Date: Wed, 28 Oct 1998 Organization: Hirsch & Caplan Public Interest Law Firm

To: Subject: Status Report

Status Report: Class Action Class for Freedom of Therapeutic Cannabis

The first step in the judicial proceedings in the Action Class for Freedom from Government Prohibition of Therapeutic Cannabis took place on October 21, 1998.

In his chambers, the presiding judge, the honorable Marvin Katz, conducted the initial Pretrial Conference requiring attendance by trial counsel for the parties, prepared and authorized to discuss all legal issues, trial matters and settlement.

The brief procedural background of the litigation is as follows:

165 plaintiffs from all over the United States filed a class action seeking a judicial declaration that the federal drug laws prohibiting marijuana are scientifically and legally arbitrary, unjustified, and clearly unconstitutional. The defendant, United States of America filed a motion to dismiss the class action contending Congress is empowered to legislate drugs on a federal level and arbitrarily classify and criminalize any substance anyway that they choose. In other words…Congress is not only federal lawmaker, but also government physician with respect to cannabis, a natural, non-toxic plant, which has been accepted and used as a versatile and effective healing agent globally throughout recorded history. The government also complained that the Class Action Complaint, as originally pleaded was too long and created a burden on the government to answer. Plaintiffs then, asked the court for leave to amend the Complaint making it briefer in sections, and redrafting and restyling the constitutional arguments, to ensure clarity and precision in the delineation of the constitutional issues. Although leave to amend is freely and liberally granted throughout the entire federal judicial system, the government filed formal written opposition to plaintiffs’ request for leave to amend.

At the beginning of the conference, Judge Katz inquired concerning the fundamental argument propounded by plaintiffs that there is no equal protection of the law for all citizens if only eight sick people are supplied cannabis by the government and the rest who might be eligible to receive legal status do not. After hearing brief position statements from the parties, Judge Katz raised the possibility of settling the class action litigation.

Addressing the settlement issue, Judge Katz requested the parties to consider and respond to a settlement which is founded on the following principles:

The government would supply marijuana to each medically certified class action plaintiff as the government now supplies the eight legal recipients. The surviving eight receive a monthly supply of 300 pre-rolled cannabis cigarettes, aka joints. The marijuana which is supplied, has been grown and exclusively controlled by the federal government on farmland in Oxford, Mississippi for more than 20 years.

There would be research studies conducted on this group of new recipients.

In consideration, the plaintiffs would agree to settle, discontinue, and end the instant class action litigation.

At the end of the conference, Judge Katz reiterated the settlement framework again, requesting responses to the settlement principles from the appropriate government decision makers, and of course each plaintiff class representative.

As to pending legal and scheduling issues:

The court denied the governments opposition to plaintiffs’ motion to amend the complaint. The court asked the parties to work out the details in a stipulation which recites that the amended complaint will be filed in 20 days (from 10/21/98) and that the government would again have 60 days to move, answer or otherwise plead to the Amended Complaint. Plaintiffs’ counsel stated that he would either include in the amended complaint, or separately and simultaneously file a motion for summary judgment in favor of the class and against the federal government to complement and supplement the declaratory judgment and injunctive relief previously pleaded in the Class Action Civil Complaint. The stipulation relating to scheduling will also provide that the government has 60 days to file opposition to plaintiffs’ motion for summary judgment. The court made it clear that before any judicial decisions were made, the parties would have an opportunity to place their respective positions and evidence on the record of this judicial proceeding.

Lead plaintiff Kiyoshi Kuromiya, plaintiff #143 Elise Segal and Joan Bello in her capacity as paralegal attended and participated at the conference with trial counsel Larry Hirsch.

Kiyoshi was asked for his observations on the settlement concept and whether this approach was a breakthrough. Kiyoshi’s response follows:

“I understood Judge Katz to say that he did not understand why the HHS terminated the compassionate use program in 1992. The lawyer for the government was not able to give any information at all on this…and seemed in the judge's view not to have done her homework. The DEA official gave some vague and complicated explanation that the compassionate use program was to fulfill some obligations that resulted from a lawsuit. The Judge first asked if the government would consider settling with the action class by extending the already existing compassionate use program to these new applicants – presumably based on their appeal for “equal protection.” The government lawyer was adamant that that was unacceptable to the government and would be costly to implement and monitor. The judge did not appear to be swayed by the expense argument. He sent the lawyer back to Washington to get further information on the compassionate use program and why it was terminated and why it should not be extended. He also declined the government's petition to dismiss the class action suit. He also instructed the government lawyer to get more information on current research, the comparison between FDA-licensed Marinol and smokeable marijuana, and the possibility of running some research as part of the compassionate use program. He then asked the class action to poll its members as to the acceptability of a settlement that would add them to the compassionate use protocol. The sense of the class members in the room was that this might be acceptable since it would open the door immediately for the individuals suffering damages here and now and in the future for additional members of the class to be added to an expanded rather than a downsized compassionate use program.” [KK]

The breakthrough is the fact that this is the first time that the Judicial branch has intervened in the equal protection aspect of the termination of the federally sponsored compassionate use program for cannabis. There are members of the class who applied for admission into the program in 1992 but were declined without just cause. In one fell swoop, it collapses the government argument that marijuana has been shown by anyone not to be effective in the conditions that were part of the compassionate use program as it existed in 1992. McCaffrey's statements about the unproven value of cannabis are put on hold, because compassionate use programs can be instituted for experimental drugs prior to peer-reviewed research and licensure – that is the very purpose of such compassionate use programs. That is why an individual can get an unlicensed drug, for individual use, shipped from abroad when it is unavailable in this country.”[KK]

Lawrence Elliott Hirsch, Trial Counsel for Plaintiffs Hirsch & Caplan Public Interest Law Firm 215 496 9530 Fax: 215 496 9532 Email: