Good Law | Bad Law #105 - The Case of the Kindergartner and Her Life-Saving Cannabis Oil w/ Joe Rogoway

Aaron Freiwald: [00:00:00.09] Welcome back to Good Law Bad Law. In this episode we're following up on Episode 104 to talk a little bit more about marijuana law. And in this case a really powerful human-interest story. My guest is Joe Rogaway, a lawyer in California who took on a pro-bono case on behalf of a 5 year old girl with a medical condition that really was only treatable with cannabis oil. Unfortunately, the school where she was going to attend kindergarten refused to let her into the school with the cannabis oil. Well Joe took on the case and I'll just tease it by telling you things worked out pretty well for this little girl and her family. And it turns out it was one of the most rewarding experiences of Joe's career too. It's a great story about the impact of the law when it comes to marijuana and some of the controversies and disputes we're going to be seeing more and more of down the road as more states deal with this issue. So stay tuned for a great story and my guest Joe Rogaway. I know you'll enjoy.

 

Aaron Freiwald: [00:01:25.85] Welcome back to Good Law Bad Law. My guest on today's episode is Joe Rogaway, a California attorney. Joe thanks very much for being on the program.

 

Joe Rogaway: [00:01:37.5] Good morning. Thank you for having me.

 

Aaron Freiwald: [00:01:39.92] We are going to be talking today about a fascinating and I think really important case one that was probably unimaginable even just a few years ago but now one that we're going to be seeing more and more of, this kind of case as marijuana and cannabis products become more openly available and more widely used. And this is a case of a kindergarten girl in California and a battle that Joe, on behalf of her and her mother, you fought so that she would have the right to use this cannabis oil, which she needs to treat her medical condition, while she is in school, an incredible story. And I really appreciate your being on the program to help us understand this and tell that story. First off give us a little background Joe, on yourself and obviously you're a lawyer in California. Tell us a little bit about what you do in your practice.

 

Joe Rogaway: [00:02:41.12] Yeah. Absolutely. So, primarily our firm works with companies in the cannabis industry. So most of what we do is representing businesses. We represent businesses that are looking to, first get created, to acquire properties, to get those properties entitled. We do a lot of financing so a lot of the capitalization, we do a lot of that, transactional work disputes, intellectual property things that are enriching and important and we enjoy doing. But you know very different tax relief from the pro-bono matter that we worked on with Addams Family. So largely what we do is represent businesses up and down California to assist them in participating in California's legal cannabis industry. And so this was, for us, a very exciting opportunity to make a real meaningful impact in the lives of both Brooke Adams the child, the student, as well as her entire family.

 

Aaron Freiwald: [00:03:49.48] And I want to get some detail into Brooke's story but just to set the scene for us here. In California it was really just at the beginning of this year that marijuana for all uses was made legal right? Give us that key background so we understand. First with medical use and then it was expanded more broadly just recently. Right?

 

Joe Rogaway: [00:04:14.11] That's correct. So California is the first state in the country to pass medical marijuana laws. That happened in 1996 through the Compassionate Use Act known here as Proposition 215 as well. And that was a very sort of short, briefly worded initiative that essentially just authorized physicians to recommend cannabis to patients for those patients upon recommendation to be deemed qualified patients and for qualified patients to be able to use and cultivate medical cannabis and with that there was really no ability for any sort of supply chain for the whole procurement process, the entire you know, ability for a medical patient to purchase cannabis was nothing that was really contemplated within Prop 215 and what happened in the late 90s was there was a whole bunch of sort of informal what we would now call dispensaries but they were at the time called compassionate caregiver clubs and they were not recognized under the law. There was a whole bunch of cases that went up in the appellate courts. All of them essentially said that Prop 215 did not allow for any sort of distribution of cannabis, notwithstanding some of the language for caregiving in prop 15 and so in order to rectify that the California state legislature in 2003 enacted the Medical Marijuana Program Act which is known as SB 420 which is Senate Bill 420 and that greatly expanded the ability for patients to produce and obtain medicine and also created the collective model. So that was essentially about 23 statutes almost all of which inured to the benefit of the qualified patient and the most important statute that is in SB 420 is the Health and Safety Code Section, 11362.775, which is the collective statute. And so that is so.

 

Aaron Freiwald: [00:06:33.64] You just impressed me. Well I mean, I have to ask you this before we before we go on: so, what you're describing is I guess understandably, what has to happen for an entirely new industry? One that previously was illegal to be created. First you have to set up the right to access this for medical use but then you have to give then no infrastructure and that has to be created not only in a business sense but in the legal sense. But you mentioned this bill from the Senate Bill 420 and I mean I have to ask you, you are the expert here. I know that 4200 has got a cult significance in you know in the community of people interested in marijuana let's say. Did the Senate bill get Named did they assign that bill because of the significance of April 20th or did April 20th become significant because of that bill.

