IN THE IOWA DISTRICT COURT IN AND FOR POLK COUNTY IOWA PETITION FOR WRIT OF MANDAMUS

Transcription

1 IN THE IOWA DISTRICT COURT IN AND FOR POLK COUNTY IOWA CARL OLSEN, Petitioner, vs. No. CV 8156 IOWA BOARD OF PHARMACY, Respondent. PETITION FOR WRIT OF MANDAMUS Comes now the Petitioner, Carl Olsen, and respectfully petitions the Court to issue a Writ of Mandamus ordering the Iowa Board of Pharmacy to perform its obligations under Iowa Code (1) and Iowa Code 17A.16. INTRODUCTION In May of 2008, Petitioner ( Olsen hereafter) filed an administrative petition with the Respondent ( Board hereafter) seeking the reclassification of marijuana under the Iowa Uniform Controlled Substances Act. Olsen argued that marijuana was misclassified under Iowa Code as having no accepted medical use in treatment in the United States, Iowa Code Since 1996, a total of 14 states have accepted the medical use of marijuana by state law. The last time marijuana s classification was reviewed in Iowa was State v. Bonjour, 694 N.W.2d 511, *516 (Iowa 2005) (Wiggins, J., dissenting). Accepted medical use in treatment in the United States is determined by state law. Gonzales v. Oregon, 546 U.S. 243, *258 (2006). Petition for Writ of Mandamus Page 1

2 The Board rejected Olsen s argument on July 21, 2009, and the Board s July 21, 2009, ruling is currently on appeal in the Iowa Supreme Court. McMahon v. Iowa Board of Pharmacy, No In the Board s final order of July 21, 2009, the Board criticized Olsen for addressing only the single criterion set out in Iowa Code (1)(b) and failing to address, inter alia, the eight criteria set out in Iowa Code (1). On the same day, July 21, 2009, the Board issued a proposal to hold evidentiary hearings across the state of Iowa to take public input addressing all of the scheduling criteria set out in Iowa Code Chapter 124. On July 29, 2009, the Board issued a schedule of public hearings to be held: (1) Wednesday, August 19, 2009, 10:00 a.m. to 7:00 p.m., Iowa State Historical Building (Auditorium), 600 East Locust Street, Des Moines, Iowa; (2) Wednesday, September 2, 2009, 10:00 a.m. to 7:00 p.m., The Music Man Square (Reunion Hall), 308 South Pennsylvania Avenue, Mason City, Iowa; (3) Wednesday, October 7, 2009, Noon to 7:00 p.m., University of Iowa, Bowen Science Building (3rd Floor Auditorium), 51 Newton Road, Iowa City, Iowa; (4) Wednesday, November 4, 2009, 10:00 a.m. to 7:00 p.m., Harrah s Casino & Hotel (Ballroom I), One Harrah s Boulevard, Council Bluffs, Iowa. The series of four public hearings were held, scientific and medical evidence was submitted, and all four public hearings were transcribed by a certified court reporter. The Board of Pharmacy announced its decision to reclassify marijuana on February 17, 2010, and released the minutes from its February 17, 2010, meeting Petition for Writ of Mandamus Page 2

3 on March 10, The meeting minutes show the February 17, 2010, meeting minutes were approved on March 9, At the conclusion of the February 17, 2010, meeting, the Executive Director of the Board, Lloyd Jessen ( Jessen hereafter), told Olsen that a formal ruling, findings of fact and conclusions of law would be forthcoming. At the beginning of each of the four hearings, Jessen or a member of the Board staff read the following statement into the record: Iowa law imposes upon the board the duty to periodically recommend to the legislature changes in controlled substance schedules. The board views this statutory responsibility with great seriousness, both because of the specificity of Iowa Code Chapter 124 and because marijuana use and the use of drugs in general is a sensitive medical, social, and political issue. Any board recommendation for changes to the controlled substance schedules in Iowa will be preceded by a thoughtful review and analysis of the most helpful and current scientific information available to the board. In making a recommendation to the legislature regarding marijuana, the board will consider the following 12 factors: No. 1, marijuana's actual or relative potential for abuse; No. 2, marijuana's pharmacological effect; No. 3, current scientific knowledge regarding marijuana; No. 4, the history and current pattern of abuse of marijuana; No. 5, the scope, duration, and significance of abuse of marijuana; No. 6, the risk to the public health from moving marijuana from a Schedule I to a different controlled substance schedule; No. 7, the potential of marijuana to produce psychic or physiological dependence liability; No. 8, whether marijuana is an immediate precursor of a substance on some other controlled substance schedule; No. 9, whether marijuana's potential for abuse or lack thereof is not properly reflected in its inclusion in Schedule I; No. 10, whether marijuana lacks a high potential for abuse; No. 11, whether marijuana has an accepted medical use in treatment in the United States; and No. 12, whether marijuana does not lack accepted safety for use in treatment under medical supervision. Petition for Writ of Mandamus Page 3

