MICHAEL A. GLENN

Attorney at Law #6480

1088 Bishop Street Suite 703

Honolulu, Hawaii  96813

(808) 523-3079

 

Attorney for Plaintiffs

RELIGION OF JESUS CHURCH, Et Al.

 

 

 IN THE UNITED STATES DISTRICT COURT

 

DISTRICT OF HAWAII

 

RELIGION OF JESUS CHURCH, THC         )  Civil No.

MINISTRY, REVEREND ROGER                 ) 

CHRISTIE, REVEREND JAMES D.               )  COMPLAINT FOR DECLARATORY

KIMMEL, TAMMY L. VANBUSKIRK,        )  RELIEF AND FOR PRELIMINARY

and JOHN DOE,                                             )  AND PERMANENT INJUNCTIVE

                                                                        )  RELIEF; SUMMONS

                                    Plaintiffs,                       )

                                                                       

            vs.                                                        )

                                                                        ) 

JOHN ASHCROFT, as U.S. Attorney ) 

General, KAREN TANDY, as                         )

Administrator of the U.S. Drug Enforcement      )

Administration, EDWARD H. KUBO, JR.,       )

as U.S. Attorney for the District of Hawaii,        )

                                                                        )

                                    Defendants.                 

 

 

COMPLAINT FOR DECLARATORY RELIEF AND FOR

 

PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF

           

            Comes now Plaintiffs Religion of Jesus Church, THC Ministry, Reverend Roger Christie, Reverend James D. Kimmel, Tammy L. VanBuskirk, and John Doe, by and through their undersigned attorney, and hereby bring this action for declaratory, injunctive and other relief, and hereby allege and aver as follows:

 

INTRODUCTION

 

            The Plaintiffs are comprised of organized religious entities/churches and some local Reverends and members of said churches, as well as a registered State of Hawaii Department of Public Safety Narcotics Enforcement Division Medical Marijuana Registry patient and an anonymous registered State of Hawaii Department of Public Safety Narcotics Enforcement Division Medical Marijuana Registry caregiver.

            The Plaintiffs are suing for an order declaring their consumption, cultivation, possession and distribution of cannabis to be free from Federal penalty and for an order prohibiting the Defendants from seeking criminal sentences and/or criminal and civil sanctions and/or asset forfeiture under the Controlled Substances Act or any other provision of the U.S. Code.

PARTIES

1.      Plaintiff RELIGION OF JESUS CHURCH is, and at all times relevant and material herein was, a local State of Hawaii chapter of a national organized religion.  The members of the RELIGION OF JESUS CHURCH are mandated by their religion to consume cannabis and Reverends must operate a therapeutic “healing” ministry.

2.      Plaintiff THC MINISTRY is, and at all times relevant and material herein was, a local State of Hawaii chapter of an international organized religion.  The members of the THC MINISTRY are mandated by their religion to consume cannabis, preferably by means of sublingual or transdermal application of the Holy Anointing Oil.

3.      Plaintiff REVEREND ROGER CHRISTIE is, and at all times relevant and material herein was, a resident of the County of Hawaii, State of Hawaii.  He is mandated by his religion to consume cannabis, operate a therapeutic ministry and to prepare and utilize the Holy Anointing Oil, which requires large quantities of cannabis.  He also is licensed to perform marriage ceremonies with cannabis sacrament by the State of Hawaii Department of Health.

4.      Plaintiff REVEREND JAMES D. KIMMEL is, and at all times relevant and material herein was, a resident of the County of Maui, State of Hawaii.  He is required by his religion to consume, cultivate and distribute cannabis.  He prefers to healthily vaporize cannabis. 

5.      Plaintiff TAMMY LEIGHTON VANBUSKIRK is, and at all times relevant and material herein was, a resident of the County of Hawaii, State of Hawaii.  She legally cultivates and consumes cannabis for legitimate therapeutic purposes pursuant to her validly issued and current State of Hawaii Department of Public Safety Narcotics Enforcement Division Medical Marijuana Registry Patient status.

6.      Plaintiff JOHN DOE is, and at all times relevant and material herein was, a resident of the City and County of Honolulu, State of Hawaii.  He legally cultivates, possesses and distributes cannabis to a registered patient pursuant to his validly issued and current State of Hawaii Department of Public Safety Narcotics Enforcement Division Medical Marijuana Registry Caregiver status.  He sues anonymously in order to protect both his patient’s therapeutic cannabis supply and to prevent any likely arrest and prosecution for his admitted cannabis distribution and cultivation.  He is also a founding member of the THC Ministry.