 

Joe Rogaway: [00:07:44.94] The former so 420 is something that is a term that actually goes back to the 70s for this group of students in San Raffel which is about a half an hour north of San Francisco called the waldos these kids called themselves the waldos and 420 was their coded language in high school to go smoke weed so that term has been around long before medical cannabis that the ways that the Senate bill was named was certainly a nod to Senate Bill 420 and you know it is definitely entertaining. What sort of a consequence of naming the medical marijuana program Senate Bill 420 is that when when issues came up in the courts or in law enforcement or with prosecutors or just in the community related to the meaning the implementation of that new set of laws in some ways this sort of delegitimized it at least locally. You know it's people sort of conflated the recreational use of the term 420 with a very serious set of laws to deal with cannabis. But yes, certainly it was a nod to that. And in talking about sort of like pushing ahead for you know the new set of laws to get access one of the things that was really interesting is that in the era of Prop 215 there was no ability to acquire cannabis. And so that's what Dennis Peron who was one of the proponents for Proposition 215 called The magic ounce phenomenon where you could use cannabis you could legally obtain it at least and cultivate it. But if you couldn't cultivate it yourself there is really no mechanism for you to get it. So what must happen is just like fall from the heavens into your lap so you can consume it of course not. Right. And so it's because of that inability for Safe Access that gave rise to SB 420 and it was a real problem because it had at the time. You know there was in the Bay area a lot of terminally ill people a lot of people who were you know coming out of the AIDS epidemic and they were still going to you know black market back alley type of dealers in order to get their cannabis. There were real legitimate needs for people to get safe access to cannabis. And one of the things that was really interesting is you know it's such a political issue and it still continues to be one. And it was just difficult to sell to you know the public politically rhetorically the ability to sell marijuana at the time. And so the way that dispensary system was actually effectuated in California in the early days is through that statute that I cited earlier, the Health and Safety Code, which is what created collectives and essentially what that statute says is that qualified patients and primary caregivers can associate collectively or cooperatively to cultivate medical cannabis and not be subject to criminal liability. And that's basically it. And from those words which is basically this like communistic control cooperative collective endeavor those words is what was used to justify California's dispensary system until 2018. So from 2004 until 2018 California's retail cannabis system was premised on language that basically allowed qualified patients or primary caregivers to collectively cultivate cannabis. And so there was this whole progeny of cases that worked its way or their way through the California court system really trying to identify what the intent of SB 420 was and what each one of those words really meant. And you know through those opinions the courts basically held that yeah dispensaries are allowed under that provision. Which you know was definitely I think a liberal interpretation of those words but something that was really necessary to provide safe access to patients because that's all there was. And there's a host of other things. And some of the laws that are contained within SB 420 really continue to be relevant in this decision from the court which I can discuss a little bit later on.

 

Aaron Freiwald: [00:12:32.67] Well I want to come to one other dimension of this too which is you know you talk about legalizing first for medical purposes then you have to create this infrastructure where you get access to these products but you also have to have the science develop these products right. I mean, but you know, getting access to marijuana is one thing, getting access to it in forms, and I think this is quite relevant to the story we're going to tell about Brooke, to get it into a form where it actually has a medical application that also must have taken some time to develop.

 

Joe Rogaway: [00:13:13.63] Well yeah, I mean that's one of the unfortunate consequences with cannabis being a Schedule 1. I mean, it should ireally be entirely De-scheduled. That's a pretty scientifically appropriate way to handle it. And you know with it being in Schedule 1. What that means is that there is…

 

Aaron Freiwald: [00:13:31.19] Yeah you have to explain that for people.

 

Joe Rogaway: [00:13:33.2] Yeah. Yeah OK. So, in 1971 the Nixon administration enacted the Controlled Substances Act and the Controlled Substances Act was really the most sort of robust way that drug laws in the United States were really codified into an extremely draconian regime of essentially having different schedules that correlate to the potential for abuse, that correlate to medicinal value, and essentially correlating to the harm of the user. And so there is scheduled 1 through 5. Schedule 1 is the most restricted absolutely prohibited. And then it goes down to Schedule 5 which is the least restricted. And then things are de-scheduled after that. So, cannabis as a Schedule 1 controlled substance is considered tantamount to heroin, considered tantamount to LSD, is considered to be more of a problem, a dangerous substance than cocaine and morphine which makes absolutely no sense. It's a complete asinine way to categorize cannabis but nevertheless that's where it is. That's where it continues to be.

