Relevant Federal Court Orders
CONTENT OF THIS PAGE
(Bold print added)
1995
Federal Court ORDER Civil No. 95-29-P-H
COMPLAINT Civil No. 95-29-P-H
2003
Federal Court ORDER Misc. No. 03-06-P-H
PETITION Civil No. Misc. No. 03-06-P-H
PETITION TO RECONSIDER ORDER Misc. No. 03-06-P-H
Petition to Reconsider Order Denied MISC. NO. 03-6-P-H
2004
Federal Court ORDER Misc. No. 04-33-P-S
The Request No. 04-33-P-S
Proposed D.J.No. 04-33-P-S
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1995
Federal Court ORDER Civil No. 95-29-P-H
UNITED STATES DISTRICT COURT DISTRICT OF MAINE
MICHAEL DEE, )
PLAINTIFF )
v. ) Civil No. 95-29-P-H
JANET RENO, Attorney General )
of the United States, et al., )
DEFENDANTS )
ORDER ON PENDING MOTIONS
The plaintiff Michael Dee has sued the Attorneys General of the United States and the State of Maine seeking a declaratory judgment that federal and state marijuana laws are unconstitutional. The defendants have moved for judgment on the pleadings and the plaintiff has moved for summary judgment. I conclude that Dee is not entitled to the relief he seeks and direct that judgment be entered for the defendants.
The defendants argue that Dee lacks standing to bring his lawsuit because he is not facing threatened or actual injury that is real and immediate. In response, Dee has filed with the court a portion of a marijuana plant, presumably one that he has grown. The assertions in the pleadings, together with the marijuana, probably furnish a basis for at least the issuance of a search warrant. Moreover, by virtue of the criminal cases that are prosecuted in this court and, most recently, a celebrated case in this court involving helicopter overflights searching for marijuana plants growing in rural Maine, Bowie v. Scopino. No. 93-317-P-H (D. Me. 1995), I am aware that federal and state authorities take marijuana growing and production seriously.
For these reasons, it would be disingenuous to deny that Dee is looking at actual or threatened injury in the form of criminal investigation/prosecution. On the other hand, it is also the case that law enforcement resources are limited and that priorities determine where enforcement activities should be directed. Thus, criminal prosecution against Dee may or may not be imminent, and the precise nature of any charges (possession, growing, trafficking, quantity, etc.) are all impossible to determine. In short, although Dee may legitimately fear some kind of criminal law enforcement activity directed against him, it is impossible to determine whether or when either federal or state authorities might press charges and what the nature of the resulting prosecution might be. It is, therefore, impossible to assess the constitutional issues.
Declaratory judgment is a discretionary remedy, see Wilton v. Seven Falls Co _ _ U.S._ _, 115 S. Ct. 2137, 132 L. Ed. 2d 214 (1995). It is particularly inappropriate here. Generally speaking, federal and state marijuana laws have been upheld against constitutional attack and have been described as raising matters of legislative policy for elected representatives ..to determine. .See e.g... United States v. Maas. 551 F. Supp. 645 (D.N.J 1982): 'National Org. for Reform of Marijuana Laws v. Bell. 488 F. Supp. 123 (D.D.C. 1980) In light of that case law and given the fact that this is a declaratory judgment action with nonspecific law enforcement activity to assess I conclude that declaratory relief is inappropriate. I GRANT judgment on the pleadings to the defendants and DENY summary judgment to the plaintiff.
So ORDERED.
Dated at Portland, Maine this 11th day of September, 1995

D. Brock Hornby
United States District Judge
==============================================
COMPLAINT Civil No. 95-29-P-H
Original complaint was a mixture of typed and hand written text and unedited with spelling errors.
The United States District Court District of Maine at Portland
Michael J. Dee et al., }
}
V ) Civil Action File No. 95-29-P-H
Hon. Janet Reno }
Attorney General of the United States et al., }
Hon. Andrew Ketterer )
Attorney General of the State of Maine et al., }
Motion for Declaratory Judgment & Declaratory Relief
1
I
Plaintiff is and at all times mentioned in this complaint is a resident of Cumberland County State of Maine.
II
The defendants, the governments by legislative enactments passed statutes that require federal, state, county and local police power over the lives, liberty and property of it's citizens.
Ill
Plaintiff seeks to terminate a controversy with issues of law by bringing before this court undisputed or relatively undisputed facts. In Ravin v. State of Alaska (537 P2d 494,1975] "The right to privacy (Art. 1, Sec. 22 or the Alaskan Constitution) cannot be read so as to make the possession or ingestion of marijuana itself a fundamental right". The above was cited in National Organization for Reform of Marijuana Laws v. Bell (488 F. Supp 123 (1980) The court continues: "In ascertaining whether a right is fundamental the court must determine whether the right is explicitly or implicitly guaranteed by the constitution. Smoking marijuana does not qualify as a fundamental right. "A constitutional right must be involved for there to be a right of privacy in the home". (The above case footnote 27.) To acquire and use property, to be free from "unreasonable searches and seizures" are fundamental rights. (Ravin page 495). Marijuana is a property right. The controversy is of justiciable nature because of the existence of a right, a privilege and immunity, created by the United States and Maine Constitutions. All citizens of the United States have an interest in the declaration sought.