4 FACTS 1. On February 17, 2010, the Board voted unanimously, as follows: the Iowa Board of Pharmacy recommends that the legislature reclassify marijuana from Schedule I of the Iowa Controlled Substance Act (Act) into Schedule II of the Act. Iowa Board of Pharmacy Meeting Minutes, February 17, On February 17, 2010, Jessen told Olsen that a formal ruling, findings of fact and conclusions of law, would be forthcoming. 3. On March 3, 2010, Jessen sent Olsen an telling Olsen the Board had not yet set a time for the release of a written explanation of its ruling. 4. On April 5, 2010, Olsen called Jessen and Jessen told Olsen that the Board had wasted enough time on the issue of medical marijuana and would not be releasing a formal ruling or a written explanation for its ruling. 5. On April 7, 2010, Olsen sent Jessen an telling him the ACLU of Iowa had been planning to drop its appeal in the Iowa Supreme Court in McMahon v. Iowa Board of Pharmacy, No , and without a formal ruling and a written explanation for the ruling from the Board the ACLU of Iowa would not to drop the appeal. 6. On April 8, 2010, Olsen received a motion to drop the appeal in McMahon v. Iowa Board of Pharmacy, No , from the ACLU of Iowa stating that the February 17, 2010, meeting minutes of the Board is a final ruling and resolves all of the issues in the appeal. Petition for Writ of Mandamus Page 4

5 7. On April 8, 2010, Olsen filed an objection to the ACLU of Iowa s motion to dismiss in McMahon v. Iowa Board of Pharmacy, No , stating that the issues had not been resolved by the February 17, 2010, meeting minutes from the Board. ARGUMENT Without a rationale for the Board s recommendation to reclassify marijuana, there is no basis for the Board s recommendation to the Iowa Legislature and the Board has not completed its work. Iowa law requires an explanation of why the Board made the recommendation. Without a written explanation, the Board s recommendation would be arbitrary and capricious. The Iowa Legislature is not going to accept a recommendation from the Board to reclassify marijuana without knowing why the Board made the recommendation. Without findings of fact and conclusions of law supporting the recommendation, nothing has been resolved. The Board clearly stated its obligation to consider all of the criteria in Iowa Code Chapter 124 at the beginning of each public hearing, took evidence, and held hearings. The Iowa Administrative Code, Iowa Code Chapter 17A requires an analysis of that information to support the Board s conclusion to recommend reclassifying marijuana. Iowa Code 17A.16(1): A proposed or final decision or order in a contested case shall be in writing or stated in the record. A proposed or final decision shall include findings of fact and conclusions of law, separately stated. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of underlying facts supporting the findings. The decision shall include an explanation of why the relevant evidence in the record supports each material finding of fact. If, in accordance with agency rules, a party submitted proposed Petition for Writ of Mandamus Page 5

6 findings of fact, the decision shall include a ruling upon each proposed finding. Each conclusion of law shall be supported by cited authority or by a reasoned opinion. CONCLUSION WHEREFORE, Olsen petitions the Court to order the Board to explain its ruling on February 17, 2010, with an analysis of the evidence presented to it during the four public hearings held in 2009 and how it applied the statutory criteria to that evidence as required by law. Dated this 13 th day of April, Respectfully submitted, Exhibits: 1. July 21, 2009, Proposal from Iowa Board of Pharmacy Carl Olsen 130 E. Aurora Avenue Des Moines, IA carl-olsen@mchsi.com 2. July 29, 2009, Hearing Schedule from Iowa Board of Pharmacy 3. February 17, 2010, Iowa Board of Pharmacy Meeting Minutes 4. March 3, 2010, from Carl Olsen to Lloyd Jessen 5. March 10, 2010, from Lloyd Jessen to Carl Olsen (with attachment) 6. March 16, 2010, from Lloyd Jessen to Carl Olsen 7. April 7, 2010, from Carl Olsen to Lloyd Jessen 8. April 8, 2010, ACLU of Iowa Motion to Dismiss Petition for Writ of Mandamus Page 6