 

Aaron Freiwald: [00:14:55.07] But at the same time and again we're setting the themes here with all kinds of different strands to this issue that are going to bear on the story of Brooke in this case. But this is one of those strands right where you've got a state law in California. And by the way, in the meantime lots of other states around the country are starting to move in the same direction, some more slowly, some more quickly. So, this isn't just something that you know that relates to California. But you have a state law on the one hand and then you have this federal law, the Controlled Substances Act, which at least in theory would be in direct conflict with all of what's going on at the state level because under that federal law marijuana is illegal. So, you have the non-enforcement of that federal law that's a pretty key part of the story, right? I think you have to explain what that means and how important that is.

 

Joe Rogaway: [00:15:57.34] Yeah. Yeah absolutely. So, and that's something that has also been the subject of significant litigation going all the way up to the United States Supreme Court, a case called Conant v Walters and basically the way that this all shook out from the Supreme Court was basically that doctors have first amendment rights to recommend whatever they want to, to their patients. That's different than a prescription. And so that's why it's so important that the verbiage in the 40 or so states that have some type of medical cannabis program is not that doctors prescribe it because a prescription is something that's very specific and very regulated under the Controlled Substances Act. That is just a recommendation that is protected as free speech. And then there's the preemption issue. And essentially what it has been found, through a variety of cases, is essentially that federal law does not preempt states to enact their own laws related only to state law matters; so, essentially the state of California is not saying that federal law is invalidated. It does not touch upon federal law whatsoever. California state law is dealing only with California state law. And therefore, there's no conflict. And furthermore, state law enforcement officials, state agencies, state and local governments, cannot act as arms of the federal government. So, the local county sheriff or a city police department or the California Department of Justice for that matter is in no way shape or form enforcing the United States Code. And so it's those things that are really central to this broader issue as well as this case because essentially when we're talking about state law we're talking about enforcement, it's a very sort of dynamic issue and still one of the things that's important to keep in mind is that something like 99 percent of all prosecutions in the United States generally are done at a state and local level, the federal government generally only takes about 1 percent of all matters through the United States court system. And so, what we're talking about is just, you know, there's a real lack of ability for the federal government to prosecute all cases. The federal government even currently under the current administration recognizes in, you know, the most sort of punitive statements that we've heard from the attorney general on this issue, that they just don't have the resources to go through and enforce federal marijuana laws against everyone that is involved in cannabis. And so, when we're talking about just from a pragmatic standpoint forgetting about things like the Cole memorandum and other similar relevant issues or proclamations or things that are promulgated by the federal government it's just not pragmatic. The federal government to be able to go after state legal cannabis operators. Now there is something that's very relevant to this as well as something that the court in that the Adams matter picked up on which is a federal 9th Circuit Court of Appeals case called the United States v. Macintosh. And the importance of that case is essentially that there is spending preclusion and enacted by Congress that was initially called the Rohrabacher-Farr amendment, that is now called the Rohrabacher–Blumenauer amendment where basically the federal government is not allowed to use federal tax dollars to investigate and prosecute state legal medical cannabis operators. And that was challenged in the courts by United States attorneys and essentially the 9th Circuit Court of Appeals and USC Macintosh which for us in California is the highest court in the land until you get to the United States Supreme Court if and when to grant cert then essentially what the court in Macintosh found is Congress meant what they said, they do have the power of the purse and they are able to restrict spending. And so that continues to be the state of the law. And essentially what that means is that the federal government currently is not able to go after state legal medical cannabis operators at least in the 9th Circuit. I think that there could be other arguments in other circuits but for us and relevant to this case that's the state of the law.

 

Aaron Freiwald: [00:20:41.2] So just to summarize, the Cole amendment you referred to which was essentially a memo that said that the Cole memorandum which came out during the Obama years and basically was a statement that said we have this law but we're not going to enforce it. We're going to take a non-enforcement position. And then there's this sort of amendment to that. Right. And then there's this amendment you're talking about which says although marijuana is listed as the scheduled one, controlled substance we're not going to allow federal dollars to be used to go in and challenge states who are enacting and implementing cannabis programs just in their states. We're not going to use those dollars for that purpose.

