DEFENDANT'S MOTION TO DISMISS

Terry L. Armitage Deputy Attorney General
Wyoming Attorney General's Office
123 Capitol Building
Cheyenne, Wyoming 82002 307-777-7977

STATE OF WYOMING )
IN THE DISTRICT COURT
                                                                  ) ss.
COUNTY OF LARAMIE )

FIRST JUDICIAL DISTRICT

                                                         )
MICHAEL J. DEE,                         )
                                                         )
Plaintiff,                                           )
                                                         )
                 vs.                                   )                              Doc. 169 No. 897
                                                         )
STATE OF WYOMING,                  )
                                                         )
Defendant.                                     )

DEFENDANT'S MOTION TO DISMISS

Defendant, by and through the Office of the Attorney General for the State of Wyoming, submits the following Motion to Dismiss pursuant to Rule 12(b)(6), W.R.C.P.

The Complaint filed by Plaintiff fails to state a claim upon which relief can begranted.

The doctrine of Res Judicata bars the relitigation of the claims previously decided against Plaintiff Dee, in Case No. 0102-169223.

Wherefore, Defendant State of Wyoming respectfully requests that the above-entitled matter be dismissed as a matter of law.

RESPECTFULLY SUBMITTED this 7 day of June, 2007.

State of Wyoming,
Defendant

By:
Terry L.^Armitage
Deputy Attorney General
123 Capitol Building
Cheyenne, Wyoming 82002
307/777-797

DEFENDANT'S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS


Terry L. Armitage Deputy Attorney General
Wyoming Attorney General's Office
123 Capitol Building
Cheyenne, Wyoming 82002 307-777-7977

STATE OF WYOMING )
IN THE DISTRICT COURT ) ss.
COUNTY OF LARAMIE )
FIRST JUDICIAL DISTRICT 

                                                                 )
MICHAEL J. DEE,                                 )
                                                                )
Plaintiff,                                                  )
                                                                )
vs.                                                           )      Doc. 169 No. 897
                                                                )
STATE OF WYOMING,                         )
                                                                )
Defendant.                                              )

DEFENDANT'S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

Defendant, by and through the Office of the Attorney General for the State of Wyoming, submits the following memorandum of law in support of its Motion to Dismiss filed contemporaneously herewith.

Background Plaintiff, Michael J. Dee, initially filed a Complaint for Declaratory Relief in January of 2007. (Case No. 0102-169223). Plaintiff Dee asked this Court to declare that WYO. STAT. ANN. §§ 31-7-1040,35-7-1031 (c), and 35-7-1039 are unconstitutional, as violating his due process rights and fundamental rights, pertaining to the possession and use of marijuana. Dee did not prevail in that lawsuit; summary judgment was granted in favor of the State of Wyoming. Plaintiff Dee had repeatedly filed similar lawsuits in other jurisdictions, contending that using marijuana is a guaranteed constitutional right. His claim has been rejected by other courts, and by this Court in an order entered May 14, 2007, Case No. 0102-169223.

Plaintiff Dee has now filed an identical complaint, again alleging entitlement to declaratory relief, based upon his frivolous continuing assertions that possession and use of marijuana is a fundamental constitutional right.

About twenty-five years ago, the Laramie County Sheriffs Office executed a lawful search warrant upon Plaintiff Dee's residence on March 26,1982, due to his possession and cultivation of marijuana, in violation of WYO. STAT. ANN. § 35-7-103 l(c) and § WYO. SXAX. ANN. 35-7-1040. Plaintiff Dee was arrested and prosecuted and the case was fully adjudicated at that time.

The Wyoming controlled substances act, codified under WYO. SXAX. ANN. § 35-7-1001 et seq., was enacted to regulate the possession and use of controlled substances in the State of Wyoming. Important to this matter, WYO. SXAX. ANN. § 35-7-1031 (c) makes it "unlawful for any person knowingly or intentionally to possess a controlled substance . . .." Marijuana is listed as a Schedule I controlled substance. WYO. SXAX. ANN. § 35-7-1014. WYO, SXAX. ANN. § 35-7-1039 makes it unlawful for a person to use marijuana, and WYO. SXAX. ANN. §31-7-1040 makes it illegal to grow marijuana.

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Standard of Review

Defendant State has filed a motion to dismiss pursuant to Rule 12(b)(6), Wyo. R. Civ. P., asserting that Plaintiff Dee's complaint fails to state a claim upon which relief can be granted, due to the doctrine of res judicata. A complaint reflecting an affirmative defense such as res judicata can be dismissed under a motion pursuant to W.R.C.P. 12(b)(6). Sullivan v. Sullivan. 506 P.2d 813,817 (Wyo. 1973); Texas Oil West and Gas Corp. v. First Interstate Bank. 743 P.2d 857, 858 (Wyo. 1987).

