Own your ow legal marijuana business
Your guide to making money in the multi-billion dollar marijuana industry
Carl Olsen's Marijuana Archive
               2. Under any analysis or "level of scrutiny," the
          plaintiff should prevail.

     The "privileges and immunities" clause couldn't be more


       No law shall be passed granting to any citizen, class of
       citizens, or corporation other than municipal, privileges
       or immunities which upon the same terms shall not equally
       belong to all citizens, or corporations.

Wash. Const. art. 1 § 12.

     The plaintiff's situation regarding medicinal marijuana may be

phrased in several ways which invoke the clause:

The plaintiff is denied the privilege of ending his suffering by the

  use of a therapeutic drug while others are granted the privilege

  of ending their suffering with access to far more harmful and

  addictive drugs, such as morphine, cocaine, amphetamines,

  barbiturates and opium.  Additionally, patients who need THC and

  may absorb it effectively through their gastro-intestinal tract

  have the privilege of the relief of their suffering, while the

  plaintiff, whose GI tract is not functioning when he needs THC,

  is denied the privilege.

Other citizens are granted immunity from arrest for possession of

  therapeutic but potentially harmful drugs by virtue of

  prescriptions, while the plaintiff is denied that immunity.

     Whatever "level of scrutiny" the Court deems appropriate, the

plaintiff's right to be free of discrimination by his own government

is being violated, in that the plaintiff is being made to suffer

physically for reasons which serve no legitimate government purpose.


     As set forth in State v. Smith, supra, if government

discrimination or classification involves a "fundamental right," the

courts must apply "strict scrutiny," and uphold the classification

only if it is "necessary to accomplish a compelling state interest."

Id.  The Washington Supreme Court has found that a physician has a

fundamental right to freely practice medicine.  Bering v. Share, 106

Wn.2d 212, 721 P.2d 918 (1986).  Clearly, it is no stretch to state

the corollary -- that a patient has a fundamental right to the aid

of his physician to relieve suffering.  In any event, the court in

Bering held that the state has a "substantial interest in ensuring

its citizens unimpeded access to necessary medical care."  Id. at

225.  That decision dealt with access to abortions; it is difficult

for the plaintiff to see how that might be more "necessary" than

ending the suffering of chemotherapy-induced, uncontrolled nausea

and diarrhea.

     If the court finds that a fundamental right is involved and

applies strict scrutiny, the state must justify maintaining

marijuana in Schedule I as "necessary to accomplish a compelling

state interest."  Frankly, the plaintiff is at a loss to anticipate

what sort of argument the state might put forward, if the attorneys

involved intend to keep straight faces while addressing the Court.

     What is the "compelling state interest" in having the plaintiff

lying on the floor retching and defecating on himself when he could

be sleeping peacefully?  What "compelling state interest" justifies

forcing the plaintiff to endure 14-hour "highs" in an attempt to

relieve his suffering with synthetics?  What is the "compelling

state interest" to force the plaintiff to pay $5 per THC tablet,

many of which disappear down the toilet undissolved?

     Or is the "compelling state interest" the larger one of

controlling marijuana as a recreational drug?  If so, why is it not

"necessary" to place cocaine, opium, morphine, barbiturates, and

amphetamines also in Schedule I?  Note that the penalty for

manufacture or possession with intent to deliver a Schedule I or II

drug is exactly the same. RCW 69.50.401.  Clearly, the legislature

attaches no symbolic or exemplary difference between the two crimes.

Thus, any contention by the Attorney General that placing marijuana

in Schedule II and permitting its prescriptive, medicinal use will

"send a signal" that recreational use of the drug is condoned should

be given the merit it deserves -- none.

     In short, the classification of marijuana in Schedule I

violates a fundamental right of the plaintiff, and the state cannot

show a necessary reason for the classification that accomplishes a

compelling state interest.  Therefore, the plaintiff's motion for

declaratory relief should be granted.


