Carl Olsen v. Iowa Board of Pharmacy

[carl]

Under Iowa law, the Iowa Board of Pharmacy is charged with annually reviewing and recommending changes to the Iowa Uniform Controlled Substances Act (IUCSA). The IUCSA contains a religious exemption for the religious use of peyote by members of the Native American Church. In a law suit filed in October of 2008, Olsen claimed the Board's misclassification of marijuana as having no accepted medical use in treatment in the United States violates his constitutional right to an equal protection argument for religious use of marijuana based on the accepted medical use of marijuana. The Iowa Board of Pharmacy responded by saying that it was not bound by what other states have done. In April of 2009, an Iowa District Court ruled the Board had exceeded it statutory authority and remanded the issue back to the agency. In July of 2009, the Board again rejected Olsen's petition and another court hearing was scheduled for September of 2009. The court recently cancelled the hearing because of another trial and a new date has not yet been set. Olsen is expecting the court to reschedule the hearing for sometime in October of 2009.

A summary of the proceedings at the Iowa Board of Pharmacy and in the Iowa District Court can be found at: http://www.iowamedicalmarijuana.org/petitions/iowa.aspx

[Brenda Shoop]

Looking forward to some action on this!

Should we expect another earthquake, Brother Carl?

[carl]

I have been thinking about that earthquake lately. It was like someone was shaking my toe to wake me up for court. Of course, I lost that case. But, I did pick up a lot of support along the way and I think I learned a lot from it. So, maybe it was just a light shake to let me know I'm moving in harmony with the spirit. But, just a light shake, to let me know there's a lot more left to do. I think building community support, which is what you're doing here, is critical. It's especially important to get local support, and the ACLU of Iowa has been doing some heavy lifting for me. It's good to see you're back in action. God bless you, sister!

[carl]

We had another hearing on October 9. The judge was in a cheerful mood. He joked that people were coming up to him and telling him they had heard he had legalized marijuana. The judge asked what the case was about and I explained that 13 states have accepted the medical use of marijuana, Iowa says marijuana has no accepted medical use in the United States, and its just a simple matter of law that Iowa cannot have a law telling another state what to do. If marijuana has accepted medical use in the United States, then Iowa has it misclassified. The judge then asked the state attorney for his take on the situation. The state attorney said I was asking for a declaratory judgment and the Board of Pharmacy has no authority to make declaratory judgments. I responded by saying the court can make a declaratory judgment and that the Board's opinion is just an opinion. The court has authority to make declaratory judgments and that's what I want. The judge said he always loves it when everyone agrees. The judge said it looks like everyone agrees I want a declaratory judgement. He said he would rule on it, so we're just waiting for a ruling. After the hearing, the judge came down off the bench and talked to us for a while. He said he gets a lot of boring cases and he always enjoys an interesting one like this one. He also started talking about some pro se litigants that were extremely knowledgeable about the law and very skillful in court, so I assumed he was comparing me to those litigants. Stay tuned for further developments.

[Brenda Shoop]

I'm happy that your hearing went well, Brother Carl.

Can't wait to hear the ruling!

[carl]

I lost, so I'm off to appeal to the Iowa Supreme Court. The ruling was very strange. The judge completely reversed his prior ruling but did not say that is what he intended to do. We now have two rulings from this judge that appear to say exactly the opposite thing. We've also filed a motion for an expanded ruling to address the inconsistency in the two rulings.

[Brenda Shoop]

Sounds like stalling to me.

Keep us updated please, Brother Carl.

[carl]

Yes, I think the court is stalling. We are asking the court to rule that marijuana is no longer in Iowa schedule I. The Board of Pharmacy may recommend removing marijuana from Iowa schedule I. If that happens, the state will move to dismiss because the relief being sought appears to have been granted. We will respond by saying the case should not be dismissed because the Board of Pharmacy only makes a recommendation and the Iowa Legislature has not approved it yet. After that, the Iowa Legislature may remove marijuana from Iowa schedule I. If that happens, the state will move to dismiss again. I suspect the court is trying to avoid making a ruling and hoping to give the Board and the Legislature time to make the decision first.

We want the state of Iowa to tell the DEA marijuana has accepted medical use in Iowa and it must be removed from federal schedule I. I was hoping the court would rule on it and tell the Attorney General to tell the DEA to remove marijuana from federal schedule I. I may still be able to do that if the Iowa Legislature removes it from Iowa schedule I. It's kind of hard to predict exactly how this is going to play out.

[carl]

Get ready. The Board of Pharmacy will rule on February 17. We'll see what kind of equal protection claim I end up with.

