Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 63534-0
Title of Case: Ralph Seeley
v.
State of Washington
File Date: 07/24/97
Oral Argument Date: 09/25/96
SOURCE OF APPEAL
----------------
Appeal from Superior Court of Pierce County
Docket No: 94-2-11862-1
Judgment or order under review
Date filed: 11/13/95
Judge signing: Hon. Rosanne N. Buckner
JUSTICES
--------
Authored by Barbara A. Madsen
Concurring: Barbara Durham
James M. Dolliver
Charles Z. Smith
Richard P. Guy
Charles W. Johnson
Gerry L. Alexander
Philip A. Talmadge
Dissenting: Richard B. Sanders
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s)
Melissa A. Cain
Assistant Attorney General
905 Plum St
PO Box 40109
Olympia, WA 98504-0109
Counsel for Respondent(s)
Ralph Seeley
Attorney At Law
252 Broadway
Tacoma, WA 98402
Amicus Curiae on behalf of American Civil Liberties Union
Kevin J. Hamilton
40th Fl
1201 3rd Ave
Seattle, WA 98101-3099
Erika J. Starrs
4oth Floor
1201 Third Ave
Seattle, WA 98101
Stephen C. Willey
Perkins Coie
1201 3rd Ave Ste 4000
Seattle, WA 98101-3099
Amicus Curiae on behalf of Drug Policy Foundation of Washington
Bruce Edward H. Johnson
Davis Wright Tremaine
2600 Century Square
1501 4th Ave.
Seattle, WA 98101-1688
Jeffrey T. Haley
Suite 2460
777 108th Avenue
Bellevue, WA 98004-5117
Gregory J. Kopta
Davis Wright Tremaine
2600 Century Sq
1501 4th Ave
Seattle, WA 98101-1662
Kraig L. Baker
2600 Century Square
1501 4th Ave
Seattle, WA 98101-1688
Amicus Curiae on behalf of Drug Policy Foundation
Bruce Edward H. Johnson
Davis Wright Tremaine
2600 Century Square
1501 4th Ave.
Seattle, WA 98101-1688
Jeffrey T. Haley
Suite 2460
777 108th Avenue
Bellevue, WA 98004-5117
Gregory J. Kopta
Davis Wright Tremaine
2600 Century Sq
1501 4th Ave
Seattle, WA 98101-1662
Kraig L. Baker
2600 Century Square
1501 4th Ave
Seattle, WA 98101-1688
Amicus Curiae on behalf of National Organization for the Reform
Jeffrey Steinborn
Steinborn & Associates
3000 Smith Tower
506 Second Avenue
Seattle, WA 98104-2311
Michael D. Cutler
Lawson & Weitzen
425 Summer St 5th Floor
Boston, MA 02210-1736
THE SUPREME COURT OF THE STATE OF WASHINGTON
RALPH SEELEY, ) No. 63534-0
)
Respondent, )
)
v. ) EN BANC
)
STATE OF WASHINGTON, )
)
Appellant. )
-------------------------------------------------) Filed July 24, 1997
MADSEN, J. -- The State appeals a decision of the Pierce County
Superior Court holding that RCW 69.50.204(c)(14), which places marijuana in
Schedule I of controlled substances, is unconstitutional, violating art. I,
sec.sec. 12, and 32 of the Washington Constitution. This court concludes
that RCW 69.50.204(c)(14) does not violate the Washington Constitution and
reverses the trial court.
STATEMENT OF THE CASE
The Respondent, Mr. Seeley, was diagnosed with chordoma, a rare form
of bone cancer, in 1986. Mr. Seeley has undergone numerous surgeries
including the removal of his right lung and a removal of part of the lower
lobe of his left lung.
Mr. Seeley also suffers from "severe Obstructive Airway Disease." Clerk's
Papers (CP) at 267. Mr. Seeley's condition is diagnosed as terminal.
Throughout his battle with cancer, Mr. Seeley has received radiation
therapy and chemotherapy. Mr. Seeley was treated with various
chemotherapeutic
agents which commonly produce nausea and vomiting. He was treated with
synthetic tetrahydrocannabinal (THC) (Marinol or dronabinol) and other
antiemetic drugs for the nausea and vomiting which resulted from the
chemotherapy. Mr. Seeley has also smoked marijuana during chemotherapy.
Mr. Seeley prefers smoking marijuana to control these side effects. Mr.
Seeley's states that smoking marijuana has been more effective in relieving
his symptoms than other antiemetics.
Marijuana is a hallucinogen derived from the Indian hemp plant. One
of the principle active ingredients in marijuana is delta-9-
tetrahydrocannabinal (THC). The amount of THC present in marijuana varies
in the plant depending on the origin of the plant, growing conditions, and
cultivation. In addition to THC, marijuana contains over 400 other
chemical substances including 61 identified cannabinoids, the active
ingredients in marijuana, including THC. In 1986, the pure synthetic form
of THC (Marinol or dronabinol) was approved by the federal Food and Drug
Administration (FDA) and is used as an antiemetic. The FDA has not
approved marijuana for medical treatment.
Marijuana is regulated by both the state and federal government.
Washington adopted the Uniform Controlled Substances Act, RCW 69.50, in
1971. The Uniform Controlled Substances Act parallels the federal
Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. sec.
801 (1996 Supp.). These laws establish a comprehensive statutory mechanism
to control the manufacture, distribution, and use of controlled substances.
Penalties are imposed for violations of the law. Both statutes place
controlled substances in numerical schedules I to V and create an
administrative mechanism to change the placement of substances on the
various schedules. Substances on schedule I are illegal under all
circumstances except for research. Substances on schedules II to V are
legal to possess only under a valid prescription. Federal and state laws
impose tandem registration requirements on practitioners, pharmacists and
manufacturers of controlled substances.
Both federal and state statutes list marijuana in schedule I of
controlled substances. See RCW 69.50.204(c)(14); 21 C.F.R. sec.
1308.11(d)(19) (1996). Thus, it is illegal for use under all circumstances
except under narrow exceptions for research. Controlled substances listed
in schedule I under federal law may not be prescribed or dispensed anywhere
in the United States unless a specific registration to do so is obtained to
use the substance for research purposes. See 21 U.S.C. sec.sec. 822-23,
872 (1981). Marijuana cannot be legally prescribed, nor can a prescription
for marijuana be filled by a pharmacist in Washington unless a federal
registration is granted.
The State of Washington obtained federal approval to use marijuana for
research purposes and the Legislature passed the Controlled Substances
Therapeutic Research Act (Research Act) in 1979. RCW 69.51. The Research
Act was enacted to determine if the principle ingredient in marijuana, THC,
was effective in the treatment of nausea and vomiting caused by radiation
and chemotherapy. RCW 69.51.020; see also CP at 41. Although still law,
the Legislature stopped funding the program in 1980. The reason given for
the discontinuation of funding was because the results were favorable and
THC was synthesized, approved by the FDA, and marketed as Marinol. Thus,
the Legislature determined that state funding was no longer necessary.
However, in 1996, the Washington Legislature restored funding to the
board of pharmacy to study the effects of medicinal marijuana.1 The study
is to be performed in connection with a Washington State University
research project which will research a tamper-free means of cultivating
effective and safe marijuana plants for medicinal purposes. 1996
Legislative Budget Notes, Supplemental Budget, sec. 217, at 114 n.8, sec.
605, at 169 n.8.2
Similar to the federal statute, Washington's Uniform Controlled
Substances Act classifies controlled substances based on their therapeutic
value, potential for abuse, and safety. A substance is listed in schedule
I if it has (1) a high potential for abuse, (2) no currently accepted
medical use in treatment in the United States, and (3) no accepted safety
for use in treatment under medical supervision. RCW 69.50.201. A
substance is placed in schedule II upon finding that: (1) the substance has
a high potential for abuse, (2) the substance has currently accepted
medical use in treatment or currently accepted medical use with severe
restrictions, and (3) the abuse of the substance may lead to severe psychic
or physical dependence. RCW 69.50.205.
In Washington, the Legislature made the initial scheduling placements
when it adopted the Uniform Controlled Substances Act in 1971, including
the placement of marijuana on schedule I. In 1986, the Legislature placed
Marinol, the FDA approved form of synthetic THC, on schedule II.3 Laws of
1986, ch. 124 sec. 3 (codified at RCW 69.50.206(f)(1)). The Legislature
kept marijuana on schedule I. All other forms of tetrahydrocannabinols are
listed in schedule I. RCW 69.50.204(c)(22).
