In Memoriam: Ralph Seeley

• Publication year: 1998
• Citation: Vol. 22 No. 04

SEATTLE UNIVERSITY LAW REVIEWVolume 22, No. 1SUMMER 1998

COMMENTS

IN MEMORIAM: RALPH SEELEY

Obscured by Smoke: Medicinal Marijuana and the Need for Representation Reinforcement Review

Aryeh Y. Brown(fn*)

I. Introduction

In Seeley v. State,(fn1) the Supreme Court of Washington held that the plaintiff, Ralph Seeley, could not use the marijuana his doctor was willing to prescribe to allay the nausea brought on by chemotherapy. Like most other states, Washington currently regulates drugs under a version of the federal Comprehensive Drug Abuse Prevention and Control Act (CDAPCA).(fn2) Like the CDAPCA, Washington's Uniform Controlled Substances Act(fn3) (UCSA) lists marijuana as a Schedule I substance.(fn4) It is thus illegal under almost all circumstances and cannot be prescribed by a physician.(fn5) In deciding the case, the Supreme Court refused to classify Mr. Seeley's right to use marijuana as being a fundamental right for purposes of constitutional analysis.(fn6) Consequently, the court did not subject the legislative placement of marijuana in Schedule I to strict judicial scrutiny.(fn7) Instead, the court employed a rational basis standard of review(fn8)-which, in effect, deferred back to the legislature the power to decide questions concerning the medicinal use of marijuana.

By subjecting the statute to mere rational basis review, the court essentially told Mr. Seeley, and all those in his position, that the relief they seek can only be granted by the legislature, as the judiciary is not the proper forum in which to address their concern. The result presents nothing less than a failure of the judicial-legislative process because such relief will almost certainly not be granted by the legislature. For various social, political, and organizational reasons, Congress is systemically incapable of rationally and intelligently examining the classification of marijuana as a Schedule I drug. Similar pressures and a general deference to the federal government in the area of drug control likewise prevent the state legislature from effectively dealing with the question of marijuana scheduling.(fn9) Seeley v. State thus provides a paradigmatic example of a Catch-22 that exists in nearly all similar cases in both state and federal courts throughout the country. The legislative process fails to address the needs of those with a legitimate medical need for marijuana, and the courts, in turn, defer to the legislature by subjecting the law to rational basis review-the lowest level of judicial scrutiny.

The theory of representation reinforcement review escapes this Catch-22 by providing an alternative method whereby a court may subject a law to a higher level of scrutiny. Under this theory, a court may apply strict scrutiny when the legislative process has broken down in some way. The court would uphold the statute only if it is necessary to accomplish a compelling state interest that outweighs the interests of the individual. The courts act to correct a legislative shortcoming by applying strict scrutiny to a law that has been passed for reasons that may be considered illegitimate.

This Comment does not revisit the Washington Supreme Court's refusal to classify the medicinal use of marijuana as a fundamental right protected by the Constitution.(fn10) Instead, it challenges the court's cursory determination that Mr. Seeley was not part of a suspect class.(fn11) This article seeks to show that, due to the legislative inability to deal with this issue, people with a medical need for marijuana do indeed represent a suspect class-a class of people for whom the legislative system can offer no recourse. When confronted with such a class, it is the duty of a court to recognize that the judiciary is the only branch of government adequately situated to address its needs. The courts must therefore subject legislation that restricts the rights of such people to a strict level of judicial scrutiny in order to reinforce the representation that is lacking in the legislature.

This Comment begins by presenting the facts that gave rise to Seeley v. State and summarizing the positions taken by the majority and the dissent regarding the standard of review to be applied. Section III proceeds to trace the theory of representation reinforcement review from its origins in Justice Stone's footnote in United States v. Carolene Products Co.(fn12) (section III.A.), and through its comprehensive development by Professor Ely(fn13) (section III.B.). Sections III.C. and D. examine the reasons behind the theory in order to determine the instances in which representation reinforcement review should be applied. These sections argue that it is not so much the salient features of a given minority that determine whether heightened scrutiny is warranted, but that it is the legislative process by which a particular law was passed and continues to be upheld that is determinative.

