Plaintiff's Reply Brief

Ralph Seeley's successful lawsuit for his own medical marijuana.

SUPERIOR COURT OF THE STATE OF WASHINGTON

COUNTY OF PIERCE

RALPH SEELEY,

latest

Plaintiff,

vs.

STATE OF WASHINGTON,

Defendant.

________________________________

No. 94-2-11862-1

PLAINTIFF'S REPLY BRIEF

SUPPORTING SUMMARY JUDGMENT

IN FAVOR OF PLAINTIFF

HEARING DATE: OCTOBER 6, 1995

I. INTRODUCTION

The characterization of this plaintiff as bringing "the latest in a series of fruitless attempts to legalize marijuana and bypass the legislature's exercise of its broad discretion" (defendant's brief, page 7 line 24) is an egregious insult which trivializes the experiences of this lawyer which led to this lawsuit.

DECLARATION OF RALPH SEELEY

I am Ralph Seeley, a lawyer and the pro se plaintiff in the above-captioned case. I am competent to testify, and I am testifying from my own knowledge. In the course of my chemotherapy, despite being under the care of full-time nurses at one of the finest cancer-treatment facilities in the country, I found myself violently nauseated, retching uncontrollably, losing control of my bowels, lying on the floor, covered with my own vomit and excrement.

These same violent, uncontrollable symptoms would come on with less than a minute's warning days after returning home. The only relief I could obtain was from inhaled marijuana. Tablets prescribed (including THC as Marinol or Dronobanol) were vomited up undissolved. (During the years of my treatments, the cost of the tablets went from 87 cents to more than $5 each.)

I undertook this lawsuit with grave misgivings as to allocating so much of my limited time and energy (my cancer is considered terminal) to a cause most likely to benefit only others in the future. After a great deal of soul searching, I elected to proceed because I believe it is every lawyer's duty to attempt to remedy wrongs in our society, and not to simply be 'hired guns' to advocate for those who can afford to hire our services.

I brought the lawsuit not as 'the latest in a series of fruitless attempts to legalize marijuana and bypass the legislature's exercise of its broad discretion...' as stated by opposing counsel, but because it my educated opinion that the legislature's system to regulate drugs has been corrupted by zealots who contend that my suffering is justified to promote some mythical 'greater good' of society. Further, my research showed clearly that marijuana as medicine has not been considered properly, both because of the misunderstandings and hysteria surrounding the subject, and because drug certification in this country is driven by the profit motives of pharmaceutical companies, for which marijuana offers no resource to tap -- you can't patent a plant.

I certify under penalty of perjury under the laws of the State of Washington that the above is true.

Signed and dated in ________________, Washington this ___ day of __________,

1995.

________________________

Ralph Seeley

By resorting to such 'cheap shots' as accusing this lawyer of 'the latest in a series of fruitless attempts. . .', opposing counsel has improperly inserted an ad hominem attack instead of addressing the issues at hand. Her conclusory statements regarding the nature of this lawsuit and its genesis, and the motives of the plaintiff, should be given the consideration they deserve -- none.

II. FACTS

Numerous mis-statements of facts as well as mischaracterizations of facts appear in the defendant's brief:

The 'limited anecdotal evidence Plaintiff offers to support his claim. . .' Defendant's brief, page 6 line 24. Primarily, the plaintiff relies on the findings and conclusions of the DEA's own Administrative Law Judge, Francis L. Young, whose 68-page opinion followed hundreds of hours of testimony in three cities and consideration of copious written evidence. A copy is attached as Exhibit A. (Not provided to opposing counsel to conserve paper, per discussion with opposing counsel, since counsel already has copies.) The judge concluded that the provisions of [the Controlled Substances] Act permit and require the transfer of marijuana from Schedule I to Schedule II.

* * *

There are those who. . .argue that the transfer of marijuana to Schedule II will 'send a signal' that marijuana is 'OK' generally for recreational use.

This argument is specious. It presents no valid reason for refraining from taking an action required by law in light of the evidence. If marijuana should be placed in Schedule II in obedience to the law, then that is where marijuana should be placed, regardless of misinterpretation of the placement by some. . .The fear of sending such a signal cannot be permitted to override the legitimate need, amply demonstrated in this record, of countless sufferers for the relief marijuana can provide when prescribed by a physician in a legitimate case.

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 of this record.

