IN THE FIRST DISTRICT COURT

OF THE STATE OF NEW MEXICO

BRYAN A. KRUMM, )
Petitioner )
vs. )
) Court No. __________
THE STATE OF NEW MEXICO, )
Respondent )

PETITION FOR WRIT OF MANDAMUS AND

JUDICIAL REVIEW OF MARIJUANA PROHIBITION

Petitioner, Pro Se: Bryan A. Krumm RN

2905 Camino Del Bosque
Santa Fe, NM 87505

Respondents: New Mexico Board of Pharmacy

Jerry Montoya, R.Ph.; Director
1650 University Blvd NE Suite 400B
Albuquerque, New Mexico 87102

Patricia Madrid
Attorney General of the State of New Mexico
P.O. Drawer 1508
Santa Fe, NM 87504-5826

IN THE FIRST DISTRICT COURT

 OF THE STATE OF NEW MEXICO

BRYAN A. KRUMM, )
Petitioner )
vs. )
) Court No. __________
THE STATE OF NEW MEXICO, )
Respondent )

VERIFIED PETITION FOR WRIT OF MANDAMUS

AND JUDICIAL REVIEW OF MARIJUANA PROHIBITION

The Petitioner, Bryan A. Krumm, submits this Petition to this Court for an

adjudication, on behalf of himself and all others similarly situated. The petitioner requests that

this Court ban Unconstitutional provisions of the Controlled Substances Act, NMSA 31-30-1 et

seq. (1978), which prohibit the religious and medical use of marijuana. Petitioner also requests

that this court issue a Writ of Mandamus to the New Mexico Board of Pharmacy commanding it

to place marijuana into the appropriate schedule of the Controlled Substances Act, no higher

than schedule III, in accordance with NMSA 30-31-3 (1978), secondary to a thorough review of

available scientific evidence. Finally, petitioner requests that this court issue a writ of

mandamus to the New Mexico Attorney General ordering her to act as a guardian of the public

health by prohibiting the arrest and harassment of individuals who use marijuana for medical

and/or religious purposes and by challenging Unconstitutional provisions of the federal

Controlled Substances Act which prohibit the medical and religious use of marijuana.

Proceedural Prerequisites
1) Jurisdiction: Jurisdiction is predicated upon this Court's original jurisdiction in all matters

and causes not excepted in this Constitution, and such jurisdiction of special cases and

proceedings as may be conferred by law.... The district courts, or any judge thereof, shall have

power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari,

prohibition and all other writs, remedial or otherwise in the exercise of their jurisdiction;

provided, that no such writs shall issue directed to judges or courts of equal or superior

jurisdiction NM Const.Art. 6 § 13. Also against NMSA § 30-31-33, "The district courts

may exercise jurisdiction to restrain or enjoin violations of the Controlled

Substances Act."

2) There is no available remedy at law: Because petitioner uses marijuana as a fundamental

part of his core religious beliefs; and because petitioner has been referred to the Lynn Pierson

Therapeutic Research Program for treatment of knee pain, pursuant to NMSA § 26-2A et seq

(1997), by his primary care physician; and because petitioner has been unable to gain access to a

legal supply of marijuana; it is necessary to take extraordinary measures to ensure that his rights

to adequate and legal treatment, and free practice of religion are protected.

3) Real party in interest: The real party at interest is Bryan Krumm, who uses marijuana as a

Holy sacrament and who suffers chronic right knee pain secondary to reconstructive surgery.

4) The Board of Pharmacy is responsible for administering the Pharmacy Act: NMSA § 61-11-
 6 (A)(1978) clearly establishes that the board shall adopt, amend or repeal rules and regulations

necessary to carry out the provisions of the Pharmacy Act in accordance with the provisions of

the Uniform Licensing Act NMSA § 61-1-1et.seq. (1978); NMSA § 61-11-1(1)(B)(1978)

shows that the purpose of the Pharmacy Act is to promote, preserve and protect the public

health, safety and welfare by and through the effective control and regulation of the practice of

pharmacy.

5) The Board of Pharmacy has a statutory duty and has failed to perform it: The Board of

Pharmacy has failed to fulfill its duty to promote, preserve and protect the public health, safety

and welfare by refusing to place marijuana into an appropriate schedule of the Controlled

Substances Act. Thus, denying needed medication to the sick and causing untold pain,

suffering, and death for the citizens of New Mexico. The board has also failed to exempt the

religious use of marijuana from criminal sanctions, leading to the persecution of New Mexico

citizens for their religious beliefs.

6) The Attorney General is a State Officer: NMSA § 8-5-1 et.seq.(1978) clearly establishes

that the Attorney General is an elected Executive Officer of the State of New Mexico who also

serves as head of the Department of Justice.

