`
`In the
`Supreme Court of the United States
`
`MARVIN WASHINGTON, DB, AS PARENT OF INFANT
`AB, JOSE BELEN, SC, AS PARENT OF INFANT JC,
`AND CANNABIS CULTURAL ASSOCIATION INC.,
`Petitioners,
`
`v.
`WILLIAM PELHAM BARR, IN HIS OFFICIAL
`CAPACITY AS UNITED STATES ATTORNEY
`GENERAL, UNITED STATES DEPARTMENT OF
`JUSTICE, TIMOTHY J. SHEA, IN HIS OFFICIAL
`CAPACITY AS ACTING DIRECTOR OF THE DRUG
`ENFORCEMENT ADMINISTRATION, UNITED
`STATES DRUG ENFORCEMENT ADMINISTRATION,
`AND THE UNITED STATES OF AMERICA,
`Respondents.
`
`On PetitiOn fOr a Writ Of CertiOrari tO the
`United StateS COUrt Of aPPealS fOr the SeCOnd CirCUit
`
`BRIEF OF MINORITY CANNABIS BUSINESS ASSOCIATION
`AND MINORITIES FOR MEDICAL MARIJUANA, INC. AS
`AMICI CURIAE IN SUPPORT OF PETITIONERS
`
`WIllIam Bogot
`Joseph CollIns
`Counsel of Record
`alexandra soBol
`Fox rothsChIld llp
`321 North Clark Street, Suite 1600
`Chicago, Illinois 60654
`(312) 517-9227
`jcollins@foxrothschild.com
`
`Counsel for Amici Curiae
`
`September 4, 2020
`
`298074
`
`
`
`i
`
`TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . i
`
`TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . ii
`
`INTERESTS OF THE AMICI CURIAE . . . . . . . . . . .1
`
` SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . .2
`
`ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
`
`I. The Classification of Cannabis as a Schedule
`I Drug Under the CSA (21 U.S.C. § 812(B)(1))
`Violates the Due Process Clause of the Fifth
`Amendment to the U.S. Constitution Because
`the Classification Was Based on an Invidious
`Discriminatory Purpose. . . . . . . . . . . . . . . . . . . . .3
`
`
`
`II. Administrative Remedies Would Be Futile
`Because the Administrative Body Has Shown
`Itself to Be Biased on Numerous Occasions. . . . .7
`
`
`
`CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
`
`TABLE OF CONTENTS
`
`Page
`
`
`
`ii
`
`Cases
`
`Bolling v. Sharpe,
`
`347 U.S. 497 (1954) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
`
`McCarthy v. Madigan,
`
`503 U.S. 140 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
`
`U.S. Dep’t of Agriculture v. Monroe,
`
`413 U.S. 528 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
`
`Village of Arlington Heights v.
`Metropolitan Housing Development Corp.,
`429 U.S. 252 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
`
`
`
`Washington v. Davis,
`
`426 U.S. 229 (1976). . . . . . . . . . . . . . . . . . . . . . . . . . .3, 4
`
`Statutes and Other Authorities
`
`U.S. Const. Amend. V . . . . . . . . . . . . . . . . . . . . . . . . . . .2, 7
`
`21 U.S.C. § 811(a)(2)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
`
`21 U.S.C. § 812(B)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
`
`Comparison of Bills to Regulate Controlled
`Dangerous Substances and to Amend the
`Narcotic and Drug Laws, Staff of H. Comm.
` Ways and Means (Aug. 8, 1970) . . . . . . . . . . . . . . . . . .5
`
`TABLE OF CITED AUTHORITIES
`
`Page
`
`
`
`iii
`
`Controlled Substances Act, 21 U.S.C. § 812. . . . . . . . . . .2
`
`Drug Abuse Control Amendment-I 970: Hearings
`on H.R. 11701 and H.R. 13743 Before the
`Subcomm. on Public Health and Welfare of H.
