James v. Costa Mesa, Petition for Writ of Certiorari, U.S. Supreme Court

7/29/2019 James v. Costa Mesa, Petition for Writ of Certiorari, U.S. Supreme Court

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NO.______________

In the

MARLAJAMES,WAYNEWASHINGTON,

JAMESARMANTROUT,CHARLESDANIELDEJONG,

Petitioners,

V.

THECITYOFCOSTAMESA,CALIFORNIA, A CITY

INCORPORATED UNDER THE LAWS OF THE STATE OF

CALIFORNIA; THECITYOFLAKEFOREST,CALIFORNIA,

A CITY INCORPORATED UNDER THE LAWS OF THE

STATE OF CALIFORNIA,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

MATTHEW S.PAPPAS

Counsel of Record

22762 Aspan Street

#202-107

Lake Forest, CA 92630

(949) 382-1485

Fax: (949) 242-2605

[email protected]

LEE H.DURST

CHARLES J.SCHURTER

Associate Counsel

22762 Aspan Street

#202-107

Lake Forest, CA 92630

(949) 382-1485

Fax: (949) 242-2605


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QUESTIONSPRESENTED

1. Whether use of medical marijuana by an

otherwise qualified disabled individual by recommendation

and under the supervision of a state licensed physician is anexception to the definition of illegal use of drugs under the

part of 42 U.S.C. 12210(d)(1) of the Americans with

Disabilities Act, 1990, Pub. L. 101-336, 104 Stat. 327 (ADA),

that excepts use of a drug taken under supervision by alicensed health care professional?

2. Whether D.C. Code 7-1671, et seq., the

Legalization of Marijuana for Medical Treatment Act, a

District law twice transmitted to and reviewed for preemptionby Congress in 2010 under D.C. Code 1-206.01 and D.C.

Code 1-206.02(c)(1), is subject to Supremacy Clause (U.S.

Const., art. VI, cl. 2) preemption by provisions of Title II ofthe Comprehensive Drug Abuse Prevention and Control Act,

1970, Pub. L. 91-513, 84 Stat. 1236 (codified at 21 U.S.C.

801, et seq.)?

3. Whether, when Congress grants District ofColumbia citizens the right to vote-on and implement a law

that is not subject to preemption under the Supremacy Clause,it must grant state citizens the same right to vote-on andimplement similar laws by removing the Supremacy Clause

prohibition it necessarily eliminated for similarly situated

District residents?


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PARTIESTOTHE PROCEEDING

The Petitioners are Marla James, James Armantrout,

Wayne Washington, and Charles DeJong.

The Respondents are the City of Costa Mesa, California

and the City of Lake Forest, California.

At the Ninth Circuits request, the United States ofAmerica briefed as amicus curiae in the appellate proceeding

below.


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TABLEOFCONTENTS

QUESTIONS PRESENTED .................................................. I

PARTIES TO THE PROCEEDING.................. ................... II

TABLE OF CONTENTS .................................................... III

TABLE OF AUTHORITIES .............................................. VI

OPINIONS BELOW ............................................................. 1

JURISDICTION ................................................................... 1

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED........................................................................... 1

STATEMENT OF THE CASE ............................................. 4

REASONS FOR GRANTING THE PETITION .................. 9

I. THE NINTH CIRCUIT DECIDED AN IMPORTANT

QUESTION OF FEDERAL LAW THAT HAS NOT BEEN,

BUT SHOULD BE, SETTLED BY THIS COURT, AND IT

DECIDED THE CASE IN A WAY THAT CONFLICTS

WITH A RELEVANT DECISION OF THIS COURT. ....... 9

II. CONGRESSS INTENT IS CLEAR AND ITS

MANDATE UNAMBIGUOUS - THE ADA SHALL BE

INTERPRETED TO PROVIDE BROAD COVERAGE TO

INDIVIDUALS WITH DISABILITIES. ................... .........13


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III. THE NINTH CIRCUITS DECISION IS

INCONSISTENT WITH THIS COURTS HOLDING IN

GONZALES V. OREGONBY FINDING THE TERM

HEALTH CARE PROFESSIONAL IS TO BE

CONSTRUED IN REFERENCE TO THE CONTROLLED

SUBSTANCE ACTINSTEAD OF STATE LAW. ...............15

IV. PROVIDING ADA COVERAGE TO THE PATIENTS

IN THIS CASE DOES NOT INTERFERE WITH THEPURPOSE OF THE CONTROLLED SUBSTANCE ACT. ...18

V. LEGISLATIVE HISTORY REVEALS CONGRESS

INTENDED THE ADA TO PROVIDE BROAD

COVERAGE TO THE DISABLED. ................... ...............21

VI. ANY AMBIGUITY IN THE TEXT OF THE STATUTE

IS RESOLVED IN FAVOR OF PETITIONERS

INTERPRETATION. ................. ................... ................... ..24

VII. THE NINTH CIRCUIT PANEL ERRED WHEN

ANALYZING THE EQUAL PROTECTION CLAIMS

MADE BY THE PETITIONERS. .................. ................... .27

A. The Washington D.C. Home Rule Act provides

District of Columbia residents with limited autonomy.27

B. Even with the Home Rule Act, D.C. has only one

sovereign. .................................................................. 28

C. Congress legislated the preemption rules that apply in

D.C. ........................................................................... 29

E. The Districts Legalization of Marijuana for Medical

Treatment law was twice approved through Home Rule

Act congressional review. ................... .................. ..... 31


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F. Congress gave District voters the right to vote-on and

implement medical marijuana legalization. ................ 32

G. The Petitioners in this case are similarly situated yet

treated differently under the law. .......................... ..... 33

H. Congress cannot give one group of citizens the

franchise and withhold it from another similarly situated

group. ........................................................................ 34

CONCLUSION ....................................................................34


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TABLEOFAUTHORITIES

CASES

Barnes v. District of Columbia,

611 F.Supp. 130 (1985) ........................... .................. 28, 29, 32

Binns v. United States,

194 U.S. 486 (1904) ..............................................................27

Biotechnology Industry Organization v. District of Columbia,

496 F.3d 1362 (2007) ............................................................27

Christianson v. King County,

239 U.S. 356, 36 S.Ct. 114, 60 L.Ed. 327 (1915) ................. ..27

Crandon v. United States,

494 U.S. 152, 171 (1990) ................. .................. ................ 9, 11

Dont Tear It Down, Inc. v. Pa. Ave. Dev. Corp.,

642 F.2d 527 (D.C.Cir.1980) .................. ................... ...... 27, 29

Gonzales v. Oregon,

546 U.S. 243, 163 L. Ed. 2d 748, 126 S. Ct. 904 (2006) . passim

Gonzales v. Raich,

545 U.S. 1, 162 L. Ed. 2d 1, 125 S. Ct. 2195 (2005) ..............14

Jackson v. West Indian Company, Ltd.,

944 F.Supp. 423 (1996) .........................................................27

Marijuana Policy Project v. U.S. ,

304 F.3d 82 (D.C. Cir. 2002) .................. ................... ...... 26, 30

Morton v. Mancari,

417 U.S. 535, 41 L.Ed.2d 290, 94 S.Ct. 2474 (1974) .............17


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ODonoghue v. United States,

289 U.S. 516, 53 S.Ct. 740, 746-47, 77 L.Ed. 1356 (1933) ....26

People of the Virgin Islands v. William G. Clark,

Vir.Is.Sup.Ct. No. ST-09-CR-020 (May, 2010) (Published) ...27

Simms v. Simms,

175 U.S. 162 at 168, 20 S.Ct. 5860, 44 L.Ed. 115 (1899) .......27

Turner v. D.C. Bd. of Elections and Ethics ,

77 F. Supp. 2d 25, 31 (D.D.C. 1999) .....................................29

United States v. American Trucking Assn.,

310 U.S. 534 (1940) ............. .................. ................... ...... 11, 25

United States v. Government of the Virgin Islands ,

363 F.3d 276 (3d Cir. 2004)...................................................26

United States v. Wheeler,

435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978) .............26

Watt v. Alaska,

451 U.S. 259, 68 L. Ed. 2d 80, 101 S. Ct. 1673 (1981) .... 18, 19

STATUTES

21 U.S.C. 801, et seq. .................. .................. .................. passim

21 U.S.C. 823(f) ................. .................. ................... ........... 9, 16

21 U.S.C. 829 ................. ................... ................... ................... 9

21 U.S.C. 903 ................. ................... ................... ..................19

42 U.S.C. 12210(a) ................... .................. ............ 1, 10, 11, 19

42 U.S.C. 12210(d)(1) .................. .................. ................. passim

42 U.S.C. 12101(a)(2) ...............................................................17

42 U.S.C. 12101(a)(3) ...............................................................17


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42 U.S.C. 12101(b)(1) ................. ................... .................... .......17

