Un Reasonable Seize Marijuana-------------- Our Rights Their Betrayal

Arbitrary and capricious http://definitions.uslegal.com/a/arbitrary-and-capricious/

"When a judge makes a decision without reasonable grounds or adequate consideration of the circumstances, it is said to be arbitrary and capricious and can be invalidated by an appellate court on that ground. There should be a clear error of judgment; an action not based upon consideration of relevant factors and so is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law."



FOLLOWING CASE 2011-2012

 

BUSTED AT MAINE STATE HOUSE Spring 2011.
Maine Supreme Judicial Court

2012 ME 07
http://www.cleaves.org/12-7.pdf

2012 ME 26
http://www.courts.state.me.us/opinions_orders/supreme/lawcourt/2012/12me26de.pdf
SCOTUS 2012 Petition 11-1354
http://www.s234950599.onlinehome.us/8.html

Right to Liberty and Property are not fundamenal rights..
http://www.maine.gov/legis/const/
Article I section 1

The lie: I claimed marijuana to be a fundamental right.

The Lie. The use of police power in the enforcement of the marijuana laws do not deprive a person's fundamental rights to liberty and to property

The fact presented to the Maine Supreme Judicial Court was the marijuana law was arbitrarily enforced. The court ruled the marijuana penalties were not arbitrary.

The Maine Supreme Judicial Court recent decisions 2012 ME 07 and 2012 ME 26 were not based on the facts presented and a denial of due process of law and violates the canons of the MAINE JUDICIAL CODE OF CONDUCT
http://www.jrd.maine.gov/code_conduct.html 
Rational use of police power violates due process of law.

PREAMBLE
"Our legal system is based on the principle that an independent, fair and competent judiciary is essential to our concepts of justice and the rule of law.
The judge, as arbiter of facts and law for the resolution of disputes, is a highly visible symbol of government under the rule of law. Accordingly, the Maine Code of Judicial Conduct is founded on the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and must strive to maintain and enhance public confidence in our legal system."

The Decisions 2012 ME 07 and 2012 ME 26 by the justices of the MSJC were not faithful to the concepts of justice and the rule of law. These and past decisions confirms to the public that the legal system is not based on the principles of an independent, fair and competent judiciary dealing with the use of police power depriving individual rights and the the proscription of marijuana. The justices failed to respect and comply with the due process law and failed to promotes public confidence in the integrity and impartiality of the judiciary. The justices were swayed by partisan interest, public clamor, or fear of criticism. The courts are an extension of state police power.

=======================

Reconsideration of Complaint against the Justices of the Maine Supreme Judicial Court was denied March 19, 2021. The commitee is made up of lawyers and judges.

===========

Committee on Judicial Responsibility and Disability
P.O. Bow 8058 Portland, Maine 04104-8085

Reconsideration of
Complaint againt justices of the Judgments of the Maine Supreme Judicial Court Justices
2012 ME 07
http://www.cleaves.org/12-7.pdf
2012 ME 26
http://www.courts.state.me.us/opinions_orders/supreme/lawcourt/2012/12me26de.pdf

Docket No: 3 l-SJC/SC/DC-12

The letter of November 16, 2012 advised me of the dismissal of my complaint by the Committee on Judicial Responsibility and Disability. The reason given is the “complaint [is] related to the substance of the courts' decisions, disagreement with which cannot form the basis for judicial discipline.”

Similar statements are found on the website but not in the Maine Code of Judicial Conduct.

“A violation of the Maine Code of Judicial Court will not be found if a person is simply dissatisfied with a judge’s decision.” Purpose of the Committee http://www.jrd.maine.gov/index.html

In Frequently Ask Questions : “What is judicial misconduct? “judicial misconduct does not include: rulings on the law and/or the facts.” A statement that makes the justices above the law.http://www.jrd.maine.gov/faq.html#misconduct

And under History and Authority of the Committee It is stated “Disagreement with the merits of a judge’s decision is not a basis for asserting a violation of the Code.” http://www.jrd.maine.gov/history.html

Judicial conduct includes how these justices made their decisions of law and/or facts. Under History and Authority  Maine Judges shall “Be competent and follow the law in making judicial decisions.” Right here is the contradiction in denying my complaint.

“Law. ‘Law’ denotes court rules as well as ……., constitutional provisions, and decisional law.” Part ll General Provisions Section 3 Definition K.

“The [Justices] judicial duties include all the duties of the [justice’s] office prescribed by law.” (Canon 3 A) http://www.jrd.maine.gov/code_conduct.html 

'The province of the court is, solely, to decide on the rights of individuals, …...'' Marbury v. Madison, 5 U.S. 137, 170 (1803). The function of the court is the adjudication of the factual issues presented and apply the law to those facts disclosed by the pleadings and evidences. Judgment on the merits means a judgment based on the state of facts It amounts to a declaration as to the respective rights and duties of the parties.

No where in Canons of the Code does it give an exemption for the justices to ignore the facts and constitutional law in their decision making process. The code does not say justices “may” or “should” accept the facts presented or “may” or “should” comply with the law in making their decisions.(Preamble ¶ 2) http://www.jrd.maine.gov/code_conduct.html

 In Frequently Ask Questions : “What is judicial misconduct? Judicial misconduct is any violation of the Maine Code of Judicial Conduct including . “failure to perform duties impartially and diligently.”

The Decisions of the Maine Supreme Judicial Court 2012 ME 7 and 2012 ME 26 are not based on the facts presented in evidence and fails to comply with due process of law, violating Canons 1,2, and 3. These decision are not “based on the principles of an independent, fair and competent judiciary.” (Preamble). http://www.jrd.maine.gov/code_conduct.html

The substance of Decision 2012 ME 7 is that marijuana is not fundamental right. Judicial review is rational basis. Fact, no where in the pleadings did Dee claim or ask the court to declare marijuana is a fundamental right.

The substance of Decision 2012 ME 26 is that Dee claimed the marijuana penalties were arbitrary. This is not true. No where in the pleadings did Dee claim the marijuana penalties were arbitrary.

The substance of Decision 2012 ME 26 is that the right to liberty and property are not fundamental rights. The use of police power has a rational basis.

Rational use of Police Power contravenes the Maine Constitution Art. IV, part 3 § 1 last sentence http://www.maine.gov/legis/const/ and the Fourth and Fourteenth Amendments of the Constitution of the United States.

The Committee’s reason for dismissing my complaint contravenes Canons 2 A. and 3 A.B.(1)(2) of the Code. Dismissing my complaint is saying the justices of the Maine Supreme Judicial Court can create their own facts and apply the law to those fictional facts. Such decisions diminish the integrity and independence of the judiciary. Willful deprivation of rights does not “promotes public confidence in the integrity and impartiality of the judiciary” Canon 2 A.

I am asking this committee to declare the decisions 2012 ME 07 and 2012 ME 26 were not based on the facts presented and a denial of due process of law.

I am asking this committee to declare judicial misconduct by the justices of the Maine Supreme Judicial Court -LEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ. is their failure to perform their responsibility, impartially and diligently in their decisions 2012 ME 7 and 2012 ME 26. They failed to respect and comply with the law the Fourteenth Amendment, and to maintain a professional competence in it. ” contravening Canon 2 A, and Canon 3 A.B. (2).

Respectfully submitted,

Dated: January 22, 2013
Michael J. Dee

===========================

COMPLAINT DENIED

COMMITTEE ON JUDICIAL RESPONSIBILITY AND DISABILITY
P.O. BOX 8058
PORTLAND, MAINE 04104-8058
(207) 780-4364
November 16, 2012

Docket No: 3 l-SJC/SC/DC-12 

The committee  wrote "As such, your complaint related to the substance of the courts' decisions, disagreement with which cannot form the basis for judicial discipline. Accordingly, the Committee dismissed your complaint."

==================================

COMPLAINT FILED FOR JUDICIAL MISCONDUCT

Maine Supreme Judicial Court

RULE WITHOUT LAW

The Maine Supreme Judicial Court sanctioned the rational use of police power. Where police power does not have to be justified in the enforcement of the marijuana laws. The MSJC has demeaned due process of law.

A. MSJC Decision 2012 ME 07 Maine v Dee
Decision No Mem 12-7 Docket No. Ken-11-299 
http://www.cleaves.org/12-7.pdf
http://www.s234950599.onlinehome.us/5.html

This decision is implying I am claiming marijuana is a fundamental right. As before, this court willfully denies my claim of injury to liberty and property by the enforcement of the marijuana laws. The court citing State v Haskell 2008 ME 82 p 5- 6, 955 A.2d 737 http://www.courts.state.me.us/opinions_orders/opinions/2008%20documents/08me82ha.pdf

B. APPELLANT'S MOTION FOR RECONSIDERATION  (AMFR)
http://www.s234950599.onlinehome.us/12.html

 C. MSJC Revised Decision 2012 ME 26
http://www.courts.state.me.us/opinions_orders/supreme/lawcourt/2012/12me26de.pdf

===============================

Committee on Judicial Responsibility and Disability
P.O. Bow 8058 Portland, Maine 04104-8085

Complaint Concerning Conduct of Maine State Court Judges

State of Maine v Michael J. Dee
Docket No. Ken-11-299 Decision No. 2012 ME 7
Decided February 7, 2012
Decision No. 2012 ME 26 Revised March 6, 2012, PER CURIUM
Citing State v Haskell 2008 ME 82 955 A.2d 737 J. Alexander
Proceedings held in Portland, Maine Maine Supreme Judicial Court
Kind of Case: Individual Fundamental Rights and Police Power .
Attached documents:
The original decision 2012 ME 07,
Appellant’s Motion for Reconsideration (AMFR)
and the revised decision 2012 ME 26.

Judges: ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.
Maine Supreme Judicial Court

(Robert E Crowley Esq. as superior court judge and district court judge Patricia G. Worth have made political decisions in previous cases.)

State of Maine Judicial Branch MISSION:

“To administer justice by providing a safe, accessible, efficient and impartial system of dispute resolution that serves the public interest, protects individual rights, and instills respect for the law.” http://www.courts.state.me.us/index.shtml

JUDICIAL MALFEASANCE

This is a malfeasance complaint about willful denial of equal protection of THE LAW by the justices of the Maine Supreme Judicial Court. The justices have failed to acknowledge me as a person and my individual rights to liberty and property. That these rights are secured from unreasonable police power.


THE LAW

“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 Constitution Art. IV, part 3 § 1 last sentence.

“The right of the people to be secured in their person, houses, papers and effects from unreasonable searches and seizes shall not be violated,.” 4th Amendment (Applied to the States by the 14th Amendment).

“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.” 14th Amendment.

It is malfeasance to say police power can be rational. Rational police power cannot be legally justified and conflicts with THE LAW. The Fourth Amendment does not say un-rational “searches and seizures” and the Maine Constitution does not say rational “laws and regulations.”

Due process of law requires the use of police power to deprive liberty and property to be either reasonable or unreasonable. (AMFR p. 4)

The Justices of the MSJC continue to make decisions with regards to me as a person and my fundamental rights to liberty and property that do not promote public confidence in the integrity and impartiality of the judiciary. By denying equal protection of THE LAW its decision 2012 ME 26 demeans the separation of powers established by the Constitution.

