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
Seeley v. State
Majority by Madsen, J.
Dissent by Sanders, J.
No. 63534-0
Sanders, J. (dissenting)
"When our rulers worry about our health, we should worry about
our liberty."{1}
The trial court, and the majority here, analyze Mr. Seeley's claim
under the privileges and immunities clause of article I, section 12, of the
Washington Constitution2 as well as the equal protection clause of the
Fourteenth Amendment to the United States Constitution.3 Notwithstanding,
I prefer the due process clause of the Fourteenth Amendment, as argued by
amicus American Civil Liberties Union of Washington Foundation because the
problem is how the government treats Mr. Seeley, not that Mr. Seeley is
treated differently from others.4 Equalizing injustice does not cure it.
I dissent.
This dissent relies primarily on recent Supreme Court precedent in two
abortion cases, Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147
(1973) and Planned Parenthood v. Casey, 505 U.S. 833, 851, 112 S. Ct. 2791,
120 L. Ed. 2d 674 (1992), wherein the Supreme Court majority credited the
state's interest to preserve the life of the fetus as "important" but
nevertheless insufficient to prohibit the practice when measured against
the liberty interests of the mother. The majority cannot distinguish these
cases. If the state cannot prohibit abortions consistent with due process,
it can hardly constitutionally prohibit drug use as its interest to do so
is arguably much less important. I further rely on Ravin v. State, 537
P.2d 494 (Alaska 1975) which construes a comparable provision in the Alaska
constitution to immunize persons who smoke marijuana in the privacy of
their home from criminal prosecutions, as well as Washington v. Glucksberg,
No. 96-110, 1997 WL 348094 and 355983 (U.S. June 26, 1997) which rejects
the claim that due process protects the asserted right of physician
assisted suicide however still provides much comfort to Mr. Seeley, who
claims due process protection against "arbitrary impositions and
purposeless restraints."5
While the majority identifies Mr. Seeley as presenting his case pro se
this dissent notes for the record Mr. Seeley is a most able attorney as
well. On this occasion he comes to court on his own behalf to argue a
matter of a very personal nature directly pertaining to physical pain which
only he can experience. By contrast considerations of public need and
necessity are at most lawyer-like abstractions. Refusing palliative relief
to a dying man may please the politicians yet does great damage to Seeley's
liberty and nothing for his health.
As to Mr. Seeley's claim that inhalation of leaf form marijuana
subsequent to chemotherapy relieves symptoms of nausea, the State admitted
during oral argument it "cannot dispute Mr. Seeley's beliefs about
marijuana and how it affects him . . . ." Oral Argument Tape (Sept. 25,
1996). Seeley's medical doctor filed an affidavit attesting that in his
medical judgment Mr. Seeley would benefit from the use of marijuana.6
But the State purports to justify this total prohibition of marijuana
by taking a "larger focus." It asserts absolute criminal prohibition, even
as applied to Mr. Seeley, promotes legitimate governmental objectives
associated with discouraging drug abuse and otherwise protecting the
citizenry from itself by curtailing what it alleges to be the unknown
consequences associated with the inhalation of marijuana. But these
reasons even if valid have no particular application to Seeley who is
terminally ill, admittedly finds relief in smoking marijuana, and seeks to
follow the advice of his own physician who attests marijuana is medically
advisable. From the perspective of one writhing in nausea on the tiled
floor of an oncological recovery room, the State's justifications to
withhold the blessings of relief are more sophomoric than substantive.7
The text of the Fourteenth Amendment's due process clause mandates no
state shall "deprive any person of life, liberty, or property, without due
process of law." The clause views the matter from the individual's
perspective, not the State's, as it poses the rule in terms of "any person"
who might suffer the deprivation.8 Its remedy is simple, and absolute:
prohibit the deprivation absent that process which is due.
That the process due extends beyond matters of mere procedure is
thoroughly settled. Justice Brandeis explained 70 years ago, "{d}espite
arguments to the contrary which had seemed to me persuasive, it is settled
that the due process clause of the Fourteenth Amendment applies to matters
of substantive law as well as to matters of procedure. Thus all
fundamental rights comprised within the term liberty are protected by the
federal Constitution from invasion by the states." Whitney v. California,
274 U.S. 357, 373, 47 S. Ct. 641, 647, 71 L. Ed. 1095 (1927) (Brandeis, J.,
concurring). See also Planned Parenthood v. Casey, 505 U.S. 833, 846, 851,
112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992) (while the clause appears to
address procedure alone, the liberty protections referred to in the clause
include a substantive component "`barring certain government actions
regardless of the fairness of the procedures used to implement them'")
(quoting Daniels v. Williams, 474 U.S. 327, 331, 106 S. Ct. 662, 88 L. Ed.
2d 662 (1986)).
It may also be reasonably stated, without fear of contradiction, that
over the last century the clause has regained much of its vigor as a
substantive limitation on state power. An early test for judicial
implementation of the clause is summarized in Lawton v. Steele, 152 U.S.
