MSJC -CUM-07-405 - UnReasonable Seizure Marijuana

Five members Maine Supreme Judicial Court 2006-09-25

Chief Justice 2nd from left.

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STATE OF MAINE SUPREME JUDICIAL COURT

LAW DOCKET No. CUM-07-405

BRIEF AND APPENDIX OF APPELLANT

BRIEF OF APPELLEE STATE OF MAINE

MEMORANDUM OF DECISION

MOTION FOR RECONSIDERATION

ORDERED motion DENIED

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STATE OF MAINE SUPREME JUDICIAL COURT

CUMBERLAND, ss.

SITTING AS THE LAW COURT

LAW DOCKET No. CUM-07-405

MICHAEL J. DEE Plaintiff-Appellant

STATE OF MAINE

Defendant-Appellee

On Appeal from the Cumberland County Superior Court, Portland

BRIEF AND APPENDIX OF APPELLANT

MICHAEL J. DEE

PO Box 2021 Windham, ME. 04062

207-893-0287

TABLE OF CONTENTS PAGE

TABLE OF AUTHORITIES................................................................................................................................ ii STATEMENT OF THE FACTS OF THE CASE................................................................................................. 1 STATEMENT OF ISSUES................................................................................................................................ 2 ARGUMENT..................................................................................................................................................... 3 Summary………………………………............................................................................................................... 3 Appellant’s Right to Property is Fundamental not Frivolous…………….......................................................… 4 Amendment IV is Fundamental not Frivolous…………………………...............................................…............ 5 State Police Power………………………………................................................................................................ 6 Due Process of Law is Fundamental not Frivolous…………….......………......................................….......….. 8 Judicial Review………………………………...................................................................................................... 9 RELIEF.......................................................................................................................................................... 10 CERIFICATE OF SERVICE……………………………….................................................................................. 12 APPENDIX...................................................................................................................................................... 13 DOCKET RECORD………………………………............................................................................................. A-1 JUDGMENT………………………………......................................................................................................... A-5 APPELLANT’S COMPLAINT………………………………............................................................................... A-12 APPELLEE’S ANSWER TO COMPLAINT……( not included here)...........….............................................… A-16

TABLE OF AUTHORITIES

Cases PAGE

Ashwander v. TVA, 297 U.S. 288, (1936)…………………………….................................................................. 10 Bates v. Little Rock, 361 U.S. 516 (1960)………..........................................…………………….....…...……....... 8 Boyd v. United States, 116 U.S. 616 (1886)………..........................................……………………...................... 9 Carey v. Piphus, 435 U.S. 247 (1978)…………………...........................................…………..... .………....….…. 9 Fuentes v. Shevin, 407 U.S. 67 (1972)…………………..........................................………….............................. 4 Graham v. Connor, 490 U.S. 386 (1989)……………................................................…………….……................. 6, 10 Griswold v. Connecticut, 381 U.S. 479 (1965)…......................................………………………… ................., 9 Liggett Co. v. Baldridge, 278 U.S. 105.(1928). ……...........................................………………….….….......…. 7, 9 Loving v. Virginia, 388 U.S. 1 (1967)…………………..........................................………….................................. 7 Lynch v. Household Finance Corp, 405 U.S. 538 (1972)…..........................................……………........….…..... 5 McLaughlin v. Florida, 379 U.S. 184 (1964)………....…………........................................................................... 8 Moore v. East Cleveland, 431 U.S. 494 (1977)………..........................................…………………….........…...... 9 Nebbia v. New York, 291 U.S. 502 (1934) ……………. ...........................................………………….......……. 5, 9 Olmstead v. United States, 277 U.S. 438 (1928)…………...........................................….…………......…..……... 7 Panhandle Eastern Pipeline Co. v. Highway Comm'n., 294 U.S. 613 (1935). ......................................................7 Poe v. Ullman, 367 U.S. 497 (1961) .………………………................................................................................... 8 Ravin v. State of Alaska, 537 P. 2d 494, 503 (1975)..…….............................................…………….…............... 8, 9 Roe v. Wade, 410 U.S. 113 (1973)........................................………………………….. ……………..….....…..… 8 Scott v Sanford, 60 U.S. 393, (1857)…………………………..........................................………............................ 5 Silverman v United States, 365 U.S. 505 (1961)……………………………............................................................ 5 Slaughter-House Cases, 83 U.S. (16 Wall) 36 (1873)…............................................... …................................... 8

PAGE PAGE Soldal v. Cook County, 506 U.S. 56, (1992)…………………….……..…........................................................ 4, 10 State of Maine v Barclay, 398 A.2d 794 Me. (1979)………....................................…………….......…….…......... 6 Terry v. Ohio, 392 U.S. 1 (1968)…………………………....................................…......................................... 6, 10 United States v. Jacobsen, 466 U.S. 109 (1984)……….....................................…….......………….…….....…..... 6 West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943)….............................................…………..... 4 Wyoming v. Houghton 526 U.S. 295 (1999)…………………………….................................................................. 6

Constitution of the State of Maine

Art. IV, pt 3, § 1.…………………...….................................................................................................................... 7

Constitution of the United States Amendment IV……………………………....…............................................................... 1, 2, 3, 4, 5, 6, 7, 9, 10, 11 Amendment V……….................................................................................................................. 1, 2, 3, 4, 8, 9, 11 Amendment XIV……………………….….…........................................................................................................... 1

Maine Statutes 14 M.R.S.A. § 5953-54………...............................…...................................………....................................... 1, 10 17-A M.R.S.A. § 1117(2)(D), ………..…..…..........................................................….............. 1, 2, 3, 9, 10, 11, 12 22 M.R.S.A. § 2383-(1)…………………..…...............................................................….......... 1, 2, 3, 9, 10, 11, 12

Federal Statute

Title 22 U.S.C.§ 6081 “Cuban Trade Embargo”…………………………..................................................................................................................….... 4

Iii

STATEMENT OF THE FACTS OF THE CASE

Growing marijuana is a criminal offence. Cmplt. ¶8 (A-13). Criminal laws create a justiciable controversy. Marijuana is subject to seizure and is an object of a search warrant.

Jurisdiction to review this case and controversy is conferred on the court pursuant to Title 14 M.R.S.A. 5953 -54, Declaratory Judgment and by Amendments IV and V, made applicable to the State of Maine by Amendment XIV, of the Constitution of the United States.

Appellant questions the construction and validity of the Maine marijuana laws Titles 22 M.R.S.A. § 2383(1) and 17-A M.R.S.A § 1117 (2)(D) that have caused and threatened injury to his rights to liberty and property protected from unreasonable government regulation. Cmplt. ¶ 1, 6, 7.(A-12, 13).

For over 14 years in Maine courts, Appellant has claimed marijuana is property and protected from unreasonable searches and seizure. The marijuana laws are unreasonable regulations of liberty and property.

Appellant claims making it a crime to grow a usable amount of marijuana is an intrusive regulation that is unjustified, unreasonable, and unnecessary and must be deemed a violation of Amendments IV and V of the Constitution of the United States. Cmplt. ¶ 10,12, 15.(A-13, 14). The State of Maine denies marijuana is an object of a search warrant and subject to seizure. Answer to Cmplt. ¶ 4. (A-16). The State of Maine claims marijuana is not property. Answer to Cmplt ¶ 5. (A-16).