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8 Medical Marijuana Hearings Dates, Locations, Purpose and Procedure Iowa Board of Pharmacy (515) Wednesday, August 19, :00 a.m. to 7:00 p.m. Iowa State Historical Building (Auditorium) 600 East Locust Street Des Moines, Iowa Wednesday, September 2, :00 a.m. to 7:00 p.m. The Music Man Square (Reunion Hall) 308 South Pennsylvania Avenue Mason City, Iowa Wednesday, October 7, 2009 Noon to 7:00 p.m. University of Iowa Bowen Science Building (3 rd Floor Auditorium) 51 Newton Road Iowa City, Iowa Wednesday, November 4, :00 a.m. to 7:00 p.m. Harrah s Casino & Hotel (Ballroom I) One Harrah s Boulevard Council Bluffs, Iowa Purpose and Procedure: 1. These hearings are being held to receive evidence and testimony regarding the pros and cons of medical marijuana from a scientific, medical and legal perspective. 2. The Board is interested in hearing from medical practitioners including physicians, mid-level practitioners, nurses, pharmacists, and hospice workers; patients; care-givers; law-enforcement personnel; regulatory agencies; legislators; educators; scientists; researchers; other interested parties; and members of the general public. 3. Specifically, the Board is seeking information including, but not limited to, the following: a) Marijuana's actual or relative potential for abuse, b) Marijuana's pharmacological effect, c) Current scientific knowledge regarding marijuana, d) The history and current pattern of abuse of marijuana, e) The scope, duration, and significance of abuse of marijuana, f) The risk to the public health from moving marijuana to a different controlled substance schedule, g) The potential of marijuana to produce psychic or physiological dependence liability, and

9 h) Whether marijuana is an immediate precursor of a substance on some other controlled substance schedule. 4. Oral testimony will be received but will be limited to approximately 5 to 10 minutes per person, based on the number of speakers attending each hearing. Additional time may be allowed if circumstances permit. 5. An appointment to make oral comments at a specified time on August 19, September 2, October 7, or November 4 may be pre-arranged by contacting Debbie Jorgenson at the Iowa Board of Pharmacy at 515/ or by sending a written request via to: Debbie.Jorgenson@ibpe.state.ia.us 6. All oral comments will be recorded by a certified shorthand reporter. 7. The submission of written comments is encouraged. 8. The deadline for submitting written comments is Wednesday, November 4, Written comments may be sent via to Debbie.Jorgenson@ibpe.state.ia.us or via regular mail to: Iowa Board of Pharmacy, RiverPoint Business Park, 400 SW 8 th Street, Suite E, Des Moines, Iowa All oral testimony and written comments received by the Board will be public information. 10. The public is invited to attend and observe the hearings.

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12 Carl Olsen From: Sent: To: Cc: Subject: Jessen, Lloyd [IBPE] Wednesday, March 03, :58 AM Randall Wilson RE: Pharmacy Board Decision Carl, The Board has not set a time for the release of a written explanation. Lloyd Lloyd K. Jessen, R.Ph., J.D. Executive Director Iowa Board of Pharmacy RiverPoint Business Park 400 SW 8 th Street, Suite E Des Moines, Iowa (515) lloyd.jessen@iowa.gov From: carl-olsen@mchsi.com [mailto:carl-olsen@mchsi.com] Sent: Wednesday, March 03, :55 AM To: Jessen, Lloyd [IBPE] Cc: Randall Wilson Subject: Pharmacy Board Decision Hi Lloyd, Do you have any idea when the Iowa Board of Pharmacy will issue its written explanation of how it arrived at its conclusions on February 17th? Thank you! Carl Olsen home phone cell phone 1