7.      Defendant JOHN ASHCROFT is Attorney General for the United States of America, sued in official capacity, in which capacity he is responsible for enforcement of the Controlled Substances Act.

8.      Defendant KAREN TANDY is the Administrator of the United States Drug Enforcement Administration, sued in official capacity, in which she is responsible for enforcing and administering the CSA and for promulgating regulations implementing the CSA.

9.      Defendant EDWARD H. KUBO, JR., is the United States Attorney for the District of Hawaii, sued in official capacity, in which he is responsible for prosecutions under the CSA in this District.

10.  All of the facts, allegations and averments contained herein occurred within the State of Hawaii.

JURISDICTION

11.  This Court has jurisdiction pursuant to 28 USC § 1331 because the action arises under the laws and Constitution of the United States of America.  Plaintiffs seek a determination under the standards of the Religious Freedom Restoration Act (“RFRA”) 42 USC §§ 2000bb-2000bb(4) and the First, Tenth and Fourteenth Amendments to the US Constitution of the lawfulness and constitutionality of Defendants’ interpretation of the Controlled Substances Act (“CSA”) 21 USC § 801-971, and its implementing regulations as applied to Plaintiffs.  This Court is authorized to grant declaratory relief by the Declaratory Judgment Act, 28 USC §§ 2201, 2202.  This Court is authorized to grant preliminary and permanent relief under Federal Rule of Civil Procedure 65.

VENUE

12.  Venue is proper in this Court under 28 USC § 1391(e) and § 1402(a)(1) because all Defendants are officers and employees of the United States of America and its agencies and were at all relevant times acting in their official capacities and under color of legal authority and at least one Defendant officially resides in this District and the cause of action arose in this District and all Plaintiffs reside in this District.

FACTUAL ASSERTIONS

13.    Plaintiffs all consume, possess, cultivate and/or distribute cannabis.

14.    Defendants consider Plaintiffs to be criminals solely because of their sacramental or therapeutic cannabis use.

15.    Plaintiffs consume, possess, cultivate and/or distribute cannabis as mandated by their legitimate religion and sincere religious beliefs, and as such, their free exercise of religion is protected by RFRA and the First Amendment of the U.S. Constitution.

16.    As an essential and necessary component of the Plaintiffs’ religions, church members must receive communion through cannabis in their religious ceremonies and daily worship.

17.    Plaintiff VANBUSKIRK also consumes, cultivates and possesses cannabis pursuant to valid Hawaii state law for therapeutic needs as prescribed by her licensed physician, through wholly intrastate non-commercial means, and as such, Defendants lack commerce clause jurisdiction to enforce the CSA against her.

18.    Plaintiff JOHN DOE cultivates, possesses and distributes cannabis pursuant to valid Hawaii state law to a medically qualified patient for therapeutic needs as prescribed by the patient’s licensed physician, through wholly intrastate non-commercial means, and as such, Defendants lack commerce clause jurisdiction to enforce the CSA against him.

19.    One Reverend of the TCH Ministry has already and recently been arrested by Federal authorities in Hawaii and is facing Federal mandatory imprisonment and property forfeiture for his cultivation of cannabis and use of the Holy Anointing Oil. 

20.    The churches’ Reverends and members rightfully and justifiably fear for their ability to continue to cultivate, consume, possess and distribute cannabis sacrament without the exceedingly significant burden placed upon their lives by being branded criminals mandated for Federal imprisonment whose real property and assets can be seized civilly with no applicable legal defense.

21.    Therapeutic cannabis does not even exist according to Defendants’ often heard “mantra” of “no medicinal use.”

22.    Not only has therapeutic cannabis played a significant role throughout medical history, but cannabis is the safest therapeutic substance known to man.

23.    The United States Government itself is required to provide actual cannabis to the seven remaining living participants of the Compassionate Use Initiative.

24.    Many of the world’s major religions consider (or have considered) cannabis to be sacred or most holy.

25.    The threat that Plaintiffs will be criminally prosecuted is exceedingly real, and any threat of criminal prosecution of American citizens for engaging in religious devotional practices and communion of sacrament during their law-abiding, society-respecting and pious lives substantially burdens the practice of the Religion of Jesus Church and the THC Ministry religions within the meaning of RFRA and the U.S. Constitution.

COUNT 1

Violation of the Religious Freedom Restoration Act   

26. Plaintiffs reallege and incorporate by reference herein the allegations as set forth in paragraphs 1-25 of this Complaint.

27. Defendants’ position that even the Plaintiffs’ mandated sacramental use of cannabis is prohibited and punishable by imprisonment and asset forfeiture violates the rights of Plaintiffs’ to freely exercise their legitimate religion absent a compelling state interest in violation of Plaintiff’s statutory rights embodied in RFRA, 42 USC § 2000bb-1(a).