Opinion and Recommended Ruling, Findings of Fact, Conclusions of Law and Decision of Administrative Law Judge, pages 67-68, Docket No. 86-22, Dept. of Justice, Drug Enforcement Administration ('Judge Youngis Opinion')(emphasis added).

For opposing counsel to state that this multi-year effort by Judge Young, cited and quoted in plaintiff's opening brief, constitutes 'the limited anecdotal evidence Plaintiff offers to support his claim' (defendant's brief, page 6 line 24) is clear indication of the disdain for legitimate lawmaking held by opposing counsel -- unless the outcome conforms with that which 'everybody knows' is correct.

The opinion is worth reading in its entirety. It reveals the endless circularity and self-fulfilling 'logic' of the prohibitionists, and establishes many facts which are intuitively obvious. Included in that category is the issue of the entire pharmaceutical-approval process being designed to accommodate companies interested in marketing new drugs, referred to in the plaintiff's declaration, above.

Uncontroverted evidence further establishes that in this country today 'new drugs' are developed by pharmaceutical companies possessing resources sufficient to bear the enormous expense of testing a new drug, obtaining FDA approval. . .and marketing it successfully. No company undertakes the investment required unless it has a patent on the drug, so it can recoup its development costs and make a profit. . .Since the substance being considered in this case is a natural plant rather than a synthetic new drug, it is unreasonable to make FDA-type criteria determinative of the issue in this case. . .

Judge Young's Oponion, page 33-34. The opinion is not 'limited anecdotal evidence,' but is a compendium of research and reasoning which, taken as a whole, offers compelling and well-supported evidence for the plaintiff.

The defendants make statements such as 'Scientifically reliable evidence shows that the currently available therapies are more effective and do not carry with them the same risks.' (Defendant's brief page 7 line 21.) Such statements are conclusory, false, and in any event, irrelevant, since there is no requirement to show that marijuana is risk-free or more effective to all persons.

This sort of statement is reiterated by numerous 'experts' throughout the defendant's brief, and in sworn statements attached. All of them assert that 'new' drugs are better and safer. None cite any tests comparing the drugs with marijuana, for one of the primary reasons this plaintiff brought this lawsuit:

The defendant's logic, and that of its experts, is flawed because no comparison with marijuana can be done, because the government will not permit possession of marijuana for experiments. See Affidavit of Doblin, Exhibit F to plaintiff's original brief.

In the only scientific test cited by either party which actually utilized marijuana (Levitt, University of Manitoba, 1984, defendant's brief at page 16 line 1, deposition of Conrad, Exhibit C, page 18-19), involved 20 patients undergoing chemotherapy. Fifteen to 17 had nausea, vomiting or both. They were given, at random, tobacco cigarettes, marijuana cigarettes, or THC tablets. Out of the 20 patients, nine had no preference, seven preferred THC, and four preferred marijuana cigarettes. See Conrad Deposition, pages 18-19, attached as Exhibit C.

As Judge Young phrased it: there is no question but that this record shows a great many physicians, and others, to have 'accepted' marijuana as having a medical use in treatment of cancer patients' emesis. True, all physicians have not 'accepted' it. But to require universal, 100% acceptance would be unreasonable. Acceptance by 'a respectable minority' of physicians is all that can reasonably be required.

The record here establishes conclusively that at least 'a respectable minority' of physicians has 'accepted' marijuana as having a 'medical use in treatment in the United States.' That others may not makes no difference.

Judge Young's Opinion, page 29. What the defendant has done is to round up some physicians and others who weigh in on the 'anti' side. It is perfectly predictable that such persons may be located and their sworn statements taken. That the defendant has done so is of no value to the Court in evaluating the merits of the plaintiff's case.

The question before this court does not involve some cosmic overview of marijuana vis-a-vis every palliative drug in the universe. Rather, the plaintiff has posed the question: Why does our government permit the legal amelioration of suffering among people who can absorb THC through their digestive systems (through prescription of Marinol tablets), while subjecting the plaintiff to exposure to arrest for possessing the same drug in a form he can ingest through his lungs?