The Uniform Controlled Substances Act specifically permits the board
of pharmacy to schedule or reschedule controlled substances based on
specific criteria. RCW 69.50.201.4 The board of pharmacy, pursuant to its
authority, has maintained marijuana in schedule I.5 Mr. Seeley has not
asked the board of pharmacy to initiate the state administrative process
described in RCW 69.50.201 for rescheduling marijuana and the board has not
independently initiated that administrative process.
The Respondent, Ralph Seeley, filed this pro se lawsuit against the
State of Washington in the Superior Court for Pierce County. Mr. Seeley
asked the Superior Court for a declaratory judgment finding RCW
69.50.204(c)(14), which places marijuana on schedule I of controlled
substances, unconstitutional under art. I, sec.sec. 12, 32 of the
Constitution of the State of Washington. Additionally, Mr. Seeley asked
the court for an order directing the board of pharmacy to reclassify
marijuana so that it may be prescribed by physicians for the plaintiff and
other citizens of Washington who have a legitimate medical need for its
therapeutic effects.
The Pierce County Superior Court granted Mr. Seeley's motion for
summary judgment, finding that the placement of marijuana in schedule I of
controlled substances violated his rights and liberties as protected by the
Constitution of the State of Washington, art. I sec.sec. 12, 32. The State
of Washington directly appealed from this judgment and this court granted
review pursuant to RAP 4.2(a)(2).
DISCUSSION
I. Independent Analysis Under The Privileges and Immunities Clause
Respondent asserts that classifying marijuana in schedule I of
controlled substances violates the privileges and immunities clause of the
Washington Constitution.
Respondent asserts that the privileges and immunities clause of the
Washington Constitution affords the citizens of Washington greater
protection than its federal counterpart, the Equal Protection Clause of the
Fourteenth Amendment of the United States Constitution and, thus, requires
an independent analysis based on the state constitutional provision.
Respondent maintains that this court should apply the independent analysis
adopted by the Oregon Supreme Court, whose state privileges and immunities
clause is substantially identical to the Washington Constitution. See
State v. Clark, 291 Or. 231, 630 P.2d 810, cert. denied, 454 U.S. 1084
(1981).6
Washington courts look to the six factors outlined in State v.
Gunwall, 106 Wn.2d 54, 61-62, 720 P.2d 808, 76 A.L.R. 517 (1986), to
determine whether a state constitutional provision extends broader rights
than the Federal Constitution.
The first criterion involves an analysis of the textual language of
the state constitutional provision, and the second criterion requires a
comparison of the parallel state and federal provisions. Id. at 61.
Article I, section 12 of the Washington Constitution provides:
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.
The Fourteenth Amendment of the United States Constitution provides, in
pertinent part:
No state shall make or enforce any law which shall abridge the
privileges and immunities of citizens of the United States; nor shall
any state deprive any person life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the
equal
protection of the laws.
See State v. Smith, 117 Wn.2d 263, 285, 814 P.2d 652 (1991) (Utter, J.,
concurring).7 Respondent contends that although the two provisions contain
parallel rights, art. I, sec. 12 contains language that is "significantly
different" from its federal counterpart. Respondent claims that the
difference in the language suggests that the drafters meant something
different from the federal provision. "Ordinary rules of textual and
constitutional interpretation, as well as the logic of federalism, require
that meaning be given to the differences in language between the Washington
and United States Constitutions." Smith, 117 Wn.2d at 285. Respondent
also maintains that because Washington's provision was adopted from another
state's constitution and not the Federal Constitution it was meant to be
interpreted independently of the Federal Constitution.
While it may be true that there are some differences in the language,
Respondent does not suggest what the differences signify nor what meaning
should be given to the words in the state constitution. Moreover, in spite
of similar augments, this court has repeatedly found these provisions
substantially similar and treated them accordingly. State v. Manussier,
129 Wn.2d 652, 672, 921 P.2d 473 (1996); State v. Thorne, 129 Wn.2d 736,
771 n.9, 921 P.2d 514 (1996); State v. Shawn P., 122 Wn.2d 553, 560-61, 859
P.2d 1220 (1993); Smith, 117 Wn.2d at 281; In re Borders, 114 Wn.2d 171,
175, 786 P.2d 789 (1990); Omega Nat'l Ins. Co. v. Marquardt, 115 Wn.2d 416,
430, 799 P.2d 235 (1990); City of Seattle v. Rogers Clothing for Men, Inc.,
114 Wn.2d 213, 233, 787 P.2d 39 (1990); American Network, Inc. v. Utilities
& Transp. Comm'n., 113 Wn.2d 59, 77, 776 P.2d 950 (1989).
The third factor involves an analysis of the state constitutional and
common law history of the state constitutional provision. Gunwall, 106
Wn.2d at 61. Respondent notes that art. I, sec. 12 of the Washington
Constitution was based on a similar provision of the Oregon Constitution,
art. I, sec. 20. See Smith, 117 Wn.2d at 285 (Utter, J., concurring)
(citing Journal of the Washington State Constitutional Convention, 1889, at
501 n.20 (Beverly Paulik Rosenow ed. 1962)). This provision was
interpreted by the Oregon Supreme Court to require an analysis independent
of the Fourteenth Amendment. See Clark, 291 Or. 231. Thus, Respondent
argues that Oregon's constitutional history is persuasive when interpreting
art. I, sec. 12 of the Washington Constitution. In reviewing the history
of Oregon's provision the Oregon Supreme Court stated:
"The provisions of the state Constitution are the antithesis of the
fourteenth amendment in that they prevent the enlargement of
the rights of some in discrimination against the rights of others,
while the fourteenth amendment prevents the curtailment of rights. . .
."
Smith, 117 Wn.2d at 285 (quoting Clark, 630 P.2d at 814 n.8).
Although an interpretation of the Oregon provision may provide some
guidance, Respondent provides no constitutional or common law history for
the Washington provision at issue. This factor requires an analysis of the
history of the Washington constitutional provision which was not met by the
Respondent in this case.
The fourth factor to be addressed is preexisting state law. Gunwall,
106 Wn.2d at 61. "Previously established bodies of state law, including
statutory law, may also bear on the granting of distinctive state
constitutional rights." Id. Respondent admits that there is no
preexisting state law regarding the use of marijuana, medically or
otherwise. This indicates that using marijuana is not a right that the
Washington Constitution was designed to protect.
Additionally, Appellant correctly notes that Washington's Constitution
provides a constitutional grant of authority to the state legislature in
the area of public health and the regulation of medicine and pharmacy.
Const. art. XX, sec. 2 provides:
The legislature shall enact laws to regulate the practice of
medicine and surgery, and the sale of drugs and medicines.
This article identifies Washington's unique historical interest in the
regulation of drugs. The public health authority granted in art. XX had
its origin even earlier in the territorial medical practice act of 1881
(Code of Wash., ch. 169, sec. 2285 (1881)). Constitutional history and pre-
existing state law recognize that the Legislature has the authority to
protect the public health and safety through the regulation of drugs.
Thus, this factor supports the conclusion that greater protection under the
state constitution does not exist in this context.
The fifth criterion addresses the structural differences between the
federal and state constitutions. Gunwall, 106 Wn.2d at 62. The United
States Constitution is a grant of limited power authorizing the federal
government to exercise only those constitutionally enumerated powers,
whereas the state constitution imposes limitations on the otherwise plenary
power of the state. Id. at 66. Our analysis in Gunwall indicates that
this factor will always support an independent analysis under the state
constitution. See Id. at 62, 66.
The last factor looks at whether the subject matter is of particular
state or local concern, or if there appear to be a need for national
uniformity. Id. at 62. Matters of state or local concern are more
appropriately addressed by resorting to the state constitution. Id.
Respondent asserts that, because he has been treated at a state-owned and
regulated facility by a doctor who is licensed in this state, his access to
medicine is an issue of local or state concern. Respondent also claims
that the board of pharmacy's power to schedule and reschedule substances
indicates that national uniformity is not needed when regulating controlled
substances.