`Comm. on Interstate and Foreign Commerce,
`91st Cong. 80 (1970. . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
`
`
`
`Health Secretary: There’s ‘no such thing as medical
` marijuana,’ dayton daIly neWs (Mar. 5, 2018) . . . .8
`
`James Higdon, Jeff Sessions’ Coming War on Legal
` Marijuana, polItICo (Dec. 5, 2016) . . . . . . . . . . . . . . .9
`
`Christopher Ingraham, Jeff Sessions personally
`asked Congress to let him prosecute
`m e d i c a l - m a r ij u a n a p r o v i d e r s, t h e
` WashIngton post (June 13, 2017) . . . . . . . . . . . . . . . . .9
`
`Josh Gerstein, Sessions to step up drug-war seizures,
` polItICo (July 19, 2017) . . . . . . . . . . . . . . . . . . . . . . . . .9
`
`Paula Reid and Stephanie Condon, DEA chief says
`smoking marijuana as medicine “is a joke,”
` CBS News (Nov. 4, 2015). . . . . . . . . . . . . . . . . . . . . . . .8
`
`Cited Authorities
`
`Page
`
`
`
`1
`
`INTERESTS OF THE AMICI CURIAE 1
`
`The Minority Cannabis Business Association
`(“MCBA”) is a 501(c)(6) non-profit organization created
`to serve the needs of minority cannabis entrepreneurs,
`workers, patients, and consumers alike. Its mission is to
`create equal access and promote economic empowerment
`for communities of color through policy considerations and
`outreach initiatives aimed at achieving equity for those
`most affected by the “War on Drugs.”
`
`Minorities for Medical Marijuana, Inc. (“MFMM”)
`is a 501(c)(3) non-profit organization focused on advocacy
`and education in support of minorities who have a vested
`interest in cannabis public policy, business, healthcare
`access, and social impact. MFMM envisions a forward
`thinking and progressive approach to social justice and
`equality in cannabis.
`
`Together, amici are committed to dismantling
`systemic discrimination in the cannabis industry. As
`part of those efforts, they share an interest in addressing
`the discriminatory intent underlying the classification
`of cannabis as a Schedule I drug under the Controlled
`Substances Act as well as inherent bias within the Drug
`Enforcement Agency’s (“DEA’s”) administrative review
`process. Accordingly, amici respectfully submit this brief
`in support of certiorari and urge the Court to grant the
`Petition for a Writ of Certiorari.
`
`1. MCBA and MFMM state that no counsel for a party to
`this case authored this brief in whole or in part; and no counsel
`or party, other than amici and its counsel, made a monetary
`contribution intended to fund the preparation and submission of
`this brief. All parties have received timely notice of amici’s intent
`to file and have consented to the filing of this brief.
`
`
`
`2
`
` SUMMARY OF ARGUMENT
`
`Petitioners filed a complaint in the United States
`District Court for the Southern District of New York
`seeking (1) a judicial declaration that the classification
`of cannabis as a Schedule I drug under the Controlled
`Substances Act, 21 U.S.C. § 812 et seq. (“CSA”), is
`unconstitutional, and (2) a prayer for injunctive relief
`against enforcement of the CSA as it pertains to cannabis.
`(Pet. App. 159a-279a). The district court dismissed
`the complaint with prejudice for failure to exhaust
`administrative remedies and, in the alternative, failure
`to state a claim. (Id. at 32a-58a). The United States
`Court of Appeals for the Second Circuit affirmed in part,
`agreeing that Petitioners were first required to exhaust
`administrative remedies. (Id. at 3a-29a). Petitioners now
`seek from this Court a writ of certiorari to review the
`decision of the United States Court of Appeals for the
`Second Circuit.
`
`In their Petition for a Writ of Certiorari (“Petition”),
`Petitioners argue that the classification of cannabis as
`a Schedule I drug under the CSA is so irrational that it
`violates the Due Process Clause of the Fifth Amendment
`to the U.S. Constitution. (Pet. 29-31). Amici join in this
`argument, but further submit (as Petitioners argued in
`the lower courts) that such classification also violates the
`Due Process Clause because it was based on an invidious
`discriminatory purpose.2
`
`2. Petitioners’ Memorandum of Law in Opposition to
`Respondents’ Motion to Dismiss (“District Court Brief”) at 57-59;
`Petitioners’ Appellate Brief to the Second Circuit Court of Appeals
`(“Appellate Brief”) at 47-50.
`
`
`
`3
`
`Petitioners further argue in their Petition that they
`were not first required to exhaust administrative remedies
`prior to filing their complaint because (1) the complaint did
`not seek an administrative remedy, and (2) administrative
`review would be futile because the agency—by its own
`admission—is not empowered to grant the relief sought by
`Petitioners. (Id. at 31-33). Amici join in these arguments,
`but further submit (as Petitioners argued in the lower
`courts) that administrative review would also be futile
`because the administrative body has shown itself to be
`biased.3
`
`Given the millions of registered patients who rely
`upon cannabis to preserve their health and lives, and
`the discriminatory motives behind the classification of
`cannabis under the CSA, it is imperative that this Court
`provide clarity in this area of law.