2
IV
Plaintiff brings this action for declaratory judgment pursuant to Title 28 USCS section 2201 for judgment declaring:
1. The Single Convention on Narcotics 18 UST 1407, 30 T.I.A.S. No. 6298,. 520 U.N.T.S. 151. Ratified (1967)
2. Comprehensive Drug Abuse Prevention and Control Act of 1970. Public Law 91-513, 84 Stat. 1242
3. Codified as Title 21 USCS sections 841 (b.) (1) (A) ii (I) and vii; 841 (b) (1) (B) ii I and vii, 941 (b) (1) (D); 844 and 844a.
4. Maine State Statutes Title 17A Sec, 1103 and 1106 and Title 22 2323
Unconstitutional because they are over broad, speculative, arbitrary and unreasonable.
V
“Whose rights are affected by a statute... may have determined any construction or validity arising under the statutes. (Maine State Statute., Title 14, sec. 5954). Declaratory Judgment action is designed precisely to give a potential defendant in a criminal prosecution, access to judicial determination prior to actual arrest when the facts indicate a sufficient basis to believe that conduct deemed protected under the constitution, will be subject to such prosecution. Growing and possession of marijuana for private use. Jurisdiction of this action is based on title 28 USCS section 1331, Federal Question. Complainant invokes rights under the constitution.
3
VI
The above mentioned treaty, federal statutes and state statutes in part violates the IV, V and XIV Amendments of the United States Constitution and Article I sections 1 and 5 of the Maine Constitution.
VII
The right to use and enjoy one's property is a fundamental right protected by both state and federal constitution. Buskey v Town of Hanover: 1990, 577 A.2d 406, 133 N.H. 318) The laws criminalize the private cultivation of marijuana for personal use and private trade. The laws are speculative in the area of cultivation and the possession of a usable amount which would be a civil offense. How many plants equals simple possession?
4
VIII
Article I, Section 1 Declaration of Rights of the Maine Constitution: "All men are created equally free and independent and have certain natural inherent and inalienable rights among which are those of enjoying and defending life, liberty and acquiring, possessing and protecting property and pursuing, obtaining safety and happiness. " U.S. Amendment V..."nor be deprived of life, liberty or property without due process of law. U.S. Amendment XIV. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; not shall any state deprive any person life, liberty, or property without due process of law.
IX
There are no restrictions in the acquisition of property which does not generally affect others. The authority of the state to exert control over individuals extends only to activities of the individuals which affect others or the public at large. Private property is held subject to implied condition that its use will not injure or impair public interest. footnote 1 'The term liberty as used in the constitution means more than freedom from arrest and includes freedom to own, control and use property, freedom to pursue any lawful trade, business or calling and freedom to make all proper contract in relation there to. footnote 2
X.
Article I, Section 5 of the Maine Constitution and 4th Amendment of the U.S. Constitution "the people shall be secure in their person, houses, papers, and possession from unreasonable searches in and seizures." Marijuana even when its possession can only give rise to civil violation in Maine can be a legitimate object of a search warrant and if found can be seized and confiscated. footnote 3 The state standard in testing the legality of search and seizure can be no lower than standards mandated by the U.S. Constitution as
footnotes 1 State of Maine vs. Lewis 406 A.2d 886 Me 1979 2 Black Law Dictionary pg.827 3 State of Maine vs. Barclay 398 A.2d 794 Me 1979
5
interpreted by the U.S. Supreme Court. footnote 4
XI
The "due process of the 14th Amendment of U.S. Constitution provides that an individual may not be deprived of certain substantive rights, ie., life, liberty and property without constitutionality adequate procedures". footnote 5 "Procedural due process protection is triggered by actual or threatened impairment or deprivation of life, liberty or property." footnote 6
Property has been seized on two of three occasions resulting from two uniform summons and complaint # 7 01611 issued 12/20/93 and # 1421883 issued 8/10/94. Both were issued for a usable amount of marijuana. Cases were dismissed because the issuing officers failed to appear. On 08/05/94 at approximately 1630 hours, officer #12 of the Windham Police Dept. refused to confiscate a controlled substance.
XII
Due process "protects substantive aspects of those interest against impermissible government restriction."footnote 7 The challenge statutes and treaty "adversely affect a recognized life, liberty and property entitlement and in doing so does not promote a legitimate state objective by reasonable means."footnote 8 ( The, use of marijuana by people who are underaged.) The "basic test is whether the state can justify infringement of its legislative activity upon personal rights and liberties. Due process is violated when statutory provisions is not reasonably designed to remedy evils which legislative has determined to be
footnotes 4 State of Maine vs. Barlow 320 Ad 895. Me 1974 5 Bexar County Sheriffs Civil Service Com'n v Davis Tex 1990, 802 s,w.2d. Certiorari denied112S.Q 57,16 L.Ed.2d.34. 6 Matter of Estate of Webster 1991, 574 N.E.2d.245, 158 111. Dec. 451, 214 111. App.3d 1014, Certiorari denied 112 S. Ct. 1178 Led.2d.423. 7 Electro Tech. Inc. vs. H.F. Cambeel Co., 1989. 445N.W.2d 61, 433 Mich. 57 Certiorari denied 110 S. Ct 721.493 U.S. 1021, 107 L.Ed.2d 741 8 Moreno vs State Dept. of Revenue and Taxation: Wyo 1989, 775 P.2d. 497.
