Carl’s Cannabis Corner – March 16, 2014

It’s an open phone today: (567) 314-2730. The access code is 420420# (four twenty, four twenty, pound sign). The show begins at 1:00 p.m. Central Time.

Today, we are going to discuss judicial review. I’ve filed a couple petitions for judicial review of the actions of the Iowa Board of Pharmacy, one in 2008 and the other in 2013. I’m getting ready to file another one and I’m going to discuss the lessons I have learned and the approach I am going to take with this new one.

A couple of things I want you to consider.

1. The Petition for Judicial Review that was filed by the ACLU of Iowa in 2008 did not include anything from the administrative record. There was no copy of my petition to the board attached to the petition for judicial review. The only evidence presented to the board were 12 state statutes authorizing the medical use of marijuana and a legal argument based on Gonzales v. Oregon, 546 U.S. 243 (2006). I planned this out with the ACLU of Iowa in 2006 when I read that decision in Gonzales v. Oregon.

2. The grounds for review, Iowa Code Chapter 17A.19, in that petition were a little vague, in my opinion. The grounds for review in the current case should be more narrow, to avoid a ruling on agency “discretion.” An agency cannot abuse its discretion if it has none. A statutory interpretation of a statue is a judicial function and the agency’s opinion does not carry much weight when compared to a decision based on the discretion the agency actually has.

So, …

1. I will not attach any record to the petition. The only evidence is 20 state statutes authorizing the medical use of marijuana.

2. The entire argument is that the board’s ruling in November of 2013 truncated Iowa Code Chapter 124.203(2) and only cited part of it. Here’s what the board wrote in their final order, “if the board finds that any substance does not meet the definition of a Schedule I controlled substance, the board shall recommend its rescheduling to the legislature as appropriate.” Here is what the statute actually says, “If the board finds that any substance included in schedule I does not meet these criteria, the board shall recommend that the general assembly place the substance in a different schedule or remove the substance from the list of controlled substances, as appropriate.”

So, …

This is dead simple.

However, one of the things I would like to do is get the board to say they still think marijuana is misclassified. In other words, if I lose on the merits, I would like the result to be that the board acknowledges the 2010 ruling is precedent and that this is their official position until they conduct some kind of evidentiary hearing to reconsider it. In other words, if the court says they do not have to do this annually, then it would be based on the condition that they still support the 2010 ruling.

Here are the provisions of Iowa Code Chapter 17A.19(10) that I am considering:

a. Unconstitutional on its face or as applied or is based upon a provision of law that is unconstitutional on its face or as applied (it violates due process for the board to ignore 124.203(2))

b. Beyond the authority delegated to the agency by any provision of law or in violation of any provision of law (the agency has no authority to ignore 124.203(2))

c. Based upon an erroneous interpretation of a provision of law whose interpretation has not clearly been vested by a provision of law in the discretion of the agency (the agency has no discretion to disobey a statute)

d. Based upon a procedure or decision-making process prohibited by law or was taken without following the prescribed procedure or decision-making process (the 8 factors in 124.201 were not considered – it’s not our burden to give them any evidence)

h. Action other than a rule that is inconsistent with the agency’s prior practice or precedents, unless the agency has justified that inconsistency by stating credible reasons sufficient to indicate a fair and rational basis for the inconsistency (Pharmacist Board Member Jim Miller said the 2010 ruling is precedent at the hearing last week)

j. The product of a decision-making process in which the agency did not consider a 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 (this matter is currently pending before the legislature and they authorized the agency to advise them – the agency is not performing it’s duty to advise the legislature)

k. Not required by law and its negative impact on the private rights affected is so grossly disproportionate to the benefits accruing to the public interest from that action that it must necessarily be deemed to lack any foundation in rational agency policy (this one does not apply, but it does talk about the public interest and there is a public interest according to our previous judge)

We also had a pharmacy board hearing last week on March 12, 2014, and I’m still sorting through the evidence from that hearing. Here is a copy of the March 12, 2014, ruling on the petition for medical marijuana rulemaking. And here is a brochure on CBD that the Office of Drug Control Policy filed in that case.