`
`ARGUMENT
`
`I. The Classification of Cannabis as a Schedule I Drug
`Under the CSA (21 U.S.C. § 812(B)(1)) Violates the
`Due Process Clause of the Fifth Amendment to the
`U.S. Constitution Because the Classification Was
`Based on an Invidious Discriminatory Purpose.
`
`The central purpose of the Equal Protection Clause
`of the Fourteenth Amendment is the prevention of official
`conduct discriminating on the basis of race. Washington
`v. Davis, 426 U.S. 229, 239 (1976). “It is also true that the
`Due Process Clause of the Fifth Amendment contains an
`equal protection component prohibiting the United States
`from invidiously discriminating between individuals or
`groups.” Id. (citing Bolling v. Sharpe, 347 U.S. 497, 499
`
`3. District Court Brief at 107-08; Appellate Brief at 27-29.
`
`
`
`4
`
`(1954)). In Davis, this Court set forth the “basic equal
`protection principle” that the governmental action claimed
`to be discriminatory must ultimately be traced to an
`invidious discriminatory purpose. 426 U.S. at 240. An
`invidious discriminatory purpose may often be inferred
`from “the totality of the relevant facts.” Id. at 242.
`“Determining whether invidious discriminatory purpose
`was a motivating factor demands a sensitive inquiry into
`such circumstantial and direct evidence of intent as may
`be available.” Village of Arlington Heights v. Metropolitan
`Housing Development Corp., 429 U.S. 252, 266 (1977);
`see also U.S. Dep’t of Agriculture v. Monroe, 413 U.S.
`528, 534 (1973) (finding a statutory amendment violated
`the equal protection clause because it “was intended to
`prevent so called ‘hippies’ and ‘hippie communities’ from
`participating in the food stamp program” and holding that
`“a desire to harm a politically unpopular group cannot
`constitute a legitimate governmental interest”).
`
`Her e , t he d i sc r i m i n at or y pu r p o se of t he
`classification of cannabis is well-documented. In 1969,
`the Nixon administration formed a commission under the
`chairmanship of Raymond Shafer, a former Republican
`Governor of Pennsylvania, as a means to establish the
`dangers of cannabis as a means to prosecute persons of
`color and anti-war protesters. (Pet. App. 218a-219a).4 As
`learned later through the Nixon tapes, these were two
`groups Nixon despised. Indeed, John Erlichman, a senior
`advisor to Nixon, was quoted as saying:
`
`We knew we couldn’t make it illegal to be
`either against the war or black, but by getting
`the public to associate the hippies with
`marijuana and blacks with heroin, and then
`
`4. See also District Court Brief at 17; Appellate Brief at 13.
`
`
`
`5
`
`criminalizing both heavily, we could disrupt
`those communities. We could arrest their
`leaders, raid their homes, break up their
`meetings, and vilify them night after night on
`the evening news. Did we know we were lying
`about the drugs? Of course we did.
`
`(Id. at 219a).5
`
`Shafer, however, did not support Nixon’s agenda.
`The Shafer Commission concluded that cannabis was
`not as dangerous as perceived, and even recommended
`decriminalization of cannabis. (Id. at 216a-218a).6 The
`Nixon Administration, however, summarily rejected the
`Shafer Commission Findings, and urged Congress to
`criminalize cannabis under the CSA. (Id. at 221a-222a).7 In
`fact, former Attorney General John Mitchell of the Nixon
`Administration actually drafted the CSA.8 Congress then
`adopted the CSA at Nixon’s insistence on October 27,
`1970—approximately one month after it was introduced.
`At the request of the Nixon Administration, Congress
`
`5. See also District Court Brief at 17; Appellate Brief at 13.
`
`6. See also District Court Brief at 16-17; Appellate Brief at
`13-14.
`
`7. See also District Court Brief at 17; Appellate Brief at 12-13.
`
`8. See Comparison of Bills to Regulate Controlled Dangerous
`Substances and to Amend the Narcotic and Drug Laws, Staff of
`H. Comm. Ways and Means (Aug. 8, 1970); see also Drug Abuse
`Control Amendment-I 970: Hearings on H.R. 11701 and H.R.
`13743 Before the Subcomm. on Public Health and Welfare of H.
`Comm. on Interstate and Foreign Commerce, 91st Cong. 80 (1970)
`(statement of John Mitchell, Atty Gen. of the U.S.) (noting that
`“the administration sent to Congress the proposed ‘Controlled
`Dangerous Substances Act.’”).