6
a threat to public health, safety and general welfare."footnote 9
XIII
One of three levels of judicial review is "strict scrutiny which applies involving suspect classification and fundamental rights, under which the burden is placed upon the state to show that there is a compelling state interest,footnote 10 to justify state action under police power of state.footnote 11 Strict scrutiny requires that statute which restricts a fundamental right be..."narrowly drawn to express only the legitimate state interest at stake.footnote 12 Legislative enactment will withstand challenge on due process grounds if it bears real and substantial relationship to public health, safety, morals or general welfare of the public and if it is not unreasonable or arbitrary.footnote 13
XIV
The evolution of marijuana proscription has its links with other social issues and broader cultural patterns linked with anti-narcotic and prohibition experiences of the early 1900's. Initial legislation was attended by no operation of public opinion process.footnote 14 The laws instead generated a I new public image of narcotic use. Its deleterious properties outweighed its uses. In State vs. Bonoa the court said, "alcohol was less injurious than marijuana.”footnote 15 Paternal criminal legislation was reasonable. The compelling state interest of that time period was that marijuana was a physically addicting drug that lead to criminal activity. Violence was one symptom of excessive use. Its use led to pauperism, insanity and vice.footnote 16
footnotes 9 People vs Boyce 1992 592 N.E.2d 501 III. Dec.65, 228 111 App. 3d 87. 10 State of Kansas vs Risjord 1991, 819 P2d 638 249 Kan. 497 11 Printing Industries of Gulf Coast vs. Hill, 382 F. Supp. 801 (DC Tex.) 12 Pennsylvania Barr Ass'n. vs. Com., Pa. Cmwlth. 1992 607 A.2d. 850!3 Cadlin vs. Cadlin Ohio App.S Dis: 1990, 580 N.E.2d 1170. 14 Virginia law review Vol. 56 pg 981 1970 15 Id Virginia pg 1022 16 Id Virginia 1126
7
XV
In the 1930's Henry J. Anslingler, the commissioner of the Federal Bureau of Narcotics asserted that the use of this evil weed led to killings, sex crimes, and insanity. He is credited with an Article titled Marijuana: Assassin of Youth footnote 17 and a movie Reefer Madness. Congress passed the Marijuana Tax act of 1937 which in effect criminalized possession of marijuana. This tax act circumvented property rights. Marijuana was believed to have adverse effects on public health, safety and morals and classified as a narcotic. Over time with more knowledge. it was removed from this category. (See Table I)footnote 18
XVI
In 1973, The National Commission on Marijuana and Drug Abuse recommended the United States take the necessary steps to remove cannabis from the Single Convention on Narcotic Drugs (1961), since the drug does not pose the same social and public health problems associated with opiates and cocoa leaf products.footnote19 This recommendation was ignored by the Federal government. Ten states did decriminalize possession of a usable amount of marijuana.
XVII
In 1969, Maine legislators were "particularly concerned with the sale of marijuana to any of those children, getting to those professional sellers who are selling to children." footnote 20 "There is a serious problem in the area of narcotics concerning our youth and young people." footnote 21 By 1973, legislators were concerned about criminal penalties 'causing unhappiness to many families'. footnote 22 Marijuana is no more harmful when used in moderate degree, than alcohol or tobacco. "Marijuana laws are based on myths of the 1930's and 1940's and not on the result of present day IB scientific studies." footnote 23
footnotes 17 Atlantic Monthly Aug 1994 Vol 274 No.2 pg 18 NORML V DEA 559 F.2d735 (1977) note 70 19 United States v. Maiden335 F. Supp. 745 (1973) 20 Maine legislative record House 6/19/69 pg 3922 21 Maine legislative record House 6/23/69 pg. 4130 22 Maine legislative record House 5/31/73 pg 3544, 23 Maine legislative record House
8
XVIII
The legislature did distinguished conduct that is truly anti social. A crime is conduct that is truly intolerable in present society. Selling Marijuana to children. Law enforcement officers have refused to enforce or have downgrade enforcement of marijuana laws. Decriminalization of simple possession freed them for more important cases, thus by 1 975, marijuana use was dealt as a potential health risk in the long run. Education of the hazards is a greater tool toward the goal of deterrence among young people than criminal penalties. Marijuana is a civil offense envolving a usable amount. (Maine Public Laws 1975 Chapter 499, Section 51.)
XIX
What is the compelling state interest to prohibit the private cultivation and the private trade of marijuana (a non-poisonous, intoxicating plant), by people 21 years or older, and violate fundamental rights to liberty and property? To grow and use marijuana in itself is not a fundamental right. Neither is the use of alcohol or tobacco. Nor is it a fundamental right to own and use a motor vehicle. All are inclusive in the right to acquire and use private property to be protected from unreasonable searches and seizures.
XX
Historically the compelling state interest to totally prohibit marijuana use was to keep it away from teenagers and younger persons. The state has an interest when people operate a motor vehicle under the influence; public use. commercial sale and income tax evasion.
9
Declaratory Relief
Wherefore plaintiff prays that
1. The court enter a declaratory judgment that declares marijuana is a property right and the following to be over broad in their construction and void as being violative of the Constitution of the United States and the Constitution of the State of Maine.
A. Single Convention on Narcotic Drugs.
B. Comprehensive Drug Abuse, Prevention and Control Act of 1970 coded as 21 USCA section 801 el seq.
C. Maine Laws Title 17A Section 1 103, 1 106, and Title 22 Section 2383.
2. The court enter, a declaratory judgment that declares that marijuana a non poisonous intoxicating plant does not adversely effect the user or society directly. The private cultivation for personal private use by people over 20 years old is protected by both United States and Maine Constitutions: This private activity is not within the scope of state interest.