ARGUMENT

This decision 2012 ME 26 has many twist and turns on the facts presented that in the end it shows the incompetence of the justices to defending my individual rights and the rule of law.

A. The justices wrote “Dee concedes that he does not have a fundamental right to possess marijuana, but he insist that the prohibition violates ’his fundamental right to liberty and to property’” (2012 ME 26 ¶ 2)

( 1 ) I do not concede to anything because I never claimed marijuana to be fundamental right.

( 2 ) The fact is I insisted “the operation and effect of the marijuana possession law was …. to deprive Dee’s fundamental rights to liberty and to property.” (AMFR p. 4 ¶ 5) 

B. The MSJC declared “”Notwithstanding this linguistic leap, we are not persuaded Dee’s possession of marijuana implicate any of his fundamental rights.” (2012 ME 26 ¶ 2)

( 1 ) It is not the possession of marijuana but the enforcement of the marijuana law by the use of police power that implicates the deprivation of my individual fundamental rights to liberty and property.

( 2 ) The justices refused to acknowledge my claim that the operation and effect of the marijuana laws resulted in the deprivation of my fundamental rights to liberty and to property, Being detained and summoned to court by the capitol police was seizure of person, deprivation of liberty. Seizing marijuana was deprivation of property. (AMFR p. 2)

C. It is malfeasance for the justices to ignore its own criteria to say marijuana laws are rational.The justices continued writing “Where fundamental rights are not implicated, we review the validity of a statute exercising the State’s police power for rational basis. which requires that;”

"(1) the police power be exercised to provide for the public welfare.” (2012 ME 26 ¶ 3)

( a )The justices are citing cases that say “marijuana is harmful” “ marijuana poses a threat to individual health” (2012 ME 26 ¶ 4) is in contradiction of this requirement.

( b ) The use of state police power does not to provide for public welfare.

( c ) State police power is to protect public safety, to restrict a persons liberty and use of property from injuring the rights of others. (AMFR p. 4 ¶ 1,2)

“(2) the legislative means employed be appropriate to achieve the ends sought.”

( a ) The law that authorized the use of police power that has deprived me of my liberty and property was inappropriate because the use of police power did not protect public welfare nor provide for public welfare.

( b ) “the “constitutional deficiency” or the “infirmity,” of the law is the exercise of police power was not protecting pubic welfare. (AMFR p. 2 )

“(3) the manner of exercising the power not be unduly arbitrary or capricious”

( a ) "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. .” (2012 ME 26 ¶ 4)

( b ) The fact is I claimed “the marijuana possession law was arbitrarily enforced.” (AMFR p. 2 ¶ 5)

( 4 ) I met the criteria created by this court that shows the marijuana possession law is not rational. This is the same criteria to determine if the law is reasonable or unreasonable.

CONCLUSION

The Justices of the MSJC continue to make decisions that do not promote public confidence in the integrity and impartiality of the judiciary. By denying equal protection of THE LAW its decision 2012 ME 26 demeans the separation of powers established by the Constitution.

3

( 1 ) It is malfeasance for the justices to deny the use of state police power deprived me of fundamental individual rights to liberty and to property by the enforcement of the marijuana possession law contravening the Maine Code of Judicial Conduct. CANONS 1, 2 A, and 3 B.(2) in its decision 2012 ME 26 .

( 2) It is malfeasance for the justices to declared the marijuana laws are rational use of police power ignoring the three criteria they created as law thus contravening the Maine Code of Judicial Conduct. CANONS 1, 2 A, and 3 B.(2) in its decision 2012 ME 26

This and past decisions confirms to the public that the legal system is not “based on the principles of an independent, fair and competent judiciary” dealing with individual rights The decisions do not “maintain and enhance public confidence in our legal systems.” (Preamble). The decisions fails to “uphold the integrity and Independence of the judiciary.” (CANON 1) The justices failed to “respect and comply with the law” the constitution and failed to “promotes public confidence in the integrity and impartiality of the judiciary.” (CANON 2 A.)

The justices have continued to fail to “perform the duties of judicial office impartially and diligently” in protecting individual rights. The justices were not “faithful to the law,” the 4th and 14th Amendments of the Constitution of the United States and did not “maintain professional competence to it.” The justices were “swayed by partisan interest, public clamor, or fear of criticism.” CANON 3 B.(2).

There is no equal justice under the law when the justices of the Maine Supreme Judicial Court do not acknowledge me as a person with a fundamental rights to liberty and to property secured by the 4th and 14th Amendments to the Constitution of the United States from unreasonable police power..

Dated: October 22, 2012

=============================

MSJC has willfully deprived me of my rights under the colour of law.

SCOTUS 2012 papers
http://www.s234950599.onlinehome.us/8.html


Maine Supreme Judicial Courts papers
http://www.s234950599.onlinehome.us/5.html

No fundamental Rights Implicated: MSJC
http://www.courts.state.me.us/opinions_orders/opinions/2012_documents/12me26de.pdf
http://www.s234950599.onlinehome.us/5.html

The following was another challenge to get the Maine courts to recognize the marijuana laws cause injury to fundamental rights to liberty, to property and to privacy. To get the court to review the constitutionality of the marijuana law by strict scrutiny which requires the state to show a compelling state interest that the .possession law at the State House. Haskell ¶ 5

The “constitutional deficiency” is the lack of a threat to the public health and safety to employ police power to proscribe the possession of marijuana. Haskell ¶ 5

 I asked the District court to declare the marijuana laws are unreasonable and unecessary regulations of fundamental rights to liberty, to property and to privacy. and contravene the Fourth, Fifth and Fourteenth Amendments.

A. MARIJUANA LAW NOT RATIONAL
22 M.R.S. 2383(1)(a) (2011)
No threat to Public Welfare to Use Police Power
Dee requested the Court vacate the District Court’s decision and remand the case for further proceeding because 22 M.R.S. 2383(1)(a) (2011) is NOT RATIONAL use of police power and does violate concepts of due process. absence” of a threat to public welfare, to require the use of police power to enforce the marijuana

===================================

1. DEFENDANT’S MOTION TO DISMISS
2. DEFENDANT’S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS
3. Notice of Hearing
4. AMENDED DEFENDANT’S MOTION TO DISMISS
5. OBJECTION TO DEFENDANT'S MOTION TO DISMISS
6. NOTICE OF APPEAL
7 Dee's Brief Maine Supreme Judicial Court ( editing in progess)
8 STATE OF MAINE's  BRIEF TO MSJC
9. MSJC Decision

10. APPELLANT’S MOTION FOR RECONSIDERATION
11. Maine Supreme Judicial Court decision's on Dee's Motion to For Reconsiderations.

==============================================
1. DEFENDANT’S MOTION TO DISMISS

Hind sight make motion at trial and prepare court oder for judge to sign and move on.

Possession may be a civil offence you are still a defendant

Maine Rules Criminal Procedures You are the defendant.

Rule 12(a)(b) (3)Written Motion is made before trial or (4) at trial
Affirmative defense: The Maine marijuana laws are unreasonable deprivation of liberty and property and contravines the 14th Amendment because the use of police power did not protect public safety, the rights of others.

Maine Rules of Civil Procedure You are the plaintiff.

Rule 57 Declaratory Judgment 
Rule  7 (b) (1)Motion made during Hearing or by writing.
Rule 7 (b) (1) (A)Certicate of Service if by writing.
Rule 7 (b) (3 )Preparing order for the judge to sign

For rules go to:

http://www.courts.state.me.us/rules_adminorders/rules/index.shtml

In The Augusta District Court
Kennebec County, State of Maine

State of Maine                          )
Plaintiff                                    
)
v                                               )              Docket No. VI - 2011-167

                                                 )
Michael J. Dee                         )
Defendant                                )
DEFENDANT’S MOTION TO DISMISS


The Defendant, Michael J. Dee submits the following Motion to Dismiss pursuant to Rule 12 (b), M.R.CR.P.

1. As an affirmative defense, the Defendant claims the marijuana laws, Title 22 M.R.S.A. § 2383(1) and Title 17-A M.R.S.A. § 1117 (1)(B)(4) are unconstitutional. These laws lack a compelling state interest, therefore are discriminatory, unjustified, unreasonable and unnecessary police regulation of Defendant’s fundamental rights to privacy, to liberty and to property. These fundamental rights are secured by the Fourth, Fifth and Fourteenth Amendments of the Constitution of the United States from unreasonable government intrusion.

2. As an affirmative defense, the Defendant claims the marijuana laws, Title 22 M.R.S.A. § 2383(1) and Title 17-A M.R.S.A. § 1117 (1)(B)(4) contravene the Fourth, Fifth and Fourteenth Amendments of the Constitution of the United States and are unconstitutional.

3. The defect in the institution of prosecution has been that Defendant has demonstrated both Title 22 M.R.S.A. § 2383(1) and prior to Title 17-A M.R.S.A. § 1117 (1)(B)(4), the marijuana laws are arbitrarily enforced, discriminatory, unreasonable and contravenes due process of law of the Fifth and Fourteenth Amendments of the Constitution of the United States and are unconstitutional.

RESPECTFULLY SUBMITTED

Dated: May 2, 2011.



Michael J Dee
Defendant

2. DEFENDANT’S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS


In The Augusta District Court
Kennebec County, State of Maine



State of Maine                   )
Plaintiff                              )
                                          )
v                                        )                Docket No. VI - 2011-167  
                                          )
Michael J. Dee                  )
Defendant                         )


DEFENDANT’S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

Unconstitutional Laws

Fundamental rights to liberty and to property are explicitly guaranteed by both federal and state Constitutions. The fundamental right of privacy is implicitly guaranteed by both federal and state Constitutions. The enforcement of the marijuana laws caused actual injury to these fundamental rights creating a justiciable controversy. Due process of law requires the courts to analyze with heightened scrutiny legislation that impinge on fundamental rights. To justify the deprivation of rights, due process of law requires the state to show a compelling state interest to demonstrate the marijuana laws are reasonable and necessary to protect the rights of others.

Defendant claims Title 22 M.R.S.A. § 2383(1) is discriminatory, arbitrary, unreasonable, unnecessary governmental interference with his fundamental rights to privacy, to liberty and to property. On March 28, 2011 in Room 436 of the State House, MDEA Director McKinney seized Dee’s person and property at the work session of the Joint Standing Committee on Criminal Justice and Public Safety.

Amendment IV: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, …"

1

“Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” Terry v. Ohio, 392 U.S. 1, 19 Footnote 16 (1968).

“A ‘seizure’ of property occurs when there is some meaningful interference with an individual's possessory interests in that property.” United States v. Jacobsen, 466 U.S. 109, 113 (1984).

Defendant claims the enforcement of Title 22 M.R.S.A. § 2383(1) deprived him of his fundamental rights to liberty and to property without due process of law.

Amendment V “No person shall be… deprived of life, liberty or property without due process of law.”