48 U.S.C. 1541, et seq. ...........................................................27

ADA ........................................................................................... 5

ADAAmendments Act,

2008, Pub. L. 110-325, 122 Stat. 3553 ................ ............. 12, 13

Americans with Disabilities Act,

1990, Pub. L. 101-336, 104 Stat. 327 .................. ............ passim

Barr Amendment,

1998, Pub. L. 105-277, 112 Stat. 2681 ................ ............... 6, 29

Barr Amendment,

1999, Pub. L. 106-113, 113 Stat. 1530 ................ ............... 6, 29

Comprehensive Drug Abuse Prevention and Control Act,

1970, Pub. L. 91-513, 84 Stat. 1236 ................. ......... i, 2, 14, 20

Consolidated Appropriations Act,

2009, Pub. L. 111-117, 123 Stat. 3034 ................ ............... 6, 30

D.C. Act 18-429 (orig. D.C. Law 13-315)

57 DCR 4798 (approved Jul. 27, 2010) ................... ...............29

D.C. Code 1-201.01, et seq.....................................................25

D.C. Code 1-203.02 ................. ................... .................. ..........25

D.C. Code 1-204.04 ................. ................... .................. ..........25

D.C. Code 1-206.01 ................. ................... ............... i, 2, 26, 30

D.C. Code 1-206.02 (a)(8) ................... ................... ................26

D.C. Code 1-206.02(a)(4) ................. ................... ...................26

D.C. Code 1-206.02(c)(1) ................. ................... ............ passim

D.C. Code 1-206.02(c)(2) ................. ................... ....... 27, 28, 29


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D.C. Code 7-1671, et seq.................. ................... .... i, 20, 31, 32

D.C. Code Ann. 1-206.02(c)(1)-(c)(2) .................. ..................28

D.C. Law 13-315 (orig. D.C. Act No. 13-138)

57 DCR 3360 (approved Feb. 25, 2010) ................. ................29

District of Columbia Home Rule Act,

1973, Pub. L. 93-198; 87 Stat. 777 ...... .................. 2, 25, 27, 31

Rehabilitation Act,

1973, Pub. L. 93-112, 87 Stat. 355

(codified at 29 U.S.C. 701) ................... .................. ............21

OTHER AUTHORITIES

Americans with Disabilities Act of 1989:

Hearing on S. 933 Before the S. Comm. on Labor

and Human Resources, 101st Cong. 40 (1989) ................ ....21

Americans with Disabilities Act,

S. 933, 101st Cong. 1989 .................. ................... ...................21

H.R. Rep. No 91-1444 (1970) at 1,

reprinted in 1970 U.S.C.C.A.N. 4566, 4567 .................... 14, 17

H.R. Rep. No. 111-202, 1, at 8 (2009) .................. .............. 6, 30

CONSTITUTIONAL PROVISIONS

U.S. Const., art. I, 8, cl. 17 ................. ................... ............. 2, 26

U.S. Const., art. IV, 3, cl. 2 ....................................................26

U.S. Const., art. VI, cl. 2 .................. .................. ................ passim


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OPINIONSBELOW

The Ninth Circuit Court of Appeals denied rehearing

and rehearing en banc on November 1, 2012. The appellate

court order is found in the Appendix at Pet. App. 1a. Theopinion of the Ninth Circuit is reported at 684 F.3d 825 and is

included in the Appendix at Pet. App. 3a Pet. App. 44a. The

order of the District Court is included in the Appendix at Pet.

App. 45a -- Pet. App. 54a.

JURISDICTION

The basis for jurisdiction in the District Court is 28U.S.C. 1331. This Court has jurisdiction to review the final

judgment of the Court of Appeals pursuant to 28 U.S.C.

1254(1).

CONSTITUTIONALAND STATUTORY

PROVISIONSINVOLVED

1. 42 U.S.C. 12210(a), part of theAmericans with

Disabilities Act (ADA), 1990, Pub. L. 101-336, 104 Stat. 327

(codified at 42 U.S.C. 12101, et seq.):

In General. For purposes of this chapter, the term

individual with a disability excludes an individual

who is currently engaging in the illegal use of drugs,when the covered entity acts on the basis of such use.

2. 42 U.S.C. 12210(d)(1), part of the Americanswith Disabilities Act(ADA), 1990, Pub. L. 101-336, 104 Stat.

327 (codified at 42 U.S.C. 12101, et seq.):

(d) Illegal use of drugs defined

(1) In general. The term illegal use ofdrugs means the use of drugs, the possessionor distribution of which is unlawful under the

Controlled Substances Act (21 U.S.C. 801 et

seq .). Such term does not include the use of


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a drug taken under supervision by a licensed

health care professional, or other uses

authorized by the Controlled Substances Actor other provisions of federal law.

3. Title II of the Comprehensive Drug AbusePrevention and Control Act (CSA), Pub. L. 91-513, 84 Stat.

1236 (codified at 21 U.S.C. 801, et seq.).

4. U.S. Const., art. I, 8, cl. 17 (District Clause):

To exercise exclusive Legislation in all Caseswhatsoever, over such District (not exceeding

ten Miles square) as may, by Cession of

Particular States, and the Acceptance ofCongress, become the Seat of the Government of

the United States, and to exercise like Authority

over all Places purchased by the Consent of theLegislature of the State in which the Same shall

be, for the Erection of Forts, Magazines,

Arsenals, dock-Yards, and other needful

Buildings;

5. U.S. Const. art. VI, cl. 2 (Supremacy Clause):

This Constitution, and the Laws of the UnitedStates which shall be made in pursuance thereof;

and all treaties made, or which shall be made,

under the authority of the United States, shall bethe supreme law of the land; and the judges in

every state shall be bound thereby, anything in

the constitution or laws of any state to thecontrary notwithstanding.

6. D.C. Code 1-206.01, part of the District ofColumbia Home Rule Act, 1973, Pub. L. 93-198; 87 Stat. 777:

Notwithstanding any other provision of this

chapter, the Congress of the United States

reserves the right, at any time, to exercise its


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constitutional authority as legislature for the

District, by enacting legislation for the District

on any subject, whether within or without thescope of legislative power granted to the Council

by this chapter, including legislation to amend or

repeal any law in force in the District prior to or

after enactment of this chapter and any actpassed by the Council.

7. D.C. Code 1-206.02(c)(1), part of the Districtof Columbia Home Rule Act, 1973, Pub. L. 93-198; 87 Stat.

777:

Except acts of the Council which are submitted

to the President in accordance with Chapter 11 ofTitle 31, United States Code, any act which the

Council determines, according to 1-204.12(a),

should take effect immediately because of

emergency circumstances, and acts proposingamendments to subchapter IV of this chapter and

except as provided in 1-204.62(c) and 1-

204.72(d)(1) the Chairman of the Council shalltransmit to the Speaker of the House of

Representatives, and the President of the Senate,a copy of each act passed by the Council andsigned by the Mayor, or vetoed by the Mayor

and repassed by two-thirds of the Council

present and voting, each act passed by theCouncil and allowed to become effective by the

Mayor without his signature, and each initiated

act and act subject to referendum which has been

ratified by a majority of the registered qualifiedelectors voting on the initiative or referendum.

Except as provided in paragraph (2) of this

subsection, such act shall take effect upon theexpiration of the 30-calendar-day period

(excluding Saturdays, Sundays, and holidays,

and any day on which neither House is in sessionbecause of an adjournment sine die, a recess of


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more than 3 days, or an adjournment of more

than 3 days) beginning on the day such act is

transmitted by the Chairman to the Speaker ofthe House of Representatives and the President

of the Senate, or upon the date prescribed by

such act, whichever is later, unless during such

30-day period, there has been enacted into law ajoint resolution disapproving such act. In any

case in which any such joint resolutiondisapproving such an act has, within such 30-day

period, passed both Houses of Congress and has

been transmitted to the President, suchresolution, upon becoming law, subsequent to

the expiration of such 30-day period, shall be

deemed to have repealed such act, as of the datesuch resolution becomes law. The provisions of

1-206.04, except subsections (d), (e), and (f) of

such section, shall apply with respect to any jointresolution disapproving any act pursuant to this

paragraph.

