2. Under any analysis or "level of scrutiny," the 
          plaintiff should prevail.

     The "privileges and immunities" clause couldn't be more 

straightforward:

       No law shall be passed granting to any citizen, class of 
       citizens, or corporation other than municipal, privileges 
       or immunities which upon the same terms shall not equally 
       belong to all citizens, or corporations.

Wash. Const. art. 1  12.

     The plaintiff's situation regarding medicinal marijuana may be 

phrased in several ways which invoke the clause:

The plaintiff is denied the privilege of ending his suffering by the 

  use of a therapeutic drug while others are granted the privilege 

  of ending their suffering with access to far more harmful and 

  addictive drugs, such as morphine, cocaine, amphetamines, 

  barbiturates and opium.  Additionally, patients who need THC and 

  may absorb it effectively through their gastro-intestinal tract 

  have the privilege of the relief of their suffering, while the 

  plaintiff, whose GI tract is not functioning when he needs THC, 

  is denied the privilege.

Other citizens are granted immunity from arrest for possession of 

  therapeutic but potentially harmful drugs by virtue of 

  prescriptions, while the plaintiff is denied that immunity.

     Whatever "level of scrutiny" the Court deems appropriate, the 

plaintiff's right to be free of discrimination by his own government 

is being violated, in that the plaintiff is being made to suffer 

physically for reasons which serve no legitimate government purpose.

THE DISCRIMINATION INVOLVES A FUNDAMENTAL RIGHT AND IS ENTITLED TO 
  STRICT SCRUTINY.

     As set forth in State v. Smith, supra, if government 

discrimination or classification involves a "fundamental right," the 

courts must apply "strict scrutiny," and uphold the classification 

only if it is "necessary to accomplish a compelling state interest."  

Id.  The Washington Supreme Court has found that a physician has a 

fundamental right to freely practice medicine.  Bering v. Share, 106 

Wn.2d 212, 721 P.2d 918 (1986).  Clearly, it is no stretch to state 

the corollary -- that a patient has a fundamental right to the aid 

of his physician to relieve suffering.  In any event, the court in 

Bering held that the state has a "substantial interest in ensuring 

its citizens unimpeded access to necessary medical care."  Id. at 

225.  That decision dealt with access to abortions; it is difficult 

for the plaintiff to see how that might be more "necessary" than 

ending the suffering of chemotherapy-induced, uncontrolled nausea 

and diarrhea.

     If the court finds that a fundamental right is involved and 

applies strict scrutiny, the state must justify maintaining 

marijuana in Schedule I as "necessary to accomplish a compelling 

state interest."  Frankly, the plaintiff is at a loss to anticipate 

what sort of argument the state might put forward, if the attorneys 

involved intend to keep straight faces while addressing the Court.

     What is the "compelling state interest" in having the plaintiff 

lying on the floor retching and defecating on himself when he could 

be sleeping peacefully?  What "compelling state interest" justifies 

forcing the plaintiff to endure 14-hour "highs" in an attempt to 

relieve his suffering with synthetics?  What is the "compelling 

state interest" to force the plaintiff to pay $5 per THC tablet, 

many of which disappear down the toilet undissolved?

     Or is the "compelling state interest" the larger one of 

controlling marijuana as a recreational drug?  If so, why is it not 

"necessary" to place cocaine, opium, morphine, barbiturates, and 

amphetamines also in Schedule I?  Note that the penalty for 

manufacture or possession with intent to deliver a Schedule I or II 

drug is exactly the same. RCW 69.50.401.  Clearly, the legislature 

attaches no symbolic or exemplary difference between the two crimes.  

Thus, any contention by the Attorney General that placing marijuana 

in Schedule II and permitting its prescriptive, medicinal use will 

"send a signal" that recreational use of the drug is condoned should 

be given the merit it deserves -- none.

     In short, the classification of marijuana in Schedule I 

violates a fundamental right of the plaintiff, and the state cannot 

show a necessary reason for the classification that accomplishes a 

compelling state interest.  Therefore, the plaintiff's motion for 

declaratory relief should be granted.

IF THE COURT DOES NOT FIND THAT A FUNDAMENTAL RIGHT HAS BEEN 
  VIOLATED, THE LAW SHOULD STILL BE STRUCK DOWN UNDER "INTERMEDIATE 
  SCRUTINY."