In Appellant’s Opposition to Defendant’s Cross-Motion for Judgment on the Pleadings, Dee asked the Superior court to review these laws, 22 M.R.S.A. § 2383(1) and 17-A M.R.S.A § 1117 (2)(D, by the reasonableness standard of Amendment IV of the United States Constitution on page 13. Superior court Justice Crowley granted the State of Maine’s cross-motion for judgment on the pleadings on June 25, 2007. “Simply put, usage of marijuana has not been recognized as a fundamental constitutional right. Dee’s challenge, therefore, is subject only to rational review.” pg. 5 (A-9) Notice of appeal was filed on July 7, 2007.

STATEMENT OF ISSUES

Whether criminal laws create a justiciable controversy.

Whether marijuana is property.

Whether the State of Maine has a legitimate state interest in criminalizing the private growing and possession of marijuana..

Whether criminalizing the private growing of marijuana is deprivation of liberty and property without due process of law.

Whether the Superior Court of Cumberland County erred by reviewing 22 M.R.S.A. § 2383(1) and 17-A M.R.S.A § 1117 (2)(D) by rational review and not the reasonableness standard of Amendment IV of the United States Constitution.

Whether the judiciary claiming marijuana is not a fundamental right and to continue to review 22 M.R.S.A. § 2383(1) and 17-A M.R.S.A § 1117 (2)(D) by the rational basis test is repugnant to due process of law.

Whether the judicial review of criminal laws by “rational review” is deprivation of rights under the color of law. Whether criminalizing the private growing and use of marijuana is reasonable government regulation of liberty and property rights or repugnant to Amendments IV and V to the Constitution of United States.

ARGUMENT

Summary

Criminal laws are a justiciable controversy. The enforcement of criminal laws is physically intrusive governmental conduct. Due process of law requires criminal laws to be reasonable, to be justified, and necessary. The standard of review of 22 M.R.S.A. § 2383(1), a civil offence, and 17-A M.R.S.A § 1117 (2)(D), a criminal offence, must be the reasonableness standard of the Fourth Amendment.

The use of state police power is to protect the rights of others. There is no reasonable justification, posing a substantial threat to public health and safety, to criminalize the private growing of a useable amount of marijuana. The private cultivation and use of marijuana by the appellant does not affect the rights of others. The possession of a marijuana plant in the State Capitol Building in February 2000, did not create an imminent threat to public heath and safety. The State of Maine has no factual evidence showing a real and substantial relation to public health and safety to justify criminalizing the private growing and use of marijuana. Therefore, without justification, the State of Maine violates due process of law

by criminalizing the private growing and possession of marijuana.

Appellant’s Right to Property is Fundamental not Frivolous

“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.

Marijuana is property. Appellant has been deprived of his property. Cmplt ¶ 6, 7. (A-13).

"One's right to life, liberty, and property……may not be submitted to vote; they depend on the outcome of no elections.” West Virginia Board of Education v. Barnette, 319 U.S. 624, 638 1943.

Supreme Court “cases … hold that seizures of property are subject to Fourth Amendment scrutiny even though no search within the meaning of the Amendment has taken place.” Soldal v. Cook County, 506 U.S. 56, 68 (1992).

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.

“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, 552 (1972).

“[T]he 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 Maine], whether it be legislative, executive, or judicial, has a right to draw such a distinction or deny to it the benefit 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. 393, 451 (1857).

Legislative “authority to abridge [plaintiff’s 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 York, 291 U.S. 502, 543; 54 S.Ct. 505, (1934).Emphasis added.

Amendment IV is fundamental not Frivolous

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.” Emphasis added. Amendment IV does not say irrational “searches and seizures.” “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). “The heart of the Fourth Amendment … is a severe requirement of specific

justification for any government intrusion upon protected personal security.” Terry v. Ohio, 392 U.S. 1, 11 (1968). Emphasis added. 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). Seizure “of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.” The “Fourth Amendment provides an explicit textual source of constitutional protection against … physically intrusive governmental conduct … must be the guide for analyzing [Appellant’s] claims.” Graham v. Connor, 490 U.S. 386, 395 (1989).

“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. 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).

. “A ‘search’ occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.” United States v. Jacobsen, 466 U.S. 109, 113 (1984) Even thou marijuana possession can only give rise to civil violation it is a legitimate object of a search warrant and if found can be seized and confiscated. State of Maine v Barclay, 398 A.2d 794 Me. (1979).

“The makers of our Constitution … 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). Emphasis added.

State Police Power

“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). Emphasis added.

The Maine Constitution does not say: “The Legislature … shall have full power to make and establish all” rational “laws and regulations.” Me. Const. Art. IV, pt 3, § 1.

“Criminal statutes [must] be subjected to the most rigid scrutiny … 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).

“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 (1928).

State “police power which trenches upon the constitutionally protected freedom …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 U.S. 184, 196; 85 S.Ct. 283, 290 (1964); Griswold v. Connecticut, 381 U.S. 479, 497, 85 S. Ct. 1678 (1965); Ravin v. State of Alaska, 537 P. 2d 494,.497 (1975). Emphasis added.

“ ‘Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling.’” 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); Ravin v. State of Alaska, 537 P. 2d 494, 497 (1975).

“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).

Due Process of Law is Fundamental not Frivolous

“[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). “Due process…has represented the balance …[between] the liberty of the individual …and the demands of organized society.” Poe v. Ullman, 367 U.S. 497, 542 (1961). “[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; 54 S.Ct. 505 (1934). 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.” Cary v Piphus, 435 U.S. 247, 259; 98 S Ct. 1042(1978). Emphasis added.

“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).

“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] property without due process of law.” Liggett Co. v. Baldridge, 278 U.S. 105, 111; 49 S. Ct. 57, 59 (1928). Emphasis added.

Judicial Review

Making it a “crime” to 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).

Appellant claims the validity of 22 M.R.S.A. § 2383(1) and 17-A M.R.S.A § 1117 (2) (D) 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).

“Reasonable under the Fourth Amendment requires a careful balancing of ‘the nature and quality of the intrusion on the individual's Fourth Amendment interests' against the countervailing governmental interests at stake.” Graham v. Connor, 490 U.S. 386, 396 (1989).

“[T] he central inquiry under the Fourth Amendment … 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).

This “case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction”. ‘“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 the 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, 347, 348; 56 S.Ct. 466, 472 (1936).

RELIEF

Appellant ask this Court for a declaration of rights under 14 M.R.S.A. 5953-54.

Appellant asks this court to declare the judicial review of 22 M.R.S.A. 2383(1) and 17-A M.R.S.A. § 1117(2)(D) is the reasonableness standard of the 4th Amendment not rational review. For this reason, Justice Crowley decision must be overturned and the State of Maine’s Cross Motion for Judgment on the Pleading must be denied. Appellant asks this court to declare the private growing and private possession of

marijuana does affect the rights of others.

To declare the criminalizing the private growing of marijuana is unreasonable deprivation of liberty and property without due process of law

To declare Maine Statues 22 M.R.S.A. § 2381(1) possession and 17-A M.R.S.A § 1117(2)(D) growing marijuana, are unjustified therefore unreasonable and contravened the Appellant’s Amendment IV right to be secure from unreasonable searches and seizures and therefore unconstitutional. To declare the Maine Statues, 22 M.R.S.A. § 2381(1) (1992) and 17-A M.R.S.A § 1117(2)(D), are not narrowly drawn and are merely rationally related to the accomplishment of a permissible state policy and therefore violates “due process of law” of Amendment V, therefore unconstitutional. To declare the Appellant has Constitutional protection from unreasonable government intrusion to privately grow and possess marijuana within the State of Maine.