133, 137, 14 S. Ct. 499, 501, 38 L. Ed. 385 (1894). There the Supreme
Court noted that a legislative "determination as to what is a proper
exercise of its police powers is not final or conclusive, but is subject to
the supervision of the courts" (id. at 137) and emphasized the need to
protect against governmental acts "involving an unnecessary invasion of { }
rights" and infringement upon individual acts which are "harmless in
themselves, and which might be carried on without detriment to the public
interests." Id. at 138.
To justify the state in . . . interposing its authority in behalf
of the public, it must appear First, that the interests of the
public . . . require such interference; and, second, that the
means are reasonably necessary for the accomplishment of the
purpose, and not unduly oppressive upon individuals.
Id. at 137.
If the challenged governmental act fails any aspect of the test it is
an invalid exercise of the police power and an unconstitutional "public
encroachment upon private interests." Goldblatt v. Town of Hempstead, 369
U.S. 590, 594, 82 S. Ct. 987, 8 L. Ed. 2d 130 (1962) ("The classic
statement of the rule in Lawton v. Steele{ } is still valid today . . .
.").
The Washington Supreme Court has repeatedly followed Lawton. See
State v. Brown, 37 Wash. 97, 101, 79 P. 635 (1905) (following Lawton this
court struck down a state law requiring dental offices to be owned by
dentists on the ground such law was not necessary to further any valid
state objective), overruled in part by State v. Boren, 36 Wn.2d 522, 219
P.2d 566, (1950); City of Seattle v. Proctor, 183 Wash. 293, 298, 48 P.2d
238 (1935) ("in order to sustain legislative interference with the business
of the citizen, the court must be able to see that the act tends in some
degree to promote the public health, morals, safety, or welfare. In every
case the means adopted must be reasonably necessary to accomplish that
purpose, and should not be unduly oppressive upon the citizen. The
determination of the Legislature as to these matters is not conclusive, but
is subject to the supervision of the courts, and, if the above
prerequisites are wanting, a law imposing unreasonable restrictions on a
lawful occupation will be held void."); Cougar Business Owners Ass'n v.
State, 97 Wn.2d 466, 477, 647 P.2d 481 (1982) ("The classic statement of
the rule in Lawton v. Steele{ }, is still valid today . . . ."), cert.
denied, 459 U.S. 971, 103 S. Ct. 301, 74 L. Ed. 2d 283 (1982); Orion Corp.
v. State, 109 Wn.2d 621, 646-47, 747 P.2d 1062 (1987) ("Under the classic,
3-pronged, substantive due process test of reasonableness, a police power
action must be reasonably necessary to serve a legitimate state
interest."), cert. denied, 486 U.S. 1022, 108 S. Ct. 1996, 100 L. Ed. 2d
227 (1988); Sintra, Inc. v. City of Seattle, 119 Wn.2d 1, 829 P.2d 765
($219,000 fee levied against an individual landowner violates substantive
due process), cert. denied, 506 U.S. 1028, 113 S. Ct. 676, 121 L. Ed. 2d
598 (1992); Guimont v. Clarke, 121 Wn.2d 586, 609, 854 P.2d 1 (1993) (law
requiring landowner to pay $7,500 in relocation assistance for each tenant
violates substantive due process under Lawton test), cert. denied, 510 U.S.
1176, 114 S. Ct. 1216, 127 L. Ed. 2d 563 (1994); Rivett v. City of Tacoma,
123 Wn.2d 573, 870 P.2d 299 (1994) (Tacoma ordinance requiring
indemnification for sidewalk injuries from abutting landowners violates
substantive due process); Robinson v. City of Seattle, 119 Wn.2d 34, 830
P.2d 318 (tenant relocation assistance payments unduly oppressed property
owner under Lawton test), cert. denied, 506 U.S. 1028, 113 S. Ct. 676, 121
L. Ed. 2d 598 (1992).
Lawton is particularly applicable here as Seeley asserts his use of
medicinal marijuana to treat the symptoms of chemotherapy greatly benefits
him while at the same time is "harmless in {itself}" and "might be carried
on without detriment to the public interests." Lawton, 152 U.S. at 138.
Although in this jurisdiction many applications of the Lawton rule pertain
to concerns associated with the ownership and use of real property, we
should recall the classical formulation of such matters provides that a
man's first and most fundamental property interest is in his person (James
Madison, Essay on Property for the National Gazette (Mar. 27, 1792), in 14
The Papers of James Madison 266-68 (Robert A. Rutland & Thomas A. Mason et
al. eds., 1983)) (one's property interest extends not only to one's "land,
or merchandise, or money" but also to "the safety and liberty of his
person. . . ."). And efforts to dichotomize interests of life, liberty,
and property lack historical justification. See Sinaloa Lake Owners Ass'n
v. City of Simi Valley, 882 F.2d 1398, 1409 n.11 (9th Cir. 1989) ("Freedoms
granted by the bill of rights were cut from a single constitutional cloth
and {were} never dichotomized into personal and property.") (quoting Norman
Karlin, Back to the Future: From Nollan to Lochner, 17 Sw. U. L. Rev. 627,
637-38 (1988)).
