ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

THE ABOVE-ENTITLED MATTER came before the Court for a summary judgment hearing on the 2nd day of May, 2007, the Plaintiff, Michael J. Dee, appearing Pro se and the Defendant, State of Wyoming, represented by Timothy J. Forwood. The Wyoming Supreme Court has held, "There is a strong presumption in favor of the constitutionality of a statute." Jones v. State. 2006 WY 40, H 8, 132 P.3d 162, 164 (Wyo. 2006). The Court, having read the pleadings, heard argument and being otherwise informed, finds as follows:

Plaintiff has not overcome the strong presumption of constitutionality.

Plaintiff has not presented this Court with a justiciable controversy.

IT IS THEREFORE ORDERED that Plaintiffs motion for summary judgment is denied, and Defendant's motion for summary judgment is granted.

Done this 7th day of May, 2007.

COMPLAINT FOR DECLARATORY RELIEF

District Court of the First Judicial

District Laramie County, Wyoming

MICHAEL J. DEE                    )
Plaintiff                                     )
V.                                               )                           Civil Docket No.169-223
STATE OF WYOMING            )                     COMPLAINT FOR DECLARATORY RELIEF
Defendant                                )

I. PRELIMINARY STATEMENT

1. Michael J. Dee, challenges the reasonableness of the Wyoming marijuana lawsof which I have been convicted of in 1982. It is still a criminal offence to grow andpossess marijuana for personal private use. Doubts about standing are removed by reason of criminal convictions. Certainly even today I have standing to assert that the offenses which I was convicted of cannot constitutionally be a crime.

II. JURISDICTION AND VENUE

2. Jurisdiction, to review this case and controversy, is conferred on this Court, pursuant to Article I sections 8 and 37 of the Wyoming Constitution; Wyoming statutes W.S. Title 1-37-102 and 103, Declaratory Judgment; Amendments IV and V of the Constitution of the United States.

III. PARTIES

3. There still remains a substantial case between the State of Wyoming and the plaintiff having adverse legal interests, admitting of an immediate and definitive determination of the Plaintiffs legal rights and the validity of state police power to

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warrant the issuance of a declaratory judgment.

IV. Facts 4. On March 26th 1982 a search warrant was issued and served upon plaintiff's residence by Laramie County Sheriffs deputies on March 27, 1982 for growing marijuana in Cheyenne, Wyoming. I was arrested, prosecuted and convicted for growing marijuana, W.S.35-7-1040 and possession of a controlled substance, marijuana W.S.35-7- 1031/C.

5. State of Wyoming can not justify these criminal laws with clear, unequivocal, and convincing evidence, beyond a reasonable doubt, that the use of marijuana is deleterious to plaintiffs health, and is a greater threat to his health than the his use of alcohol and tobacco.

6. The Wyoming Constitution says the Constitution of the United States is the supreme law of the land.

7. The Congress of the United States says individuals enjoy a fundamental right to own and enjoy property which is enshrined in the United States Constitution, (seeTitle 22 U.S.C.-6081). Marijuana is property. Therefore, the right to acquire and possess this property describe as marijuana, is a fundamental right.

V. CAUSES OF ACTION

A. VIOLATION OF FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION

8. Plaintiff re allege and incorporates by reference herein the facts of paragraphs 1 through 7 above,

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9. Plaintiff claims these criminal laws W.S.35-7-1040 and W.S.35-7-1031/C are unjustified therefore unreasonable and contravened the plaintiffs right to be secure in his person, his home, his papers and in his effects from unreasonable searches and seizures guaranteed by Amendment IV of the Constitution of the United States.

10. Criminalizing the private growing and use of this property is unreasonable and is not a valid exercise of the police power and is in contravention of Amendment IV of the Constitution of the United States.

B. VIOLATION OF FIFTH AMENDMENT OF THE UNITED STATES CONSTITUTION

11. Plaintiff re allege and incorporates by reference herein the facts of paragraphs 1 through 7 above.

12. These criminal laws W.S.35-7-1040 and W.S.35-7-1031/C are unjustified, unreasonable and unnecessary therefore has deprived the plaintiff his liberty and his property without "due process of law" secured by Amendment V of the Bill of Rights.

13. Plaintiff claims that these legislative enactments, W.S.35-7-1040 and W.S.35-7-1031/C, are not narrowly drawn to express legitimate state interests therefore violates"due process of law".

14. Criminalizing the use of marijuana is merely rationally related to a permissible Wyoming state interest, therefore violates "due process of law".

15. Not being able to tax the plaintiff for growing marijuana for private use has nothing to do with public health and safety, therefore violates "due process of law".

16. These criminal statutes W.S.35-7-1040 and W.S.35-7-1031/C can not be

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shown to be necessary to the accomplishment of some permissible state objective therefore violates "due process of law".

VI. RELIEF

WHEREFORE, Plaintiff asks this Court to enter a judgment: A. To declare the Wyoming Statues criminalizing the private growing, W.S.31-7- 1040, private possession W.S.35-7-1031/C and private use, 35-7-1039 of marijuana, are unjustified therefore unreasonable and contravened the plaintiffs rights secured by Amendment FV of the United States Constitution and therefore unconstitutional. B. To declare the Wyoming Statues, that criminalize the private growing, W.S.31- 7-1040, private possession W.S.35-7-1031/C and private use, 35-7-1039, of marijuana, are not narrowly drawn to express legitimate state interests and are merely rationally related to the accomplishment of a permissible state policy therefore violates "due process of law" of Amendment V of the United States Constitution and are unconstitutional.Dated: December 27,2006  MICHAEL J. DEE, pro se, P.O.Box 2021 786 Roosevelt Trail Windham, Me. 04062

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==================

ANSWER OF STATE OF WYOMING

Terry L. Armitage
Deputy Attorney General
Wyoming Attorney General's Office
123 Capitol Building
Cheyenne, Wyoming 82002
307-777-7977

 
STATE OF WYOMING              )                                                                              IN THE DISTRICT COURT 
                                                     ) ss.
COUNTY OF LARAMIE            )                                                                               FIRST JUDICIAL DISTRICT

MICHAEL J. DEE,
Plaintiff,
                       vs .                                                   Doc. 0102 No. 169223
STATE OF WYOMING,
Defendant.

ANSWER OF STATE OF WYOMING

COMES NOW, State of Wyoming, Defendant, and for i~s Answer ~c the Complaint filed herein, admits, denies, alleges and avers as follows:

I. PRELIMINARY STATEMENT

Defendant State of Wyoming admits that Plaintiff Dee was convicted previously of criminal conduct related to the possession of marijuana, in the State of Wyoming, in 1982, and that such criminal behavior is still prohibited. Defendant State of Wyoming denies that Plaintiff has standing to now challenge his previous convictions.

II. JURISDICTION AND VENUE

2. Defendant is without sufficient information to form a belief as to the truthfulness of the allegations contained in paragraph two, and therefore denies same.