Dated: August 25, 2007

MICHAEL J. DEE, pro se, P.O. Box 2021

786 Roosevelt Trail

Windham, Me. 04062 207-893-0287

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12 APPENDIX

Table of Contents

DOCKET RECORD………………..........................................................………………....................................... A-1 JUDGMENT………………………………............................................................................................................. A-5 APPELLANT’S COMPLAINT……………………………….................................................................................. A-12 APPELLEE’S ANSWER TO COMPLAINT…………………………..............................................................…… A-16

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BRIEF OF APPELLEE STATE OF MAINE

MAINE SUPREME JUDICIAL

COURT SITTING AS THE LAW COURT

MICHAEL J. DEE

Plaintiff—Appellant

vs.

STATE OF MAINE

Defendant—Appellee

On Appeal from an Order of the Cumberland County Superior Court

BRIEF OF APPELLEE STATE OF MAINE

G. STEVEN ROWE ATTORNEY GENERAL
William R. Fisher
Assistant Attorney General
Bar No. 3328
Six State House Station
Augusta, Maine 04333-0006
(207) 626-8504
william.r.fisher@maine.gov

TABLE OF CONTENTS

Page
TABLE OF CONTENTS.................................................................................................................................................................................... i

TABLE OF AUTHORITIES ...............................................................................................................................................................................ii

STATEMENT OF THE CASE ...........................................................................................................................................................................1

A. Statement of Facts with Record Citations ...............................................................................................................................................1

B. Procedural History , .....................................................................................................................................................................................6

STATEMENT OF THE ISSUES .......................................................................................................................................................................9

STANDARD OF REVIEW .................................................................................................................................................................................9

ARGUMENT .....................................................................................................................................................................................................10

I. MAINE RESIDENTS DO NOT HAVE A FUNDAMENTAL
CONSTITUTIONAL RIGHT TO POSSESS, USE, OR CULTIVATE
MARIJUANA FOR PERSONAL USE ............................................................................................................................................................10

A.Maine's Marijuana Laws,22M.R.S.A. § 2383(1) and 17-A
M.R.S.A. § 1117(2)(D), Are Constitutional Under The
"Rational Review" Standard.......................................................................................................................................................................... 11

II. THE DOCTRINE OF RES JUDICATA BARS DEE'S CLAIMS
BECAUSE HE HAS OR COULD HAVE LITIGATED THE
CONSTITUTIONALITY OF THESE STATUTES IN HIS PRIOR
CASES ..............................................................................................................................................................................................................14

CONCLUSION ................................................................................................................................................................................................16

CERTIFICATE OF SERVICE .........................................................................................................................................................................17

TABLE OF AUTHORITIES

CASES

Allen v. McCurry,
449 U.S. 90(1980) .............................................................................................................................................................................................15

Aponte-Torres v. Univ. ofP.R.,
445 F.3d 50 (1st Cir. 2006) ...............................................................................................................................................................................9

Beegan v. Schmidt,
451 A.2d 642 (Me. 1982) ............................................................................................................................................................................14, 15

Camps v. Newfound/Owatonna v. Harrison,
1998 ME 20, 705 A.2d 1109 .............................................................................................................................................................................14

Cline v. Maine Coast Nordic,
1999 ME 72, 728 A.2d 686 ............................................................................................................................................................................14, 15

Dee v. United States,
241 F. Supp. 2d 50 (D. Me. 2003) ..........................................................................................................................................................1, 2, 5, 11

Dee v. Maine,
535 U.S. 1057(2002) ..............................................................................................................................................................................................5

Dee v. State,
No. Mem-02-1 (Jan. 16, 2002) ..............................................................................................................................................................................5

Dee v. State of Maine,
2001 Me. Super. LEXIS 59 (Apr. 10, 2001) ..........................................................................................................................................................4

Dee v. State,
2001 Me. Super. LEXIS 14 (Jan. 24, 2001) ..................................................................................................................................................3, 10

Dee v. State of Maine,
No. Mem-00-132 (Oct. 27, 2000) ..........................................................................................................................................................................3

Dee v. Attorney General,
No. Mem-99-59 (Apr. 30, 1999) .................................................................................................................................................................2, 4, 10

Dee v. Clinton,
No. 98-CV-37-P-H (D. Me. 1998) ..........................................................................................................................................................................2

Dee v. Ketterer,
No. 96-CV-274-B (D. Me. 1997) ...............................................................................................................................................................................2

Dee v. Reno et al,
519 U.S. 873(1996) ..............................................................................................................................................................................................1

Dee v. Reno et al.,
519 U.S. 1001(1996) ...........................................................................................................................................................................................1

Dee v. Reno & Ketterer,
82 F.3d 403 (1st Cir. 1996) .....................................................................................................................................................................................1

Dee v. Reno et al,
No. 95-CV-29-P-H (D. Me. 1995) ........................................................................................................................................................................1

Department of Human Serv. v. Comeau,
663 A.2d 46 (Me. 1995) .........................................................................................................................................................................................15

H.E. Sargent, Inc. v. Town of Wells,
676 A.2d 920 (Me. 1996) .......................................................................................................................................................................................10

In re Colonial Mortg. Bankers Corp.,
324 F.3d 12 (1st Cir. 2003) ....................................................................................................................................................................................10
In re Kaleb D.,
2001 ME 55, 769 A.2d 179 .....................................................................................................................................................................................14
Kradoska v. Kipp,
397 A.2d 562 (Me. 1979) .........................................................................................................................................................................................15
Kuromiya v. United States,
37 F. Supp. 2d 717 (D. Pa. 1999) ..........................................................................................................................................................................11
Machias Sav. Bank v. Ramsdell,
1997 ME 20, 689 A.2d 595 ...............................................................................................................................................................................14, 15
National Hearing Aid Centers, Inc. v. Smith,
376 A.2d 456 (Me. 1977)......................................................................................................................................................................................... 12
NORML v. Bell,
488 F. Supp. 123 (D.D.C. 1980) ............................................................................................................................................................................11
Perry v. H. O. Perry & Son, Co.,
1998 ME 131, 711 A.2d 1303 .................................................................................................................................................................................14
Ramos-Pinero v. Puerto Rico,
453 F.3d 48 (1st Cir. 2006) ............................................................................................................................................................................10, 14

iii

R.G. Fin. Corp. v. Vergara-Nunez,
446 F.3d 178 (1st Cir. 2006) .................................................................................................................................................................................10
State v. Brown,
571 A.2d 816 (Me. 1990) .........................................................................................................................................................................................12
State v. Dee,
No. Mem-01-59 (June 26, 2001) .......................................................................................................................................................................4, 10
State v. Weeks,
2000 ME 171 (Me. 2000) .........................................................................................................................................................................................13
State v. Witham,
2005 ME 79 (Me. 2005) ...........................................................................................................................................................................................13
Steinherz v. Wilson,
1998 ME 22 (Me. 1998) ....................................................................................................................................................................................10, 14
Stevens v. Bouchard,
532 A.2d 1028 (Me. 1987) .........................................................................................................................................................................................9
Town ofEddington v. Univ. of Me. Found.,
2007 ME 74 (Me. 2007) .............................................................................................................................................................................................9
United States v. Fogarty,
692 F.2d 542 (8th Cir. 1982) ............................................................................................................................................................................11,13
United States v. Fry,
787 F.2d 903 (4th Cir. 1986) ..................................................................................................................................................................................11
United States v. Maas,
551 F. Supp. 645 (D.N.J. 1982) . ...........................................................................................................................................................................11
Williamson v. Lee Optical, Inc.,
348 U.S. 483(1955) .................................................................................................................................................................................................12
Wolkind v. Selph,
495 F. Supp. 507 (E.D. Va. 1980) ..........................................................................................................................................................................11

