UNITED STATES DISTRICT COURT DISTRICT OF MAINE

Michael J. Dee                                          )
Plaintiff                                                      )
                                                                  )
v.                                                               ) Civil No. 2:09-cv-163
                                                                  ) 
United States of America                           )
Defendant                                                 )

JUDGMENT OF DISMISSAL

Pursuant to the Order affirming the Report and Recommended Decision of Magistrate Judge Margaret J. Kravchuk, entered by U.S. District Court Judge D. Brock Hornby on May 28, 2009;

JUDGMENT of dismissal is hereby entered.

 LINDA L. JACOBSON CLERK
By: /s/Kate Irish Collins Deputy Clerk

Dated: June 19, 2009

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

MICHAEL J. DEE                               )
                                                         )
Plaintiff                                              )
                                                         )
v.                                                      )       Civil No. 9-163-P-H )
                                                         )       ( 09-cv-163-DBH) )
UNITED STATES of AMERICA          )
                                                         )
Defendant                                        )

PLAINTIFF’S OBJECTION TO MAGISTRATE JUDGE MARGARET J. KRAVCHUK’S’s RECCOMMENDED DECISION WITH INCORPORATED MEMORANDUM

I , Michael J. Dee, objects to Magistrate Judge Margaret J. Kravchuk declaring my petition as frivolous, to be silly or trivial. That it lacks intellectual substance and not worth serious consideration by this court. Judge Kravchuk is declaring I am not a person and marijuana is not property because only persons and property are secure from unjustified, unreasonable and unnecessary regulations by the Fourth and Fifth Amendments of the Constitution of the United States.

Dee claims the threatened operation and effect of criminal laws upon me (Dee’s petition ¶ 4) presents an actual case and justiciable controversy as required by Article III of the Constitution of the United States. (Dee’s petition ¶ 8). This claim is not frivolous. Why does the judiciary, the guardian of individual rights, continue to deny that these criminal laws affect individual fundamental rights to privacy, to liberty and to property secured

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by the Fourth and Fifth Amendments? Why the discrimination in property and denial of equal protection of law? Why let organized crime control “this extraordinarily popular substance.” Gonzales v. Raich 545 U.S. 1 (2005) I. Magistrate Judge Margaret J. Kravchuk is declaring the operation and effect of criminal laws do not present a justiciable controversy. ARTICLE III Adjudication of Rights

“Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, ……under their authority;…..to controversies to which the United States shall be a party;”

“Article III of the Constitution limits the ‘judicial power’ of the United States to the resolution of ‘cases’ and ‘controversy.” Valley Forge Christian College v. Americans United 454 U.S. 464, 471 (1982) The “case and controversy limitation” of Article III , is an “ American institution of judicial review … for the preservation of individual rights.” Rescue Army v. Municipal Court 331 U.S. 549 , 572 (1947). “The province of the court is, solely, to decide on the rights of individuals, …” Marbury v. Madison, 5 U.S. 137, 170 (1803). “The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests…..It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character.” Aetna Life Ins. Co. v. Haworth , 300 U.S. 227, 240-241 (1937).

This court has “no power per se to review and annul acts of Congress on the ground that they are unconstitutional. That question may be considered only when the justification for some direct injury suffered or threatened, presenting a justiciable issue, is made to rest upon such an act.” Commonwealth of Massachusetts v. Mellon 262 U.S. 447, 488, (1923).

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'It is only where rights, ….are being, or about to be, affected prejudicially by the application or enforcement of a statute that its validity may be called in question by a suitor and determined by an exertion of the judicial power. State of Texas v. Interstate Commerce Commission, 258 U.S. 158, 162 1922).

II. Magistrate Judge Margaret J. Kravchuk is declaring I am still presenting a petition that is frivolous because marijuana is not a fundamental individual right.

RIGHTS OF PERSONS

Plaintiff does not ask this court to declare the use of marijuana to be a constitutional, fundamental, individual right. The right of personal security, personal liberty and private property are constitutional, fundamental, individual rights. “Dee is asking this court to declare Title 21 U.S. C.§§ 841(a)(1), and 844, that make the local cultivation, possession and use of marijuana criminal offences, are arbitrary, unnecessary, unjustified, unreasonable regulations of his fundamental rights to privacy, liberty, and property and contravenes the 4th and 5th Amendments of the Constitution of the United States and are unconstitutional.” (Dee’s Petition. ¶12).

The Supreme Court of the United States considered “the Fourth and Fifth Amendments as running ‘almost into each other’ on the facts before it, this Court held that the doctrines of those Amendments ‘apply to all invasions on the part of the government and its employees of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security, personal liberty and private property….’” Mapp v. Ohio 367 U.S. 643, 646, 647 (1961) citing Boyd v. United States 116 U.S. 616, 630 (1886). “The Fourth Amendment right against unreasonable searches and seizures, ….."protects people, not places," and therefore applies as much to the citizen on the streets as well as at home

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or elsewhere. Terry v. Ohio, 392 U.S. 1, 2 (1968)

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

AMENDMENT IV
Reasonable Laws and Reasonable Operation of the Laws.

