TRANSCRIPT OF SUPREME COURT SESSION 9/25/96

Seeley v. State

ClerkSupreme Court of the State of Washington is now in session.

JudgeBe seated, please.  And we will begin with the first case.  Good
morning.

BurkeMay it please the court.  My name is Melissa Burke-Cain.  I'm an
Assistant Attorney General representing the State of Washington.  With me at
counsel table today is Harold Diegert, Senior Assistant Attorney General.  

The issue in this case is whether the statute that places leaf marijuana on
schedule one of the Controlled Substances Act, as part of a comprehensive
drug control law, and provides for administrative means to change that
schedule violates equal protection or due process.

This statute provides vital public protections, and the attack on this
statute and the trial court's decision are based on a flawed premise.  And
that is that the law must rise or fall based on its effect on one
individual's interests, without considering the full range of the public
policy purposes advanced by the law.  This morning I plan to address four
areas.  First, to briefly describe how the Controlled Substances Act works.
 Then to describe the nature of the constitutional challenge, the
implications of striking down the law, and briefly address the due process
claims raised for the first time by amicus.

The statute is part of Washington's Controlled Substances Act, and it's a
uniform act that's been adopted in one form or another by all 50 states.  It
regulates drugs that are being abused by placing them on one of five
schedules according to two factors:  their propensity for abuse or their
currently accepted medical use.  The schedules are not set in stone, and
there are two ways to change the scheduling of the drug:  either directly by
the legislature or through an administrative process at the Pharmacy Board.
 That administrative process would create a full administrative record and
provide for judicial review under the Administrative Procedures Act.  But Mr.
Seeley chose not to take his case to the Board.  Instead, he directly
challenges the legislature's decision, claiming he is constitutionally
entitled to access marijuana, even though its use is experimental.  He claims
that the Controlled Substances Act violates that right and must be struck
down.   But the statute that has been challenged is a reasonable and a
flexible way to regulate not just marijuana, but a wide variety of
substances.  It relies on objective criteria, and it's the type of public
health and welfare statute that has been measured constitutional by the
rational basis test.

Male
JudgeCounsel, how is the public health promoted by denying Mr. Seeley the
opportunity to smoke marijuana in his health situation?

BurkeThere are two concerns of public health in this case.  First, reducing
the instance of the abuse of drugs, because by attacking the statute
directly, it is de-scheduled for state law purposes, not just as to a medical
use but for all purposes.  And so there are the health effects associated
with drug abuse, but also the health effects of this substance, which is
essentially unknown.  And there may be health effects which are not yet
recognized.

The other concern is that there is a public policy purpose which requires
that we make sure that claims about drugs are substantiated before they're
made available to the public.  And so there are unknown health effects, both
to individuals and then larger health effects to society, the propensity of
drug abuse.

Male
JudgeIs there any dispute in this record that smoking marijuana, for Mr.
Seeley, smoking marijuana cures his nausea or makes him feel better?  Is that
disputed?

BurkeWe cannot dispute Mr. Seeley's beliefs about marijuana and how it
affects him.  But the larger focus of this case is that there is no objective
information that demonstrates, and in fact the great weight of medical
evidence is that it is not effective for any medical use, including as an
anti-emetic for cancer patients.

Female
JudgeCounsel, are you aware of any study that's been conducted using accepted
scientific methods that would indicate a valuable medical use for the leaf
marijuana?

BurkeI am unaware of any scientific study which is a double-blind randomized
study of the type that's generally accepted by the medical community.  I am
aware of a study that was performed by Levitt, and that was a double-blind
controlled study that compared leaf marijuana smoked and another drug that is
a synthetic equivalent of that.  And it demonstrated that while neither drug
-- neither use was particularly effective, the tablet form was slightly
preferred by the patients in the study.  And of course, that study was based
on the objective scientific data where neither the subject nor the researcher
knew which substances were being used.  The subjectivity of the tests are a
problem with some of the research that has been relied upon to support
marijuana.

Male
JudgeCounsel, was the synthetic THC available to Mr. Seeley?

BurkeI believe that it was.  And I believe that that is in the record, yes.