Amendment XIV section 1 “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…”

The Defendant did not present a threat to the rights of others, to public safety or to public health by being in possession of marijuana in the State House. The seizure of his person and property is not justified by a compelling state interest. Title 22 M.R.S.A. § 2383(1) is arbitrary discriminatory unreasonable and unnecessary regulation of his fundamental rights and contravenes the Fourth, Fifth and Fourteenth Amendments of the Constitution of the United States.

The Maine legislature has the authority to make reasonable regulation of individual fundamental rights to protect the community from harm.

Maine Constitution Art. IV, pt 3, § 1 legislative power. “The Legislature, …, shall have full power to make and establish all reasonable laws and regulations … not repugnant to this Constitution, nor to that of the United States.”

The reasonable use of state police power is to protect public safety and public health.

“The police power may be exerted in the form of state legislation where

2

otherwise the effect may be to invade rights guaranteed by the Fourteenth Amendment only when such legislation bears a real and substantial relation to the public health, safety,…” Liggett Co. v. Baldridge, 278 U.S. 105, 111,112; 49 S.Ct.57, 59 (1928).

The use police power is subordinate to constitutional limitations. Under it there is no unrestricted authority to accomplish whatever the police and public may presently desire.
“It is the governmental power of self-protection and permits reasonable regulation of persons and property in particulars essential to the preservation of the community from injury.” Panhandle Eastern Pipeline Co. v. Highway Comm'n, 294 U.S. 613, 622 (1935).

Due process of law requires deprivation of all fundamental rights to be justified by a compelling state interest related to public health and public safety.

“Where certain ‘fundamental rights’ are involved, the Court has held that regulation limiting these rights may be justified only by a ‘compelling state interest,’ ….. and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake.” Roe v Wade 410 U.S. 113, 155(1973).

The State of Maine can not provide a compelling state interest that the defendant’s possession of marijuana at the State House caused threatened or actual injury to the rights of others, to public safety and to public health.

The law that authorized the seizure of his person and his property Title 22 M.R.S.A. § 2383(1), is arbitrary, discriminatory, unreasonable and unnecessary regulation of his fundamental rights, to privacy, to property and to liberty and contravenes the Fourth, Fifth and Fourteenth Amendments of the Constitution of the United States. Punishment is depravation of monetary property.

To be charge with a civil violation the defendant had committed a crime to acquire this property. Title 17-A M.R.S.A. § 1117 (1)(B)(4)  makes it a “crime” to grow a usable amount of

3

marijuana. This statute is discriminatory, arbitrary, unreasonable and unnecessary regulation that has recently threatened the defendant’s fundamental rights to privacy, to liberty and to property and contravenes the Fourth, Fifth and Fourteenth Amendments of the Constitution of the United States and is unconstitutional. Growing marijuana is not a threat to public safety. “An arrest is the initial stage of a criminal prosecution. It is intended to vindicate society's interest in having its laws obeyed.” Terry v Ohio 392 U.S. 1, 26 (1`968) A full custodial arrest is …a severe intrusion on an individual's liberty, its reasonableness hinges on "the degree to which it is needed for the promotion of legitimate governmental interests.” Wyoming v. Houghton, 526 U.S. 295, 300 (1999).

Arbitrary Power

Defects in the institution of prosecution is the marijuana laws are arbitrarily enforced. Due process of law requires laws of a general a nature require uniform operation.

“Due process of law and the equal protection of the laws are secured if the laws operate on all alike, and do not subject the individual to an arbitrary exercise of the powers of government.” Duncan v Missouri 152 US 377, (1894) 14 S.Ct. 570

“The touchstone of due process is protection of the individual against arbitrary action of government,..” Wolff v Mcdonnell,418 U.S. 539, 558 (1974) , On Thursday March 24th and March 28th, 2011, Defendant publicly displayed a bag of marijuana in the State Capitol Building. This was a civil offence. Possessing a marijuana plant in the State House again, would have been a class E crime. March 24th, 2011 there was no enforcement of the marijuana laws before the joint session of the Maine Legislature to hear Chief Justice Saufley’s address on the state of the judiciary. Maine Attorney General Schneider had a laugh at the defendant’s presences. Law makers and law enforcement officials demonstrated the marijuana laws are unreasonable and unnecessary by

4


not enforcing Title 22 M.R.S.A. § 2383(1).

On March 28th, 2011 the Joint Committee of the Criminal Justice and Public Safety had a very short work session on LD 750 and LD 754. Laws that would make cultivation 1-5 plants a civil offence and reduce fines for a civil offence were quickly voted down. Defendant was present with signs and a bag of marijuana on display. For over an hour no lawmaker on the committee thought it important to have the marijuana laws enforced. Not even MDEA Director Roy E. McKinney enforced the law until the Defendant stood to leave the hearing room and protested the lack of enforcement before the Committee. Then his person and property were seized by Director McKinney.

The lack of enforcement for the possession of marijuana at the State House on March 24th and initial lack of enforcement on March 28th demonstrated the marijuana laws are arbitrarily enforced demonstrates the laws are unreasonable and unnecessary because the possession and possessor did not threaten the rights of other.

Justiciable Relief

Defendant asking this court to declare:

1. The marijuana law, Title 22 M.R.S.A. § 2383(1) is discriminatory, arbitrary, unjustified, unreasonable and unnecessary police regulation of Defendant’s fundamental rights to privacy, to liberty and to property and contravenes the Fourth, Fifth and Fourteenth Amendments of the Constitution of the United States and unconstitutional.

2. The marijuana law Title 17-A M.R.S.A. § 1117 (1)(B)(4)  is unjustified, unreasonable and unnecessary police regulation of defendant’s fundamental rights to


5

privacy, to liberty and to property and contravenes the Fourth, Fifth and Fourteenth Amendments of the Constitution of the United States and unconstitutional.

3. The discriminating and arbitrary application of Title 22 M.R.S.A. § 2383(1) by law enforcement officials constitute denial of due process and contravenes the Fifth and Fourteenth Amendments of the Constitution of the United States and unconstitutional.

Defendant request this court to declare Title 22 M.R.S.A. § 2383(1) and Title 17-A M.R.S.A. § 1117 (1)(B)(4)  unconstitutional and order the return of seized property to defendant by Capitol Police or District Attorneys office.

Dated: May , 2011

Michael J. Dee
Windham, ME. 04062

3. Notice of Hearing

STATE OF MAINE

DISTRICT COURT

AUGUSTA

Docket No. AUGDC-VI-2011-00167

STATE OF MAINE

v. MICHAEL J DEE


NOTICE OF HEARING


To:

MICHAEL J DEE

PO BOX 2021

NORTH WINDHAM ME 04062

OFFENSE(S):   001 POSSESSION OF MARIJUANA , UP TO 1 1/4 OZ

This is to notify you that a HEARING has been set for MOTION TO DISMISS on

06/14/2011   at   08:30   in Room  #1 at the  :

AUGUSTA DISTRICT COURT 145 STATE STREET AUGUSTA

If you have any questions you may call:     (207) 287-8075

TTY      (207) 287-4024

YOUR PRESENCE IS REQUIRED ON THIS DATE AND TIME.

NOTICE GIVEN ( ) IN HAND ( ) BY MAIL

Date: 05/04/2011


Clerk of Courts

Attention Defendant:

Failure to appear at the above date and time may result in a default being entered, bail

being forfeited, and the issuance of an arrest warrant.

c:  File:

EVERT FOWLE

Officer:
CR-070, Rev 02/1999
Page 1 of 1  




4. AMENDED DEFENDANT’S MOTION TO DISMISS 


In The Augusta District Court Kennebec County, State of Maine

State of Maine                   )
Plaintiff                              )
                                          )
v                                        ) Docket No. VI- 2011-167
                                          )
Michael J. Dee                  )

Defendant                         )

AMENDED DEFENDANT’S MOTION TO DISMISS
Justiciable Relief

Incorporating DEFENDANT’S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS, Defendant asks the court to GRANT Defendant’s Motion to Dismiss on the grounds that Title 22 M.R.S.A. § 2383(1) and/or Title 17-A M.R.S.A. § 1117 (1)(B)(4) contravene the Fourth, Fifth and Fourteenth Amendments and are unconstitutional.

Dated:
May 18, 2011 Michael J Dee PO Box 2011 Windham, ME. 04062



5. OBJECTION TO DEFENDANT'S MOTION TO DISMISS

STATE OF MAINE                                              DISTRICT COURT
KENNEBEC, ss                                                   LOCATION: AUGUSTA
                                                                            DOCKET #: VI-11-167

STATE OF MAINE

V.                                                           OBJECTION TO DEFENDANT'S 
                                                              MOTION TO DISMISS
MICHAEL J. DEE

NOW COMES, Kristin Murray-James, Student Attorney, for the Kennebec County District Attorney's Office and requests this Honorable Court deny the Defendant's Motion to Dismiss for the following reasons:

1.) On May 2, 2011, the Defendant filed a Motion to Dismiss in the above referenced docket under rule M.R.Crim.Pro 12 (B).

2.) The Defendant's affirmative defenses challenge the constitutionality of Maine's marijuana laws.

3.) The Defendant was enjoined, on February 28, 2007 from filing challenges to Maine's marijuana laws without prior court approval. The Defendant has not been granted court approval to challenge the constitutionality of Maine's marijuana laws.

4.) Therefore, a Motion to Dismiss on the grounds that Maine's marijuana law is unconstitutional is erroneous.

5.) Of note, beginning in 1995, the Defendant has filed no fewer than four suits against Maine marijuana laws in federal court.

6.) On May 16, 1998, Judge Hornby issued an order enjoining the Defendant from filing any lawsuits in federal court without prior court approval.

7.) Between 1999-2000, the Defendant filed three declaratory judgment actions in Maine state court challenging Maine's marijuana laws.

8.) On February 8, 2000, the Defendant carried a marijuana plant into the Maine State House. The Defendant refused to leave unless he was issued a summons for possession of the marijuana plant.

9.) As in the instant motion, the Defendant filed a Motion to Dismiss on the February 8, 2000 charge, arguing that 22 M.R.&.A § 2383 (1) was unconstitutional. It is unclear why the District Court did not rule on this motion. The Defendant was found guilty of violating § 2383 (1). The Defendant appealed to both the Maine Superior Court and the Law Court. His conviction was upheld by both courts.

10.) Even before the Law Court had issued its opinion, the Defendant had filed yet another declaratory judgment action in state court. The Defendant again claimed that § 2383 (1) was a violation of his constitutional rights by arguing that the arbitrary enforcement of § 2383 (1) violated his due process rights. This action was deemed barred by res judicata. On appeal, the Law Court upheld the Maine Superior Court's opinion.

11.) In 2003, the Defendant attempted to obtain judicial approval to file another federal suit challenging the constitutionality of Maine's marijuana laws. His request was denied.



THEREFORE, as the Defendant has been challenging the constitutionality of Maine's marijuana laws for sixteen years and his arguments have been ruled res judicata by both the Maine Law Court and the First Circuit Court of Appeals, the Defendant's arguments cannot be used as affirmative defenses in the Motion to Dismiss. The State requests the Defendant's Motion to Dismiss be denied as these arguments have previously been deniedjn^both Federal and State courts on the exact same grounds.

Dated:Dated June 14, 2011

Kristin Mur/ay-J^nes
Student Attorney



6. NOTICE OF APPEAL

In The Augusta District Court Kennebec County,
State of Maine

State of Maine
Plaintiff 
v                                                          Docket No. VI-2011-167
Michael J. Dee
Defendant

NOTICE OF APPEAL
Statement of issues

Denying defendants Motion to Dismiss was a denial of due process of law.

1. Defendant was denied due process of law when the District Court Susan Sparaco
denied defendant adequate time to study and to reply to the State of Maine's Objection To Defendant's Motion to Dismiss which was served on the defendant immediately after the state's opening remarks during the Motion hearing.

2. Defendant was denied due process of law and equal protection of the law when the District Court Judge Susan Sparaco did not provide a compelling state interest to him, based on facts, demonstrating the proscription of marijuana is reasonable regulation of his fundamental rights to liberty, to property and to privacy and do not contravene the 4th, 5th and 14th Amendments.

3. Defendant was denied due process of law because District Court Judge Susan Sparaco decision is based on hearsay and personal beliefs not on due process and equal protection of law.

4. Defendant was denied due process of law and equal protection of law because District Court Judge Susan Sparaco declared injury to fundamental rights is a legislative matter and not a jusiciable controversy for the courts to decide.

Request REMAND Dated June 20, 2011

Michael J Dee

7 DEE's Brief Maine Supreme Judicial Court
________________
MAINE SUPREME JUDICIAL COURT SITTING AS THE LAW COURT ______________________________________
No. Ken-11-299

MICHAEL J. DEE

Defendant-Appellant

V

STATE OF MAINE
Plaintiff-Appellee




On Appeal from an Order of the Augusta District Court


_________________________________________
BRIEF AND APPENDIX OF APPELLANT
_________________________________________
MICHAEL J. DEE
PO Box 2021
786 Roosevelt Trail
Windham, ME. 04062
207-893-0287

TABLE OF CONTENTS

SECTION                                                                                                                                                              PAGE

TABLE OF AUTHORITIES                                                                                                                                         ii
STATEMENT OF THE FACTS OF THE CASE AND PROCEDURAL HISTORY                                               1
STATEMENT OF ISSUES                                                                                                                                          4
SUMMARY OF ARGUMENT                                                                                                                                       5
ARGUMENT                                                                                                                                                                  5
CONCLUSION 8
CERIFICATE OF SERVICE 8
SUPPLEMENT OF LEGAL AUTHORITIES
Opinion in United States v Fry 787 F.2d 903, 905 (4th Cir. 1986)                                                                      9
APPENDIX                                                                                                                                                                    11

TABLE OF AUTHORITIES
Cases                                                                                                                                                                            PAGE
Fuentes v Shevin 407 U.S. 67, 89-90 (1972) ............................................................................................................6
Griswold v. Connecticut, 381 U.S. 479, 497, 85 S. Ct. 1678 (1965) .....................................................................7
Liggett Co. v. Baldridge, 278 U.S. 105, 111,112 (1928) .........................................................................................7
McLaughlin v. Florida, 379 U.S. 184, 196; 85 S.Ct. 283, 290 (1964) ....................................................................7
Panhandle Eastern Pipeline Co. v. Highway Comm'n 294 U.S. 613, 622 (1935) .............................................7
Ravin v. State of Alaska, 537 P. 2d 494, 497 (1975)................................................................................................ 7
Roe v Wade, 410 U.S. 113, 155, 93 S.Ct 705, 35 (1973) ....................................................................................5,6
Shelton v. Tucker, 364 U.S. 479, 488 (1960) ..............................................................................................................6 
Dee v State of Maine, No. Mem-01-59 (June 26, 2001) ............................................................................................3
State v Malpher 97 A.2d 484, 485; 2008 Me. 32 ..........................................................................................................5
United States v Fry 787 F.2d 903, 905 (4th Cir. 1986) ..............................................................................................3
United States V Kiffer 477 F2.d 349 at 354. (1973) ....................................................................................................7

Constitution of the State of Maine

Art. IV, pt 3, § 1 .................................................................................................................................................................7

Constitution of the United States
Fourth Amendment    ........................................................................................................................................... 1, 2, 5
Fifth Amendment ...................................................................................................................................................1, 2, 5
Fourteenth Amendment ..................................................................................................................................1, 2, 4, 5

Maine Statutes
17-A M.R.S.A. § 1117(2)(D),.............................................................................................................................. passim .
22 M.R.S.A. § 2383-(1) .......................................................................................................................................passim
Maine Rules of Criminal procedure 12 (b)...........................................................................................................1
Maine Rules of Civil Procedure 7 ( c) ...................................................................................................................2

ii

STATEMENT OF THE FACTS OF THE CASE AND PROCEDURAL HISTORY

On March 28, 2011 Michael J. Dee, Appellant, was given a summons to appear in Augusta District Court on May 4, 2011 for violating 22 M.R.S.A. § 2383(1), possession of a useable amount of marijuana. By the use of state police power,

Appellant’s person and property were seized. (A. 6-7) The enforcement 22 M.R.S.A. § 2383(1), deprived Dee of his fundamental rights to liberty and to property. On May 3, 2011, Augusta District Court received and placed on the docket Appellant’s Motion To Dismiss the complaint pursuant, 12 (b) M.R. CR. P. In this motion Appellant did not claim marijuana is a fundamental right as an affirmative defense. (A. 3-11 ) Appellant claimed as an affirmative defense he was not guilty because, lacking a compelling state interest, the marijuana laws are unreasonable and unnecessary police regulation of his fundamental rights to privacy, to liberty and to property and contravene the Fourth, Fifth and Fourteenth Amendments of the Constitution of the United States. Appellant claimed the enforcement of the 22 M.R.S.A. § 2383(1), deprived him of his fundamental rights to liberty and property without a compelling state interest, without due process of law. ( A. 7 ) Appellant claimed the arbitrary enforcement of 22 M.R.S.A. § 2383(1), by law enforcement officials at the State House demonstrated this law is unreasonable and unnecessary. ( A 9-10 ) Appellant plead “not guilty” at his arraignment. Motion hearing and trial date was set for June 14, 2011. By June 13th, 2011, Dee had not been served a response to his motion to dismiss by the Kennebec County District Attorney Evert Fowle or Maine Attorney General William Schneider.

1

Rule 7 ( c ) M. R. C. P. (A. 12)

MOTION HEARING

The court said there would be a transcript of the motion hearing during the trial. (A. 20 L. 9) Transcripts of the motion hearing were requested. (A. 17) Transcript of the motion hearing are not available. Trial transcript is used to verify what the court said during the motion hearing,

Appellant waited over two hours in the court room for his hearing. No service. The motion hearing began and the court said it almost signed Appellant’s Motion to Dismiss.

Appellant was not prepared to reply to any State objection to his Motion to Dismiss. Appellant read a statement including the following:

“Every defendant before this court today is here because we have violated a law
that authorized the use of state police power to seize our person and deprive us of our liberty.”

“The use of state police power has deprived me of my fundamental rights to liberty and to property. Penalty for the civil violation of the 22 M.R.S.A. § 2383(1) is a fine which is also deprivation of my property.”

“Due process of law requires the courts to use strict scrutiny to review the constitutionality of statutes that impinge upon my fundamental rights. This higher standard of review requires the law must be justified by a compelling state interest that is related to public health and public safety.”

Appellant asked the court for a compelling state interest that shows that 22 M.R.S. A. § 2383-(1) and 17-A M.R.S.A. § 1117(2) (D) are reasonable and necessary and don’t contravene the Fourth, Fifth, and Fourteenth Amendments of the United States Constitution. (A. 8)

The court interrupted Appellant and he did not finish his statement.

The State of Maine, objecting to Appellant’s statement as being the same as his motion,

asked if the court received it’s Objection to Defendant’s Motion to Dismiss?” (A. 13-16 ) The

2

court said “yes.” Appellant interrupted and said “I have not received it.” The court directed the State to serve Dee a copy. Dee objected to the tardiness and requested 10 days to reply. Dee was given 10 minutes while the court proceeded with other cases.


The Appellee is claiming res judicata claiming Appellant is raising the same argument as before in Dee v State of Maine, No. Mem-01-59 (June 26, 2001). (A. 15). Unprepared, Appellant replied to the court that the authority cited by the Law Court, United States v Fry 787 F.2d 903, 905 (4th Cir. 1986) is related to the Ninth Amendment.” (Page 9-10 ). The Ninth Amendment does not make marijuana a fundamental right. (A. 10) Appellant did not ask the court to declare marijuana to be a fundamental right.

Appellee does not recognize the deprivation of Dee’s fundamental rights to liberty and to property by the enforcement of the marijuana laws.

The court briefly talked about property and regulation of property. Appellant mentioned that women were historically and traditionally treated as property. The court said to the effect that the compelling state interest to proscribe this property, marijuana, is that I would “give it to a four year old.” This is verified in the trial transcript ( A. 20 L.1-6 ) Appellant objected. The court said it would “not argue” with Dee any more and ended oral arguments.

The Court denied Appellant’s Motion to dismiss, as noted on Appellant’s Amended Motion to Dismiss.( A. 3 ) Judge Sparaco proceeded with the trial. Again Appellant was found guilty for violating 22 M.R.S.A. § 2383(1). Dee paid a total of $430 in fines and other cost on June 14, 2011. ( A. 2 )

Notice of Appeal and Transcript Order of the Motion Hearing (A. 13)were filed 6/21/ 2011.

3

STATEMENT OF ISSUES

WHETHER THE AUGUSTA DISTRICT COURT’S DENIAL OF DEE’S MOTION TO DISMISS WAS A DENIAL OF DEE’S FUNDAMENTAL RIGHT TO DUE PROCESS OF LAW SECURED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION.

The Appellant Michael J. Dee contends the answer is YES

4

SUMMARY ARGUMENT

The Motion court made a ruling that is not correct as a matter of law and the challenged ruling substantially affected Dee’s fundamental rights to property, to privacy and to liberty and to the fundamental fairness of the proceeding. The Supreme Judicial Court reviews the constitutionality of a statute de novo beginning with the presumption of the statute’s constitutionality. State v Malpher 97 A.2d 484, 485; 2008 Me. 32.