III. PARTIES

3. Defendant denies the allegations contained in paragraph three.

IV. FACTS

4. Defendant admits the allegations contained in paragraph four.

5. Defendant denies the allegations contained in paragraph five, and alleges and avers that the paragraph attempts to assert immaterial legal conclusions.

6. Defendant asserts that the Wyoming Constitution speaks for itself, and that Plaintiff attempts to assert immaterial legal conclusions.

7 . Defendant asserts that federal law speaks for itself", denies that there exists any fundamental right to possess marijuana, and denies that there exists any fundamental right to acquire or possess marijuana in the State of Wyoming.

V. CAUSES OF ACTION

A. VIOLATION OF FOURTH AMENDMENT OF THE UNITED STATES
CONSTITUTION

8. Defendant reasserts all previous answers contained in paragraphs one through seven above, as if fully set forth herein and incorporates same by reference.

9. Defendant denies the allegations contained in paragraph nine.

10. Defendant denies the allegations contained in paragraph ten.

B. VIOLATION OF FIFTH AMENDMENT OF THE UNITED STATES
CONSTITUTION

11. Defendant reasserts all previous answers contained in paragraphs one through ten above, as if fully set forth herein and incorporates same by reference.

12. Defendant denies the allegations contained in paragraph twelve.

13. Defendant denies the allegations contained in paragraph thirteen.

14. Defendant denies the allegations contained in paragraph fourteen.

15. Defendant denies the allegations contained in paragraph fifteen.

16. Defendant denies the allegations contained in paragraph sixteen.

17. Defendant denies each and every allegation not expressly admitted herein.

AFFIRMATIVE DEFENSES

1. For a further, and first affirmative defense, Defendant asserts governmental immunity;

2. And for a further, separate and second affirmative defense, Defendant asserts that Plaintiff fails to state a claim upon which relief can be granted;

3. And for a further, separate and third affirmative defense, Defendant asserts that the complaint does not establish a justiciable controversy;

4. And for a further, separate and fourth affirmative defense, Defendant asserts no good purpose will be served in pursuit of an advisory opinion.

WHEREFORE, Defendant respectfully requests that this Court:

1. Dismiss the complaint and afford Plaintiff no relief; and

2. Grant such other and further relief deemed just in the circumstances.

 DATED this 8 day of February, 2007.

 State of Wyoming, Defendant

By: Terry L. Armitage Deputy Attorney General 123 Capitol Building Cheyenne, Wvomina 82002 =====================================

DEE"S

MOTION FOR SUMMARY JUDGMENT

STATE OF WYOMING            )                                                                          IN THE DISTRICT COURT
                                                   ) ss.
COUNTY OF LARAMIE          )                                                                         FIRST JUDICIALDISTRICT


MICHAEL J. DEE Plaintiff
            V                                                                              D-0102-CV-169223
STATE OF WYOMING Defendant

MOTION FOR SUMMARY JUDGMENT Rule 56

 I. PRELIMINARY STATEMENT

1. There is no genuine issue as to any material fact and that the Plaintiff is entitled to a judgment as a matter of law.

2. The private growing and use of marijuana by the plaintiff did not affect the rights of others and was not a real and substantial threat to public health and safety. The State of Wyoming does not have a compelling interest that justifies criminalizing the private growing, possession, and use of this property described as marijuana.

3. The plaintiffs right to be secure from unreasonable searches and seizures is fundamental. Amendment IV, Constitution of the United States.

4. Individuals enjoy a fundamental right to own and enjoy property which is enshrined in the United States Constitution. Marijuana is property. Therefore, the right acquire and possess this property, described as marijuana, is fundamental.

5. "No person shall be deprived of life, liberty, or property, without due process

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of law." This is fundamental. Amendment V, Constitution of the United States.

II. STATEMENT OF FACTS

 A. CONTROVERSY

6. Plaintiff, whose rights were affected by statutes W.S. 35-7-1040 and W.S. 35-7-1031/C, has the right to question of construction or validity of these statues to determined and obtain a declaration of rights. W.S. 1-37-103.

7. The Wyoming legislature has classified marijuana as a Schedule I controlled substance, W.S. 35-7-1014. (d) (xiii).This classification renders the growing W.S. 35-7-1040, possession W.S. 35-7-1031/c), and use W.S. 35-7-1039 of marijuana criminal offenses.

8. As a result of a picture in the news paper, a search warrant was issued on March 26th 1982, and on March 27, served upon the plaintiff at his residence in Cheyenne by Laramie County Sheriffs deputies for growing marijuana. Plaintiff was arrested, prosecuted, and convicted for growing marijuana W.S. 35-7-1040 and possession of a controlled substance, marijuana W.S. 35-7-1031/C. County Court, Docket C82-3 page 337.

9. The enforcement of these criminal laws, W.S. 35-7-1040 and W.S. 35-7-1031/C, caused actual injury to plaintiffs indefeasible right to be secure in his person, home, papers and effects from unreasonable searches and seizures secured by the Amendment IV of the United States Constitution. These rights are "made applicable to the States by the Fourteenth." Soldal v. Cook County, 506 U.S. 56, 61 (1992).

10. These two laws, W.S.35-7-1040 and W.S.35-7-1031/C are constructed to

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sweep unnecessarily broadly and thereby invaded the area of plaintiffs rights protected by Amendment IV and V of the United States Constitution.

11. Making it a "crime" to privately grow a usable amount of marijuana is an "intrusive regulation [and] the usual judicial deference to the legislature is inappropriate." Moore v. East Cleveland, 431 U.S. 494, 499 (1977).

12. " 'The fundamental guaranties of the Constitution cannot be freely submerged if and whenever some ostensible justification is advanced and the police power invoked.' "Nebbia v. New York, 291 U.S. 502, 546(1934).

B. AMENDMENT IV

13. " [E]very unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment." Olmsteadv. United States, 277 U.S. 438, 478 (1928).

14. "The Fourth Amendment, and the personal rights which it secures, have a long history. At the very core stands the right of a man to be free from unreasonable governmental intrusion." Silverman v United States, 365 U.S. 505, 511(1961).

15. "The heart of the Fourth Amendment... .is a severe requirement of specific justification for any government intrusion." Terry v. Ohio, 392 U.S. 1,11 (1968).

16. "The first Clause of the Fourth Amendment provides that the 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.' This text protects two types of expectations, one involving 'searches,' the other 'seizures'. A 'search' occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. A 'seizure' of

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property occurs when there is some meaningful interference with an individual's possessory interests in that property." United States v. Jacobsen, 466 U.S. 109, 113 (1984).

C. LIBERTY

17. " 'No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.' " 392 U.S. at 9; Union Pac. R. Co. v. Botsford,, 141 U.S.250, 251 (1891).

18. "An arrest is the initial stage of a criminal prosecution. It is intended to vindicate society's interest in having its laws obeyed." 392 U.S. at 26.

19. A full custodial arrest is ... a severe intrusion on an individual's liberty, its reasonableness hinges on "the degree to which it is needed for the promotion of legitimate governmental interests." Wyoming v. Houghton, 526 U.S. 295, 300 (1999).

