Current Events, Legal, Politics, Rescheduling, Scandals

Carl Olsen Files Motion to Intervene in Cannabis Coalition’s Rescheduling Petition

Interesting. Recently, Medical Marijuana Advocates Have Filed Suit Over Delay of Response to Rescheduling Petition in order to force the Obama Administration to respond to a petition to reclassify medical marijuana. The petition by the Coalition for Rescheduling Cannabis, which has been pending since 2002 and received a formal recommendation by the Department of Health and Human Services to the DEA in 2006, seeks to remove marijuana from Schedule I.

Yesterday, Carl Olsen of Iowans for Medical Marijuana told me he planned to intervene in the petition. Olsen, the Executive Director of Iowans for Medical Marijuana, told me he planned to intervene in resistance to the Coalition’s suit. I was surprised, to say the least.

Today, Olsen sent a copy of his motion to intervene to his email list. In the motion, he states:

OLSEN DISAGREES WITH THE PETITIONERS

All of the coalition members have either failed to seek state reclassification of marijuana under their own state’s Uniform Controlled Substances Act and/or file civil actions in state courts complaining of the failure of their own states to apply for federal rescheduling. Because of this failure on the part of the coalition members there is a difference of opinion between Olsen and the other coalition members which requires Olsen to withdraw and separate from the coalition members.

Olsen has successfully petitioned the Iowa Board of Pharmacy to remove marijuana from Schedule I. On February 17th, 2009, after the Board held a series of hearings, the Board recommended that the Iowa Legislature remove marijuana from Schedule I. Once the state of Iowa removes marijuana from Schedule I, argues Olsen, the state of Iowa will be obligated to petition the federal government to remove marijuana from Schedule I as a matter of law.

Olsen’s motion to intervene is going to cause some controversial issues among activists, I expect. This case is looking to become quite interesting.

Olsen is resisting the Coalition for Rescheduling Cannabis’s petition for writ of mandamus and is asking for a declaratory ruling on the petition. Olsen argues “the current petition to reschedule cannabis is defective because no state government has joined it and to further give the states a certain time in which to join the petition to reschedule cannabis in order to cure the defect.”

It remains to be seen what becomes of this case. For now, here’s the entire text of the motion to intervene:

Motion to Intervene in Cannabis Rescheduling Coalition Petition‏

12:06 PM

Carl Olsen
To iowamedicalmarijuana@googlegroups.com

No. 11-5121

_____________________________________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_____________________________________________

_____________________________________________

)

In re COALITION TO RESCHEDULE CANNABIS )

_____________________________________________ )

_____________________________________________________________

MOTION TO INTERVENE IN PETITION FOR WRIT OF MANDAMUS

_____________________________________________________________

CARL ERIC OLSEN

130 E. Aurora Ave.

Des Moines, IA 50313-3654

515-288-5798 home phone

515-343-9933 cell phone

Pro Se

Carl Eric Olsen (“Olsen” hereafter) moves for leave to intervene in resistance to the petition for writ of mandamus filed by the Coalition to Reschedule Cannabis.

Olsen is an original member of the Coalition to Reschedule Cannabis as reflected in the Letter from Michael Kennedy to DEA, dated October 9, 2002 [found at http://www.safeaccessnow.org/downloads/CRC_Letter.pdf%5D, cited in petitioners’ Petition for Writ of Mandamus at pages 11 and 13.

Olsen was also a petitioner in the Marijuana Rescheduling Petition, DEA Docket No. 86-22 (Sept. 6, 1988) [found at http://www.ukcia.org/pollaw/lawlibrary/young.php%5D, cited in petitioners’ Petition for Writ of Mandamus at page 10.

Olsen is not represented by the attorneys representing the petitioners.

On August 14, 2010, Olsen sent a letter to the petitioners asking to be removed from the coalition and notifying them that in addition to petitioning the DEA for reclassification of cannabis, legal action must also be taken against the states for their failure to file for federal rescheduling [found at http://www.iowamedicalmarijuana.org/States/pdfs/CannabisReschedulingCoalition_20100814.pdf%5D.