The example of heroin cited by the defendant (brief at page 7 line 7) makes the plaintiff's point. In the bottom half of page 7 the defendant makes the point that 'several successive generations of effective anti-emetics now [are] currently available to cancer chemotherapy patients.' Those 'several generations' were developed and placed on the market since the plaintiff was diagnosed with cancer in 1986. As the defendant pointed out, it took 18 years for the medical community to discover that heroin was more addictive than morphine. Like heroin and other drugs (Thalidomide and Halcyon come to mind), the new generations of anti-emetics may yet prove to be more dangerous than helpful. Marijuana, on the other hand, has been used therapeutically for 5,000 years, and there is no death yet recorded as caused by an overdose.

The broad statements such as that quoted above concerning other drugs with 'decreased risk' should be ignored by this court as not supported by evidence, and not relevant to the outcome of this case; the defendant has cited no scientific evidence whatsoever that THC does not remain an effective, prescribed drug for the relief of nausea in chemotherapy.

The statement by defendant that 'Dr. Grinspoon's testimony is undeniably biased by his position that all drugs should be available for recreational use' is false and should be ignored as the red herring that it is.

The defendant's attorney undoubtedly bases such a false accusation on Dr. Grinspoon's embracing of the 'harm reduction' model of drug laws used successfully in The Netherlands, where drug abuse is treated as a medical, not a legal, problem. Hard drugs remain unlawful in that country, but are available through medical channels to the addicted. Thus, they have a small fraction of the drug addicts compared to those in the United States, and an even smaller fraction of the secondary (crime) problems associated with drug addiction, since there is no black market driving drug costs up and creating huge profit motives for the unscrupulous. That Dr. Grinspoon embraces such a model in contrast to our own policies (build more prisons, fill them up), is no reason to question his knowledge or research-supported opinion on the medical issues at hand. (For some overall insight into the circular logic and straightforward falsehoods employed by our federal officials in the 'war on drugs,' see the attached pamphlets, exhibits B and E, and note the hundreds of citations to authority.)

In fact, Dr. Grinspoonis book, The Speed Culture: Amphetamine Use and Abuse in America, Harvard University Press, 1975, was among the first to sound the warning that 'popping little white pills' (in the words of the country-western song 'Six Days On The Road') was far more harmful than anyone was giving it credit for at that time. In the aftermath of the publishing of that book, the potential for harm of that class of drugs became more widely known, and the drugs became more carefully controlled.

Dr. Grinspoon is a physician and scientist with impressive memberships in professional associations, and publication both in books for lay persons and in scientific literature, including the prestigious, juried New England Journal of Medicine. (His Curriculum Vitae is attached to those portions of his deposition submitted by the defendants.) His views are 'refuted' by the defendants with an anonymous author who writes for U.S. News and World Report, who in turn cites a former politician (defendant's brief, page 14), who in turn recites the tired ritual statement 'Children who smoke pot are 85 times more likely to use cocaine.' This myth is not supported by fact. See 'Myth #11' of Exposing Marijuana Myths, attached as Exhibit B, and the scientific and authoritative publications cited.

The defendant's attorney confuses correlation with causation. It is absolutely true, upon statistical analysis, that, for example, persons with larger feet are more adept at mathematics than those with small feet. It is equally true that the density of fire hydrants accurately predicts the incidence of diabetes. The former is true because infants can't do math at all, and have small feet. The latter is true because the density of fire hydrants predicts the density of population, thus the statistical appearance of any disease that occurs randomly throughout the population. According to the logic presented in the defendant's brief, we should stretch person's feet to increase their ability at mathematics; outlaw fire hydrants to eliminate diabetes; and continue to outlaw the relief of suffering among desperately ill people to eliminate cocaine use.

What most obviously is true is that 100 percent of the persons using cocaine are using cocaine -- a Schedule II drug. Using the drug without a prescription carries exactly the same penalties as using a Schedule I drug. So what 'signal' is being sent by changing marijuana from Schedule I to Schedule II?

Whether 85 percent of pot-smoking children eventually use cocaine is completely irrelevant to this case. In any event, this seems to be a re-hash of the argument that to allow marijuana use by prescription will 'send a signal' to young people, who will then use other illegal drugs. This was addressed as 'specious' by Judge Young. See Opinion of Young excerpt, supra.

The 'facts' presented on this subject are an attempt to sidetrack the Court, and should be ignored by the Court for what they are -- false statements of fact supporting illogical analysis, and in any event, not relevant to the controversy at hand.