20. " 'Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's own will. It is only freedom from restraint under conditions essential to be equal enjoyment of the same right by others. It is then liberty regulated by law.' " Jacobson v. Massachusetts, 197 U.S. 11, 27, 28; 25 Sup. Ct. Rep. 358 (1905); Crowley v. Christensen, 137 U.S. 86, 90 (1890).

D. PROPERTY

21. "Their inherent right to life, liberty and the pursuit of happiness, all members of the human race are equal." Wyoming Constitution Art. 1 Sec. 2

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22. "[T]he fundamental rights to life, liberty, and the pursuit of happiness [are] considered as individual possessions." Tick Wo v. Hopkins,118 U.S. 356, 370 (1886).

23. "Rights to life, liberty, and the pursuit of happiness are equivalent to the rights of life, liberty, and property." Slaughter-House Cases, 83 U.S.(16 Wall) 36, 116 (1873).

24"The Congress [of the United States] makes the following findings: (1) Individuals enjoy a fundamental right to own and enjoy property which is enshrined in the United States Constitution." Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996 Title 22 U.S.C.-6081.

25. Lord Camden hi Entick v. Carrington: " 'The great end for which men entered in society was to secure their property.' " Boyd v. United States 116 U. S. 616, 627; 6 S.Ct. 524(1886).

26. "The right to enjoy property .. .is in truth a 'personal' right....[A] fundamental interdependence exists between the personal right to liberty and the personal right in property. Neither could have meaning without the other. That rights in property are basic civil rights has long been recognized." Lynch v. Household Finance Corp., 405 U.S. 538, D52. (1972).

27 "[Tjhe Constitution recognized the right of property... and made no distinction between [this] description of property and other property owned by a citizen, no tribunal, acting under the authority of the [State of Wyoming], whether it be legislative, executive, or judicial, has a right to draw such a distinction or deny to it thebenefit of the provisions and guarantees which have been provided for the protection of private property against the encroachments of the Government." Scott v Sanford;60 U.S.

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393,451, (1857).

28. "Such rights do not vanish simply because the power of the state is arrayed against them. Nor are they enjoyed in subjection to mere legislative findings." Nebbia v. New York, 291 U.S. 502, 548 54 S.Ct. 505 (1934).

29. "The right to acquire, enjoy, and dispose of property is declared in the constitutions of several states to be one of the inalienable rights of man; but this declaration is not held to preclude the legislature of any state from passing laws respecting the acquisition, enjoyment, and disposition of property." Crowley v. Christensen, 137 U.S. 86, 90, (1890).

E. STATE POLICE POWER JUSTIFICATION

30. "[T]he police power of the State can only interfere with the conduct of individuals in their intercourse with each other, and in the use of theu- property." Munn v. Illinois, 94 U.S. 113, 145 (1876).

31. "[T]he police powers ... 'are nothing more or less than the powers of government inherent hi every sovereignty,.. the power to govern men and things.' " 94 U.S. at 125.

32. "It is the governmental power of self-protection and permits reasonable regulation of rights and property in particulars essential to the preservation of the community from injury." Panhandle Eastern Pipeline Co. v. Highway Comm 'n 294 U.S. 613, 622, (1935).

33. "The power of the State over the property of the citizen under the

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constitutional guaranty is well defined. The State .. may control the use and possession of [plaintiffs] property, so far as may be necessary for the protection of the rights of Others... The doctrine that each one must so use his own as not to injure his neighbor-sic utere tuo ut alienum non laedas-is the rule by which every member or society must possess and enjoy his property; and all legislation essential to secure this common and equal enjoyment is a legitimate exercise of State authority." 94 U.S. at 145 

34. '[A] governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.' " Griswold v. Connecticut, 381 U.S. 479, 485; NAACP v. Alabama, 377 U.S. 288, 307.

35. "[Pjublic interest demands that all dangerous conditions be prevented or abated." Camara v. Municipal Court, 387 U.S. 523, 537 (1967).

36. It is common knowledge, unlike alcohol, the recreational use of this property, described as marijuana, can not lead to an accidental overdose and death. MARIJUANA RESCHEDULING PETITION Docket No.86-22 (1988)Part VHI. See attached document. 37. "The police power may be exerted to invade rights when such legislation bears a real and substantial relation to the public health [and] safety." Liggett Co. v. Baldridge, 278 U.S. 105, 111,112; 49 S.Ct.57, 59 (1928).

38. "[S]tate police power which trenches upon the constitutionally protected freedom ... even though enacted pursuant to a valid state interest, bears a heavy burden of justification, ...and will be upheld only if it is necessary, and not merely rationally related, to the accomplishment of a permissible state policy." McLaughlin v. Florida, 379

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U.S. 184,196; 85 S.Ct. 283, 290 (1964); 381 U.S. at, 497; Ravin v. State of Alaska, 537 P. 2d 494, 497 (1975).

39. "Where certain 'fundamental rights' are involved, the U.S. Supreme Court has held that regulation limiting these rights may be justified only by a 'compelling state interest' .. .and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake." Roe v. Wade, 410 U.S. 113, 155; 93 S.Ct 705, (1973).

F. DUE PROCESS OF LAW

40. "The Fifth Amendment has been described as providing protection against all government invasion 'of the sanctity of a man's home and the privacies of life.' " Ravin v. State of Alaska, 537 P. 2d 494, 503 citing Boyd v. U.S., 116 U.S. 616, 630, 6 S.Ct. 524 (1886).

41 "[T]he rights of life, liberty, and property .. are the fundamental rights which can only be taken away by due process of law." Slaughter-House Cases 83 U.S.(16 Wall) 36, 116(1873).

42. "[T]he guaranty of due process .. ..demands only that the law shall not be unreasonable, arbitrary, or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained." Nebbia v. New York 291 U.S. 502,525 (1934); 54 S.Ct. 505.

43. The Due Process Clause "raises no impenetrable barrier to the taking of a person's possessions," or liberty, or life....Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property." Gary v Piphus, 435 U.S. 247, 259; 98 S Ct. 1042(1978).

8.

44. "And, unless justified as a valid exercise of the police power, the act assailed must be declared unconstitutional because the enforcement thereof has deprived [Plaintiff of his liberty and] property without due process of law." Liggett Co. v. Baldridge 278 U.S. 105, 111; 49 S.Ct.57, 59 (1928).

45. "Due process has represented the balance for the liberty of the individual.. .and the demands of organized society." Poe v. Ullman367 U.S. 497, 542.

G. JUDICIAL REVIEW

46. Chief Justice Marshall stated: "The province of the court is, solely, to decide on the rights of individuals." Marbury v. Madison 5 U.S. (1 Cr.) 137 170 (1803).

47. The validity of W.S. 35-7-1040 and W.S. 35-7-1031/C are to be "analyzed under the Fourth Amendment's reasonableness standard. The Fourth Amendment's provides specific protection for 'houses, papers, and effects.' " Soldalv. Cook County, 506 U.S. 56, 70(1992).