Although Planned Parenthood v. Casey, 505 U.S. 833, 876, 112 S. Ct.
2791, 120 L. Ed. 2d 674 (1992) did not cite Lawton, its analysis proceeds
on the same track: do the interests of the public require such
interference? I find the analysis in Casey as well as its antecedent, Roe
v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973) wholly
dispositive in Mr. Seeley's favor.
Let us recall both Roe and Casey, like the case before us, focus upon
an individual's claim that the State lacks sufficient justification to
dictate to a woman matters associated with her bodily integrity, abortion
specifically. A majority in Roe recognized that the State "may properly
assert important interests in safeguarding health, in maintaining medical
standards, and in protecting potential life." Roe, 410 U.S. at 154.
Similarly, a majority in Casey recognized these same legitimate interests,
yet held "legitimate interests are not enough." Casey, 505 U.S. at 932
(Blackmun, J., concurring).
As a general proposition I posit if the state's interest to regulate
abortion in the context of Casey and Roe is insufficient, the State's
asserted interest to criminalize Mr. Seeley's ingestion of marijuana to
ease the effects of nausea is even less so.
Casey begins with favorable reference to the second Justice Harlan's
dissent in Poe v. Ullman, 367 U.S. 497, 543, 81 S. Ct. 1752, 6 L. Ed. 2d
989 (1961) (Harlan, J., dissenting), which discusses the liberty referenced
in the due process clause: "This `liberty' is not a series of isolated
points pricked out in terms of the taking of property, the freedom of
speech, press, and religion; the right to keep and bear arms; the freedom
from unreasonable searches and seizures; and so on. It is a rational
continuum which, broadly speaking, includes a freedom from all substantial
arbitrary impositions and purposeless restraints."9 Thus the majority in
Casey rejected the "rational relation" test upon which our majority hangs
its hat. Majority at 35 n.20. Citing numerous examples, Casey focused
directly on matters "involving the most intimate and personal choices . . .
central to personal dignity and autonomy" which are "central to the liberty
protected by the Fourteenth Amendment," 505 U.S. at 851, and then states:
At the heart of liberty is the right to define one's own concept
of existence, of meaning, of the universe, and of the mystery of
human life. Beliefs about these matters could not define the
attributes of personhood were they formed under compulsion of the
State.
Casey, 505 U.S. at 851.
Apparently the Supreme Court opines personal choices essential to
personal dignity and autonomy, even when those choices are at odds with
legitimate state interests, are constitutionally privileged. According to
Casey, these considerations have application to abortion because natural
childbirth involves "pain that only she must bear" as well as "suffering .
. . intimate and personal . . . ." Casey, 505 U.S. at 852. The term
"personal" is repeated throughout the course of the opinion, which also
characterizes Roe as an example of a rule "of personal autonomy and bodily
integrity, with doctrinal affinity to cases recognizing limits on
governmental power to mandate medical treatment or to bar its rejection."
Casey, 505 U.S. at 857. Turning aside a challenge to overrule Roe, Casey
"decided that any regulation touching upon the abortion decision must
survive strict scrutiny, to be sustained only if drawn in narrow terms to
further a compelling state interest." Casey, 505 U.S. at 871.
Were we to restrict Roe and Casey to a specific narrow holding on
abortion we would rob these decisions of their claimed basis in the
fundamental principles inherent in substantive due process. Scholars
(sometimes critically) argue the statements contained in Roe and Casey
"apply to nonrights such as a person's desire to consume heroin, or not to
wear a motorcycle helmet, as persuasively as they do to procreational
interests." David Crump, How Do the Courts Really Discover Unenumerated
Fundamental Rights? Cataloguing the Methods of Judicial Alchemy, 19 Harv.
J. L. & Pub. Pol. 795, 894 n.446 (1996).
I would apply the aforementioned analysis set forth in Lawton, Roe,
and Casey to the facts at hand in the following manner.
Public v. Private Interests
First, Lawton asks whether the public interest justifies such
interference with the individual. Roe and Casey clarify that the more
personal the individual interest, the more that interest concerns bodily
autonomy, the more that interest centers on purely personal concerns such
as the avoidance of pain through a medical procedure, the less likely the
governmental restraint will be upheld. The rationale behind Glucksberg is
much the same. An absolute criminal bar to the use of marijuana includes
specifically personal concerns of bodily autonomy coupled with the personal
desire to mitigate if not alleviate needless physical suffering. These are
grave interests which favor the individual.
On the other hand, the claimed interests of the State are
insubstantial. There is little relation between the ingestion of marijuana
by Mr. Seeley and the specter of drug abuse by others, other than the
desire to make a political statement that marijuana in leaf form has no
legitimate use under any conceivable circumstance.10 But the government's
argument that the ingestion of marijuana may have uncertain medical
consequences seems unpersuasive when, at the same time, the government
concedes that it cannot dispute Mr. Seeley's testimony about how its
ingestion affects him, the tragic medical fact that he is terminally ill,
nor the fact that Seeley's doctor states on the record it is in Seeley's
interest to use marijuana for medical reasons.