ARGUMENT

THE AUGUSTA DISTRICT COURT DENIAL OF DEE’S MOTION TO DISMISS WAS A DENIAL OF DEE’S FUNDAMENTAL RIGHT TO DUE PROCESS OF LAW SECURED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION

Appellant asked the court for a compelling state interest to prove that 22 M.R.S.A. § 2383(1) does not contravene the Fourth, Fifth and Fourteenth Amendments. No matter to how minor, there is no doubt that the Appellant was deprived of his fundamental right to liberty and to property by the enforcement of this marijuana law. (A. 6-7 )
Where certain "fundamental rights" are involved, the Court has held that regulation limiting these rights may be justified only by a "compelling state interest," Roe v Wade 410 U.S. 113, 155(1973) (A. 8)

The Augusta District Court Judge Sparaco denial of Appellant’s Motion to Dismiss was not based on any legitimate compelling state interest provided by the Appellee. (A. 13-14). The Appellee did not present a compelling state interest that 22 M.R.S.A. § 2383(1) is reasonable and necessary regulations of Appellant’s fundamental rights to liberty, to property and to privacy. The Appellee did not provide any facts to demonstrate why marijuana initially became illegal and a crime. The Appellee did not demonstrate that the Appellant was a threat to

5

rights of others by the possession of marijuana at the State House.

It is the court’s opinion that the compelling state interest that justifies 22 M.R.S.A. § 2383(1) is that Dee would give marijuana to a four year old child. (A-20, L. 1-6) “It is not the business of a court adjudicating due process rights to make its own critical evaluation.” Fuentes v Shevin 407 U.S. 67, 89-90 (1972).

On it’s own, the court provided a compelling state interest that doesn’t relate to the constitutionality of 22 M.R.S.A. § 2383-(1) and 17-A M.R.S.A. § 1117(2) (D). Appellant wasn’t charge with growing and furnishing marijuana to anyone especially to a four year old. Proscribing the furnishing of marijuana to minors is reasonable and necessary use of police power, like alcohol and tobacco, a legitimate government interest.

“In a series of decisions this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.” Shelton v. Tucker, 364 U.S. 479, 488 (1960)

“and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake.” Roe v Wade 410 U.S. 113, 155(1973)

The State of Maine demonstrated a total lack of interest in the possession of marijuana at the State House by the Appellant until he demanded due process of law. (A. 9-10 )

The private cultivation and use of marijuana by the appellant does not affect the rights of others. The possession of a marijuana plant in the State Capitol Building in February 2000, did
not create any threat to public heath or safety. It is a crime to grow marijuana for non medicinal use. Title 17-A M.R.S.A. § 1117(1)(b) (4). There are two ways of getting marijuana you buy it

6

from the drug cartels or grow your own. Each is a crime.

State “police power which trenches upon the constitutionally protected freedom … bears a heavy burden of justification … and will be upheld only if it is necessary, and not merely rationally related, to the accomplishment of a permissible state policy.” McLaughlin v. Florida, 379 U.S. 184, 196 (1964); Griswold v. Connecticut, 381 U.S. 479, 497, (1965); Ravin v. State of Alaska, 537 P. 2d 494, 497 (1975).

The Maine legislature has the authority “to make and establish all reasonable laws and regulations” of all fundamental rights including liberty and property, to authorize police power to protect the community from harm. Maine Constitution Art. IV, pt 3, § 1 .

“It is the governmental power of self-protection and permits reasonable regulation of persons and property in particulars essential to the preservation of the community from injury.” Panhandle Eastern Pipeline Co. v. Highway Comm'n, 294 U.S. 613, 622 (1935).

“The police power may be exerted … to invade rights … when such legislation bears a real and substantial relation to the public health [and] safety.” Liggett Co. v. Baldridge, 278 U.S. 105, 111,112 (1928). Prohibiting the furnishing of marijuana to children, like alcohol and tobacco, bears a real and substantial relation to the public health and safety.

In the absence of compelling justification, the police power does not extend so far as to permit the Government to protect the Appellant against himself and that the concern for public health and safety is relevant only insofar as his actions may threaten the well-being of others. United States V Kiffer 477 F2.d 349 at 354. (1973),

The Appellee State of Maine has not presented factual evidence showing a real and substantial relation to public health and safety to proscribe marijuana for individual use by adults.

The court denied due process of law by not providing an “impartial system of dispute resolution” by representing the State of Maine.

7

The court violated due process of law by making its own critical evaluation adjudicating Appellant’s due process rights affecting his fundamental rights to liberty, property and privacy.

Without a valid compelling state interest, the Court’s dismissal of Appellant’s Motion to Dismiss was the deprivation of Appellant’s fundamental rights to liberty and to property without due process of law.

CONCLUSION

For the above reasons the judgment of the Motion court should be vacated and the case should be remanded to the district court with instruction to grant Appellant’s Motion to Dismiss, overturn Appellant’s guilty verdict, and instruct the court to order the return of physical and monetary property.
October 14, 2011



MICHAEL J. DEE, pro se,
P.O. Box 2021
786 Roosevelt Trail
Windham, Me. 04062
207-893-0287


CERTIFICATE OF SERVICE

I, Michael J Dee certify that two copies of APPELANTS BRIEF AND APPENDIX were served by placing the same in the United States mail, postage prepaid, October 14, 2011, addressed as follows:
Evert Fowle
District Attorney Kennebec County
95 State St.
Augusta, Maine 04430
207-623-1156


8
_____________________________________

MAINE SUPREME JUDICIAL COURT

SITTING AS THE LAW COURT
______________________________________


No. Ken-11-299




MICHAEL J. DEE

Defendant-Appellant


V


STATE OF MAINE

Plaintiff-Appellee





On Appeal from an Order of the Augusta District Court


_________________________________________
APPENDIX OF APPELLANT
_________________________________________
MICHAEL J. DEE
PO Box 2021
786 Roosevelt Trail
Windham, ME. 04062
207-893-0287


==============================================================================

STATE OF MAINE BRIEF TO MSJC


STATE OF MAINE KENNEBEC, ss.

SUPREME JUDICIAL COURT SITTING AS THE LAW COURT LAW DOCKET NO. KEN-11-299


STATE OF MAINE, Plaintiff-Appellee


vs.


MICHAEL DEE Defendant-Appellant



ON APPEAL FROM THE AUGUSTA DISTRICT COURT OF KENNEBEC COUNTY

BRIEF OF THE PLAINTIFF-APPELLEE



Patricia K. Poulin, Esq. Assistant District Attorney Bar Number 9235 EVERT FOWLE,
Esq. District Attorney Kennebec County Courthouse 95 State Street Augusta, Maine 04330 (207)623-1156



TABLE OF CONTENTS

TABLE OF CONTENTS.                                                    i
TABLE OF AUTHORITIES                                                ii
ISSUE PRESENTED                                                        iii
PROCEDURAL HISTORY.                                              1
STATEMENT OF FACTS,                                                 5
SUMMARY OF THE ARGUMENT                                    8
ARGUMENT                                                                        9
CONCLUSION                                                                 13
CERTIFICATE OF SERVICE                                          13

i


TABLE OF AUTHORITIES
Cases
Dee v. Attorney General No. Mem 99-59 (Apr. 30, 1999),                                                         10
Dee v. Ketterer. No. 96-CV-274-B (D.Me. 1997)                                                                         10
Dee v. Maine, 535 U.S. 1057(2002)                                                                                              10
Dee v. Reno, 519 U.S. 1001 (1996)                                                                                              10
Dee v. Reno, 82 F.3rd 403 (1st Cir. 1996)                                                                                   10
Dee v. Reno, 97-CV-P-H (D. Me. 1997)                                                                                        10
Deev. State of Maine, 2001 Me. Super. LEXIS 14                                                                        11
Deev. State of Maine, 2007 Me. Super LEXIS 121                                                                       10
Dee v. State of Maine, 241 F.Supp.2d 50 (D.M 2003)                                                                  10
Deev. State of Maine, No Mem 07-208 (Dec. 13, 2007)                                                              10
Deev. State of Maine, No. Mem 00-132 (Oct. 27, 2000)                                                              10
Deev. State of Maine, No. Mem 07-208 (Dec. 13, 2007)                                                             12
Dee v. State, 2011 Me. Super LEXIS 14, (Jan. 24, 2001)                                                            10, 11
Dee v. State, No. Mem-02-1 (Jan 16, 2002)                                                                                   10
Dee v. State, No. Mem-02-1 (Jan. 16,2002)                                                                                  11
Dee v. United States. 241 F. Supp 2d                                                                                              10
Dee. V. Attorney General, Mem 99-59                                                                                               11
Dee. V. Attorney General, Mem 99-59 (June 26, 2001)                                                                 11
In re Wage Payment Litig. v. Wal-Mart Stores, Inc.. 2000 ME 162, 759 A.2d 217                      9
Michael J. Dee v. State of Maine. 2001 Me. Super. LEXIS 59 (April 10, 2001)                          10
Michael J. Dee v. State of Maine. 2001 Me. Super. LEXIS 5 (April 10, 2001)                            11
State of Maine v. Dee. No Mem-01-59 (June 26, 2001)                                                                10
State v. DiPietro. 2009 ME 12, 964 A.2nd 363                                                                                  9
State v. Harriman. 467 A.2d 745(Me. 1983)                                                                                       10
State v. Hughes. 2004 ME 141, 863 A.2d 266                                                                                   9


Statutes
M.R. App. P. 5 (b). (2). fd). ffl                                                                                                                 9
Titlel7AM.R.S.A. § 1114                                                                                                                       11
Title 17-AM.R.S.A. § 1182 (4)(B)                                                                                                         11
Title 22 M.R.S.A. §2383                                                                                                                         11


ii

ISSUE PRESENTED
DID THE TRIAL COURT ERR IN DENYING THE APPELLANT'S MOTION TO DISMISS ?

iii



PROCEDURAL HISTORY

On March 28, 2011, the above named Defendant was charged with the civil violation of possession of marijuana in violation of Title 22 M.R.S.A. § 2383 in Augusta, Maine. On May 3, 2011, a Motion to Dismiss was filed by the Appellant. On May 4, 2011, an arraignment was held and the Appellant entered a "denial" to the civil violation.

On May 20, 2011, the Appellant filed an amended Motion to Dismiss the charges. The Motion to Dismiss and the trial were both scheduled for hearing on June 14, 2011 at 8: 30 a.m. in the Augusta District Court. On June 14, 2011, Judge Sparaco was the sitting judge. The Motion to Dismiss was argued first and the motion was denied by Judge Sparaco. A hearing on the merits of the civil violation followed. Judge Sparaco found that the offense was committed and imposed a $ 350.00 fine.
The Appellant filed a Notice of Appeal that was docketed on June 21,2011. The Appellant's Notice of Appeal required a statement of the issue pursuant to M.R.App. P.5(b)(2)(A). The Appellant wrote on his motion the issue on appeal was : "Denying the Defendant's Motion to Dismiss was a denial of the Due Process of Law." On June 21, 2011, the Appellant's transcript order was docketed and sent to Bangor to the Electronic Recording Division. The Appellant's transcript order was dated June 17, 2011. The Appellant specifically requested the motion hearing and trial citing tape number 2522 and index numbers 50-2165. On August 29, 2011, the Appellee also filed a transcript order that mirrored the Appellant's order including the same tape number and index number.