48. "Legislative authority to abridge [plaintiffs liberty and ] property rights can be justified only by exceptional circumstances and, even then, by reasonable regulation only, and that legislative conclusions based on findings of fact are subject to judicial review." Nebbia v. New York29l U.S. 502, 543; 54 S.Ct. 505 (1934).

49. " 'It is only where rights ... .are being, or about to be, affected prejudicially by the .. ..enforcement of a statute that its validity may be called in question by [the plaintiff] and determined by an exertion of the judicial power." State of Texas v. Interstate Commerce Commission258 U.S. 158, 162 (1922).

50. "[A] statute purporting to have been enacted to protect the public health.. .or

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the public safety, has no real or substantial relation to those objects, is a palpable invasion of [plaintiffs] rights secured by the fundamental law, it is the duty of the courts, to so adjudge, and thereby give effect to the constitution." Mugler v. Kansas 123 U.S. 623, 661; 8 Sup. Ct. Rep. 273; (1887).

51. "A case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction ..., the Court will decide only the latter." " When the validity of an act.. .is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.'" Ashwander v. TVA, 297 U.S. 288, 346; 56 S.Ct. 466, 472 (1936).

III CONCLUSION

WHEREFORE , Plaintiff respectfully request the court to declare:

1. Plaintiff enjoys a fundamental right to own and enjoy property which is enshrined in the United States Constitution. Marijuana is property. Therefore, the plaintiff's right to acquire and possess this property, described as marijuana, is fundamental.

2. The private growing and use of marijuana by the plaintiff does not affect the rights of others.

3. The enforcement of W.S. 35-7-1040 and W.S. 35-7-1031/C caused actual injury to plaintiffs indefeasible right to be secure in his person, home, papers, and effects from unreasonable searches and seizures secured by the Amendment IV. Without a specific justification that shows a real and substantial relation to the

 
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public health and safety, the State of Wyoming unreasonably deprived plaintiffs of his liberty and his property without due process of law.

4. Without justification the Plaintiff had protection by Amendments IV and V of the Constitution of the United States from unreasonable government intrusion to privately grow and possess a useable amount of marijuana.

5. To declare the crimes the plaintiff was convicted of in 1982, are unconstitutional .

6. To declare the Wyoming Statues criminalizing the private growing, W.S.31-7-1040, private possession W.S. 35-7-103 1/C and private use, 35-7-1039 of marijuana, are unjustified therefore unreasonable and contravened the plaintiffs rights secured by Amendment IV of the United States Constitution and therefore unconstitutional.

8. To declare the Wyoming Statues, that criminalize the private growing, W.S.31-7-1040, private possession W.S.35-7-103 1/C and private use, 35-7-1039, of marijuana, are not narrowly drawn to express legitimate state interests and are merely rationally related to the accomplishment of a permissible state policy therefore violates "due process of law" of Amendment V of the United States Constitution and are unconstitutional . Dated: February 22, 2007

MICHAEL J. DEE, pro se,
P.O. Box 2021 *
786 Roosevelt Trail Windham, Me. 04062

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ATTACHMENT

Note: In Judge Young's report cannabis is referred to as marijuana

UNITED STATES DEPARTMENT OF JUSTICE

Drug Enforcement Administration

In The Matter Of                                                   )
                                                                                ) Docket No. 86-22
MARIJUANA RESCHEDULING PETITION      )

OPINION AND RECOMMENDED RULING, FINDINGS OF FACT, CONCLUSIONS OF

LAW AND DECISION OF Administrative LAW JUDGE. FRANCIS L. YOUNG

DATED: SEP 6 1988
FRANCIS L. YOUNG, Administrative Law Judge

Part VIII.

ACCEPTED SAFETY FOR USE UNDER MEDICAL SUPERVISION

With respect to whether or not there is "a lack of accepted safety for use of [marijuana] under medical supervision", the record shows the following facts to be uncontroverted.

Findings of Fact

Point 3. The most obvious concern when dealing with drug safety is the possibility of lethal effects. Can the drug cause death?

4. Nearly all medicines have toxic, potentially lethal effects. But marijuana is not such a substance. There is no record in the
extensive medical literature describing a proven, documented cannabis-induced fatality.

5. This is a remarkable statement. First, the record on marijuana , encompasses 5,000 years of human experience. Second, marijuana is now used daily by enormous numbers of people throughout the world. Estimates suggest that from twenty million to fifty million Americans routinely, albeit illegally, smoke marijuana without the benefit of direct medical supervision. Yet, despite this long history of use and the extraordinarily high numbers of social smokers, there are simply no credible medical reports to suggest that consuming marijuana has caused a single death.

6. By contrast aspirin, a commonly used, over-the-counter medicine, causes hundreds of deaths each year.

7. Drugs used in medicine are routinely given what is called an LD-50. The LD-50 rating indicates at what dosage fifty percent of
test animals receiving a drug will die as a result of drug induced toxicity. A number of researchers have attempted to determinemarijuana's LD-50 rating in test animals, without success. Simply stated, researchers have been unable to give animals enough marijuana to induce death.

8. At present it is estimated that marijuana's LD-50 is around 1:20,000 or 1:40,000. In layman terms this means that in order to
induce death a marijuana smoker would have to consume 20,000 to 40,000 times as much marijuana as is contained in one marijuana cigarette. NIDA-supplied marijuana cigarettes weigh approximately .9 grams. A smoker would theoretically have to consume nearly 1,500 pounds of marijuana within about fifteen minutes to induce a lethal response.

9. In practical terms, marijuana cannot induce a lethal response as a result of drug-related toxicity.

10. Another common medical way to determine drug safety is called the therapeutic ratio. This ratio defines the difference between a therapeutically effective dose and a dose which is capable of inducing adverse effects. 

11. A commonly used over-the-counter product like aspirin has a therapeutic ratio of around 1:20. Two aspirins are the recommended dose for adult patients. Twenty times this dose, forty aspirins, may cause a lethal reaction in some patients, and will almost certainly cause gross injury to the digestive system, including extensive internal bleeding. 

12. The therapeutic ratio for prescribed drugs is commonly around 1:10 or lower. Valium, a commonly used prescriptive drug, may cause very serious biological damage if patients use ten times the recommended (therapeutic) dose.

13. There are, of course, prescriptive drugs which have much lower therapeutic ratios. Many of the drugs used to treat patients with cancer, glaucoma and multiple sclerosis are highly toxic. The therapeutic ratio of some of the drugs used in antineoplastic
therapies, for example, are regarded as extremely toxic poisons with therapeutic ratios that may fall below 1:1.5. These drugs
also have very low LD-50 ratios and can result in toxic, even lethal reactions, while being properly employed.

14. By contrast, marijuana's therapeutic ratio, like its LD-50, is impossible to quantify because it is so high.

15. In strict medical terms marijuana is far safer than many foods we commonly consume. For example, eating ten raw potatoes can result in a toxic response. By comparison, it is physically impossible to eat enough marijuana to induce death.

16. Marijuana, in its natural form, is one of the safest therapeutically active substances known to man. By any measure of
rational analysis marijuana can be safely used within a supervised routine of medical care."