     "Heightened" or "intermediate" scrutiny should apply even if 

"strict scrutiny" does not, because the classification involves an 

"important right," and because the plaintiff is in a class for which 

he cannot be held accountable -- he did not choose to be a cancer 

patient, or to have his physician place him on chemotherapy in an 

attempt to save his life.  State v. Smith, supra.

     The test is that the law must be seen as "furthering a 

substantial interest of the state."  As analyzed above, no state 

interest, substantial or otherwise, is not equally well served by 

placing marijuana in Schedule II.

EVEN UNDER MINIMAL SCRUTINY, THE PLAINTIFF MUST PREVAIL, BECAUSE THE 
  CLASSIFICATION IS PURELY ARBITRARY.

     Absent strict or heightened scrutiny, the test is whether a 

"rational relationship" exists between the challenged classification 

and a legitimate state interest.  What is the "legitimate" state 

interest in denying an end to the plaintiff's physical suffering?

     The classification must be "purely arbitrary" to overcome the 

presumption of constitutionality.  State v. Smith, supra at 279.  In 

fact, the classification is purely arbitrary.  As stated by Judge 

Young after taking hundreds of hours of testimony, reviewing 

thousands of pages of documents, and issuing a 68-page report:

       It would be unreasonable, arbitrary and capricious for the 
       DEA to continue to stand between those sufferers and the 
       benefits of this substance [marijuana] in light of the 
       evidence in this record.

Judge Young's report, supra at 68 (emphasis added).

     Thus, even under the "minimal scrutiny" test, the state can 

show no rational relationship between the classification and a 

legitimate state interest, and this court should find that the 

classification is purely arbitrary, and grant the declaratory relief 

requested.


     C. THE PLAINTIFF IS ENTITLED TO THE RELIEF REQUESTED UNDER 
        ARTICLE I  32, THE "FREQUENT RECURRENCE TO FUNDAMENTAL 
        PRINCIPLES" CLAUSE OF THE WASHINGTON CONSTITUTION.

               1. Gunwall factors analyzed.

     The "Gunwall factors" have come to be, in Gunwall's progeny, 

required analysis and briefing at the superior court level in order 

for the Supreme Court to consider whether personal liberties are 

protected to a greater extent by the state's constitution, compared 

to the U.S. Constitution.  See, e.g., State v. Wethered, 110 Wn.2d 

466, 472, 755 P.2d 787 (1988); In re Mota, 114 Wn.2d 465, 472, 788 

P.2d 538 (1990).  The plaintiff adopted Justice Utter's analysis 

concerning the Privileges and Immunities clause, above, and here 

provides the Gunwall analysis of the "Frequent Recurrence to 

Fundamental Principles" clause:

     1. The textual language of the state constitution.

       The text of the state constitution may provide cogent 
       grounds for a decision different from that which would be 
       arrived at under the federal constitution. It may be more 
       explicit or it may have no precise federal counterpart at 
       all.

Gunwall at 61. Article 1  32 of the Constitution of the State of 

Washington reads in total:

       A frequent recurrence to fundamental principles is 
       essential to the security of individual right and the 
       perpetuity of free government.

     Since no "precise federal counterpart" exists, the Court may 

find greater protection under this factor, and the plaintiff argues 

strenuously that it should.

     2. Significant differences in the texts of parallel provisions 

of the federal and state constitutions.

          Such differences may also warrant reliance on the state 
       constitution.  Even where parallel provision of the two 
       constitutions do not have meaningful differences, other 
       relevant provisions of the state constitution may require 
       that the state constitution be interpreted differently.

Id.  Since no parallel provision may be found in the federal 

constitution, this factor does not seem to apply to either find or 

not find greater protection under the state constitution.

     3. State constitutional and common law history. 

          This may reflect an intention to confer greater 
       protection from state government than the federal 
       constitution affords from the federal government. The 
       history of the adoption of a particular state 
       constitutional provision may reveal an intention that will 
       support reading the provision independently of federal law.

Id.  The constitutional history of Section 32 remains somewhat of a 

mystery.  The constitutions of Wisconsin, New Hampshire and Illinois 

contained clauses referencing fundamental principles, but the 

connection to individual rights was unique to Washington.  Brian 

Snure, "A Frequent Recurrence to Fundamental Principles: Individual 

Rights, Free Government, and the Washington State Constitution," 67 

Wash. L. Rev. 669 (1992) at 676.