     "Heightened" or "intermediate" scrutiny should apply even if

"strict scrutiny" does not, because the classification involves an

"important right," and because the plaintiff is in a class for which

he cannot be held accountable -- he did not choose to be a cancer

patient, or to have his physician place him on chemotherapy in an

attempt to save his life.  State v. Smith, supra.

     The test is that the law must be seen as "furthering a

substantial interest of the state."  As analyzed above, no state

interest, substantial or otherwise, is not equally well served by

placing marijuana in Schedule II.


     Absent strict or heightened scrutiny, the test is whether a

"rational relationship" exists between the challenged classification

and a legitimate state interest.  What is the "legitimate" state

interest in denying an end to the plaintiff's physical suffering?

     The classification must be "purely arbitrary" to overcome the

presumption of constitutionality.  State v. Smith, supra at 279.  In

fact, the classification is purely arbitrary.  As stated by Judge

Young after taking hundreds of hours of testimony, reviewing

thousands of pages of documents, and issuing a 68-page report:

       It would be unreasonable, arbitrary and capricious for the
       DEA to continue to stand between those sufferers and the
       benefits of this substance [marijuana] in light of the
       evidence in this record.

Judge Young's report, supra at 68 (emphasis added).

     Thus, even under the "minimal scrutiny" test, the state can

show no rational relationship between the classification and a

legitimate state interest, and this court should find that the

classification is purely arbitrary, and grant the declaratory relief



               1. Gunwall factors analyzed.

     The "Gunwall factors" have come to be, in Gunwall's progeny,

required analysis and briefing at the superior court level in order

for the Supreme Court to consider whether personal liberties are

protected to a greater extent by the state's constitution, compared

to the U.S. Constitution.  See, e.g., State v. Wethered, 110 Wn.2d

466, 472, 755 P.2d 787 (1988); In re Mota, 114 Wn.2d 465, 472, 788

P.2d 538 (1990).  The plaintiff adopted Justice Utter's analysis

concerning the Privileges and Immunities clause, above, and here

provides the Gunwall analysis of the "Frequent Recurrence to

Fundamental Principles" clause:

     1. The textual language of the state constitution.

       The text of the state constitution may provide cogent
       grounds for a decision different from that which would be
       arrived at under the federal constitution. It may be more
       explicit or it may have no precise federal counterpart at

Gunwall at 61. Article 1 § 32 of the Constitution of the State of

Washington reads in total:

       A frequent recurrence to fundamental principles is
       essential to the security of individual right and the
       perpetuity of free government.

     Since no "precise federal counterpart" exists, the Court may

find greater protection under this factor, and the plaintiff argues

strenuously that it should.

     2. Significant differences in the texts of parallel provisions

of the federal and state constitutions.

          Such differences may also warrant reliance on the state
       constitution.  Even where parallel provision of the two
       constitutions do not have meaningful differences, other
       relevant provisions of the state constitution may require
       that the state constitution be interpreted differently.

Id.  Since no parallel provision may be found in the federal

constitution, this factor does not seem to apply to either find or

not find greater protection under the state constitution.

     3. State constitutional and common law history.

          This may reflect an intention to confer greater
       protection from state government than the federal
       constitution affords from the federal government. The
       history of the adoption of a particular state
       constitutional provision may reveal an intention that will
       support reading the provision independently of federal law.

Id.  The constitutional history of Section 32 remains somewhat of a

mystery.  The constitutions of Wisconsin, New Hampshire and Illinois

contained clauses referencing fundamental principles, but the

connection to individual rights was unique to Washington.  Brian

Snure, "A Frequent Recurrence to Fundamental Principles: Individual

Rights, Free Government, and the Washington State Constitution," 67

Wash. L. Rev. 669 (1992) at 676.

     The original proposed constitution by W. Liard Hill contained

only 31 sections to Article 1.  Section 32 was proposed by George

Turner, whose later speeches as a U.S. Senator lead to the

conclusion that Turner, like others of his day, believed that

constitutional interpretation often required a return to natural law

principles beyond the four corners of the constitution.  Snure, Id.

at 674, citing 32 Cong. Rec. 783, 785, 789 (1899)(statement of Sen.