13 Carl Olsen From: Sent: To: Subject: Jessen, Lloyd [IBPE] Wednesday, March 10, :29 PM RE: Press Release Carl, No, not yet. But hopefully maybe by tomorrow. Lloyd Lloyd K. Jessen, R.Ph., J.D. Executive Director Iowa Board of Pharmacy RiverPoint Business Park 400 SW 8 th Street, Suite E Des Moines, Iowa (515) lloyd.jessen@iowa.gov From: carl-olsen@mchsi.com [mailto:carl-olsen@mchsi.com] Sent: Wednesday, March 10, :28 PM To: Jessen, Lloyd [IBPE] Cc: Jorgenson, Debbie [IBPE] Subject: Press Release Lloyd, Do you have anything you can release yet regarding the board's response to the legislature? Carl 1

14 Carl Olsen From: Sent: To: Subject: Attachments: Jessen, Lloyd [IBPE] Tuesday, March 16, :53 AM RE: Sorry for bugging you Med Marijuana Study Position.doc Carl, No need to apologize. Here is the Board's position statement. Sorry for the delay in getting it to you. We appreciate your interest and your efforts. Thanks, Lloyd Lloyd K. Jessen, R.Ph., J.D. Executive Director Iowa Board of Pharmacy RiverPoint Business Park 400 SW 8 th Street, Suite E Des Moines, Iowa (515) lloyd.jessen@iowa.gov From: carl-olsen@mchsi.com [mailto:carl-olsen@mchsi.com] Sent: Tuesday, March 16, :48 AM To: Jessen, Lloyd [IBPE] Subject: Sorry for bugging you Hi Lloyd, I guess that situation you have with the Office of Management is extremely delicate and it looks like the Des Moines Register is giving you the space to deal with it considering the lack of any response I've received from either you or Tony. I apologize for sticking my nose into something where it probably doesn't belong. I've been getting some good results from being pushy, but I'm sure I can easily go too far. Good luck! The board has probably done more for me than I can imagine right now. I have a feeling what the board has done is a real turning point in this whole situation. The way the board made the scheduling recommendation separate from the study committee recommendation was just beautiful. You guys are awesome! 1

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16 Iowa Board of Pharmacy Position on Medicinal Marijuana Interim Study Committee March 10, The Iowa Board of Pharmacy supports the continuing effort to study and develop a recommendation for the 2011 Iowa legislature regarding a medical marijuana program for Iowa, including a draft of proposed legislation. 2. The Board reiterates the need for the Iowa legislature to address this issue in a manner that incorporates input from a broad spectrum of individuals and organizations who will consider all scientific, medical, societal, and legal issues. The Board will participate in and help direct this process, as directed by the legislature. 3. Until the Board receives a waiver or other relief from spending restrictions, the Board opposes the use of its resources derived from license fees to cover expenses of an interim study committee. These restrictions imposed by executive orders severely limit the Board s ability to fulfill its primary mission of protecting the public health through regulation of pharmacy practice and distribution of controlled substances. Funding of this primary mission must be the Board s fiscal priority.

17 Mediacom: 1 of 1 4/12/2010 1:56 PM Mediacom Collaboration Suite carl-olsen@mchsi.com Formal Ruling From: carl-olsen@mchsi.com To: Lloyd.Jessen@ibpe.state.ia.us Wednesday, April 07, :43:03 PM Hi Lloyd, When I spoke with you, I didn't realize that the ACLU of Iowa had already contacted Scott about getting a formal ruling from the Board of Pharmacy on the four medical marijuana hearings held last summer and fall. The ACLU of Iowa has been telling me it wants to drop our appeal in the Iowa Supreme Court, but has been waiting for a formal ruling from the Board of Pharmacy. Obviously, if the Board of Pharmacy is not going to issue any formal ruling, the ACLU of Iowa is not going to drop the appeal. Or, at least, that's my prediction. I really have no idea what the ACLU of Iowa is going to do. We are hearing from the legislators that they plan to move forward with the interim study committee, so you might want to check with them. I don't know why Senator Bolkcom told you it wasn't going to happen. Senator Hatch tells us it is still going to happen and the Des Moines Register has confirmed this week that legislative leadership is still planning to move forward with an interim study committee this year. Carl

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