The argument that 'there are no safe standards' because 'The marijuana plant contains over 400 different chemicals and is not chemically consistent' is another contention that is irrelevant and not supported by evidence. (See defendantis brief, page 17.)

As established by the Affidavit of McKinney, Exhibit D, attached, the technology exists to produce pharmacologically pure THC from the natural marijuana (hemp) plant, which can be smoked and absorbed through the lungs in its pure form.

Thus, if this '400 chemicalsi argument were a legitimate reason to force the plaintiff to continue choosing between suffering and breaking the law, there is a simple method of overcoming the problem. However, this entire line of argument is clearly a smokescreen (sorry) for attempting to legitimize what 'everybody knows.' Put another way, however many chemicals may be created by burning the leaves of the hemp plant, there is still no evidence that in 5,000 years of use, it has ever caused a death. The same cannot be said of aspirin, which kills approximately 180 persons per year, and caffeine, which kills approximately 1,000. See Compare Legal Drugs With Illegal Drugs, Washington Hemp Education Network, page 10-11 and note 58.

It is noteworthy that the pamphlets attached as Exhibits B and E contain 66 and 107 citations to legitimate authorities, respectively. This is more of the 'limited anecdotal evidence' which the defendant counters with unsupported opinions.

The '400 unknown chemicals' argument is without merit. The facts establish that burning the leaves or buds of the hemp plant and inhaling the smoke relieves grievous suffering, with virtually no risk. That is established by the legitimate inquiry and report by the Drug Enforcement Administration's chief Administrative Law Judge, who considered that and other arguments before issuing his report. (To eliminate pronoun confusion, the late Judge Francis Young was a man.) The plaintiff brought this suit because the process following that report was corrupted, to the detriment of the sick and helpless. The defendant now attempts to regurgitate as 'fact' those opinions which have already been shown not to be factual, not to be relevant, and which would not change the outcome of a legitimate inquiry such as the plaintiff hopes is the result of this suit, even if they were true.

III. ARGUMENT

The arguments presented by the defendant are excruciatingly circular and self-validating. Expert after expert states that scientific studies do not support the plaintiff's position. But the only scientific study actually utilizing vegetable-state marijuana showed that some of the patients preferred it. Deposition of Conrad, Exhibit C page 19. Meanwhile, no further studies are permitted, because the government won't allow them, because the drug is illegal. It is illegal because no scientific evidence supports its use. (See Affidavit of Doblin, attached to plaintiffis opening brief as Exhibit F.) And the circle starts again.

A. THE DEFENDANT HAS MIS-STATED THE BURDEN ON THE PLAINTIFF, WHO MAY PREVAIL UNDER SEVERAL THEORIES OR ANALYSES.

The defendants mis-characterize this lawsuit as a challenge to 'the legislature's classification system for controlled substances on its face.' Defendant's brief, page 5,6. The entire analysis is based on that assumption. Included in the defendant's analysis is the statement that, because this is a 'facial' challenge, the plaintiff must overcome the presumption of constitutionality of a statute 'beyond a reasonable doubt.'

The plaintiff is not challenging the statute as unconstitutional 'on its face.' The plaintiff concedes that the legislature had every right to enact the Uniform Controlled Substances Act, RCW .50, in 1971, and to place marijuana in Schedule I based on the information available at that time, just as Congress had every right to enact similar federal statutes.

However, in both the federal and state statutes, officials are charged with reviewing drugs to place them in different categories as new facts are brought to light. This process was followed to the extent that Judge Young spent several years of effort examining evidence and issuing a report and recommendation, attached as Exhibit A. What followed was a shameful corruption of the system by law enforcement officials, not medical persons.

In essence, the head of the DEA stated, 'I don't care what the evidence shows or what Judge Young recommends based on the evidence, marijuana is staying in Schedule I because I say so.' This was appealed to the D.C. Circuit Court of Appeals, which pointed out the flawed logic -- a drug that is illegal can never meet the criteria of 'currently accepted medical use.' The head of the DEA then re-worded his opinion, still refusing to re-schedule the drug, and his new language withstood the narrow, technical test applied by the circuit court.

This plaintiff brings this lawsuit before a Washington judge, based on the Washington constitution, because our constitution contains more powerful protections of individual rights. It is this plaintiff's hope that under Washington law the broad, self-serving statements concerning the 'greater good' of society, unsupported by evidence, will not overcome this individual's right to relieve his suffering without breaking the law.