 

Joe Rogaway: [00:21:33.88] That's correct. And the only slight augmentation I'd make to that is that the Cole memorandum at the time that it was released by the Department of Justice and still to this day, I mean I have a firm belief that it is just a platitude, I mean that the Cole memorandum came out just after Colorado and Washington legalized cannabis for adult years and everyone is looking to the federal government to figure out what they are going to do about this. You know are they going to come in and do a massive crackdown? And so, they kind of did neither and they released this essentially policy position that does not have the force of law that cannot be cited in court, cannot be utilized as a defense against prosecution or forfeiture or anything like that and that basically says ‘hey United States attorneys you've got a lot of stuff to do. We know that you have more important things to do than cannabis. And if you're going to prosecute a cannabis case you should really look to see whether or not it falls within one of these nine categories. And if it doesn't then maybe you want to spend your time looking at other things but if not, no big deal you can prosecute whatever you want to. And by the way this doesn't change the law that says that all cannabis is illegal and you can prosecute whatever.’ So, you know when it came out, you know, I remember clients being just so elated and feeling like they had some breathing room, there was just a lot of hype in the press about it. But in reading it, it was essentially meaningless. So, in my mind the repeal of that document was also about as meaningless as the initial enactment was. And incidentally that it was repealed by Jeff Sessions.

 

Aaron Freiwald: [00:23:14.64] Right. When Trump was elected in Sessions became attorney general and they made a statement that they were no longer going to.

 

Joe Rogaway: [00:23:22.96] Yeah it was rescinded.

 

Aaron Freiwald: [00:23:24.04] I mean I don't even know that you could say it was repealed because it never really was anything to start with. As you're explaining it. And the fundamental weakness, and it is shown by exactly what happened which is you have a change in that administration that they say ‘never mind about.’

 

Joe Rogaway: [00:23:42.87] Yeah exactly. I mean and that was always the fear is that you know there it was assumed that you know there is maybe a day in time when there was no longer the Obama administration that there'd be a successor administration and then they can do whatever they want to. And that's how it all played out anyway. And you know all of that was relevant to this case because it was the school district that was concerned about the federal intervention and liability.

 

Aaron Freiwald: [00:24:12.93] All right. So here we are. Yeah. Oh go ahead.

 

Joe Rogaway: [00:24:18.15] Well it's just. So, what we haven't talked about is the most recent enactment in California for the legal regime that currently controls which is SB 94 which is the California state legal commercial system for medical and adult use cannabis businesses, everything from nurseries to cultivators to distributors to manufacturers to testing labs to retailers to delivery services. All of that is now subject to state and local licensing that provides full immunity from criminal liability, provides the ability for any adult 21 years and older to possess and cultivate and purchase cannabis. And that's the regime that we're in right now. And so, in this matter you know we're sort of dealing with all three of those successive regimes in different ways. There are pieces of statutes and pieces of opinions that sort of ripple through, essentially starting from 1996 through 2018 that made its way into this 22 page opinion from the court.

 

Aaron Freiwald: [00:25:36.25] OK so and we'll shed light on those as we get through the story as we need to. But now we need to bring Brooke into the conversation so tell us. Tell us what her situation was. Because this then explains how this issue presents and what the conflict was. And then we'll get into how it was resolved. Tell us about Brooke and what the problem presented as.

 

Joe Rogaway: [00:26:02.3] Yeah. Absolutely. So, Brooke is really an amazing person and her family are just incredible and inspiring to be around. Brooke is a 5-year-old girl that has dravet syndrome and dravet syndrome is a chromosomal disorder that creates this rare form of epilepsy that is different than the sort of standard more normal epilepsy is that some of us may be acquainted with. Dravet syndrome because it is chromosomal does not respond the same to different drugs that work well for a more standard form of epilepsy. The seizures that happen as a result of this condition are more severe are much more frequent and last much longer than a standard seizure that someone may have from a standard form of epilepsy. And it is something that will never go away Brooke will have it for her entire life. And it is just a profoundly difficult experience for the entire family to go through, with trying to address Brooke's basic needs because with the amount of seizures that Brooke has had it has really impacted her development and as a 5-year-old she has delays in speech. She has delays in her motor skills. She has delays in how her social interaction goes and it's because the having so much of her time and her space that is taken up by the seizures themselves that really prevent her from developing. And so that really central to this because where this all started was when Brooke was 2 years old she started getting seizures and actually she started earlier than that. But they started becoming more robust when she was about two. It was a terrifying thing for her family and they tried treating it through all sorts of conventional means and medications. And the family is Mormon. They are not generally inclined to participate in anything related to cannabis. That was not at all an intuitive way to treat this for Brooke when she was a very, very young child. They tried Capra they tried a whole variety of different medications that were either ineffective or made things worse. And so there was like several times a week experience that they had where first responders would go to their home and take Brooke to the hospital. There were times that they had to take these fairly hair raising a helicopter flight down to Oakland. Oakland Children's Hospital to get her there. And you know, she would be getting in and out of helicopters being intubated where they're trying to control seizures and not being particularly successful with it. And so, you know she had to go through a lot. And out of just sheer desperation. Brooke's mom Jana started going online and you know participating in groups of parents who have children also that have Dravet syndrome and just trying to figure out what they're doing and what's working for them and through those communications she was introduced by other parents to at least the concept of treating Brooke with cannabis oil. And after a while of just sort of like getting these informational inputs and having a real lack of success and not just a lack of success with commercial medications. But it was actually making Brooke's condition worse. And you know some of the medications that she was given had side effects that could potentially arrest her heart you know and it's just really an impossible decision I think for any parent to make to give their three, four or five-year-old child medicine that could end up killing them in order to save them from a condition that could also kill them. And that's the position that they were literally in. And so, in that context Jana was seeking every alternative that every option that she could to basically save her daughter and they came upon cannabis. And to your point I found this very particular product called Jayden's Juice and that is available at one place in the center of California and it's called Modesto. She had to go take a several hour trip down there to procure it and brought it back and started administering that to Brooke and it was just immediately something that had an incredibly significant and material impact for her.