However, the substantial similarities between RCW 69.50 and the
federal controlled substance law indicate that Washington's Uniform
Controlled Substances Act is intended to be part of a uniform policy to
control illegal drugs. See State v. McFadden, 63 Wn. App. 441, 447, 820
P.2d 53 (1991), review denied, 119 Wn.2d 1102 (1992) ("{a}doption by the
Washington State Legislature of a uniform narcotics control statute
substantially identical to the federal legislation is a clear statement
that the matter is not one of special local concern but one as to which
national and uniform policies are desirable"). The Uniform Controlled
Substances Act has been adopted in some form by all 50 states, all of which
place marijuana on schedule I. See Uniform Controlled Substances Act, 9
U.L.A. prefatory note at 2 (1988).
The Prefatory Note for the Uniform Controlled Substances Act
summarizes the important interest in maintaining the integrity of uniform
state and parallel federal law.
{The} Uniform {Controlled Substances} Act was drafted to achieve
uniformity between the laws of the several States and those of the
Federal government. It has been designed to complete the new Federal
Narcotic dangerous drug legislation and provide an interlocking
trellis of Federal and State law to enable government at all levels to
control more effectively the drug abuse problem. . . . Much of {the}
major increase in drug use and abuse is attributable to the increased
mobility of our citizens . . . . {I}t becomes critical to approach . .
. this
problem at the State and local level on a uniform basis.
Id. It is apparent that there is a need for national uniformity in the
area of controlled substance regulation and that Washington's Uniform
Controlled Substances Act was intended to be part of a national scheme.
In the present case, an independent analysis under the state
constitution is not warranted. The analysis provided under factors four
and six shows that the Respondent's interest in smoking marijuana as a
medical treatment was not a right the Washington Constitution was designed
to protect and that there is a recognized need for national uniformity when
regulating controlled substances. We find that the protections under the
state and federal provisions are coextensive in this context and we will
utilize the federal equal protection analysis to resolve whether the
placement of marijuana in schedule I of controlled substances violates art.
I, sec. 12 of the Washington Constitution.
II. Equal Protection Analysis
In an equal protection analysis this court must first determine the
standard of review against which to test the challenged legislation.
Respondent contends that the legislative decision placing marijuana in
schedule I threatens a fundamental right and is therefore entitled to
strict scrutiny. If governmental action threatens a "fundamental right,"
the classification will be upheld only if it is necessary to accomplish a
compelling state interest. Smith, 117 Wn.2d at 277.
This court has held that "{t}he right to smoke marijuana is not
fundamental to the American scheme of justice, it is not necessary to
ordered liberty, and it is not within a zone of privacy." State v. Smith,
93 Wn.2d 329, 346-47, 610 P.2d 869, cert. denied, 449 U.S. 873 (1980).
Other federal and state courts have agreed that possession of marijuana is
not a fundamental right guaranteed by the United States Constitution. See
National Organization for the Reform of Marijuana Laws v. Bell, 488 F.
Supp. 123 (D.C. Cir. 1980); State v. Anonymous, 32 Conn. Supp. 324, 355
A.2d 729 (1976); Commonwealth v. Leis, 355 Mass. 189, 243 N.E.2d 898
(1969); People v. Alexander, 56 Mich. App. 400, 223 N.W.2d 750 (1974);
Kreisher v. State, 319 A.2d 31 (Del. Super. 1974).
However, Respondent contends the right infringed is not a general
right to smoke marijuana but, rather, a right to have marijuana prescribed
as his preferred medical treatment for the nausea and vomiting associated
with chemotherapy. Citing Bering v. Share, 106 Wn.2d 212, 721 P.2d 918
(1986), cert. dismissed, 479 U.S. 1050 (1987), Respondent claims this court
recognized that a physician has a fundamental right to practice medicine.
Respondent argues that this fundamental right should encompass the right of
a patient to have the aid of his physician to relieve his suffering.
Contrary to Mr. Seeley's argument, this court in Bering did not create
a fundamental right of a physician to practice medicine. See Bering, 106
Wn.2d 212. In Bering, we held that geographical limitations on picketing
outside a medical building which performed abortions did not violate
federal or state free speech rights. Id. Respondent incorrectly asserts
that this court established a "fundamental" right of physicians to practice
medicine, and, therefore, his argument is without merit.
Citing the United States Supreme Court decision in United States v.
Rutherford, 442 U.S. 544, 99 S. Ct. 2470, 61 L. Ed. 2d 68 (1979), Appellant
states that a terminally ill individual does not have a constitutional
right to access unapproved medicines. In Rutherford, a group of terminally
ill cancer patients sued to enjoin the federal government from interfering
with interstate transportation of laetrile, a drug not approved as "safe
and effective" under the Federal Food, Drug and Cosmetic Act. Id. at 546.
Although the Supreme Court did not directly address the patients' claim
that they had a constitutionally protected "privacy" right to use laetrile.
Justice Marshall's opinion for a unanimous Court emphasized the special
dangers presented for terminal patients by ineffective drugs, the wide
variety of products whose producers claim have curative properties, and the
difficulty of reviewing all such claims and products. Id. at 556.
On remand the United States Court of Appeals for the Tenth Circuit did
address and reject the constitutional challenge based on the patients'
right to privacy. The Tenth Circuit found that, although a decision by a
patient whether to have a treatment or not is a protected right, the
"selection of a particular treatment, or at least a medication, is within
the area of governmental interest in protecting public health." Rutherford
v. United States, 616 F.2d 455, 457 (10th Cir.), cert. denied, 449 U.S. 937
(1980). Other courts have agreed with the Tenth Circuit that the selection
of a particular treatment or medicine is not a constitutionally protected
right. See Carnohan v. United States, 616 F.2d 1120 (9th Cir. 1980) (the
Ninth Circuit found that constitutional rights of privacy and personal
liberty did not give the plaintiff the right to obtain laetrile free of
lawful exercise of government police power); Kulsar v. Ambach, 598 F. Supp.
1124 (W.D.N.Y. 1984) (medical patients had no constitutional right to a
drug treatment which the FDA ordered removed from the marketplace).
Similarly, the California Supreme Court held that the right to obtain
drugs of unproven efficacy is not a fundamental right. People v.
Privitera, 23 Cal. 3d 697, 591 P.2d 919, 925-26, 153 Cal. Rptr. 431, 5
A.L.R.4th 178, cert. denied, 444 U.S. 949 (1979). In Privitera, defendants
were convicted of conspiracy to sell and to prescribe the unapproved drug
laetrile intended for the alleviation or cure of cancer. Id. at 921.
Defendants claimed the California statute violated the right of privacy
protected by the federal and California constitution. Id. The court
stated:
Whether cancer patients especially advanced cancer patients who have
unsuccessfully sought relief from conventional therapy and who are
fully informed as to the consensus of scientific opinion concerning
the drug should have access to laetrile is clearly a question about
which reasonable persons may differ. It is not our function to render
scientific or legislative judgments. Rather, we must resolve a narrow
question: Does the challenged legislation bear a reasonable
relationship
to the achievement of the legitimate state interest in the health and
safety of its citizens? We conclude section 1707.1 does satisfy this
standard and that it therefore does not encroach upon the federal
constitutional right of privacy.
Id. at 925-26.
Here, Respondent asserts a constitutionally protected interest in
having his physician prescribe marijuana, an unapproved drug which is
regulated as a Schedule I controlled substance, for medical treatment. In
an equally compelling case, the United States Supreme Court recently held
that terminally ill patients do not have a constitutionally protected right
to physician assisted suicide nor did they constitute a suspect class for
purposes of and equal protection analysis.8 Vacco v. Quill, No. 95-1858,
WL 348037, at *3 (U.S. 1997). Thus, it is apparent from the case law that
although the Respondent is facing a terminal illness, he is not part of a
suspect class nor does he have a fundamental right to have marijuana
prescribed as his preferred treatment over the legitimate objections of the
state.
Respondent argues that if this court does not apply the strict
scrutiny analysis then the heightened or intermediate scrutiny should
apply. Under intermediate scrutiny the legislation must further a
substantial interest of the state. State v. Coria, 120 Wn.2d 156, 170, 839
P.2d 890 (1992). However, Respondent cites no authority supporting his
assertion that the right to access an unapproved, controlled substance as
treatment for a medical condition is an "important right" or that cancer
patients are a semisuspect class. As noted above, other courts have
applied a rational basis analysis where terminally ill patients have
asserted a right to be treated with an unapproved drug. Carnohan, 616 F.2d
at 1122; Privitera, 591 P.2d at 925-26. Moreover, this court and other
state and federal courts have consistently applied the rational basis test
when deciding whether marijuana's classification as a schedule I controlled
substance violates equal protection. See generally Smith, 93 Wn.2d 329;
National Organization for the Reform of Marijuana Laws v. Bell, 488 F.