=====================================

DEFENDANT'S MEMORANDUM IN SUPPORT OFMOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

Timothy J. Forwood Assistant Attorney General Terry L. Armitage Deputy Attorney General Wyoming Attorney General's Office 123 Capitol Building Cheyenne, Wyoming 82002 307-777-7977

STATE OF WYOMING                    )                                                                                                               IN THE DISTRICT COURT
                                                           )ss.
COUNTY OF LARAMIE                  )                                                                                                                FIRST JUDICIAL DISTRICT

MICHAEL J. DEE,
Plaintiff,
                      vs                                                                             . Doc. 0102 No. 169223
STATE OF WYOMING,
Defendant.

DEFENDANT'S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

Defendant, by and through the Office of the Attorney General for the State of Wyoming, submits the following memorandum of law in support of its Motion for Summary Judgment filed contemporaneously herewith.

Background

Plaintiff, Michael J. Dee, filed a Complaint for Declaratory Relief in January of 2007. Plaintiff Dee asks this Court to declare that WYO. STAT. §§35-7-1031,35-7-103 9(c), and 35-7-1040 are unconstitutional, violating his due process rights and fundamental rights, pertaining to the use

1

of marijuana. Plaintiff Dee has repeatedly filed similar lawsuits in other jurisdictions, contending that using marijuana is a guaranteed constitutional right. Every claim of his has been rejected.

The Laramie County Sheriffs Office executed a lawful search warrant upon Plaintiff Dee's residence on March 26, 1982, due to his possession and cultivation of marijuana, in violation of WYO. STAT. § 35-7-1031 (c) and § WYO. STAT. 35-7-1040. Plaintiff Dee was prosecuted and convicted at that time, twenty five years ago.

The Wyoming controlled substances act, codified under WYO. STAT. § 35-7-1001 et. seq., was enacted to regulate the possession and use of controlled substances in the State of Wyoming. Important to this matter, WYO. STAT. § 3 5-7-1031 (c) makes it "unlawful for any person knowingly or intentionally to possess a controlled substance...." Marijuana is listed as a Schedule I controlled substance. WYO. STAT. § 35-7-1014. WYO. STAT. § 35-7-1039 makes it unlawful for a person to use marijuana, and WYO. STAT. § 31-7-1040 makes it illegal to grow marijuana.

Standard of Review

 Defendant State has filed a motion for summary judgment pursuant to Rule 56, Wyo. R. Civ. P., asserting there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. A genuine issue of material fact exists when a disputed fact, if proven, would have the effect of establishing or refuting an essential element of an asserted cause of action or defense. The usual standard of review of summary judgment applies in the context of a declaratoryjudgment action. Lankford v. Laramie. 2004 WY 143, f 8, 100 P.3d 1238, 1241 (Wyo. 2004).

2

No Justiciable Controversy

Justiciable controversy is a "jurisdictional prerequisite to the presentation of a claim for relief under the Uniform Declaratory Judgments Act." Cathcart v. Meyer. 2004 WY 49, f 26, 88 P.3d 1050, 1061 (Wyo. 2004). There are four necessary elements to establish a justiciable controversy under the Uniform Declaratory Judgments Act.

1. The parties have existing and genuine, as distinguished from theoretical, rights or interests.

2. The controversy must be one upon which the judgment of the court may effectively operate, as distinguished from a debate or argument evoking a purely political, administrative, philosophical or academic conclusion.

3. It must be a controversy the judicial determination of which will have the force and effect of a final judgment in law or decree in
equity upon the rights, status or other legal relationships of one or more of the real parties in interest, or, wanting these qualities to be of such great and overriding public moment as to constitute the legal equivalent of all of them.

4. The proceedings must be genuinely adversary in character and not a mere disputation, but advanced with sufficient militancy to
engender a thorough research and analysis of the major issues. Cathcart, 2004 WY 49, If 26, 88 P.3d at 1061- 1062; Cox, 2003 WY 146,1f 10, 79 P.3d at 505 (quoting Reiman Corp. v City of Cheyenne. 838 P.2d 1182,1186 (Wyo. 1992)). Plaintiff Dee lacks the justiciable controversy requirement to bring an action to the court.

Regarding the first requirement of justiciable controversy, Plaintiff Dee is not a resident of the state of Wyoming and has no existing or genuine rights or interest in dispute; there is no real

3

danger of prosecution. "Many doctrines are encompassed within the concept of justiciability including standing, ripeness, and mootness... The doctrine of standing focuses on whether a litigant is properly situated to assert an issue for judicial determination. A litigant has standing when he has a personal stake in the outcome of the controversy." Cox v. City of Cheyenne. 2003 WY 146, ^f 9, 79 P.3d 500, 505 (Wyo. 2003) (citations omitted). Plaintiff Dee lacks standing because he is not in Wyoming, and is not likely to be subject to Wyoming's laws. Therefore, Plaintiff Dee fails the first element.

The second element requires that there be a present case in controversy. However, Plaintiff Dee 's claim is nothing more than a philosophical debate, with no controversy that the court "may effectively operate." There is no present controversy for which Plaintiff Dee is seeking declaratory relief. Dee had a case in controversy: 25 years ago. That case has been fully adjudicated and the case is no longer ripe.

In addition, Plaintiff Dee filed a petition in this Court seeking declaratory relief, alleging only general, vague, and non-specific concepts, wanting to declare marijuana legal. The petition is void of the factual specificity required in a declaratory judgment action pursuant to WYO. STAT. § 1-37-101 through 115. See Anderson v. Wyoming Dev. Co.. 154 P.2d 318, 335 (Wyo. 1944). Plaintiff Dee fails to pose any specific question or raise any specific legal issue. Thus, there is no controversy, and Plaintiff Dee fails to fulfill the second element

Plaintiff Dee additionally fails to fulfill the third element. Plaintiff Dee asserts claims for which he is asking nothing more than an advisory opinion. An advisory opinion is one which

4

adjudicates nothing and binds no one. In Brimmer v. Thomson, 521 P.2d574, 579 (Wyo. 1974), the Wyoming Supreme Court stated, "It is axiomatic that the Declaratory Judgments Act cannot be relied upon to secure an advisory opinion." Therefore, Plaintiff Dee's claims today grants him no remedy today or to his possible case in controversy from 25 years ago; thus, he fails the third element.

Defendant State concedes the fourth element for this action, since the State is adverse to Plaintiff Dee in this action.

Plaintiff Dee fulfills only one of the required four elements to establish a justiciable controversy, a necessity to proceed with a declaratory judgment. All four elements must be fulfilled for a declaratory action to proceed, and Plaintiff Dee can only fulfill one. WYO. STAT. § 1 -37-108 states that the Court may refuse to render a declaratory judgment where the judgment would not terminate the uncertainty or controversy giving rise to the proceeding. In this case, the vague, general allegations, even if addressed, will not cure Plaintiff Dee's concerns with the controlled substances act, WYO. STAT. § 35-7-1001 et. seq. Plaintiff Dee does not establish the necessary underpinning required to proceed with a declaratory action and the Respondent State of Wyoming is entitled to judgment based upon the pleadings.