Res Judicata Plaintiff Dee filed a complaint for declaratory relief in January of 2007, in Case No. 0102-169223. Defendant State of Wyoming filed an answer to the complaint and moved for summary judgment. Plaintiff Dee filed for summary judgment as well. The complaint alleged that Plaintiff Dee had a fundamental right to possess and use marijuana. Dee asserted a violation of his Fourth and Fifth Amendment rights under the United States Constitution. After hearing held on May 2, 2007, the district court granted the Defendant State of Wyoming's motion for summary judgment and denied the motion for summary judgment filed by Plaintiff Dee. The identical claims raised in Case No. 0102-169223 have now again been raised in the case at bar. Plaintiff Dee attempts to make the latest complaint appear differently by asserting that he seeks the relief of having his decades old conviction overturned. Nonetheless, the claims previously raised and decided against Plaintiff Dee are now raised again in the present case.

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The application of the doctrine of res judicata is a question of law. In re Big Horn River System. 2004 WY 21,119, 85 P.3d 981,989 (Wyo. 2004). The doctrine of res judicata incorporates a universal precept of common-law jurisprudence to the effect that a question distinctly put in issue and directly decided by a court of competent jurisdiction cannot be disputed in a subsequent suit between the same parties. Rialto Theatre. Inc. v. Commonwealth Theatres. Inc.. 714 P.2d 328, 336 (Wyo. 1986).

"The criteria used to determine res judicata's applicability to a situation are: (1) the parties were identical; (2) the subject matter was identical; (3) the issues were the same and related to the subject matter; and (4) the capacities of the persons were identical in reference to both the subject matter and the issues between them." Newell v. Trumper. 765 P.2d 1353, 1355 (Wyo. 1988).

In the case at bar, all four factors exist, mandating dismissal. The parties, Michael Dee and the State of Wyoming are identical in both lawsuits filed by Dee. The subject matter of both lawsuits relates to a declaratory action seeking to find a Fourth and Fifth Amendment right in possession of marijuana. The issues raised are identical in both complaints, whether marijuana possession is a fundamental right. Finally, the capacity of Michael Dee as plaintiff and the State of Wyoming as defendant are identical in reference to the marijuana laws of Wyoming, and Dee's desire to possess and use marijuana with impunity. A review of the complaint in Case No. 0102-169223 and Case No. 169-897 reveals that the claims previously decided against Plaintiff Dee have now been raised again.

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The State of Wyoming is entitled to dismissal of the complaint in the case at bar based upon the doctrine of res judicata. Plaintiff has failed to state a claim upon which relief can be granted. See: Rawlinson v. Wallerich. 2006 WY 52, If 8, 132 P.3d 204, 207 (2006).

Merits of Constitutional Claims

In the event the Court chooses to go beyond the affirmative defense of res judicata, the State of Wyoming will again address the merits of Plaintiff Dee's claims.

Plaintiff Dee again contends that criminalizing possession, growing, and use of marijuana violates the Fourth Amendment. The Fourth Amendment of the United States Constitution protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...." The argument that Plaintiff Dee's Fourth Amendment rights were violated due to the criminalizing of possessing, growing, or using marijuana is patently frivolous. There is no correlation between Plaintiff Dee's argument and the Fourth Amendment. Plaintiff Dee's contention is merely that possession and use of marijuana is a fundamental constitutional right.

Plaintiff Dee also contends that the criminalizing of marijuana deprived him of his Fifth Amendment rights. The Fifth Amendment of the United States Constitution provides that "[n]o person shall ... be deprived of life, liberty, or property, without due process of law ...." Plaintiff Dee's only deprivation of property would have been for his conviction for possession of a controlled substance, when his illegally possessed marijuana was seized and forfeited. However Plaintiff Dee

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was afforded due process, in the criminal justice proceedings of his case. Thus, this argument as well is patently frivolous.

