Seeley v. State, 63534-0

CourtUnited States State Supreme Court of Washington
Writing for the CourtMADSEN; DURHAM; SANDERS; SANDERS
Citation940 P.2d 604,132 Wn.2d 776
PartiesRalph SEELEY, Respondent, v. STATE of Washington, Appellant.
Docket NumberNo. 63534-0,63534-0
Decision Date24 July 1997

Page 776

132 Wn.2d 776
940 P.2d 604
Ralph SEELEY, Respondent,
v.
STATE of Washington, Appellant.
No. 63534-0.
Supreme Court of Washington,
En Banc.
Argued Sept. 25, 1996.
Decided July 24, 1997.

[940 P.2d 606]

Page 780

Christine Gregoire, Attorney General, Melissa Cain, Assistant Attorney General, Olympia, for Appellant.

Ralph Seeley, Tacoma, for Respondent.

Page 781

Kevin Hamilton, Erika J. Starrs, Stephen C. Willey, Seattle, Jeffrey T. Haley, Bellevue, Davis, Wright & Tremaine, Bruce Johnson, Gregory Kopta, Kraig Baker, Steinborn & Associates, Jeffrey Steinborn, Seattle, Michael Cutler, Boston, MA, for Amicus Curiae.

MADSEN, Justice.

The State appeals a decision of the Pierce County Superior Court holding that RCW 69.50.204(c)(14), which places marijuana in Schedule I of controlled substances, is unconstitutional, violating art. I, §§ 12, and 32 of the Washington Constitution. This court concludes that RCW 69.50.204(c)(14) does not violate the Washington Constitution and reverses the trial court.

STATEMENT OF THE CASE

The Respondent, Mr. Seeley, was diagnosed with chordoma, a rare form of bone cancer, in 1986. Mr. Seeley has undergone numerous surgeries including the removal of his right lung and a removal of part of the lower lobe of his left lung. Mr. Seeley also suffers from "severe Obstructive Airway Disease." [940 P.2d 607] Clerk's Papers (CP) at 267. Mr. Seeley's condition is diagnosed as terminal.

Throughout his battle with cancer, Mr. Seeley has received radiation therapy and chemotherapy. Mr. Seeley was treated with various chemotherapeutic agents which commonly produce nausea and vomiting. He was treated with synthetic tetrahydrocannabinal (THC) (Marinol or dronabinol) and other antiemetic drugs for the nausea and vomiting which resulted from the chemotherapy. Mr. Seeley has also smoked marijuana during chemotherapy. Mr. Seeley prefers smoking marijuana to control these

Page 782

side effects. Mr. Seeley states that smoking marijuana has been more effective in relieving his symptoms than other antiemetics.

Marijuana is a hallucinogen derived from the Indian hemp plant. One of the principle active ingredients in marijuana is delta-9-tetrahydrocannabinal (THC). The amount of THC present in marijuana varies in the plant depending on the origin of the plant, growing conditions, and cultivation. In addition to THC, marijuana contains over 400 other chemical substances including 61 identified cannabinoids, the active ingredients in marijuana, including THC. In 1986, the pure synthetic form of THC (Marinol or dronabinol) was approved by the federal Food and Drug Administration (FDA) and is used as an antiemetic. The FDA has not approved marijuana for medical treatment.

Marijuana is regulated by both the state and federal government. Washington adopted the Uniform Controlled Substances Act, RCW 69.50, in 1971. The Uniform Controlled Substances Act parallels the federal Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 801 (1996 Supp.). These laws establish a comprehensive statutory mechanism to control the manufacture, distribution, and use of controlled substances. Penalties are imposed for violations of the law. Both statutes place controlled substances in numerical schedules I to V and create an administrative mechanism to change the placement of substances on the various schedules. Substances on schedule I are illegal under all circumstances except for research. Substances on schedules II to V are legal to possess only under a valid prescription. Federal and state laws impose tandem registration requirements on practitioners, pharmacists and manufacturers of controlled substances.

Both federal and state statutes list marijuana in schedule I of controlled substances. See RCW 69.50.204(c)(14); 21 C.F.R. § 1308.11(d)(19) (1996). Thus, it is illegal for use under all circumstances except under narrow exceptions

Page 783

for research. Controlled substances listed in schedule I under federal law may not be prescribed or dispensed anywhere in the United States unless a specific registration to do so is obtained to use the substance for research purposes. See 21 U.S.C. §§ 822-23, 872 (1981). Marijuana cannot be legally prescribed, nor can a prescription for marijuana be filled by a pharmacist in Washington unless a federal registration is granted.