On September 2, 2011, the Appellee received a copy of the trial transcript for the trial held on June 14, 2011. The State's copy of the transcript did not include a transcript of the Motion to Dismiss hearing. On October 17, 2011, the Appellee received a copy of the

1

Appellant's brief that stated that the Appellant requested a copy of the motion hearing and the motion hearing transcript was "unavailable." (Blue Br. 2).

On September 21, 2011, the Appellee contacted the Augusta District Court clerk's office requesting guidance on how to get a full transcript specifically the motion hearing as originally requested. The Clerk's stated that we would need to verify the exact index numbers for that portion of the tape and make a new transcript order request. The clerk's office advised that they would contact the Electronic Recording Division in Bangor and request the tape be returned so that the exact index numbers for the motion hearing could be obtained. On October 14, 2011, the Appellee followed up with the clerk and was told the tape was now at the Augusta District Court but they had not had time to listen to the tape to determine if the motion hearing was recorded. On October 24, 2011, the Appellee again followed up with the clerk's office and was advised that they were unable to get a courtroom made available to listen to the tape and obtain the index numbers. On October 31, 2011, the Appellee followed up with the clerk's office and was told that they believed a courtroom would be available the following day to listen to the tape. On November 1, 2011, the Appellee followed up with the clerk's office and was told that a second tape needed to be obtained from the Electronic Recording Division in Bangor and they were requesting that tape be shipped UPS overnight. On November 2, 2011, the clerk's office verified that the tape did record the motion hearing and it was recorded on tape # 2522. The clerk stated the motion hearing was recording between index numbers 1040-1423 and the trial was recorded between 1614-2160.

On November 2,2011, the Appellee contacted the Law Court and spoke with a female clerk to ensure that they did not have a copy of the motion hearing transcript. The Appellee was advised the Law Court also only had the trial transcript and a discussion was had about possible

2

Motions for Extensions to get the correct transcript. The Law Court clerk advised that the Appellee should contact Electronic Recording before filing a motion for extensions to determine how long they would need to complete the transcript request. Also on November 2, 2011, the Appellee contacted the Electronic Recording Division and left a message for Brenda. The Appellee's call was never returned. On November 7, 2011, the Appellee contact Electronic Recording and spoke with Brenda. Brenda reported that the log sheet from the Augusta District Court did not contain any index numbers to denote when the motion hearing began or ended and when the trial began or ended. The Appellee was told the requested transcript would cost about $ 45.00 and take between 4-6 weeks to complete.

On November 7, 2011, the Appellee contacted the Appellant Michael Dee via telephone. Mr. Dee reported that his original index numbers were provided by the Augusta District Court. Mr. Dee also advised that he was told by the clerk's office that the motion transcript was unavailable. Mr. Dee advised that he was appealing the ruling on the Motion to Dismiss and not the ruling at trial. Mr. Dee vacillated back and forth between wanting to wait for the transcript of the motion to be provided and simply wanting to proceed with the appeal without the motion transcript. The Appellee advised Mr. Dee that she was told the motion transcript was going to cost approximately $ 45.00 and that time frame for transcription was quoted at 4-6 weeks. Mr. Dee reiterated numerous times that enough of the Motion to Dismiss was discussed during the trial that the record was perfected and the appeal could go forward without the motion hearing transcript. Mr. Dee finally settled that he did wish to wait to have the motion hearing transcript provided by the Electronic Recording division and he understood the Appellee would be filing a Motion to Extend time to file our brief so that we had the benefit of the motion hearing transcript. Mr. Dee contacted the Appellee within the hour of the first conversation and stated he
3

did not wish to have the motion hearing transcript and wanted the appeal to proceed without it, specifically stating "do not get the transcript." Based on that decision; the Appellee did not request the additional transcript.

4

STATEMENT OF FACTS

Judge Sparaco sitting in the Augusta District Court on June 14th heard the Appellant's arguments on his Motion to Dismiss and his Amended Motion to Dismiss. The Appellee had also filed a written objection to the Appellant's motion and all three documents are part of the record on appeal. However, the transcript is not part of the record as it was not originally transcribed by the Electronic Recording Division and the Appellant opted not to wait for the transcription but instead proceed with this appeal without it. The Appellant's Motions to Dismiss argue that Maine's Marijuana laws are unconstitutional in violation of the Fourth, Fifth and Fourteenth Amendments. The motions site no cases in support of his arguement. The Appellee argued that the motions should be dismissed in accordance with a long line of decisions from the Federal Court and this Court denying the Appellant's attempts to have Maine's Marjuana laws found unconstitutional. Judge Sparaco denied the Appellant's motion and a trial on the merits was held.

The testimony at trial was that on March 28, 2011, the Maine Legislature Criminal Justice and Public Safety Committee held a hearing on the decriminalization of certain amounts of marijuana. (Trial Transcript, at page 4, hereinafter referred to as "TT, p. 4). The Appellant attended that committee meeting and was present for over one hour before standing up and asking to be arrested. (TT, p. 4 and 6). Evert Fowle testified at trial that he was present at the committee hearing and observed the Appellant stand up when the committee voted unanimously ought not to pass on the bill, the Appellant stated something to the effect of "You better arrest me then." (TT, p. 4). The Appellant was holding a sign when he stood up in the committee room. The sign advocated the legalization of marijuana and taped to the sign was a large baggie of what appeared to be marijuana. (TT, pp. 4-5). Evert Fowle identified the person who stood

5

up at the committee hearing holding a sign with marijuana taped to it as the Appellant during the trial. (TT,p. 5).
Officer Paul Lapierre of the Capitol Police was called to respond to the disturbance in committee room 43 6 of the State House. (TT, p. 13). Officer Lapierre made contact with the Appellant in the hallway of the 4th floor of the state house. The Appellant stated to Officer Lapierre that he was in possession of marijuana and he was setting an example as to his rights by being in possession of the marijuana. (TT, p. 13). Officer Lapierre identified the Appellant during the trial as the person he had contact with on March 28th on the 4th floor of the State House. (TT,p. 14).

Officer Lapierre testified that the substance given to him was a green leafy substance that in his decade long involvement in law enforcement was known to him to be marijuana. The substance was admitted into evidence without objection. (TT, p. 14). Officer Lapierre testified under cross examination that the Appellant was detained at the State House only long enough to issue him a summons for the civil violation of possession of marijuana. Also on cross examination Officer Lapierre acknowledged that he confiscated the marijuana from the Appellant as evidence. Officer Lapierre testified that the Appellant was causing a disturbance in the committee room which got the Capitol Police involved but the Appellant was not threatening anyone that was present. (TT, p. 15).

After the State's first witness had been excused and just as Officer Lapierre was being called to testify, the Appellant stated that he did not see any sense in going further with the trial and wasting the witnesses' time. The Appellant stated "I was in possession of marijuana in the State Capitol building showing that the law is arbitrarily enforced. The law makers didn't want to enforce the law. I had to force the issue as arbitrary power." (TT, pp. 9-10). There was a

6

colloquy between the Appellant and the Judge in which the Appellant formally admitted to the charge of possessing of marijuana. (TT, p. 10). However, the Appellant also stated that he wanted to readdress the issue on the Motion to Dismiss and requested the court inform him of the compelling state interest in taking his property. (TT, pp. 8 and 10-11). Due to the Appellant's convoluted plea, the State decided to continue with their evidence and called Officer Lapierre to testify.
After the State rested, the court asked the Appellant if he wanted to put on any evidence in the case. The Appellant responsed "Just the Constitution of the United States. That is all." (TT, p. 16). Judge Sparaco found the violation of possession of marijuana had been committed. (TT, p. 17). The Appellant was fined the mandatory minimum amount for the violation of $350.00. (TT, p. 18).

7

SUMMARY OF THE ARGUMENT

The Appellant is appealing from denial of his Motion to Dismiss on a civil possession of marijuana charge. The Appellant motion states that Maine's marijuana laws violate his Fourth, Fifth and Fourteenth Amendment rights. The Appellant further argues that the denial of the Motion to Dismiss is a violation of his fundamental right of due process.

The Appellee argues that Maine's civil possession of marijuana law is Constitutional and has been upheld as constitutional in multiple challenges brought forward by this Appellant.

8

ARGUMENT

THE TRIAL COURT DID NOT ERR IN DENYING THE APPELLANT'S MOTION TO DISMISS.

The Defendant's Motion to Dismiss cites Rule 12 (b) of the Maine Rules of Criminal Procedure. The criminal rules do not apply to civil violation prosecutions. State v. DiPietro, 2009 ME 12, f 7, 964 A.2nd 636, 639 (Me. 2009). The Appellant was charged with a civil violation and the Appellant will address the motion under the Maine Civil Rules assuming the Appellant still wants to appeal under Rule 12(b). The Appellant did not site which of the 12(B) rules he was filing under. A Motion to Dismiss will be reviewed in the light most favorable to the Plaintiff. In re Wage Payment Litig. v. Wal-Mart Stores, Inc., 2000 ME 162, f3, 759 A.2d 217,220.

There is no transcript or statement in lieu of a transcript of the Motion to Dismiss hearing held at the Augusta District Court on June 14, 2012 provided in this case. See M.R. App. P. 5 (b), (2), (d), (f). This Court has ruled that when the record on appeal does not include a transcript of the proceedings below, the Court must assume the transcript would support the trial court's findings. State v. Hughes. 2004 ME 141,1f 7, 863 A.2d 266, 269. In Huges this Court acknowledged an Appellant in civil cases may exercise discretion in what is included as relevant material to complete the record on appeal. However, this Court also stated that the "manner the appellant chooses to exercise this discretion will significantly impact on their likelihood of their appellate success." Id. at ^f 12.

In the instant, case the Appellant once again challenges the Constitutionality of Maine's marijuana laws, a feat that he has been unsuccessful at since 1995. The Appellant's Motion to Dismiss follows his prior arguments and argues that Maine civil marijuana laws are in violation

9

of the Fourth, Fifth and Fourteenth Amendments. Apart from mentioning these three amendments the Appellant does not mention any other authority for his position. The Appellant's written Motion to Dismiss states that the marijuana laws are unconstitutional because they lack a compelling state interest because they interfere with the Appellants fundamental rights of privacy, liberty and property. Each of the arguments presented in the Appellant's Motion to Dismiss have been previously adjudicated and failed, his claims dismissed, and all requests for further appeals denied in both Federal and State Courts. See Dee v. State of Maine. 241 F.Supp.2d 50 (D.M 2003) (citing Dee v. Reno, NO 95CV29P-H) (D. Me. 1995), Dee v. Reno. 82 F.3rd 403 (1st Cir. 1996), Dee v. Reno. 519 U.S. 873 (1996), Dee v. Reno. 519 U.S. 1001 (1996), Dee v. United States. 241 F. Supp 2d at 51, Dee v. Reno. 97-CV-P-H (D. Me. 1997), Dee v. Ketterer. No. 96-CV-274-B (D.Me. 1997), Dee v. Attorney General. No. Mem99-59 (Apr. 30, 1999), Dee v. State of Maine. No. Mem 00-132 (Oct. 27, 2000), Deev. State. 2011 Me. Super LEXIS 14, (Jan. 24, 2001), State of Maine v. Dee. No Mem-01-59 (June 26, 2001), Michael J. Dee v. State of Maine. 2001 Me. Super. LEXIS 59 (April 10, 2001), Dee v. State. No. Mem-02-1 (Jan 16, 2002), Dee v. Maine. 535 U.S. 1057 (2002), Dee v. State of Maine. 2007 Me. Super LEXIS 121, and Deev. State of Maine. No Mem 07-208 (Dec. 13, 2007).