8. D.C. Code 7-1671, et seq., Legalization of

Marijuana for Medical Treatment Act(as amended 2010).

STATEMENTOFTHE CASE

The Petitioners are each severely disabled individuals

who have prescriptions for medical cannabis from licensed

doctors. Petitioner Marla James is confined to a wheelchair.One of her legs has been amputated. She suffered from

necrotizing fasciitis, has diabetes, and is going blind. After

being prescribed opiate-based medication that caused severeside-effects, her licensed doctor recommended medical

cannabis as part of a treatment regimen that has, for years,

extended and improved her life. None of the Petitioners usemarijuana recreationally.

Through rules, policies, and enforcement procedures,

the Respondent cities have discriminated against thePetitioners based on their status as medical marijuana patients.


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Accordingly, the Petitioners filed suit in the Central District of

California alleging the cities actions violated Title II of the

ADA. District Court Judge Andrew Guilford sympathized withthe patients but denied their application for a preliminary

injunction finding they were not qualified for ADA protection

because of their use of marijuana. In an order limited to

interpretation of 42 U.S.C. 12210(d)(1), part of the ADAsillegal drug provisions, Judge Guilford implied a Controlled

Substances Act (CSA) authorization requirement into thatsection despite the purpose of the CSA being to combat therecreational abuse of drugs, not to adversely impact disabled

individuals or interfere with the ability of state licenseddoctors to provide an effective treatment regimen for their

patients.

Certiorari is warranted here because this case involves

an issue of extraordinary public importance: whether seriouslyill and disabled individuals remain qualified for protection

under the ADA when they are using cannabis recommended by

a licensed health care provider for purposes of treatment orsymptom relief. This case affects thousands of seriously ill

and disabled Californians as well as millions of similarly

situated Americans who live in states with medical marijuanalaws.

In a 2 to 1 split decision, the Ninth Circuit panel

majority erred when it incorrectly applied rules of statutory

construction. The majority itself recognized the closeness ofthe decision and the importance of this issue to seriously ill

and disabled citizens. Essentially, the majority legislated its

own unwritten requirement into the ADA that rendered two

parts of that law superfluous. After noting the decision was anear draw, the well-reasoned dissenting opinion thoughtfully

and correctly determined there is no conflict between the ADA

and CSA. The dissent correctly found the majority ignored theintent of Congress when it implied a CSA requirement into the

ADA.

Instead of considering the purpose of the ADA as well

as that laws broad coverage as restated by Congress in 2008


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and then by failing to recognize the CSA is a law meant to

combat recreational drug abuse and not to commandeer the

authority of states to regulate in the area of medicine, themajority eviscerated rights Congress provided for millions of

disabled and seriously ill Americans.

The panel further erred when it refused to require

Congress to equally protect state citizens when it enacts federallegislation that gives meaning and effect to the votes of

citizens in the federal District of Columbia. AlthoughCongress acts in the role of both state and federal legislature in

the District of Columbia, actions it takes there are restrainedby the Constitution when such actions impact a fundamental

right. Congress enacted federal legislation in 2009 thatgranted to District citizens the right to vote-on and then to

effectuate the result of their votes through the Districts now

implemented Legalization of Marijuana for Medical TreatmentAct. It provided those rights through federal legislation signed

by the President after Congress had foreclosed the Districts

medical marijuana law for ten years. Thereafter, it twiceapproved the Districts Legalization of Marijuana for Medical

Treatment Act through the express statutory preemption

mechanism included in theHome Rule Act.The Districts Legalization of Marijuana for Medical

Treatment Act does not apply outside of D.C. However,

Congresss federal legislation (H.R. Rep. No. 111-202, 1, at

8 (2009); Consolidated Appropriations Act, 2009, Pub. L. 111-117, 123 Stat. 3034) allowing votes cast by District citizens to

have effect after ten years of Congressional prohibition (Barr

Amendment, 1998, Pub. L. 105-277, 112 Stat. 2681; Barr

Amendment, 1999, Pub. L. 106-113, 113 Stat. 1530) gavethose voters a fundamental part of the voting right state

citizens were not given the ability to implement and give

meaning to their votes. It also freed D.C. citizens from 10-years of Supremacy Clause-like prohibition while leaving the

Supremacy Clause in-force against state medical marijuana

laws. Indeed, votes cast by state citizens remain futile becausenumerous state and federal cases hold state laws approving


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medical marijuana are preempted by the CSA through the

Supremacy Clause.

Unlike state medical marijuana laws, the Districts law

is not subject to Supremacy Clause preemption because it isanomalous to say that the Supremacy Clause vitiates the later

laws or actions of Congress itself. In this case, there is federal

legislation in 2009 as well as two rounds of Home Rule ActCongressional preemption review in 2010. By its plain

language, the Supremacy Clause does not operate to overridelaws or actions of Congress especially those approved

through the Home Rule Act preemption review process. It isCongress that created that preemption review process (D.C.

Code 1-206.02(c)(1)-(c)(2) preserve its Constitutionalauthority in D.C.

Medical marijuana laws do not allow the recreational

drug activities the CSA was meant to combat. Even so,

holdings like the Ninth Circuit decision in this case continue torelegate seriously ill and disabled citizens to the ranks of

common drug criminals. Indeed, even after Congressional

action approving medical marijuana and final implementationof the D.C. law, California citizens operating in full

compliance with that states laws have been subject to federaljail terms and forfeiture actions under the CSA. Moreover,Californians in full compliance with state medical marijuana

laws who have relied on Department of Justice memoranda,

policy positions of the Executive Branch, and statements madeby the President continue to be subjected to adverse federal

action. These citizens are not engaged in the recreational use

and abuse of drugs. And the state voters who gave doctors the

ability to include medical cannabis as part of a patientstreatment regimen did not expect their authority over the

practice of medicine to be thwarted by a law meant to combat

drug abuse.

When Congress allowed the District to implement itsmarijuana legalization law, it could only do so by recognizing

marijuana has medical value. It recognized that the CSA

prohibits recreational drug abuse and not medical drug use by


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seriously ill patients to quell excruciating pain or, for instance,

to stop the nausea associated with cancer. Accordingly,

through Congresss actions, which are other provisions offederal law, the ADA provides protection for seriously ill and

disabled citizens in D.C. While D.C. citizens remain qualified

under the ADA, seriously ill and disabled people in California

who use medical marijuana prescribed by their respectivedoctors are excluded from those same protections under the

Ninth Circuits decision in this case.


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REASONSFOR GRANTINGTHE PETITION

I. THE NINTH CIRCUIT DECIDED AN IMPORTANT

QUESTION OF FEDERAL LAW THAT HAS NOT BEEN,

BUT SHOULD BE, SETTLED BY THIS COURT, AND IT

DECIDED THE CASE IN A WAY THAT CONFLICTS

WITH A RELEVANT DECISION OF THIS COURT.

The statutory interpretation part of this case turns on

one instance of the word other that is contained in 12210(d)(1) of the ADA:

The term illegal use of drugs means the use of

drugs, the possession or distribution of which is

unlawful under the Controlled Substances Act1

(21 U.S.C. 801, et seq.). Such term does not

include the use of a drug taken under supervision

by a licensed health care professional, or otheruses authorized by the Controlled Substances

Act or other provisions of federal law.

The Respondent cities contend that 12210(d)(1)contains a single exception allowing only for use authorizedunder the CSA. On the other hand, Petitioners position is that

the statute contains three categories of uses that are not

illegal under the ADA: (1) use of a drug taken undersupervision by a licensed health care professional, (2) uses

authorized by the CSA, or (3) uses authorized by other

provision of federal law. In its order denying relief, theDistrict Court noted by removing the word other the statute

would protect the Petitioners. Pet. App. 53a.

An entire class of disabled people should not be denied

protection from discrimination based on a single use of the

1The Controlled Substances Act is Title II of a law meant to

combat recreational drug abuse the 1970 Comprehensive Drug

Abuse Prevention and Control Act.


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word other any more than they should be denied protection

as a result of an errant comma. More importantly, such

protection should not be denied when the word other can beproperly read to give the applicable section meaning that

comports with Congresss 2008 proclamation that the ADA

have broad applicability.