     The original proposed constitution by W. Liard Hill contained 

only 31 sections to Article 1.  Section 32 was proposed by George 

Turner, whose later speeches as a U.S. Senator lead to the 

conclusion that Turner, like others of his day, believed that 

constitutional interpretation often required a return to natural law 

principles beyond the four corners of the constitution.  Snure, Id. 

at 674, citing 32 Cong. Rec. 783, 785, 789 (1899)(statement of Sen. 

Turner against United States imperialism in the Philippines).

     The signers of Washington's constitution had witnessed a 

hundred years of what happens when power is concentrated in either 

government (federal) or private (corporate) bodies, and they clearly 

didn't like what they saw.  Thus, we have a clause in our "freedom 

to bear arms" clause stating that "nothing in this section shall be 

construed as authorizing individuals or corporations to organize, 

maintain or employ an armed body of men."  Wash. Const. art. 1  24; 

and the mention of "corporations, except municipal" in the 

Privileges and Immunities clause, discussed above.

     In the decade before the Washington Constitutional Convention, 

the territory had grown from a virtual wilderness of 75,000 settlers 

cut off from the nation's capital by a month's travel time, to a 

state of 350,000 citizens who could reach the east coast by a three-

day train ride.  Snure, supra, citing Dorothy Johnson, "Empire of 

the Columbia," (2d ed., 1967).  Most of the influx of settlers had 

experienced legislative abuse elsewhere, and in Washington as well.  

Snure, Id. at 671.  For example, during the 1862-63 territorial 

legislative session, the legislature passed no general laws, but 

enacted more than 150 pieces of general legislation for the benefit 

of "private interests against the general welfare."  Id.

     Nor did the delegates trust the other branches of government.  

Governors abused their patronage powers, and judges were appointed 

from afar and often absent.  Id., citing, inter alia, Charles H. 

Sheldon, "A Century of Judging: A Political History of the 

Washington Supreme Court," (1988).  Mining companies amassed armed 

guards to thwart unions activities, and railroads charged excessive 

rates to farmers.  Id., citing Gordon B. Ridgeway, "Populism in 

Washington," 39 Pac. N.W. Hist. Q. 284-91 (1948). 

     All of these infringements on personal liberties came about 

despite the guarantees of liberty and democratic government found in 

the U.S. Constitution.

     It is noteworthy that Washington's Declaration of Rights is not 

couched in terms of the federal Bill of Rights, which contains the 

repeated phrase "Congress shall make no law. . ."  Rather, rights 

are stated affirmatively:  "The right of petition. . .shall never be 

abridged," Art. 1  4; "Every person may freely speak, write and 

publish on all subjects. . ."  Art. 1  5.

     It is also noteworthy that Washington's constitution contains 

checks and balances on power missing from the federal constitution.  

The federal government now comprises four branches, the fourth being 

federal agencies created by Congress but accountable to nobody.  

This has been especially true since the U.S. Supreme Court decided 

INS V. Chadha 462 U.S. 919 (1982), which eliminated the "legislative 

veto."  Prior to that, Congress could set up agencies to administer 

programs, then oversee progress by way of committee or single-house 

vote.  In what constitutional scholar and University of Seattle Law 

School Prof. David Skover calls "the second most inane decision ever 

handed down," the U.S. Supreme Court virtually guaranteed the sort 

of petty tyranny that has resulted in this lawsuit.  (The Chadha 

decision did away with the "legislative veto," on the theory that 

not only must the enabling legislation withstand bicameral majority 

vote and presentment for veto, but each subsequent "fine-tuning" of 

the agency must be done the same way -- clearly an administratively 

impossible task.)

     Washington's constitutional delegates may not have had Chadha 

as an example, but they had seen where government power was headed.  

In Washington, the fourth branch of government is the people: agency 

heads such as the Attorney General, Secretary of State, Treasurer, 

Auditor, Superintendent of Public Instruction and Commissioner of 

Public Lands are elected, not appointed.  Judges, likewise, are 

elected.

