Current Events, Legal, Rescheduling

Iowa Medical Marijuana Lawsuit — Hearing Held On State of Iowa’s Motion to Dismiss Case

Last Friday, a hearing on the State of Iowa’s motion to dismiss the lawsuit challenging the constitutionality of Iowa’s controlled substances act was held.

Audio recording of the hearing can be found here:

I typed a transcript of the hearing, which can be seen here.

Iowa Assistant Attorney General Scott Galenbeck, who represented the Iowa Board of Pharmacy during the 2009 medical marijuana hearings, litigated the case for the State of Iowa. Judge McCall oversaw the hearing, and Carl Olsen, the Plaintiff in the case against the State, represented himself.

Mr. Galenbeck, in his attempt to dismiss the merits of the lawsuit, tried to argue “res judicata,” a Latin term used in law that means “a matter already judged.” I doubt this argument will hold any water with Judge McCall:

And just yesterday, and I apologize for not getting this into my original motion, but just yesterday when I decided I needed a refresher course on this case that’s been going on since 2008, I looked at a ruling by a Judge Novak, in response to that motion to expand ruling. And Judge Novak wrote, as to paragraph C… “This court rules,” excuse me…

“That it does not believe that it can determine as a matter of law that
marijuana does have accepted medical use in treatment in the United States,
based upon the medical use of marijuana in 13 states, and therefore fails to
satisfy the criteria for listing in Schedule I of Iowa’s Controlled SubstancesAct.”

“So, my notion is, as I said, I just realized this yesterday, that we have, that Judge Novak may have already ruled on, precisely the issue that is presented.” –Iowa Assistant Attorney General Scott Galenbeck

Carl Olsen responded to the State’s last-minute argument:

“The ruling from Judge Novak that Scott referred to, was a ruling in a petition for judicial review of an agency ruling. And the judge made that ruling in the context of a petition for judicial review.

When they dismissed the case, they never ruled on the merits of that issue, they just said the case was moot. And so I’ve never gotten an opportunity to even file an appeal on that issue, and so, if the court, if you find that this is res judicata, then at least I could appeal.”

Click here to see the full transcript of last week's hearing.

After Olsen responded to the State’s recently discovered res judicata argument, Judge McCall had a question for Mr. Olsen. Judge McCall asked:

“Hasn’t the Pharmacy Board already made the determination you’re asking the court to make?” –Judge Brad McCall

Olsen replied:

“[T]he question is not whether the Iowa Board of Pharmacy thinks it has medical use, the question is whether 16 states, “in the United States,” have enacted laws defining it as medicine? And that’s something the court can take judicial notice of, and that’s something that the Full Faith and Credit Clause of the US Constitution requires for us to recognize: that the law in another state says what it says and means what it says.

The Legislature wrote this law, (see: Iowa Code Chapter 124) they picked the language, they said there was a condition on Schedule I, they said anything in that Schedule, must have “no accepted medical use in treatment in the United States” or it doesn’t fit that classification. Well, that has happened. Over the last 16 years 16 states have done that. The Legislature wrote that in there as a condition.

So the fact that the Legislature has refused to act on the Pharmacy Board’s recommendation is not relevant to my argument at all. My argument is based on that statutory language. To me, that has meaning. If it says marijuana can’t be in Schedule I, if it has accepted medical use in the United States, then that’s what it means. And that’s my argument.” –Plaintiff Carl Olsen

This exchange between Olsen and Judge McCall was the most important exchange of the forty-seven minute hearing: the Iowa Board of Pharmacy ruling has nothing to do whatsoever with the merits of this complex legal argument.

Oregon Medical Marijuana Cardholder Bob Manke, upper left, on KCCI. Also pictured is Iowa Patients for Medical Marijuana Director Dr. Alan Koslow, Federal IND Patient George McMahon, and Carl Olsen. Source: KCCI

Activist Bob Manke, who presented evidence at the Board of Pharmacy hearings and has multiple radio and TV appearances under his belt concerning this issue, gave testimony towards the end of the hearing:

“The state of Oregon gave to me a medical marijuana document. I don’t know how much more plain it could be, and that’s partly why I gave this thing, submitted it to the Board of Pharmacy.

Medical marijuana being legal in other states is a fact of law. Period. I don’t see how any digression can help anything reduce that to something insignificant. It is a fact. I was medically examined by a doctor, and I was passed through the process of state government, and issued a legal document that allows me to grow, possess, smoke, and eat marijuana.” –Bob Manke, Oregon Medical Marijuana Cardholder and Iowa Patient

If the state’s motion to dismiss this case is denied, you better be following WeedPress on Facebook to get the REAL scoop on this case as it develops. If my hunch is right, the State’s Motion to Dismiss is going to be denied. IF that happens, expect to see a fly-by media story about it on your nightly news. I guarantee that fly-by story coverage will confuse the issue (and Iowans), and skew the facts of this lawsuit.

I’m just throwing that out there on the record so I can quote myself in the future. Anyways…

Regardless of whether or not the Judge decides to hear this case, Iowa’s marijuana activism is picking up steam. Follow WeedPress on Facebook for some great upcoming articles, such as Iowa NORML’s future plans, Dr. Lynnice Wedewer’s recent success in fighting cancer with cannabis oil, and other stories you won’t find on your nightly news anytime soon.



3 thoughts on “Iowa Medical Marijuana Lawsuit — Hearing Held On State of Iowa’s Motion to Dismiss Case

  1. Sadly this sort of story does not get coverage from the main stream media. I personally do not smoke marijuana. However, if it has a legitimate medical use and is not harming anyone, taking note that 16 other states have paved the way for its use. Why isn’t the federal government reducing the restrictions on it’s use. If the law changes at a federal level would it not save a lot of time and money?
    Would states then adopt the law and not clog up our courts with this issue? I am curious and do not know that is why I am asking the question.

    Posted by Vince | September 30, 2011, 9:38 am
    • “If the law changes at a federal level would it not save a lot of time and money? Would states then adopt the law and not clog up our courts with this issue?”

      Interesting questions that I can’t answer directly. The fact that the federal government has been unsuccessful in shutting down state medical marijuana laws thus far tells me that states are going to win this battle. Gonzalez v Oregon, a 2006 US Supreme Court ruling concerning a state law that legalized physician-assisted suicide, says that medical issues are left to the states, not the federal government.

      The Obama administration has cited Gonzalez v Raich as evidence of federal supremacy on this issue. However, that case is not the final decision on state vs federal supremacy on the issue of medical marijuana. A pending case in the DC circuit, Sibley v Obama et al, argues that the defendants in Gonzalez v Raich erred in their argument. Had they not erred, Sibley argues, federal prohibition of marijuana would have been ruled invalid.

      I agree with Sibley.

      It is my unprofessional, non-lawyer, layman’s, personal opinion, that states have the right to decide medical issues. Moreover, individuals have the right to determine their own healthcare, and not the state…but on the issue of state vs federal supremacy, healthcare historically is reserved to the states. This issue will not “clog up our courts,” as you put it perfectly, much longer. Regardless of what happens in Sibley’s case, this conflict concerning states rights will be decided in the coming future.

      Posted by jsnsoc8 | September 30, 2011, 1:29 pm
  2. Way to go fellows.

    Posted by Mitchell Brown | September 30, 2011, 12:33 pm

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