . have occurred somewhat
subsequently to the development of the legal concepts
emphasized in formulating early common law theories of
liability. An awareness of these changes makes it
incumbent upon us to heed the advice of the framers of the
Washington constitution when they said: "A frequent
recurrence to fundamental principles is essential to the
security of individual right and the perpetuity of free
government."
Ackerman v. Port of Seattle, 55 Wn.2d 400, 407, 348 P.2d 664
(1960)(citation omitted). In both of the above cases, the
correlation to the case at bar is clear: Times change, new
information becomes known, and legal theories adequate in times past
should be changed to do justice.
As a direct parallel, it is a fundamental principle that a drug
prohibited when it was believed to have no medicinal use should not
remain prohibited after it is shown that it is beneficial, and
indeed unique in its ability to relieve suffering.
In a much more recent case, the Supreme Court held that while
massive, intrusive searches of apartment buildings may in fact
enhance public safety,
it is often when government is most eagerly pursuing what
it perceives to be the public interest that it is most
likely to sidestep constitutional safeguards or to
denigrate constitutional liberties. For precisely such
reasons, our constitution wisely counsels us:
A frequent recurrence to fundamental principles is
essential to the security of individual right and the
perpetuity of free government. . .
We therefore cannot permit these warrants to be
executed, regardless of Seattle's pressing (and undoubtedly
laudable) desire to see its housing codes enforced.
City of Seattle v. McCready, 123 Wn.2d 260, 281, 868 P.2d 134 (1994)
(citation omitted).
This is precisely the case now before the Court. The
government "is most eagerly pursuing what it perceives to be the
public interest" in retaining a valuable therapeutic drug in a
prohibited category, and in doing so is violating the fundamental
right of its citizens to be free of needless physical suffering.
Other fundamental principles which the plaintiff asks the Court
to consider, and recur to as the constitution requires, are these:
It is a fundamental principle that irrational laws breed disrespect
for the rule of law. It is irrational to prohibit physicians
from prescribing marijuana while permitting them to prescribe
opium and cocaine. It is irrational to force the plaintiff and
others in his situation to choose between physical suffering and
undertaking a criminal act.
Citizens of Washington who have a medical need for marijuana are
immune, under State v. Diana, supra, from prosecution. It is a
fundamental principle that if a citizen foreseeably will not be
prosecuted, he should not be arrested, jailed, and put to the
expense, humiliation and vexation of dealing with criminal
charges. This is especially true when, as is the case, the very
conditions which render them immune from prosecution make them
some of society's most helpless citizens, least able to deal with
such legal intrusions in their lives with any grace or dignity.
It is a fundamental principle that a physician should have access to
proven therapeutic drugs to relieve the suffering of his or her
patients.
It is a fundamental principle that the government of Washington
should not deny therapeutic drugs to its weakest and most
afflicted citizens merely to "match statutes" with federal laws
which are driven by political and irrational decisions, made by
bureaucrats who corrupt the process set forth in the enabling
statutes created by Congress.
It is a fundamental principle that the federal government should not
be permitted to withhold valuable medicine from Washington
citizens by first claiming that no scientific evidence supports
the therapeutic value of the medicine, then denying permission to
gather the scientific evidence to prove (or perhaps disprove) the
therapeutic value.
IV. CONCLUSION
This Court, sitting in equity, should exercise its statutory
and constitutional power to declare that the placing of marijuana in
Schedule I, RCW 69.50.204, is a violation of the plaintiff's rights
and liberties secured by Article I §§ 12 and 32 of the Constitution
of the State of Washington.
SIGNED AND DATED this ___ day of ____________, 1995.
By: __________________________
RALPH SEELEY, WSBA 22469
(pro se)