Constitutional Claims

Plaintiff Dee contends that criminalizing possession, growing, and use of marijuana violates the Fourth Amendment. The Fourth Amendment of the United States Constitution protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The argument that Plaintiff Dee's Fourth Amendment rights were violated

5

due to the criminalizing of possessing, growing, or using marijuana is patently frivolous. There is no correlation between Plaintiff Dee's argument and the Fourth Amendment.

Plaintiff Dee also contends that the criminalizing of marijuana deprived him of his Fifth Amendment rights. The Fifth Amendment of the United States Constitution provides that "[n]o person shall ... be deprived of life, liberty, or property, without due process of law ...." Plaintiff Dee's only deprivation of property would have been for his conviction for possession of a controlled substance, when his illegally possessed marijuana was seized and forfeited. However Plaintiff Dee was given due process: his trial. Thus, this argument as well is patently frivolous.

Plaintiff Dee claims that he has a fundamental right to possess marijuana. This contention has been addressed many times and denied many times, and this is not the only court before which Plaintiff Dee has made this claim. The United States District Court, in a prior case filed by Plaintiff Dee stated, "It has long been established that use of marijuana is not a fundamental right protected by the Constitution." Dee v. U.S., 241 F.Supp.2d 50, 51 (D.Me. 2003). See also, Pearson v. McCaffrey. 139 F.Supp.2d 113,123 (D.D.C. 2001): State v. Williams. 93 Wash.App. 340, 968 P.2d 26 (1998), review denied, 138 Wash. 2d 1002, 984 P.2d 1034 (1999); State v. Hanson. 468 N.W.2d 77 (Minn.Ct.App.1991); Kuromiva v. United States. 37 F.Supp.2d 717 (E.D.Pa.1999); United StatesV. Fogartv. 692 F.2d 542 (8th Cir.1982); United States v. Maas. 551 F.Supp. 645, 646-47 (D.N.J. 1982); Wolkind v. Selph. 495 F.Supp. 507,510 (E.D.Va. 1980); NORML v. Bell, 488 F.Supp. 123,132-33 (D.D.C.1980) (three judge court). Plaintiff Dee has personally been put on notice in the past that there is no fundamental right to possess marijuana, and any attempt by him to further this claim is frivolous. Dee v. U.S., 241 F.Supp.2d at 50. The court in his prior case also enjoined

6

Plaintiff Dee from filing any further lawsuits in that court due to his previous frivolous filings about his constitutional right to use marijuana. Id. at 50.

The Wyoming Supreme Court has previously stated:

The Wyoming Constitution expressly recognizes the legislative department's police power. In Article 2, § 1, of the Wyoming Constitution, the people have granted the legislative department its powers of government. In Article 10, § 2, of the Wyoming Constitution, the people have specifically granted the legislative department the police power of the state which "is supreme over all corporations as well as individuals."

Greenwalt v. Ram Restaurant Corp. of Wyoming. 2003 WY 77,118,71 P.3d 717,725 (Wyo. 2003). The State of Wyoming through its police power has the ability to "regulate private activities and property usage without compensation as a means of promoting and protecting the public health, safety, morals, and general welfare." Cheyenne Airport Board v. Rogers. 707 P.2d 717, 726 (Wyo. 1985).

Contrary to Plaintiff Dee's contention, regulating the use of controlled substances protects the "public health, safety, morals, and general welfare," and is well within the legislature's authority. Marijuana is classified as a controlled substance, is reasonably classified as a controlled substance, and to^argue that the regulation of it is unreasonable is a frivolous argument. Plaintiff Dee has notice of this as well. In Dee v. U.S.. the court stated, "Every federal court that has considered the matter, so far as we are aware, has accepted the congressional determination that marijuana in fact poses a real threat to individual health and social welfare, and has upheld the criminal sanctions for

7

possession and distribution of marijuana even where such sanctions infringe on the free exercise of religion." 241 F.Supp.2d at 51. quoting U.S. v. Rush, 738 F.2d 497, 512 (1st Cir. 1984).

The Wyoming Supreme Court in Vasquez v. State, 990P.2d476,485 (Wyo. 1999), held that analysis under the state constitution is required whenever a party has raised a state constitutional claim and provided proper argument and briefing, using a precise and analytically sound approach. The Court has further said that, where a defendant has adequately presented a state constitutional claim, "state constitutional analysis takes primacy - that is, the claim is analyzed first under our state constitution." O'Bovle v. State. 2005 WY 83,.t 22, 117 P.3d 401, 408 (Wyo. 2005); See also Vasquez, 990 P.2d at 484-486. However, the Court has also held that, where a party fails to adopt a "precise and analytically sound approach" in presenting a state constitutional claim, the Court will decline to consider the issue. Q'Boyle, \ 27. (citing Doles v. State. 994 P.2d 315, 320 (Wyo. 1999); Putnam v. State. 995 P.2d 632, 640 (Wyo. 2000); Bailey v. State. 12 P.3d 173, 177 (Wyo. 2000)). Plaintiff Dee failed to provide any state constitutional claim; therefore, the court should not consider this issue.

8

CONCLUSION

In the case at bar, Plaintiff Dee alleges he has a fundamental right to possess, use, and grow marijuana, and that WYO.STAT. § 35-7-1001, et. seq. contravenes that right. Other courts have ruled that there is no constitutional right to possess, use, or grow marijuana, and Plaintiff Dee has personally been put on notice of this in the past. In addition, Plaintiff Dee's claims are not justiciable and no adequate relief can be granted. Plaintiff Dee's argument is frivolous and should be dealt with as such.

WHEREFORE, Defendant respectfully requests that this Court grant its Motion for Summary Judgment, deny Plaintiffs motion and declare that there is no constitutional right to possess, use, or grow marijuana.

°(
RESPECTFULLY SUBMITTED this 9th __ day of March, 2007.
State of Wyoming, Defendant

By: Timothy J. Forwood
Assistant Attorney General
123 Capitol Building
Cheyenne, Wyoming 82002 307-777-7977

9

============================================

DEE'S

OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

STATE OF WYOMING          )                                                                                                                   IN THE DISTRICT COURT
                                                 ) ss.
COUNTY OF LARAMIE        )                                                                                                                   FIRST JUDICIAL DISTRICT



MICHAEL J. DEE                     )
Plaintiff                                      )
                                                   )
V                                                 )                                                   D-0102-CV-169223
                                                    )
STATE OF WYOMING             )
Defendant                                 )

OPPOSITION TO DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT

Introduction

Plaintiff Michael J. Dee, contends that it is unreasonable and unnecessary to criminalize the private possession, growing, and use of marijuana, violating the Fourth and Fifth Amendments of the United States Constitution. See Cmplt. ¶  9,12.

The "framers of our Constitution and this court ...have declared ... the due observance of the rights guaranteed under the Constitution by [the Fourth and Fifth] Amendments. That such rights are declared to be indispensable to the full enjoyment of personal security, personal liberty, and private property that they are to be regarded as of the very essence of constitutional liberty. Gouled v U.S.. 255 U.S. 298, 303, 304. (1921).