The Ninth Circuit panel majority erroneously held thatthe ADA defines illegal drug use by reference to federal law

rather than state law, and that federal law penalizes thePetitioners medical rather than recreational marijuana use. It

adopted the proposition offered by the cities and adopted bythe district court is that the provision contains a single

exception covering all uses authorized by the CSA including both CSA-authorized uses that involve professional

supervision (such as use of controlled substances by

prescription, as authorized by 21 U.S.C. 829, and uses ofcontrolled substances in connection with research and

experimentation, as authorized by 21 U.S.C. 823(f)), and

other CSA-authorized uses. Pet. App. 6a.

The majoritys holding is incorrect because: (1) it failsto give meaning to two entire clauses within 12210, (2) its

interpretation of the statute is inconsistent with clearCongressional intent that the ADA is to be interpreted broadlytoward providing protection for the disabled, and (3) is

inconsistent with the Supreme Courts holding in Gonzales v.Oregon, 546 U.S. 243, 163 L. Ed. 2d 748, 126 S. Ct. 904(2006).

It is an ancient and sound rule of construction that each

word in a statute should, if possible, be given effect. An

interpretation that needlessly renders some words superfluousis suspect. Crandon v. United States, 494 U.S. 152, 171

(1990) (Scalia, J. concurring).The panel majority reasoned that every word in a statute

must be given effect and that the Petitioners interpretationrendered the word other redundant. It held that unless the

word other is omitted, Petitioners interpretation renders the


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statutory language outright awkward. Pet. App. 9, 41, 42.

However, the interpretation adopted by the majority failed to

give effect to the first and third clauses, rendering themmeaningless and superfluous. The majoritys interpretation is

more than awkward - it slashes two entire clauses from the

statute. Had Congress intended a single exception, it would

not have listed three in the statute. If, as the panel majorityheld, the only authorized use under 12210 comes from the

CSA, then Congress would have said just that.

The Ninth Circuits holding that the CSA contains the

universe of exceptions under 12210(d)(1) swallows up anyother provision of federal law, thus reducing other federal

laws to little more than subsets of the CSA. The Court stated:One would not naturally describe the use of a drug taken

under supervision by a licensed health care professional, or

other uses authorized by the Controlled Substances Act orother provisions of federal law unless the supervised uses

were a subset of the uses authorized by the CSA ... Pet. App.

8a. This reasoning elevates the CSA to be supreme over allfederal law concerning drugs. Under this analysis, there can be

no other provision of federal law or use of a drug taken

under supervision of a licensed health care professionalbecause either exception must gain authorization from the

CSA. Congress might as well have written the exception part

of 12210(d)(1) to read: Illegal use of drugs does not

include uses authorized by the Controlled Substances Act.

The ratio of total words to words rendered superfluous

by the Ninth Circuits holding illustrates the error in its logic.

Under the Petitioners analysis, 100% of the 58 words in

section 12210(d)(1) retain meaning. By removing the wordother, 57 of the 58 words or 98% of the statute retain

meaning. However, under the Ninth Circuits holding, only 38

of the 58 words, or 66%, remain in-tact. Approximately 34%of the words in 12210(d)(1) are rendered superfluous using the

Ninth Circuits reasoning.

In the interpretation of statutes, the function of the

courts is easily stated. It is to construe the language so as to


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give effect to the intent of Congress. United States v.

American Trucking Assn. , 310 U.S. 534 (1940) at 542. In

determining the meaning of the statute, the Supreme Courtlooks not only to the particular statutory language, but to the

design of the statute as a whole and to its object and policy.Crandon, supra, 494 U.S. at 158 (citations omitted).

The Ninth Circuits interpretation of 12210 focusedon its grammatical sentence structure and its legislative

history. However, it considered these factors in a vacuumwithout looking at the purpose of either the ADA or CSA. The

panel majority struggled to reach its conclusion and effectivelyturned the statute on its head in order to exclude ADA

coverage for these patients. In a labored effort, the majorityapplied various canons of construction to reach its admittedly

near-draw conclusion that required it to speculate Congress

intended an implied CSA authorization requirement in theADA. On the other hand, without any difficulty, the well-

reasoned dissenting opinion showed Congress in-fact did not

intend to leave patients using marijuana for medical purposeswithout protection:

The statutory interpretation issue at the

core of this case is an unusually tough one, asthe majority opinion recognizes. Looking at thelanguage of 12210(d)(1) alone, I would come

out where the majority does concluding that

the statute is ambiguous. But unlike the majority,I would not declare a near-draw. Instead, looking

at the words alone, I would conclude that the

plaintiffs have much the better reading, but not

by enough to be comfortable that theirinterpretation is surely correct. Turning then to

the legislative history, I would again declare the

plaintiffs the winner, this time sufficiently, whencombined with the language considerations, to

adopt their interpretation, absent some very good

reason otherwise. And I am decidedly notconvinced that the majoritys facile trump via


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the Controlled Substances Act (CSA) works,

because, among other reasons, the supposed

tension relied upon does not exist.

Pet. App. 26a. (Berzon, J., dissenting.)

Even the two judge majority recognized the unusuallydifficult nature of and near-draw in the case. Id. Moreover,

the majoritys erroneous facile trump that Justice Berzon

refers to in her dissent is based on a manufacturedincongruence between two federal statutes passed for entirely

different reasons, with utterly different purposes, and yearsapart from one another. Pet. App. 26a.

II. CONGRESSS INTENT IS CLEAR AND ITS

MANDATE UNAMBIGUOUS - THE ADA SHALL BE

INTERPRETED TO PROVIDE BROAD COVERAGE TO

INDIVIDUALS WITH DISABILITIES.

Congress commanded that the ADA should be

interpreted in a manner that provides broad coverage. It

restated and clarified its intention the law have broad

applicability in its ADAAmendments Act, 2008, Pub. L. 110-

325, 122 Stat. 3553 (ADAAA). It follows that any provisionexcluding coverage, such as 12210, must be interpreted

narrowly so that coverage is only denied to those individualswho Congress has clearly and unambiguously declared are

excluded. Instead of following the command of Congress, the

Ninth Circuit interpreted the section in reverse instead ofapplying ADA coverage broadly; it excluded coverage by

ignoring congressional intent and legislative history.

In 2008, Congress amended the ADA because it was

dissatisfied in the narrow manner in which the United StatesSupreme Court and other adjudicating bodies had interpreted

it. The express purposes of theADAAA include:

(1) in enacting the Americans with Disabilities

Act of 1990 (ADA), Congress intended that theAct provide a clear and comprehensive national

mandate for the elimination of discrimination


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against individuals with disabilities and provide

broad coverage;

(2) in enacting the ADA, Congress recognized

that physical and mental disabilities in no waydiminish a persons right to fully participate in

all aspects of society, but that people with

physical or mental disabilities are frequentlyprecluded from doing so because of prejudice,

antiquated attitudes, or the failure to removesocietal and institutional barriers;

(3) while Congress expected that the definition

of disability under the ADA would be interpreted

consistently with how courts had applied thedefinition of a handicapped individual under the

Rehabilitation Act of 1973, that expectation has

not been fulfilled;

Sec. 12101 note: Findings and Purposes of ADAAmendments Act of 2008, Pub. L. 110-325, 2,

Sept. 25, 2008, 122 Stat. 3553

Even though Congress restated its intent in the 2008

ADAAA and at the same time legislatively overturned casesthat improperly excluded disabled individuals from protection,

the Ninth Circuit ignored this command, excised a huge part of

12210(d)(1), and excluded the Petitioners from coverage.

Even though the petitioners have disabilities that have nothingto do with drug addiction and abuse, prejudice and antiquated

attitudes harbored by the Respondent cities have been

validated by the Ninth Circuit. The CSA was never meant tobe used to exclude from federal civil rights protections

seriously ill and disabled citizens using drugs as part of a

medical treatment regimen. Nor was the ADA meant to make

the use of any drug legal. Section 12210(d) is simply aqualification provision Congress expected to be interpreted in

favor of providing broad coverage to disabled individuals.

The Ninth Circuits decision has and will have farreaching implications for disabled citizens in at least nineteen


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states. Disqualifying the Petitioners from ADA protection

does not curb the recreational drug abuse the CSA is meant to

prohibit. Nor does such disqualification prevent drug abusersfrom using their addiction to obtain federal benefits.

Disqualification based on medical drug use does not give

meaning and effect to Congresss express command that the

ADAAA be interpreted in a manner that broadly coversdisabled individuals.