 

Aaron Freiwald: [00:31:32.47] I understand that this product is, so for anybody imagining a five-year-old smoking marijuana, I mean that's not what this is. Right. This is an oil extract that is given when she starts to experience a seizure right. And then it effectively controls the seizure once that happens.

 

Joe Rogaway: [00:31:56.37] Yeah well, you're correct that it is not smoked and it is it's an oil like a tincture essentially that is just dropped under her tongue and that's it. You know it is a very innocuous thing to see being administered, it is not at all like you're watching a 5-year-old smoking a joint. It was a nurse that is doing a sub lingual drop of an oil a very small amount of oil and it's just a very discrete thing. It's administered both sort of preventively. So, she Brooke gets a CBD rich oil that is preventative and that's something that she gets a daily CBD is something that is not would that no one would really see as being a pairing. It's something that is just sort of calming and something that sort of reduces you know anxiety in some people. Inflammation in some people but for Brooke it's something that is used to sort of prevent the next seizure when she's having a seizure. Then she gets what's called a rescue medication that is a THC product that is administered in the same way as an oil. That is just dropped into her mouth. But that's a THC rich product so she basically takes two have different types of cannabis oil products neither of which are smoked and both have different uses.

 

Aaron Freiwald: [00:33:28.0] The reason I think its important to understand and clarify is because lots of kids have lots of things that they need for one medical reason or another that they take into school with them. Kids have asthma may have to carry an inhaler. Some kids have severe allergies. You know my stepson has severe allergies and there is an epi pen nearby you know and that would be a pretty scary thing to whip out if he ever needed it but it's there because he might have a need for it. And so. It's I think important to have a visual of what this is for this little girl because as I understand it what happens then it's a dispute about whether she's going to be able to bring the product into school or not. That's really the dispute that takes place, right?

 

Joe Rogaway: [00:34:16.92] Yeah. And I think to your point if we were talking about Vicodin if we were talking about a whole lot of other substances that no parent would want their children exposed to if it wasn't medically prescribed the school would have no compunction whatsoever about allowing those much more serious drugs, opiates, benzodiazepines et cetera, to go to school with a child and they would gladly administer those drugs and I would say objectively, scientifically much more powerful drugs that have a much higher incidence of abuse, of overdose et cetera the school would have no problems whatsoever with bringing that on campus and administering it. And so that's the part of the supreme irony here is that we're talking about essentially a very benign plant-based medicine that has no demonstrated potential for abuse, no recorded events of overdose that is being administered in a very discrete way so that literally is you know saving someone's life. And that's the problem. The problem isn't you know, like very powerful opiates that can easily be swallowed by a child that sends the child off into a hospital in a very dire situation.

 

Aaron Freiwald: [00:35:35.41] So what I mean is too, therefore given everything we've talked about so far just almost staggering that in of all places California there is a little girl who needs this product and a dispute comes about because the school says no.

 

Joe Rogaway: [00:35:56.17] Yeah.