The Appellant is charged in the instant case under Title 22 M.R.S.A. § 2383 with a civil violation of possession of a usable amount of marijuana. Furthermore, Title 17-A M.R.S.A. § 1182 (4)(B) declares that marijuana is a schedule Z drug which is illegal to posses. Title 17 A M.R.S.A. § 1114 states that "all scheduled Z drugs, the unauthorized possession of which constitutes a civil violation under Title 22, are hereby declared contraband, and may be seized and confiscated by the State." In State v. Harriman. 467 A.2d 745 (ME. 1983), this Court ruled

10

that although marijuana seized from a vehicle could only constitute a civil violation, it was nonetheless contraband subject to seizure. Id. at 450. The Appellant admitted during the trial that he possessed marijuana at the State House on March 28, 2011. (TT, pp. 9-10). The Appellant's marijuana was legally seized as it was contraband illegal for him to posses.
The facts of the instant case are almost identical to a matter decided by Justice Atwood in 2001. Dee v. State of Maine, 2001 Me. Super. LEXIS 14. In the 2001 matter, the Appellant was also found on the 4th floor of the State House with a marijuana plant and he refused to leave unless a Capitol Security officer summonsed him for possession of marijuana. Id. at * 1. Prior to his trial on the civil violation of possession of marijuana the Appellant moved for dismissal on constitutional grounds, specifically the Appellant allged that that he had a fundamental and protected liberty interest in using marijuana. Id. *2. The motion to dismiss was not ruled on but a trial was held and the Appellant was adjudicated of possession of marijuana. Id. The Appellant appealed the adjudication only as to the constitutionality of the statute and not with regard to any facts of the underlying case. Id * 3. Justice Atwood followed an already long line of precedent denying the Appellant's appeal based on the fact that he had no authority for his claims.

This Court affirmed that opinion in Dee. V. Attorney General Mem 99-59 (June 26, 2001). In relevant part, this Court's Memorandum of Decision in 1999 stated that "22 M.R.S.A. § 1 (Supp. 2000) does not contravene the fundamental rights protected by the Fourth and Fourteenth Amendments of the U.S. Constitution." Id. (emphasis added). Also in 2001, the Appellant brought another case seeking declaratory judgment that the arbitrary enforcement of the marijuana laws were a violation of his due process rights and therefore unconstitutional. Justice Crowley dismissed the Appellant's pleadings reasoning that the action was barred by res

11

judicata. Michael J. Dee v. State of Maine, 2001 Me. Super. LEXIS 59 at * 1 (April 10, 2001). This Court affirmed the lower court's decision. Dee v. State, No. Mem-02-1 (Jan. 16, 2002).

In 2007, Justice Crowley made similar findings after an extensive review of the Appellant's prior litigation history in both Federal and State courts and the issues raised in those matters. Dee. V. State of Maine, 2007 Me. Super LEXIS 121. Justice Crowley found that the Appellant was not bringing forward any new issues that had not previously been adjudicated by other courts. Id. at 2-6. Justice Crowley stated that it has long been recognized by courts within and out of this jurisdiction that there is no fundamental right to use or possess marijuana; therefore, the law is subject to the rational review. Justice Crowley further found that the Legislatures enacting of laws to prohibit the use, cultivation and distribution of marijuana to be well within their province to promoting public health, welfare and safety. Id. at *8. Justice Crowley went on to state, this " court cannot change the marijuana laws, and explicitly finds that there currently is no basis for invalidating them because the legislature has a rational basis for enacting them, and they do not encroach on any fundamental right." Id. Justice Crowley's ruling was upheld by this Court in Dee v. State of Maine, No. Mem 07-208 (Dec. 13, 2007). The Appellant's arguments have all been previously been raised and failed. No new or additional challenges are made in this appeal. The Appellant possessed marijuana on March 28, 2011 in violation of Maine Laws. The Maine marijuana laws are not in violation of the U.S. Constitution, therefore, the trial court's denial of the Appellant's Motion to Dismiss should be upheld.
12

CONCLUSION

For the reasons set forth in this Brief, the Plaintiff-Appellee State of Maine respectfully requests that this Court affirm the trial court's denial of the Appellant's Motion to Dismiss.


Dated: W?/// ^
' 7 Pafricia K. Poulin, Esq.
Assistant District Attorney Bar Number 923 5 EVERT FOWLE, Esq. District Attorney Kennebec County Courthouse 95 State Street Augusta, Maine 04330 (207)623-1156
CERTIFICATE OF SERVICE
I, Patricia K. Poulin, Esq. hereby certify that two copies of the herein brief of the Plaintiff-Appellee State of Maine have been mailed, postage pre-paid, to Michael Dee, at PO Box 2021 786 Roosevelt Trail in Windham, Maine 04062

Dated: /j/7///
Patricia K. Poulin, Esq. Assistant District Attorney Bar Number 923 5 EVERT FOWLE, Esq. District Attorney Kennebec County Courthouse 95 State Street Augusta, Maine 04330 (207)
13


9. MAINE SUPREME JUDICIAL COURT Reporter of Decisions
In re Penelope W., 2011 ME 58 p7, 19 A.3d 813
State v Haskell 2008 ME 82 p 5- 6, 955 A.2d 737
http://www.courts.state.me.us/opinions_orders/supreme/publishedopinions.shtml


MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision No Mem 12-7 Docket No. Ken-11-299

STATE OF MAINE
v.
MICHAEL J. DEE

Submitted on Briefs January 30, 2012 Decided February 7, 2012
Panel: ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.
MEMORANDUM OF DECISION

Michal J. Dee appeals from the judgment of the District Court (Augusta, Sparaco, J.) finding that he committed the civil violation of possessing a useable amount of marijuana. See 22 M.R.S. § 2383(1 )(A) (2011). This is not the first time that Dee has litigated the constitutionality of marijuana prohibitions before the courts of Maine and elsewhere.1 Contrary to Dee's assertions, the Legislature'sdecision to proscribe the possession of marijuana does not violate his right to due process pursuant to the Fourteenth Amendment to the United States Constitution. See In re Penelope W., 2011 ME 58, 1 7, 19 A.3d 813; State v. Haskell, 2008 ME 82, nf 5-6, 955 A.2d 737. Dee has not met his burden of demonstrating "the complete absence of any state of facts that would support the need for" prohibiting the possession of marijuana. Haskell, 2008 ME 82, \ 5, 955 A.2d 737.

The entry is:
Judgment affirmed.

On the briefs:
Michael J. Dee, appellant pro se
Evert Fowle, District Attorney, and Patricia K. Poulin, Asst. Dist. Atty., Augusta, for appellee State of Maine.
Augusta District Court docket number VI-2011-167 FOR CLERK REFERENCE ONLY

1 Dee v. United States, Docket No. 09-CV-163-P-H, 2009 U.S. Dist. LEXIS 39568 (D. Me. Apr. 28, 2009) (recommending denial of Dee's request for leave to file a declaratory action); In re Michael J. Dee, Docket No. 04-MC-33-GZS (D. Me. Apr. 26, 2004); Dee v. United States, 241 F. Supp. 2d 50 (D. Me. 2003) (denying Dee's request to file a new declaratory judgment action); Dee v. United States, Docket No. 2:98-CV-37-DBH (D. Me. May 26, 1998) (enjoining Dee from filing additional challenges to Maine's marijuana laws in federal court); Dee v. Att'y Gen. of the U.S., Docket No. 2:97-CV-229-DBH (D. Me. Aug. 11, 1997); Dee v. Att'y Gen. of Me., Docket No. l:96-CV-274-MAB (D. Me. Feb. 25, 1997); Dee v. Reno, Docket No. 95-CV-29-P-H (D. Me. Sept. 11, 1995), aff'd, No. 95-2173, 1996 U.S. App. LEXIS 6999 (1st Cir. Apr. 10, 1996) (per curiam), cert, denied, 519 U.S. 873 (1996), reh 'g denied, 519 U.S. 1001 (1996); Dee v. State, 2007 Me. Super. LEXIS 121 (June 25, 2007), aff'd, Mem-07-208 (Dec. 13, 2007), cert, denied, 555 U.S. 823 (2008) (enjoining Dee from filing challenges to Maine's marijuana laws in state court); Dee v. State, 2001 Me. Super. LEXIS 59 (Apr. 10, 2001) (entering judgment on the pleadings against Dee's action for judgment declaring marijuana laws unconstitutional), aff'd, Mem-02-1 (Jan. 16, 2002); State v. Dee, 2001 Me. Super. LEXIS 14 (Jan. 24, 2001) (affirming a judgment that Dee committed the civil violation of possession of a usable amount of marijuana at the State House), aff'd, Mem-01-59 (June 26, 2001); Dee v. State, No. CV-99-690 (Me. Super. Ct. Apr. 25, 2000), aff'd, Mem-00-132 (Oct. 27, 2000); Dee v. Att'y Gen., No. CV-97-763 (Me. Super. Ct. July 7, 1998), aff'd, Mem-99-59 (Apr. 30, 1999); Dee v. State, 111 P.3d 218 (Wyo. 2008), reh'g denied, No. S-07-185, 2008 Wyo. LEXIS 31 (Wyo. Mar. 11, 2008), cert, denied, 555 U.S. 824 (2008); Dee v. Laramie County, 666 P.2d 957 (Wyo. 1983).

==================

10. APPELLANT’S MOTION FOR RECONSIDERATION

Filed 15 February 2012
MAINE SUPREME JUDICIAL COURT

SITTING AS THE LAW COURT
______________________________________

No. Ken-11-299

MICHAEL J. DEE
Defendant-Appellant
V
STATE OF MAINE

Plaintiff-Appellee

On Appeal from an Order of the Augusta District Court
_________________________________________
APPELLANT’S MOTION FOR RECONSIDERATION

APPELLANT’S MOTION FOR RECONSIDERATION
Rule 14 (b)

Michael J. Dee presents two choice of relief for this Court in reconsidering its Decision No. Mem 12-7. Dee added what was implied in this part of the decision. “Contrary to Dee's assertions, the Legislature's decision to proscribe the possession of marijuana” is rational use of police power to seize his liberty and property and “does not violate his right to due process pursuant to the Fourteenth Amendment to the United States Constitution.”

This Court used this phrase “Contrary to Dee's assertions” and cited Haskell in its decision. As before, this Court is implying Dee is claiming marijuana is a fundamental right. If this assertion is true, this Court has “overlooked” the issues raised by Dee. Dee has demonstrated the marijuana possession law is not reasonably necessary nor reasonably related to protecting public welfare to use police power.