III. THE NINTH CIRCUITS DECISION IS

INCONSISTENT WITH THIS COURTS HOLDING IN

GONZALES V. OREGONBY FINDING THE TERM

HEALTH CARE PROFESSIONAL IS TO BE

CONSTRUED IN REFERENCE TO THE CONTROLLED

SUBSTANCE ACTINSTEAD OF STATE LAW.

As part of the Comprehensive Drug Abuse Prevention

and Control Act, the purpose of the CSA is to combatrecreational drug abuse. It is not a medical practitionerlicensing statute, and it does not provide a definition of health

care professional. The Ninth Circuits holding that drugs

taken under supervision by a licensed health care professional

is an exception that does not extend beyond the CSA iscontrary to the purpose and plain language of the CSA itself

and directly conflicts with this Courts holding in Gonzales v.

Oregon, 546 U.S. 243, 163 L. Ed. 2d 748, 126 S. Ct. 904(2006).

Congress enacted the Comprehensive Drug Abuse

Prevention and Control Act in order to deal in a

comprehensive fashion with the growing menace of drug abusein the United States. H.R. Rep. No 91-1444 (1970) at 1,reprinted in 1970 U.S. Code Cong. & Admin. News 4566,

4567. Given the purpose of the Act, in Gonzales v. Oregon,

supra, this Court found the Attorney General lacked authorityto declare assisted suicide illicit under the CSA because the

CSA is concerned only with illicit drug dealing andtrafficking, and [t]he structure and operation of the CSA

presume and rely upon a functioning medical profession


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regulated under the States police powers. Oregon, 546 U.S.

at 275 (Scalia, J. dissenting.) and 270.

Justice Thomas referred to the Courts newfound

understanding of the CSA as a statute of limited reach andwrote that its change limiting the CSA to recreational drug

activities rests upon constitutional principles that the majority

of the Court [had earlier] rejected in Raich[2] Oregon, 546

U.S. at 300, (Thomas, J. dissenting).

In Oregon, this Court found that the CSA looks to state

law in licensing health care practitioners:

The very definition of a practitioner eligible toprescribe includes physicians licensed,

registered, or otherwise permitted, by the United

States or the jurisdiction in which he practicesto dispense controlled substances. 802(21).

Further cautioning against the conclusion that

the CSA effectively displaces the States generalregulation of medical practice is the Acts

preemption provision, which indicates that,

absent a positive conflict, none of the Acts

provisions should be construed as indicating anintent on the part of the Congress to occupy the

field in which that provision operates . . . to the

exclusion of any State law on the same subjectmatter.

Oregon, supra, 564 U.S. at 270.

Thus, Oregon stands for the proposition that the CSA

recognizes that the licensing of medical practitioners is a

function traditionally reserved for the states and in order todetermine the meaning of a licensed health care professional

one would look not to the CSA, but to state law or other

provision of Federal law. This proposition is further supportedin light of the fact the phrase licensed health care

2 Gonzales v. Raich, 545 U.S. 1, 162 L. Ed. 2d 1, 125 S. Ct.2195 (2005)


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professional does not appear in the CSA. Nowhere in the

CSA is the term licensed health care professional defined.

Indeed, a search of the CSAs text revealed no reference to thatphrase including alterations with words combined and moved

around.

However, the term practitioner that is found in the

CSA can be used synonymously or interchangeably with theword professional, as used in 12210. As the majority in

Oregon held, to determine who practitioners are, the CSAlooks to state law or other provisions of federal law.

The CSA does not contain any independent definition or

even criteria pertaining to physician licensing because it is not

a licensing statute. This Court recognized that:

Before 1984, the Attorney General was requiredto register any physician who was authorized by

his State. The Attorney General could only

deregister a physician who falsified hisapplication, was convicted of a felony relating to

controlled substances, or had his state license or

registration revoked. See 84 Stat. 1255. The CSA

was amended in 1984 to allow the AttorneyGeneral to deny registration to an applicant if

he determines that the issuance of such

registration would be inconsistent with thepublic interest. 21 U.S.C. 823(f).

Oregon, 546 U.S. at 261.

Also absent from the CSA is any definition for the

meaning of supervision by a licensed health care

professional or practitioner. There is simply no allowed use ofdrugs in the CSA that is even remotely similar to the first

12210(d)(1) exception for use of a drug taken under

supervision by a licensed health care professional. Indeed,that is why the first exception is included in 12210(d)(1).

There would have been no need for Congress to include the

first exception if it was already in the CSA. Thus, the NinthCircuits conclusion that a drug taken under the supervision


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of a licensed healthcare professional is an exception contained

wholly under the CSA is inconsistent with this Courts

decision in Oregon because one must look to state law todetermine who may be considered a licensed healthcare

professional.

IV. PROVIDING ADA COVERAGE TO THE PATIENTS IN

THIS CASE DOES NOT INTERFERE WITH THE

PURPOSE OF THE CONTROLLED SUBSTANCE ACT.

The ADA and CSA each have two distinct purposes.

The ADA established a comprehensive national mandate forthe elimination of discrimination against individuals withdisabilities. 42 U.S.C. 12101(b)(1). Congress found that

historically, society has tended to isolate and segregate

individuals with disabilities, and that such forms ofdiscrimination against individuals with disabilities continue to

be a serious and pervasive social problem. 42 U.S.C.

12101(a)(2). Discrimination against people with disabilitiespersists in such critical areas as employment, housing, public

accommodations, education, transportation, communication,

recreation, institutionalization, health services, voting, and

access to public services. 42 U.S.C. 12101(a)(3).On the other hand, the purpose of the CSA is to deal in

a comprehensive fashion with the growing menace of drug

abuse in the United States. H.R. Rep. No 91-1444, at 1

(1970), supra. Thus, the public menace at the heart of the CSAis recreational drug use. See Oregon, supra. Nothing in the

CSA addresses the civil rights of a disabled person using drugs

for medical purposes. Nor does the CSA address whether aqualified disabled person can seek redress for discrimination.

Moreover, recognizing that individuals using CSA-covered

drugs are not excluded from ADA coverage does not preclude

prosecuting them under the CSA.

The courts are not at liberty to pick and choose among

congressional enactments, and when two statutes are capable

of coexistence, it is the duty of the courts, absent clearlyexpressed congressional intent to the contrary, to regard each


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as effective. Morton v. Mancari, 417 U.S. 535, 551, 41

L.Ed.2d 290, 94 S.Ct. 2474(1974).

The Court today is bothered because the literal

meaning of a statute altered prevailing law. But usually thevery point of new legislation is to alter prevailing law. T.

Sedgwick, The Interpretation and Construction of Statutory

and Constitutional Law 104 (2d ed. 1874). Watt v. Alaska,451 U.S. 259, 284, 68 L. Ed. 2d 80, 101 S. Ct. 1673 (1981)

(Stewart, J. dissenting.)

Instead of harmonizing the CSA and ADA, the panelmajority resolved the texts ambiguity by finding that certain

language contained in the CSA trumps the later enacted ADA.

The Court speculated that since marijuana is listed on ScheduleI of the CSA and because a general provision within the CSA

concerning Schedule I drugs describes them as having no

currently accepted medical use, then Congress could not have

intended to include its use as an exception under the ADA. Itcame to this conclusion despite a 1989 Justice Department

letter included by Congress in the ADAs legislative record

that stated the law should not exclude patients using marijuanaand other drugs as part of a treatment regimen from protection.

That Justice Department letter was added to the record whenthe part of the 12210(d)(1) exception use of a drug takenunder supervision by a licensed health care professional was

added to the proposed law. Further, had Congress intended to

prohibit the use of all Schedule I drugs under the ADA, itcould have so stated.

The panel majoritys analysis failed to consider the

purpose of each statute and improperly excised more than a

third of section 12210(d)(1). Its decision will, without review,ensure that the CSA for years to come and contrary to express

congressional purpose and intent, operate to prohibit thesupervised use of a drug recommended by doctors for medical

purposes. Its decision will no doubt impact what willaggregate to millions of seriously ill, disabled, and

permanently injured Americans facing cancer, AIDS, and other

conditions who, upon diagnosis and through the course of their


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illness, rarely have the free time to get up daily and push for

political change. The Ninth Circuits decision is inappropriate

in any civilized society that is in-part measured by how ittreats its vulnerable, weakened, and dying citizens. It could

only reach its illogical conclusion by fabricating congressional

intent and history that does not exist -- if it was willing to

excise more than a third of the statute, it was surely able tochange legislative history so that the CSA will for years

continue to prohibit the medical use of drugs under thesupervision of licensed doctors.

