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Public Hearing February 18, 2016

Joint Standing Committee on Judiciary
Senator David C. Burns, Senate Chair

Representative Barry J. Hobbins, House Chair

POSITION:  Chief Justice, Supreme Judicial Court and Justice of the Law Court

NOMINEE:  Honorable Leigh I. Saufley of Portland

Chief Justice Saufley should not be reconfirmed as chief justice of the Maine Supreme Judicial Court.

The decisions of the law court under Chief Justice Saufley’s leadership has demonstrated a willful and repeated disregard of explicit requirements of the law, the Fourth and Fourteenth Amendments of the Constitution of the United States, violating Maine Judicial Code of Conduct, Canon 2 Rule 2.2. (p. A-1) Police power is either reasonable or unreasonable not rational or irrational. The operation and effect of the marijuana laws use of police power is to seize a person and effects and deprive that person of their  fundamental rights of liberty and property.

 Following the trail of citations from State v Dee 2012 ME 26 (p. A-3)to and you will find in 1998 Nugent v. Town of Camden ( p.A-4) where Justice Saufley changed state police power from reasonable to rational using the same three criteria. She changed the type of judicial review of laws that use state police power from strict scrutiny requiring facts that show a compelling state interest to rational basis standard of review requiring only some “theoretical explanation.” (State v Dee, 2012 ME 26 [¶3]) (p, A-3) The law court has declared the marijuana laws are constitutional and a political question.

In the Drug Wars, Chief Justice Saufley’ court has denied me equal justice under law by denying me equal protection of the law, the Fourth and Fourteenth Amendments.  Chief Justice Saufley’s court has declared the possession of marijuana does not implicate any fundamental rights (id. P. A-3)). It has been declared the use of state police power does not deprive anyone of their fundamental rights of liberty and property because possession of marijuana is not a fundamental right. From the beginning I have not asked any court to declare marijuana a fundamental right. The justices have willfully lied about the facts of cases presented.

The Maine Supreme Judicial Court under the leadership of Chief Justice Saufley has willfully ignored the law, the use of police power is either reasonable or unreasonable. The Maine Constitution Art. IV part 3 § 1 (p. A- 1) last sentence “The legislature… shall have full power to make and establish all reasonable laws and regulation. The Fourth Amendment says the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not violated refers to the law not just the operation of the law. The Fourteenth Amendment declares the no state shall deprive a person of life, liberty, and property without due process of law nor deny equal protection of the law. Substantive due process of law requires laws that deprive fundamental rights, to be reasonable, must be justified by a compelling state interest, as stated in the Legislature’s Handbook. (p. A-2)

The Maine judiciary has repeatedly denied my claim that the enforcement of the marijuana laws was unreasonable use of state police power that deprived me my fundamental rights to liberty and property without a compelling state interest, without due process of law contravening the Fourth and Fourteenth Amendments. The judiciary has denied my claim that my right to be secure in my person and effects against unreasonable seizures has been violated. This court has denied my claim that the marijuana laws are arbitrarily enforced by declaring the penalties are not arbitrary, violating due process of law. (2012 ME 26) (p.A-3). The law court has declared these claims to be frivolous, (2014 ME 106). (p.A-3)

The two summons for possessing marijuana issued by capitol police at the state house ordering me to appear in court was seizure of my person and deprivation of my liberty. Seizing marijuana was deprivation of my property. Both times Capitol police were not going to enforce the law demonstrating arbitrary power. I insisted because the law court declared that I had to be prosecuted to question the validity and construction of the marijuana laws in a declaratory judgment lawsuit. (p. A-1)

With claimed injury to my fundamental rights to liberty and property, judicial standard of review should of been strict scrutiny not rational basis. This requires the court to demand from the state the reasons, what the compelling state interest was that shows the laws that authorize police power are reasonable and necessary to deprive me of my fundamental rights of liberty and property. The use of police power is to protect public health, safety and morals. The possession of marijuana at the state house did not pose a threat to public safety.

Declaring state police power is a political question, Saufley has demonstrated she is incompetent to defend individual rights and disqualifies her to continue as chief Justice of the Maine Supreme Judicial Court. The Fourth Amendment does not say that the right of the people to be secure in their persons, houses, papers and effects against irrational searches and seizure shall not be violated. The Maine constitution  does not say the  legislature has the authority to make rational laws and regulations.