[budpalm]

Nice job, Carl.

Pharmacy board supports medical marijuana

By TONY LEYS • tleys@dmreg.com • February 18, 2010

State regulators offered some hope Wednesday for people who want to use marijuana for medical purposes.

The Iowa Board of Pharmacy voted unanimously to recommend legislators reclassify the drug in a way that could allow people to use it for pain, nausea and other symptoms from diseases such as cancer, AIDS or multiple sclerosis.

If that happened, Iowa would join 14 other states that have legalized medical marijuana. But Iowans should not expect legal marijuana shops to open soon.

Legislators probably will not consider the idea until at least next year.

Under the pharmacy board's proposal, the state first would set up a task force, including patients, medical professionals and law enforcement officers, to recommend a limited medical-marijuana system.

Pharmacy board members said they want to ensure that only patients with legitimate medical needs could get the drug.

"Without adequate controls, we would have mayhem," said board Vice Chairwoman Susan Frey, a Villisca pharmacist.

Marijuana supporters clapped and cheered after the vote.

"This is a big thing. This is momentum," said Carl Olsen of Des Moines, one of the main proponents.

The 6-0 vote came after a morning of discussion in which board members expressed mixed feelings.

An Iowa Poll published this week in The Des Moines Register found that 64 percent of Iowans support allowing patients to use marijuana if their doctors approve. But board members said they were not swayed by the poll.

"This isn't like running for prom queen," said Margaret Whitworth, a board member from Cedar Rapids.

Board Chairman Vernon Benjamin, a Fort Madison pharmacist, said he believes marijuana is no more addictive than alcohol or prescription narcotics. He also said marijuana's lure to young people probably is enhanced by the fact that it is illegal.

He said the state's classification of marijuana as a Schedule I drug, the most restricted kind, could dissuade much-needed research on it.

Frey expressed reservations about medical marijuana. She said that current pharmaceutical medications based on marijuana offer the same benefits, despite the critics' claims that they are not as good. She said leaf marijuana has a wide variety of strengths and chemical components.

"As a health professional, I would have a difficult time recommending that therapy, because I couldn't guarantee the patient would get the same effects every time," she said.

Frey also raised the specter of the experiences in California, which has some of the most lenient medical-marijuana rules. Law officers there complain that people have been able to obtain the drug easily without proving a legitimate need.

In the end, however, Frey agreed with colleagues that the Legislature should take a serious look at the issue.

Medical-marijuana bills for Iowa are considered dead for the 2010 session, but proponents hope the pharmacy board's recommendation gives the issue momentum for next year.

Sen. Joe Bolkcom, D-Iowa City, one of the Legislature's leading proponents of the idea, said the pharmacy board's vote and the Iowa Poll results should help persuade lawmakers to give it significant discussion.

He said he hoped the task force recommended by the board could be formed this year and bring recommendations to the Legislature next year. He said the state should not have a wide-open medical-marijuana system.

"We need to try to figure out what would work in Iowa," he said.

Rep. Clel Baudler, R-Greenfield, a former state trooper, expressed surprise at the pharmacy board's vote.

"I thought they were smarter than that," he said.

Baudler dismissed the medical-marijuana movement as a sham, pushed by people who want to get high. He joked that he plans to go to California this summer, stop by a medical-marijuana shop and claim he needs the drug for his artificial knee or for depression.

"Then I'll lie about having hemorrhoids so I can get medical marijuana for hemorrhoids and get smoke blown up my rear end," he said.

Although using less colorful language, the pharmacy board had expressed reservations last year about medical marijuana and declined to give it much discussion. But proponents sued, and a judge ruled that the board had to consider the matter. The board then held four hearings around the state, at which most speakers favored medical marijuana.



The American Civil Liberties Union of Iowa, which pressed the lawsuit, said Wednesday it probably would drop the case in the wake of the board's vote. Randall Wilson, the group's legal director, estimated the chances of the board's recommendation leading to legal use of medical marijuana at "50-50."

During Wednesday's meeting, pharmacy board staff members noted a decades-old section of Iowa law giving the board authority to set rules allowing medical uses of marijuana. But several board members said they thought legislators should decide the matter.

Proponents agreed, noting that any board rules would have to be approved by legislators anyway.

Federal law now prohibits marijuana, but the Obama administration has said it would not prosecute people for using or dispensing the drug if they followed state medical-marijuana laws. Under federal law, physicians are not permitted to prescribe the drug. However, states with medical-marijuana laws usually have doctors sign notes saying they approve of their patients' use of it.

http://www.desmoinesregister.com/articl ... -marijuana