In 2008, Olsen filed a petition to remove marijuana from schedule I of the Iowa Uniform Controlled Substances Act, Iowa Code 124.204(4)(m). On February 17, 2010, in a unanimous ruling, the Iowa Board of Pharmacy found that marijuana no longer meets the statutory requirement of having “no accepted medical use in treatment in the United States” and recommended the Iowa Legislature remove marijuana from state schedule I:

http://www.iowa.gov/ibpe/pdf/2010_02_17minutes.pdf

Since 1996 a total of 16 states and the District of Columbia (with Congressional approval) have enacted medical marijuana legislation, and yet not one of those states has reviewed the classification of marijuana under their own versions of the Uniform Controlled Substances Act (with the exception of Oregon[1]) or applied for federal reclassification of marijuana. Oregon reclassified marijuana in schedule II on July 1, 2010, but it was done legislatively and not by administrative action. 2009, SB 728. The Oregon Legislature ordered the Oregon Board of Pharmacy to pick one of the other four schedules and forbid them from picking schedule I. 2009 Oregon Acts, c.898 § 2.

OLSEN DISAGREES WITH THE PETITIONERS

All of the coalition members have either failed to seek state reclassification of marijuana under their own state’s Uniform Controlled Substances Act and/or file civil actions in state courts complaining of the failure of their own states to apply for federal rescheduling. Because of this failure on the part of the coalition members there is a difference of opinion between Olsen and the other coalition members which requires Olsen to withdraw and separate from the coalition members.
On page 9 of the Petition for Writ of Mandamus, the petitioners cite the reliance of the DEA on a letter written in 1975 from the Acting Secretary of the U.S. Department of Health and Human Services to the Acting Deputy Administrator of the U.S. Drug Enforcement Administration, which concluded there was no accepted medical use of marihuana in the United States. There were no state laws recognizing the medical use of marijuana in 1975. Since 1996, a total of 16 states and the District of Columbia (with Congressional approval) have enacted laws defining marijuana as medicine.

The Marijuana Rescheduling Petition referred to in petitioners’ Petition for Writ of Mandamus at page 10, concluded in 1994 in Alliance for Cannabis Therapeutics, 15 F.3d 1131 (D.C. Cir. 1994). Again, states did not begin defining marijuana as medicine until 1996.

The Gettman petition referred to in petitioners’ Petition for Writ of Mandamus at page 10, was filed in 1995, which, again, was a year before any state had enacted a state law defining marijuana as medicine.

The current Rescheduling Petition by the Coalition to Reschedule Cannabis, filed in 2002, mentions 8 states that had enacted laws defining marijuana as medicine at the time that petition was filed.

STANDING TO SEEK JUDICIAL REVIEW

Although Olsen agrees the petitioners have standing to petition for a writ of mandamus to compel the DEA to respond to the petition for cannabis rescheduling, Olsen is in doubt about the standing of the petitioners to seek judicial review once the DEA has responded to the petition to reschedule cannabis. Olsen cannot risk the lives of patients on a defect in the petition which may deprive the petitioners of meaningful judicial review.

In Gettman v. DEA, 290 F.3d 430 (D.C. Cir. 2002), the court found that the petitioner did not have standing to seek judicial review from the final order of the Drug Enforcement Administration (“DEA” hereafter). The petitioners in the current rescheduling petition think they have cured that defect by including patients and caregivers in the coalition. Olsen is in doubt. Olsen thinks a state government would have standing to seek judicial review from a final order of the Drug Enforcement Administration on the question of whether marijuana has accepted medical use in treatment in the United States. Olsen bases his opinion on the decision of the U.S. Supreme Court in Gonzales v. Oregon, 546 U.S. 243, 258 (2006):

The Attorney General has rulemaking power to fulfill his duties under the CSA. The specific respects in which he is authorized to make rules, however, instruct us that he is not authorized to make a rule declaring illegitimate a medical standard for care and treatment of patients that is specifically authorized under state law.

Federal scheduling of controlled substances is an administrative rule making process. For the same reason the Attorney General (the DEA) cannot make a rule which would declare an accepted state medical standard for care and treatment specifically authorized by state law illegal under federal law, the Attorney General (the DEA) cannot maintain an existing rule if it declares an accepted state medical standard for care and treatment specifically authorized by state law illegal under federal law. In other words, the DEA cannot legally deny a petition for rescheduling of marijuana if the petition is authorized by a state government and supported by a state law defining marijuana as medicine.

Olsen agrees the petitions have standing to seek a writ of mandamus requiring the DEA to answer the petition to reschedule cannabis, but Olsen has serious doubts about the ability of the coalition members to seek judicial review of any adverse decision by the DEA. There is no excuse for 16 state governments and the District of Columbia, which have accepted the medical use of marijuana, failing to join the coalition or file separately for federal reclassification of marijuana.