Turner against United States imperialism in the Philippines).

     The signers of Washington's constitution had witnessed a

hundred years of what happens when power is concentrated in either

government (federal) or private (corporate) bodies, and they clearly

didn't like what they saw.  Thus, we have a clause in our "freedom

to bear arms" clause stating that "nothing in this section shall be

construed as authorizing individuals or corporations to organize,

maintain or employ an armed body of men."  Wash. Const. art. 1 § 24;

and the mention of "corporations, except municipal" in the

Privileges and Immunities clause, discussed above.

     In the decade before the Washington Constitutional Convention,

the territory had grown from a virtual wilderness of 75,000 settlers

cut off from the nation's capital by a month's travel time, to a

state of 350,000 citizens who could reach the east coast by a three-

day train ride.  Snure, supra, citing Dorothy Johnson, "Empire of

the Columbia," (2d ed., 1967).  Most of the influx of settlers had

experienced legislative abuse elsewhere, and in Washington as well.

Snure, Id. at 671.  For example, during the 1862-63 territorial

legislative session, the legislature passed no general laws, but

enacted more than 150 pieces of general legislation for the benefit

of "private interests against the general welfare."  Id.

     Nor did the delegates trust the other branches of government.

Governors abused their patronage powers, and judges were appointed

from afar and often absent.  Id., citing, inter alia, Charles H.

Sheldon, "A Century of Judging: A Political History of the

Washington Supreme Court," (1988).  Mining companies amassed armed

guards to thwart unions activities, and railroads charged excessive

rates to farmers.  Id., citing Gordon B. Ridgeway, "Populism in

Washington," 39 Pac. N.W. Hist. Q. 284-91 (1948).

     All of these infringements on personal liberties came about

despite the guarantees of liberty and democratic government found in

the U.S. Constitution.

     It is noteworthy that Washington's Declaration of Rights is not

couched in terms of the federal Bill of Rights, which contains the

repeated phrase "Congress shall make no law. . ."  Rather, rights

are stated affirmatively:  "The right of petition. . .shall never be

abridged," Art. 1 § 4; "Every person may freely speak, write and

publish on all subjects. . ."  Art. 1 § 5.

     It is also noteworthy that Washington's constitution contains

checks and balances on power missing from the federal constitution.

The federal government now comprises four branches, the fourth being

federal agencies created by Congress but accountable to nobody.

This has been especially true since the U.S. Supreme Court decided

INS V. Chadha 462 U.S. 919 (1982), which eliminated the "legislative

veto."  Prior to that, Congress could set up agencies to administer

programs, then oversee progress by way of committee or single-house

vote.  In what constitutional scholar and University of Seattle Law

School Prof. David Skover calls "the second most inane decision ever

handed down," the U.S. Supreme Court virtually guaranteed the sort

of petty tyranny that has resulted in this lawsuit.  (The Chadha

decision did away with the "legislative veto," on the theory that

not only must the enabling legislation withstand bicameral majority

vote and presentment for veto, but each subsequent "fine-tuning" of

the agency must be done the same way -- clearly an administratively

impossible task.)

     Washington's constitutional delegates may not have had Chadha

as an example, but they had seen where government power was headed.

In Washington, the fourth branch of government is the people: agency

heads such as the Attorney General, Secretary of State, Treasurer,

Auditor, Superintendent of Public Instruction and Commissioner of

Public Lands are elected, not appointed.  Judges, likewise, are


     The framers had also seen the concept of "natural law" twisted

until it faced the direction opposite any original concept;

originally a guarantee of personal liberty (for example, as set

forth in the Declaration of Independence as "inalienable rights"),

under the influence of the robber barons of the 19th century

"natural law" was the justification for imposition of laessez-faire

economics, i.e., natural law prohibited the courts from interfering

with the right of a laborer to contract for his labor, and never

mind that the laborer starves while the company owner thrives.

     Thus, the mention of "a frequent recurrence to fundamental

principles" being linked (uniquely at the time) to individual

liberty, and the lack of any reference to "natural law" along with

the absence of a separation-of-powers clause in Washington's

constitution has led at least one scholar to argue persuasively that

the phrase amounts to retaining the notion that natural law should

be considered when protecting individual rights, but not when

invoking natural law to prevent adherence with social or safety


       Section 32 designates extra-constitutional fundamental
       principles as essential to the security of individual

Snure, supra, note 30, page 687.  Again, it is no stretch to extend

the right to be free from unjust action when it originates from a

federal agency as opposed to originating from a corporation or other

state entity.

     4. Preexisting state law.

       Previously established bodies of state law, including
       statutory law, may also bear on the granting of distinctive
       state constitutional rights.  State law may be responsive
       to concerns of its citizens long before they are addressed
       by analogous constitutional claims.  Preexisting law can
       thus help to define the scope of a constitutional right
       later established.

Gunwall, supra, 106 Wn.2d at 61, 62.

     Much of the preexisting law leading to the "fundamental

principles" clause is discussed above.  As for laws preexisting the

state constitution regarding the use of marijuana, medically or

otherwise, there were none.  Inhaling opium and operating a house

where inhaling opium took place were made illegal by the territorial

laws of 1881, seven years before the signing of the Washington

constitution.  The earliest reference the plaintiff could find to

marijuana ("cannabis") was in the Laws of 1951.  As discussed in

Section II B 1 above, marijuana was widely and legally used in the

last century and the early decades of this century, prohibited by

neither state nor federal law.

     5. Differences in structure between the federal and state


       The former is a grant of enumerated powers to the federal
       government, and the latter serves to limit the sovereign
       power which inheres directly in the people and indirectly
       in their elected representatives.  Hence the explicit
       affirmation of fundamental rights in our state constitution
       may be seen as a guaranty (sic) of those rights rather than
       as a restriction on them.

Gunwall, id.

     The plaintiff simply asks the Court to take these words at

their face value, and look to fundamental principles, as required by

Article I § 32, to do justice.

     6. Matters of particular state interest or local concern.

       Is the subject matter local in character, or does there
       appear to be a need for national uniformity?  The former
       may be more appropriately addressed by resorting to the
       state constitution.

     The plaintiff's physician is licensed to practice by the state.

The plaintiff has undergone his cancer treatment in a state-owned

and -regulated facility.  The state legislature has given the state

Board of Pharmacy the power to place drugs in Schedules different

from the federal government's determination, in RCW 69.50.201(e).

And the state's constitution requires a "frequent recurrence to

fundamental principles," which the federal constitution does not.

All of these and more make clear that the plaintiff's access to

medicine is an issue of local significance; Washington's citizens

should not be made to suffer by bureaucratic fiat from 2,000 miles


               2. Fundamental principles in Washington case law.

     The state constitution requires a "frequent recurrence to

fundamental principles," which raises the question, "What principles

are fundamental?"

     Run the phrase "fundamental principles" through Westlaw or

Lexis, and a sampling looks like this:

It is a fundamental principle that the imposition of business and
  occupation tax liability must be as equitable as possible.
  Fidelity Title Company v. State of Washington, Department of
  Revenue, 49 Wn. App 662, 745 P.2d 530 (1987).

Reynolds Metal Company v. State, 65 Wn.2d 882, 400 P.2d 310.  Appeal
  dismissed 382 US 1.60 (1965).

A fundamental principle of contract damages:  An insured should be
  put in only as good  a position as he would have occupied had the
  contract not been breached.  Greer v. Northwestern National
  Insurance Company, 109 Wn.2d 191, 743 P.2d 1244 (1987).