The determination this court is required to make is whether the Plaintiffs Fourth and Fifth Amendment rights suffered actual injury by the enforcement of the marijuana laws. Judicial review of the facts will determine if the deprivation of rights was

1

reasonable or unreasonable.

Is it reasonable or unreasonable for State of Wyoming to criminalize the private growing, possession, and use of this property describe as marijuana? Is it reasonable or unreasonable for the government to search for and seize this property?
Whose rights are affected by the private growing, possession, and use of marijuana?

How does the private growing, possession, and use of marijuana by an adult pose a substantial threat to public health and safety?

Justiciable Controversy Justification for Injury

The "case and controversy limitation, ...[is an ]... American institution of judicial review ... for the preservation of individual rights." Rescue Army v. Municipal Court 331 U.S. 549, 572(1947).

The Courts "have no power per se to review and annul acts of [the Wyoming legislature] on the ground that they are unconstitutional. That question may be considered only when the justification for some direct injury suffered or threatened, presenting a justiciable issue, is made to rest upon such an act." Commonwealth of Massachusetts v. Mellon. 262 U.S. 447,488 (1923). (emphasis added).

The Plaintiff "cannot challenge the constitutionality of a statute unless he shows that he himself is injured by its operation." Barrow v Jackson. 346 U.S. 249,255 (1953). "The right invaded is a legal right, - one of property" and liberty. Assn. of Data Processing Service Ores, v. Camp. 397 U.S. 150, 153 (1970).

2

Plaintiff has already suffered actual injury to his legal rights to liberty and to property, to his fundamental legal right to be secure from unreasonable searches and seizure. Plaintiff has suffered actual injury by the invasion of his privacy by the full armed enforcement of the marijuana laws when he was served a search warrant for growing marijuana, and arrested at his residence by the Laramie County Sheriff Department on March 27, 1982. Cmplt.¶ 4

Twenty five years does not change the fact that the Plaintiff has suffered actual injury to his constitutional rights, to be secure from unreasonable government intrusion and still has an unreasonable criminal record.

Amendment IV

Plaintiff brings forward the claim that the enforcement of the marijuana laws infringes upon his guaranteed constitutional right to privacy, to liberty, and to property which are secured from unreasonable searches and seizure by the Fourth Amendment of the United States Constitution. See Cmplt. ¶  9.

"The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They knew ... pleasure and satisfactions of life are to be found in material things. They conferred, as against the government, the right to be let alone-the most comprehensive of rights and the right most valued by civilized men. To protect, that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment." Olmstead v. United States. 277 U.S. 438, 478 (1928).

"[T]he Fourth Amendment provides an explicit textual source of constitutional

3

protection against... physically intrusive governmental conduct." Graham v. Connor, 490 U.S. 386, 395 (1989).

A seizure triggering the Fourth Amendment's protections occurs only when government actors have, "by means of physical force or show of authority ... in some way restrained the liberty of a citizen." Terry v. Ohio. 392 U.S. 1, 19 n. 16 (1968).

"The heart of the Fourth Amendment ...is a severe requirement of specific justification for any intrusion upon protected personal security, coupled with a highly developed system of judicial controls to enforce upon the agents of the State the commands of the Constitution." Id., 392 U.S. at10.

Refer to Plaintiff's Motion for Summary Judgment to (PMSJ) ¶ 13-16.

Due Process of Law

The deprivation of Plaintiff s liberty and property by the State of Wyoming is without justification and violates due process of law. See Cmplt, ¶  12.

The Due Process Clause "raises no impenetrable barrier to the taking of a person's possessions, or liberty, or life. Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property." Gary v Piphus. 435 U.S. 247, 259; 98 S Ct. 1042(1978). (emphasis added).

The "prohibition against the deprivation of property without due process of law reflects the high value, embedded in our constitutional and political history, that we place on a person's right to enjoy -what is his, free of governmental interference." Fuentes v. Shevin. 407 U.S. 67, 81 (1972). (emphasis added).
Refer to PMSJ ¶  40-45.

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Police Power

"The states possess ... the power to prescribe such regulations as may be reasonable, necessary, and appropriate for the protection of the public health and comfort." California Reduction Co. v. Sanitary Works. 199 U.S. 306, 318 (1905).

"The police power of a state ... is subordinate to constitutional limitations. Under it there is no unrestricted authority to accomplish whatever the public may presently desire. It is the governmental power of self-protection and permits reasonable regulation of rights and property in particulars essential to the preservation of the community from injury." Panhandle Eastern Pipeline Co. v. Highway Comm'n. 294 U.S. 613, 622 (1935).

"The fundamental guaranties of the Constitution cannot be freely submerged if and whenever some ostensible justification is advanced and the police power invoked." Nebbiav. New York 291 U.S. 502, 546 (1934)." (emphasis added).

Criminalizing the private growing and use of marijuana is unreasonable because it does not threaten the rights of others. "[T]he police power of the State ... can only interfere with the conduct of individuals in their intercourse -with each other, and in the use of their property." Munn v. Illinois. 94 U.S. 113, 145 (1876).(emphasis added). Refer, to PMSJ ¶  30-39.

"The extent and limits of ... police power ... include everything essential to the public safety, health, and morals, and to justify the destruction or abatement ... of ... a public nuisance ... endangering the lives of passers-by." Lawton v. Steele. 152 U.S. 133, 136; 14 S. Sup. Ct. 499, (1894).

5.

Liberty

The Constitution does not secure to any one liberty to conduct his business in such fashion as to inflict injury upon the public at large, or upon any substantial group of the people........... any other form of regulation, is unconstitutional only if arbitrary,
discriminatory, or demonstrably irrelevant to the policy the Legislature is free to adopt, and hence an unnecessary and unwarranted interference with individual liberty. Nebbia v. New York. 291 U.S. 502, 539; 54 S.Ct. 505, (1934).

" 'Where there is a significant encroachment upon personal liberty, the State [of Wyoming] may prevail only upon showing a subordinating interest which is compelling.'" Ravin v. State of Alaska 537 P. 2d 494, 497 (1975). Griswold v. Connecticut, 381 U.S. 479, 497, 85 S. Ct. 1678 (1965); Bates v. Little Rock, 361 U.S. 516, 524, 80 S. Ct. 412,417 (1960); Roe v Wade, 410 U.S. 113, 155, 93 S.Ct 705, 35 (1973); Refer, to PMSJ  ¶ 17-20.

Property

The State of Wyoming interpretation of Plaintiff pleadings is that "Plaintiff Dee" is "contending marijuana is a guaranteed constitutional right." see Defendant's Motion for Summary Judgment (DMSJ) pg. 2.

 Dee is implying the Congress of the United States says the right to marijuana is a fundamental right. Cmplt. ¶  7.The Congress and the Supreme Court of the United States may not say it directly but it is definitely implied.