Supp. 123 (D.C. Cir. 1980); State v. Hanson, 364 N.W.2d 786 (Minn. 1985).
Thus, the rational basis test is the appropriate standard against which to
test the challenged legislation.
Under the rational basis test the challenged law must be rationally
related to a legitimate state interest. The legislation will be upheld
unless the classification rests on grounds wholly irrelevant to the
achievement of a legitimate state objective. State v. Shawn P., 112 Wn.2d
at 561. Legislative acts are presumed constitutional and this court will
not find otherwise unless proved so beyond a reasonable doubt. Id. The
rational basis test requires only that the means employed by the statute be
rationally related to legitimate state goals, and not that the means be the
best way of achieving that goal. Id. In looking for a rational
relationship the court may assume the existence of any necessary state of
facts which it can reasonably conceive. Smith, 93 Wn.2d at 336. The party
challenging the legislation "must show, beyond a reasonable doubt, that no
state of facts exists or can be conceived sufficient to justify the
challenged classification, or that the facts have so far changed as to
render the classification arbitrary and obsolete." Id. at 337.
On its face, the classification of marijuana does not treat anyone
differently than anyone else or draw any distinctions between persons.
Everyone, regardless of their medical condition, is prohibited from
obtaining the substance. "`Generally speaking, laws that apply
evenhandedly to all `unquestionably comply' with the Equal Protection
Clause.'" Vacco, 1997 WL 348037, at *3 (quoting New York City Transit
Auth. v. Beazer, 440 U.S. 568, 587, 99 S. Ct. 1355, 59 L. Ed. 2d 587
(1979)).
Respondent argues that (1) no rational basis exists for classifying
marijuana as a schedule I controlled substance, and (2) comparable drugs
such as cocaine, morphine, and methanphetamines are not similarly
classified. First, we will address Respondent's contention that
marijuana's placement on schedule I is irrational because it is an
effective medical treatment for the nausea and vomiting associated with
chemotherapy.
To support his argument that marijuana's classification is purely
arbitrary, Respondent cites to an opinion and recommended ruling by
Administrative Law Judge (ALJ) Young in response to a petition by NORML
before the Drug Enforcement Administration (DEA) to reschedule marijuana,
asserting that the drug had an accepted medical use.9 Judge Young heard
testimony and reviewed evidence on both sides of the issue. In September
1988, Judge Young issued his ruling and concluded:
The evidence in this record clearly shows that marijuana has been
accepted as capable of relieving the distress of great numbers of
very ill people, and doing so with safety under medical supervision.
It would be unreasonable, arbitrary and capricious for the DEA to
continue to stand between those sufferers and the benefits of this
substance in light of the evidence in this record.
CP at 24 ("Opinion And Recommended Ruling, Finding Of Fact, Conclusion Of
Law And Decision Of Administrative Law Judge In The Matter Of Marijuana
Rescheduling Petition, Docket No. 86-22, U.S. Department of Justice, Drug
Enforcement Administration" (1988) (hereinafter Young Opinion)). Based on
Judge Young's ruling, Respondent asks this court to determine that
retaining marijuana in schedule I is arbitrary, and, therefore,
unconstitutional under art. I, sec. 12 of the Washington Constitution.
The Administrator of the DEA, however, did not follow the ALJ's
recommended ruling and retained marijuana on schedule I. The ALJ
determined that a respectable minority of physicians who advocated
marijuana's medical use was sufficient to show that marijuana had an
"accepted medical use." CP at 24. The Administrator declined to follow
the ALJ's standard for "accepted medical use" because it lacked scientific
credibility.10 CP at 24. During the administrative process an extensive
evidentiary record was developed which included a great deal of expert
testimony for and against changing marijuana's rescheduling. The
Administrator found the evidence submitted and relied upon by experts
supporting the reclassification of marijuana to schedule II was anecdotal,
and, therefore, did not warrant a change in marijuana's classification.
Furthermore, scientifically reliable evidence showed that currently
available therapies are more effective and do not carry with them the same
risks which are attributable to marijuana. The Administrator's decision to
retain marijuana in schedule I was upheld by the United States Court of
Appeals for the District of Columbia in Alliance for Cannabis Therapeutics
v. Drug Enforcement Admin., 15 F.3d 1131 (D.C. Cir. 1994). For this court
to rely on the recommended ruling by the Administrative Law Judge would be
the equivalent of relying on a decision by a trial court which has been
reversed on appeal.
The only case law the Respondent cites to support his position is a
Washington Court of Appeals decision, State v. Diana, 24 Wn. App. 908, 604
P.2d 1312 (1979). Respondent's reliance on Diana, however, is misplaced as
the court did not address the constitutionality of marijuana's scheduling.
The Court of Appeals in Diana recognized that, under limited circumstances,
an individual may assert a medical necessity defense to a criminal
marijuana possession charge. Id. at 913. The recognition of a potential
medical necessity defense for criminal liability of marijuana possession is
not relevant in this equal protection analysis.
This court and other federal and state courts have reviewed evidence
similar to that which has been submitted in this case and have all upheld
the constitutionality of marijuana's classification. We upheld marijuana's
classification as a controlled substance on equal protection grounds in
Smith, 93 Wn.2d 329. In Smith, individuals appealing criminal convictions
made a facial equal protection challenge to the Legislature's
classification of marijuana, providing evidence to the court advocating
marijuana's safety. Finding that experts disagree regarding the
seriousness of marijuana's effects, we refused to substitute our judgment
for that of the Legislature. Id. at 337. We emphasized the Legislature's
right to exercise its police power to regulate the prescription and use of
dangerous drugs and found that marijuana's classification was reasonably
related to the legitimate interests of the state. Id. at 338-39.
In State v. Dickamore, 22 Wn. App. 851, 592 P.2d 681 (1979), the Court
of Appeals rejected a similar equal protection challenge, stating:
{S}o long as scientists disagree about the effect of marijuana,
the legislature is free to adopt the opinions of those scientists who
view marijuana as harmful. We will not substitute our judgment for
that of the legislature where the statute in question bears a rational
relationship to a legitimate legislative purpose.
Id. at 855.
Although not an equal protection challenge, this court discussed
marijuana's schedule I classification in State v. Palmer, 96 Wn.2d 573, 637
P.2d 239 (1981). We held that the state board of pharmacy did not abuse
its discretion when it declined to remove marijuana from schedule I in view
of testimony that there was not a general, accepted medical use for
marijuana, although some doctors had recommended its use to patients for
the treatment of some diseases. Id. at 575-77.
Within a month of the Palmer decision this court also addressed
another appeal from a marijuana conviction in State v. Whitney, 96 Wn.2d
578, 637 P.2d 956 (1981). In Whitney, this court rejected the argument
that after the enactment of the Controlled Therapeutic Research Act of
1979, marijuana's classification as a schedule I drug no longer had a
rational relationship to a legitimate state purpose. Appellant stated that
the Research Act11 recognized potential medical uses of marijuana for cancer
and glaucoma sufferers and noted that marijuana can be in schedule I only
if it has no accepted medical use. Id. at 583. We found the legislation
did not manifest a finding that marijuana has an accepted medical use or
that it is safe for use under medical supervision and held that the
retention of the drug in schedule I was reasonably related to a legitimate
state purpose. Id. Thus, Washington appellate courts have already
examined and upheld the rationality of the Legislature's placement of
marijuana in schedule I in light of any potential medical use.
Federal and state courts have also uniformly upheld the classification
of marijuana as a controlled substance against equal protection challenges. 12
The State maintains that placing marijuana in schedule I is rationally
related to the state's dual interest in controlling potential drug abuse
and assuring efficacy and safety in medicines. Respondent argues that
placing marijuana in schedule I is not rationally related to the states
purpose of preventing drug abuse. Respondent maintains that placing
marijuana in schedule II could not possibly contribute to the drug abuse
problem because marijuana would be available only by prescription.