 

Aaron Freiwald: [00:35:56.63] In 2018. I mean maybe in 1996 when cannabis at least was first allowed for medical use you could see there being school districts who you know have a higher anxiety level about all this. But in, this you know, in 2018 that seems a little surprising. So, what were the arguments that you had to overcome to get past this objection by the school district

 

Joe Rogaway: [00:36:25.54] Yeah. So, the school district had arguments both under federal law and under state law. So, their primary arguments and their arguments evolved over time. And essentially what they were arguing was that under federal law you can just sort of because it's a schedule one controlled substance one could essentially imagine a way that they would lose access to federal funding. They didn't articulate what federal funding was really their concern was the actual risk was or articulate any sort of notices or anything like that that gave rise to this concern. But they had a sort of generalized concern that that they were exposing themselves, the district to a loss of federal funding and exposing the people that work there to some type of federal liability. That was one sort of chunk of their argument. Another component of the argument was that under state law they argued that there wasn't the ability to administer cannabis on campus. And what they were citing a couple of different things they were citing the laws that go back to the Compassionate Use Act related to transportation. I'll get to that in a moment. They were citing laws related to the Medical Marijuana Program Act that related to where one can smoke cannabis and it goes to your point of this being non-smoked cannabis. I'll get to that in a moment. And then they were citing laws that under MCURSA saying that that people can't have cannabis on school grounds. But the issue there is that particular statute talks about the adult use 21 and older it doesn't talk about minor students that have a doctor's recommendation. But any event their primary arguments were federal law prohibits this, ‘we can't do something that's against federal law because bad things are going to happen to us. And of writing different state laws prohibited as well. And because it's prohibited under both federal and state law then I'm sorry our hands are tied. We feel for Brooke and her family it's terrible but she can't come to school with cannabis.’

 

Aaron Freiwald: [00:38:47.57] So, as I understand it the school proposed and she had a IEP an Individualized Education Plan. Brooke did. And I understand that the dispute takes shape because the school says sorry she can't do this in school but we'll offer that she can be at home. She can basically be homeschooled and we'll provide one hour with, the school district will provide one hour of instruction to her in her home. And now we have an issue under federal law about whether this is appropriate for a free and appropriate public education FAPE. And that's really the form of this dispute. It's an administrative proceeding to determine if the school is justified in that rather than in allowing Brooke to come to the school. I know that's a very big oversimplification but is that essentially the shape of that?

 

Joe Rogaway: [00:39:51.98] It is. And the only thing I would really add to that is that there was a prior IEP when she was looking to be placed in pre-school in California when there are children with real significant deficits or medical issues. They go through what are called the regional centers and the regional centers essentially have jurisdiction over the care for the children until they get to age three. Once they hit age three then they come under the purview of the school district and that's when the school district starts to take over through IEPs. And so essentially Brooke had an IEP when she transitioned from the care and oversight of the local regional center into her local school district and that's when she first started dealing with this issue. And when her family first came to so when we first became involved this was it was really just about trying to help work through an IEP process that can allow Brooke to go to school and have access to her cannabis oil in a preschool setting and essentially what accommodation that was worked out for that earlier IEP was that Jana, Brook's mother, had to go and find a preschool that would accept her. The school district said you know had the same argument we can't do this for the variety of reasons that I had mentioned earlier. And if you find a preschool though then she can go to the preschool and essentially through the IEP we'll be funding her attendance at whatever preschool you find. And Jana looked and looked and looked and looked and was able to find one preschool that would take her. And that's what happened. And so, through an earlier IEP basically the school acquiesced to placing Brooke in this preschool where she was able to have her cannabis oil administered. The issue really became something that became much more contentious when it's an annual IEP. So, then the next IEP came around and Brooke with aging out of the preschool environment and going into kindergarten and basically the school district said Well now they're going to kindergarten there's basically nowhere for her to go. And that's when they came upon the solution that you were referencing which is basically that we understand that she needs to have cannabis. We don't want to prevent her from having cannabis and have some terrible medical event transpire but we can't have her at school either. So, what we'd like to do is to just give her up to an hour a day of education at home and then that is sufficient and that meets our obligations under the IDEA which is a federal law that relates to just giving access to disabled children for education. That this is the FAPE that you referenced. That's the free and appropriate public education in a least restrictive environment. So basically, saying that the school is saying they meet their federal obligations to provide public education to this child by allowing her to be homeschooled for up to an hour a day. And so that was something that the family and ultimately the court but you know first the family felt is entirely inadequate. You know it's just not the same at all. And for any of the listeners that have children out there just imagine rather than sending your child to school to kindergarten or whatever grade it is where they have access to the classroom environment where they have access to friends where they have access to social and emotional learning where they have access to all these other things and say instead of getting that environment which is enriching in a number of different ways instead they can stay home and have up to an hour a day, totally inadequate. And so that's when this turned into a larger dispute when basically we did what's called a due process hearing appealing the IEP and trying to get the Office of Administrative Hearings, it's an administrative law judge from the California state special education department, to come through and render an opinion as to whether or not there is a real FAPE that is being offered by the school district in this instance.