Chief Justice Saufley has continued the failure of law court’s mission to administer justice by providing an impartial system of dispute resolution that serves public interest, protects individual rights and instills respect for the law.

Chief Justice Saufley violated her oath office to uphold the Constitutions to defend political police power and the drug cartels and should be denied reappointment  as Chief Justice of the Maine Supreme Judicial Court.

Michael J. Dee
29 Hillcrest St.
Augusta, Maine 04330
207.894.0319

A-1

Thomas Jefferson, in his first inaugural address In the Washington, D.C. Wednesday, March 4, 1801."Though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression."

                                                 State of Maine Judicial Branch
Mission: To administer justice by providing a safe, accessible, efficient and impartial system of dispute resolution that serves public interest, protects individual rights and instills respect for the law. http://courts.maine.gov/index.shtml

Maine Code of Judicial conduct
http://www.jrd.maine.gov/code_conduct.html

CANON 1 A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary;
RULE 1.1 Compliance with the Law A judge shall comply with the law and the Maine Code of Judicial Conduct.

RULE 2.2 Impartiality and Fairness; Upholding the Law A judge shall uphold and apply the law, ...An error of law in a judicial decision, whether recognized on appeal or not, shall not constitute a violation of this Code unless the judge's action demonstrates willful or repeated disregard of explicit requirements of the law.

Maine Constitution

Article I Section 1. Natural rights. All people are born equally free and independent, and have certain natural, inherent and unalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and of pursuing and obtaining safety and happiness.

Art. IV part 3 § 1 last sentence“ The legislature…, shall have full power to make and establish all reasonable laws and regulation… not repugnant to this constitution nor to that of the United States.

Maine Statute

Title 14 M.R.S.A. §5954. Construction and validity of statutes 
http://janus.state.me.us/legis/statutes/14/title14sec5954.html
"Any person … whose rights, … are affected by a statute,...may have determined any question of construction or validity arising under the … statute… obtain a declaration of rights.. " ( The key word is "may".)

Constitution of the United States

Fourth Amendment: The right of the people to be secure in their person, houses papers and effects against unreasonable searches and seizure shall not be violated;

A-2

Fourteenth Amendment First section: "Because all persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. "

MAINE LEGISLATURES’ HANDBOOK

https://legislature.maine.gov/doc/2611

D. LIMITS ON LEGISLATIVE POWERS page 49
1.Constitutiona Limitations
a. Equal Protection "The United States Constitution, Amendment XIV Section 1,( Equal Protection Clause) forbids any state to deny any person the equal protection of the laws.” ( see Maine Constitution Article I, section 6-A)  http://www.maine.gov/legis/const/  “Laws that treat persons differently based on … the exercise fundamental constitutional rights are presumed to violate the equal protection clause and will be found to be unconstitutional unless the state has a legitimate and very compelling need for enacting any law that effects people’s exercise of certain fundamental right." “Laws that treat persons differently ... in the exercise of non fundamental rights are generally presumed to be constitutional, unless there is no rational basis for the different treatment.” 

c. Due process. The United States Constitution, Amendment XIV also prohibits the State from depriving any person of life, liberty or property without due process of law (see also the Maine Constitution, Article I, Section 6-A). ... In general, substantive due process requires the State to have a legitimate and very compelling need for enacting any law that affects people’s exercise of certain fundamental rights, such as the right to freely associate, the right to vote, the right to interstate travel and the right to privacy. 

A-3

CASE LAW
Dee v State of Maine 2014 Me 106

law.justia.com/cases/maine/supreme-court/2014/2014-me-106.html

Dee v. State | 2014 ME 106 | Me. | Judgment | Law | CaseMine

Per Curiam: [¶1]Specifically, he contends that the statutes violate the Fourth and Fourteenth Amendments of the United States Constitution. See U.S. Const. amends. IV, XIV, § 1. The court found that several Maine courts have already considered and rejected Dee’s arguments, and determined that the suit was frivolous. We agree and affirm the judgment.

                                           State v. Dee, 2012 ME 26, ¶ 2 n.1, 39 A.3d42

Per Curiam
[¶2] Dee argues that Maine’s prohibition of the possession of marijuana unconstitutionally infringes on his right to due process guaranteed by the Fourteenth Amendment to the United States Constitution. This is not the first time that Dee has litigated the constitutionality of marijuana prohibitions before the courts of Maine and elsewhere. Dee concedes that he does not have a fundamental right to possess marijuana, but he insists that the prohibition violates “his fundamental right to liberty and to property.” Notwithstanding this linguistic leap, we are not persuaded that Dee’s possession of marijuana implicates any of his fundamental rights.