Fundamental principles of community property law dictate that each
  spouse should upon his or her death have the right to dispose of
  his or her one-half interest in community property.  Standard
  Insurance Company v. Schwalbe, 47 Wn.  App 639, 737 P.2d 667

It is a fundamental principle that penal statutes will be strictly
  construed as a means of assuring fairness to persons subjected to
  the law by giving clear and unequivocal warning in language that
  people generally would understand concerning actions that would
  expose them to liability for penalties and what those penalties
  would be.  State v. Enloe, 47 Wn. APp 165, 172, 734 P.2d 520

Law against discrimination (RCW 49.60) is not rooted in tort law,
  but grows out of the fundamental principle that every citizen
  deserves equal treatment without regard to race, color, religion,
  sex or handicap.  Reese v. Sears Roebuck and Company, 107 Wn.2d,
  563, 572, 731 P.2d 497 (1987).

To admit irrelevant, prejudicial evidence which would invite
  speculation in a jury is contrary to the fundamental principles
  of fairness and due process upon which our criminal justice
  system is based.  State v. Smith, 106 Wn.2d 772, 780, 725 P.2d
  951 (1986).

Fundamental principles applicable to a request for an injunction are
  1) the proceeding is equitable and addressed to the sound
  discretion of the trial court,  2)  The trial court is vested
  with broad discretionary power to shape and fashion injunctive
  relief to fit the particular facts, circumstances, and equities
  of the case before it, and 3)  One of the essential criteria for
  an injunctive relief is actual and substantial injury sustained
  by the person seeking the injunction.  Brown v. Voss, 105 Wn.2d
  366, 372, 715 P.2d 514 (1986).

General warrants and writs of assistance were "The worst instrument
  of arbitrary power, the most destructive of English liberty and
  the fundamental principles of law, that ever was found in an
  English law book," and so far as they place "the liberty of every
  man in the hands of every petty officer."  State v. Crandall, 39
  Wn. APp 849, 855, 697 P.2d 250 (1985).  Citing the works of John
  Adams 523-24(Chaz. F. Adams ed. Boston 1850; see also T. Taylor
  Two Studies in Constitutional Interpretation 41 (1969)).

It is a fundamental principle regarding the attorney client
  relationship that a fiduciary relationship exists as a matter of
  law between an attorney and a client.  Estate of Larson, 103
  Wn.2d 517, 520, 694 P.2d 1051 (1985).

There is a fundamental principle that every competent citizen is
  under an obligation to further the administration of justice as a
  matter of public policy when summoned by due process of law to
  give evidence.  State v. Dibley, 38 Wn. APp 824, 828, 691 P.2d
  201 (1984).

       •The fundamental principle that "the required criminal
       conduct must have existed when the conduct at issue
       occurred" must apply to bar retroactive criminal
       prohibitions emanating from courts as well as legislators.
       State v. Gore, 101 Wn.2d 481, 489, 681 P.2d 227 (1984).

Fundamental principle of Washington Electoral Law is that in a
  partisan contest there should be only one nominee from each
  political party.  Democratic Party of Washington v. Spellman, 101
  Wn.2d 94, 97, 675 P.2d 1222 (1984).

       •It is a fundamental principle that no state may impose a
       tax which discriminates against interstate commerce by
       providing a direct commercial advantage to local business.
       Department of Fisheries v. DeWatto Fish Company, 34 Wn.
       APp 135, 146, 660 P.2d 298 (1983).

       •It is a fundamental principle that when the state
       condemns land for public use, no greater estate or
       interest should be taken than reasonably necessary for
       contemplated public necessity or use.  State v. McDonald,
       98 Wn.2d 521, 530, 656 P.2d 1043 (1983).

     Clearly, case law analysis shows that "fundamental principles"

may be found outside and in addition to the clear statements

contained in documents such as the Bill of Rights.

               3. Fundamental principles and the plaintiff's case.

     Three cases citing Article I § 32 bear on the case at bar:

The doctrine of stare decisis should not result in outmoded 19th

  century precedents being forced to resolve 20th century disputes

  -- automobiles should not be governed by horse and buggy laws.

  Foote v. Grant, 55 Wn.2d 797, 806-7, 350 P.2d 870 (1960).