3. The court enter, a declaratory judgment that declares that marijuana a non-poisonous intoxicating plants a property right that does not adversely effect the user or society directly.The private furnishing of a usable amount of marijuana between people over 20 years old is not within the scope of state interest, therefore, the act of furnishing a usable amount of marijuana is protected under both the Maine and Federal Constitutions. 4. The court enter a declaratory judgment that declares marijuana a property right. That the commercial production of marijuana for fiber and seeds or for any commercial application besides intoxication or medicinal uses, is not within the scope of state interest, therefore. protected under both the Maine and the Federal Constitution.
10
5. The court enter a declaratory judgment that declares state interest as follows.
A. Control of public cultivation of marijuana (public defined as anything visible or
accessible to any community member.)
B. Control public use of marijuana.
C. Control public furnishing of marijuana.
D. Control furnishing to people under 21.
E. Control trafficking of marijuana or commercial sale.
F. Restrict driving under the influence.
G. Restrict the use of marijuana by people under 21.
6. The court grant such other and federal relief as may be proper.
Date 95-01-25
Michael J. Dee
P.O. Box 2021 N. Windham. ME 04062
=============================================
2003
Federal Court ORDER Misc. No. 03-06-P-H
UNITED STATES DISTRICT COURT DISTRICT OF MAINE
MICHAEL J. DEE, )
PLAINTIFF )
v. ) Misc. No. 03-06-P-H
UNITED STATES OF AMERICA )
AND STATE OF MAINE, )
DEFENDANTS )
ORDER ON REQUEST FOR PERMISSION TO FILE A PETITION FOR DECLARATORY JUDGMENT AND DECLARATORY RELIEF
On May 26, 1998. in light of his previous frivolous filings. I ENJOINED Michael J. Dee from filing any lawsuits in this Court without prior approval. Dee v. United States. No. 98-CV-37-P-H (D. Me. 1998) (order enjoining plaintiff]. foot note1 He now seeks permission to file a lawsuit challenging the constitutionality of federal and Maine laws concerning growing and possessing personal use quantities of marijuana. It was just such challenges that led to the original injunction.
In one of his earlier cases, Dee had enclosed a marijuana leaf and claimed his fear of prosecution as the basis for standing to bring a declarator}'judgment action. Dee v. Reno, No. 95-CV-29-P-H (D. Me. 1995). I granted judgment to the defendants on the basis that declaratory relief would be inappropriate where there was no threat of law enforcement activities. Id. (order granting motion for
Footnote 1 The final provocation was a lawsuit against President Clinton in which Dee purported to challenge (continued on next page) (continued on next page)
1
summary judgment). The late Judge Brody and I dismissed subsequent similar suits on res judicatagrounds. See Dee v. United States. No. 98-CV-6-P-H (D. Me. 1998); Dee v. Reno, 97-CV-229-P-H (D. Me. 1997): Dee v. Ketterer. No. 96-CV-274-B (D. Me. 1997).
Dee still has presented no credible threat of federal prosecution. Therefore, his proposed lawsuit against federal authorities would be dismissed on res judicata grounds, the very basis on which his last marijuana lawsuit was dismissed. Dee v. Reno, No. 98-CV-6-P-H (D. Me. 1998). I therefore DENY him permission to file his suit against federal authorities challenging the federal law.
Dee has been actually convicted now in state court, however, with the conviction affirmed by Maine's highest court, the Law Court. Dee v. State, No. CTV. A. AP-00-045, 2001 WL 1715844 (Me. Super. Jan. 24, 2001), affd. No. Mem. 01-59 (Me. June 26, 2001) (mem.), cert. denied 122 S.Ct. 1916 (2002) (mem.). What provoked that conviction was Dee's presence in the State House with a marijuana plant. When the Capitol Security Officer asked him to leave the building. "Mr. Dee refused to leave unless Officer Peaslee summonsed him for possession of marijuana." Dee, 2001 WL 1715844, at *1. The officer accommodated Dee. and as a result Dee was convicted despite his constitutional arguments in the Maine district court, superior court and Law Court. Thus, Dee now has standing—Le., he has a credible threat of prosecution, albeit forced foot note 2—to
(footnotes con't) the constitutionality of the Cuba Trade Embargo. Dee v. Clinton, No. 98-CV-37-P-H (D. Me. 1998). foot note 2 Dee also filed a lawsuit challenging the Portland Police Department for refusing to prosecute him. He had been waving a marijuana plant at traffic while standing at Morrill's Corner, a busy intersection in Portland. The police told Dee to stay out of the street or they would arrest him, but (continued on next page)
2
challenge the constitutionality of the Maine laws concerning growing and possessing personal use quantities of marijuana. I conclude, however, that Dee's constitutional challenge is frivolous. As the First Circuit has said,
Even- 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 possession and distribution of marijuana even where such sanctions infringe on the free exercise of religion.