To emphasize this is the necessary constitutional result I would also
find Ravin v. State, 537 P.2d 494 (Alaska 1975) persuasive. Ravin
invalidated a similar Alaska statute insofar as it prohibited one from
possessing and smoking marijuana in his own home. Ravin identified
"unwanted governmental intrusions into one's privacy," 537 P.2d at 499, as
well as the "right of personal autonomy in relation to choices affecting an
individual's personal life." Id. at 500. Considering the recreational use
of marijuana in one's home, a less compelling circumstance than what we
have here, the court emphasized "{t}he experiences generated by use of
marijuana are mental in nature . . . and thus among the most personal and
private experiences possible. So long as conduct does not produce
detrimental results, the right of privacy protects the individual's conduct
designed to affect these inner areas of the personality. . . . and so the
statute infringed on the right of personal autonomy." Ravin, 537 P.2d at
501. The Alaska court also reflected upon the opinion of Justice T. G.
Kavanagh in People v. Sinclair, 387 Mich. 91, 194 N.W.2d 878, 896 (1972)
which recited "`Big brother' cannot, in the name of Public health, dictate
to anyone what he can eat or drink or smoke in the Privacy of his own
home." See also Suenram v. Society Valley Hosp., 155 N.J. Super. 593, 383
A.2d 143 (1977) (recognizing constitutional privacy right of informed
cancer patient to take laetrile).
Necessary Means
Even assuming the interests of the public are sufficient to require
such interference, Lawton further requires the means be reasonably
necessary to accomplish the purpose. Lawton, 152 U.S. at 138. But the
means employed here, total and absolute prohibition, are anything but that.
Under our statute marijuana in leaf form is not even available through
medical prescription, unlike PCP angel dust, cocaine, opium, and morphine.11
Our statute is an absolute prohibition against physician prescription, no
matter what the learned medical judgment of our state-licensed
practitioner. It forbids the physician to practice his healing arts and
denies the patient benefit of professional care.12 Such is the situation
notwithstanding the opinion widely held by physicians that medicinal
marijuana is safe and efficacious and should be used for a variety of
ailments. See Harvard Professor Lester Grinspoon, M.D. and James B.
Bakalar, Marihuana, the Forbidden Medicine (1993).
A recent study conducted amongst the members of the Washington State
Medical Association found 80 percent of its doctors favored controlled
availability of marijuana for medical purposes. CP at 561 (In the Matter
of Marijuana Rescheduling Petition {Drug Enforcement Administration}
Opinion and Recommended Ruling, Findings of Fact, Conclusions of Law and
Decision of Administrative Law Judge (Sept. 6, 1988) (Young Opinion)).
Another recent study found that 44 percent of oncologists surveyed had
already recommended the illegal use of marijuana to at least one patient
and half would prescribe it to other patients if doing so was legal. R.
Doblin & M. A. R. Kleiman, Marijuana as Anti-emetic Medicine: A Survey of
Oncologists' Attitudes and Experiences, Journal of Clinical Oncology 9
(1991) 1275-1280 n.292 (cited in Grinspoon & Bakalar, supra at 39).
Individuals anecdotally praise the successful use of medical marijuana for
a variety of ailments. California and Arizona voters recently approved
physician prescription of marijuana in their states. Derrick Augustus
Carter, Knight in the Duel with Death: Physician Assisted Suicide and the
Medical Necessity Defense, 41 Vill. L. Rev. 663, 723 (1996). The New
England Journal of Medicine, the premier authority in this country on
medical developments, editorialized in January 1997 against prohibition.
Dr. Jerome Kassirer, editor, 336 New England Journal of Medicine 366
(1997). After cataloging the medical benefits, the journal's editor opined
government authorities are "out of step with the public" and the medical
community and urged the government "to rescind their prohibition of the
medical use of marijuana for seriously ill patients and allow physicians to
decide which patients to treat." Id. The editorial concluded that
depriving seriously ill patients medical marijuana is "inhumane." Id.
A well-known case documents how the government has approached the
issue. CP 533-603 (Young Opinion, supra at 533). Pursuant to federal law
the Drug Enforcement Agency must reclassify any schedule I drug if a
petitioner can demonstrate an accepted medical use. In 1972 the National
Organization for the Reform of Marijuana Laws (NORML) filed such a
petition. Grinspoon & Bakalar, supra at 13. Three times the agency
refused to process the petition and three times the federal circuit court
ordered the agency to consider the petition on its merits. Fourteen years
later, in 1986, the DEA finally directed its administrative law judge to
hear the case. Judge Francis Young took evidence at various hearings for
two years and issued a 68-page opinion in 1988. Judge Young unambiguously
recommended making marijuana medically available and concluded:
The overwhelming preponderance of the evidence in this
record establishes that marijuana has a currently accepted
medical use in treatment in the United States for nausea and
vomiting resulting from chemotherapy treatments in some cancer
patients. To conclude otherwise, on this record, would be
unreasonable, arbitrary and capricious.