`
`
`
`6
`
`placed cannabis under Schedule I, notwithstanding the
`findings of the Shafer Commission that belied such a
`classification. (Pet. App. 213a-214a). 9
`
`As referenced in the Petition, another Nixon
`Administration alumnus provided an affidavit to
`Petitioners explaining that Nixon sought to criminalize
`cannabis pursuant to the CSA not out of concern for public
`health, but because he associated cannabis with persons
`of color and the anti-war left—two groups he regarded
`as hostile to him and his administration. (Pet. 14) (citing
`Pet. App. 221a-226a). In criminalizing cannabis, Nixon
`believed he had devised a seemingly neutral basis upon
`which to target so-called hippies and persons of color—
`his perceived enemies—without raising constitutional
`concerns. As stated in the affidavit:
`
`The driving force behind the CSA and
`its administration was to suppress and
`discriminate. It represents a regrettable and
`unfortunate period in American history which,
`I trust, contemporary society will, at some
`point, endeavor to correct—perhaps now.
`
`(Pet. App. 221a-226a).
`
`And finally, as set forth in the Petition, the following
`entry in the diary maintained by H.R. Haldeman, Nixon’s
`Chief of Staff, leaves no doubt as to the purpose for the
`criminalization of cannabis:
`
`[Nixon] emphasized that you have to face the
`fact that the whole problem is really the blacks.
`
`9. See also District Court Brief at 16-20; Appellate Brief
`at 12.
`
`
`
`7
`
`The key is to devise a system that recognizes
`this while not appearing to [do so].
`
`(Pet. 15).10
`
`An invidious discriminatory purpose can and should
`be inferred from the totality of the relevant facts outlined
`above. The findings of the Shafer Commission demonstrate
`that there is no plausible basis for classifying cannabis as a
`Schedule I drug under the CSA. Moreover, the statements
`and testimony of former Nixon Administration officials
`establish that the classification was based on an invidious
`discriminatory purpose. As such, the classification violates
`the Due Process Clause of the Fifth Amendment to the
`U.S. Constitution.
`
`II. Administrative Remedies Would Be Futile Because
`the Administrative Body Has Shown Itself to Be
`Biased on Numerous Occasions.
`
`Amici agree with Petitioners that “filing a petition
`with the DEA for de-scheduling cannabis would have
`been a futile endeavor.” (Pet. 32).11 Because exhaustion
`of administrative remedies is not mandated by the CSA,
`the federal courts must exercise sound judicial discretion
`in determining whether to require such exhaustion. In
`exercising its sound judicial discretion, the Court must
`balance the individual’s interest in retaining prompt
`access to a federal judicial forum against countervailing
`
`10. See also District Court Brief at 58-59; Appellate Brief
`at 14.
`
`11. Petitioners, of course, never sought de-classification
`or re-classification of cannabis. As stated in their Petition,
`Petitioners sought a declaration that the classification of cannabis
`is unconstitutional. (Pet. 33).
`
`
`
`8
`
`institutional interests favoring exhaustion. McCarthy v.
`Madigan, 503 U.S. 140, 141 (1992), superseded by statute
`on other grounds as recognized in Porter v. Sussle, 534
`U.S. 516 (2002). However, “[i]ndividual interests have
`weighed heavily where resort to the administrative
`remedy would occasion undue prejudice to subsequent
`assertion of a court action, where there is some doubt as
`to whether the agency is empowered to grant effective
`relief, or where the administrative body is shown to be
`biased or has otherwise predetermined the issue before
`it.” Id. at 140, 141.
`
`Here, anti-cannabis bias is pervasive throughout
`the administrative body. At the time Petitioners’ lawsuit
`was filed, the then-Administrator of the DEA, Philip
`Rosenberg, with whom re-scheduling petitions would be
`filed, and who made recommendations to the Attorney
`General on such issues, had already “decided” that medical
`cannabis is “a joke.”12 The Administrator further rejected
`the “notion that marijuana is also medicinal—because it’s
`not,” and any suggestion that cannabis is medicine “really
`bothers” him.13 Similarly, the present U.S. Health and
`Human Services Secretary, Alex Azar stated during a
`press conference that “[t]here really is no such thing as
`medical marijuana.”14
`
`12. Appellate Brief at 27; Paula Reid and Stephanie Condon,
`DEA chief says smoking marijuana as medicine “is a joke,” CBS
`News (Nov. 4, 2015), https://www.cbsnews.com/news/dea-chief-
`says-smoking-marijuana-as-medicine-is-a-joke/.
`
`13. Id.
`
`14. Health Secretary: There’s ‘no such thing as medical
`marijuana,’ dayton daIly neWs (Mar. 5, 2018), https://www.