Female
JudgeCounsel, since, as I understand it, the synthetic form of THC was
approved and is now on schedule two and can be used under the care of a
physician, since that time, have other synthetic drugs been developed that
are more effective or alleged to be more effective?

BurkeYes, there are.  There are a wide variety of new generation drugs that
have been developed in the last few years.  One of them was given to Mr.
Seeley.  It's called Ondancitron, and that is in the record.  There are also
two more recent drugs, Gwenicitron and Delacitron, and those have shown great
promise.  They're seratonic antagonists, and they're specific to the receptor
centers.  In effect, they are vastly effective for the majority of people. 

Since this is a constitutional claim, history is -- under Washington's
constitution, history is important.  And the history supports this particular
law, going all the way back to territorial days.  Washington took an early
and an active role in -- it was almost unique for the times -- protecting its
population by regulating drugs and medicines.  And in fact, that protection
was deemed so important by the framers of Washington's constitution that they
made it a specific provision in Article 20, Section 2.  That provision says:

The legislature shall enact laws to regulate the practice of medicine and
surgery and the sale of drugs and medicine.

And that provision, coupled with the legislative police power, is the source
of power to enact the Controlled Substances Act.

Female
JudgeCounsel, is there a similar provision to the provision that you just
indicated, the Washington constitution contains regarding the right to
legislate in regard to medications, is there a similar provision in the
Oregon constitution?

BurkeI am not aware that there is a similar provision.  I know the history of
our provision was drawn from the Texas constitution.  So I don't believe that
it is in the Oregon constitution, but I cannot say that with certainty.

So Washington, for a long period of time, has relied on objective medical
evidence and the regulation of drugs made available as medicines.  And if we
accept the premise that is provided here by Mr. Seeley, we turn back the
clock to a time when individuals were simply left to their devices to decide
what substances work for them and what substances might prove more harmful
than good.

Male
JudgeYet, counsel, if marijuana in its vegetable state was put on schedule
two, that would be done by -- that would be a determination of the
Pharmaceutical Board?

BurkeI can be done in two ways.

Male
JudgeOr by the legislature.

BurkeThe legislature or the Pharmacy Board.

Male
JudgeForgetting about the legislature for the moment, the Pharmacy Board
could do that, is that correct?

BurkeThe pharmacy board would have the power to do that, but there are
specific, definitive factors in the act that they would have to access, and
there would have to be a full record to make that determination.

Male
JudgeAnd if they did, then a physician could prescribe marijuana in the
vegetable state then, is that right?

BurkeI don't believe that that is the case because of the parallel federal
law.  Federal law controls the prescriptive authority of physicians.  And in
order to prescribe a schedule one substance, you need a specific
authorization from the federal government.  And so, while it could be
scheduled on two, it would not necessarily [judge speaking over rest of her
sentence].

Male 
JudgeWell, insofar as state law is concerned...

BurkeAs far as state law is concerned...

Male
JudgeRecognizing we -- there's not much you or we can do about federal law.
 But insofar as federal law -- or state law is concerned, a doctor could
prescribe it then, is that right?

BurkeThere would be no state law prohibition to that.  Although...

Male 
JudgeYou said Mr. Seeley had not requested any action by the Pharmaceutical
Board.  Has any -- this may be outside the record -- has anyone else
similarly situated done that recently?

BurkeThat is not outside the record, and so I can speak to it briefly.  And
it's a very small reference in the record.  There was a petition by an
individual for rescheduling.  That petition was denied.  It was not appealed.
 But from the record, we know that there was no medical evidence ever
presented in that case, and so it's difficult to assess, and certainly would
not pre-judge what the Pharmacy Board would do in a situation where it did
review this particular substance.

Another Male
JudgeCounsel, you've been talking about the question of marijuana to some
extent.  But what I'd like to focus on for a moment is the constitutional
test where equal protection has been advanced by the trial court and by
respondent here.  We've been talking about marijuana in the context of a
rational basis for the Board of Pharmacy's scheduling and the legislature's
decision.  The test that's being advanced by the trial court and by Mr.
Seeley is a different test.  It would apparently require us to overrule our
decision in Smith, at least the majority position in Smith.  Can you comment
on the equal protection test.  Is the state constitutional provision
equivalent to the 14th Amendment, and what about the test that's being
advanced by the trial court and respondent.