The State of Washington obtained federal approval to use marijuana for research purposes and the Legislature passed the Controlled Substances Therapeutic Research Act (Research Act) in 1979. RCW 69.51. The Research Act was enacted to determine if the principle ingredient in marijuana, THC, was effective in the treatment of nausea and vomiting caused by radiation and chemotherapy. RCW 69.51.020; see also CP at 41. Although still law, the Legislature stopped funding the program in 1980. The reason given for the discontinuation of funding was because the results were favorable and THC was synthesized, approved by the FDA, and marketed as Marinol. Thus, the Legislature determined that state funding was no longer necessary.

However, in 1996, the Washington Legislature restored funding to the board of pharmacy to study the effects of medicinal marijuana. 1 The study is to be performed in connection with a Washington State University research project which will research a tamper-free means of cultivating effective and safe marijuana plants for medicinal purposes.[940 P.2d 608] 1996 Legislative Budget Notes, Supplemental Budget, § 217, at 114 n. 8, § 605, at 169 n. 8. 2

Similar to the federal statute, Washington's Uniform

Page 784

Controlled Substances Act classifies controlled substances based on their therapeutic value, potential for abuse, and safety. A substance is listed in schedule I if it has (1) a high potential for abuse, (2) no currently accepted medical use in treatment in the United States, and (3) no accepted safety for use in treatment under medical supervision. RCW 69.50.201. A substance is placed in schedule II upon finding that: (1) the substance has a high potential for abuse, (2) the substance has currently accepted medical use in treatment or currently accepted medical use with severe restrictions, and (3) the abuse of the substance may lead to severe psychic or physical dependence. RCW 69.50.205.

In Washington, the Legislature made the initial scheduling placements when it adopted the Uniform Controlled Substances Act in 1971, including the placement of marijuana on schedule I. In 1986, the Legislature placed Marinol, the FDA approved form of synthetic THC, on schedule II. 3 Laws of 1986, ch. 124 § 3 (codified at RCW 69.50.206(f)(1)). The Legislature kept marijuana on schedule I. All other forms of tetrahydrocannabinols are listed in schedule I. RCW 69.50.204(c)(22).

The Uniform Controlled Substances Act specifically permits the board of pharmacy to schedule or reschedule controlled substances based on specific criteria. RCW 69.50.201. 4 The board of pharmacy, pursuant to its authority,

Page 785

has maintained marijuana in schedule I. 5 Mr. Seeley has not asked the board of pharmacy to initiate the state administrative process described in RCW 69.50.201 for rescheduling marijuana and the board has not independently initiated that administrative process.

The Respondent, Ralph Seeley, filed this pro se lawsuit against the State of Washington in the Superior Court for Pierce County. Mr. Seeley asked the Superior Court for a declaratory judgment finding RCW 69.50.204(c)(14), which places marijuana on schedule I of controlled substances, unconstitutional under art. I, §§ 12, 32 of the Constitution of the State of Washington. Additionally, Mr. Seeley asked the court for an order directing the board of pharmacy to reclassify marijuana so that it may be prescribed by physicians for the plaintiff and other citizens of Washington who have a legitimate medical need for its therapeutic effects.

The Pierce County Superior Court granted Mr. Seeley's motion for summary judgment, finding that the placement of marijuana in schedule I of controlled substances violated his rights and liberties as protected by the Constitution of the State of Washington, art. I, §§ 12, 32. The State of Washington directly appealed from this judgment and this [940 P.2d 609] court granted review pursuant to RAP 4.2(a)(2).

Page 786

DISCUSSION

I. Independent Analysis Under The Privileges and Immunities Clause

Respondent asserts that classifying marijuana in schedule I of controlled substances violates the privileges and immunities clause of the Washington Constitution.

Respondent asserts that the privileges and immunities clause of the Washington Constitution affords the citizens of Washington greater protection than its federal counterpart, the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and, thus, requires an independent analysis based on the state constitutional provision. Respondent maintains that this court should apply the independent analysis adopted by the Oregon Supreme Court, whose state privileges and immunities clause is substantially identical to the Washington Constitution. See State v. Clark, 291 Or. 231, 630 P.2d 810, cert. denied, 454 U.S. 1084, 102 S.Ct. 640, 70 L.Ed.2d 619 (1981). 6

Washington courts look to the six factors outlined in State v. Gunwall, 106 Wash.2d 54, 61-62, 720 P.2d 808, 76 A.L.R.4th 517 (1986), to determine whether a state constitutional provision extends broader rights than the Federal Constitution.

Page 787

The first criterion involves an analysis of the textual language of the state constitutional provision, and the second criterion requires a comparison of the parallel state and federal provisions. Id. 106 Wash.2d at 61, 720 P.2d 808. Article I, section 12 of the Washington Constitution provides:

No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms...

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