Finding that the ADA allows people who use medicalmarijuana prescribed as part of a doctor-recommended

treatment regimen does not hamper the unrelated CSA goal ofcombatting recreational drug abuse. The ADA is not a state

law subject to Supremacy Clause preemption by the CSA.

Moreover, the CSAs express anti-preemption provision givesgreat deference to state law. See 21 U.S.C. 903. A finding

that medical marijuana patients remain qualified disabled

persons allows both the CSA and ADA to remain fullyeffective within their respective realms. There can be no doubt

a doctor who recommends medication as part of a treatment

regimen does so to treat a patient while practicing medicine.Preventing medical treatment through a law meant to combat

recreational drug abuse is not what Congress intended for the

CSA.

Interpreting 12210 broadly in accordance withCongress proclamation does not interfere with the purpose of

the CSA, but if there was a direct conflict, then the CSA must

yield. If two inconsistent acts be passed at different times,

the last, said the Master of the Rolls, is to be obeyed; and ifobedience cannot be observed without derogating from the

first, it is the first which must give way. T. Sedgwick, The

Interpretation and Construction of Statutory andConstitutional Law, 104 (2d ed. 1874). Watt, supra, 451 U.S.

at 284(Stewart, J. dissenting).

The law concerning medical marijuana use is evolving

and changing. So far eighteen states, plus the District of


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Columbia have legalized marijuana for medicinal purposes,

and two states have legalized its use entirely. This Court inOregon found the scope of the CSA to be limited torecreational drug abuse. Congress gave D.C. citizens the right

to vote-on and implement local medical marijuana provisions

in the District of Columbia. D.C. Code 7-1671, et seq.

Hence, it is clear that both society and the law are moving inthe direction the Petitioners in this case advance. Allowing

medical marijuana patients to remain qualified for ADAprotection is not only consistent with both the ADA and CSA,

it is consistent with current trends of society and the law.

Emerging awareness of the medical value of marijuana has notonly been societal but also shows such medical use has gained

traction in the law -- even in a law Congress approved for its

subjects in D.C.

V. LEGISLATIVE HISTORY REVEALS CONGRESS

INTENDED THE ADA TO PROVIDE BROAD

COVERAGE TO THE DISABLED.

The legislative history of the ADA shows that Congress

did not want people to use drug addiction as a qualifying

disability under the ADA, but also did not want to excludeotherwise qualified people using drugs as part of their

treatment. The Ninth Circuit acknowledged that Congress

rejected an earlier draft of the statute that was narrower inscope than the final version that is currently at issue. See Pet.

App. 32a (Berzon, J. dissenting.). The majority, however,

discounted any significance of broad language contained inearlier versions of the act because [t]here is no reason to think

that the 1990 Congress that passed the ADA would have

anticipated later changes in state law facilitating professionalsupervision of drug use that federal law does not permit. Pet.

App. 10a. The conclusion of the majority is not supported byany statement contained in the ADAs legislative history.

Moreover, the majoritys decision did not even mention thatthe purpose of the CSA as part of the Comprehensive Drug

Abuse Prevention and Control Act is to combat therecreational abuse of drugs.


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As Justice Berzon pointed out in her dissent, [The

Petitioners] reading of the statute also accords much better

with the overall thrust of the legislative history. That history,while not entirely without ambiguity, strongly supports [the

Petitioners] interpretation. Pet. App. 32a (Berzon, J.dissenting).

The ADA was introduced in the Senate by Tom Harkinduring the 101st Congress in 1989 as Senate Bill 933. The

original draft did not include an illegal use of drugsprohibition. Americans with Disabilities Act, S. 933, 101st

Cong. 1989. During hearings before the Committee on Laborand Human Resources, members feared the bill would prevent

employers from firing employees who were found to be underthe influence of drugs at work. Americans with DisabilitiesAct of 1989: Hearing on S. 933 before the S. Comm. on Labor

and Human Resources, 101st Cong. 40 (1989). In response,Senator Harkin stated his intent was to incorporate into the

ADA the policies of Section 504 of the Rehabilitation Act,

1973, Pub. L. 93-112, 87 Stat. 355 (codified at 29 U.S.C. 701) as interpreted by the Supreme Court and in a recent

Justice Department memo prepared by the Attorney General.

Id. That memo was inserted into the record and it explainedthat in the view of the Justice Department:

[a]ny legislation must make clear that the

definition of handicap does not include those

who use illegal drugs. . . . [w]e . . . do not wishto penalize those persons who, in limited cases,

are using controlled substances such as

marijuana or morphine under the supervision of

medical professionals as part of a course oftreatment, including, for example, experimental

treatment or to relieve the side-effects of

chemotherapy. These persons would fall underthe same category as those who are users of legal

drugs.

Pet. App. 35a.


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During debates in the Senate, Senator Jesse Helms

introduced an amendment that contained language narrower

than the final version as follows:

The term illegal drugs does not mean the use of acontrolled substance pursuant to a valid prescription or

other uses authorized by the Controlled Substances Act,

or other provisions of Federal Law. S. 933, supra, 512(b); Pet. App. 35a.

In the House of Representatives, debate related to the

illegal use of drugs prohibition led to an effort to balance theneeds of the disabled with the need to curb perceived abuses of

civil rights laws like the Rehabilitation Act. Following debate

and testimony, the House revised the S. 933 illegal use ofdrugs prohibition and corresponding exceptions. The House

Report explained:

The term illegal drugs is defined in section

101(5) and does not include drugs taken undersupervision by a licensed health care

professional. The exempted category includes,

for example, experimental drugs taken under

supervision. Many people with disabilities, suchas people with epilepsy, AIDS, and mental

illness, take a variety of drugs, including

experimental drugs, under supervision by ahealth care professional. Discrimination on the

basis of use of such drugs would not be allowed.

H.R. Rep. No. 101-485, 2, at 79 (1989)

reprinted in 1989 U.S.C.C.A.N. 303, 361; Pet.App. 33a.

Accordingly, the House revised S.933 to read:

The term illegal use of drugs does not include the useof controlled substances, including experimental drugs, taken

under the supervision of a licensed health care professional. Italso does not include uses authorized by the [CSA] or other


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provisions of federal law. H.R. Rep. No. 101-485, 3, at 75

(1990). (Note the separation by a period).

The Senate generally accepted the changes explained in

the House Report and revised the House version to the currenttext that was ultimately enacted.

The legislative history shows that the ADA did not

originally contain an illegal drug use exception. The history

also shows that the House of Representatives intendedcoverage to be broad and that the illegal drug use

exclusionary provision be narrow. Even the JusticeDepartment memorandum recognized that the Executive

Branch did not wish to penalize those persons who, in limited

cases, are using marijuana or morphine as part of acourse of treatment The legislative history of the ADA

directly contradicts the conclusion reached by the panel

majority. When that history is considered in light of the

purpose of the ADA, the conclusion requiring a narrowinterpretation of the illegal drug use exclusion becomes even

more compelling.

VI. ANY AMBIGUITY IN THE TEXT OF THE

STATUTE IS RESOLVED IN FAVOR OF PETITIONERSINTERPRETATION.

A lengthy and involved grammatical discussion on the

use of a comma is not required in order to interpret

12210(d)(1). The use of the word other can be resolved byway of rational analysis of the entire provision in light of

legislative purpose and history.

At first blush there is no ambiguity in the part of

12210(d)(1), which reads: Such term does not include the useof a drug taken under supervision by a licensed health care

professional, or other uses authorized by the ControlledSubstances Act or other provisions of federal law. The

forgoing clearly contains three conditions separated by orand one comma. The first clause, [s]uch term does not

include the use of a drug taken under supervision by a licensed


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health care professional, is unambiguous, complete within

itself, and terminates with a comma, a coordinating injunction.

The reader naturally interprets this as being an independentclause. In reading the entire sentence, the majority of the

Ninth Circuit found that the Petitioners reading of

12210(d)(1) renders the word other redundant since

Congress could have more clearly and concisely conveyed themeaning of two distinct exceptions by leaving the word out.See Pet. App. 28a (Berzon. J. dissenting). However, theinterpretation adopted by the majority of the Ninth Circuit

panel failed to give effect to every word and rendered two

entire clauses meaningless, essentially striking both from thestatute.