United States v. Rush. 738 F.2d 497, 512 (1st Cir. 1984) (emphasis added). There is no reason to treat a similar state determination any differently, and Maine's highest court has so held: "Maine statutes, \vhich inter alia make unlawful the possession of any usable amount of that scheduled drug . . . represent the legislature's determination that marijuana poses a threat to individual health and social welfare." Rupert v. City of Portland. 665 A.2d 63, 66 (Me. 1992) (emphasis added). The claims Dee wishes to assert against Maine's statute as it applies to personal use of marijuana are based, not on freedom of religion, but on his "fundamental rights to life, liberty and property" under the Fourth. Fifth and Fourteenth Amendments, and allegedly arbitrary enforcement of the state's marijuana law. (Dee provides no detail on the latter, just his ipse dixit, certainly insufficient given his repeated attempts to be prosecuted.) It has long been established that use of marijuana is not a fundamental right protected by the
(footnotes con't) did not arrest or summons him or seize the marijuana plant. Dee claimed in his state lawsuit that the police "violated due process of law by arbitrarily refusing to seize the plaintiffs marijuana and failing to issue him a summons to appear in court for violating" the Maine statute concerning (continued on next page)
3
Constitution. See, e.g., 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). If I were to grant Dee permission to file his lawsuit challenging the state law. I would simply have to dismiss it as frivolous if he then requested leave to proceed in forma pauperis under 28 U.S.C. § 1915(e)(2)(B). If instead he paid the entire filing fee. I would have to dismiss it upon a motion under Fed. R. Civ. P. 12(b)(6). I therefore DENY Dee permission to file his petition challenging Maine law.
So ORDERED.
DATED THIS 29th DAY OF JANUARY, 2003.

D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE
(footnotes con't) marijuana. Dee v. State. No. CIV. A. CV-00-648, 2001 WL 1708834. at *1 (Me. Super. Apr. 12. 2001). The state court dismissed the lawsuit.
4
================================================
PETITION Civil No.Misc. No. 03-06-P-H
UNITED STATES DISTRICT COURT STATE OF MAINE
MICHAEL J. DEE )
Plaintiffs )
) Civil Docket No.
v- )
)
UNITED STATES of AMERICA )
and STATE OF MAINE )
Defendants )
PETITION FOR DECLARATORY JUDGMENT AND DECLARATORY RELIEF Title 28 U.S.C.S.-2201, F.R.C.P. 57
1 Plaintiff makes a claim to the jurisdiction of the Federal District Court which exist pursuant to 28 U.S.C.S. 1331, federal question.
2. Plaintiff claims to be a person residing in Cumberland, County, State of Maine.
3. Plaintiff claims as a right, any person whose rights are affected by a statute may have determined any question of construction or validity arising under the statutes and obtain a declaration of rights.
4 Plaintiff claims to have been prosecuted and convicted for violating 22 MR S A section 2381( i,) (i 992).
5. Plaintiff claims a marijuana plant is property.
6. Plaintiff claims the State of Maine has violated federal fundamental rights by deprivation of this property, a marijuana plant, which is protected from unreasonable seizure under Amendments IV, V and XIV of the Constitution of the United States.
1
7. Plaintiff claims laws that violate fundamental rights are review by the court with strict scrutiny not by the rational basis test.
8. Plaintiff claims the Supreme Court of the United State s requires a compelling state interest or special need to restrict and cause injury to fundamental rights.
9. Plaintiff claims Title 22 M.R.S.A. section 238i(i) (1992) to be unconstitutional.
10. Plaintiff claims that the creation and the enforcement of the Title 17-A M.R.S.A. section 1117(2XD) (effective January 31, 2003, growing 1-5 marijuana plants is a class E crime with penalties up to a year in jail and up to a thousand dollar fine), contravenes fundamental rights to life, liberty and property protected by Amendments IV, V and XIV of the Constitution of the United States and is unconstitutional.
11. Plaintiff claims the State of Maine has made and arbitrarily enforce laws which abridge the privileges or immunities of citizens of the United States because of federal law, the Comprehensive Drug Abuse Prevention and Controlled Substance Act of i 970" encompassed in Title 21 U.S.C. sections SOI- 904,
12. Plaintiff claims marijuana does not meet the safety of use criteria and is arbitrarily classified as a schedule I controlled substance violating due process of law of Amendment V and XIV of the United States Constitution and is unconstitutional.. 13. Plaintiff claims the federal and state governments do not have a compelling state interest or special need to prohibit the possession marijuana and cause injury to fundamental rights to life, liberty and property protected by Amendments IV, V and XIV of the Constitution of the United States.
2
14. Plaintiff claims it is police policy of Portland, Maine and everywhere, to arbitrarily enforce the marijuana laws, violating due process of law and Title 17-A section 17(1) enforcement of civil violations.
15. Plaintiff claims the Constitution does not the prohibit the possession of marijuana.
16. Plaintiff claims to put people in jail for political reasons is cruel and unusual punishment under Amendment VIII of the United States Constitution. ( not in original)
PRAYER FOR RELIEF
Wherefore, defendant request this court for the following relief:
17. Enter a judgment declaring no adequate justification exists for government intrusion into a citizen's liberty the right to acquire and possess this property by prohibiting the possession of marijuana by an adult for personal consumption in the home and thus possession of marijuana by adults at home for personal use is protected. by the United States Constitution Amendments IV, V, and XIV.
18. Enter a judgment declaring the federal law Comprehensive Drug Abuse Prevention and Controlled Substance Act of 1970” encompassed in Title 21 U.S.C. sections 801- 904, arbitrarily classifies marijuana as a schedule I controlled substance violating due process of law and is unconstitutional.