     The framers had also seen the concept of "natural law" twisted 

until it faced the direction opposite any original concept; 

originally a guarantee of personal liberty (for example, as set 

forth in the Declaration of Independence as "inalienable rights"), 

under the influence of the robber barons of the 19th century 

"natural law" was the justification for imposition of laessez-faire 

economics, i.e., natural law prohibited the courts from interfering 

with the right of a laborer to contract for his labor, and never 

mind that the laborer starves while the company owner thrives.

     Thus, the mention of "a frequent recurrence to fundamental 

principles" being linked (uniquely at the time) to individual 

liberty, and the lack of any reference to "natural law" along with 

the absence of a separation-of-powers clause in Washington's 

constitution has led at least one scholar to argue persuasively that 

the phrase amounts to retaining the notion that natural law should 

be considered when protecting individual rights, but not when 

invoking natural law to prevent adherence with social or safety 

legislation.

       Section 32 designates extra-constitutional fundamental 
       principles as essential to the security of individual 
       right. 

Snure, supra, note 30, page 687.  Again, it is no stretch to extend 

the right to be free from unjust action when it originates from a 

federal agency as opposed to originating from a corporation or other 

state entity.

     4. Preexisting state law.

       Previously established bodies of state law, including 
       statutory law, may also bear on the granting of distinctive 
       state constitutional rights.  State law may be responsive 
       to concerns of its citizens long before they are addressed 
       by analogous constitutional claims.  Preexisting law can 
       thus help to define the scope of a constitutional right 
       later established.

Gunwall, supra, 106 Wn.2d at 61, 62.

     Much of the preexisting law leading to the "fundamental 

principles" clause is discussed above.  As for laws preexisting the 

state constitution regarding the use of marijuana, medically or 

otherwise, there were none.  Inhaling opium and operating a house 

where inhaling opium took place were made illegal by the territorial 

laws of 1881, seven years before the signing of the Washington 

constitution.  The earliest reference the plaintiff could find to 

marijuana ("cannabis") was in the Laws of 1951.  As discussed in 

Section II B 1 above, marijuana was widely and legally used in the 

last century and the early decades of this century, prohibited by 

neither state nor federal law.

     5. Differences in structure between the federal and state 

constitutions.

       The former is a grant of enumerated powers to the federal 
       government, and the latter serves to limit the sovereign 
       power which inheres directly in the people and indirectly 
       in their elected representatives.  Hence the explicit 
       affirmation of fundamental rights in our state constitution 
       may be seen as a guaranty (sic) of those rights rather than 
       as a restriction on them.

Gunwall, id.

     The plaintiff simply asks the Court to take these words at 

their face value, and look to fundamental principles, as required by 

Article I  32, to do justice.

     6. Matters of particular state interest or local concern.

       Is the subject matter local in character, or does there 
       appear to be a need for national uniformity?  The former 
       may be more appropriately addressed by resorting to the 
       state constitution.

     The plaintiff's physician is licensed to practice by the state.  

The plaintiff has undergone his cancer treatment in a state-owned 

and -regulated facility.  The state legislature has given the state 

Board of Pharmacy the power to place drugs in Schedules different 

from the federal government's determination, in RCW 69.50.201(e).  

And the state's constitution requires a "frequent recurrence to 

fundamental principles," which the federal constitution does not.  

All of these and more make clear that the plaintiff's access to 

medicine is an issue of local significance; Washington's citizens 

should not be made to suffer by bureaucratic fiat from 2,000 miles 

away.


               2. Fundamental principles in Washington case law.

     The state constitution requires a "frequent recurrence to 

fundamental principles," which raises the question, "What principles 

are fundamental?"

     Run the phrase "fundamental principles" through Westlaw or 

Lexis, and a sampling looks like this:

It is a fundamental principle that the imposition of business and 
  occupation tax liability must be as equitable as possible. 
  Fidelity Title Company v. State of Washington, Department of 
  Revenue, 49 Wn. App 662, 745 P.2d 530 (1987).  

Reynolds Metal Company v. State, 65 Wn.2d 882, 400 P.2d 310.  Appeal 
  dismissed 382 US 1.60 (1965).  

A fundamental principle of contract damages:  An insured should be 
  put in only as good  a position as he would have occupied had the 
  contract not been breached.  Greer v. Northwestern National 
  Insurance Company, 109 Wn.2d 191, 743 P.2d 1244 (1987).  