BurkeThe claim that's being made here is under Article I, Section 12 of our
constitution, which as far as I am aware has never been considered more
protective than the 14th Amendment, the equal protection clause of the
federal constitution.  And I believe in the state's most recent decision, the
Thorn case of a couple months ago, that test and that scope for the Article
I, Section 12 issue was reaffirmed.  The three-tiered test that is used under
federal law was reaffirmed.  

The test that was offered by the trial court, and it's being advanced here,
simply finds no support in any jurisdiction that I am aware of.  Even the
Oregon court, which Mr. Seeley has tried to look into as a source, would not
recognize the test that's being advanced here.  But the trial court, it's
very difficult to tell how the decision was arrived at.  It apparently,
simply did high versus low, some kind of a balancing act that has never been
recognized, and I submit should not be recognized.  The equal protection
rational basis test is the one that should be advanced in this case.

Male
JudgeBut the equal protection test that's customarily used is an objective
one, looking to a rational basis or less stringent standards for reviewing
the classifications by the legislature or governmental body.  The test the
respondent seems to be advancing is one that's very subjective.  I -- I have
a particular concern with this particular enactment as against the interests
of society.  Can you comment on that as a constitutional test.

BurkeI think that there is great difficulty with that constitutional test.
 One of the concerns that is apparent is the approach by the trial court,
which simply abandons the longstanding principle that laws will not be struck
down on constitutional ground when there is a debatable medical issue.  And
the logical implication of that type of approach really puts the trial court
in the position of the legislature, by trying to go drug by drug to try to
determine if, under particular circumstances, there is a constitutionally
protected right.  It's certainly a very narrow and isolated test.  And I
don't believe that it is in the public interest to recognize it.

Female
JudgeCounsel, under the Oregon test, although I don't think Mr. Seeley's
brief goes into it in any detail, are there not classifications under the
Oregon test, pseudo classes, the real classes.  I didn't really see that
analysis done in any of the briefs, but I assume that's the point to which we
were being directed when we were asked to give an independent analysis under
our constitution.  Have you done an analysis under that, the Oregon test?

BurkeYes, and we -- I have extensively walked through that analysis in the
reply brief of the appellant, and looked at each -- following up on a law
review article which was I believe in the Iowa Law Review, trying to walk
through the Oregon cases and look at each way that they have approached their
privileges and immunities clause.  But I think the answer is probably settled
by the Eals case which was a very similar challenge to the one that we have
here under Oregon's privileges and immunities clause.  And in that case, the
classification for marijuana was upheld.

Male
JudgeCounsel, could you address the implications of the trial court's
decision  beyond marijuana?

BurkeYes.  Beyond marijuana, this particular -- if you recognize a right of
this kind as the trial court did, we would essentially get into the situation
where all drug regulations become vulnerable.  Because as the United States
v. Rutherford case recognized -- and that went into a great deal of detail
looking at the kinds of problems that might occur if in fact you started
taking this subjective view of drug regulation person by person -- it -- the
Rutherford case I think answers that question and settles that point.  And it
rejected a right, even as to the terminally ill, to access an experimental
drug.

I'd like to reserve the rest of my time.

Female
JudgeMr. Seeley?

SeeleyThank you, your honor.  May it please the court.  Ralph Seeley, pro se.
 This case is not about whether sick people should or should not smoke
marijuana.  They do it all the time.  It's not about whether we can get
marijuana.  We get it by picking up a telephone.  If any of you have any sick
spouses, children, aunts, uncles that need marijuana, tell me.  I'll make the
phone call, and you'll get a phone call.  The drug will be supplied free of
charge.  

One of the things that distresses me about this situation is that I hold
these people who do this work to be heros, and I feel uncomfortable having as
heros people who break the law.  It's one of the things that leads me to
believe there's something fundamentally wrong here, which is why I brought
this under the fundamental principles clause of our constitution.