19. Enter a judgment declaring Maine laws 22 M.R.S.A. section 2381(1) (1992) (possession of a usable amount of marijuana) and Title 17-A M.R.S.A. section 1117(2)(D) (cultivation 1 to 5 marijuana plants) unconstitutional.
Dated: January 10, 2003
MICHAEL J. DEE, pro se PO Box 2021, Windham, Me. 04062 207-893-0287
==========================================
PETITION TO RECONSIDER ORDER Misc. No. 03-06-P-H
UNITED STATES DISTRICT COURT DISTRICT OF MAINE
MICHAEL J. DEE )
Plaintiff )
V )
)
UNITED STATES OF AMERICA, ) Misc. No. 03-06-P-H
And STATE OF MAINE )
)
Defendants )
PETITION TO RECONSIDER ORDER ON REQUEST FOR PERMISSION TO FILE A PETITION FOR DECLARATORY JUDGMENT AND DECLARATORY RELIEF
The court does not want to admit that marijuana is property and property is protected from unreasonable seizure, a fundamental right. The government seizes marijuana, because possession of marijuana is not a fundamental right. The government puts people in jail, because marijuana is not a fundamental right. The courts issues search warrants to authorize the police to invade our homes, because marijuana is not a fundamental right. The courts do not want to admit that criminal laws affect fundamental rights.
"Legislation that does not affect a "fundamental" right or a "suspect" class need only bear a rational relationship to a legitimate state interest. Wolkind v. Selph 495 F. Supp. 507, 509).
Every federal court has used this rational basis test and accepted congressional determination that marijuana in fact poses a real threat to individual health and social welfare. "Much evidence has been adduced from which it might rationally be inferred that
1
marijuana constitutes a health hazard and a threat to social welfare." "Congress has weighed the evidence and reached a conclusion which it is not this court's task top review de novo." United States v. Rush. 738 F.2d 487, 512 (1st Cir. 1984). "In short, the judiciary may not sit as a super legislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed on suspect lines...."' Id. At 510 citing New Orleans v. Duke. 427 U.S. 297, 303, 96S.Ct. 2513, 2517.
Every federal court has declared the possession of marijuana is not a fundamental right guaranteed by the Constitution.
Judge Hornby has claimed I have filed frivolous law suits claiming marijuana to be a fundamental right. Frivolous meaning with little weight or importance, unworthy of serious attention, trivial, inappropriate, having no sound basis as in fact and in law.
I have never claimed marijuana to be a fundamental right. Judge Hornby continues (to) says I do make this claim. There is difference claiming marijuana to be a fundamental right and claiming the marijuana laws threaten, violate, contravene, affect fundamental rights.
I have claimed that marijuana laws cause injury fundamental rights to life, to liberty, to property and to privacy guaranteed by the 4th, 5th and 14th Amendments. Marijuana laws affect our rights You do not have to be a lawyer to know being arrested violates your liberty. A search warrant for marijuana affects fundamental rights to privacy.
It is a fact, marijuana is property and property is protected from unreasonable seizure, a fundamental right. In the government's war against Cuba, the Congress of the United States declares: "Individuals enjoy a fundamental right to own and enjoy property
2
which is enshrined in the United States Constitution. Cuban Trade Embargo Title 22 U.S.C. section 6081 (1). (emphasis added) The right to property is a fundamental right protected by both the State and Federal Constitutions. Buskey v Town of Hanover, 1990. 577 A.2d 406, 133 NH 318. Private property is held subject to implied condition that its use will not injure or impair public interest State of Maine v. Lewis 406 .2d 886 ME. (1979)
It is a fact the State of Maine has affected my fundamental rights by depriving me of my property, a marijuana plant.
Amendment IV "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated...." Amendments V and XIV "No person shall be deprive of life, liberty and property without due process of law....", Maine Constitution, Article I Declaration of Rights section 1 "All men are created equally free and independent and have certain natural rights, inherent and unalienable rights among which are those of enjoying and defending life, liberty and acquiring, and possessing and protecting property and pursuing and obtaining safety and happiness." . (emphasis added)
Where certain fundamental rights are involved, regulation limiting these rights may be justified only by a compelling state interest and the legislative enactments must be narrowly drawn to express only legitimate state interest. Roe v Wade 93 S.Ct. 705 (1973) The type of review required by the court is called strict scrutiny. The judiciary sits as a super legislature to judge the wisdom or desirability of legislative policy determinations made in areas that affect fundamental rights. Where there is a significant encroachment upon personal liberty, the state may prevail only upon showing a subordinating interest which is compelling. Ravin v State Of
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Alaska, (1975) 537 P.2d. 494, 497 citing Bates v Little Rock, 361 U.S. 516, 524, 80 S.Ct. 412,417(1960).
"In the absence of a compelling justification, the police power does not extend so far as to permit the government to protect an individual against himself and that the concern for public health and safety is relevant only in so far as the action of one individual may threaten the well being of others." United States v Kiffer 477 F.2d 349 (1973)) at 354.
Congress does not have a compelling interest to "affect" fundamental rights because marijuana is arbitrarily classified as a controlled substance. There is accepted safety for use of marijuana under medical supervision. To conclude otherwise would be unreasonable, arbitrary and capricious. Fourteenth Amendment legitimately operates to extend to citizens and residents of states same protection against arbitrary state legislation affecting life, liberty, and property as is offered by Fifth Amendment against similar legislation by Congress. Hibben v Smith (1903)191 US 310, 48 L.Ed 195, 24 S,Ct.88.