CP at 569; Young Opinion, supra at 34.
Notwithstanding Judge Young's thoroughly documented opinion, the head
of the Drug Enforcement Agency denied the petition for rescheduling,
relying upon "common sense" that there is no medical use of marijuana.
I recite these facts as they are pertinent to the second prong of the
Lawton test insofar as they all suggest availability of leaf marijuana by
prescription as a means by which the government could accomplish some of
its alleged objectives while making the substance available to those with a
particular medical need; although I hasten to add availability only through
prescription may not be sufficient to overcome objections raised under the
first prong of the test. Compare Ravin v. State, 537 P.2d 494 (Alaska
1975) (home marijuana use for recreational as well as medical use
protected).
Unduly Oppressive Upon Individuals
The third prong of Lawton requires the result not be unduly oppressive
upon individuals. I find our criminal prohibition on marijuana unduly
oppressive in every sense of the word. Our court has previously
invalidated state and local legislative acts on precisely this ground in
the context of rental housing relocation payments (Robinson v. City of
Seattle), demolition fees (Sintra v. City of Seattle), and trailer park
relocation fees (Guimont v. State). This prong of the rule, consistently
applied, would require no less in the case at bar. I doubt many
individuals would require Mr. Seeley to suffer extreme nausea in lieu of
the relief he could obtain from a marijuana cigarette. But it seems the
government is endowed with neither the compassion nor mercy possessed by
the ordinary citizen. However, insofar as the Fourteenth Amendment
prohibits the State from depriving anyone of their liberty absent due
process, it is the duty of the judicial branch of government to save and
protect "any person," not the least of whom is Ralph Seeley, from bearing
the unduly oppressive weight of government action upon his weakened
shoulders.
Reply to Majority's Due Process Analysis
The majority's discussion of the due process clause is confined to but
a single footnote. Majority at 35 n.20. Two propositions are there
tendered: (1) due process is satisfied if a total prohibition of marijuana
is "rationally related" to accomplishing a legitimate state interest and
(2) a number of cases from other jurisdictions have held that such a
prohibition is indeed "rational."
a. Rational Relationship Test Rejected
Apparently the majority opts for an extremely deferential standard
whereby the law is upheld if the court can even imagine any hypothetical
set of facts "presumed to exist" under which the Legislature might have
constitutionally enacted the law. See State's Brief in Response to Brief
of ACLU at 8. This test, however, has been inconsistently utilized by the
United States Supreme Court, wherein it was abandoned in Casey, questioned
in Glucksberg, obviously out of step with Lawton, and makes no sense in
this case.
It is true the United States Supreme Court has sometimes applied such
a two-tiered approach to due process claims. If it labels the liberty
interest at stake "fundamental" it opines the State cannot regulate same
absent a narrowly tailored compelling state interest. See Roe v. Wade, 410
U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). If, on the other hand,
the individual interest were found to be less than fundamental13 the state
action will be upheld unless there is no imaginable rational basis to
support it.14 Compare, e.g., Bowers v. Hardwick, 478 U.S. 186, 196, 106 S.
Ct. 2841, 92 L. Ed. 2d 140 (1986) (popular view that homosexuality is
immoral provides sufficient rational basis for anti-sodomy laws).
But in reality simply labeling the interest has proven dispositive
because strict scrutiny is virtually impossible to pass while rational
basis is virtually impossible to fail. Francis S. Chlapowski, The
Constitutional Protection of Informational Privacy, 71 B.U. L. Rev. 133,
145 (1991) ("{W}hen the question of whether a right is fundamental is
raised, the preliminary finding of a `fundamental' interest is usually
outcome-determinative."). See Russell W. Galloway, Jr., Basic Substantive
Due Process Analysis, 26 U.S.F. L. Rev. 625, 645 (1992) (rational basis "is
so minimal" that "{t}he outcome is a foregone conclusion. . . . The test
involves `minimal scrutiny in theory and virtually none in fact.'")
(citation omitted); see also Laurence H. Tribe, American Constitutional Law
343 (2d ed. 1988) (hereinafter Tribe, American Constitutional Law)
(referring to rational basis as imposing "relatively toothless limits" on
the state).
This two-tiered classification system of strict scrutiny and rational
basis has proven problematic and subject to criticism because it shoehorns
what in reality exists on a continuum into absolute but artificial
categories. Compare Casey, 505 U.S. at 851 (citing Poe, 367 U.S. at 543
which analyzes "liberty interests upon "a rational continuum which, broadly
speaking, includes a freedom from all substantive arbitrary impositions and
purposeless restraints."). While the 14th Amendment simply references
"liberty," the question posed by the majority is whether there is a
"fundamental interest" to smoke marijuana. I disagree with this
formulation because the constitution speaks of principles, not specifics.