/ / /

1. The 'equal protection' analysis borrowed from the federal government should not apply, but the plaintiff should prevail even if the court employs it.

In the plaintiff's opening brief, Justice Utteris dissenting opinion in State v. Smith, 117 Wn.2d 263, 282, 814 P.2d 652 (1991), was adopted by reference.

The analysis set forth calls for a completely different approach to our Privileges and Immunities clause, Const. Art. 1 ss 12, than the 'levels of scrutiny' borrowed from the federal analysis of the Equal Protection clause of the 14th Amendment to the U.S. Constitution. Below, plaintiff navigates through that analysis.

The defendant contends that the Court should utilize the 'levels of scrutiny' analysis, and that the court should adopt the lowest level of scrutiny.

First, if the Court is to indulge in this analysis, the highest level of scrutiny should be used, since the right of a doctor to relieve the suffering of his patient, and the right of a patient to have the relief of suffering available without being subjected to arrest, are fundamental rights. This can be found in various cases stated as a right to medical privacy, or a liberty interest protected by due process. See: In re Ingram, 102 Wn.2d 827 (1984) (incompetent person's right to medical self-determination); O'Hartigan v. Dept. of Personnel, 118 Wn.2d 111 (1991) (level of scrutiny re: privacy); In re Colyer, 99 Wn.2d 114 (1983) (privacy in medical decisions); State v. Koome, 84 Wn.2d 901 (1975) (doctor and patient's medical privacy); In re Hamlin, 102 Wn.2d 810 (1984)(right to choose termination of medical treatment -- here we are asserting a right to choose a particular medical treatment less harmful than the treatments permitted). These are in addition to the citations in the plaintiffis opening brief.

Whatever level of scrutiny the Court chooses to apply (if any), the plaintiff should prevail, because the countervailing interest of the state is illusory. Which is to say, even the 'rational relationship' test used at the lowest level of scrutiny provides no rationale for the plaintiff to be forced to lie on the floor covered with his own excrement and vomit, or alternatively to break the law.

The only benefit to the State that can be discerned in defendant's argument is that (1) the State has a duty to 'ensure the public of the adequacy, efficacy and safety of substances used in the treatment of illnesses,' defendant's brief at page 5 line 1; to 'protect ill and vulnerable members of the public from unsafe and/or ineffective medical treatments,' Id. line 16, and by implication, to prevent abuse of the drug on a larger scale, Id. Page 19.

The state has provided only conclusory, illogical and non-factual statements to support the contention that maintaining marijuana in Schedule I supports any of those goals.

In fact, the clear evidence is to the contrary. Surely, nobody denies that thousands of patients in the shoes if the plaintiff are smoking marijuana for the relief of their symptoms. Because the drug is in Schedule I, we must all obtain the drug on the black market, where its purity is unknown and unregulated. By placing the drug in Schedule II, we would be able to obtain pharmaceutically pure medication -- the stated goal of this sort of regulation.

To hold that the Equal Protection/Levels-of-Scrutiny analysis borrowed from the federal government and applied to our Privileges and Immunities clause calls for the continued prohibition of this valuable herb as medicine is to stretch legal fictions to the level of the absurd.

2. Under the 'privileges and immunities' analysis properly applied to our state's constitutional clause, the plaintiff should prevail.

As Justice Utter pointed out in State v. Smith, supra, (Exhibit G to plaintiff's opening brief), the analysis which should be applied under Wash. Const. Art. I ss 12 is by applying four questions: (1) was the challenged state action properly performed under lawful authority; (2) does the action implicate a 'privilege' or 'immunity'; (3) does the action allegedly discriminate against an individual or a class; and if so, (4) is the discrimination permissible? Id., 117 Wn.2d at 288 (parenthetical numbers added). There is no requirement to establish a 'class,'i which squares with the plain language of the Constitution:

No law shall be passed granting to any citizen. . .privileges or immunities which upon the same terms shall not equally belong to all citizens. . .

Const. Art. 1 ss 12. As cited by Justice Utter:

The clause. . .may be invoked by an individual who demands equality of treatment with other individuals as well as by one who demands equal privileges or immunities for a class to which he or she belongs.

State v. Smith, supra (citations omitted).