OLSEN HAS SUCCESSFULLY CHALLENGED

THE CLASSIFICATION OF MARIJUANA IN IOWA

Unlike Oregon, Iowa does use the same statutory criteria for scheduling as found in the federal act. The eight factor test found in Iowa Code 124. 201 is the same 8 factor test found in 21 U.S.C. 811. The schedule I criteria found in 124.203 are the same criteria found in 21 U.S.C. 812. This is no coincidence. The scheduling criteria in Iowa are derived from the Uniform Controlled Substances Act [found at http://www.law.upenn.edu/bll/archives/ulc/fnact99/1990s/ucsa94.pdf%5D. See Iowa Code 124.601. The Uniform Controlled Substances Act, in turn, references the federal Controlled Substances Act, Prefatory Note for Uniform Controlled Substances Act (1990):

The Uniform Controlled Substances Act (1990) is designed to supplant the Uniform Controlled Substances Act adopted by the National Conference of Commissioners on Uniform State Laws in 1970. The 1970 Uniform Act was designed to complement the federal Controlled Substances Act, which was enacted in 1970.

. . .

This Uniform Act was drafted to maintain uniformity between the laws of the several States and those of the federal government.

. . .

A main objective of this Uniform Act is to continue a coordinated and codified system of drug control initiated with the federal act and the 1970 Uniform Act.

Thus, the similarity in scheduling criteria is no coincidence. It is also no coincidence that each of the states that have adopted the uniform act has maintained its state sovereignty to make scheduling decisions independently of the federal government. In other words, federal rescheduling begins with a state determination of accepted medical use.

CONCLUSION

For the foregoing reasons, Olsen resists the petition for writ of mandamus filed by the Coalition for Rescheduling Cannabis and asks for a declaratory ruling that the current petition to reschedule cannabis is defective because no state government has joined it and to further give the states a time certain in which to join the petition to reschedule cannabis in order to cure the defect.

Dated: May 31, 2011

Respectfully submitted,

Carl Olsen, Pro Se

Post Office Box 4091

Des Moines, IA 503333

515-288-5798 home phone

515-343-9933 cell phone

CERTIFICATE OF SERVICE

I hereby certify that two copies of the foregoing were served via first class mail upon the following parties:

United States Attorney General

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

Joseph D. Elford

Americans for Safe Access

1322 Webster Street, Suite 402

Oakland, CA 94612

Counsel for Petitioners

David C. Holland

Law Offices of Michael Kennedy, P.C.

419 Park Avenue South, 16th Floor

New York, NY 10016

Dated: May 31, 2011

Respectfully submitted,

Carl Olsen, Pro Se

Post Office Box 4091

Des Moines, IA 503333

515-288-5798 home phone

515-343-9933 cell phone

[1] Because Or. Rev. Stat. § 475.035 antedates the Federal Controlled Substances Act, 21 USC §§ 811 to 812, Or. Rev. Stat. § 475.005(6) and Or. Rev. Stat. § 475.035 show a legislative policy to apply different criteria from those of the federal act when classifying controlled substances; Oregon has not chosen to include medical use as a factor. State v. Eells, 72 Or. App. 492, 696 P.2d 564 (1985), review denied by 299 Ore. 313, 702 P.2d 1110 (1985).

Although Or. Rev. Stat. § 475.005(6) states that a controlled substance is defined by reference to the schedules under the Federal Controlled Substances Act, 21 USC §§ 811 to 812, the statute does not adopt the federal criteria, as Oregon has its own standards for amendment of the schedule, as set out in Or. Rev. Stat. § 475.035. State v. Eells, 72 Or. App. 492, 696 P.2d 564 (1985), review denied by 299 Ore. 313, 702 P.2d 1110 (1985).

Advertisements

Discussion

2 thoughts on “Carl Olsen Files Motion to Intervene in Cannabis Coalition’s Rescheduling Petition

  1. Basically semantics,but that’s how they play it in the government.WHEN will the truth matter?Oh yeah,when the pharmacy companies are able to get money out of it.Hmmm

    Posted by Lance Secrest | May 31, 2011, 5:49 pm
    • I think it’s more than semantics. This case, from my understanding, could help decide the state vs federal conflict in regards to medicine. This could be quite interesting from a legal standpoint.

      I emailed Jon Gettman, one of the leaders for the Coalition for Rescheduling Cannabis, and asked for a statement. I’ll update here when I hear back.

      Posted by jsnsoc8 | June 2, 2011, 5:43 pm

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: