Sisley v. DEA: A Petition for Rehearing Has Been Filed

In follow-up to this post, we are happy to report that Dr. Sisley is still fighting the good fight: on Monday, Petitioners filed a Petition for Panel Rehearing or Rehearing En Banc. Although it’s not uncommon for these to get filed, few and far in between are granted (filing such a petition to rehash the same arguments is considered an abuse of the privilege). However, this specific Petition is one to consider – the Petition writes “the Opinion directly conflicts with multiple Supreme Court decisions; authoritative decisions this Court and every other circuit; and fundamental APA norms.” And of course, beyond that, the reasoning behind the Panel’s Opinion “presents issues of exceptional societal and jurisprudential importance”:

“Substantively, Petitioners asked this Court to reexamine a key misinterpretation of the CSA’s text that fuels the divide between federal and state medical marijuana laws. But don’t be fooled. This case isn’t just about pot. It is about fundamental administrative law questions with weighty separation of powers implications: When is judicial review of final agency action available? Who may obtain it? And which branch says what the law is? In his statement in Standing Akimbo, LLC v. United States, 141 S. Ct. 2236 (2021), Justice Thomas lamented the untenable chasm between state and federal marijuana laws and the ‘half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana.’ This case illustrates, unfortunately, that judicial mistakes on these fundamental questions shoulder blame.”

On to the legal arguments. The key argument made in the Petition is that the Panel had violated the Supreme Court’s holding in Darby v. Cisneros, 509 U.S. 137 (1993), which provides that Section 704 of the Administrative Procedure Act “has limited the availability of the doctrine of exhaustion of administrative remedies “to that which the statute or rule clearly mandates.” Here, no statute nor the DEA regulation clearly mandates exhaustion. In effect, the Panel’s ruling creates an exhaustion requirement – which is in direct contradiction to Darby’s holding.

Sisley also argues that the Panel’s Opinion implicitly limits who can seek review here, again contrary to the express terms of the law. The Panel had ruled only the party who files the petition under Section 811 can obtain judicial review of any resulting final DEA decision. This was the principal reason on which the Panel dismissed the action. But that’s in direct contradiction to what Fifth Circuit case law establishes: that a “parties-only” view of Section 877 is incorrect and that limiting judicial review to those “who participated in the agency proceeding” is inconsistent with the Supreme Court’s “more expansive interpretation of similar language” in the judicial-review provisions of numerous federal statutes, including the APA.

As compelling as it is, we expect this petition to be fully briefed and will follow along for the ride. Here’s hoping a more sensible outcome awaits.

The post Sisley v. DEA: A Petition for Rehearing Has Been Filed appeared first on Harris Bricken.

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Webinar Replay – Building a Cannabis Business in New York: An Operator’s Perspective

For anyone who was unable to join our September 23rd webinar, Building a Cannabis Business in New York: An Operator’s Perspective, we’ve got you covered! Below, please find the full presentation for your viewing pleasure.

You can download the transcript HERE.

Stay up to date on cannabis in New York via the Canna Law Blog.

 

Cannabis Litigation: What You Need to Know

Tuesday, October 19th at 2pm EDT/ 11am PDT

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Want to try hot, new cannabinoids like delta-10 & THCP? It pays to have a friend like Bay Smokes

With new discoveries happening every month, it's crucial to find a source you can trust—Bay Smokes provides with THCP & other products

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How Mila Kunis got ‘Stoner Cats’ made with NFTs

Hollywood couldn't handle grandma and her cats getting baked, so 10,420 NFT buyers financed the new comedy.

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Mississippi Lawmakers Move to Implement Medical Cannabis Legislation

After months of negotiating, lawmakers in Mississippi reached a deal this week to implement a new medical marijuana law in the state.

Mississippi Today reported that “legislative negotiators and leaders have agreed on a draft of medical marijuana legislation,” and that they are “anticipated to ask Governor Tate Reeves as early as Friday to call the Legislature into special session.”

The approach to Reeves could be significant, as the report noted that the first term Republican governor “has sole authority to call lawmakers into special session, and would set the date and parameters of a special session.”

“Although legislative leaders have expressed interest in dealing with COVID-19 and other issues in a special session, Reeves has appeared unwilling but said he would call a session for medical marijuana, pending lawmakers are in agreement and he agrees with the measure,” the report said. 

In May, Reeves said that a special session to address medical marijuana was “certainly a possibility.” 

For medical cannabis advocates and would-be patients of the treatment, the legislative wrangling has been a long, and at times frustrating, process.

Nearly 70 percent of Mississippi voters approved a ballot initiative last year that legalized medical marijuana for a host of qualifying conditions including cancer, epilepsy or other seizures, Parkinson’s disease, Huntington’s disease, muscular dystrophy, multiple sclerosis, cachexia (weakness and wasting due to chronic illness), post-traumatic stress disorder, HIV+, AIDS, chronic or debilitating pain, amyotrophic lateral sclerosis, or ALS, glaucoma, agitation from dementia, Crohn’s disease, ulcerative colitis, sickle-cell anemia and autism. 

