IN
THE
UNITED
STATES DISTRICT COURT
NORTHERN
DISTRICT OF CALIFORNIA
JOHN PHILLIPS, ) Civil Action No. ____________________
)
Petitioner, )
) PETITION FOR DECLARATORY
vs. ) AND INJUNCTIVE RELIEF
)
KAREN P. TANDY,
Administrator, )
for the Northern District of
California, )
Governor of the State of
)
Respondents. )
__________________________________ )
STATEMENT OF THE CASE
Petitioner is
federally licensed to grow and sell marijuana.
See Exhibit A. Respondents,
unless enjoined by this Court, will continue to attempt to cripple Plaintiff’s
business.
JURISDICTION
1. Jurisdiction of this Court is invoked
pursuant to 42 U.S.C. § 1985, 42 U.S.C § 1983, 28 U.S.C. §§ 2201 and 2202,
28 U.S.C § 1367(a), 28 U.S.C. § 1331,
and Federal Rule of Criminal Procedure 6(a).
PARTIES
2. Petitioner John Phillips is a private
citizen with a residential address of
3.
officers, agencies, boards and commissions is provided by the Office of the
City Attorney (OCA). The OCA drafts
ordinances, resolutions, contracts and other legal
documents requested by City officials and departments, reviews
the form and legality of all City contracts, and represents the City in litigation
matters. The current
City Attorney is John Russo with a business
address of Oakland City Attorney, City Hall, 6th Floor, 1 Frank Ogawa
Plaza, Oakland, California 94612.
4. Respondent Karen P. Tandy is the Administrator
of the Drug Enforcement Administration (“DEA”) with a business address of
Drug Enforcement
Administration, Mailstop
5. Respondent Scott N. Schools is the United
States Attorney for the Northern District of California with a business address
of U.S. Attorney’s
Office, Northern District of California,
6. Respondent
FACTS
7. Petitioner is federally licensed to
grow and sell marijuana. See Exhibit A,
attached hereto.
8.
The State of
Health and Safety Code § 11362.5
9. Despite the fact that Petitioner had all
necessary permits and paid all taxes due for his business, he was prosecuted
by the State of California for
running his business and is, at this time, denied the right to earn a living
by Respondent City of Oakland, California (hereinafter, “City of Oakland”),
in that
Respondent City of Oakland will not allow him to open a storefront in downtown
Oakland.
10.
The case file for Petitioner’s criminal prosecution is 488924A, Superior
Court of California,
and belief that case is, at the moment, sealed and not open for public inspection.
11.
A review of
regard to the will of the
LEGAL CLAIMS
FIRST CAUSE OF ACTION
Equal Protection of the Law
Against City of Oakland
12. Petitioner
is just as entitled to open a storefront business as anyone else. The law in this regard is quite clear.
13. There
must be a rational relation to some legitimate end. Romer v. Evans, 116
S.Ct. 1620, 1627 (1996).
14.
It is unlawful to punish some for what is permitted to others as lawful
. . . administered by public authority with an evil eye and an unequal hand.
Yick Wo v.
15.
The actions of the State of
Dumar v. Kipp, 90 F.3d 386, 392 (9th Cir. 1996).
16.
Equal Protection prohibits “arbitrary and irrational discrimination”
even if no suspect class or fundamental right is implicated.
Muller v. Costello, 187 F.3d 298 (2nd Cir. 1999) (citation omitted).
17. When no suspect class is involved, no fundamental
right burdened, we are obligated to apply a rational basis test to determine
the
legitimacy of the state’s classification. O’Neal v. City of
18. Petitioner is well aware of the planned
excuses for the actions of Respondent City of Oakland, such as the “threat
of crime,” etc.
Such reasoning could just as easily apply to gun stores, though the regulation
of firearms and marijuana are essentially the same issue
(beyond the authority of the federal Congress to regulate).
SECOND CAUSE OF ACTION
Right to Earn a Living
Against City of Oakland
19.
By prohibiting Petitioner from opening up a storefront in downtown
to earn a living. The law regarding this issue is quite clear
as well.
20.
The liberty protected by the due process clause of the Fourteenth Amendment
encompasses an individual’s freedom to work and to earn
a living. Bollow v. Federal Reserve
Bank of
THIRD CAUSE OF ACTION
Violation of Supremacy Clause
Against City of Oakland
21.