However, the Legislature could reasonably consider marijuana's widespread
availability and its pattern of abuse as requiring a different legislative
response than to other substances. "It is enough that there is an evil at
hand for correction, and that it might be thought that the particular
legislative measure was a rational way to correct it." Williamson v. Lee
Optical, 348 U.S. 483, 488, 75 S. Ct. 461, 99 L. Ed. 2d 563, reh'g denied,
349 U.S. 925 (1955).
Respondent also contends that the placement of marijuana in schedule I
is irrational because it is a safe and effective medicine for controlling
the vomiting and nausea associated with cancer chemotherapy. He argues
that marijuana has an "accepted medical use" and, therefore, cannot be
placed in schedule I. Respondent relies primarily on the testimony of Dr.
Lester Grinspoon, associate clinical professor of psychiatry at Harvard
Medical School and specialist in psychoactive drugs, and Dr. Ernest Conrad,
an orthopedic physician at the University of Washington School of Medicine
and Mr. Seeley's treating physician for nine years.
Dr. Grinspoon offered testimony advocating the safety and benefits of
using marijuana as a medicine. He contends that marijuana is one of the
safest drugs available, stating there has never been a documented overdose.
Based on anecdotal testimony from cancer patients, Dr. Grinspoon contends
that marijuana is more effective than other new generation antiemetic drugs
such as ondansetron. Dr. Grinspoon admits that smoking marijuana carries
the same risks associated with smoking cigarettes and that marijuana may
even contain more particulate matter than cigarettes. However, he notes
that a cigarette smoker smokes in far greater quantities than a cancer
chemotherapy patient, who will smoke a marijuana cigarette only until the
nausea symptoms subside.
The Respondent also offered testimony of his physician, Dr. Ernest
Conrad, who stated that he would prescribe marijuana if it were legally
available. Dr. Conrad maintained that for some of his patients, including
Mr. Seeley, smoking marijuana is an effective means to control the nausea
and vomiting associated with cancer chemotherapy. He admits that his
opinions are not based on scientific evidence but, rather, on claims of
patients who have found that it alleviates their symptoms.
In response, the State provided testimony of several physicians who do
not advocate the use of marijuana as a medicine. Dr. Janet Lapey, a
pathologist and executive director of Concerned Citizens for Drug
Prevention, has also studied the scientific research and medical literature
regarding marijuana's potential use as a medicine. However, unlike Dr.
Grinspoon, she has concluded that marijuana has no currently accepted use
in the treatment of any medical condition. Dr. Lapey notes that marijuana
is a complex mixture of over 400 chemicals, which increases to 2,000 when
smoked. Among those 400 chemicals, there are at least 61 identified
cannabinoids, the active ingredients in marijuana. The amount of the
active ingredients, including THC, can vary depending on the growing
condition of the plant. Dr. Lapey explains that to gain approval as a
medicine a substance must be capable of precise chemical quantification of
all ingredients. Dr. Barry Logan, a toxicologist for the State of
Washington, explains that with a marijuana plant there is no way to create
a standardized dosing system because there is no singularly identifiable
and/or chemically consistent plant. Thus, he concludes this quality
renders the plant form of marijuana incapable of establishment of standards
for the accepted safety for use in treatment under medical supervision.
Dr. Lapey also notes that marijuana has been rejected as a medicine by
the American Medical Association, the American Cancer Society, the National
Multiple Sclerosis Society, the American Glaucoma Society, the Food and
Drug Administration, and the American Academy of Opthamology. Dr. Lapey
states that no scientifically credible evidence exists which supports the
conclusion that marijuana is an effective medicine. Dr. Lapey maintains
that when compared against other currently available medications there is
no support for using marijuana as a medicine.
Dr. Daniel Brookoff, a specialist in medical oncology, also testified
that marijuana is not an effective medication. He states that in the last
15 years other drugs, such as ondansetron, have been developed that have
proved to be safer and far more effective in treating the nausea and
vomiting associated with chemotherapy.13 He maintains that these drugs have
proved to be safe and effective for both adults and children and,
generally, produce only mild side effects. Dr. Brookoff notes that
although the synthesized form of THC has been shown to have some anti-
nausea effects, it has found limited use because it is not particularly
effective. It is used only as a third line of treatment, administered only
when other drugs have failed. Mr. Seeley's physician, Dr. Conrad, also
gave testimony supporting Dr. Brookoff's statements. Dr. Conrad also
stated that ondansetron has proven to be a more effective drug in the last
few years for chemotherapy than other drugs and that most medical
oncologists will only use Marinol, synthesized THC, when other drugs have
not proven to be effective.
Dr. Brookoff stated that for physicians the issue of whether inhaled
marijuana should be used as an anti-emetic was settled in 1984 when Dr.
Levitt and colleagues conducted a randomized, double-blind comparison of
synthesized THC and marijuana for the treatment of nausea and vomiting
associated with chemotherapy.14 The study found that neither substance was
particularly effective in treating nausea and vomiting with 75 percent of
patients in both groups still suffering significant nausea and vomiting.
Moreover, among those who found the substances to be effective, the
majority preferred the synthesized form of THC as opposed to marijuana.
Dr. Brookoff states that marijuana adds nothing to the limited benefits of
synthesized THC. Marijuana does, however, have negative side effects not
associated with synthesized THC. Because marijuana is smoked it contains
carcinogens and particulate matter associated with cigarette smoking and
the danger of infection from fungus,15 which is often found in marijuana
cigarettes. Dr. Lapey notes that even when a person smokes fewer than one
marijuana cigarette per day, significant changes in pulmonary function and
respiratory function are found.16
Dr. Brookoff maintains that any potential benefits from the use of
marijuana have been eclipsed by the development of safer and more effective
drugs.17 Thus, he concludes that there is no therapeutic use for marijuana.18
All that is left are the hazards associated with smoking marijuana, which
include lung disease, cardiac dysfunction, brain damage, genetic damage,
immune disorders and psychomotor impairment. Additionally, Dr. Brookoff
notes that in 1994 various components of the National Institutes of Health
conducted a review of the scientific literature concerning the therapeutic
uses of marijuana. They concluded that no evidence suggests that marijuana
is superior to currently available medications for a variety of illnesses
including nausea and vomiting associated with cancer chemotherapy and that
the risks associated with using smoked marijuana mitigate against its
therapeutic use.
The challenged legislation involves conclusions concerning a myriad of
complicated medical, psychological and moral issues of considerable
controversy. We are not prepared on this limited record to conclude that
the legislature could not reasonably conclude that marijuana should be
placed in schedule I of controlled substances. It is clear not only from
the record in this case but also from the long history of marijuana's
treatment under the law that disagreement persists concerning the health
effects of marijuana use and its effectiveness as a medicinal drug. The
evidence presented by the Respondent is insufficient to convince this court
that it should interfere with the broad judicially recognized prerogative
of the legislature. Respondent has not shown that the legislative
treatment of marijuana is "so unrelated" to the achievement of the
legitimate purposes of the legislature or that "the facts have so far
changed as to render the classification arbitrary and obsolete." See
Smith, 93 Wn.2d at 337.
Additionally, Washington's Uniform Controlled Substances Act contains
a mechanism by which evidence may be presented to the board of pharmacy to
determine whether a drug should be reclassified. The very existence of
this statutory scheme indicates that the Legislature intended flexibility
and receptivity to the latest scientific information. This scheme is a
sensible mechanism for dealing with a field in which factual claims are
conflicting and the state of scientific knowledge is still growing. This
is the antithesis of irrationality which the Respondent attributes to the
Legislature. See Bell, 488 F. Supp. at 141; Kiffer, 477 F.2d at 357.
Thus, the determination of whether new evidence regarding marijuana's
potential medical use should result in the reclassification of marijuana is
a matter for legislative or administrative, not judicial, judgment.
Respondent also attacks the rationality of the classification scheme,
arguing that it is underinclusive. Respondent makes an equal protection
challenge asserting that marijuana's classification is irrational because
other more harmful substances such as cocaine, morphine, and
methanphetamines are not similarly classified in schedule I and, thus, can
be prescribed by a physician. Respondent also maintains that it is
arbitrary to place marijuana in schedule I while classifying the synthetic
form of THC, otherwise known as Marinol, in schedule II.
"`Underinclusive classifications do not include all who are similarly
situated with respect to a rule, and thereby burden less than would be
logical to achieve the intended government end.'" National Organization
For the Reform of Marijuana Laws v. Bell, 488 F. Supp. 123, 137 (D.C. Cir.
