UNITED
STATES DISTRICT COURT
NORTHERN
DISTRICT OF CALIFORNIA
JOHN PHILLIPS, ) Case No. C07-03885
)
Petitioner, )
)
vs. )
)
CITY OF OAKLAND, CALIFORNIA, )
KAREN P. TANDY,
Administrator, )
U.S. Drug Enforcement
Administration, )
SCOTT N. SCHOOLS, U.S. Attorney )
for the Northern District of
California, )
ARNOLD SCHWARZENEGGER, ) DATE: October 3,
2007
Governor of the State of California, ) TIME: 09:30 AM
)
COURTROOM: F, 15th Floor
Respondents. )
__________________________________ )
PETITIONER’S OBJECTION TO RESPONDENT
CITY OF OAKLAND’S
MOTION TO DISMISS
COMES the Petitioner in the
above-entitled action, John Phillips, and opposes Respondent City of Oakland’s
Motion to Dismiss for any and several of the following reasons:
1. Respondent City of Oakland, California, is
ignoring the provision of 21 U.S.C. §
822.
2. Federal
law trumps state law.
3. There
are other factors this Court should consider.
See Memorandum
of Law, attached hereto.
WHEREFORE, Petitioner
John Phillips moves this Court to set a Scheduling Order and grant him
discovery.
. . .
Respectfully
submitted,
Dated: September ___, 2007
____________________________
John
Phillips
???????????????????????????????
UNITED
STATES DISTRICT COURT
NORTHERN
DISTRICT OF CALIFORNIA
JOHN PHILLIPS, ) Case No. C07-03885
)
Petitioner, )
)
vs. )
)
CITY OF OAKLAND, CALIFORNIA, )
KAREN P. TANDY, Administrator, )
U.S. Drug Enforcement
Administration, )
SCOTT N. SCHOOLS, U.S. Attorney )
for the Northern District of
California, )
ARNOLD SCHWARZENEGGER, ) DATE: October 3,
2007
Governor of the State of California, ) TIME: 09:30 AM
)
COURTROOM: F, 15th Floor
Respondents. )
__________________________________ )
MEMORANDUM OF LAW IN SUPPORT OF
PETITIONER’S OBJECTION TO RESPONDENT
CITY OF OAKLAND’S
MOTION TO DISMISS
COMES the Petitioner in the
above-entitled action, John Phillips, and would show this Court the following.
1. Respondent
City of Oakland, California, is ignoring the provision of 21 U.S.C. § 822.
Petitioner’s federal registration is
attached hereto as Exhibit A.
The “no basis under federal law for a
right or license to sell marijuana” is plainly contradicted by 21 U.S.C. § 822.
The DEA points out that it
can license marijuana production, see 21 U.S.C. §§ 822-23; 28 C.F.R. § 0.100(b)
(1999).
New Hampshire Hemp Council, Inc. v. Marshall, 203
F.3d 1 (1st Cir. 2000).
2. Federal
law trumps state law.
It is black letter law that federal law
trumps state law. Respondent City of Oakland makes much
of California case law.
It is equally clear that federal courts do
not take guidance from state courts.
3. There
are other factors this Court should consider.
Respondent City of Oakland’s
citations of federal authority give no mention of 21 U.S.C. § 822, however,
they do raise other issues this Court should address.
Respondents also raise a substantive
due process claim and seek to avail themselves of the medical necessity defense.
These theories of relief were set forth in their
complaint but were not reached by the Court of Appeals.
We therefore do not address the question whether judicial relief is
available to respondents on these
alternative bases. We do note, however,
the presence of another avenue of relief.
As the Solicitor General confirmed during oral argument, the statute
authorizes
procedures for the reclassification of Schedule I drugs. But perhaps even more important than these legal
avenues is the democratic process, in which the
voices of voters allied with these respondents may one day be heard in the
halls of Congress.
Gonzales v. Raich, 545 U.S. 1, 125
S.Ct. 2195, 162 L.Ed.2d 1 (2005).
Unfortunately, what Congress has done
in this issue is merely act as a “tyranny of the majority.”