STATUTES

21 U.S.C. §§ 801-904 .......................................................................................................................................................................................12, 13
21 U.S.C. §812(b)(l) .................................................................................................................................................................................................12

17-A Me. Rev. Stat. Ann. § 1106(3)(A) .................................................................................................................................................................2, 3
17-A Me. Rev. Stat. Ann. § 1117(2)(D)......................................................................................................................................................... passim
22 Me. Rev. Stat. Ann. § 2383(1) ..................................................................................................................................................................passim

MAINE RULES OF CIVIL PROCEDURE

M. R. Civ. P. 12(c) .................................................................................................................................................................................................7, 10

v

STATEMENT OF THE CASE

A. Statement of Facts with Record Citations

There can be no doubt that Mr. Dee is a passionate advocate for the legalization of marijuana. He has litigated the constitutionality of statutes prohibiting the possession, use, and cultivation of marijuana for personal consumption since at least 1995. Since the instant case presents issues that Dee has unsuccessfully argued in the past, an overview of his prior litigation follows.

1. Dee's Federal Court Cases

In 1995, Dee enclosed a marijuana leaf with his federal court filings and claimed fear of prosecution as the basis for standing to bring a declaratory judgment action in the U.S. District Court for the District of Maine. See Dee v. United States & State of Maine, 241 F. Supp. 2d 50 (D. Me. 2003) (citing Dee v. Reno, No. 95-CV-29-P-H (D. Me. 1995)). (footnote 1) Judge D. Brock Hornby granted summary judgment for the defendants in that case on the ground that declaratory relief was inappropriate because Dee was not facing a threat of law enforcement activity at that time.Id. The First Circuit affirmed. See Dee v. Reno, 82 F. 3d 403 (1st Cir. 1996). Dee then filed a petition for certiorari with the U.S. Supreme Court. It was denied. See Dee v. Reno, 519 U.S. 873 (1996). Next, he filed a petition for a rehearing on the denial of his petition for a writ of certiorari. It too was denied. See Dee v. Reno, 519 U.S. 1001 (1996).

footnote 1 For the Court's convenience, orders and decisions of the U.S. District Court, the First Circuit Court of Appeals, the U.S. Supreme Court, the State Superior Court, and this Court concerning Dee's prior challenges to Maine's marijuana laws were attached to the State's Objection and Cross-Motion for Judgment on the Pleadings. See State's Objection & Cross-Motion, at 3. Since these orders and decisions are public records, the State asked the Superior Court to take judicial notice of them pursuant to M. R. Evid. 201(d).

Between 1997 and 1998, Dee filed three more suits against Maine's marijuana laws in the U.S. District Court for the District of Maine. All were dismissed on res judicata grounds. See Dee v. United States, 241 F. Supp. 2d at 51 (citing 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)).
The U.S. District Court's tolerance of Mr. Dee's litigiousness reached the breaking point in Dee v. Clinton, No. 98-CV-37-P-H (D. Me. 1998), an action against then President Clinton challenging the constitutionality of the Cuban Trade Embargo—a case that does not appear to have involved a marijuana challenge. See Dee v. United States, 241 F. Supp. 2d at 50. On May 26, 1998, Judge Hornby issued an order enjoining Dee from filing any more lawsuits in federal court without prior court approval. Id. at 51 (citing Dee v. United States, No. 98-CV-37-P-H (D. Me. 1998) (order enjoining Dee)).

2. Dee's State Cases

After a brief respite, Mr. Dee directed his constitutional challenges to Maine's marijuana laws to the State's courts. In 1999, he filed a declaratory judgment action in the Superior Court challenging 17-A M.R.S.A. § 1106(3)(A), a statute which creates a presumption of unlawful furnishing for anyone possessing more that 1 % ounces of marijuana, and 22 M.R.S.A. § 2383(1), which makes possession of a useable amount of marijuana a civil violation. See Dee v. Attorney General, No. Mem-99-59 (Apr. 30, 1999). The Superior Court (Calkins, J.) dismissed it. Id. This Court affirmed on the ground "Dee's allegations do not implicate the denial of any of his fundamental rights.'" Id. (citation omitted) (emphasis added). This Court also observed that "there is no indication that Dee is being prosecuted for any violation of the laws that he challenges." Id. (emphasis added).

The following year, Dee filed another declaratory judgment action. This time he "invited" the Superior Court to "amend the laws governing the possession of marijuana, 17-A M.R.S.A. § 1106(3)(A) (Supp. 1999) and 22 M.R.S.A. § 2383(1) (1992)." Dee v. State of Maine, No. Mem-00-132 (Oct. 27, 2000). The Superior Court (Delahanty, J.) declined Dee's invitation and dismissed his complaint. Id. This Court affirmed, observing that the "Superior Court has no.. .authority" to "amend" Maine's marijuana laws. Id. Still, Dee persevered.

On February 8, 2000, Dee went to the fourth floor of the Maine State House carrying a marijuana plant. See Dee v. State, 2001 Me. Super. LEXIS 14 at * 1 (Jan. 24, 2001). In response to a complaint, capital security was summonsed to the area. Id. An officer asked Dee to leave the building. Id. Dee told him that he would not leave unless the officer summonsed him for possessing the marijuana plant. Id. The officer acceded to Dee's request, seized his marijuana plant, and removed him from the building. Id. at * 2. A trial in the Maine District Court came next.

Prior to trial, Dee moved for dismissal, arguing that 22 M.R.S.A. § 2383(1) was unconstitutional because he had a fundamental and protected liberty interest in using marijuana and that his prosecution under Section 2383(1) violated these constitutional rights. Dee v. State, 2001 Me. Super. LEXIS 14 at * 2. For reasons not apparent in the record, the District Court never ruled on his motion. Dee went to trial on June 1, 2000 and was found guilty of violating 22 M.R.S.A. § 2383(1). He appealed that finding to the Superior Court. Id.

Dee's Superior Court appeal was based "loosely" on the Fourth and Fourteenth Amendments. Dee v. State, 2001 Me. Super. LEXIS 14 at * 3. He argued that the enforcement of 22 M.R.S.A. § 2383(1) violated his "fundamental rights." Id. (emphasis

added). However, as the Superior Court (Atwood, J.) observed, Dee did not "clarify" what his "fundamental rights" were or how they applied to his possession of marijuana. Id. Citing Dee v. Attorney General, No. Mem-99-59 (Apr. 30, 1999), the Superior Court observed that this Court had, in one of Dee's earlier declaratory judgment actions, stated "that his 'allegations do not implicate the denial of any of his fundamental rights...'" Id. (emphasis added) (footnote.2). Accordingly, the Superior Court affirmed Dee's Section 2383(1) conviction. Id.

Dee thereafter appealed his Section 2383(1) conviction. This Court affirmed it. See State of Maine v. Dee, No. Mem-01-59 (June 26, 2001). In relevant part, this Court's Memorandum of Decision stated that "22 M.R.S.A. § 2383(1) (Supp. 2000) does not contravene the fundamental rights protected by the Fourth and Fourteenth Amendments of the U.S. Constitution...." Id. (emphasis added). However, by the time this Court issued that decision, Dee had yet another declaratory judgment action working its way through Maine's judicial system.

