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)
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summary judgment). The late Judge Brody and I dismissed subsequent similar suits on res judicata grounds. 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)
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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)
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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
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.
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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.
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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
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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
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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
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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
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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