Here, the plaintiff is simply pointing out that other persons, who can absorb THC through their digestive systems, are given the privilege of ending their suffering and immunity from arrest for possession of THC, while the plaintiff, whose suffering can be ended through absorbing THC through his lungs, is arbitrarily denied the privilege of ending his suffering and the immunity from arrest through prescription.

The first three questions posed in the analysis, then, are answered 'yes.'

The fourth question remains - 'Is the discrimination permissible?'

According to the only serious, long-term study by a neutral official, Judge Francis Young, it is not; he stated that it would be unreasonable, arbitrary and capricious to withhold the drug from persons such as the plaintiff. Further, the only comparative scientific study (Levitt, supra) determined that for some patients, smoked marijuana was the treatment preferred. No other experimental data is available because the government prohibits the experiments. See Affidavit of Doblin, Exhibit F of plaintiff's original brief.

The plaintiff and thousands of persons in his shoes are not ignorant, illiterate or stupid. We read medical literature, legal documents (such as the Young opinion), and we experiment to end our suffering. We use marijuana because it works, as Judge Young found, and because other drugs do not.

The evidence' supporting the value to the state of the ongoing discrimination against the plaintiff is circular, self-serving, and makes a mockery of both procedural and substantive law. Further, it makes criminals of society's most helpless people, and their families. There is no justification for the discrimination, and in the name of compassion, reason, and to end the massive mockery of the law by medical users across the country, this court should find that the ongoing classification of marijuana as a Schedule I drug is a violation of the plaintiff's rights under Article I ss 12 of the Constitution of the State of Washington.

B. THE DEFENDANT'S CONTENTION THAT THE WASHINGTON SUPREME COURT HAS ALREADY REJECTED PLAINTIFF'S CLAIM IS REFUTED BY THE OUTDATED CITATIONS RELIED UPON.

As stated above, the primary evidence relied upon by the plaintiff is Judge Young's opinion, issued in 1988. In Section B of the defendantis brief, defendant cites a 1981 case, contending that the state's supreme court has already ruled on this issue.. Clearly, the Washington Supreme Court has not analyzed this issue in light of the massive effort put forth by Judge Young, and his 68-page report recommending that marijuana be re-scheduled.

Further, in State v. Smith, 93 Wn.2d 329, 610 P.2d 869 (1980), the court held that statutory punishment for possession of marijuana did not rise to the level of cruel and unusual punishment. Justice Dolliver wrote a 14-page dissent, in which two other justices concurred. Thus, only two more Justices would be required to find marijuana legal without analyzing its medical value.

Under these circumstances, to claim that our Supreme Court has put this matter to rest is, in a word, ridiculous.

C. THE FEDERAL PROCESS FOLLOWING THE ISSUANCE OF JUDGE YOUNG'S OPINION WAS CORRUPTED, AND WASHINGTON COURTS ARE UNDER NO OBLIGATION TO DENY THE PLAINTIFF THE PROTECTION OF WASHINGTON'S CONSTITUTION BASED ON FEDERAL BUREAUCRATIC TURF WARS.

The plaintiff set out the outlines of 'the federal farce' in pages 14 through 18 of his opening brief. The plaintiff, as a lawyer and officer of the court, does not label federal agency and court actions as 'farce' lightly. But no other, less pejorative word applies.

The overarching question is: Why are we letting the police make our medical decisions?

The Drug Enforcement Administration is a law-enforcement agency. It is not charged with the advancement of science or the alleviation of suffering.

Congress put in place a method for evaluating whether a drug should be re-scheduled upon discovery of new evidence of more or less efficacy or harm than was known when the drug was originally scheduled. Judge Young followed that procedure, and found that the law 'requires' marijuana to be re-scheduled to alleviate 'the legitimate need, amply demonstrated in this record, of countless sufferers for the relief marijuana can provide when prescribed by a physician.' Young Opinion, page 67-8.

After that, the 'drug czar' or 'top cop' or whatever currently accepted name is in vogue for the head drug-law enforcer simply invoked the bureaucratic power of ipse dixit to deny rescheduling.

It is well-established law that Washington's constitution provides safeguards to personal liberty which are absent in the federal constitution. Indeed, Article I ss 1, cited but not quoted by the defendant, states unequivocally that governments. . .are established to protect and maintain individual rights.

Id. In addition to the cases cited in plaintiff's opening brief, see State v. Bartholomew, 101 Wn.2d 631, 639 (1984)(due process); and State v. Young, 123 Wn.2d 173 (1994)(right to privacy).