1980) (quoting Laurence H. Tribe, American Constitutional Law sec. 16-4, at
997 (1978)). To prevail in such a claim the plaintiff must show that the
governmental choice is "'clearly wrong, a display of arbitrary power, not
an exercise of judgment.'" Id. (quoting Mathews v. de Castro, 429 U.S.
181, 185, 97 S. Ct. 431, 50 L. Ed. 2d 389 (1976)). The court notes that
few challengers can overcome this heavy burden of proof. The court
explains that legislative bodies have broad discretion in attacking social
ills. "A State may direct its law against what it deems the evil as it
actually exists without covering the whole field of possible abuses, and it
may do so none the less that the forbidden act does not differ in kind from
those that are allowed." Id. Thus, the court concluded that failure to
include alcohol and tobacco in the regulatory scheme did not render the
statute unconstitutional. Id.19
The Washington Court of Appeals rejected the same argument in
Dickamore. The defendant in Dickamore argued that marijuana's
classification violated equal protection because comparable drugs such as
nicotine and alcohol are not similarly classified. The court concluded
that the Legislature is not constitutionally compelled to regulate or
prohibit all harmful substances. Dickamore, 22 Wn. App. at 684 (citing
United States v. Kiffer, 477 F.2d 349, cert. denied, 414 U.S. 831 (2d Cir.
1973)). "`It may conclude that half a loaf is better
than none.'" Id. (quoting Kiffer, 477 F.2d at 355). Thus, the court held
the classification of marijuana did not violate equal protection.
In light of this policy of legislative freedom when confronting social
problems, the exclusion of other potentially more harmful drugs from
schedule I does not render the scheme unconstitutional. That cocaine or
morphine have adverse health effects does not mean that placing these
substances in schedule I is the best means of regulating these substances,
or that marijuana should be treated similarly. The fact that cocaine,
morphine, and methanphetamines have all been approved for medical use and
marijuana has not is sufficient reason for treating the substances
differently. Likewise, the synthesized form of THC has been approved for
medical use. Marijuana, unlike synthesized THC contains over 400 different
chemicals and there is no way to create a standardized dosing system
because there are no chemically consistent plants. The differences between
marijuana and synthesized THC, in addition to the health risks associated
with inhaled marijuana, justify the Legislature's decision to treat the
substances differently.20
III. Frequent Recurrence to Fundamental Principles Analysis
Respondent asserts that the Legislature's placement of marijuana in
schedule I of controlled substances violates art. I, sec. 32 of the
Washington Constitution, which provides "{a} frequent recurrence to
fundamental principles is essential to the security of individual right and
the perpetuity of free government." Respondent maintains that art. I, sec.
32 protects the personal liberties of the citizens of Washington to a
greater extent than the Federal Constitution and, to this end, provides a
Gunwall analysis.
In his analysis of the first two Gunwall factors Respondent asserts
that because there is no equivalent federal counterpart to art. I, sec. 32
this court should find greater protection under these factors. We agree
this provision must necessarily be independently analyzed to determine
whether it affords the Respondent protection in this context.
Respondent notes that although art. I, sec. 32 had historical
precedents, the precise language used in the Washington constitution was
unique. See Brian Snure, A Frequent Recurrence to Fundamental Principles:
Individual Rights, Free Government, and the Washington State Constitution,
67 Wash. L. Rev. 669, 676 (1992). A reminder to consider "fundamental
principles" was originally seen in the first American Declaration of Rights
written by George Mason in 1776. See Id. (citing Va. Const. art. I, sec.
15 ("Qualities necessary to preservation of free government. That no free
government, nor the blessings of liberty can be preserved to any people,
but by a firm adherence to justice, moderation, temperance, frugality, and
virtue; by frequent recurrence to fundamental principles.")). By 1889,
nine states adopted similar provisions in their state constitutions. See
Id.21 However, unlike some state constitutions, Washington did not limit
the return to fundamental principles to those "of the constitution." See
Id.22 Thus, Respondent maintains that the framers chose not to include the
language of other similar provisions that would limit art. I, sec. 32 to
fundamental principles delineated within the constitution. Additionally,
the Washington Constitution diverges from similar provisions by ensuring
the "security of individual right." See Id. This connection to individual
rights was unique to the Washington constitution. See Id.
The original proposed Washington Constitution by Liard Hill contained
only 31 sections in art. I. See Id. at 674. 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. See Id. (citing 32
cong. rec. 783, 785, 789 (1899) (statements of Senator Turner against
United States imperialism in the Philippines)).
Respondent notes that Brian Snure has argued persuasively that the
phrase "frequent recurrence to fundamental principles" suggests that the
framers retained
the notion that natural rights should be considered when protecting
individual rights. See Id. at 687. Snure states that "{s}ection 32
designates extra-constitutional fundamental principles as essential to the
security of individual rights." See Id. Additionally, Justice Utter, in
his concurring opinion in Southcenter Joint Venture v. National Democratic
Policy Comm., 113 Wn.2d 413, 439, 780 P.2d 1282 (1989), argued that section
32 was evidence of the framers' belief in natural law, stating "the notion
of fundamental principles was central to natural law theories at the time
{the constitution was adopted}. That the principles are not spelled out
further indicates that the framers looked to other non-governmental sources
for the origin of the rights listed in the constitution." Id. Justice
Utter used this clause as a substantive basis for the protection of rights.
Id. Thus, Respondent argues that by adopting art. I, sec. 32 the framers
intended to expand the scope of individual rights protected by the
constitution.
Whether art. I, sec. 32 can be used to expand the scope of protection
of substantive individual rights beyond those recognized by the state and
federal constitution is not clear. The "frequent recurrence to fundamental
principles" clause of the Washington Constitution has been used
infrequently by the judiciary. It has been cited in approximately twenty-
five opinions, less than half of which are majority opinions. Washington
courts have used this provision primarily as an interpretive mechanism.
For example, art. I, sec. 32 has been cited as a reason for analyzing
principles supporting a right to privacy, State v. Curran, 116 Wn.2d 174,
188-89, 804 P.2d 558, 566 (1991) (Utter, J., concurring); City of Bremerton
v. Smith, 31 Wn.2d 788, 800, 199 P.2d 95 (1948) (Simpson, J., dissenting);
the right to free speech, State v. Reece, 110 Wn.2d 766, 790, 757 P.2d 947
(1988) (Utter, J., dissenting), cert. denied, 493 U.S. 812 (1989); the
right to an insanity defense, State v. Strasburg, 60 Wash. 106, 113, 110
P.2d 1020 (1910); and the restrictions on search and seizure, State v.
Mark, 36 Wn. App. 428, 436, 675 P.2d 1250 (1984) (Ringhold, J., addendum
opinion); State v. Broadnax, 25 Wn. App. 704, 718, 612 P.2d 391 (1980)
(Ringhold, J., dissenting).
Article I, sec. 32 has also been cited to define principles of state
and local government, Goodnoe Hills Sch. Dist. No. 24 v. Forry, 52 Wn.2d
868, 875, 329 P.2d 1083 (1958); Wheeler Sch. Dist. No. 152 v. Hawley, 18
Wn.2d 37, 38, 137 P.2d 1010 (1943); to establish a separation of powers
argument, State ex rel. Swan v. Jones, 47 Wn.2d 718, 742, 289 P.2d 982
(1955) (Donworth, J., dissenting); State ex rel. Robinson v. Fluent, 30
Wn.2d 194, 240, 191 P.2d 241, cert. denied, 335 U.S. 844 (1948) (Simpson,
J., dissenting); and to support the right to an impartial trial, State ex
rel Mc Ferran v. Justice Court of Evengeline Starr, 32 Wn.2d 544, 548, 202
P.2d 927 (1949); State v. Espinoza, 51 Wn. App. 719, 722, 754 P.2d 1287
(1988), rev'd. in part by, 112 Wn.2d 819 (1989).
Washington jurisprudence has yet to see a consistent approach to art.
I, sec. 32. Nevertheless, Respondent fails to identify a natural right, in
existence at the time of the constitution's adoption, to use marijuana or
to choose a particular medical treatment. Instead, it appears the framers
intended such discretion to rest in the government as indicated by its
adoption of art. XX, sec. 2. Neither constitutional history or pre-
existing state law indicate that using marijuana is a right that the
Washington Constitution was designed to protect. Thus, art. I, sec. 32 was
not meant to provide a substantive right to use marijuana for medical
treatment free from the lawful exercise of government police power.