Petitioner has a federal
permit to grow and sell marijuana for medical purposes.
As such, neither Respondent City of Oakland nor
Respondent Governor Arnold Schwarzenegger or any of his agencies (acting for
the State of
Petitioner’s legitimate business.
“Federal preemption of state
law is rooted in the Supremacy Clause, Article VI, clause 2, of the United
States Constitution.”
Transmission Agency of California v. Sierra Pacific Power Co., 295 F.3d
918, 928 (9th Cir. 2002) (hereinafter “TANC”).
“Preemption of state law ‘is compelled whether Congress’ command is explicitly
stated in the statute’s language or implicitly
contained in its structure and purpose.’”
In the absence of express preemption,
federal law may preempt state claims in two ways, both of which the district
court held
barred
falling within that field is preempted.” Silkwood
v. Kerr-McGee Corp., 464
preemption
extent it actually conflicts with federal law, that is, when it is impossible
to comply with both state and federal law,
or where the state law stands as an obstacle to the accomplishment of the
full purposes and objectives of Congress.”
Id.
California ex rel Lockyer v. Dynegy, Inc., 375 F.3d 831 (2004).
22. Jurisdiction
for this issue is determined under 28 U.S.C. § 1331, not 42 U.S.C § 1983.
The Council misconceives the
nature of this action and the meaning of the Shaw footnote. This is not an action brought
directly under 29 U.S.C. § 1132(a). It
is an action for injunctive and declaratory relief from state regulation based
on
federal question jurisdiction, 28 U.S.C. § 1331.
See New
Orleans Public Service, Inc. v.
(5th Cir.) (
As the Court in Shaw asserted, “[a] plaintiff who seeks injunctive
relief from state regulation, on the ground that such regulation is
pre-empted by a federal statute which, by virtue of the Supremacy Clause of
the Constitution, must prevail, . . . presents
a federal question which the federal courts have jurisdiction under 28 U.S.C.
§ 1331 to resolve.” 463
see also
This rule has been applied in numerous cases in this and other circuits.
See, e.g., Martori Brothers Distributors v. James-Massengale,
781 F.2d 1349, 1353 (9th Cir.) (Martori),
amended, 791 F.2d 799, cert. denied, 479 U.S. 949, 107 S.Ct. 435,
93 L.Ed.2d 385 (1986); Southern Pacific
Transportation Co. v.
Public Utilities Commission, 716 F.2d 1285, 1288 (9th Cir. 1983), cert.
denied, 466 U.S. 936, 104 S.Ct. 1908, 80 L.Ed.2d 457
(1984); Colonial Penn Group, Inc. v. Colonial Deposit Co., 834 F.2d
229, 236-37 (1st Cir. 1987); New Orleans, 782 F.2d at
1240-41; Aluminum Co. of America v. Utilities Commission of North Carolina,
713 F.2d 1024, 1028 (4th Cir. 1983), cert. denied,
465 U.S. 1052, 104 S.Ct. 1326, 79 L.Ed.2d 722 (1984); Pacific
Merchant Shipping Association v. Aubry, 709 F.Supp.
1516, 1521-22 (C.D. Cal. 1989). Here,
Hydrostorage is seeking, among other remedies, injunctive relief from state
regulation,
arguing that the underlying state statutes are preempted under the supremacy
clause by ERISA. In a case such as
this, the
supremacy clause and the federal statute provide subject matter jurisdiction
under 28 U.S.C. § 1331.
We conclude that the district court had jurisdiction under 28 U.S.C. § 1331.
Hydrostorage Inc. v.
FOURTH CAUSE OF ACTION
Access to the Federal Grand Jury
Against Scott N.
Schools , U.S.
23.
Petitioner has been subject to misuse of the legal process of various
individuals and entities, in violation by 18 U.S.C. §§ 241
and 242 (18 U.S.C. § 241 addresses conspiracy in violation of the rights of
citizens, § 242 is an act or acts—perpetrated by individuals).
24.
No United States Attorney vigorously pursues violation of those statutes
and, in fact, “sweeps them under the rug” at every available
opportunity, a situation that has arisen because U.S. Attorneys and their
associates regularly block citizen access to the grand jury, in violation
of
18 U.S.C. § 1503 (obstruction of justice).
25. This
Court can convene a grand jury, see Federal Rule of
Criminal Procedure 6(a), without the permission of the U.S. Attorney.