In her dissent, Justice Berzon reconciled the use of the

word other in a manner that spares both that word from the

stigma of redundancy and the balance of the sentence from ajudicial scalpel. Justice Berzon reasoned that the two clauses

could also be read as partially overlapping, with the group of

uses supervised by a doctor partially included within the set ofuses authorized by the CSA but also partially independent,

encompassing in addition a set of uses not authorized by the

CSA. Under this interpretation, other is not redundant.Instead, it accurately reflects the overlap. Were the other not

there, the exception would have divided the relevant universe

into two non-overlapping sets. Yet, in fact the CSA authorizes

some (but not all) uses of drugs taken under supervision by alicensed health care professional. The word other serves to

signal that there is no strict dichotomy between the two

phrases, as the bulk of the CSA-authorized uses are within thebroader set covered by the first phrase. See Pet. App. 29a

(Berzon. J. dissenting).

The foregoing explanation also helps explain the

placement of the single comma used in the sentence. Theplacement of the comma reinforces the understanding that the

first phrase is complete in itself, while uses other than under

the supervision by a licensed health care professional mustbe authorized by the CSA or other federal law. The comma


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indicates the set of uses described by the first is not entirely

subsumed by the second clause, substituting for an implicit if

in the second clause expressing this lack of total overlap. Thesentence thus excepts (1) all supervised uses and (2) other uses

as well, if by the CSA or other federal law. See Pet. App. 31a

(Berzon. J. dissenting).

The petitioners use of medical marijuana under adoctors supervision as part of a treatment regimen does not

foreclose protection under the ADA because it is use of a drugtaken under supervision by a licensed health care

professional. The other uses of drugs, as referred to in thesecond clause, are not under supervision by a licensed health

care professional but are uses of drugs the CSA provides forthat likewise allow disabled individuals to remain qualified for

protection. Finally, other uses of drugs that are not uses of

drugs under supervision of a licensed health care professionaland are not uses of drugs provided for in the CSA, but are

otherwise permitted by other federal laws, also allow disabled

individuals to remain qualified. That is what section12210(d)(1) says without excising any words and without

rendering any part of it superfluous. Indeed, if Congress

intended to except only those uses enumerated in the CSA,12210(d)(1) would have been written more concisely and

simply.

The panel majority struggled to reconcile the word

other and implied CSA authorization where no suchauthorization requirement exists. In its analysis, the majority

was overly concerned with the word other, a word of general

use, rather than with the purpose of the ADA. Completely

absent from the majoritys opinion is any analysis or review ofthe stated purpose of the CSA to combat the recreational abuse

of drugs. It appears the conclusion reached by the majority

was influenced by a preconceived notion that the CSA issomehow the final word concerning drug use. The Court inAmerican Trucking Assn cautioned against falling into those

types of interpretation traps. The statutory purpose andlegislative history only lend credence to the interpretation of


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the sentence that the use of a drug taken under supervision by

a licensed health care professional is independent from the

CSA.

VII. THE NINTH CIRCUIT PANEL ERRED WHEN

ANALYZING THE EQUAL PROTECTION CLAIMS

MADE BY THE PETITIONERS.

Without analysis, the Ninth Circuit panel concluded that

Congresss actions in the federal District of Columbia grantingrights to D.C. citizens did not result in unequal treatment under

the federal CSA and ADA. Pet. App. 17a 19a.

A. The Washington D.C. Home Rule Act provides

District of Columbia residents with limited

autonomy.

Unlike the fifty (50) United States, Washington D.C.

does not exist under dual sovereigns. Accordingly, in 1973,responding to calls from District residents seeking some

modicum of self-governance, Congress enacted the District of

Columbia Self-Government and Governmental Reorganization

Act, Pub. L. 93-198, 87 Stat. 774 (1973) (codified as amended

at D.C. Code 1-201.01, et seq.) Later deemed the Home RuleAct, the law granted residents the right to elect a mayor and a

D.C. Council. It delegated to the D.C. Council legislativepower over all rightful subjects of legislation. D.C. Code

1-203.02, D.C. Code 1-204.04. It lists certain matters that

are off-limits for the council including, inter alia, impositionof certain commuter taxes, legislation in the area of federal or

D.C. local courts, and prohibitions on allowing tall buildings.

D.C. Code 1-206.02(a)(4) - D.C. Code 1-206.02 (a)(8).

In the Home Rule Act, Congress reserved to itself theright to repeal D.C. Council enactments at any time. D.C.

Code 1-206.01; See alsoMarijuana Policy Project v. U.S.,304 F.3d 82 (D.C. Cir. 2002). Also, the District must submit

all proposed D.C. Council legislation to Congress. Indeed,D.C. Council enactments become law only if Congress declines

to pass a joint resolution of disapproval within thirty days of a


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proposed laws submission to it (or sixty days in the case of

criminal laws). D.C. Code 1-206.02(c)(1)-(c)(2). Despite

Congresss purported grant of home rule, under any analysis,the Districts local government is not a separate sovereign

the only sovereign in the federal district is Congress. U.S.

Const., art. I, 8, cl. 17.

B. Even with the Home Rule Act, D.C. has onlyone

sovereign.

Through art. I, 8, cl. 17 of the Constitution, the

District Clause, Congress has virtual plenary power over theDistrict of Columbia. Similar to its District Clause controlover D.C., Congress derives its authority over U.S. territories

through art. IV, 3, cl. 23, the Territorial Clause, of the

Constitution. The two constitutional grants of power haveoften been treated as having similar parameters. ODonoghuev. United States, 289 U.S. 516, 53 S.Ct. 740, 746-47, 77 L.Ed.

1356 (1933) at 541-42. Like D.C., the territory of the U.S.Virgin Islands does not exist under dual sovereigns. Rather,

the territory is a single sovereignty because it is subject to the

ultimate control of Congress. United States v. Government of

the Virgin Islands, 363 F.3d 276 (3d Cir. 2004); United Statesv. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303

(1978) at 319. Like laws in other U.S. territories, the Virgin

Islands practices limited self-autonomy through the Revised

Organic Act of 1954, provided for it by Congress in 48 U.S.C.

1541, et seq. Even if the application of a territorial law

approved by Congress creates trappings of a separatesovereignty, the fact remains that unless and until there is an

adjustment in its status, what Congress gives to a territory with

one hand can be taken away with the other. Jackson v. West

Indian Company, Ltd., 944 F.Supp. 423 (1996). The same

holds true for Washington D.C. D.C. Code 1-206.02(c)(1)-(c)(2). Like a territory, the District marches to the beat of a

single sovereign drum major. Simms v. Simms, 175 U.S. 162

3U.S. Const., art. IV, 3, cl. 2 [Territorial Clause].


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at 168, 20 S.Ct. 5860, 44 L.Ed. 115 (1899); Binns v. United

States, 194 U.S. 486 (1904) at 491-92, 24 S.Ct. 816, 817-18,

48 L.Ed. 1087; See alsoChristianson v. King County, 239 U.S.356, 36 S.Ct. 114, 60 L.Ed. 327 (1915) at 364-66.

C. Congress legislated the preemption rules that

apply in D.C.

Like a territory, the District may have the trappings of

dual sovereignty, but it is truly in the domain of only one.People of the Virgin Islands v. William G. Clark, Vir.Is.Sup.Ct.

No. ST-09-CR-020 (May, 2010) (Published). Indeed, it is evenmore beholden to Congress because, unlike the territories, mostD.C. legislation must be reviewed by it and is subject to

rejection before becoming law. D.C. Code 1-206.02(c)(2).

Since D.C. is not a state but is rather a federal area whose self-governance is authorized by Congress, those laws of the

District that go through Home Rule Act Congressional

approval are in some sense a form of federal regulation.Biotechnology Industry Organization v. District of Columbia,

496 F.3d 1362 (2007) at 1371. Nevertheless, as between

District statutes and superior enactments by Congress, the

general principles of preemption apply. (emphasis added)(Ibid.; See also Dont Tear It Down, Inc. v. Pa. Ave. Dev.Corp., 642 F.2d 527 (D.C.Cir.1980) at 534 n. 65.)