Freedom from needless suffering; the right to individual autonomy; the
right to bodily integrity; the right to physician treatment and medical
assistance; and freedom from arbitrary, privacy-invading restraints are the
principles applicable here.
Better we should question the predicate which supposedly justifies
state intervention in the first place than shift the burden to the private
citizen to show why he should be free which is, or should be, the natural
state in a free society. Compare Youngberg v. Romeo, 457 U.S. 307, 321,
102 S. Ct. 2452, 73 L. Ed. 2d 28 (1982) ("Accordingly, whether respondent's
constitutional rights have been violated must be determined by balancing
his liberty interests against the relevant state interests."); Cruzan v.
Director, Missouri Dept. of Health, 497 U.S. 261, 278-79, 110 S. Ct. 2841,
111 L. Ed. 2d 224 (1990) (an individual's "liberty interests" must be
balanced against the state's interest in regulation); Foucha v. Louisiana,
504 U.S. 71, 79-80, 112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992) (balancing an
individual's liberty interest in remaining free from bodily restraint
against the state's punitive interest in restraining him); and Glucksberg,
1997 WL 348094, 355983 (U.S. June 26, 1997) (concurring opinions appear to
embrace balancing test and reject rational relation test). "The purpose of
the Constitution and Bill of Rights, unlike more recent models promoting a
welfare state, was to take government off the backs of people." Schneider
v. Smith, 390 U.S. 17, 25, 88 S. Ct. 682, 687, 19 L. Ed. 2d 799 (1968).15
Planned Parenthood v. Casey, 505 U.S. 833, 876, 112 S. Ct. 2791 (1992)
held the balancing approach was superior to the two-tiered approach because
the "liberty" protected by the Fourteenth Amendment must be viewed on a
continuum which balances the citizen's need for freedom of action against
the state's justification for intervention. Lawton is much the same since
under the first prong of Lawton the court must determine "the interests of
the public {that} . . . require such interference." Lawton, 152 U.S. at
137.
Properly viewed, under the rational continuum test, Seeley prevails
because his need is personal and great, whereas the state's interest to
prevent the conduct is small if not pretextual.
Even were we to adhere to the majority's two-tiered approach, I would
nevertheless reject the majority's claim that Seeley's interest to inhale
or ingest any substance to relieve his agony is in any degree less
fundamental than any other interest judicially recognized as such.16
Offensive, in the extreme, is the proposition that the government may
restrict ingestion of a substance found by a licensed physician to be
medically advisable to comfort a terminal patient. Such right is as
fundamental as any. Compare, e.g., Cruzan (fundamental right to refuse
life support by exercising personal control of medical treatment).
Washington v. Harold Glucksberg, No. 96-110, 1997 WL 348094 and 355983
(U.S. June 26, 1997) also supports this view. While Glucksberg unanimously
rejected a claimed constitutional right to physician assisted suicide
because of the overriding state interest to preserve human life, no single
opinion represented an unqualified majority. Justice O'Connor, and several
other justices comprising a majority of five, wrote separately to emphasize
their concurrence was conditioned upon the existence of laws insuring that
terminal patients may access pain relief. See Glucksberg, 1997 WL 355983
at *1 (O'Connor, J., concurring) ("{A} patient who is suffering from a
terminal illness and who is experiencing great pain has no legal barriers
to obtaining medication, from qualified physicians, to alleviate that
suffering, even to the point of causing unconsciousness and hastening
death."). Similarly, Justice Breyer, also concurring in result, wrote,
"Were the legal circumstances different for example, were state law to
prevent the provision of palliative care, including the administration of
drugs as needed to avoid pain at the end of life then the law's impact upon
serious and otherwise unavoidable physical pain . . . would be more
directly at issue. And as Justice O'Connor suggests, the Court might have
to revisit its conclusions in these cases." Id. at *11 (Breyer, J.,
concurring). Unlike the unsuccessful physicians in Glucksberg, Seeley is
incapacitated by nausea precisely because he seeks to save his own life.
Yet the State, and the majority of this court, would slap from his hand
exactly that which Seeley, his physician, and even the State acknowledge
will improve the quality of his life to the detriment of no one. Compare
Glucksberg, WL 355983 at *5 (Stevens, J., concurring) ("Avoiding
intolerable pain and the indignity of living one's final days incapacitated
and in agony is certainly `{a}t the heart of {} liberty . . . .'") (quoting
Casey, 505 U.S. at 851, 112 S. Ct. at 2807).
I wonder how many minutes of Seeley's agony the Legislature and/or the
majority of this court would endure before seeing the light. Words are
insufficient to convey the needless suffering which the merciless State has
imposed.
b. Errant Precedent
The majority cites six cases to support its claim that marijuana may
be constitutionally prohibited without deprivation of due process. Most
are distinguishable on their facts. None are controlling precedent for
this court in any event. One is from another state; one from our Court of
Appeals; one from the Supreme Court; four are from lower federal courts.