Thus, while federal courts may bow to the power of federal law enforcement agencies and their head bureaucrats in determining which citizens shall suffer for lack of medication and who shall not, the judges in this state are not bound by those decisions.

The dozens of opinions of federal courts and doctors to the effect that marijuana is not the best medicine for many people most of the time is irrelevant. This plaintiff found that marijuana relieved excruciating, demeaning, demoralizing suffering in a manner that no prescribed medicine could begin to approach. (Declaration of Seeley, Exhibit B to original brief, which the plaintiff urges the Court to re-read in its entirety.) This plaintiff's experience is not unique, as asserted by Judge Young's opinion citing to 'countless' sufferers. Young opinion at 68.

The invoking of federal procedure in Section C of the defendant's brief is of no consequence to resolving this dispute under the Washington constitution.

D. THE CITATION TO THE 'RELEVANT MEDICAL COMMUNITY' REJECTING MARIJUANA IS A RESULT, NOT A CAUSE, OF MARIJUANA'S ILLEGAL STATUS.

The smear tactics against Lester Grinspoon, M.D., engaged in by the defendant in their brief at Section D, has been addressed above, in the 'facts' section.

As stated and reiterated supra, only one experiment has been reported which actually used vegetable-state marijuana in comparison with other anti-emetics. A substantial minority of the patients treated preferred it. See deposition of Conrad, Exhibit C, page 19.

No other experiments have been done, because the federal government prohibits them. See Affidavit of Doblin, Exhibit F to plaintiff's opening brief.

So what we have is opinion based on rhetoric stacked on top of other opinion based on rumor. This is not a battle of opinions. However many credentialled persons the defendant may round up to state that 'marijuana is not proven. . .' is of no consequence. This plaintiff had an experience that cannot be disputed by 'experts' who have not shared the experience. The years and reams of paper expended by Judge Young to arrive at an overview have the validity of having been performed by someone out to determine the truth, not someone brought in to testify on one side of an issue.

As the defendant points out (brief at page 7), it took 18 years of use by the medical community before they figured out that heroin was a more addictive painkiller than morphine. Marijuana has not had the benefit of 18 years of use by the modern medical community. How then do these 'experts' dare to claim they can reach valid conclusions?

As the defendant also points out, more studies need to be done, a point virtually all agree upon. Placing marijuana in Schedule II would result in more studies -- virtually every patient in the plaintiff's shoes would be the subject of those studies, by the mere gathering of statistical data.

The defendant labels their group of 'experts' as the 'relevant medical community.' Plaintiff asserts that the 'relevant medical community' is the group of persons who have undergone the same horrendous chemotherapy nausea, vomiting and loss of bowel control as the plaintiff. Gathering statistics from that community is difficult, since many of the people die, and others are reluctant to admit to breaking the law. But according to Judge Young's opinion, they are 'countless.'

The 'relevant community' argument is an attempt to transfer the legal issue to 'my expert is better than yours.' It has no place in this litigation, and should be ignored by the Court.

E. THE 'NO SAFE STANDARDS' IS BOTH FALSE AND A SPECIOUS ARGUMENT AGAINST 'SELF-TITRATION.'

The plaintiff is regularly sent home from the hospital with enough narcotics (oxycodone, Dilaudid (hydromorphone), etc.) to kill several people. He is expected to take the tablets as directed. To do otherwise would be unsafe. The plaintiff could easily ingest a lethal dose of the drug, as is true of many prescription drugs. There is no lethal dose of vegetable-state marijuana. See Exhibit E page 8 and supporting endnotes.

Instead of 'self-titration,' which the plaintiff indulges in by smoking a few puffs of marijuana and waiting a few minutes to see if it is enough (see Declaration of Seeley, Exhibit B to original brief), the defendant asks that the Court enforce the current law requiring that THC be administered in pre-measured doses, which results in much worse side effects, and much longer debilitation from those side effects.

Again, in the only serious fact-finding effort made on the subject, Judge Young specifically held 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.

Young Opinion at 68. What is true, and was raised supra, is that currently, the purity of black-market marijuana can be questionable, which would cease to be a problem if the drug were available by prescription.