Likewise, in a case involving the "taking" of property by creating

  loud jet noise in the airspace over it, the Supreme Court of

  Washington held:

       The invention of the airplane and the development of modern
       air transportation . . . have occurred somewhat
       subsequently to the development of the legal concepts
       emphasized in formulating early common law theories of
       liability.  An awareness of these changes makes it
       incumbent upon us to heed the advice of the framers of the
       Washington constitution when they said: "A frequent
       recurrence to fundamental principles is essential to the
       security of individual right and the perpetuity of free

Ackerman v. Port of Seattle, 55 Wn.2d 400, 407, 348 P.2d 664

(1960)(citation omitted).  In both of the above cases, the

correlation to the case at bar is clear: Times change, new

information becomes known, and legal theories adequate in times past

should be changed to do justice.

     As a direct parallel, it is a fundamental principle that a drug

prohibited when it was believed to have no medicinal use should not

remain prohibited after it is shown that it is beneficial, and

indeed unique in its ability to relieve suffering.

In a much more recent case, the Supreme Court held that while

  massive, intrusive searches of apartment buildings may in fact

  enhance public safety,

       it is often when government is most eagerly pursuing what
       it perceives to be the public interest that it is most
       likely to sidestep constitutional safeguards or to
       denigrate constitutional liberties.  For precisely such
       reasons, our constitution wisely counsels us:

          A frequent recurrence to fundamental principles is
       essential to the security of individual right and the
       perpetuity of free government. . .

          We therefore cannot permit these warrants to be
       executed, regardless of Seattle's pressing (and undoubtedly
       laudable) desire to see its housing codes enforced.

City of Seattle v. McCready, 123 Wn.2d 260, 281, 868 P.2d 134 (1994)

(citation omitted).

     This is precisely the case now before the Court.  The

government "is most eagerly pursuing what it perceives to be the

public interest" in retaining a valuable therapeutic drug in a

prohibited category, and in doing so is violating the fundamental

right of its citizens to be free of needless physical suffering.

     Other fundamental principles which the plaintiff asks the Court

to consider, and recur to as the constitution requires, are these:

It is a fundamental principle that irrational laws breed disrespect

  for the rule of law.  It is irrational to prohibit physicians

  from prescribing marijuana while permitting them to prescribe

  opium and cocaine.  It is irrational to force the plaintiff and

  others in his situation to choose between physical suffering and

  undertaking a criminal act.

Citizens of Washington who have a medical need for marijuana are

  immune, under State v. Diana, supra, from prosecution.  It is a

  fundamental principle that if a citizen foreseeably will not be

  prosecuted, he should not be arrested, jailed, and put to the

  expense, humiliation and vexation of dealing with criminal

  charges.  This is especially true when, as is the case, the very

  conditions which render them immune from prosecution make them

  some of society's most helpless citizens, least able to deal with

  such legal intrusions in their lives with any grace or dignity.

It is a fundamental principle that a physician should have access to

  proven therapeutic drugs to relieve the suffering of his or her


It is a fundamental principle that the government of Washington

  should not deny therapeutic drugs to its weakest and most

  afflicted citizens merely to "match statutes" with federal laws

  which are driven by political and irrational decisions, made by

  bureaucrats who corrupt the process set forth in the enabling

  statutes created by Congress.

It is a fundamental principle that the federal government should not

  be permitted to withhold valuable medicine from Washington

  citizens by first claiming that no scientific evidence supports

  the therapeutic value of the medicine, then denying permission to

  gather the scientific evidence to prove (or perhaps disprove) the

  therapeutic value.

                        IV. CONCLUSION

     This Court, sitting in equity, should exercise its statutory

and constitutional power to declare that the placing of marijuana in

Schedule I, RCW 69.50.204, is a violation of the plaintiff's rights

and liberties secured by Article I §§ 12 and 32 of  the Constitution

of the State of Washington.

     SIGNED AND DATED this ___ day of ____________, 1995.

                         By: __________________________
                               RALPH SEELEY, WSBA 22469
                               (pro se)
Library Highlights

Drug Information Articles

Drug Rehab