The court is being arbitrary, telling me that I have to arrested and prosecuted to have standing to question the federal classification of marijuana as a schedule I drug. Declaratory judgment is access to judicial determination of rights is prior to law enforcement activities, prior to being prosecuted.
"Declaratory judgment relieves a party from acting at his or her peril while uncertain of his or her legal rights because another party has yet to bring a course of action. The threat of prosecution is real and immediate. As long as the statutes are on the books and compliance there with being coerced by threat of enforcement, the controversy as to the validity of the Acts are both immediate and real. Lake Carriers' Asso. v MacMullan ( 1972) 406 U.S. 498, 92 S.Ct. 1749.
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"Declaratory Judgment action is designed precisely to give one potentially a defendant in a prosecution, access to judicial determination prior to actual prosecution when facts indicate a sufficient basis for his belief that the conduct he deems protected under the constitution will subject him to such prosecution." Zwicker v Koota D.C.N.Y. (1967) 389 U.S. 241, 88 S.Ct. 391: 394 U.S. 103, 89 S.Ct. 956.
The court is being arbitrary permitting law enforcement official to arbitrarily enforce the marijuana laws which could be good for owner of the marijuana. The rule is, if the law is not being applied to one it should not be applied anyone. Rules Civil Procedure. No. 23fb)(2), "The party opposing the class has refused to act generally applicable to the class, there by making appropriate declaratory relief with respect to the class as a whole".
"Defendants who opposed the class have acted or refused to act on grounds generally applicable to the class in that they have generally attempted to enforce facially a defective statute with procedures violating due process and intended to pursue such a course in the future so that final declaratory relief respecting the class as a whole is proper. Kilfoyle v Hevison (1976 WDPa) 417 F Supp 239.
Due process of law within the meaning of the 14th Amendment is secured if laws operate on all alike and do not subject individual to arbitrary exercise of powers of government. Missouri P.R. Co.v Mackey (1888) 127 U.S. 205, 32 L.Ed 107, 8 S.Ct. 1161; Minneapolis & S.L.R. Co. v Henick (1888). 127 U.S. 210, 8 S.Ct. 1176: Leeper v. Texas (1891) 139 U.S. 462, 11 S.Ct. 577; Giozza v Tiernan(1893) 148 U.S. 657, 13 S.Ct.721; Duncan v Missouri (1894) 152 U.S. 377, 14 S.Ct. 570.
Once again this court misrepresent the facts and the law and I ask the court to reconsider and give permission to file a petition for declaratory judgment and declaratory relief against the United States and State of Maine.
Dated February 6, 2003
Michael J. Dee
PO Box 2021 Windham, ME 04062 207-893-0287
========================================
Petition to Reconsider Order Denied MISC. NO. 03-6-P-H
OFFICE OF THE CLERK
United States District Court
DISTRICT OF MAINE
www.med.uscourts.gov
WILLIAM S. BROWNELL ^ Edward T. Gignoux Courthouse
CLERK 156 Federal Street, Room 102
Portland, Maine 04101 (207)780-3356
| | Margaret Chase Smith Courthouse
P.O. Box 1007 Bangor, Maine 04402 (207)945-0575
February 7, 2003
TO: ALL COUNSEL OF RECORD
RE: MICHAEL J. DEE v. USA, et al. . MISC. NO. 03-6-P-H
Dear Counsel:
Please be advised that by endorsement dated February 6, 2003, Judge Hornby denied your Petition to Reconsider Order on Request for Permission to File a Petition for Declaratory Judgment & Declaratory Relief. Said endorsement was this date entered on the docket.
Sincerely,
Susan L. Hall Case Manager
====================================================
2004
Federal Court ORDER Misc. No. 04-33-P-S
OFFICE OF THE CLERK , United States District Court, DISTRICT OF MAINE
WILLIAM S. BROWNELL, CLERK
Edward T. Gignoux Courthouse 156 Federal Street, Room 102 Portland, Maine 04101 (207)780-3356
April 27, 2004
TO: MICHAEL J. DEE
RE: MISC. NO. 04-33-P-S
Dear Mr. Dee: Please be advised of the following endorsement made April 26, 2004, by Chief Judge Singal upon your request for leave to file a Petition for Delcaratory Judgment and Declaratory Relief under the caption of DEE v. USA & STATE OF MAINE:
Request to file D.J. denied. The request & proposed D.J. is frivolous. Said endorsement was this date entered upon the docket.
Sincerely,
WILLIAM S. BROWNELL, CLERK
By Susan L. Hall, Case Manager
===================================
The Request No. 04-33-P-S
Honorable George Z. Singal
Chief Judge Federal District Court
156 Federal St. Portland, Maine 04101
Dear Judge Singal,
I have been order by Judge D. Brock Hornby to request an order from the Maine Federal District Court to file any papers for Declaratory Judgment. (Civil No. 98-37-P-H dated May 26,1998).
Sir, for you to give such an order, you will have to acknowledge that there exist a justiciable controversy. You would have to acknowledge that Federal and State marijuana statutes do "affect" fundamental rights protected by Amendment IV.
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
You would have to acknowledge the fact that marijuana is a personal effect, a possession i.e. property, subjected to seizure, and an object of a search warrant. As Amendment IV implies, a court ordered search warrant does violate the right of the people to be protected from unreasonable searches and seizures.