See, e.g., L. Guinier, Tyranny of the Majority 77 (1994); J. Ely, Democracy and Distrust
84 (1980); cf. Letter
from James Madison to Thomas Jefferson, (Oct. 24, 1787),
reprinted in Republic of Letters 502 (J. Smith ed. 1995) (arguing that
“[t]he great desideratum in Government is . . . to modify the sovereignty
as that it may be sufficiently neutral
between different parts of the Society” and thus prevent a fixed majority
from oppressing the minority).
Which is exactly
what has happened to the States that have legalized medicinal marijuana at the
hands of the other, majority states.
The interpretation
of the laws is the proper and peculiar province of the courts.
A constitution is in fact, and must be, regarded by the judges as a
fundamental law.
It therefore belongs to them to ascertain its meaning as well as the meaning
of any particular act proceeding from the legislative body.
The Federalist No. 78, at
525 (A. Hamilton) (J. Cooke ed. 1961). The
independence of the judiciary was essential to Hamilton. In the same paper he wrote:
The complete independence of
the courts of justice is peculiarly essential in a limited constitution. .
. . Limitations . . . can be preserved in practice no other way
than through the medium of the courts of justice; whose duty it must be to
declare all acts contrary to the manifest tenor of the constitution void.
Without this, all the reservations of particular rights or privileges would
amount to nothing.
Id. at 524.
Justice Story’s commentaries
emphasized the importance of independent judges for the protection of
minorities from the tyranny of the majority.
This independence of the judges
is equally requisite to guard the Constitution and the rights of individuals
from the effects of those ill humors which the arts
of designing men or the influence of particular conjunctures sometimes disseminate
among the people themselves; and which, though they speedily
give place to better information and more deliberate reflection, have a tendency,
in the mean time, to occasion dangerous innovations in the
government, and serious oppressions of the minor party in the community.
2 J. Story, Commentaries
on the Constitution of the United
States 403 (1873).
Pacemaker Diagnostic Clinic of America Inc. v. Instromedix Inc., 725 F.2d 537 (9th Cir.
1984).
Mr. McKEOWN. . . . What is free
government? In its last analysis it
is the intelligent and impartial administration of justice. It is public justice that holds
the Union together. It is to the courts that
we look for the protection of our lives, liberty, reputation, and rights of
property. The people have a greater
concern in the judicial branch of the Government than in any other. It is to the courts that the people look to
protect them in their rights against the
Nation or the world. The courts deal with the people in every relation
of life from the day they enter the world, and direct the affairs of their
estates
and guide their hands after death in the distribution of their property. .
. .
Congressional Record, June 3, 1930, Volume 72, p. 9988.
I.e., the Supreme Court should
not have shirked its responsibility and “passed the buck.” There are other problems as well.
Marijuana is classified as
a Schedule I substance, §812(c), based on its high potential for abuse, no
accepted medical use, and no accepted safety
for use in medically supervised treatment, §812(b)(1).
This classification renders the manufacture, distribution, or possession
of marijuana a
criminal offense. §§841(a)(1), 844(a).
Pp. 6-11.
Gonzales v. Raich, supra.
“No accepted medical use” is
contradicted by California’s
Compassionate Use Act, as is the case in eight other states.
California is one of at least nine
States that authorize the use of marijuana for medicinal purposes.
Id.
It is only a criminal offense if the individual involved is not
“authorized by law” or does not have a federal registration.
This was not, however, Congress’
first attempt to regulate the national market in drugs. Rather, as early as
1906 Congress enacted federal legislation
imposing labeling regulations on medications and prohibiting the manufacture
or shipment of any adulterated or misbranded drug traveling in interstate
commerce.
Id.
What the courts have studiously ignored
is the fact that Congress enacted the 1906 Act because “Negroes on cocaine
might rape white women,”
shown on national television on the History Channel, Hooked: Illegal Drugs and How They Got That Way
(Part 2 is posted on YouTube at: “http://www.youtube.com/watch?v=aQlk01sxO_E”).
California has been a pioneer in the
regulation of marijuana. In 1913, California was one of the first States
to prohibit the sale and possession of marijuana.
Gonzales v. Raich, supra.
Marijuana itself was not significantly
regulated by the Federal Government until 1937 when accounts of marijuana’s
addictive qualities
and physiological effects, paired with dissatisfaction with enforcement efforts
at state and local levels, prompted Congress to pass
the Marihuana Tax Act, Pub. L. 75-238, 50 Stat. 551 (repealed 1970).
Id.