B. MARIJUANA LAW: UNREASONABLE

In Haskell this Court wrote:
“Under a rational basis review, due process requires
(1) the police powers to be exercised to provide for public welfare
(2) the legislative means employed be appropriate to achieve the ends sought.
(3) ‘The manner of exercising the power is not unduly arbitrary or capricious” State v Haskell 2008 ME 82 p 5- 6, 955 A.2d 737

This Court wrote in its Decision 12-7:

“Dee has not met his burden of demonstrating ‘the complete absence of any state of facts that would support the need for’ prohibiting the possession of marijuana.” State v Haskell 2008 ME 82 ¶ 5

1

This Court has overlooked the fact that Dee had met this burden of establishing that there is no rational basis for the legislation proscribing marijuana possession. There was no rational basis because there was a “complete absence” of a threat to public welfare, absence of a compelling state interest, to exercise the use of police power to enforce the marijuana possession law upon Dee at the State House.

“Appellant claimed as an affirmative defense he was not guilty because, lacking a compelling state interest, the marijuana laws are unreasonable and unnecessary police regulation…” (Appellant’s brief at 1 ¶3 )


Lacking a “threat to public health, safety, and welfare,” Dee asserted that the use of police power to enforce the marijuana possession law wasn’t “reasonable.” Haskell ¶ 7

1. In proscribing the possession of marijuana, the “constitutional deficiency” or the “infirmity,” of the law is the exercise of police power isn’t protecting pubic welfare. Haskell ¶ 5 Penelope¶ 7

2. The Legislature’s means of employing police power to proscribe the possession of marijuana isn’t appropriate because the possession of marijuana doesn’t pose a threat to public welfare. There is no threat to public safety. There is no compelling state interest to require police power.

3. By the nature of how Dee received his summonses at the State House, the marijuana possession law was arbitrarily enforced. The lack of a threat to public welfare is a reason the marijuana law was and is unduly, arbitrarily enforced. Dee has met all three criteria establishing that there is no rational basis for the

2

legislation to employ police power to proscribe the possession of marijuana. For the above reasons Dee is asking this Court to reconsider its decision to the following. The legislature’s decisions to proscribe the possession of marijuana is not rational use of police power and does violate Dee’s right to due process pursuant to the Fourteenth Amendment of the Constitution of the United States.

Dee request the Court vacate the District Court’s decision and remand the case for further proceeding because 22 M.R.S. 2383(1)(a) (2011) is NOT RATIONAL use of police power and does violate concepts of due process.

22 M.R.S. 2383(1)(a) (2011)
No Compelling State Interest to Use Police Power.

This Court continues to overlooked the fact that “Appellant did not claim marijuana is a fundamental right as an affirmative defense.” (see p.1 ¶ 2 Appellants brief). The fact is Dee has never ask any Court to declare marijuana to be a fundamental right. This Court’s use of this phrase “Contrary to Dee’s assertions,” is not truthful. This implied assertion, marijuana is a fundamental right, is not in the docket record.

The Court continues to overlook or misapprehends the meaning of its mission to be “impartial” and “protect individual rights.” This Court continues to treat Dee as a non person and marijuana is non property. “No state shall …… deprive any person of life, liberty, or property, without due process of law;” Fourteenth Amendment.

3

This Court misapprehends the use of police power.

“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.” State v Haskell 2008 ME 82 ¶ 5

Police power always impinges upon the fundamental right to liberty. Just being stop by a law enforcement officer is seizure of person and deprivation of liberty! A search warrant is an invasion of privacy!! Seizing marijuana is deprivation of property!!! Being arrested for growing marijuana is seizure of person and deprivation of liberty !!!!

Legislation that requires the use of police power is either reasonable or unreasonable. Maine Constitution does not say rational “laws and regulations“. Art. IV pt3 § 1.

“The police power of a state … is subordinate to constitutional limitations. …It is the governmental power of self-protection and permits reasonable regulation of rights and property in particulars essential to the preservation of the community from injury.” Panhandle Eastern Pipeline Co. v. Highway Comm'n, 294 U.S. 613, 622 (1935).

“The police power may be exerted … to invade rights … when such legislation bears a real and substantial relation to the public health [and] safety.” Liggett Co. v. Baldridge, 278 U.S. 105, 111,112; 49 S.Ct.57, 59 (1928).

Lacking a compelling state interest, a threat to the rights of others, the operation and effect of the marijuana possession law was unreasonable and unnecessary use of police power to deprive Dee’s fundamental rights to liberty and to property at the State House.

Due process requires the court to use strict scrutiny to review of laws involving

4

explicit fundamental rights. This type of judicial review require a compelling state interest to justify the deprivation of rights by the use of police power.

The State has never met its burden of establishing a compelling state interest to justify the deprivation of Dee’s liberty and property by employing police power . Without a compelling state interest the legislature’s decisions to proscribe the possession of marijuana is unreasonable and unnecessary and contravenes Dee’s right to due process of law pursuant to the Fourteenth Amendment of the Constitution of the United States.

For the above reasons, Dee is asking this Court to reconsider its decision in using rational review to determine the constitutionality of the marijuana possession law.

Dee request the Court to vacate the District Court’s decision and remand the case for further proceeding because without a compelling state interest, 22 M.R.S. 2383(1)(a) (2011) is unreasonable and unnecessary regulation of Dee’s fundamental rights to liberty and to property and does violate concepts of due process.


Dated February 15, 2012

MICHAEL J. DEE

==============================================================
11. Maine Supreme Judicial Court decision's on Dee's Motion to For Reconsiderations.
go to
http://www.courts.state.me.us/opinions_orders/opinions/2012_documents/12me26de.pdf
The facts will show " Contrary to Dee's assertions" is not truthful.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2012 ME 26
Docket: Ken-11-299
Submitted
On Briefs: January 30, 2012
Decided: February 7, 2012
Revised: March 6, 2012


Panel: ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ. STATE OF MAINE v. MICHAEL J. DEE


PER CURIAM


[¶ l] Michael J. Dee appeals from the judgment of the District Court (Augusta, Sparaco, J.) finding that he committed the civil violation of possessing a useable amount of marijuana. See 22 M.R.S. § 2383(1)(A) (2011). We affirmed this judgment in an earlier memorandum of decision, State v. Dee, Mem-12-7 (Feb. 7, 2012), which Dee moved us to reconsider pursuant to M.R. App. P. 14(b). We do so and again affirm.


[¶ 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



2


courts of Maine and elsewhere.(fn1) 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


fn1 Dee v. United States, Docket No. 09-CV-163-P-H, 2009 U.S. Dist. LEXIS 39568 (D. Me. Apr. 28, 2009) (recommending denial of Dee's request for leave to file a declaratory action); In re MichaelJ. Dee, Docket No. 04-MC-33-GZS (D. Me. Apr. 26, 2004); Dee v. United States, 241 F. Supp. 2d 50 (D. Me. 2003) (denying Dee's request to file a new declaratory judgment action); Dee v. United States, Docket No. 2:98-CV-37-DBH (D. Me. May 26, 1998) (enjoining Dee from filing additional challenges to Maine's marijuana laws in federal court); Dee v. Att'y Gen. of the U.S., Docket No. 2:97-CV-229-DBH (D. Me. Aug. 11, 1997); Dee v. Att'y Gen. of Me., Docket No. 1:96-CV-274-MAB (D. Me. Feb. 25, 1997); Dee v. Reno, Docket No. 95-CV-29-P-H (D. Me. Sept. 11, 1995), aff'd, No. 95-2173, 1996 U.S. App. LEXIS 6999 (1st Cir. Apr. 10, 1996) (per curiam), cert, denied, 519 U.S. 873 (1996), reh'gdenied, 519 U.S. 1001 (1996); Dee v. State, 2007 Me. Super. LEXIS 121 (June 25, 2007) (enjoining Dee from filing challenges to Maine's marijuana laws in state court), aff'd, Mem-07-208 (Dec. 13, 2007), cert, denied, 555 U.S. 823 (2008); Dee v. State, 2001 Me. Super. LEXIS 59 (Apr. 10, 2001) (entering judgment on the pleadings against Dee's action for judgment declaring marijuana laws unconstitutional), aff'd, Mem-02-1 (Jan. 16, 2002); State v. Dee, 2001 Me. Super. LEXIS 14 (Jan. 24, 2001) (affirming a judgment that Dee committed the civil violation of possession of a usable amount of marijuana at the State House), aff'd, Mem-01-59 (June 26, 2001); Dee v. State, CUMSC-CV-99-690 (Me. Super. Ct, Cum. Cty., Apr. 25, 2000), aff'd, Mem-00-132 (Oct. 27, 2000); Dee v. Att'y Gen., CUMSC-CV-97-763 (Me. Super. Ct, Cum. Cty., July 7, 1998), aff'd, Mem-99-59 (Apr. 30, 1999); Dee v. State, 111 P.3d 218 (Wyo. 2008), reh'g denied, No. S-07-185, 2008 Wyo. LEXIS 31 (Mar. 11, 2008), cert, denied, 555 U.S. 824 (2008); Dee v. Laramie County, 666 P.2d 957 (Wyo. 1983).


only be some theoretical explanation for the statute, and the Legislature is not required to provide the facts that justify its enactment. Id. f 6 (citing Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464 (1981)). Even when a party's evidence undermines the Legislature's decision, the statute is constitutional if there was evidence that a rational basis could be established. Id.


[¶ 4] Contrary to Dee's assertions, the Legislature's decision to proscribe the possession of marijuana does not violate his right to due process. -See Haskell, 2008 ME 82, ¶ ¶  5-6, 955 A.2d 737. There is a rational explanation for the Legislature's decision to proscribe the possession of marijuana. Although "legislative actions are not subject to courtroom fact-finding and need not be supported by evidence or empirical data," id. ¶  6 (quotation marks omitted), there is evidence that marijuana is harmful, see Rupert v. City of Portland, 605 A.2d 63, 66 (Me. 1992) (stating that drug prohibition statutes "represent the legislature's determination that marijuana poses a threat to individual health and social welfare"). Dee has presented no evidence that the Legislature's prohibition on marijuana is not "appropriate to achieve the ends sought." See Haskell, 2008 ME 82, ¶  6, 955 A.2d 737. 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.



The entry is:


Judgment affirmed. The mandate will issue forthwith.

On the briefs:


Michael J. Dee, appellant pro se


Evert Fowle, District Attorney, and Patricia K. Poulin, Asst. Dist. Arty., Augusta, for appellee State of Maine.

Augusta District Court docket number VI-2011-167 FOR CLERK REFERENCE ONLY

Again the Maine Supreme Court willfully overlook, ignored the facts of the case. I did not claim marijuana is a fundamental right.

By citing Haskell 2008 ME 82 the Maine Supreme Judicial Court again is declaring I am claiming marijuana is a fundamental right. It appears Haskell claimed he had a fundamental right to use personalized watercraft on great ponds.

In Haskell, the court gave three criteria to meet rational review. As stated below in the Motion for Reconsideration I already met those criteria.

(pdf documents not supported by this web host)

---------

==============================