On October 27, 1999, Mr. Dee went to Morrill's Corner in Portland and "waved" a marijuana plant at passing traffic. See Michael J. Dee v. State of Maine, 2001 Me. Super. LEXIS 59 at *1 (Apr. 10, 2001). Two Portland police officers responded to the scene told Dee to stay out of the street or they would arrest him. Id. They did not arrest him (presumably, because he got out of the street), did not summons him, and did not seize the marijuana plant he was carrying. Id. This occurrence prompted Dee to seek a declaration that that the "arbitrary enforcement" of 22 M.R.S.A. § 2383(1) violated his due process rights and was therefore unconstitutional. Id. The Superior Court (Crowley, J.) granted the State's motion for

Footnote 2Judge Atwood noted that Dee's own submissions acknowledged that there was "considerable authority" for the proposition that the possession and use of marijuana were not constitutionally protected. Id. at * 4.

judgment on the pleadings, reasoning that Dee's declaratory judgment action was barred by the doctrine of res judicata and also because Dee had not presented the Superior Court with a "justiciable controversy." Id. at * 2-3.

Dee appealed. Once again, this Court affirmed. See Dee v. State, No. Mem-02-1 (Jan. 16, 2002). This Court's Memorandum of Decision stated that the Superior Court "correctly determined that Dee [was] precluded from relitigating the constitutionality of the laws prohibiting the possession of marijuana...issues that he has raised in prior litigation." Id. (emphasis added). Undeterred, Dee filed a petition for a writ of certiorari with the U.S. Supreme Court. It was denied. See Dee v. Maine, 535 U.S. 1057 (2002).

3. Dee's Return to Federal Court

Approximately one year after the U.S. Supreme Court denied Dee's petition for a writ of certiorari, he attempted to obtain Judge Hornby's approval to file a lawsuit challenging the constitutionality of Maine and federal laws governing the growing and possession of marijuana for personal use. See Dee v. United States, 241 F. Supp at 50. He informed the U.S. District Court that his new challenge would be based upon the "fundamental rights to life, liberty, and property under the Fourth, Fifth, and Fourteenth Amendments, and allegedly arbitrary enforcement of the state's marijuana law." Id. at 4 (internal quotations omitted) (emphasis added).

Judge Hornby denied Dee's request for permission to file suit, observing that it "was just such challenges that led to the original injunction." Id. at 52. After noting that Dee's proposed declaratory judgment action against federal authorities would be barred by res judicata, the Judge observed that Dee's challenge to Maine's marijuana laws would be "frivolous." Id. at 51. He wrote, "It has long been established that use of marijuana is not a

fundamental right protected by the Constitution." Id. (citations omitted) (emphasis in original).

B. Procedural History

By a "Complaint for Declaratory Relief dated December 15, 2006, Appellant Michael J. Dee challenged the "reasonableness" of Maine's marijuana laws. See Complaint, "Preliminary Statement," at 1. Specifically, he asserted that two of Maine's statutes, "22 M.R.S.A. § 2381(1)"3 and 17-A M.R.S.A. § 1117(2)(D), threatened to deprive him "of his liberty and his property without due process of law." Id. Accordingly, he sought a declaration from the Superior Court that these statutes were unconstitutional. See Complaint, "Relief," at 4.

Dee's Complaint alleged that he was twice summonsed to court for possessing marijuana sometime in the 1990's. See Complaint, ¶ 6. And it alleged that he was prosecuted and convicted in 2000 for possessing a marijuana plant a violation of 22 M.R.S.A. § 2383(1). ¶ 17.

Dee's Complaint acknowledged that the Maine Legislature made it a crime to "grow a useable amount of marijuana" when it enacted 17-A M.R.S.A. § 1117(2)(D). See Complaint, ¶ 8. But he challenged the lawfulness of this statute, alleging that the right to "acquire and

footnote 3 This statute was repealed in 1975. See 22 M.R.S.A. § 2381 (2006). In the interest of judicial economy the State assumed that Mr. Dee intended to refer to 22 M.R.S.A. § 2383(1). In relevant part, it states:
A. A person who possesses a usable amount of marijuana commits a civil violation for
which a fine of not less than $ 350 and not more than $ 600 must be adjudged, none of which
may be suspended.
B. A person who possesses a usable amount of marijuana after having previously
violated this subsection within a 6-year period commits a civil violation for which a fine of $
550 must be adjudged, none of which may be suspended.
22 M.R.S.A. § 2383(1). The State's analysis of Mr. Dee's claims will refer to this statute throughout the remainder of this Brief.

possess" marijuana "is a fundamental right.'" Id. ¶ 5 (emphasis added). From that flawed premise, he a sserted that Maine's marijuana laws violated two Amendments of the U.S. Constitution.

First, Dee alleged that 22 M.R.S.A. § 2383(1) and 17-A M.R.S.A. § 1117(2)(D) violated his Fourth Amendment right to be free from unreasonable searches and seizures. Complaint, ¶ 12. His Complaint asserted that the mere threat of a search warrant, arrest, imprisonment, and/or fines for possessing and growing a useable amount of marijuana was an "unreasonable government intrusion" and an invalid exercise of Maine's "police power." Id. ¶ 13.

Second, Dee alleged that these two statutes were "merely rationally related" to a "permissible state interest." Complaint ¶ 16. For that reason, he asserted that they violated his Fifth Amendment due process rights because these statutes were not "necessary to the accomplishment" of a permissible state interest. Id. Without citation to authority, Dee sought judgment on the pleadings under M. R. Civ. P. 12(c) on these grounds by a motion dated February 6, 2007.

On February 28, 2007, the State responded to Dee's Motion for Judgment with an Objection and Cross-Motion for Judgment on the Pleadings and a Motion to Enjoin him from filing challenges to Maine's marijuana laws in the future without prior court approval. The State argued that Dee's claims were barred because the cultivation and possession of marijuana for personal use was not a "fundamental right," that prosecution for marijuana offenses did not violate the Fifth Amendment because Congress had classified marijuana as a Schedule I drug, and because Dee's claims were barred by the doctrine of res judicata. See State's Objection & Cross-Motion, at 9-15.

The State's Motion to Enjoin Dee from challenging Maine's marijuana laws in the future was based upon his twelve-year history of litigating the constitutionality of marijuana laws—all of them unsuccessful—in the Superior Court and United States District Court for the District of Maine. Id. at 15-17.

On June 25, 2007, the Superior Court (Crowley, J.) denied Mr. Dee's Motion for Judgment on the Pleadings, granted the State's Cross-Motion, and enjoined Dee from filing future lawsuits against Maine's marijuana laws without prior court approval.footnote 4 See Appellant's Brief, Addendum at 11. In relevant part, the Superior Court held that the relevant statutes were subject only to a "rational basis review" because there is no "fundamental right" to use marijuana in any context. Id. at 9. Dee thereafter filed this timely appeal. Id. at 4.

Mr. Dee's appellate arguments in this appeal are not well defined.footnote 5 His core argument is that Maine has violated his due process rights by criminalizing the private growing and possession of marijuana. Appellant's Brief at 3-4, 7-8, & 11. His principal contention on appeal is that the Superior Court erred when it evaluated the constitutionality of 22 M.R.S.A. § 2383(1) and 17-A M.R.S.A. § 1117(2)(D) under the "rational review" standard. Appellant's Brief at 2.