Under Initiative 65, qualifying patients could legally possess up to 2.5 ounces of cannabis.

But the new law hit a major snag in May, when the state’s Supreme Court struck down Initiative 65 citing a strange and obscure provision in the state’s constitution. In the 6-3 ruling, the majority justices “ held the initiative had to be struck down because of an odd flaw in the state constitution’s voter initiative process,” NBC News reported at the time. 

“Passed in the 1990s, the measure called for a percentage of signatures to come from each of the state’s five congressional districts to get on the ballot,” NBC reported. “But, the judges noted, the state lost one of those congressional districts thanks to the 2000 U.S. Census, and now only has four districts.”

After that ruling, lawmakers in Mississippi went back to the drawing board to create a new medical marijuana program to supplant Initiative 65. 

Negotiations ran through the summer, with state lawmakers and other agencies hearing testimony from both advocates and opponents to medical cannabis. 

The breakthrough finally arrived on Thursday. Mississippi Today reported that some legislative leaders “released some details of the proposal—which had been kept close to the vest for months—such as that cities and counties will be allowed to ‘opt out’ of having medical marijuana cultivation or dispensaries, although local voters can override this.”

“City councils or aldermen, or county boards of supervisors, within 90 days of passage of legislation, could opt out from allowing cultivation or dispensing of medical marijuana within their borders,” the report explained. Voters in those cities and counties could force a referendum to rejoin the medical marijuana program if they gathered 1,500 signatures or 20 percent of the voters, according to the report.

Other notable provisions in the draft proposal include that smokable cannabis would be permitted, and that the state’s sales tax of seven percent would be imposed on medical marijuana. But the lawmakers have closed the door on personal cultivation, with Mississippi Today reporting that “outdoor growing would not be allowed, nor home growing.”

The post Mississippi Lawmakers Move to Implement Medical Cannabis Legislation appeared first on High Times.

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Felons Can Now Get Cannabis Licenses in Washington State

Felons will no longer be automatically barred from getting a cannabis license in Washington State, beginning next Saturday on October 2. Several updates to the rule now allow some people with serious felonies to obtain cannabis licenses, on a case-by-case basis.

That’s thanks to a new rule set by the Washington State Liquor and Cannabis Board that will go into effect shortly. Anyone who obtains a license must first pass an obligatory background check, but now, a felony on a record won’t necessarily be an automatic disqualifier.

Serious felony convictions within the past 10 years, however, will still trigger deeper scrutiny of a person’s application. But the rules no longer bar people with felonies from receiving a license. 

The protocol for less serious felonies also was updated. Specifically, one Class C felony on a record won’t automatically bar their license application. In addition, if someone has fewer than three misdemeanor convictions in the past three years, that won’t be enough to prompt a deeper review. 

Failure to report an old misdemeanor from juvenile court won’t count against applicants anymore, either.

With a strong focus on social equity in recent years, the rule change is being celebrated by cannabis business people because it allows people who were arrested at disproportionate rates to enter the legal industry.

“I think it’s great what the state is doing in terms of allowing people who have issues in the past, to be able to qualify,” Tran Du, co-owner of Shawn Kemp’s Cannabis in Seattle, told KOMO News.

The idea behind the rule change is that people who were arrested at disproportionate rates for cannabis shouldn’t be barred from participating in the industry, now that it’s legal.

“We wanted to bring parity in the disproportionality that we saw from the leftover of the war on drugs and that Black people were being arrested and brown people were being arrested disproportionately,” said Representative Melanie Morgan (D-Parkland) who is also chair of the state Social Equity on Cannabis Task Force.

Morgan stressed the need to get the state’s priorities in line. “The bottom line is bringing parity to the industry and making sure that Black and brown people have equal access to this industry in ownership,” she said.

Why Allow Felons?

Disparities in arrest rates of people of color are evident in numerous states, and Washington state is no different.

A study conducted by the Marijuana Arrest Research Project, entitled “240,000 Marijuana Arrests Costs, Consequences, and Racial Disparities of Possession Arrests in Washington, 1986‐2010,” found that although African Americans and Latinx people consume marijuana at lower rates than whites, African Americans were arrested for marijuana crimes at 2.9 times the rate of whites in the state. Latinos were arrested at 1.6 times the rate of whites.

The burden of a felony can prevent some people from participating in the cannabis industry. As an example, High Times highlighted the case of Katree Darriel Saunders, who was barred from Nevada’s industry over a pot charge. As a one-time employee in the Nevada medical space, served four months in federal prison over a probation violation after choosing cannabis over opioids to treat trauma and injuries. That choice has burdened Saunders for over a decade, largely preventing her from participating in the industry despite years of experience, success and an otherwise spotless record. 

Other routes into the cannabis industry are available, depending on what state you live in. Several states that have legalized marijuana also offer opportunities for convicts to expunge their records.

The post Felons Can Now Get Cannabis Licenses in Washington State appeared first on High Times.

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White Boy Rick comes out swinging for cannabis and ‘The 8th’ Amendment

The Detroit legend was freed in 2020, and now he's all about 'The 8th,' a new cannabis brand named after the 8th Amendment.

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