Female
JudgeCounsel, is there any distinction that you would ask us to draw between,
for example, cancer patients who wish to have access to Laetrile, which of
course is not recognized by the FDA and which many people felt, at least
anecdotally, was effective in battling cancer, and yet.

SeeleyYes.

Female
JudgeCan you draw that distinction?

SeeleyYes, your honor.  Read Judge Young's opinion.  Judge Young's opinion is
the most important document in that stack of documents that you have.  And I
plead with you, please read that opinion.  It's well written.  It's well
researched.  It's an amazingly precise document.  It's at CP 505 through 663.
 The point is that the DEA's own Administrative Law Judge said this drug is
valuable.  This drug -- I mean, he stated straightforwardly that it is
arbitrary and capricious to withhold this valuable drug from the people who
suffer without it.  And that point, when the DEA ignored it's own Law Judge's
months and months of researched and well reasoned opinion and findings of
fact, that's when the system became corrupted.  

Female
JudgeCounsel...

SeeleyThe federal system...

Female
JudgeCounsel, excuse me.  Before you read that, what studies can you point to
that Judge Young relied on which were conducted in a scientific method --
with a scientific method, that would support the ruling that he ultimately --
and, presumably, he was overruled, because as I understand it.

SeeleyWell, it was overruled politically.

Female
JudgeWell.

SeeleyIt was -- I mean.  Okay.  First of all, he relied on all the studies
that were done until then, which was 1988.

FemaleWhich of those -- which of those were conducted using recognized
scientific methodology?

SeeleyYour honor, as Judge Young pointed out, you can't do scientifically --
well, first of all, anecdotal evidence is not unscientific.  And one of the
greatest scientists in the world today, Stephen J. Gould, is one of the
people who has provided this anecdotal evidence that we supposedly can't rely
on.  You can read about that in the book that I cited, Marijuana, the
Forbidden Medicine.  In any event, you're talking about a double-blind
scientific test.  It's virtually impossible to do.  First of all, the feds
won't give anybody the drugs.  And I've documented that.  The man down in
California that spent two years getting the FDA's approval, and then the DEA
won't get him the drugs.  And he wants to do the exact test that I'm dealing
with here.  You see, the problem here ...

FemaleCounsel...

SeeleyTHC...

FemaleCounsel, excuse me, but clearly the drugs been given to people to test
with under this state therapeutic research acts that were passed throughout
different states in the country, so ...

SeeleyThose are not double-blind tests, you honor.

FemaleNo, they weren't.  They weren't.  And I'm saying...

SeeleyThat's right.  How do you do a double --  But as Judge Young, I
believe, in his opinion addresses this problem.  How do you do a double blind
test with marijuana?  People know they're being given marijuana.  They know
it's tobacco or marijuana.  They know it's a pill and not tobacco or
marijuana.  How do you do this test?  You see, first of all, the feds won'
give anybody the drugs to do it, and secondly, it's inherently virtually
impossible to do that kind of test.  But the tests that have been done -- and
I can't cite the names of them, but the one test that was done where
smokeable versus the THC tablets, there was a substantial number of people
who preferred the effects from smoked marijuana.  And your honor, you see,
that whole approach is bogus, because the problem is you can't keep the pills
down.  I don't care that they have Ondanzatron -- incidentally $10 a tablet
-- I can't keep it down.  I need this stuff in my system.  I need it in my
blood for it to affect me.  Giving me a tablet that I throw up 30 seconds
later is not effective medicine.  

FemaleCounsel, are you suggesting that we accept a test that would relate
only to your experience?

SeeleyNo, your honor, I suggest that you read Judge Young's opinion.  That is
the pivot point of this case.  Judge Young researched all the research there
was to do.  He spent immense amount of time.  He took testimony in three
cities. And he came to his conclusion.  And I'm entitled to rely on that
conclusion and use marijuana.  Under State v. Diana, you can arrest me, but
you can't prosecute me.  Isn't that fundamentally wrong?