In addition, Dee contends, without citation to authority, that the constitutionality of these statutes should be measured against the "reasonableness standard" of the Fourth Amendment. Id. at 2 & 10. Further, he contends that "the judiciaryfs]" insistence that "marijuana is not a fundamental right...is repugnant to due process of law." Id. at 2, 4-5 (emphasis added). All of these arguments lack merit.

footnote 4 Dee does not challenge the injunction in this appeal. See Appellant's Brief at 2-3 & passim.

footnote 5 Mindful of Mr. Dee's pro se status, the State has endeavored to interpret fairly the gravamen of his arguments.

STATEMENT OF THE ISSUES

I. Whether Maine Residents Have A Fundamental Constitutional Right To Possess, Use, Or Cultivate Marijuana For Personal Use.

II. Whether The Doctrine Of Res Judicata Bars Dee's Claims Because He Has Or Could Have Litigated The Constitutionality Of 22 M.R.S.A. § 2383(1) And 17-A M.R.S.A. § 1117(2)(D) In His Prior Cases.

THE STANDARD OF REVIEW

When reviewing an appeal from a judgment on the pleadings in favor of a defendant, this Court accepts as true the properly pleaded facts alleged in the complaint, and it construes all reasonable inferences drawn from those facts the plaintiffs favor. See Town of Eddington v, Univ. of Me. Found., 2007 ME 74, If 5 (2007). However, "bald assertions, unsupportable conclusions, periphrastic circumlocutions, and the like" are not credited. Aponte-Torres v. Univ. of P.R., 445 F.3d 50, 55 (1st Cir. 2006) (citation omitted); Stevens v. Bouchard, 532 A.2d 1028, 1030 (Me. 1987) (Court is not required to credit "legal conclusions" stated in the complaint.).

A court ruling on a Rule 12(c) motion, may supplement the facts contained in the pleadings by considering documents fairly incorporated by them, as well as facts susceptible to judicial notice. See R.G. Fin. Corp. v. Vergara-Nunez, 446 F.3d 178, 182 (1st Cir. 2006) (citing In re Colonial Mortg. Bankers Corp., 324 F.3d 12, 15-16 (1st Cir. 2003) (recognizing this principle in the Rule 12(b)(6) context).

The Superior Court's legal conclusions are reviewed de novo. See H.E. Sargent, Inc. v. Town of Wells, 676 A.2d 920, 923 (Me. 1996). An appellate court may affirm a judgment on grounds other than those relied on by the Superior Court. See Steinherz v. Wilson, 1998

ME 22, U 15 (1998) (citation omitted); Ramos-Pinero v. Puerto Rico, 453 F.3d 48, 51 (1st Cir. 2006) (reviewing court may affirm an order of dismissal on any basis apparent in the record).

ARGUMENT

As the preceding history demonstrates, the United States Supreme Court, this Court, the State's Superior Court, and the U.S. District Court for the District of Maine have repeatedly rejected the very challenges to Maine's marijuana laws that Dee resurrects in this appeal. The premise of nearly every argument Dee has made in the past—that the right to cultivate and possess marijuana for personal use is a "fundamental" constitutional right—has been uniformly rejected by every court that has considered the issue. Dee's unbroken string of defeats, in both State and federal courts, underscores the lack of merit in the present appeal. This Court must affirm the Superior Court's decision.

I. MAINE RESIDENTS DO NOT HAVE A FUNDAMENTAL CONSTITUTIONAL RIGHT TO POSSESS, USE, OR CULTIVATE MARIJUANA FOR PERSONAL USE.

Mr. Dee's appeal fails at a fundamental level. Contrary to his assertion, there is no constitutional "fundamental right" to possess, use, or cultivate marijuana for personal use. Cf. Complaint f 5; Appellant's Brief at 2. This Court told him that eight years ago. See Dee v. Attorney General, No. Mem-99-59 (Apr. 30, 1999) ("Dee's allegations to not implicate the denial of any of his fundamental rights....").

The Superior Court told him the same thing six years ago. See Dee v. State of Maine, 2001 Me. Super. LEXIS 14 at * 3 ("his allegations do not implicate the denial of any of his fundamental rights...") (citation omitted). This Court reiterated the point in 2001. See State

of Maine v. Dee, No. Mem-01-59 (June 26, 2001) ("22 M.R.S.A. § 2383 does not contravene the fundamental rights protected by the Fourth and Fourteenth Amendments....").

The U.S. District Court for the District of Maine emphasized this point again in 2003. See Dee v. United States, 241 F. Supp. at 51 ("It has long been established that the use of marijuana is not a fundamental right protected by the Constitution.") (emphasis in original) (citing United States v. Maas, 551 F. Supp. 645, 646-47 (D.N.J. 1982); Wolkindv. 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)).

Other courts have uniformly subscribed to this holding. See, e.g., Kuromiya v. United States, 37 F. Supp. 2d 717, 726 (D. Pa. 1999) (Smoking marijuana does not qualify as a fundamental right); United States v. Fry, 787 F.2d 903 (4th Cir. 1986) (holding that there is no fundamental right to produce or cultivate marijuana commercially); United States v. Fogarty, 692 F.2d 542, 547 (8th Cir. 1982) (holding that possessing, selling, and importing marijuana are not fundamental rights).

Inasmuch as State and federal courts have repeatedly told Mr. Dee that the possession, use, and cultivation of marijuana for private consumption are not a "fundamental right," it is exceedingly difficult to understand how he can seriously contend otherwise in this appeal.

A. Maine's Marijuana Laws, 22 M.R.S.A. § 2383(1) and 17-A M.R.S.A. § 1117(2)(D), Are Constitutional Under The "Rational Review" Standard.

Under the current state of the law, 22 M.R.S.A. § 2383(1) and 17-A M.R.S.A. § 1117(2)(D) do not, as Dee contends, have to be "necessary to the accomplishment" of a "permissible state interest" in order to pass constitutional muster. Cf. Complaint ^ 12. Because these statutes do not implicate "fundamental" constitutional rights, they are evaluated

under the "rational relationship" standard. That standard is not, as Dee argues, "repugnant to due process of law." See Appellant's Brief at 2.

As a sovereign state, Maine possesses the police power to pass regulatory laws promoting the public health, welfare, safety, and morality. footnote 6 See State v. Brown, 571 A.2d 816, 820 (Me. 1990). "Reasonableness" in the exercise of this police power requires the purpose of a legislative enactment to be in the interest of the public welfare, and the methods used to achieve it must "bear a rational relationship to its intended goals." National Hearing Aid Centers, Inc. v. Smith, 376 A.2d 456, 460 (Me. 1977).

The "reasonableness" of legislative enactments is presumed. See State v. Brown, 571 A.2d at 820 (citation omitted); Williamson v. Lee Optical, Inc., 348 U.S. 483, 485-488 (1955) (challenged legislative acts are presumed valid and will be upheld unless it is shown that the challenged act "bears no rational relationship to a legitimate legislative purpose."); Brown, 571 A.2d at 820 (debatable questions regarding the appropriateness of legislative enactments should be resolved in the legislature, not the courts) (citation omitted).

As the preceding case authorities demonstrate, 22 M.R.S.A. § 2383(1) and 17-A M.R.S.A. § 1117(2)(D) are presumptively constitutional under the applicable standard, and Dee has not invited this Court's attention to a single case suggesting otherwise. Nor could he. These statutes are a valid exercise of Maine's police power because they promote public health,- welfare, safety, and morality.