Just as black dock workers in the late
nineteenth century were given cocaine to get more work out of them, Hooked,
supra,
the marijuana laws enacted beginning in 1913 targeted a racial group: Mexicans.
As to
Petitioner’s Equal Protection claim, Respondent City of Oakland does a
masterful job of dissembling.
First, Respondent
City of Oakland claims the commercial sale of marijuana is a criminal offense
under state law.
See “Defendant City of Oakland’s Memorandum of Points and Authorities in Support
of Motion to Dismiss,” p. 2.
Second, Respondent
City of Oakland has an ordinance—OMC 5.90—that limits the number of
marijuana dispensaries lest they
“unnecessarily proliferate and become, of course, criminal or nuisance activities.”
There are two
problems here.
Respondent City of Oakland has four
(4) such dispensaries, besides that of Petitioner. Does this same line of reasoning apply to pharmacies,
liquor stores, or gun stores?
The second problem
is that those other dispensaries are not federally licensed. Does the Respondent City of Oakland
discriminate against this Petitioner because he does?
And, if there
are federal laws being violated by Respondent City of Oakland’s dispensaries,
are the employees of the Respondent
City of Oakland violating 18 U.S.C. § 2 (aiding and abetting), 18 U.S.C. §
3 (accessory after the fact), 18 U.S.C. § 4
(misprision of a felony), 21 U.S.C. § 846 (drug conspiracy), etc.?
“Though the law
itself be fair on its face and impartial in appearance, yet, if it is applied
and administered by public authority with an evil eye and an unequal hand,
so as practically to make unjust and illegal discriminations between persons
in similar circumstances, material to their rights, the denial of equal justice
is still within
the prohibition of the constitution.” Yick Wo v. Hopkins, 118 U.S. 356, 373-374,
6 S.Ct. 1064, 1073, 30 L.Ed. 220 (1886).
As the Second Circuit aptly
commented, “nothing can corrode respect for a rule of law more than the knowledge
that the government looks
beyond the law itself to arbitrary considerations, such as race, religion,
or control over the defendant’s exercise of his constitutional
rights, as the basis for determining its applicability.”
Berrios, 501 F.2d at 1209.
United
States v. Bourgeois, 964 F.2d 935 (9th Cir.
1992).
WHEREFORE,
Petitioner John Phillips moves this Court to set a Scheduling Order and grant
him discovery.
Respectfully
submitted,
Dated: September ___, 2007
____________________________
John
Phillips
????????????????????????????????
UNITED
STATES DISTRICT COURT
NORTHERN
DISTRICT OF CALIFORNIA
JOHN PHILLIPS, ) Case No. C07-03885
)
Petitioner, )
)
vs. )
)
CITY OF OAKLAND, CALIFORNIA, )
KAREN P. TANDY,
Administrator, )
U.S. Drug Enforcement
Administration, )
SCOTT N. SCHOOLS, U.S. Attorney )
for the Northern District of
California, )
ARNOLD SCHWARZENEGGER, ) DATE: October 3,
2007
Governor of the State of California, ) TIME: 09:30 AM
)
COURTROOM: F, 15th Floor
Respondents. )
__________________________________ )
CERTIFICATE
OF SERVICE
This
is to certify that I have on this ______ day of September 2007, placed two true
and exact copies of the above and foregoing
PETITIONER’S OBJECTION TO RESPONDENT
CITY OF OAKLAND’S MOTION TO DISMISS
with MEMORANDUM IN
SUPPORT
in the U. S. Mail, first class
postage, prepaid, addressed to:
Rachel Wagner
Office of the City Attorney,
Oakland
One
Frank H. Ogawa Plaza, 6th Floor
Oakland, CA 94612
Attorneys for Respondent City of Oakland
Karen P. Tandy,
Administrator
Drug Enforcement
Administration
Mailstop: AES
2401 Jefferson Davis
Highway
Alexandria, Virginia 22301
Scott N. Schools
United States Attorney
U.S. Attorney’s Office
450 Golden Gate Avenue
Box 36055
San Francisco, California 94102.
JILL BOWERS, State Bar No.
186196
Deputy Attorney General
Office of the California
Attorney General
1300 I Street, Suite 125
P.O. Box 944255
Sacramento, CA 94244-2550
Attorneys for Respondent
California Governor Arnold Schwarzenegger
____________________________
John
Phillips