FemaleCounsel, in Diana, wasn't the defendant prosecuted?  Isn't that just a
question of whether or not you have a legal defense [unintelligible]?

SeeleyWell.  I have a defense of legal -- of necessity.  And the first
requirement is that you have a reasonable belief that this drug is valuable.
 Read Judge Young's opinion.  I have a reasonable belief, based on a DEA's
own Administrative Law Judge.

FemaleAnd you would like us to adopt that standard for acceptance by the
Pharmaceutical Board of marijuana, leaf marijuana?

SeeleyYes.  Because it's the only well researched document, the only well
researched opinion that exists.  And it's been ignored for political reasons.
 

Male
JudgeCounsel, isn't that a wonderful argument, the argument you've just
advanced, before the Board of Pharmacy, before the legislature, as opposed to
the courts?  I mean, is this really a matter of constitutional law?

SeeleyYes, your honor.

Male
JudgeGiven the fact that this branch of government is ill equipped to do the
kind of evaluation and testimony taking.  The legislative branch of
government or administrative agencies are equipped to do.  

SeeleyYour honor, the testimony's been taken.  The research has been done.
 Judge Young has provided us with the guidance we need.

MaleOf course, Judge Young's opinion was overturned by the DEA Administrator,
and that was upheld in federal court.

SeeleyYour honor, it wasn't overturned.  It was simply not adopted.  They did
not adopt his recommendation.  But nobody said that his research wasn't done.
 They just parroted out the same list of horribles that Judge Young addressed
in his opinion.  Read the opinions that overturn, and you'll see each one is
answered.  You know, one of them -- let me give you an idea of how ridiculous
this gets.  The big thing about the 400 unknown drugs that comprise leaf
marijuana, the unknown side effects.  Every prescription drug comes with one
of these.  You usually don't get them, but if you ask for them, you can.  And
every one of them.  In Superior Court, I used my asthma medication.  This is
a drug that is given to my significant other, who is -- has breast cancer.
 It's Tomoxophin.  It causes cancer!  That's the side effects of this drug
they give her.  It's right here.  An increased incidence of endometrial
cancer has been reported in association with treatment with Tomoxophin.  Now,
there's hard evidence.  Good double-blind studies.  This drug causes cancer.
 But it's a prescribable drug.  And yet, marijuana has side effects, so we
have to keep it in schedule one.  You see, each of these issues, so-called
raised in these lists of horribles that they always cite all apply to other
drugs that are in schedule two, or even three, four, or even unscheduled
drugs.  

Female
JudgeCounsel, your argument -- I mean, I'm trying to follow your analytical
basis.  It sounds like you're arguing a rational basis test right now.  And
of course, as you know, all of your opinions in this state have found on an
equal protection challenge that the scheduling of marijuana in schedule one
is a rationally related -- or serves a rational purpose.  So we'd have to
overrule our prior cases on that basis.  Are you arguing some other
analytical basis on which we can decide this case without overturning both
our precedent and we'd be not agreeing with the U.S. Supreme Court?

SeeleyYes, your honor, I am.  First of all, I've asked that you adopt Justice
Utter's analysis in the Smith case.  The court didn't so much refuse -- the
court didn't have to adopt Justice Utter's analysis in that case, because he
came to the same conclusion, you know.  The -- in the end, both analyses
found the same result.  The privileges and immunities clause in our consti --
and what this case is about is whether the words of our constitution have any
meaning.  Our state constitution.  You are the people who can give this
document power, to make it mean what it says.  The fundamental principles in
Section 32.  Look at the privileges and immunities clause.  It says 

No law shall be passed granting to any citizen any privilege or immunities
not granted to the same.

Why do we have to talk about classes?  I don't have to be a class of
citizens.  That's not what the constitution says.  This should not be melted
into the equal protection analysis, where we talk about classifications.

Female
JudgeCounsel...

SeeleyI'm a citizen.

Female
JudgeCounsel, Justice Utter suggested that we follow Oregon's analysis, and
Oregon does have classifications, the pseudo class, the true class, and they
have different levels of scrutiny that they apply to each class.  Are you
suggesting that we not adopt Oregon, because it does have classes, but that
we -- we pick and choose I guess from ...