F. THE 'NO NEW SCIENTIFICALLY RELIABLE EVIDENCE' ARGUMENT IS MORE OF THE SAME CIRCULAR, SELF-SERVING, OUTDATED NONSENSE.

Defendant's argument in Section F is a rehash of arguments made and refuted above. Note that all cases pre-date Judge Young's opinion.

And once again, Why is there no new scientific evidence? Because the federal government prohibits experiments. Affidavit of Doblin, Exhibit F to original brief.

G. MARIJUANA HAS A 'HIGH POTENTIAL FOR ABUSE:' SO WHAT?

The plaintiff frankly believes the 'abuse' of marijuana is overstated and misunderstood throughout the judicial and law enforcement communities. But even conceding that it has a 'high potential for abuse,' that is of no relevance. Opium and cocaine also have high potentials for abuse, and they are Schedule II drugs.

Again, Judge Young noted that Marijuana can be harmful. Marijuana is abused. But the same is true of dozens of drugs or substances which are listed in Schedule II so that they can be employed in treatment by physicians in proper cases, despite their abuse potential. Young Opinion at 67. This is simply not a valid reason to make the plaintiff suffer as he was forced to do without breaking the law.

I. DEFENDANT'S ARGUMENTS UNDER SECTIONS I, J AND K OF DEFENDANT'S BRIEF ARE ADDRESSED ABOVE, AND IN PLAINTIFF'S OPENING BRIEF.

The defendants re-hash old arguments, and fail utterly to defend against plaintiff's contention that he is protected by Article I ss 32, the 'frequent recurrence to fundamental principles' clause.

1. Of course the state can control 'drugs of abuse,' but so what?

The argument set forth in Section J of defendant's brief implies that the plaintiff believes the state should not 'control' marijuana. Nothing could be further from the truth. History teaches us that prohibition results in loss of control, while regulation (and sane laws) result in control. We need only look to the experiment with national alcohol prohibition.

The state is not now 'controlling' marijuana use. It is prohibiting marijuana use. The plaintiff is asking the Court to change that, so the state will control the use of marijuana for medical purposes, the same as it does with cocaine, opium, and other potentially harmful but extremely helpful drugs. There is no question that the state has the power to regulate the use of marijuana, and that is what the state should do. Placing desperately ill people in jail for the use of a valuable medicine, however, is a crude and cruel method of regulation, and the state should get out of that business forthwith.

J. THE 'FREQUENT RECURRENCE TO FUNDAMENTAL PRINCIPLES' CLAUSE DICTATES THE PLACING OF MARIJUANA IN SCHEDULE II.

There is little case law interpreting Article I ss 32. Absent reasons to do otherwise, words of laws should be read to assert their standard, understood meanings. (This itself is a fundamental principle A valid interpretation of the clause, and the reason for it, lies in the common human experience of taking a number of small, seemingly reasonable steps, then finding oneself in an unreasonable situation. It becomes time to pause, take stock, perhaps return to the last intersection and try a different road.

That is what is needed here, now. When marijuana was placed in Schedule I, it belonged in Schedule I. With Judge Young's careful research and analysis, it should have been placed in Schedule II in 1988.

We now have compassionate judges granting quasi-judicial permission to ill people to use this valuable drug to ease their suffering, which amounts to 'prescription by going to jail.' See Declaration of Subin, Exhibit E of plaintiff's opening brief. It is a fundamental principle that judges should not be placed in that position by the continued enforcement of unreasonable laws levied against desperately ill and helpless citizens. The plaintiff asks this Court to review the 'fundamental principles' discussion in the opening brief at pages 36-39, and to find that the plaintiff's rights, and the rights of countless others, established under that clause, are violated by the continued placement of marijuana in Schedule I.

IV. CONCLUSION

Whether under the federal 'equal protection' analysis, under the separate 'privileges and immunities' analysis, the 'frequent recurrence to fundamental principles' analysis, or under all three, the Court should grant the plaintiff's motion for summary judgment, and issue a declaration that the continued placement of marijuana under Schedule I of the Uniform Controlled Substances Act is a violation of the plaintiff's rights as protected by the Constitution of the State of Washington.

SIGNED AND DATED this ___ day of ____________, 1995.

By: _________________________

RALPH SEELEY, WSBA 22469

(pro se)

PLAINTIFF'S REPLY BRIEF

law offices of

NEIL J. HOFF

252 Broadway

Tacoma, Washington 98402

1. 383-3434