CONCLUSION
The privileges and immunity clause of the Washington Constitution does
not provide greater protection than the Fourteenth Amendment of the Federal
Constitution in the area of drug classification. The texts of the two
provisions are similar and have routinely been interpreted by this Court as
coextensive. In this case, there is no historical basis to conclude that
the framers of the Washington Constitution intended to extend greater
rights to citizens of this State to follow a physician prescribed course of
drug treatment free of government regulation than provided under the
Federal Constitution. To the contrary, art. XX, sec. 2 of the Washington
Constitution provides: "The legislature shall enact laws to regulate the
sale of drugs and medicine . . . ."
Moreover, Washington's Uniform Controlled Substances Act was intended
to be part of a national scheme to enable governments at all levels to more
efficiently control problems with drug abuse. Both federal and state
statutes list marijuana in Schedule I of controlled substances. Controlled
substances listed in Schedule I under federal law may not be prescribed or
dispensed anywhere in the United States unless a specific registration to
do so is obtained. Thus, marijuana cannot be legally prescribed, nor can a
prescription for marijuana be filled by a pharmacist in Washington unless a
federal registration is granted.
We agree with the courts, including the Ninth Circuit, the Tenth
Circuit, and the California Supreme Court, considering the question of
access to unapproved drugs. All have found that the rights of privacy and
personal liberty do not establish a fundamental right to drug treatment
free of government police power. Accordingly, the regulation here is
appropriately analyzed under a rational basis test. Under that test,
Respondent has failed to show that the Legislature's decision regarding
classification of marijuana is "so unrelated" to the achievement of
legitimate purposes that the classification is arbitrary or obsolete.
Respondent can point to no scientific studies which was presented to the
Legislature regarding the efficacy of marijuana for medicinal purposes.
Additionally, the record in this case does not point to any scientific
studies, since the Legislature's decision to place marijuana in Schedule I,
indicating marijuana's efficacy as a medical treatment. The record,
however, does reference scientifically relevant evidence that therapies
developed over the last fifteen years have proven to be safer and more
effective in treating the side effects of chemotherapy than leaf marijuana
without the risks attributable to marijuana.
Because substantial evidence is available to support the Legislature's
action, we decline to interfere with the broad judicially recognized
prerogative of the Legislature particularly where the challenged
legislation involves a myriad of complicated medical, physiological, and
moral issues and substantial evidence is available to support the
Legislature's action. The debate over the proper classification of
marijuana belongs in the political arena.
Finally, we conclude that art. I, sec. 32, frequent recurrence to
fundamental principles clause, read in conjunction with art. XX, sec. 2,
does not create a right to use marijuana for medical treatment free from
the lawful exercise of government police power.
In order to prevail, the Respondent had the burden to show that the
Legislature's placement of marijuana in schedule I was unconstitutional
beyond a reasonable doubt. See Smith, 93 Wn.2d at 329. That burden has
not been met in this case. Thus, we reverse the Superior Court's decision
and conclude that RCW 69.50.204(c)(14) does not violate art. I, sec.sec.
12, and 32 of the Washington Constitution.
1 In 1994, Mr. Seeley's physician, Dr. Ernest Conrad, certified that Mr.
Seeley qualifies to participate in the research program. The board of
pharmacy did not allow him to be a part of the program because at the time
no funding existed.
2 The Controlled Substances Research Act was not amended in 1996. A bill
(SB 6744) was introduced that would have expanded the scope of research
permitted under the Legislature's 1979 enactment of the Research Act;
however, that bill died in committee. The appropriation of money to the
program does not change the substantive law. See Flanders v. Morris, 88
Wn.2d 183, 558 P.2d 769 (1977).
3 The drug known as Marinol is dronabinol (synthetic) in sesame oil and
encapsulated in a soft gelatin capsule in a United States Food and Drug
Administration approved drug product. RCW 69.50.206(f)(1). Marinol
(dronabinol) is on Schedule II under federal law as well. 21 C.F.R.
1308.12(f)(1) (1996).
4RCW 69.50.201 provides in relevant part:
(a) The state board of pharmacy shall enforce this chapter and may add
substances to or delete or reschedule all substances {enumerated} . . . .
{i}n making a determination regarding a substance, the board shall consider
the following:
( i) the actual or relative potential for abuse;
( ii) the scientific evidence of its pharmacological effect, if
known;
(iii) the state of current scientific knowledge regarding the
substance;
( iv) the history and current pattern of abuse;
( v) the scope, duration and significance of abuse;
( vi) the risk to the public health;
(vii) the potential of the substance to produce psychic of
physiological dependence liability; and
(viii) whether the substance is an immediate precursor of a
controlled substance.
5Under the parallel federal administration process, the Drug Enforcement
Administration (DEA) performs similar functions.
6 Washington modeled its privileges and immunities clause after Oregon's
privileges and immunities clause, art. I, 20, which provides: "No law
shall be passed granting to any citizen or class of citizens privileges, or
immunities, which, upon the same terms, shall not equally belong to all
citizens." The Oregon Supreme Court in State v. Clark, 291 Or. 231, 630
P.2d 810, cert. denied, 454 U.S. 1084 (1981), analyzed the privileges and
immunities clause by asking four questions: was the challenged state action
properly performed under lawful authority; does the action implicate a
"privilege" or "immunity"; does the action allegedly discriminate against
an individual or a class; and if so, is the discrimination permissible?
See also David Schuman, The Right to "Equal Privileges and Immunities": A
State's Version of "Equal Protection," 13 Vt. L. Rev. 221, 229 (1988). An
"equal privileges and immunities" clause appears in the constitutions of
fifteen states. Schuman, supra at 223. Oregon is the only state which has
given an independent analysis under its state privileges and immunities
clause. Id. at 225-26.
7 The majority in State v.Smith, 117 Wn.2d 263, 281, 814 P.2d 652 (1991),
found that art. I, 12 of the Washington Constitution and the Equal
Protection Clause of the Federal Constitution were substantially similar
and declined to interpret art. I, 12 independently of the Fourteenth
Amendment. Justice Utter concurred in the result, finding, however, that a
separate analysis was warranted under the state constitution after an
analysis of the factors in Gunwall. Id. at 284-87. He proceeded to adopt
the analysis of the Oregon Supreme Court in Clark. Id. at 287-291.
8 The Supreme Court in Vacco v. Quill, No. 95-1858, WL 348037 (U.S. 1997),
found that New York's law prohibiting physicians assisted suicide was
rationally related to legitimate state objectives and, thus, did not
violate equal protection.
9 Like its state counterpart, a substance will be classified in Schedule I
under the federal scheme if the substance has (1) a high potential for
abuse, (2) no currently accepted medical use in treatment in the United
States, and (3)no accepted safety for use in treatment under medical
supervision. 21 U.S.C. 812(b)(1) (1981).
10The DEA's final administrative order set forth criteria for evaluating the
validity of scientific research and evaluated the scientific evidence
presented by both side against these criteria. Certain scientific
practices have been generally accepted by the scientific community which
are designed to increase the validity of experimental studies. Studies or
research projects which do not follow these accepted scientific practices
have very limited, if any, credibility. A review of such studies must
first examine the degree to which researchers control, or hold constant,
the variables which could affect the results, accept the variable being
studied. The second factor is the placebo effect, which is the tendency of
research subjects to act and respond in a manner they believe is expected
of them. To eliminate this factor, research subjects are usually
"blinded," or not informed of what drugs they are receiving. Results of non-
blinded studies are questionable since they could be attributable, in large
part, to psychological reactions rather than any real affects from the
experimental drug. The next factor which must be minimized or eliminated
for a research study to be valid is the exception of the researcher.
In addition to the factors related to the design and execution of a
research study, there are two other factors which must be reviewed in
evaluation of a research study. Research results are always considered
tentative or preliminary until they have been replicated or confirmed by
another researcher. The research study must be reported in sufficient
detail to permit others to repeat it. Finally, publication of a study in a
scientific journal, especially a journal which subjects an article to
review prior to publication, adds validity to a study. Journal
publications subject a study to review and scrutiny by the scientific
community and open the door to replication of the studies. Unpublished
studies are inherently suspect. 54 Fed. Reg. 53767-78 (1989).
11 The Controlled Therapeutic Research Act placed marijuana in schedule II
only for purposes of the research program.
12 See United States v. Burton, 894 F.2d 188 (6th Cir.), cert denied, 498
U.S. 857 (1990); National Organization For the Reform of Marijuana Laws v.