Under the Federal Controlled Substances Act, 21 U.S.C. §§ 801-904 (1976), Congress classified marijuana as a Schedule I drug. That means that it has a high potential for abuse,

footnote 6 Me. Const, art. IV, pt. 3, § 1, states in relevant part: "The Legislature, with the exceptions hereinafter stated, shall have full power to make and establish all reasonable laws and regulations for the defense and benefit of the people of this State, not repugnant to this Constitution, nor to that of the United States."

no currently accepted medical use, and lacks accepted safety standards for use under medical supervision. See 21 U.S.C. § 812(b) (1).

The classification of marijuana as a Schedule I drug has been routinely upheld as rational and, therefore, not a due process violation. See United States v. Fogarty, 692 F.2d 542, 547-48 (8th Cir. 1982) (Federal Controlled Substances Act, 21 U.S.C. §§ 801-904 (1976), is not irrational and arbitrary and did not violate the due process and equal protection mandates of the Fifth Amendment, collecting other cases so holding).

Against this backdrop, Dee's contention that criminalizing the possession, use, and cultivation of marijuana for private use violates the Fifth Amendment because it is not a "reasonable government regulation of liberty and property rights," see Appellant's Brief at 3, misses the mark. All that the Fifth Amendment's Due Process Clause requires is that criminal defendants be given "fair notice of the standard of conduct to which they can be held accountable." State v. Weeks, 2000 ME 171,1 7, 761 A.2d 44, 46 (citation omitted).

A statute may violate the Fifth Amendment if "it fails to 'define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited, and in a manner that does not encourage arbitrary and discriminatory enforcement.'" Id. (citation and internal quotations omitted). In other words, a Fifth Amendment violation may occur if people of common intelligence "must guess at its meaning." See State v. Witham, 2005 ME 79, f 7, 876 A.2d 40, 42 (citation omitted). The statutory language of 22 M.R.S.A. § 2383(1) and 17-A M.R.S.A. § 1117(2)(D) does not fail to define the conduct proscribed in a manner that encourages arbitrary and discriminatory enforcement, nor does it define the prohibited conduct in a manner that requires ordinary people to "guess" at the meaning. See Weeks and Witham, supra. To the

extent that Mr. Dee is attempting to argue that these statutes violate the Fifth Amendment on these grounds, he is incorrect as a matter of law.

II. THE DOCTRINE OF RES JUDICATA BARS DEE'S PRESENT CHALLENGE TO THE CONSTITUTIONALITY OF 22 M.R.S.A. § 2383(1) AND 17-A M.R.S.A. § 1117(2)(D) BECAUSE HE HAS OR COULD HAVE LITIGATED THESE ISSUES IN PRIOR CASES.

Even if this Court disagreed with the preceding analysis, Dee's claims in this case are barred by the doctrine of res judicata. See Steinherz v. Wilson, 1998 ME 22, If 15, 705 A.2d 10, 12 (appellate court may affirm a judgment on grounds other than those relied on by the Superior Court) (citation omitted); Ramos-Pinero v. Puerto Rico, 453 F.3d 48, 51 (1st Cir. 2006) (reviewing court may affirm an order of dismissal on any basis apparent in the record).

Res judicata is "a court-made collection of rules designed to ensure that the same matter will not be litigated more than once," and it operates as a bar to a plaintiffs cause of action in appropriate circumstances. See Camps v. Newfound/Owatonna v. Harrison, 1998 ME 20, t 11, 705 A.2d 1109, 1113 (quoting Machias Sav. Bank v. Ramsdell, 1997 ME 20,1 ll,689A.2d595, 599. There are two types of res judicata: issue preclusion, also referred to as collateral estoppel, and claim preclusion, often referred to as the "doctrine of bar." See In re Kaleb D., 2001 ME 55, f 7, 769 A.2d 179, 183. Collateral estoppel or issue preclusion "prevents the relitigation of factual issues already decided if 'the identical issue was determined by a prior final judgment, and...the party estopped had a fair opportunity and incentive to litigate the issue in a prior proceeding.'" Cline v. Maine Coast Nordic, 1999 ME 72, TJ 9, 728 A.2d 686, 688 (quoting Perry v. H.O. Perry & Son, Co., 1998 ME 131, If 6, 711 A.2d 1303, 1305).

Claim preclusion, on the other hand, prohibits the relitigation of an entire cause of action. See In re Kaleb D., supra, at ¶ 8, 769 A.2d at 183; Beegan v. Schmidt, 451 A.2d 642, 644 (Me. 1982). Claim preclusion bars relitigation of a claim '"if: (1) the same parties or their privies are involved in both actions; (2) a valid final judgment was entered in the prior action; and (3) the matters presented for decision in the second action were, or might have been litigated in the first action.'" Machias Sav. Bank, 1997 ME 20, If 11, 689 A.2d at 599 (emphasis added) (quoting Department of Human Serv. v. Comeau, 663 A.2d 46, 48 (Me. 1995)). See also Allen v. McCurry, 449 U.S. 90, 94 (1980) (res judicata and collateral estoppel "relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication."). Both doctrines bar Dee's request for declaratory relief in this case. He has repeatedly, and unsuccessfully, challenged the constitutionality of 22 M.R.S.A. § 2383 in prior cases. See discussion at 1-6, supra. Thus, collateral estoppel bars his challenged to 22 M.R.S.A. § 2383(1) here. See Beegan v. Schmidt, 451 A.2d at 643-44; Cline v. Maine Coast Nordic, 1999 ME 72, t 9, 728 A.2d at 688.

Dee's constitutional challenge to 17-A M.R.S.A. § 1117(2)(D) is barred by claim preclusion. The instant case is nothing more than another attempt by Dee to obtain the very relief he was denied in his earlier, unsuccessful challenges to State and federal marijuana laws. See discussion at 1 -6, supra.

All of Dee's prior cases resulted in valid final judgments and involved the same parties or their privies. All aspects of the constitutionality of 17-A M.R.S.A. § 1117(2)(D) "might have been litigated" in these prior suits. See Machias Sav. Bank, 1997 ME 20, til, 689 A.2d at 599 (citation omitted). That being the case, he may not properly do so now.

"Judicial economy, fairness to litigants and the strong public interest favoring finality in judicial proceedings demand that a plaintiff present all relevant aspects of his cause of action in a single lawsuit." Kradoska v. Kipp, 397 A.2d 562, 567 (Me. 1979). The doctrine of resjudicata is intended to prevent litigants like Mr. Dee from pursuing claims "in a piecemeal fashion by asserting in a subsequent lawsuit other grounds of recovery for the same claim" where he or she had a reasonable opportunity to make the argument in a prior action. Id. at 569 (citation and internal quotations omitted). Dee has challenged the constitutionality of Maine's marijuana laws for twelve years. Having had multiple "reasonable opportunities" to contest these laws, res judicata prohibits him from doing so here.

CONCLUSION

For these reasons, the decision of the Superior Court must be affirmed.

Dated: Friday, September 21, 2007.

Attoney General of Maine

William R. Fisher R. Fisher Assistant Attorney General

Bar No.3328

3328 william.r.fisher@maine.gov

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

MEMORANDUM OF DECISION

MAINE SUPREME JUDICIAL COURT

Reporter of Decisions

Decision No. Mem 07-208 Docket No. Cum-07-405

MICHAEL J. DEE

STATE OF MAINE

Submitted on Briefs December 3, 2007 Decided December 13, 2007

Panel: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, LEVY, MEAD, and GORMAN, JJ.