Fundamental principles of community property law dictate that each 
  spouse should upon his or her death have the right to dispose of 
  his or her one-half interest in community property.  Standard 
  Insurance Company v. Schwalbe, 47 Wn.  App 639, 737 P.2d 667 
  (1987).  

It is a fundamental principle that penal statutes will be strictly 
  construed as a means of assuring fairness to persons subjected to 
  the law by giving clear and unequivocal warning in language that 
  people generally would understand concerning actions that would 
  expose them to liability for penalties and what those penalties 
  would be.  State v. Enloe, 47 Wn. APp 165, 172, 734 P.2d 520 
  (1987). 

Law against discrimination (RCW 49.60) is not rooted in tort law, 
  but grows out of the fundamental principle that every citizen 
  deserves equal treatment without regard to race, color, religion, 
  sex or handicap.  Reese v. Sears Roebuck and Company, 107 Wn.2d, 
  563, 572, 731 P.2d 497 (1987).

To admit irrelevant, prejudicial evidence which would invite 
  speculation in a jury is contrary to the fundamental principles 
  of fairness and due process upon which our criminal justice 
  system is based.  State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 
  951 (1986).

Fundamental principles applicable to a request for an injunction are 
  1) the proceeding is equitable and addressed to the sound 
  discretion of the trial court,  2)  The trial court is vested 
  with broad discretionary power to shape and fashion injunctive 
  relief to fit the particular facts, circumstances, and equities 
  of the case before it, and 3)  One of the essential criteria for 
  an injunctive relief is actual and substantial injury sustained 
  by the person seeking the injunction.  Brown v. Voss, 105 Wn.2d 
  366, 372, 715 P.2d 514 (1986).

General warrants and writs of assistance were "The worst instrument 
  of arbitrary power, the most destructive of English liberty and 
  the fundamental principles of law, that ever was found in an 
  English law book," and so far as they place "the liberty of every 
  man in the hands of every petty officer."  State v. Crandall, 39 
  Wn. APp 849, 855, 697 P.2d 250 (1985).  Citing the works of John 
  Adams 523-24(Chaz. F. Adams ed. Boston 1850; see also T. Taylor 
  Two Studies in Constitutional Interpretation 41 (1969)).

It is a fundamental principle regarding the attorney client 
  relationship that a fiduciary relationship exists as a matter of 
  law between an attorney and a client.  Estate of Larson, 103 
  Wn.2d 517, 520, 694 P.2d 1051 (1985).

There is a fundamental principle that every competent citizen is 
  under an obligation to further the administration of justice as a 
  matter of public policy when summoned by due process of law to 
  give evidence.  State v. Dibley, 38 Wn. APp 824, 828, 691 P.2d 
  201 (1984).

       •The fundamental principle that "the required criminal 
       conduct must have existed when the conduct at issue 
       occurred" must apply to bar retroactive criminal 
       prohibitions emanating from courts as well as legislators.  
       State v. Gore, 101 Wn.2d 481, 489, 681 P.2d 227 (1984).

Fundamental principle of Washington Electoral Law is that in a 
  partisan contest there should be only one nominee from each 
  political party.  Democratic Party of Washington v. Spellman, 101 
  Wn.2d 94, 97, 675 P.2d 1222 (1984).

       •It is a fundamental principle that no state may impose a 
       tax which discriminates against interstate commerce by 
       providing a direct commercial advantage to local business.  
       Department of Fisheries v. DeWatto Fish Company, 34 Wn. 
       APp 135, 146, 660 P.2d 298 (1983).

       •It is a fundamental principle that when the state 
       condemns land for public use, no greater estate or 
       interest should be taken than reasonably necessary for 
       contemplated public necessity or use.  State v. McDonald, 
       98 Wn.2d 521, 530, 656 P.2d 1043 (1983).

     Clearly, case law analysis shows that "fundamental principles" 

may be found outside and in addition to the clear statements 

contained in documents such as the Bill of Rights.


               3. Fundamental principles and the plaintiff's case.
         
     Three cases citing Article I  32 bear on the case at bar:

The doctrine of stare decisis should not result in outmoded 19th 

  century precedents being forced to resolve 20th century disputes 

  -- automobiles should not be governed by horse and buggy laws.  

