Michael J. Dee et al.,                                                             }
                                                                                                   }
V                                                                                                )            Civil Action File No. 95-29-P-H

Hon. Janet Reno                                                                    }
Attorney General of the United States et al.,                     }

Hon. Andrew Ketterer                                                           )

Attorney General of the State of Maine et al.,                    }

Motion for Declaratory Judgment & Declaratory Relief

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I

Plaintiff is and at all times mentioned in this complaint is a resident of Cumberland County State of Maine.

II

The defendants, the governments by legislative enactments passed statutes that require federal, state, county and local police power over the lives, liberty and property of it's citizens.

Ill

Plaintiff seeks to terminate a controversy with issues of law by bringing before this court undisputed or relatively undisputed facts. In Ravin v. State of Alaska (537 P2d 494,1975] "The right to privacy (Art. 1, Sec. 22 or the Alaskan Constitution) cannot be read so as to make the possession or ingestion of marijuana itself a fundamental right". The above was cited in National Organization for Reform of Marijuana Laws v. Bell (488 F. Supp 123 (1980) The court continues: "In ascertaining whether a right is fundamental the court must determine whether the right is explicitly or implicitly guaranteed by the constitution. Smoking marijuana does not qualify as a fundamental right. "A constitutional right must be involved for there to be a right of privacy in the home". (The above case footnote 27.) To acquire and use property, to be free from "unreasonable searches and seizures" are fundamental rights.(Ravin page 495). Marijuana is a property right. The controversy is of justiciable nature because of the existence of a right, a privilege and immunity, created by the United States and Maine Constitutions. All citizens of the United States have an interest in the declaration sought.

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IV

Plaintiff brings this action for declaratory judgment pursuant to Title 28 USCS section 2201 for judgment declaring:

1. The Single Convention on Narcotics 18 UST 1407, 30 T.I.A.S. No. 6298,. 520 U.N.T.S. 151. Ratified (1967)

2. Comprehensive Drug Abuse Prevention and Control Act of 1970. Public Law 91-513, 84 Stat. 1242

3. Codified as Title 21 USCS sections 841 (b.) (1) (A) ii (I) and vii; 841 (b) (1) (B) ii I and vii, 941 (b) (1) (D); 844 and 844a.

4. Maine State Statutes Title 17A Sec, 1103 and 1106 and Title 22 2323

Unconstitutional because they are over broad, speculative, arbitrary and unreasonable.

V

“Whose rights are affected by a statute... may have determined any construction or validity arising under the statutes. (Maine State Statute., Title 14, sec. 5954). Declaratory Judgment action is designed precisely to give a potential defendant in a criminal prosecution, access to judicial determination prior to actual arrest when the facts indicate a sufficient basis to believe that conduct deemed protected under the constitution, will be subject to such prosecution. Growing and possession of marijuana for private use. Jurisdiction of this action is based on title 28 USCS section 1331, Federal Question. Complainant invokes rights under the Constitution.

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VI

The above mentioned treaty, federal statutes and state statutes in part violates the IV, V and XIV Amendments of the United States Constitution and Article I sections 1 and 5 of the Maine Constitution.

VII

The right to use and enjoy one's property is a fundamental right protected by both state and federal constitution. Buskey v Town of Hanover: 1990, 577 A.2d 406, 133 N.H. 318) The laws criminalize the private cultivation of marijuana for personal use and private trade. The laws are speculative in the area of cultivation and the possession of a usable amount which would be a civil offense. How many plants equals simple possession?

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VIII

Article I, Section 1 Declaration of Rights of the Maine Constitution: "All men are created equally free and independent and have certain natural inherent and inalienable rights among which are those of enjoying and defending life, liberty and acquiring, possessing and protecting property and pursuing, obtaining safety and happiness. " U.S. Amendment V..."nor be deprived of life, liberty or property without due process of law. U.S. Amendment XIV. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; not shall any state deprive any person life, liberty, or property without due process of law.

IX

There are no restrictions in the acquisition of property which does not generally affect others. The authority of the state to exert control over individuals extends only to activities of the individuals which affect others or the public at large. Private property is held subject to implied condition that its use will not injure or impair public interest. footnote 1 'The term liberty as used in the constitution means more than freedom from arrest and includes freedom to own, control and use property, freedom to pursue any lawful trade, business or calling and freedom to make all proper contract in relation there to. footnote 2

X.

Article I, Section 5 of the Maine Constitution and 4th Amendment of the U.S. Constitution "the people shall be secure in their person, houses, papers, and possession from unreasonable searches in and seizures." Marijuana even when its possession can only give rise to civil violation in Maine can be a legitimate object of a search warrant and if found can be seized and confiscated. footnote 3 The state standard in testing the legality of search and seizure can be no lower than standards mandated by the U.S. Constitution as

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interpreted by the U.S. Supreme Court. footnote 4

XI

The "due process of the 14th Amendment of U.S. Constitution provides that an individual may not be deprived of certain substantive rights, ie., life, liberty and property without constitutionality adequate procedures". footnote 5 "Procedural due process protection is triggered by actual or threatened impairment or deprivation of life, liberty or property." footnote 6

Property has been seized on two of three occasions resulting from two uniform summons and complaint # 7 01611 issued 12/20/93 and # 1421883 issued 8/10/94. Both were issued for a usable amount of marijuana. Cases were dismissed because the issuing officers failed to appear. On 08/05/94 at approximately 1630 hours, officer #12 of the Windham Police Dept. refused to confiscate a controlled substance.

XII

Due process "protects substantive aspects of those interest against impermissible government restriction."footnote 7 The challenge statutes and treaty "adversely affect a recognized life, liberty and property entitlement and in doing so does not promote a legitimate state objective by reasonable means."footnote 8 ( The, use of marijuana by people who are underaged.) The "basic test is whether the state can justify infringement of its legislative activity upon personal rights and liberties. Due process is violated when statutory provisions is not reasonably designed to remedy evils which legislative has determined to be