Bell, 488 F. Supp. 123 (D.C. Cir. 1980); United States v. Astling, 733 F.2d
1446 (11th Cir. 1984); United States v. Fogarty, 692 F.2d 542 (8th Cir.
1982), cert. denied, 460 U.S.1040 (1983); United States v. Gramlich, 551
F.2d 1359 (5th Cir.), cert. denied, 434 U.S. 866 (1977); United States v.
Spann, 515 F.2d 579 (10th Cir. 1975); United States v. Kiffer, 477 F.2d 349
(2d Cir.), cert. denied, 414 U.S. 831 (1973); United States v. Rodriquez-
Camacho, 468 F.2d 1220 (9th Cir. 1972), cert. denied, 410 U.S. 985 (1973);
State v. McManus, 718 S.W.2d 130 (Mo. 1986); State v. Price, 495 So. 2d 389
(La. App. 1986), writ denied, 499 So. 2d 84 (La. 1987); State v. Olsen, 127
Wis. 2d 412, 380 N.W.2d 375 (Wis. 1985), review denied, 128 Wis. 2d 566
(1986); State v. Hanson, 364 N.W.2d 786 (Minn. 1985); State v. Stallman,
673 S.W.2d 857 (Mo. App. 1984); State v. Kelly, 106 Idaho 268, 678 P.2d 60,
cert. denied, 469 U.S. 918 (1984); State v. Ennis, 334 N.W.2d 827 (N.D.),
cert. denied, 464 U.S.992 (1983); Isbell v. State, 428 So. 2d 215 (Ala.
Crim. App. 1983); People v. Schmidt, 86 Mich. App. 574, 272 N.W.2d 732
(1978).
13 Dr. Brookoff explains that drugs used in chemotherapy cause nausea by
stimulating an area of the brain called the chemoreceptor trigger zone. He
states that the most successful group of anti-nausea drugs have been the
recently introduced medications which block serotonin receptors in the
chemoreceptor trigger zone.
14 This report is published in 3 Proceedings of the American Society of
Clinical Oncology, 91 (1984).
15 See Clerk's Papers (CP) at 492-493 (Sharon Sutton et. al., Possible Risk
of Invasive Pulmonary Aspergilliosis With Marijuana Use During Chemotherapy
For Small Cell Lung Cancer, 20 Drug Intelligence and Clinical Pharmacy
(Apr. 1986)).
16 Dr. Lapey included articles to support her opinions concerning the
effects of marijuana smoking on the pulmonary system. See CP 483-491
(Duane L. Sherrill et al., Respiratory Effects of Non-Tobacco Cigarettes: A
Longitudinal Study in General Population, 20 International Journal of
Epidemiology, 132-137 (1991); Suzanne E. G. Fligiel et al., Marijuana
Exposure and Pulmonary Alterations in Primates, 40 Pharmacology,
Biochemistry and Behavior, at 637-642 (1991))
17 Dr. Brookoff stated that he, along with other physicians, participated in
treatment trials using inhaled marijuana in the late seventies and early
eighties because, at the time, there was no better alternative.
18 Dr. Brookoff's opinions were reiterated by Kelly Martin, an oncology
pharmacist specialist at St. Joseph Medical Center in Tacoma.
19 Other federal courts have considered and rejected the argument that
marijuana's classification is irrational in relation to other substances.
United States v. Greene, 892 F.2d 453 (6th Cir. 1989), cert. denied, 495
U.S. 935 (1990); United States v. Fry, 787 F.2d 903 (4th Cir. 1985), cert.
denied, 479 U.S. 861 (1986); United States v. Maiden, 355 F. Supp. 743
(D.C. Conn. 1973); United States v. Fogarty, 692 F.2d 542 (8th Cir. 1982),
cert. denied, 460 U.S. 1040 (1983); United States v. Middleton, 690 F.2d
820, 823 (11th Cir. 1982), cert. denied, 460 U.S. 1051 (1983); United
States v. Kiffer, 477 F.2d 349 (2d Cir.), cert. denied, 414 U.S. 831
(1973).
20 The American Civil Liberties Union, in an amicus brief before this Court,
argues that marijuana's classification violates due process. The parties,
however, have not raised this issue in their briefs and the issue was not
considered by the trial court. This Court has recognized that it need not
address issues raised solely by an amicus or issues not raised at the trial
court unless it is necessary to reach a proper decision. See Harris v. The
Dep't of Labor & Indus., 120 Wn.2d 461, 469-70, 843 P.2d 1056 (1993). In
this case, an analysis under the due process clause will not change the
result. Under both an equal protection and a due process challenge the
analysis and the result are the same. See Bell, 488 F. Supp. at 134 n.29
(citing Buckley v. Valeo, 424 U.S. 1, 93, 96 S. Ct. 612, 46 L. Ed. 2d 659
(1976)) (the due process clause of the Fifth Amendment requires that
legislation satisfy the same standards of equal protection of the law that
are guaranteed by the Fourteenth Amendment). Courts which have heard due
process challenges have applied a rational basis test and have repeatedly
found that a person does not have a due process right to access an
unapproved medicine free from government control and have upheld the
rationality of marijuana's classification. See Carnohan v. United States,
616 F.2d 1120 (9th Cir. 1980) (constitutional right of privacy and personal
liberty do not give an individual the right to obtain medicine free from
the lawful exercise of government police power); People v. Privitera, 23
Cal. 3d 697, 591 P.2d 919, 925-26, 153 Cal. Rptr. 431, 5 A.L.R. 4th 178,
(1979) (due process right to privacy is not violated where statute
proscribing the distribution of a drug to be used in the alleviation or
cure of cancer bore a rational relationship to the achievement of a
legitimate state interest in the health and safety of its citizens); United
States v. Rutherford 442 U.S. 544, 547, 99 S. Ct. 2470, 61 L. Ed. 2d 68
(1979) (due process right to privacy is not violated because a patient's
selection of a particular treatment is within the area of governmental
interest in protecting public health); see also Bell, 488 F. Supp at 134
(marijuana's classification withstood due process challenge); Fry, 787 F.2d
903 (marijuana's classification did not violate due process); State v.
Dickamore, 22 Wn. App. 851, 854-55, 595 P.2d 681 (1979) (marijuana's
classification did not violate due process). Additionally, a case relied
upon heavily by amicus, Compassion in Dying v. Washington, 79 F.3d 790 (9th
Cir. 1996), which held that a terminally ill individual has a fundamental
right to hasten one's death through physician assisted suicide, was
recently overruled by the United States Supreme Court. Washington v.
Glucksberg, No. 96-110, WL 348094 (U.S. 1997). In overruling the Ninth
Circuit's decision, the Court emphasized that it has "`always been
reluctant to expand the concept of substantive due process'" and that it
will do so only when necessary to protect those "fundamental rights and
liberties which are, objectively, `deeply rooted in this Nation's history
and tradition' . . . such that `neither liberty nor justice would exist if
they were sacrificed.'" Id. at 22 (citations omitted); see also San
Antonio Indep. Sch. Dist. v. Rodriquez, 411 U.S. 1, 30, 93 S. Ct. 1278, 36
L. Ed. 2d 16 (1973) (courts must look to the Constitution, not the
"importance" of the asserted right, when deciding whether an asserted right
is "fundamental"). In the face of this recent Supreme Court decision,
finding that a terminally ill person does not have a fundamental right to
physician assisted suicide, it appears that a terminally ill patient would
not then have a constitutionally protected right to receive a particular
medical treatment over the rational objections of the state.
21 Ill. Const. art. II 23; Mass. Const. pt. 1, art. 18; N.H. Const. pt. 1,
art. 38; N.C. Const. art. I, 35; Ohio Const. art. VIII, 18 (repealed
1851); Va. Const. art. I, 15; Vt. Const. ch. I, art. 18; W Va. Const art.
III, 20; Wis. Const. art. 1, 22. In 1889 South Dakota adopted a
similar provision. S.D. Const. art. VI, 27. Since 1889, Arizona and Utah
have adopted provisions almost identical to Washington's fundamental
principles provision. Ariz. Const. art. 2, 1; Utah Const. art. 1, 27.
22 Massachusetts' and New Hampshire's fundamental principles provisions both
call for "a frequent recurrence to the fundamental principles of the
constitution." Mass. Const. pt. 1, art. 18; N.H. Const. pt. 1, art. 38.