SeeleyMy recollection is that it asks four simple questions.  Does it involve
a privilege and immunity?  Was it properly advanced into law?  And so forth.
 I don't recall the analysis of classes that you're talking about, your
honor, and I apologize for apparently being unprepared to advance my own
argument.  But I also adopt the analysis set forth by the ACLU in their
amicus brief.  And incidentally, the opposing counsel keeps saying that you
shouldn't -- you should not recognize an analysis brought forth by an amicus.
 Well, I cited to fundamental principles, and I don't know where we should
turn for fundamental principles if not to our own constitution, so it seems
to me that these arguments are properly advanced.  

Male
JudgeCounsel, included in the constitutional provision is Article 20, Section
2, which gives plenary authority to state government to regulate medicine and
drugs.  Part of the fundamental principles of the constitution is that
plenary authority given to state government to regulate in this are.

SeeleyI understand.

Male
JudgeWe can't ignore that, can we?

SeeleyI understand that, you honor.  But I'm saying that in this case, this
has simply gotten out of hand.  The system became corrupted at the federal
level.  You know, Congress didn't say you can't use marijuana as medicine.
 Congress said marijuana's going to go in schedule one for now.  And it
created a system to change things when they needed to be changed.  And that
system has been corrupted.  It no longer does what it's supposed to do.  And
our state Pharmacy Board has simply gone along with that.  And I'm saying
that this is an unconstitutional deprivation of individual liberties.  Now,
you go to Article I, Section 1 of our constitution, and it says that this --
governments are created, established to protect and maintain individual
rights.  What individual right is being protected or maintained by the state
and their stand that we have to keep marijuana in schedule one?  Who benefits
from that?  Not one citizen of this state.  Every reason that you can say
marijuana belongs in schedule one applies equally if not more so to opium, to
cocaine.  Those drugs are in schedule two.  There is no individual right
being protected by this drug being kept in schedule one, despite the DEA's
own Judge's opinion that this belongs...

Male
JudgeMr. Seeley, the state in their -- their [unintelligible] indicated that
you had not gone to the Pharmacy Board to try to get marijuana put into
schedule two.  Do you want to respond to that, or why you haven't or?

SeeleyYes, your honor, it had already been brought forth, and they had not
done it.  I simply looked up the record, and it said that it had been brought
and they had refused to reschedule it.  I also have this simple reality.  We
have two parallel sets of rules here.  We got federal and the state.  You got
to start somewhere.  You can't just forever say there's no sense in changing
this law because they can't prescribe it anyway because it's -- it's a
federal regulated, and likewise the feds can say that there's no sense in
changing it, state laws are going to keep it out anyway.  If the Pharmacy
Board simply changes the rule, then we're going to have state bureaucrats
facing off versus federal bureaucrats, and we're going to lose.  But, a state
constitution, interpreted by a state supreme court, by you nine justices,
will preempt, or will trump, a federal bureaucrat.

Male
JudgeCounsel, one of the arguments advanced that you haven't really talked
about, and I didn't hear the opposition attorney talk about this, is the due
process test.  As I understand...

[END OF SIDE ONE -- SIDE TWO OF THE FIRST TAPE APPEARS TO BE BLANK.]

[SECOND TAPE -- SIDE ONE]

[Some overlap of testimony -- overlap not repeated in transcript.]

... that test requires the court to determine whether the regulation is aimed
at achieving a legitimate public purpose, whether it uses means that are
reasonably necessary to achieve that purpose, and finally whether it is
unduly oppressive on the individual.  How would you apply that test to your
situation?

SeeleyWell, I can just take it right down the list, your honor.  I mean, for
crying out loud, that's what I've been saying.  It is unduly oppressive.
 It's overbroad.  It -- there's no balancing test here, because there's
nothing to put on the other side of the scale, and that's essentially what
that is, is a balancing test.

Male
JudgeWhat is the reasonable public purpose, or the legitimate public purpose
to be achieved by denying cancer patients the option of smoking marijuana if
they want to, even if -- even if it's ineffective.  I mean, what's the down
side?  I...