Inferior federal court precedent is not binding on this court. Home Ins.
Co. of New York v. Northern Pac. Ry. Co., 18 Wn.2d 798, 808, 140 P.2d 507,
147 A.L.R. 849 (1943). Nor are decisions from other states; certainly not
our Court of Appeals. The Supreme Court case does not speak to the
constitution.
Carnohan v. United States, 616 F.2d 1120 (9th Cir. 1980) concerned
laetrile, not marijuana, and was dismissed for failure to exhaust
administrative remedies. But see Suenram v. Society Valley Hosp., 155
N.J.Super. 593, 383 A.2d 143 (1977) (upholding constitutional due process
right of cancer patient to ingest laetrile.).
People v. Privitera, 23 Cal. 3d 697, 591 P.2d 919, 153 Cal. Rptr. 431,
5 A.L.R.4th 178, cert. denied, 444 U.S. 949, 100 S. Ct. 419, 62 L. Ed. 2d
318 (1979) also concerned laetrile and is nonbinding precedent from another
jurisdiction.
United States v. Rutherford, 442 U.S. 544, 99 S. Ct. 2470, 61 L. Ed.
2d 68 (1979) is binding United States Supreme Court precedent, however, was
decided solely on statutory, not constitutional, grounds.
NORML v. Bell, 488 F. Supp. 123 (D.C. Cir. 1980), a U.S. District
Court case, involved different issues raised in a challenge by recreational
marijuana smokers, not a terminal cancer patient. United States v. Fry,
787 F.2d 903 (4th Cir.), cert. denied, 479 U.S. 861, 107 S. Ct. 209, 93 L.
Ed. 2d 139 (1986) also involved issues distinctly different from those
raised by Seeley. State v. Dickamore, 22 Wn. App. 851, 592 P.2d 681 (1979)
is (1) an inferior Court of Appeals case not binding on the Supreme Court
and (2) factually distinct in that it involved only marijuana for
recreational use.
To the extent the majority finds support in these cases, I conclude
they are inconsistent with the constitutional guarantee at issue,
erroneous, and ignoble repetitions of error. Supreme Court cases cited in
this dissent control the result and favor Seeley. Ravin is also
persuasive.
Conclusion
For the reasons stated I would hold the law in question, which
absolutely prohibits the sale, use, and/or ingestion of marijuana, deprives
Mr. Seeley of his liberty absent that minimum process constitutionally due,
and would therefore invalidate the statute and affirm the trial court on
that basis. Accordingly, I dissent.
1 Joseph Sobran, The Wanderer 5 (June 26, 1997).
2 The Washington privileges and immunities clause 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.
Wash. Const. art. I, 12.
3 The federal equal protection clause provides:
No State shall . . . deny to any person within its jurisdiction the equal
protection of the laws.
U. S. Const. amend. 14, 1.
4 The ACLU brief asserts the Washington statute prohibiting access to
medical marijuana in leaf form violates the substantive due process clause
of the Fourteenth Amendment to the United States Constitution. Amicus
Brief of the American Civil Liberties Union of Washington Foundation (ACLU
Amicus Brief) at 9. This court has the authority to entertain the ACLU's
arguments. City of Tacoma v. Luvene, 118 Wn.2d 826, 832-33, 827 P.2d 1374
(1992) (deciding preemption issue briefed only by amicus); Harris v.
Department Labor & Indus., 120 Wn.2d 461, 467-68, 843 P.2d 1056 (1993) (the
appellate court has inherent authority to address issue raised only by
amicus if necessary to reach a proper decision). Here, the issue has been
fully briefed by both sides. See State of Washington's Answer to ACLU
Amicus Brief.
5 Poe v. Ullman, 367 U.S. 497, 543, 81 S. Ct. 1752, 1777, 6 L. Ed. 2d 989
(1961) (Harlan, J., dissenting) (quoting Hurtado v. California, 110 U.S.
516, 532, 4 S. Ct. 111, 119, 28 L. Ed. 232 (1884)).
6 Seeley's doctor, Dr. Ernest Conrad III, Director of Musculoskeletal
Oncology at the University of Washington, states on the record, "In short,
if I could prescribe marijuana for him {Seeley}, I would." Clerk's Papers
(CP) at 82.
7 The record is replete with uncontroverted evidence that Seeley and many
similarly situated cancer patients undergo unbearable pain and digestive
unrest as a result of chemotherapy and radiation treatments and that they
claim leaf marijuana is one of the only efficacious agents available to
ease their suffering.
8 Casey, 505 U.S. at 894 ("Legislation is measured for consistency with the
Constitution by its impact on those whose conduct it affects. . . . The
proper focus of constitutional inquiry is the group for whom the law is a
restriction, not the group for whom the law is irrelevant." (Citation
omitted.)).
9 Compare Glucksberg, 1997 WL 348094, *25-45 (Souter, J., concurring) where
Justice Souter exhaustively reviews the legal history of substantive due
process through the present day, concluding the Harlan dissent represents
the appropriate analysis.