Amendment IV: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be search, and the persons or things to be seized.”

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

“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

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for any government intrusion upon protected personal security.” Terry v. Ohio, 392 U.S. at 11.

“The 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. at 19.

AMENDMENT V

“No person shall be deprived of life, liberty, and property, without due process of law.”

“[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 which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society” Poe v. Ullman, 367 U.S. 497, 542 (1961). “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.” Carey v. Piphus,435 U.S. 247, 259 (1978).

The “guaranty of due process … demands only that the law shall not be unreasonable, arbitrary, or capricious and that the means selected shall have a real and substantial relation to the object sought to be attained.” Nebbia v. New York, 291 U.S. 502, 525 (1934). To keep marijuana from the kids.

III. Magistrate Judge Margaret J. Kravchuk is declaring my petition is frivolous because a full custodial arrest is not a severe intrusion on an my liberty.

RIGHT OF LIBERTY

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“Liberty presumes an autonomy of self that includes freedom of speech, belief, expression, and freedom from seizure.” Bolling v. Sharpe, 347 U.S. 497, 499-500 (1954).

“Liberty is freedom from all restraints but such as are justly imposed by law. Beyond that line lies the domain of usurpation and tyranny.” Slaughter-House Cases, 83 U.S. 36, 127.

“Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's own will. It is only freedom from restraint under conditions essential to be equal enjoyment of the same right by others. It is then liberty regulated by law.” Crowley v. Christensen, 137 U.S. 86, 89-90 (1890).

Every “ well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.“ Jacobson v. Massachusetts, 197 U.S. 11, 27 (1905). “The Fourth Amendment provides that ‘the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .’ This inestimable right of personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs. For as this Court has always recognized, ‘No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.’" Terry v. Ohio, 392 U.S. 1, 8-9 (1968) citing Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251 (1891).

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IV. Magistrate Judge Margaret J. Kravchuk is declaring my petition is frivolous because marijuana is not property.

RIGHTS OF PROPERTY

“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 Solidarty (LIBERTAD) Act of 1996, Title 22 U.S.C.-6081. “That rights in property are basic civil rights has long been recognized.” Lynch v. Household Finance Corp., 405 U.S. 538, 552 (1972).

“Property is everything which has an exchangeable value, and the right of property includes the power to dispose of it according to the will of the owner. Slaughter-House Cases, 83 U.S. 36, 127. “And, as to the enjoyment of property, the rule is general that it must be accompanied with such limitations as will not impair the equal enjoyment by others of their property. Sic utere tuo ut alienum non loedas is a maxim of universal application,.” Crowley v. Christensen, 137 U.S. 86, 90 (1890).

“ ‘Rights of property, …….are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law as the legislature, under the governing and controlling power vested in them by the Constitution, may think necessary and expedient.’” Holden v. Hardy, 169 U.S. 366, 392(1898) citing Commonwealth Massachusetts v. Alger, 7 Cush. 53, 84.

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.

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New York, 291 U.S. 502, 543; 54 S.Ct. 505, (1934).

V. Magistrate Judge Margaret J. Kravchuk is declaring my petition is frivolous because these criminal laws proscribing marijuana are rational.

REASONABLE REGULATION Police Power

“In a long series of cases this Court has held that where fundamental personal liberties are involved, they may not be abridged by …… simply on a showing that a regulatory statute has some rational relationship to the effectuation of a proper state purpose. ‘Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling,’ Bates v. Little Rock, 361 U.S. 516, 524. The law must be shown "necessary, and not merely rationally related, to the accomplishment of a permissible state policy." McLaughlin v. Florida, 379 U.S. 184, 196.” cited in Griswold v. Connecticut, 381 U.S. 479, 497, (1965).

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

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society. 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).

" In the absence of 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 insofar as the action of one individual may threaten the well-being of others." United States V Kiffer 477 F2.d 349 (1973), at 354.

“And, unless justified as a valid exercise of the police power, the act assailed must be declared unconstitutional because the enforcement thereof [will deprive] Petitioner of his [liberty and] property without due process of law.” Liggett Co. v. Baldridge, 278 U.S. 105, 111; (1928).

CONCLSION

My petition presents a justiciable controversy. My right to be free from unreasonable deprivation of liberty and property, my right to a hearing before actual injury to these personal rights, my right to equal protection of the Fourth and Fifth Amendments are not frivolous. This is real and substantial case and controversy over my legal rights, admitting of specific relief. Permission to file to be granted for judicial review of the marijuana laws by reasonableness standard of the Fourth Amendment not rational review.

Dated :May 11, 2009

Michael J. Dee PO Box 2021 786 Roosevelt Trail Windham, Maine 04062 207-893-0287

Yes I did mispell conclusion. Never have I had a perfect paper.