Plaintiff Dee claims that he has a fundamental right to possess marijuana. His contention has been addressed many times and denied many times, and this is not the only court before which Plaintiff Dee has made this claim. The United States District Court, in a prior case filed by Plaintiff Dee stated, "It has long been established that use of marijuana is not a fundamental right protected by the Constitution." Dee v. U.S.. 241 F. Supp.2d 50, 51 (D.Me. 2003). See also. Pearson v. McCaffrey. 139F. Supp.2d 113,123 (D.D.C. 2001); State v. Williams. 93 Wash. App. 340,345,968 P.2d 26,29 (1998), review denied. 138 Wash. 2d 1002, 984 P.2d 1034 (1999); State v. Hanson. 468 N.W.2d 77 (Minn. Ct. App. 1991); Kuromiva v. United States. 37 F. Supp.2d 717, 725 (E.D. Pa. 1999); United States v. Fogartv. 692 F.2d 542, 549 (8th Cir. 1982); United States v. Maas. 551 F. Supp. 645, 646-47 (D.N.J. 1982); Wolkind v. Selph. 495 F. Supp. 507, 510 (E.D. Va. 1980); NORML v. Bell. 488 F. Supp. 123, 132-33 (D.D.C. 1980) (three judge court).

Plaintiff Dee has personally been put on notice in the past that there is no fundamental right to possess marijuana, and any attempt by him to now pursue this claim is frivolous. Dee v. U.S.. 241 F.Supp.2d at 51. The court in his prior case enjoined Plaintiff Dee from filing any further lawsuits in that court due to his previous frivolous filings of a claimed constitutional right to use marijuana. Id. at 50.

The Wyoming Supreme Court has previously stated:

[T]he Wyoming Constitution expressly recognizes the legislative department's police power, hi Article 2, § 1, of the Wyoming Constitution, the people have granted the legislative department its powers of government, hi Article 10, § 2, of the Wyoming Constitution, the people have specifically granted the legislative department the

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police power of the state which "is supreme over all corporations as well as individuals."

Greenwalt v. Ram Restaurant Corp. of Wyoming. 2003 WY 77, If 18,71 P.3d 717,725 (Wyo. 2003). The State of Wyoming through its police power has the ability to "regulate private activities and property usage without compensation as a means of promoting the public health, safety, morals, and general welfare." Cheyenne Airport Board v. Rogers. 707 P.2d 717, 726 (Wyo. 1985).

Contrary to Plaintiff Dee's contention, regulating the use of controlled substances protects the "public health, safety, morals, and general welfare," and is well within the legislature's authority. Marijuana is reasonably classified as a controlled substance, hi Dee v. U.S.. the court stated, "Every federal court that has considered the matter, so far as we are aware, has accepted the congressional determination that marijuana in fact poses a real threat to individual health and social welfare, and has upheld the criminal sanctions for possession and distribution of marijuana even where such sanctions infringe on the free exercise of religion." 241 F. Supp.2d at 51. quoting U.S. v. Rush. 738 F.2d 497, 512 (IstCir. 1984).

The Wyoming Supreme Court in Vascmez v. State. 990 P.2d 476,485 (Wyo. 1999), held that analysis under the state constitution is required whenever a party has raised a state constitutional claim and provided proper argument and briefing, using a precise and analytically sound approach. The Court has further said that, where a defendant has adequately presented a state constitutional claim, "state constitutional analysis takes primacy - that is, the claim is analyzed first under our state constitution." O'Bovle v. State. 2005 WY 83, ^ 22, 117 P.3d 401, 408 (Wyo. 2005); See also Vasquez. 990 P.2d at 484-486. However, the Court has also held that, where a party fails to adopt

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a "precise and analytically sound approach" in presenting a state constitutional claim, the Court will decline to consider the issue. O'Bovle. ^ 22, (citing Doles v. State. 994 P.2d 315,320 (Wyo. 1999); Putnam v. State. 995 P.2d 632, 640 (Wyo. 2000); Bailey v. State. 12 P.3d 173, 177 (Wyo. 2000)). Plaintiff Dee failed to provide any state constitutional claim; therefore, the court should not consider this issue.

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CONCLUSION

hi the case at bar, Plaintiff Dee again alleges he has a fundamental right to possess, use, and grow marijuana, and that WYO. STAT. ANN. § 3 5-7-1001, et. seq. is unconstitutional. This Court and other courts have previously ruled that there is no constitutional right to possess, use, or grow marijuana, and Plaintiff Dee has personally been put on notice of this in the past. Plaintiff Dee's claims are frivolous and should be dealt with as such.

WHEREFORE, Defendant respectfully requests that this Court grant its Motion to Dismiss and find that the doctrine of res judicata bars the present action by Plaintiff.

RESPECTFULLY SUBMITTED this Q_ day of June, 2007.

State of Wyoming, Defendant
By:

Terry L. Armitage
Deputy Attorney General
123 Capitol Building
Cheyenne, Wyoming 82002
307/777-7977