26.
Petitioner has a right to present his evidence of violations of federal
criminal law to the federal grand jury.
See Application of Wood, 833 F.2d 113 (8th
Cir. 1987).
27. The public has a right to every man’s evidence.
In re Grand Jury Subpoena Duces Tecum, 1 F.3d 87, 94
(2nd Cir. 1993) (citing Branzburg v. Hayes, 92 S.Ct. 2646, 2660 (1972));
Matter of Crededio, 759 F.2d 589, 593,
n. 2 (7th Cir. 1985); Grand Jury Proceedings (Williams) v.
FIFTH CAUSE OF ACTION
Unconstitutionality of 21 U.S.C. § 801 et seq.
Against Karen P. Tandy, DEA
Administrator and Scott N. Schools , U.S.
28. The
function of the courts has been quite clear to Congress since the founding of
this Republic.
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
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,
29.
It appears to be the function of government agencies, such as the DEA,
to enforce unconstitutional laws with as much
vigor as possible. This Court should consider the following.
Section 1 of the Narcotic Act
creates the offense of selling any of the forbidden drugs except in or from
the original stamped package;
and § 2 creates the offense of selling any of such drugs not in pursuance
of a written order of the person to whom the drug is sold.
Thus, upon the face of the statute, two distinct offenses are created.
Here there was but one sale, and the question is whether, both
sections being violated by the same act, the accused committed two offenses
or only one.
The statute is not aimed at
sales of the forbidden drugs qua sales, a matter entirely beyond the authority
of Congress, but at sales of
such drugs in violation of the requirements set forth in §§ 1 and 2, enacted
as aids to the enforcement of the stamp tax imposed by the act.
See Alston v.
Blockburger v.
30.
The question here is, where did Congress obtain the authority to enact
our modern drug laws, see 21 U.S.C. § 801 et seq.,
beginning in 1970 under the Nixon administration?
Each of the offenses created
requires proof of a different element. The
applicable rule is that where the same act or transaction constitutes
a violation of two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one, is whether
each provision requires proof of a fact which the other does not. Gavieres v. United States, 220
In that case this court quoted from and adopted the language of the Supreme
Court of Massachusetts in Morey v. Commonwealth,
108 Mass. 433
other does not, an acquittal or conviction under either statute does not exempt
the defendant from prosecution and punishment under the other.”
Compare Albrecht v. United States, 273
although both sections were violated by the one sale, two offenses were committed.
The indictment passes the Blockburger
test because each count required proof of an additional fact not required
to be proved in the others.
Blockburger v.
31.
I.e., it appears that the United States Attorney and the D.E.A
are allowed to “stack” charges on statutes that Congress had no
authority to enact in the first place.
RELIEF
REQUESTED
WHEREFORE,
Petitioner John Phillips moves this Court to
1. Enjoin the City of Oakland, California
from prohibiting the Petitioner from opening a storefront in downtown
2. Prohibit the Respondents from
initiating criminal prosecution or other discriminatory acts against Petitioner
for the running of his lawful business.
3. A declaratory judgment, pursuant to 28
U.S.C. § 2201, that no agency or employee of the State of
4. That this Court convene
a grand jury to investigate, not prosecute, Petitioner’s complaints
of violations of federal criminal law.
See Federal Rule of Criminal Procedure 6(a).
5. That this Court declare that the
federal Congress had no authority to enact 21 U.S.C. § 801 et seq.
6. That this Petitioner be allowed to
discovery against all Respondents.
7. That this Petitioner be allowed to
amend his Complaint upon completion of discovery.
8. Such other relief as this Court deems
just, proper, and equitable.
Respectfully
submitted,
Dated
____________________________
John
Phillips
???????????????????????????
VERIFICATION
OF COMPLAINT
I verify under penalty of
perjury, that I am the plaintiff in the above entitled action; I have read
the above complaint and have knowledge
of the facts stated therein, and the matters and things stated there are true
and correct, except as to those matters stated to be on information and belief,
and as to those matters I verify as aforesaid that I verily believe them to
be true.
____________________________
John
Phillips
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