SeeleyThere is no downside, your honor.  I mean, the legitimate public
purpose in allowing it to be smoked is that it ameliorates a great deal of
suffering.  And I'm not -- this is not theoretical suffering.  There's some
theoretical benefit on the other side of the scale.  But there was nothing
theoretical about my vomiting and shitting all over myself in that hospital.
 Excuse my language, but this is not a theoretical issue.  This drug
ameliorates genuine suffering of the citizens of this state, and there's
nothing but empty theory on the other side of the scales.

Female
JudgeCounsel, you did go into a description of your own personal symptoms, so
I would, I just, as a factual matter, was this -- did you go through
chemotherapy more than once with these same symptoms, or have you had
different symptoms?

SeeleyWell, I've had different symptoms with different regimes of drugs, your
honor.  I -- the particular drugs we're talking about that brought on those
horrific symptoms were -- ah, I can't even recall.  I don't see that it makes
any difference.  Different chemicals create different symptoms anyway.

Female
JudgeI did have another question too, and that's -- it's again, personal to
you, but I -- there's a letter that you had your physician write apparently
asking for permission for you to participate in the Controlled Substances
Therapeutic Research Act program and were denied the opportunity to
participate.  Funding had been cut from that program.  As I understand it,
the program is now being funded again, and research is now being done at
Washington State University to develop a tamper-proof type of marijuana.  And
so, I would assume, though I don't know, that you would be eligible to apply
for that again?  [Unintelligible] correct?

SeeleyWell, your honor, I mean, the research is done.  Read Judge Young's
opinion.  We don't need more research for one thing.  And another thing,
that's all theoretical stuff.  You think the feds are going to give them any
marijuana?  I don't think so.  They haven't given anybody else any marijuana.

Female
JudgeAren't they working or developing it themselves down at Washington State
University?

SeeleyWell, it may be, your honor.  But the fact is that those of us out
there dealing with these horrific symptoms are not influenced one way or the
other by some theoretical program going on in Eastern Washington.  What we
want, what we need, what we're entitled to under the words of our state
constitution, if they are to mean anything, is for our doctors to write a
prescription, give us the privilege of use the drug without arrest, the
immunity from punishment for using this drug to ameliorate suffering.  The
same way as people who need morphine, dialouded opium, cocaine, are entitled
to that privilege and that immunity.

Female
JudgeI'm going to ask you [unintelligible], because you talked about the
fundamental right to use this drug under Article I, Section 32, and I -- and
it's really part of the due process analysis also.  Could you identify what
the fundamental right you feel is that advancing here?  What is your
fundamental right?

SeeleyMy right to be free from needless suffering.  I'm a big boy, your
honor.  I -- I'll suffer for the benefit of my fellow citizens.  I've served
in the Navy and spent 60 days at a time submerged on a submarine, and trust
me, it's worse than jail.  You don't get mail.  You can't see anything out
the window.  I'll suffer for my fellow citizens.  But there is no benefit
whatsoever to the suffering that people go through because they can't use
marijuana legally.

Female
JudgeThank you, counsel.

SeeleyThank you, your honor.

Male
JudgeCounsel, before you start, you've advanced essentially a police power
argument in support of regulation or prohibition of smoking marijuana.
 Couldn't you make that same argument with even greater force and apply it to
abortion, or the prohibition on assisted suicide?

BurkeThe police power argument in support of those?  That is a very different
type of right than is being advanced here.

Male
JudgeHow is it different?

BurkeWe have recognized some fundamental rights.  The right to procreation,
marriage, family, and in this case, Mr. Seeley couches his rights in terms
that are similar to a right to be free from bodily invasion.  But the state
submits that from a right to be free from bodily invasion, it does not
necessarily follow that there was a right to affirmatively access one
particular substance, and that is specifically what he is asking for.  He is
-- the right that he is asserting here is the right to access a particular
drug even though it's experimental.

Male
JudgeDoesn't Roe v. Wade establish the right to access a medical procedure?