MEMORANDUM OF DECISIONMichael J. Dee appeals from that portion of the judgment of the Superior Court (Cumberland County, Crowley, J.) that denied his motion for a judgment on the pleadings, granted the State's motion for a judgment on the pleadings and, in effect, upheld the constitutionality of various laws prohibiting the private growing and possession of marijuana. The Superior Court's judgment upholding the constitutionality of these laws in the face of Dee's challenge was soundly based in state and federal precedent cited in the Superior Court's judgment.

The entry is:

Judgment affirmed.

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

MOTION FOR RECONSIDERATION

STATE OF MAINE SUPREME JUDICIAL COURT CUMBERLAND, ss. SITTING AS THE LAW COURT LaLAW DOCKET No. CUM-07-405

MICHAEL J. DEE Plaintiff-Appellant

STATE OF MAINE Defendant-Appellee

On Appeal from the Cumberland County Superior Court, Portland

APPELLANT'S MOTION FOR RECONSIDERATION

MICHAEL J. DEE
PO Box 2021
Windham, ME. 04062
207-893-0287

MOTION FOR RECONSIDERATION
Rule 14 (b)(l)

Rule 14 (b)(l) "The motion shall state with particularity the points of law or fact that in the opinion of the moving party the Court has overlooked or misapprehended and shall contain such argument in support of the motion as the moving party desires to present."

Stated mission of the Maine Supreme Judicial Court. "To administer justice by providing a safe, accessible, impartial, and efficient system of dispute resolution that serves the public interest, protects individual rights and instills respect for the law."
Titlel4 M.R.S.A. 5954. "Any person interested ... whose rights ... are affected by a statute ....may have determined any question of construction or validity arising under ... statute ... and obtain a declaration of rights, status or other legal relations thereunder."

1. Declaration of Rights

No where, hi his so called "frivolous" lawsuits, has Appellant Dee ask any federal or state court to declare marijuana is a fundamental right. Not at anytime, past or present, has the Appellant ever ask any court to declare marijuana to be a fundamental right.

This Court stated: "The superior Court's judgment upholding the constitutionality of these [marijuana] laws in the face of Dee's challenge was soundly based in state and federal precedent cited hi the Superior Court's judgment" Decision No. Mem 07-208.
And what do these precedents say? All state and federal precedents have declared marijuana is not a fundamental right. The marijuana laws do not violate any of Dee's fundamental rights. The judicial review of the marijuana laws, criminal laws, is by rational basis test. See Justice Crowley Order p. 5-6.

The Court has overlooked the fact that Dee's request for declaratory relief in his complaint does not ask the Court to declare marijuana a fundamental right.

The Court has overlooked the fact that in Dee's Statement of Issues, he does not ask the court to decide whether marijuana is a fundamental right.

Therefore the lower court citation of federal and state precedent, that declare marijuana is not a fundamental right, are not relevant to this case because Dee is not asking the Court to declare marijuana a fundamental right.

The Court has overlooked the fact that at the end of the relief section of Appellant's brief to this Court, Dee has asked this Court to "declare the appellant has constitutional protection from unreasonable government intrusion to privately grow and possess marijuana, within the State of Maine."

2. Injury to Fundamental Individual Rights.

The Court has misapprehended the law, Amendment IV of the Constitution of the United States, by ruling that it is rational to search and seizure Dee's person, his house, papers, and effects for violating the marijuana laws.

Amendment IV declares the Appellant has a fundamental individual right "to be secure in his person, house, papers, and effects, against unreasonable searches and seizures." See Appellant's brief. P. 5-7 and Cmplt. f 12.

The Court has misapprehended the law, Amendment V, that Dee has a fundamental individual right to due process of law by requiring that deprivation of liberty and property, to be justified, to be reasonable not rational before actual injury to those rights . See Appellant's brief. Page 8-9.and Cmplt. f 15,16.

The Court has misapprehended the law that the right to liberty, freedom from

physical restraint, is a fundamental individual right.

The court has overlooked the fact that criminal laws are meant to cause injury to Dee's liberty.

The Court has misapprehended the law that Dee's right to acquire property is a fundamental individual right. See Appellant's brief. Page 4 and Cmplt, ^|5.

The Court has overlooked the fact that marijuana is property and is an object to a search warrant and subject to seizure. Cmplt. f 4
The Court has overlooked the fact the State of Maine has deprived Dee of his liberty and his property by the enforcement of the marijuana law for civil possession.

The court has overlooked the fact that the enforcement of the marijuana laws cause threatened and actual injury to Dee's fundamental individual rights to property, liberty and privacy, protected by Amendments IV and V of the Constitution of the United States.

3. Public Interest

The Court has overlooked the fact that criminal laws are to control fundamental individual rights to protect public interest.
The Court has overlooked the fact that the private cultivation and use of marijuana is not a threat to public health and safety. It does not serve the public interest to use "police power" to criminalize the private growing and possession of a useable amount of marijuana when this activity does not affect the rights of others, does not threaten public interest. See Appellant's brief, p.7-8.
This Court has misapprehended the law, Amendment IV, because reasonable

physical restraint, is a fundamental individual right.

The court has overlooked the fact that criminal laws are meant to cause injury to Dee's liberty.

The Court has misapprehended the law that Dee's right to acquire property is a fundamental individual right. See Appellant's brief. Page 4 and Cmplt, ^|5.

3. Public Interest

regulation of individual rights is to prevent injury to the rights of others, public interest.

How did it serve the public interest by seizing a marijuana plant at the State Capitol Building when it did not pose any threat to public health and safety?

4. Respect for the Law

The court's ruling does not serve the public interest, does not protect Appellant's individual rights and does not instill respect for the law only fear.

For the Court to review the constitutionality of criminal and civil laws, affecting individual rights to liberty, property, and privacy protected by Amendments IV and V, by rational review does not instill respect for the law.

Under the color of law, this Court continues to deprive Dee his right to be secure from unreasonable government intrusion and due process of law, does not instill respect for the law.

CONCLUSION

The Superior court judgment granting State of Maine's motion for judgment on the pleadings should be overturned and the State of Maine's Cross Motion for Judgment on the Pleading be denied because:

Dee is not asking the court to declare marijuana a fundamental right.

The marijuana laws are designed to cause injury to individual fundamental

rights to liberty and to property secured from unreasonable seizure by Amendments IV
and V of the Constitution of the United States.

3 Judicial review of these marijuana laws, which has deprived Dee of his liberty and property, is the reasonableness standard of Amendment IV not rational review.

Appellant ask this Court for a declaration of rights under Title 14 M.R.S.A. § 5953. "Courts of record within their respective jurisdictions shall have power to declare rights."

To declare the Maine Statues, 22 M.R.S.A. § 2381(1) (1992) and 17-A M.R.S.A § 1117(2)(D), are not narrowly drawn and are merely rationally related to the accomplishment of a permissible state policy and therefore violates "due process of law" of Amendment V, therefore unconstitutional.

Dated: December 27, 2007

Michael J. Dee v PO BOX 2021 Windham, Maine 04062 207-893-0287

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ORDERED motion DENIED

STATE OF MAINE
SUPREME JUDICIAL COURT Sitting as the Law Court
DOCKET NO. Cum-07-405 Decision No. Mem 07-208

MICHAEL J. DEE

ORDER

STATE OF MAINE

Upon motion for reconsideration of appellant, Michael J. Dee, the motion having been reviewed by the panel that decided the original appeal, it is ORDERED that the motion be, and it hereby is, DENIED.

Dated: February 15, 2008

For the Court,

Matthew E. Pollack Clerk of the Law Court

G. STEVEN ROWE

NO. CUM-07-405