  Foote v. Grant, 55 Wn.2d 797, 806-7, 350 P.2d 870 (1960).

Likewise, in a case involving the "taking" of property by creating 

  loud jet noise in the airspace over it, the Supreme Court of 

  Washington held:

       The invention of the airplane and the development of modern 
       air transportation . . . have occurred somewhat 
       subsequently to the development of the legal concepts 
       emphasized in formulating early common law theories of 
       liability.  An awareness of these changes makes it 
       incumbent upon us to heed the advice of the framers of the 
       Washington constitution when they said: "A frequent 
       recurrence to fundamental principles is essential to the 
       security of individual right and the perpetuity of free 
       government."

Ackerman v. Port of Seattle, 55 Wn.2d 400, 407, 348 P.2d 664 

(1960)(citation omitted).  In both of the above cases, the 

correlation to the case at bar is clear: Times change, new 

information becomes known, and legal theories adequate in times past 

should be changed to do justice.

     As a direct parallel, it is a fundamental principle that a drug 

prohibited when it was believed to have no medicinal use should not 

remain prohibited after it is shown that it is beneficial, and 

indeed unique in its ability to relieve suffering.

In a much more recent case, the Supreme Court held that while 

  massive, intrusive searches of apartment buildings may in fact 

  enhance public safety,

       it is often when government is most eagerly pursuing what 
       it perceives to be the public interest that it is most 
       likely to sidestep constitutional safeguards or to 
       denigrate constitutional liberties.  For precisely such 
       reasons, our constitution wisely counsels us:

          A frequent recurrence to fundamental principles is 
       essential to the security of individual right and the 
       perpetuity of free government. . .

          We therefore cannot permit these warrants to be 
       executed, regardless of Seattle's pressing (and undoubtedly 
       laudable) desire to see its housing codes enforced.

City of Seattle v. McCready, 123 Wn.2d 260, 281, 868 P.2d 134 (1994) 

(citation omitted).

     This is precisely the case now before the Court.  The 

government "is most eagerly pursuing what it perceives to be the 

public interest" in retaining a valuable therapeutic drug in a 

prohibited category, and in doing so is violating the fundamental 

right of its citizens to be free of needless physical suffering.

     Other fundamental principles which the plaintiff asks the Court 

to consider, and recur to as the constitution requires, are these:

It is a fundamental principle that irrational laws breed disrespect 

  for the rule of law.  It is irrational to prohibit physicians 

  from prescribing marijuana while permitting them to prescribe 

  opium and cocaine.  It is irrational to force the plaintiff and 

  others in his situation to choose between physical suffering and 

  undertaking a criminal act.

Citizens of Washington who have a medical need for marijuana are 

  immune, under State v. Diana, supra, from prosecution.  It is a 

  fundamental principle that if a citizen foreseeably will not be 

  prosecuted, he should not be arrested, jailed, and put to the 

  expense, humiliation and vexation of dealing with criminal 

  charges.  This is especially true when, as is the case, the very 

  conditions which render them immune from prosecution make them 

  some of society's most helpless citizens, least able to deal with 

  such legal intrusions in their lives with any grace or dignity.

It is a fundamental principle that a physician should have access to 

  proven therapeutic drugs to relieve the suffering of his or her 

  patients.

It is a fundamental principle that the government of Washington 

  should not deny therapeutic drugs to its weakest and most 

  afflicted citizens merely to "match statutes" with federal laws 

  which are driven by political and irrational decisions, made by 

  bureaucrats who corrupt the process set forth in the enabling 

  statutes created by Congress.

It is a fundamental principle that the federal government should not 

  be permitted to withhold valuable medicine from Washington 

  citizens by first claiming that no scientific evidence supports 

  the therapeutic value of the medicine, then denying permission to 

  gather the scientific evidence to prove (or perhaps disprove) the 

  therapeutic value.


                        IV. CONCLUSION

     This Court, sitting in equity, should exercise its statutory 

and constitutional power to declare that the placing of marijuana in 

Schedule I, RCW 69.50.204, is a violation of the plaintiff's rights 

and liberties secured by Article I  12 and 32 of  the Constitution 

of the State of Washington.


     SIGNED AND DATED this ___ day of ____________, 1995.


                         By: __________________________
                               RALPH SEELEY, WSBA 22469
                               (pro se)