Sections IV and V apply the theory to people with a medical need for marijuana. These sections show that such people constitute a suspect class whose interests must be safeguarded by the judiciary. In doing so, section IV traces the origins of drug legislation and of marijuana's characterization as an illicit drug. This section points out the central roles that various prejudices and organizational processes played in passing such legislation. Section V examines the present debate concerning the medicinal use of marijuana, and shows the extent to which discreditable reasoning still dominates the debate. Finally, section VI ascribes much of the irrationality that characterizes the modern debate to the political and organizational processes that influence modern drug control. These influences, in turn, continually prevent the legislature from substantively addressing the need to reschedule marijuana. This Comment contends that because of the continuing legislative inability to deal adequately with this issue the courts must apply strict judicial scrutiny by way of a representational reinforcement theory to cases concerning the medicinal use of marijuana. Failure to do so perpetuates the dysfunction of the judicial-legislative process. It additionally detracts from the legitimacy of that process by fostering cynicism and contempt toward the legislature that promulgates such oppressive laws and toward the judiciary that allows their enforcement.

II. The Case of Seeley v. State

In 1986, Ralph Seeley was first diagnosed with Chordoma, a rare form of bone cancer. Subsequent to his diagnosis, Mr. Seeley underwent eight spinal surgeries, two lung surgeries in which his entire right lung and part of his left lung were removed, radiation therapy, and chemotherapy. The cancer invaded his liver, sacrum, and the soft tissues of the gluteus musculature. Mr. Seeley's condition was considered terminal,(fn14) and he finally succumbed to the disease in February 1998.

In the course of chemotherapy, Mr. Seeley became so violently ill that he considered discontinuing the treatment and allowing the disease to run its course.(fn15) He described the nausea that resulted from the chemotherapy as "the most debilitating pain I have ever experienced."(fn16) "[C]hemotherapy-induced nausea is not 'an upset tummy.' It is violent, unrelenting retching and gagging, often accompanied by an uncontrollable release of bowel control."(fn17) Mr. Seeley's suffering from chemotherapy included hours of agony ending with minutes of lying helplessly on the hospital floor, curled in a fetal position, covered with his own vomit and excrement, and unable to pull the "nurse-call" cord a few inches from his face.(fn18)

At the suggestion of one of his physicians, and after discussion with other cancer patients, Mr. Seeley smoked a small amount of marijuana before undergoing a round of chemotherapy injections.(fn19) Smoking leaf-form marijuana proved to provide him with the only relief from the nausea that accompanied chemotherapy. Mr. Seeley had been prescribed several antiemetics including synthetic forms of Delta-9 tetrahydrocannabinol, the active euphoric agent of cannabis [hereinafter THC] (marinol and dronabinol).(fn20) These antiemetics were considerably less effective than smoking marijuana. First, the synthetic drugs took two to four hours to take effect; the smoked marijuana took effect in five to ten minutes. Second, since the waves of nausea that accompanied Mr. Seeley's chemotherapy were unpredictable and intermittent, he was usually unable to ingest the pill without vomiting it up whole. Finally, on the occasions that he could hold down a tablet, Mr. Seeley found the "high" to be more debilitating and to last longer than that induced by smoking marijuana. Unlike smoked marijuana which lasts four to five hours, the effects of marinol lasted 12 to 14 hours during which time he was unable to read with comprehension or to converse with any level of clarity.

Subsequent to being diagnosed with cancer, Mr. Seeley passed the Washington State Bar exam. Acting pro se, he filed a lawsuit in which he sought a declaratory judgment that the law placing marijuana on Schedule I of controlled substances violates the Privileges and Immunities and Equal Protection Clauses of the Washington and United States Constitutions and is therefore unconstitutional.(fn21) In addition, he asked the court for an order directing the Washington Board of Pharmacy to reclassify marijuana as a...