MJBizMag March 2022 - 44

desegregated schools-there were
scores of cases that came before them.
It was a buildup, " Rudick said, arguing
that the cultural stigma attached to
marijuana has been one of the main
hurdles faced by cannabis lawyers.
Recipe for Success
The issue, both attorneys said, is
a combination of finding the right
plaintiffs and the right team of
lawyers, all of whom are dedicated
enough to spend a decade or more
working for court victories.
" Resources are huge. We took on
the Washington case pro bono. It
was millions of dollars in legal fees, "
Rudick said.
" This is a monopolizing effort for a
firm. It could easily put a small firm
out of business, this type of litigation.
Especially when you have the weight
of the (U.S. Department of Justice)
against you, and they have all the
resources in the world. "
Notably, legal outcomes of these
two cases could have had drastically
different impacts for existing
marijuana businesses.
If Sisley and Zorn had won their
case, for instance, and the DEA
moved cannabis to Schedule 2, that
could have opened the door for
pharmaceutical giants to get into
the cannabis industry and created
immense disruption with new federal
regulations. (See " Rescheduling
Roulette " on page 38.)
That was something that Rudick
said her team wanted to avoid. And
it was also one of the reasons her
team decided against starting with a
rescheduling petition to the DEA before
moving to a lawsuit.
" Something that's worse than what
we have right now-which is sort of a
hands-off policy-is Schedule 2, which
would basically put all of our existing
industry out of business. We can't have
a pharmaceutical model, " Rudick said.
44 March 2022 | MJBizMagazine
Lauren
Rudick
the DEA, means that cannabis has " no
currently accepted medical use and a
high potential for abuse. "
That very definition-and how it's
understood by DEA officials-is why
Zorn says the agency's standards for
" And that was one of the fears we had
with a rescheduling petition. "
Open-ended Possibility
Both attorneys said a court victory-and
either rescheduling or descheduling,
depending on the plaintiff's request-is
there for the taking.
Rudick said federal marijuana
prohibition violates " so many
fundamental constitutional rights " that
it would be almost child's play for an
attorney to win on the merits of a legal
argument in open court.
" It's rooted in unconstitutionality, "
Rudick said of marijuana's Schedule
1 classification-which, according to
Schedule 1 classification are absurd.
" Our core contention in that case,
and something that wasn't decided
(by the judge) ... was that the DEA
has misinterpreted the phrase, 'No
currently accepted medical use,' to
mean 'approved by the (U.S. Food and
Drug Administration),' " Zorn said. " And
because of that, (the DEA) refuses to
reschedule marijuana. "
Which means that the policy debate
is ripe for the right attorney, Zorn said.
" File a petition, make all the same
arguments we made, and when the
DEA rejects it, go file an appeal. Go to
whichever circuit court, take our brief
and copy and paste it, " Zorn said.
" If you don't lose on a technicality,
you will win. "
John Schroyer is chief
correspondent for
MJBizDaily. He can be
reached at john.schroyer@
mjbizdaily.com.
MJBizMag March 2022

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