Gass v. 52 Judicial Dist.

232 A.3d 706

Melissa GASS, Ashley Bennett, and Andrew Koch, Individually and on Behalf of All Others Similarly Situated, Petitioners

v.52^ND JUDICIAL DISTRICT, LEBANON COUNTY, Respondent

No. 118 MM 2019

Supreme Court of Pennsylvania.

Argued: May 19, 2020

Decided: June 18, 2020

Ryan Ignatius Kelly, Esq., Thomas Michael O'Rourke, Esq., Abby L. Sacunas, Esq., Thomas G. Wilkinson Jr., Esq., Cozen O'Connor, for Society of Cannabis Clinicians, et al, Amicus Curiae.

Andrew Chapman Christy, Esq., Sara Jeannette Rose, Esq., Ali Nicole Szemanski, Esq., Witold J. Walczak, Esq., for Petitioners Gass, Melissa, Bennett, Ashley, Koch, Andrew.

Robert Joseph Krandel, Esq., Geri Romanello St. Joseph, Esq., for Respondent 52nd Judicial District, Lebanon County.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

CHIEF JUSTICE SAYLOR

This matter concerns a challenge to a local judicial district's policy prohibiting the use of medical marijuana by individuals under court supervision, such as probationers.

In 2016, the Pennsylvania General Assembly enacted the Medical Marijuana Act.¹ In a declaration of policy, it recognized that "[s]cientific evidence suggests that medical marijuana is one potential therapy that may mitigate suffering in some patients and also enhance quality of life." 35 P.S. § 10231.102(1). The Legislature then announced its intention to provide a temporary program of access balancing patient needs with safety considerations. See id. § 10231.102(3)(i), (4).

Under the Act, "[n]othwithstanding any provision of law to the contrary, use or possession of medical marijuana as set forth in [the] act is lawful within this Commonwealth." Id. § 10231.303(a). Relevantly, medical marijuana may only be dispensed, however, to patients who receive certifications from qualified physicians and possess a valid identification card issued by the Pennsylvania Department of Health. See id. § 10231.303(b)(1)(i).² A "patient" is a Pennsylvania resident who has an enumerated serious medical condition and has met specified requirements for certification. Id. § 10231.103. Notably, there are many other regulatory requirements and restrictions imposed throughout the Act. See Class Action Petition for Review Addressed to the Court's Original Jurisdiction, 118 MM 2019 (Pa.), at ¶¶37-63 (summarizing the MMA's regulatory prescriptions).

And of particular relevance here, the MMA contains an immunity provision protecting patients from government sanctions. See 35 P.S. § 10231.2103(a). Per the statute, no such individual "shall be subject to arrest, prosecution or penalty in any manner, or denied any right or privilege, ... solely for lawful use of medical marijuana ... or for any other action taken in accordance with this act." Id.

In September 2019, the 52nd Judicial District -- comprised of the Lebanon County Court of Common Pleas (the "District") -- announced a "Medical Marijuana Policy" under the issuing authority of the president judge. See Lebanon County Probation Services Policy Nos. 5.1-2019 & 7.4-2019 (Sept. 1, 2019) (the "Policy"). Centrally, the Policy prohibits "the active use of medical marijuana, regardless of whether the defendant has a medical marijuana card, while the defendant is under supervision by the Lebanon County Probation Services Department." Id. at 2. The following explanation was provided:

The medical marijuana card [issued under the MMA] is not a prescription for medication, but rather a recommendation by a physician as to a form of treatment. Medical marijuana has not been approved as a MAT (medically assisted treatment) by the FDA (Food and Drug Administration). The use of medical marijuana may have benefits for some medical conditions and under certain circumstances may be helpful. Individuals, however, who are involved in substance abuse and issues surrounding addiction which may have played a part in the defendant's criminal violations of law, must be dealt with in a humane but effective manner so the defendant can be rehabilitated ....

Under the Federal Controlled Substances Act (CSA) of 1970, marijuana is classified as a Schedule I substance. By definition under the law, Schedule I drugs have a high potential for abuse and dependency, with no recognized medical use or value. Any marijuana possession, cultivation, or use is a federal crime, subjecting a defendant to fines, prison time, or both. Since marijuana use (medical or recreational) is deemed illegal under Federal law, [and] the Court and the Probation Department should not knowingly allow violations of law to occur, the prohibition against such use is required.