The State of Maine has seized my property, a marijuana plant, prosecuted me, found me guilty and deprived me of monetary property, for violating 22 M.R.S.A. § 2381(1) (1992). The Maine courts have claimed the possession of a useable amount of marijuana is not a constitutional right. This has demeaned the fundamental right affected by the marijuana law, protection against unreasonable government intrusion.
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Today, it is a criminal offense to grow a useable amount of marijuana Title 17-A M.R.S.A.§1 17(2)(D). "The stigma is not trivial although the offense is but a minor misdemeanor, it remains a criminal offense, with all that imports for the dignity of the persons charged, including notation of convictions on their records and on job application forms."
Sir, you would have to acknowledge the court must review the constitutionality of the marijuana laws by strict scrutiny not by rational scrutiny. That being arrested for political reasons violates due process of law and denies equal justice under the law.
To recognize, that under substantive due process of law, the federal government must prove marijuana is not safe to use under medical supervision to violate rights protected by Amendment IV. The government must prove marijuana is a drug that has deleterious properties that are "addicting, mind- destroying, productive of crime and insanity". The government must "demonstrably justify" that adult marijuana users are an imminent threat to themselves, to public safety and welfare to restrict free will, to prohibit freedom of choice, to make second class citizens of marijuana users. That prohibition, not the use of marijuana, has been a greater threat to public safety and welfare.
Acknowledging these facts, You are obligated to uphold the Constitution and grant my request for permission to file the attached Declaratory Judgment petition. Denial is simply arbitrary power.
Dated: April 19, 2004
Sincerely,
 Michael J. Dee
P.O. Box 2021
Windham, Maine 04062
207-893-0287
Proposed D.J.No. 04-33-P-S
UNITED STATES DISTRICT COURT STATE OF MAINE
MICHAEL J. DEE )
Plaintiff )
V. )
) Civil Docket No.
UNITED STATES of AMERICA )
and STATE OF MAINE )
Defendants )
PETITION FOR DECLARATORY JUDGMENT AND DECLARATORY RELIEF
Title 28 U.S.C.S.-2201, F.R.C.P. 57
1. Plaintiff makes a claim to the jurisdiction of the Federal District Court which exist pursuant to 28 U.S.C.S. 1331, federal question.
2. Plaintiff is a person residing in Cumberland County, State of Maine.
3. Plaintiff claims as a legal right, any person whose rights are "affected by a statute" may have determined any question of construction or validity arising under the statutes and obtain a declaration of rights.
4. Plaintiff claims as a right to know what the compelling state interest is, to proscribe marijuana and affect rights guaranteed by Amendments IV, V, and XIV.
5. Plaintiff claims at the Capitol Building in February, 2000, the State of Maine seized personal "effects", a marijuana plant, soil and container. Plaintiff was prosecuted, found guilty and was deprived of monetary property, for violating 22 M.R.S.A. § 2381(1) (1992).
6. Plaintiff claims the seizure of personal property by the use of police power violated protection guaranteed against unreasonable seizure by Amendment XTV.
7. The State of Maine, on January 31,2003, put into effect a criminal law affecting
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Amendments IV privileges or immunities guaranteed by Amendment XTV. Title 17-A M.R.S.A.§117(2)(D) prohibits growing 1-5 marijuana plants with the threat of imprisonment.
8. A search warrant to look for marijuana infringes upon the right against unreasonable searches and seizures guaranteed by Amendments IV, V and XTV.
9. The threat of being arrested for growing marijuana for private non commercial use infringes upon the rights guaranteed by Amendments IV, V and XTV.
10. The federal and state governments do not have a legitimate compelling state interest to prohibit the possession of marijuana and infringe upon the people's rights to life, liberty and property guaranteed by Amendments IV, V and XTV of the United States Constitution.
11. Marijuana is arbitrarily classified by the United States Congress as a controlled substance. Marijuana does not meet the three criteria of each of the five schedules to be classified as a controlled substance violating due process of law.
12. Marijuana does not have deleterious properties that are addicting, mind destroying, productive of crime and insanity, that cause marijuana users to be an imminent threat to themselves and to public safety and welfare.
13. Claiming the possession of marijuana is not a fundamental right demeans the "rights" protected by Amendment IV, V and XIV.
14. Plaintiff claims the police use of arbitrary power in the enforcement of the marijuana laws violates due process of law, demonstrates the proscription of marijuana is unreasonable.
DECLARATORY RELIEF
Wherefore, defendant request this court for the following relief:
15.Enter a judgment declaring the Congress of the United States arbitrarily classifies marijuana as a controlled substance violating due process of law and is unconstitutional. [Comprehensive Drug Abuse Prevention and Controlled Substance Act of 1970" encompassed in Title 21 U.S.C. sections 801- 904]
16. Enter a judgment declaring no adequate justification exists for government intrusion into a citizen's life to prohibit the acquiring and possession of marijuana by an adult for private non public use Therefore the right the liberty to acquire and possess of marijuana is protected from government intrusion by Amendments IV, V, and XTV of the United States Constitution.
17. Enter a judgment declaring Maine laws 22 M.R.S.A. § 2381(1) (1992) (possession of a usable amount of marijuana) and Title 17-A M.R.S.A. § 1117(2)(D) (cultivation 1 to 5 marijuana plants) are overbroad and unconstitutional.
Dated: April 19,2004
 MICHAEL J. DEE,
pro se PO Box 2021,
Windham, Me. 04062
207-893-0287