`daytondailynews.com/news/local/such-thing-medical-marijuana-
`health-secretary-says-dayton/La8dTJgu6nF3ojSc1z6yPO/.
`
`
`
`9
`
`Furthermore, then-Attorney General Jeff Sessions,
`who was expressly charged with the responsibility of
`deciding re-scheduling petitions under the CSA, 21 U.S.C.
`§811(a)(2)(3), made several disparaging remarks regarding
`the use of cannabis, including that “he thought the KKK
`‘were [sic] OK until I found out they smoked pot’” and
`“[g]ood people don’t smoke marijuana.”15 Moreover, less
`than three months prior to commencement of Petitioners’
`action, Sessions sent a letter urging Congress to revoke
`riders to omnibus appropriations legislation—expressly
`prohibiting use of federal funds to prosecute State-
`legal cultivation, possession, sale of, and treatment with
`cannabis—so that he could prosecute those treating with
`State-legal medical cannabis.16 And just one week before
`this lawsuit was filed, Sessions announced his intention
`to file civil forfeiture proceedings against those who own
`and operate State-compliant cannabis businesses—what
`Sessions described as “dangerous illegal drug activity.”17
`
`While the Appellate Court seemed to agree that
`Sessions was biased, it also believed that Sessions’
`successor, Attorney General William Barr, would prove
`
`15. Appellate Brief at 28; James Higdon, Jeff Sessions’
`Coming War on Legal Marijuana, polItICo (Dec. 5, 2016), https://
`www.politico.com/magazine/story/2016/12/jeff-sessions-coming-
`war-on-legal-marijuana-214501.
`
`16. Christopher Ingraham, Jeff Sessions personally asked
`Congress to let him prosecute medical-marijuana providers, the
`WashIngton post (June 13, 2017), https://www.washingtonpost.
`com/news/wonk/wp/2017/06/13/jeff-sessions-personally-asked-
`congress-to-let-him-prosecute-medical-marijuana-providers/.
`
`17. Appellate Brief at 28; Josh Gerstein, Sessions to step up
`drug-war seizures, polItICo (July 19, 2017), https://www.politico.
`com/story/2017/07/19/jeff-sessions-drug-war-seizures-240706.
`
`
`
`10
`
`not to be. (Pet. App. 15a-16a). That hope has proved to be
`misplaced. In fact, regarding current Attorney General
`William Barr, a career Department of Justice employee
`recently testified to Congress that Barr’s personal
`opposition to marijuana led him to direct improper
`antitrust investigations into multiple cannabis company
`mergers—accounting for nearly one-third of the division’s
`cases in 2019. According to the whistleblower, Barr’s
`directives “centered not on an antitrust analysis, but
`because he did not like the nature of their underlying
`business.”18 According to the whistleblower, the head of the
`Antitrust Division, Assistant Attorney General Delrahim,
`responded to internal concerns about these investigations
`at an all-staff meeting on September 17, 2019. There,
`Delrahim acknowledged that the investigations were
`motivated by the fact that “the cannabis industry is
`unpopular ‘on the fifth floor,’ a reference to Attorney
`General Barr’s offices in the DOJ headquarters building.”19
`
`Due to the compelling examples of bias set forth
`above, Petitioners’ individual interests in retaining prompt
`access to a federal judicial forum weighs heavily against
`countervailing institutional interests favoring exhaustion
`of administrative remedies, and would occasion undue
`prejudice to subsequent assertion of a court action. For
`this additional reason, Petitioners should be permitted to
`proceed with their action in the district court.
`
`18. Oversight of the Department of Justice: Political
`Interference and Threats to Prosecutorial Independence Before
`the H. Comm. on the Judiciary, 116th Cong. (2020) (testimony of
`John W. Elias, chief of staff for the Justice Department’s Antitrust
`Division), https://www.congress.gov/116/meeting/house/110836/
`witnesses/HHRG-116-JU00-Wstate-EliasJ-20200624-U8.pdf.
`
`19. Id.
`
`
`
`11
`
`CONCLUSION
`
`For the foregoing reasons, amici MCBA and MFMM
`respectfully request that the Court grant the petition for
`a writ of certiorari.
`
`Respectfully submitted,
`WIllIam Bogot
`Joseph CollIns
`Counsel of Record
`alexandra soBol
`Fox rothsChIld llp
`321 North Clark Street,
`Suite 1600
`Chicago, Illinois 60654
`(312) 517-9227
`jcollins@foxrothschild.com
`
`Counsel for Amici Curiae
`
`