28. Defendants lack any compelling interest to totally prohibit cannabis use and cultivation; and total prohibition (especially in an island State that registers and accepts cannabis users) can never even approach the least restrictive means to achieve any alleged Federal compelling interest.   

COUNT 2

 

Violation of the First Amendment of the U.S. Constitution

 

29.  Plaintiffs reallege and incorporate by reference herein the allegations as set forth in paragraphs 1-25 of this Complaint.

30.  The CSA is not a law of general applicability, as it provides for numerous exemptions and other immunities.

31.  Defendants’ interpretation and threatened application of the CSA against legitimate cannabis sacrament religions for cannabis possession and cultivation and distribution violates the churches’ and their members’ First Amendment right to free exercise of religion.

COUNT 3

 

Violation of the Equal Protection Clause of the U.S. Constitution

 

32.  Plaintiffs reallege and incorporate by reference herein the allegations as set forth in paragraphs 1-25 of this Complaint.

33.  Defendants are currently prohibited from arresting the members of the Native American Church for their cultivation, possession, use and distribution of the entheogen Peyote.

34.  Defendants are currently prohibited from arresting the members of the O Centro Espirita Beneficiente Uniao Do Vegetal (UDV-USA) religion for their importation, possession, use and distribution of large quantities of the powerfully hallucinogenic DMT-infused compound “Ayahoasca”

35.  Defendants’ prosecution of Plaintiffs’ for cannabis cultivation, possession, use and/or distribution, while allowing other religions to consume controlled substances, violates Plaintiffs’ Constitutional Fifth and Fourteenth Amendment rights to equal protection under the law.

36.  Furthermore, based upon the Ninth Circuit decision in the recent case Raich v. Ashcroft, 2003 WL 22962231 (9th Cir. Dec. 16, 2003) to deny registered Hawaii therapeutic cannabis consumers and distributors protection from Federal prosecution (and allow the Raich Plaintiffs injunctive relief) likewise is a violation of Plaintiffs’ rights to equal protection under the law.

37.   The Federal Government’s practice of providing cannabis to only a select seven humans and denying that cannabis has any therapeutic value to all others (and even denying that cannabis has medicinal use to the seven recipients of federally-grown cannabis) violates Plaintiffs’ rights to equal protection under the law and is not based upon logic or science and indeed is a political conspiracy of the highest nature. 

COUNT 4

 

Violation of the Tenth Amendment of the U.S. Constitution

 

38.  Plaintiffs reallege and incorporate by reference herein the allegations as set forth in paragraphs 1-25 of this Complaint.

39.  Wholly intrastate activity is beyond the power of Congress “to regulate Commerce…among the several States.” U.S. Constitution Article I, Section 8.  See The Federalist 42 (James Madison).

40.  It is Constitutionally imperative and required that the courts protect wholly intrastate commerce and activity from the reach of Congress.

41.  As a direct and proximate result of Defendants’ stated intent to apply the CSA to the Plaintiff’s conduct at issue, Plaintiffs seek protection for their conduct which has no affect whatsoever on interstate commerce; indeed there exists zero commerce in Plaintiffs’ actions at issue.

42.  The States are primarily responsible for the health and safety of America’s citizens, and the police power is not proper for the Federal Government to utilize to merely protect on from one’s own folly.

43.  Congress cannot exercise its power over interstate commerce to interfere with a State’s police power by prohibiting wholly intrastate conduct that the State condones in the interest of public health and safety.

44.  To the extent that Defendants’ intent and purport to apply the CSA to prohibit the conduct for which Plaintiffs’ herein seek protection, the CSA exceeds the Constitutional authority of Congress by abrogating powers reserved to the State of Hawaii.

COUNT 5

 

Declaratory Judgment

 

45.  Plaintiffs reallege and incorporate by reference herein the allegations as set forth in paragraphs 1-25 of this Complaint.

46.  Plaintiffs have suffered and will continue to suffer irreparable harm due to Defendants’ challenged actions and practics averred to in this Complaint. 

47.  Plaintiffs have Constitutional and statutory rights to consume cannabis for their therapeutic and religious needs. 

48.  Defendants’ actions and statements have created and are creating well-founded fears that Defendants will attack Plaintiffs’ persons, medicines, sacraments, health, freedoms, liberties, property, and free speech, thus trampling religious rights and exacerbating serious medical conditions and constituting irreparable harm.

49.  Defendants’ interpretation of the CSA as forbidding the therapeutic and sacramental use of cannabis by Plaintiffs, as explained in the above counts, creates an actual controversy within the meaning of 28 USC § 2201(a).