10 Historically, marijuana has been used in a variety of ways. The original
Declaration of Independence (July 4, 1776) was written on hemp as was
Thomas Paine's Common Sense. Jack Herer, The Emperor Wears No Clothes 7
(1995). George Washington and Thomas Jefferson grew it, and Benjamin
Franklin used it in an early papermill. Marty Bergoffen & Roger Lee Clark,
Hemp as an Alternative to Wood Fiber in Oregon, 11 J. Envtl. L. & Litig.
119, 120 (1996).
Throughout the nineteenth century marijuana was used as an anticonvulsant,
as an analgesic and in the treatment of rheumatism, epilepsy and tetanus.
Lester Grinspoon, M.D., and James B. Bakalar, Marihuana, the Forbidden
Medicine 5-6 (1993) (included in part in CP at 92-119). Marijuana was
administered to Queen Victoria by her court physician. Id. at 4. In
nineteenth century America marijuana was listed in the United States
Dispensatory (1854), was generally available in drug stores, and was
characterized in an early medical study as "a drug that has a special value
in some morbid conditions and the intrinsic merit and safety of which
entitles it to a place once held in therapeutics." Dr. J. B. Mattison,
Cannabis indica as an Anodyne and Hypnotic, St. Louis Medical Surgical
Journal 61, 266 (1891), quoted in Grinspoon & Bakalar, supra at 6.
However, marijuana was repressed by the federal government in 1937 through
a stamp tax so burdensome both financially and procedurally that it
virtually eliminated any legal medicinal, industrial or recreational use of
marijuana. 26 U.S.C. 4741, repealed by Comprehensive Drug Abuse
Prevention and Control Act of 1970, tit. III, 1101(b)(3)(A), 84 Stat.
1292. The purpose of the tax was prohibition although it was effectuated
in the form of a revenue measure because of constitutional limits still
enforced against federal lawmaking power. Grinspoon & Bakalar, supra at 8.
The elimination of marijuana came from pressures exerted by newly created
"Federal drug control agencies, cotton and timber interests, and chemical
industries." Bergoffen & Clark, supra at 122 n.20. Marijuana was removed
from the United States Pharmacopoeia and National Formulary in 1941.
Shortly after the Marijuana Tax Act was held unconstitutional in 1969, in a
failed attempt to prosecute Dr. Timothy Leary for possession of untaxed
marijuana (Leary v. United States, 395 U.S. 6, 89 S. Ct. 1532, 23 L. Ed. 2d
57 (1969) (marijuana tax unconstitutional as violative of the Fifth
Amendment's guarantee against self-incrimination)), Congress passed the
Controlled Substances Act, placing marijuana in schedule I and directly
criminalizing any use of it. Washington followed suit in 1971 and adopted
an identical regime also placing marijuana in schedule I. Laws of 1971,
1st Ex. Sess., ch. 308 at 1794 (Uniform Controlled Substances Act).
11 Under Washington law, use of leaf marijuana is illegal for any purpose.
RCW 69.50.204(d)(13). Doctors may never prescribe it no matter how
efficacious it may be in a given case. In contrast, Washington law allows
doctors to prescribe cocaine, PCP angel dust, opium, and morphine.
RCW 69.50.206.
12 Compare Glucksberg, 1997 WL 348094 at *14 ("{P}hysician-assisted suicide
is fundamentally incompatible with the physician's role as healer."
(Citation omitted.); (Souter, J., concurring) at *38-40 (Physician's care
is within American tradition and is given "high value." Dying patient who
seeks help is subject to few state-imposed restraints.); Casey, 112 S. Ct.
at 2810, 2830 (upholding the affirmative due process right to obtain
medical intervention).
13 There is an intermediate standard not relevant here, used primarily in
the equal protection context. See, e.g., Griffin v. Eller, 130 Wn.2d 58,
65, 922 P.2d 788 (1996); State v. Heiskell, 129 Wn.2d 113, 123, 916 P.2d
366 (1996).
14 I must confess, even under this standard of virtual judicial abdication,
I can still find no rational basis for this statute.
15 Compare Columbia Broadcasting Sys., Inc. v. Democratic Nat'l Comm., 412
U.S. 94, 162, 93 S. Ct. 2080, 2109, 36 L. Ed. 2d 772 (1973) (Douglas, J.,
concurring) ("The struggle for liberty has been a struggle against
Government. The essential scheme of our Constitution and Bill of Rights
was to take Government off the backs of people.").
16 Such recognized "fundamental" liberty interests are catalogued in
Washington v. Harold Glucksberg, No. 96-110, 1997 WL 348094 (U.S. June 26,
1997) (Souter, J., concurring) at *31-32. Subjects include segregation in
education, interracial marriage, marital privacy and contraception,
abortion, "personal control of medical treatment" (citing Cruzan) and
physical confinement. Justice Souter criticizes what is our majority's
approach as "absolutist" rather than weighing application of competing
principles.