While general principles of preemption apply, the

Supremacy Clause itself does not. Rather, preemption ofDistrict laws is analyzed through specific Home Rule Act

provisions enacted by Congress under its plenary District

Clause powers. Accordingly, it follows that Congress itselfprovided explicit preemption rules for D.C. enactments in

sections 601, 602, and 603 of the Home Rule Act. (D.C. Code

1-206.01, 1-206.02(c)(1), 1-206.02(c)(2), 1-233, and 47-

313.) It is the Home Rule Act that provides the preemptionmechanism for D.C. laws -- not the Supremacy Clause.


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D. When a D.C. enactment has gone through Home

Rule Act congressional review, preemption

analysis is complete.

In reviewing Home Rule Act congressional approvalunder Sections 602(c)(1) and 602(c)(2) [D.C. Code 1-

206.02(c)(1)-(c)(2)], the court in Barnes v. District ofColumbia, 611 F.Supp. 130, 134-135 (1985) wrote:

[T]his Court has serious doubts about the extentto which the Supremacy Clause could nullify a

District of Columbia law enacted pursuant to the[Home Rule Act] subject to the 30-day review

period provided by 1-233(c)(1). Although that

Act extends a measure of home rule to theDistrict, [citations], the City Councils

legislative authority is still significantly limited

by the powers retained by Congress. For

instance, Congress possesses a substantial role inthe legislative process through the layover

provision permitting congressional veto or

amendment of Council legislation.

Thereafter, the court distinguished legislation that hasnot gone through congressional review from that which has:

It is difficult to reconcile this control exercised

by Congress and its implicit approval of the

legislation with the concept that a law subject tothe 30-day review period violates the Supremacy

Clause. While the preemption doctrine may

affect District of Columbia regulations whichwere never reviewed by Congress, [citation

omitted], it would seemingly have a lesser effect

on enactments which have been implicitly

approved by Congress.

611 F.Supp. at 135.

Although some dicta in Dont Tear It Down, supra, 642

F.2d at 534 n. 65 suggests that the preemption doctrine effects


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District of Columbia legislation no less than state enactments,

that case did not address the effect of Home Rule Act

congressional review. Barnes , supra, 611 F.Supp. at 135; see

alsoTurner v. D.C. Bd. of Elections and Ethics , 77 F. Supp. 2d

25, 31 (D.D.C. 1999). With its plenary power over the

District, Congress certainly had the power to expressly provide

by statute the preemption mechanisms used for Districtenactments. Indeed, if the Supremacy Clause applied to

District legislation, there would have been no need forCongress to act to prohibit medical marijuana in D.C. for the

ten year period preceding Pub. L. 111-117. See Turner, supra;see also the Barr Amendment, 1998, Pub. L. 105-277, 112 Stat.2681 and Pub. L. 106-113, 113 Stat. 1530 (1999). Given the

Home Rule Act preemption provisions expressly provided by

Congress are in a section titled Retention of Constitutional

Authority, there is no doubt Congress meant to retain its power

over the District.

E. The Districts Legalization of Marijuana for

Medical Treatment law was twice approved

through Home Rule Act congressional review.

Here, Congress twice refused to preempt D.C.smedical marijuana legalization statute (D.C. Stat 7-1671),

first on February 25, 2010 and then again on July 27, 2010.See D.C. Law 13-315 (orig. D.C. Act No. 13-138) 57 DCR3360 (approved Feb. 25, 2010); See also D.C. Act 18-429

(orig. D.C. Law 13-315) 57 DCR 4798 (approved Jul. 27,

2010). As the Barnes court suggested, it makes sense theSupremacy Clause does not apply in cases where a D.C. law

has gone through congressional Home Rule Act preemption

review. Indeed, the two 1-206.02(c)(1)-(c)(2) congressionalreviews of the D.C. medical marijuana law most certainly

completed the preemption process. The fact that thepreemption mechanism takes place before enactment shows

Congress is the sole sovereign in D.C. as separatesovereigns, states are not required to pass legislation to

Congress before enactment and so the Supremacy Clause

operates against state laws that have already been passed. But


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even after enactment of a D.C. law, it is still not the

Supremacy Clause that governs preemption of District laws

subject to 1-206.02(c)(1) review it is the reservation ofConstitutional authority Congress retained for itself in D.C.

Code 1-206.01 to repeal, rescind, or modify any District law

at any time.

F. Congress gave District voters the right to vote-on

and implement medical marijuana legalization.

For ten (10) years, District voters had to direct efforts to

Congress rather than vote-on medical marijuana legalization4

.Apparently, their efforts directed to Congress were effective.In December, 2009, Congress enacted Pub. L. 111-117:

The bill [H.R. 3170 (enacted as Pub. L. 111-

117)] also takes further steps towards reducing

undue congressional interference in local affairs [and] allows the District to conduct and

implement a referendum on use of marijuana for

medical purposes, as has been done in variousstates.

H.R. Rep. No. 111-202, 1, at 8 (2009).Rather than implement its own medical marijuana law

for the District, Congress instead, through federal legislation,

allowed the District to vote-on medical marijuana legalization.Ibid. When the President signed Pub. L. 111-117 on December

17, 2009 following Congresss approval of H.R. 3170

amended, D.C. voters that were directed to Congress ratherthan to the D.C. legislative process (MPP, supra) were

granted a franchise and thereafter adopted the ballot initiative

more than 70% of them had approved in 1998.

4 In MPP, supra, the D.C. Court of Appeals held, The Barr

Amendment merely requires that, in order to have legal effect,

[D.C. voters] efforts must be directed to Congress rather than to

the D.C. legislative process.


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G. The Petitioners in this case are similarly situated

yet treated differently under the law.

Since it is the explicit preemption parts of the Home

Rule Act rather than the Supremacy Clause that apply in D.C.,citizens there are not subject to the illegal drug use

provisions of the ADA in the same way the Petitioners are

subject to those restrictions. Likewise, the CSA appliesdifferently for medical marijuana patients in compliance with

D.C. law than it does for similarly situated state citizens. InWashington D.C., analysis of the applicability of the

Legalization of Marijuana for Medical Treatment law inrespect to the ADA and CSA is done through rules of statutory

construction because the preemption analysis, although it takesplace in advance of the enactment of D.C. laws through 1-

206.02(c)(1), is complete following preemption review by

Congress.

It is illogical for the laws of a single sovereign to besubject to the other laws of that same sovereign. It is even

more illogical when that sovereign has implemented an express

statutory preemption review scheme that must be completedbefore proposed laws of its local subordinate become effective.

It follows that preemption analysis of D.C.s medicalmarijuana law concluded when Congress refused to preemptthe Districts Legalization of Marijuana for Medical Treatment

Act under 1-206.02(c)(1). Instead of the Supremacy Clause,

the congressionally approved D.C. law is instead subject toanalysis under rules of statutory construction. When that law is

correctly analyzed through rules of construction, the impact on

D.C. citizens is markedly different than the impact on state

citizens where the Supremacy Clause applies. First, the D.C.law was enacted and reviewed by Congress for preemption

under section 1-206.02(c)(1)-(c)(2) laterin time than the CSA.

It was not preempted by Congress during that process. Next,given the detail and specifics included in the Districts law, it

is the later law that is far more specific in respect to the

medical value and use of marijuana. D.C. Stat. 7-1671, et

seq . Finally, Congress specifically allowed its D.C. citizens


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the right to determine whether marijuana has medical value.

After those voters made that determination, Congress

necessarily approved their findings when it refused to preempttheir law. Accordingly, the ADA protects disabled D.C.

citizens who are prescribed medical cannabis because the

Supremacy Clause does not nullify the District law Congress

twice refused to preempt. Barnes, supra, 611 F.Supp. at 134-35. According to the Ninth Circuit, it does not protect

similarly situated state citizens.

H. Congress cannot give one group of citizens the

franchise and withhold it from another similarly

situated group.

Without citing authority, the right to vote is

fundamental. Not only did the Ninth Circuit panel fail toproperly analyze equal protection, it did not even address the

differences in the applicability of the ADA in D.C. and the

states. The panel erred when it determined the CSA appliesthe same way in D.C. as it does in California. Moreover, it

completely overlooked Congresss action in granting a

fundamental right not just the right to cast a vote, but the

right to effectuate the results of that vote -- to one group ofcitizens but not to another similarly situated group.

CONCLUSION

The Court should grant the petition.

MATTHEW S.PAPPAS

Counsel of Record

LEE H.DURST

CHARLES J.SCHURTER

Associate Counsel

22762ASPAN STREET,#202-107LAKE FOREST,CA 92630


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Documents

James v. Costa Mesa, Petition for Writ of Certiorari, U.S. Supreme Court