[¶3] Where fundamental rights are not implicated, we review the validity of a statute exercising the State’s police power for a rational basis, which requires that “(1) the police powers be exercised to provide for the public welfare; (2) the legislative means employed be appropriate to achieve the ends sought; and (3) the manner of exercising the power not be unduly arbitrary or capricious.” State v. Haskell, 2008 ME 82, ¶¶ 5-6, 955 A.2d 737 (quotation marks omitted). There need only be some theoretical explanation for the statute, and the Legislature is not required to provide the facts that justify its enactment.

[¶4] Finally, the manner of exercising the police power, imposing a maximum civil fine of $1000 for possession of up to 2 1/2 ounces of marijuana, cannot be described as arbitrary or capricious. See 22 M.R.S. § 2383(1)(A); Haskell, 2008 ME 82, ¶ 6, 955 A.2d 737.

State v. Haskell, 2008 ME 82, ¶¶ 5-6, 955 A.2d 737 

law.justia.com/cases/maine/supreme-court/1998/1998-me-92-0.html

Alexander J.

[¶5] When the State exercises its police power to regulate for the general welfare and a fundamental right is not at issue, statutes are subjected to rational basis review. See State v. Nat’l Advertising Co., 409 A.2d 1277, 1288 (Me. 1979).
[¶6] Under a rational basis review, due process requires that (1) the police powers be exercised to provide for the public welfare; (2) the legislative means employed be appropriate to achieve the ends sought; and (3) “the manner of exercising the power not be unduly arbitrary or capricious.”A-4  Nugent v. Town of Camden, 1998 ME 92, ¶ 18, 710 A.2d 245, 249.

                                      Nugent v. Town of Camden, 1998 ME 92, ¶ 18, 710 A.2d 245, 249.
                     law.justia.com/cases/maine/supreme-court/1998/1998-me-92-0.html

SAUFLEY, J.
 [¶18]    "A substantive due process analysis focuses on the rationality of the enactment, that is, on whether the regulation at issue is in the interest of the public welfare and whether the methods used bear a rational relationship to its intended goals."  Daley v. Commissioner, Dept. of Marine Resources, 1997 ME 183, ¶ 7 n.7, 698 A.2d 1053, 1056; see also Rush, 324 A.2d 752-54 (state action does not violate substantive due process where it is rationally related to a legitimate state interest).  Concepts of due process require (1) that the object of the Town's exercise of its police powers be to  provide for the public welfare, (2) that the legislative means employed must be appropriate to achieve the ends sought, and (3) that the manner of exercising the power must not be unduly arbitrary or capricious.  See Danish Health Club v. Town of Kittery, 562 A.2d 663, 665 (Me. 1989);

                                                State v Rush, 324 A.2d 752-54 
           (C & P) http://law.justia.com/cases/maine/supreme-court/1974/324-a-2d-748-0.html

DELAHANTY, Justice. Although variously expressed, it is established that the requirements of due process exact that the law shall not be unreasonable, arbitrary, or capricious and that the state's police power can be properly exercised only when there is a reasonable relationship to the public health, safety, morals, or welfare. West Coast Hotel v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703(1937); Nebbia v. People, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940 (1934).

The requirements of due process in the exercise of the police power may be analytically separated into three component elements:
1. The object of the exercise must be to provide for the public welfare.
2. The legislative means employed must be appropriate to the achievement of the ends sought.
3. The manner of exercising the power must not be unduly arbitrary or capricious.

                       Danish Health Club v. Town of Kittery, 562 A.2d 663, 665 (Me. 1989) (C&P)  http://law.justia.com/cases/maine/supreme-court/1989/562-a-2d-663-0.html
Justice GLASSMAN wrote: “Under the due process clauses of the federal and state constitutions, a town ordinance must ‘bear a reasonable relationship to the public health, safety, morals or general welfare’ and *665 ‘must not be unreasonable, arbitrary, or discriminatory.’ ”  (citations deleted) We have separated the requirements of due process in the exercise of police power into three component elements:
1. The object of the exercise must be to provide for the public welfare.
2. The legislative means employed must be appropriate to the achievement of the ends sought.
3. The manner of exercising the power must not be unduly arbitrary or capricious.