50.  For these reasons, Plaintiffs are entitled to a declaratory judgment that all of the above described actions, conduct and threats of actions of Defendant’s involving Plaintiff’s cannabis were, are and will be unlawful and to such additional declaratory relief as described in Plaintiffs’ Prayer for Relief.

COUNT 6

 

Injunctive Relief

 

51.  Plaintiffs reallege and incorporate by reference herein the allegations as set forth in paragraphs 1-25 of this Complaint.

52.  The United States Attorney for the District of Hawaii has stated in Court memoranda filed January 8, 2004 that the cases Plaintiffs intend to rely on for precedential value, e.g. Raich v. Ashcroft 2003 WL 22962231 (Dec. 16, 2003) and UDV-USA v. Ashcroft 342 F.3d 1170 (10th Cir. 2003) offer no protection for Plaintiffs’ actions in Hawaii.

53.    Defendants must be prohibited from arresting, prosecuting, or seizing the sacraments, medicine and assets of Plaintiffs.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray that this Court enter judgment as follows:

A.     Issue a Preliminary Injunction during the pendency of this action and a Permanent Injunction enjoining Defendants from arresting or prosecuting Plaintiffs, seizing their cannabis, forfeiting their property, or seeking civil or administrative sanctions against them for their activities with respect to any of the following:

(1) The possession of sacramental cannabis for individual religious use;

            (2) The possession of therapeutic cannabis for individual use in compliance with State of Hawaii Revised Statutes;

(3) The ability to obtain cannabis from Reverends of healing ministries;

(4) The ability to obtain cannabis from registered caregivers in compliance with State of Hawaii Revised Statutes;

(5) The ability of JOHN DOE to cultivate and distribute cannabis to his registered patient in compliance with State of Hawaii Revised Statutes;

(6) The processing of cannabis into the Holy Anointing Oil for religious unction and sacrament; and

(7) The cultivation of cannabis for therapeutic and religious needs;

B.     Declare that enforcement of the CSA is unconstitutional to the extent that it purports to prevent Plaintiffs from possessing, obtaining, manufacturing, cultivating, processing, consuming, providing and/or distributing cannabis for Plaintiffs’ personal religious and therapeutic use;

C.     Award Plaintiffs’ Attorney’s reasonable fees and costs pursuant to RFRA and 5 USC § 504;

D.     For such other and further relief, whether at law or equity, as the Court deems just and proper under the circumstances.

 

            Dated at Honolulu, Hawaii; March 23, 2004

 

 

                                                                                               

                        MICHAEL A. GLENN, ESQ.

                        Attorney for Plaintiffs

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IN THE UNITED STATES DISTRICT COURT

 

DISTRICT OF HAWAII

 

RELIGION OF JESUS CHURCH, THC         )  Civil No.

MINISTRY, REVEREND ROGER                 ) 

CHRISTIE, REVEREND JAMES D.               )  SUMMONS

KIMMEL, TAMMY L. VANBUSKIRK,        )   

and JOHN DOE,                                             ) 

                                                                        ) 

                                    Plaintiffs,                       )

                                                                       

            vs.                                                        )

                                                                        ) 

JOHN ASHCROFT, as U.S. Attorney ) 

General, KAREN TANDY, as                         )

Administrator of the U.S. Drug Enforcement      )

Administration, EDWARD H. KUBO, JR.,       )

as U.S. Attorney for the District of Hawaii,        )

                                                                        )

                                    Defendants.                 

 

SUMMONS

 

            TO:

                        JOHN ASHCROFT

                        Department of Justice

                        950 Pennsylvania Ave. NW

                        Washington D.C. 20530-0001

 

 

                        KAREN TANDY

                        Drug Enforcement Administration

                        2401 Jefferson Davis Hwy.

                        Alexandria, VA 22301

 

 

                        EDWARD H. KUBO, JR.   #2499

                        300 Ala Moana Blvd. Room 6100

                        Honolulu, Hawaii 96850

 

            YOU ARE HEREBY SUMMONED and required to serve on Plaintiffs’ Attorney

 

MICHAEL A. GLENN, ESQ., 1088 Bishop Street Suite 703, Honolulu, Hawaii 96813 an

 

Answer to the Complaint which is served on you with this Summons, within                  

days after service of this Summons on you, excluding the day of service.  If you fail to do so, judgment by default will be taken against you for the relief demanded in the Complaint.  Any Answer that you serve on the parties to this action must be filed with the Clerk of the Court within a reasonable period of time after service.

 

                                                                                                                                   

CLERK                                                                       Date