Fact: "The Congress [of the United States] makes the following findings: (1) individuals enjoy a fundamental right to own and enjoy property which is enshrined in the

6

United States Constitution." Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996. Title 22 U.S.C. § 6081.

Fact: "That rights in property are basic civil rights has long been recognized." Lynch v. Household Finance Corp., 405 U.S. 538, 552. (1972). Refer, to PMSJ ¶ 21-29.

Fact: Marijuana is property.

Controlled Substance

The State of Wyoming claims marijuana "is reasonably classified as a controlled substance." See DMSJ Pg. 7.

"Reasonable under the Fourth Amendment requires a careful balancing of the nature and quality of the [State of Wyoming's] intrusion on the [Plaintiffs] Fourth Amendment interests against the countervailing governmental interests at stake. Graham v. Connor. 490 U.S. 386, 396 (1989). Which is?

"It is necessary first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen." Terry v. Ohio.ri968) 392 U.S. 1, 21.When an act "is reasonably calculated to promote the public health... the determination [this court is] called upon to make is whether the act has a real and substantial relation to that end or is a clear and arbitrary invasion of [Plaintiffs] property rights guaranteed by the Constitution. Liggett Co. v. Baldridee. 278 U.S. 105,111; 49 S.Ct.57, 59 (1928).

"Legislative authority to abridge [plaintiffs liberty and ] property rights can be justified only by exceptional circumstances and, even then, by reasonable regulation only, and that legislative conclusions based on findings of fact are subject to judicial

7

review." Nebbia v. New York, 291 U.S. 502, 543; 54 S.Ct. 505 (1934). (emphasis added).

The State of Wyoming offers no compelling evidence showing a real and substantial relation to public health and safety to justify criminalizing the private growing and use of marijuana. The State of Wyoming has offered no facts that show the use of this property, describe as marijuana, is a greater threat to public health and safety than other property, alcohol, and tobacco. Cmplt.¶ 5.

Congress claims the "illegal ... manufacture, distribution, and possession and improper use of controlled substances have a substantial and detrimental effect on the health and general welfare of the American people." Title 21U.S.C.§ 801(2). DMSJ pg. 7.

Marijuana is federally classified as a schedule I controlled substance. It is arbitrary and unreasonable for the federal government to classify marijuana as a controlled substance. Marijuana is safe to use with [and without] medical supervision. MARIJUANA RESCHEDULING PETITION Docket No.86-22 (1988) Part VIII. See attached document to Plaintiff's Motion for Summary Judgment.

"The constitutionality of a statute, valid on its face, may be assailed by proof of facts tending to show that the statute as applied to a particular article is without support in reason because the article, although within the prohibited class, is so different from others of trie class as to be without the reason for the prohibition." United States v. Carolene Prod. Co. 304 U.S. 144, 153-54 (1938).

Reasonableness Standard Of Review

Criminal laws are a justiciable controversy. Due process of law requires criminal laws to be reasonable. Criminal laws must be justified, reasonable and necessary. The use

8

of police power is to protect the rights of others. The Standard of review must be the Reasonableness Standard of the Fourth Amendment.

A search warrant and Plaintiffs full custodial arrest were severe intrusion on his liberty. The Court "must evaluate the search or seizure under traditional standards of reasonableness by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests. Wyoming v. Houghton 526 U.S. 295, 300 (1999).

The validity of W.S. 35-7-1040 and W.S. 35-7-1031/C are to be "analyzed under the Fourth Amendment's reasonableness standard. The Fourth Amendment's provides specific protection for 'houses, papers, and effects.' " Soldal v. Cook County. 506 U.S. 56, 70(1992). "Seizure of a free citizen should be analyzed under the Fourth Amendment and its "reasonableness" standard. Because the Fourth Amendment provides an explicit textual source of constitutional protection against ... physically intrusive governmental conduct, that Amendment ...must be the guide for analyzing these claims." Graham v. Connor. 490 U.S. 386, 395, 396 (1989), The "central inquiry under the Fourth Amendment [is] the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security." Terry v. Ohio. 392 U.S. 1, 19 (1968).

"Criminal statutes [must] be subjected to the most rigid scrutiny,... and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective." Loving v. Virginia. 388 U.S. 1,11 (1967).

9

"The validity of regulatory "measures are challenged on the ground that they transgress the Constitution, and thereupon it becomes the duty of the court, in the light of the facts in the case, to determine whether the regulation is reasonable and valid or essentially unreasonable, arbitrary and void." Norfolk & W.R. Co. v Public Service Commission of West Virginia, 265 U.S. 70, 74 (1924).

Jurisdiction

The State of Wyoming is claiming that the Plaintiff can not claim injury to federal rights caused by the enforcement of state criminal laws in state courts. The State of Wyoming is claiming I must claim injury to Article 1 § 4and 6 of the Wyoming Constitution. See DMSJ pg. 8.

The federal Constitution is made part of the Wyoming Constitution by Article 1 § 37. "The state of Wyoming is an inseparable part of the federal union, and the constitution of the United States is the supreme law of the land. "See Cmplt.¶  6.

"State courts also have the solemn responsibility, equally with the federal courts, to guard, enforce, and protect every right granted or secured by the Constitution of the United States. Courts ... have the solemn responsibility to guard, enforce, and protect every right granted or secured by the Constitution of the United States. We yet like to believe that wherever the ... courts sit, human rights under the Federal Constitution are always a proper subject for adjudication, and that we have not the right to decline the exercise of that jurisdiction." Zwickler v. Koota, 389 U.S. 241, 248 (1967).

Conclusion

Under the color of law, the State of Wyoming wants this court to deprive

10

Plaintiffs rights protected by Amendments IV and V of the Constitution of the United States. The private growing, possession, and use of marijuana does not pose any threat to public health and safety.

Plaintiff ask this court to declare the Wyoming Statues criminalizing the private growing W.S.31-7-1040, private possession W.S.35-7-1031/C, and private use, 35-7-1039 of marijuana, to be unjustified therefore unreasonable and the enforcement contravened the plaintiffs rights secured by Amendment IV of the United States Constitution and therefore unconstitutional.

To declare the Wyoming Statutes, that criminalize the private growing, W.S.31-7-1040, private possession W.S.35-7-1031/C and private use, 35-7-1039, of marijuana, are not narrowly drawn to express legitimate state interests and are merely rationally related to the accomplishment of a permissible state policy therefore violates "due process of law" of Amendment V of the United States Constitution and are unconstitutional.

Dated: March 19, 2007

/
MICHAEL J. DEE, pro se, P.O. Box 2021 786 Roosevelt Trail Windham, Me. 04062 207-893-0287 Dee__331_lf^rnsn.com


=============================

STATE OF WYOMING           )                                                                                                                  IN THE DISTRICT COURT
                                                  ) ss.
COUNTY OF LARAMIE         )                                                                                                                 FIRST JUDICIAL DISTRICT



MICHAEL J. DEE,                                )
Plaintiff,                                                  )
                                                                )
vs.                                                           )                                          Doc. 0102 No. 169223
                                                                )
STATE OF WYOMING,                        )
Defendant.