BurkeIf we go back to the Smith case, earlier marijuana case from this court,
the Roe v. Wade case was raised and a number of other fundamental rights
cases, and yet that court distinguished the type of right to use marijuana
that was being asked for.  And that demarcation still holds in this case.

I'd like to say one thing, and that is to start by saying that I -- in
reviewing the record to come here today and in listening to what Mr. Seeley
has gone through, none of us can help but feel compassion and sympathy for
what he has experienced.  And I in no way mean to demean that.  But as
difficult as it is, we must look further.  We must look at the consequences
of recognizing the right that he is asking for on our ability to regulate all
drugs.  The Rutherford court was faced with a similar problem when the
terminally ill wanted to access Laetrile.  And it is a difficult reasoning
process to go through, but we must do it. 

The issue here is not sympathy.  Sympathy is not the test for the law's
validity.  The issue here is the legislature's power to regulate drugs, pure
and simple.  And Washington has taken a very open approach to that.  We
recognize research.  We now have funded research.  We take a flexible
approach in the Controlled Substances Act to be able to change scheduling
when there is objective scientific proof to support it.  And I submit that
that is a valid statue, and a valid way of regulating drugs.  

This is not a debate among bureaucrats.  Bureaucrats have little to do with
this.  These are public interests.  Let me give just three examples.  Who
benefits from the protection of the law?  Those who may be vulnerable and
abandon more effective treatments in favor of marijuana.  For the
immuno-compromise because there is no way to make sure that leaf marijuana is
purified.  Maybe that will be the result of research done at Washington State
University, maybe not.  But, we still have the problem of quality control,
and it is a real risk to immuno-compromise.  That quality control problem
needs to be resolved before marijuana can be recognized as a currently
available and safe for use in medical treatment, which is the test under the
Controlled Substances Act.  

By expanding the scope of what we identify as what our fundamental or
protected rights under Washington's constitution, and striking down this law,
the essential policy making function of the legislature, and the
administrative function and the expertise of the Pharmacy Board are just lost
in the process.  The state constitution has given a specific duty to the
legislature to regulate in this area, and what that approach requires is for
them to assess a number of competing needs.  Not just the needs of one
individual, but the needs of many individuals who may be protected by the
laws.  And I would like to just note that in the case of the abuse of
marijuana, there's a special vulnerability for adolescents.  And that is
demonstrated in the record.  And that is a public concern that cannot be
denied in this case, although the trial court refused to acknowledge that
illicit substance abuse played any part in this case.

Female
JudgeCounsel, it is a little difficult to understand it, so maybe you could
explain it better, and that is if this were a schedule two drug, it would be
under the strict prescription by a physician and there would be certain
limits on the amount that were given.  It's not as if cancer patients could
disseminate large quantities, if that's what you're getting at.  So could you
explain to me how it is that we're going to have teenagers using this stuff?

BurkeI'll try to address that.  It's difficult to assess from a narrow record
that's directed towards deciding whether the line that the legislature drew
here about marijuana is valid, from that to try to evaluate all the public
policy implications of making it more available.  But it is safe to say that
the drug would be more available if it is moved off the schedule one.  Now
it's not available for anyone.  And I can point to clerk's papers 408, the
experience of Alaska when it descheduled marijuana.  The next step is
unknown.  The issue in this case is taking marijuana off the schedules.  What
happens next, I cannot speculate about.  But in Alaska, when they took it off
schedule one, their adolescent use of marijuana climbed to number one in the
nation.  So, while we can't say with certainty what would happen, we do have
a glimpse of what might happen.  And the point that I would like to make is
that we need a full policy evaluation of that issue.

Female 
Judge[Unintelligible -- another judge speaking over.]

Male
JudgeCounsel, counsel, let me ask one question.

Female
JudgeSorry.

Male 
JudgeIn 1889 when the constitution was adopted, what was the legal
prohibition, if any, in this state on the use of marijuana in the manner Mr.
Seeley suggests?

BurkeI do not know the answer to that question.  I'm sorry.

Female
JudgeWe'll take a short break.

ClerkAll rise.

BANG!

[END OF HEARING.  END OF RECORDING.]