 

Aaron Freiwald: [00:44:30.02] And there's a decision from the administrative law judge, Judge Marson, a 22-page decision that just came out a couple of weeks ago explaining the background of the case and how the judge handled all of the issues and ultimately ruled in favor Brooke and her family. And we'll post a link to this by the way. It's a great read and gives a lot of background a lot more detail than we can cover here today. But Joe what an incredible result. And I'd like to do two things as we get toward the end of our time. One if you could explain how you I mean would you summarize for us what the school district's concerns were. How did you overcome that. What did the court find compelling and then I want to just spend a minute or two to broaden this out and you know Canada has just announced that it's legalizing marijuana in Canada. I mean there's a movement here that is more widely accepting of not just marijuana but cannabis and cannabis products cannabis drugs and you know it's clear where we're moving and this may become more and more a relic of the past. But on the other hand there may be also more points of controversy as more states and more communities try to deal with this. So, I think it's useful to understand. First how did you overcome the school district's objections. What did this judge find compelling here?

 

Joe Rogaway: [00:46:08.77] Yeah. So first with regards to our arguments at a state level our arguments were basically that the authorities upon which the school district was relying on was misplaced. That the arguments for example of no marijuana products whatsoever on school grounds for a medical patient being contrary to state law is something that is just not true. So, the particular statutes that were cited by the school district for example one of which was Health and Safety Code Section,11362.83, that code section really only applies to smoking and that's the explicit expressive verbiage in the statute itself that no one can smoke marijuana on school grounds. But of course, here no one is trying to smoke marijuana on school grounds. As you discussed earlier it's getting an oil administered so that is just inapplicable. The other statute that was referenced was a provision from the new enactment SB 94 that basically says that adults 21 years and older who are otherwise able to use marijuana can't do so on the school. But that does not apply to Brooke either because she is not an adult she is not subject to all the other statutes that were referenced a provision that the school district was relying upon and it's just inapplicable to Brooke. So that those were actually fairly easy to defeat because the express language of both those provisions would just undermine the school's position. And you know I think maybe you know the school just this probably just isn't an issue that you're used to working with or litigating and they just kind of saw these provisions out there and kind of relied on them without maybe looking too far into it but those arguments were actually fairly straightforward in terms of how we were able to counter and overcome them. There is also just as an aside one of the arguments that the school district threw into their briefing towards the end was basically that the transportation in the school bus by the nurse bringing the cannabis oil with Brooke to the school district to the school itself rather was in of itself illegal because transportation is not allowed by patients and caregivers. And that was just an asinine argument. I mean that just goes back to a case in 1997 called People v. Trippet where the California Court of Appeals just before SB 420 in the very early days medical of the obvious ability for patient’s caregivers to transport. And then this was subsequently codified in Health and Safety Code, Section 11362.765, that said patients and their caregivers are allowed to transport. So, the school making that argument was just really unfortunate because it's just so clearly not the state of the law. And it was really unnecessary because it has nothing to do with their primary stated concern of them having their own liability for cannabis on school grounds. They are trying to undermine the ability of the nurse to even transport it to school. So. So all those were overcome we you know side up went to the court. I'll get to just how amazing this opinion is and how well researched it is in a moment. But the next issue just to answer a question as relates to federal law is that there are different federal laws that deal with different things right. So, there is a controlled substances act as we discussed and there's the IDEA as we discussed.

 

Aaron Freiwald: [00:50:14.99] Federal education law. Yeah.

 

Joe Rogaway: [00:50:18.07] Yeah. Exactly. And it's the individuals with disabilities education act and basically the school district was trying to pick one over the other. You know they have obligations to provide public education to all children. It's a right. It's a federally guaranteed right. And the school district doesn't have the ability to contravene that right. And essentially what they were doing is they're contravening that right by essentially saying that the Controlled Substances Act is the only thing that they're going to pay attention to or what it's going to be controlling but the Controlled Substances Act. If you look at it there isn't really anything that the CSA says that criminalizes whatever the school would be doing. I mean I guess conceivably there would be some sort of abstract academic theory of liability of some larger conspiracy for the nurse to possess it. But I mean it's just such a remote theory that it just didn't turn out to be persuasive to the court because they're the court rightly found that when we talk about the things that we were talking about earlier United States v. Macintosh the federal government can't go after state legal medical cannabis patients anyway. So as long as USC Macintosh is the state of the law then there is really no liability there. The school district was not able to articulate any type of funding stream that was going to be jeopardized whatsoever it was just abstract and just unsupported. And they had some sort of tangential reference to the sort of drug free school zone issue but that doesn't really interface with this issue at all. And so, the court I think rightly found that essentially in their totality the arguments that were promulgated by the school district were entirely specious and they were just not persuasive. And just to give you an idea of sort of the level of agreement that the court had with our position and disagreement with the school district's position if your readers or your listeners read this 22-page opinion it's an emphatic endorsement of our position, of Brooke's position in this and in emphatic repudiation of the school district's position. I mean the court went way beyond what we were arguing and we had some fairly robust briefing and arguments that went into this and really just did such a well-researched, well documented, cogent opinion that completely eviscerated the school district's position, just shredded it. And you know for someone who has spent a lot of time litigating matters I've done a lot of jury trials I've gotten a lot of read decisions back in both the trial and appellate courts. I can't think of anyone other than this that I have had such a strong endorsement of the position of my client that the as to this opinion. I mean it was in reading it. It was something that first you know myself and everyone in the firm who worked on this matter was teary eyed because we won and we all put a lot into it. It was a big deal or something was really meaningful for us attorneys to work on. But also, just intellectually when we read the decision it's just something that is just such a profound endorsement for the position that in California children with disabilities have a right to go to school and that includes their ability to use cannabis oil in the school setting. It's something that is just it's incontrovertible. Based on how the court wrote this opinion and although this case doesn't have precedential value in a formal sense it is certainly a watershed moment in the community of the legal community that deals with these issues and is something that other districts are already utilizing to justify allowing children to attend school with cannabis soil. So, the impact has been absolutely profound both on a larger sort of legal sense but also in a very personal sense for Brooke, her family and I and the people at my firm that worked on this case.

 

Aaron Freiwald: [00:55:09.64] Well and it's you're right that I mean as a technical matter there's no precedential value meaning a judge in Kentucky or New York or Alabama doesn't look at this ruling and say OK I've got to follow this. Because all this is going to be a matter of state law but I have to believe as you suggest that this is going to be very influential because this isn't this well first of all this is California which has led the way all along. And look how many states are now following California's lead but also I mean cannabis at this point I mean we've come a long way since reefer madness and I actually remember being in high school and them showing that movie which was really pretty funny. Yes, come a long way. You're now, your expert in this case with one of your experts with Dr. Joseph Sullivan a pediatric neurologist in the system leading, reading from the opinion here the assistant Professor of Clinical Neurology at the University of California San Francisco, by the way one of the leading medical institutions I think in the world. And you know one of the leading experts on epilepsy and treatment so this is mainstream medicine. It's now mainstream law. It's mainstream in terms of how many states in the country are starting to embrace and now grapple with this. So, I would think that this opinion not only has changed the life of this little girl and that has to feel pretty good for all of you who worked on this but I have to believe it's going to reverberate and have a very powerful influence with other school districts that wrestle with these kinds of issues going forward. Don't you think?

 

Joe Rogaway: [00:56:57.22] Yeah. Some of the feedback I've been hearing ranges from other parents bringing this decision into their IEPs to show their school districts. You know what happens here to persuade them to do the right thing with their child. I've also heard from educators from administrators for large school districts in California that are using this decision to justify a change in policy for special education programs district wide for large school districts. And so, you're absolutely right that there is a ripple effect. And although it doesn't have that technical precedential value that us Attorneys rely upon to cite authority. It absolutely has the impact precedential value in communities that are grappling with this issue. And it's just an incredible thing to be a part of. As an attorney it's just incredibly professionally and personally rewarding and I sincerely hope that school districts across the country see this decision and then utilize the decision to justify allowing children in their districts to access this lifesaving medical treatment.

 

Aaron Freiwald: [00:58:16.88] Well Joe it's an inspiring story too. And I mean you took this on as you told us pro bono meaning you took it on for free. But I also have to believe it was a labor of love. And I know you've got a lot out of it. And so that's great. Congratulations on the case. I will as I said post the opinion or a link to the opinion because I do think there may be people who want to print it out and have a copy for themselves. Other parents of special needs kids all across the country. So, and for everybody else it's a very good read and a fascinating story and a great privilege Joe to have you share the story with us today and I thank you so much for being on Good Law Bad Law. Thank you.

 

Joe Rogaway: [00:59:03.47] Yeah absolutely thank you for having me.