When the lawyers behind the federal cannabis litigation, Washington v. Sessions, first filed suit, many commentators asked: “How long will this really take?” Unfortunately, there is no straight answer. Months? Years? Hopefully not, as the plaintiffs continue to suffer irreparable harm, resulting from the unconstitutional classification of cannabis as a Schedule I drug.
This, according to the plaintiffs, justifies an expedited resolution of the case. And in an early win for justice, it appears that the court agrees.
In early September, attorneys for the plaintiffs filed a motion for a preliminary injunction on behalf of just one of the plaintiffs — Alexis Bortell, an 11-year-old “medical refugee” with intractable epilepsy who moved, with her family, from Texas to Colorado to obtain state-legal medical cannabis to treat her life-threatening seizure disorder.
Before finding medical cannabis, Alexis’ physicians recommended various conventional pharmaceuticals with disastrous side effects. When none of those treatments cured her disorder, several physicians recommended surgically removing part of her brain. One physician, however, suggested that Alexis consider cannabis instead and it has proven to be the only effective treatment. To date, she has been seizure-free for more than 330 days. But Alexis must always possess her medical cannabis, which prevents the onset of her seizures, akin to an Epi-Pen for anaphylaxis or a rescue inhaler for asthma.
But since moving to Colorado, Alexis has been a prisoner in the state. As described in the lawsuit’s amended complaint, it would be a federal crime for Alexis, while in possession of her medical cannabis, to travel interstate or onto federal lands (including national parks located in Colorado) and military bases (where she and her parents, both military veterans, are entitled to a host of benefits, such as health care and commissary). As an 11-year-old, she also faces the constant predicament of risking arrest and/or interference by Child Protective Services, in order to exercise a multitude of constitutional rights, including her fundamental rights to travel, to be left alone and to preserve her own life.
With NORML’s Lobby Days scheduled for September in Washington, D.C., the urgency with which Alexis sought to resolve her travel predicament escalated. Keith Stroup, founder and legal counsel of NORML, specifically requested her attendance. Congressman Lou Correa of California, a legalization advocate, also expressed his desire to meet with Alexis.
And the First Amendment to the U.S. Constitution guarantees all citizens — including minors — the right to free speech and to petition the government for a redress of grievances.
The notion that Alexis, a special invitee to Capitol Hill, cannot legally lobby for legalization of her medicine without violating the very law she seeks to change, prompted her attorneys to move for the preliminary injunction referenced above, and to amend the complaint to add, among other things, the defendants’ continuing violation of Alexis’ First Amendment rights.
A preliminary injunction is an equitable remedy sought for the purpose of preventing another party from proceeding with a line of conduct, pending the final resolution of a lawsuit. In this instance, Alexis sought to restrain the government from enforcing the Controlled Substances Act, as it pertains to cannabis, and as it pertains to her, so she could legally and safely board a plane with her medical cannabis to lobby her elected officials during NORML’s Lobby Days (in a federal building). Although typically refused as a drastic remedy, preliminary injunctions are often granted, particularly under circumstances where, as in this case, the plaintiffs are threatened with the loss of constitutional rights.
The court declined to permit Alexis to travel for NORML’s Lobby Days, but granted her an expedited hearing on the preliminary injunction and consolidated the hearing with a trial on the merits of the entire lawsuit — a far greater win. Initially, the court ordered all parties to immediately proceed with discovery, meaning they would have the opportunity to take depositions (including, potentially, of Attorney General Jeffrey Sessions), and that the government would be required to turn over documents relative to the classification of cannabis as a Schedule I drug.
Upon reconsideration, however, the court allowed the defendants to interpose a motion to dismiss, staying discovery pending its resolution. Nonetheless, the court remains committed to an expedited proceeding and directed the parties to fully submit the motion no later than Nov. 3, 2017, and prepare certain disclosure statements in the interim.
In response to this most recent order, Michael Hiller, lead counsel for the plaintiffs, stated: “We remain confident that, irrespective of the court’s decision on the reconsideration motion, the plaintiffs will prevail on their claims that the Controlled Substances Act, as it pertains to cannabis and as applied to them, is unconstitutional under the First, Fifth, Ninth and 14th Amendments.”
Lauren Rudick represents investors and startup organizations in all aspects of business and intellectual property law, specializing in cannabis, media and technology. Her law firm, Hiller, PC (www.hillerpc.com), is a white-shoe boutique firm with a track record for success and handling sophisticated legal matters that include business and corporate law.[contextly_auto_sidebar]