Nevada's Board of Pharmacy has requested a stay and is planning to appeal a state district judge's decision to strike pot from Schedule I of the state's Uniform Controlled Substances Act upon finding the drug's designation unconstitutional.
The board argued in a motion to stay last week that the October ruling represents a "tectonic shift" in state law that impacts public safety. The October order weighed in on a constitutional amendment ballot measure from 2000 that legalized cannabis medicinally, with Clark County District Judge Joe Hardy Jr. finding that the amendment does acknowledge that cannabis has a medical use.
In contrast, the Board of Pharmacy argues in its motion that the constitutional amendment is actually "arguably susceptible to two or more reasonable but inconsistent interpretations."
Previously, the board unsuccessfully argued that the regulation should be allowed to stay because it had been in place for more than 20 years — in spite of legalization. Nevadans legalized cannabis for medical use in 1998, resulting in changes to the state constitution.
The ACLU filed its original petition in April on behalf of the Cannabis Equity and Inclusion Community as well as Antoine Poole, who had been convicted of cannabis possession after legalization. The civil rights group claimed that the board's decision to keep the drug listed as Schedule I was unlawful.
Judge Hardy Jr. also rejected the idea that the board had authority to regulate cannabis, noting that a regulatory scheme for cannabis codified in Title 56 does not even mention the board.
Sadmira Ramic, an ACLU attorney on the case, told Law360 on Thursday that "we are currently working on a response to their motion to stay the judgment and order pending appeal." Brett Kandt, general counsel for the pharmacy board, said the group has no comment at this time.
In a statement Tuesday, ACLU of Nevada Executive Director Athar Haseebullah said "the board's continued support for criminalizing cannabis and continued representation of cannabis as more dangerous than fentanyl, cocaine, and methamphetamine raises serious questions of accountability and aptitude. The board's actions during the initial case alongside this appeal are a prime example of government overreach and should be offensive to every Nevadan."
Judge Hardy Jr. previously noted that the board is required to review the schedule yearly and that to keep cannabis on the list runs afoul of the constitution.
But the board argues that the October order should be subject to a stay pending its appeal. Questions of whether a conflict exists between the law and the board's authority are issues of first impression, the board contends.
Poole and the Cannabis Equity and Inclusion Community are represented by Sadmira Ramic and Christopher Peterson of the ACLU of Nevada.
The defendants are represented by Brett Kandt and Peter Keegan of the Nevada Board of Pharmacy.
The case is Cannabis Equity and Inclusion Community et al. v. Nevada et al., case number A-22-851232-W, in the Eighth Judicial District Court, Clark County, Nevada.