Id. at 1 (emphasis in original).³ As originally stated, the Policy contained no exceptions.

Petitioners are individuals under the supervision of the probation agency in Lebanon County. Represented by the American Civil Liberties Union, they filed a petition in the Commonwealth Court's original jurisdiction challenging the validity of the Policy, particularly in light of the MMA's facial applicability to persons under court supervision, as well as on account of the enactment's immunity provision. Petitioners included class-action allegations and sought declaratory and injunctive relief confirming that the Act prohibits the District from penalizing medical marijuana patients who comply with state law -- including those under court supervision -- and restraining enforcement or implementation of the Policy.

Petitioners alleged that each suffers from serious and debilitating medical conditions. After unsuccessful treatments with other therapies, Petitioners averred, they secured lawful authorization, per the MMA, to use medical marijuana. Further, the petition asserted that:

[m]ore than sixty people with serious medical issues in Lebanon County must now decide whether to discontinue their lawful use of a medical treatment that safely and effectively alleviates their serious medical conditions, or risk revocation of their probation and possible incarceration. It is a choice between risking severe health consequences and going to jail.

Class Action Petition, 118 MM 2019 (Pa.), at ¶2. Petitioners also stressed the lack of any exceptions.

Separately, Petitioners filed an application for special relief in the nature of a preliminary injunction. Soon thereafter, the Commonwealth Court proceeded, sua sponte , to transfer the case to this Court, concluding that it lacked jurisdiction to grant the requested relief. The District then filed its response in this Court opposing preliminary injunctive relief. It claimed, among other things, that Petitioners were unlikely to prevail on the merits, arguing, inter alia , that the General Assembly didn't intend the MMA to override the courts’ ability to supervise probationers and parolees.

Moreover, the District asserted that its probation services office had experienced disruptions and persistent difficulties when supervising probationers and parolees using medical marijuana. In this vein, the District elaborated as follows:

For instance, some individuals under court supervision with medical marijuana prescriptions are unable to identify the health condition that led to the medical marijuana prescription. The Office also found a significant amount of individuals under supervision, who possess a medical marijuana card, that have a history of marijuana abuse and/or their underlying charges are related to the unlawful possession of marijuana. Additionally, drug testing for illicit use of marijuana is also rendered meaningless if an individual has a prescription for the legal use of medical marijuana as the laboratory is unable to discern between legal and illegal strands of marijuana.

Answer to Petitioners’ Application for Special Relief in the Nature of a Preliminary Injunction, 118 MM 2019 (Pa.), at 2 (internal citations omitted). The District also maintained that it would be harmed if the Policy were to be restrained, particularly since some drug treatment programs refuse to accept individuals who are using medical marijuana.

Additionally, the District suggested that an October 7, 2019 revision to the Policy dissipates any concern of harm to the affected individuals, since per the amendment individuals aggrieved by the Policy may benefit from an exemption in the event they prove, at a hearing, the "medical necessity" for their ongoing use of medical marijuana.⁴ See, e.g. , Answer to Petitioners’ Application for Special Relief in the Nature of a Preliminary Injunction, 118 MM 2019 (Pa.), at 6-7 (positing that the Policy "carefully balances the need to rehabilitate offenders against the need for medical marijuana and gives individual consideration for the Petitioners’ specific circumstances."). According to the District, this hearing would "[o]perationally" be part of a parole or probation revocation proceeding. Id. at 4.

The District further noted that the use of medical marijuana conflicts with the general conditions of probation and parole in Lebanon County, which require compliance with all state and federal criminal laws and prohibit the possession and use of alcohol and "any legal or illegal mind/mood altering chemical/substance." Id. at 3. The District attested that it has been the general experience that requiring adherence to such general conditions assists with rehabilitation and reduces the risk of recidivism.

Ultimately, although the transfer by the Commonwealth Court was improvident, this Court elected to exercise its extraordinary King's Bench jurisdiction to consider the petition. We found that the case implicates substantial legal questions concerning matters of public importance, particularly in light of the allegation that other judicial districts have adopted, or are considering adopting, similar limitations on the use of medical marijuana. The Order also stayed any enforcement or implementation of the Policy pending further order and directed the Prothonotary to establish a briefing schedule and list the case for oral argument. See Order, 118 MM 2019 (...