7) The Attorney General has a statutory duty and has failed to perform it: NMSA § 8-5-2 (J)

shows that the Attorney General shall appear before local, state and federal courts and regulatory

officers, agencies and bodies, to represent and to be heard on behalf of the state when, in his
judgment, the public interest requires such action or when requested to do so by the Governor.

The Attorney General has failed to function as a guardian of the public interest, by allowing

New Mexico citizens to be denied needed medication pursuant to the Lynn Pierson Therapeutic

Research Act, by allowing the persecution of New Mexico citizens for their religious beliefs, and

by allowing the continuing arrest and harassment of medical marijuana patients by New Mexico

law enforcement officers.

Statement of the Facts

1. Marijuana has been used for spiritual purposes throughout the world, for thousands of years,

within many religions.

2. Genesis 1:29 states,"And God said, behold, I have given you every herb bearing seed, which

is upon the face of the earth....to you it shall be as meat:....and it was so....and God saw that it

was good."

3. 1 Timothy 4:1 states "Now the spirit speaketh expressly, that in the latter times some shall

depart from the faith, giving heed to seducing spirits, and doctrines of devils; speaking lies in

hypocrasy; having their conscience seared with a hot iron; forbidding to marry, and commanding

to abstain from meats, which God hath created to be received with thanksgiving of them which

believe and know the truth." Zero Tolerance is such a doctrine of devils. Those who believe

and know the truth are forbidden from using marijuana in the ways intended by God.
4. Petitioner is an ordained minister and uses marijuana as a fundamental part of his core

religious beliefs.

5. The legislature of the State of New Mexico enacted the Controlled Substances Therapeutic

Research Act NMSA § 26-2A-1 et. seq. (1978) which allows the medical use of marijuana as

part of the Lynn Pierson Therapeutic Research Program.

6. Research conducted under the Lynn Pierson Program proved the safety and efficacy of

medical marijuana.

7. In the Spring of 1997, petitioner began making inquiries with the NM Department of Health

about the status of the Lynn Pierson Therapeutic Research Program. Petitioner was informed

that the program was no longer available.

8. On August 13, 1997, petitioner requested a statement of position on medical marijuana from

the New Mexico Board of Pharmacy. Hearings were scheduled for the next scheduled meeting

on September 23, 1997.

9. On September 23, 1997 the Board of Pharmacy heard arguments on the merits of

rescheduling marijuana. Mr. Krumm stated for the record, “New Mexicans for Compassionate

Use request that the Board of Pharmacy review the available evidence to determine which
schedule of the Controlled Substances Act marijuana should be placed, pursuant to 30-31-1 to

30-31-41 NMSA 1978. We further request that the Board of Pharmacy report to the Governor,

the need to procure a supply of marijuana for distribution through State operated licensed

pharmacies, pursuant to 26-2A-1 to 26-2A-7 NMSA 1978”.

10. The Board Chairman then stated for the record, “One point that I would like to bring out,

Section 30-31-3 indicates that the Board may add a drug to a schedule, however it does not give

the Board any allowance to move a drug down within a schedule. We may add a drug but -we

may not reclassify a drug already classified to a lower classification”.

(See New Mexico State Board of Pharmacy Minutes September 22-23, 1997 Page l4)

11. Petitioner has been referred to the Lynn Pierson Therapeutic Research Program by his

primary care physician for treatment of right knee pain secondary to reconstructive surgery.

12. The Secretary of Health has attempted to administer the Lynn Pierson program but has been

unable to locate a supply of marijuana or the means of conducting research.

13. On November 22, 1999, Tony Cognetto filed a petition for writ of mandamus with the New

Mexico Supreme Court that would have commanded the Secretary of Health to administer the

Controlled Substances Therapeutic Research Act. His petition was denied. Supreme Court No.

26071.
14. Tony Cognetto died February 20, 2000 without gaining access to a legal supply of

medication that may have helped him survive, or at the very least, allowed him to suffer less.

15. In the 2001 legislative session, bills were passed by both the House and Senate that would

have allowed the Department of Health to distribute marijuana to those who need it for medical

purposes, but political grandstanding prevented final passage of the House bill through the

Senate.

16. Seven U.S. citizens are currently supplied with marijuana for medicinal use by the federal

government under the Investigational New Drug Program (IND).

17. The federal government refuses to allow the petitioner or any other new patient into the IND

program in spite of overwhelming evidence of the safety and efficacy of medical marijuana. As

the remaining patients die off, the program will eventually be ended by attrition.

18. Marijuana meets none of the criteria for placement in schedule I of the Controlled

Substances Act. The government has failed to proffer any reliable evidence of the dangers it

associates with marijuana.

19. The laws prohibiting marijuana are based on racist intent to discriminate against Mexican

immigrants. The following statement of Floyd K. Baskette, city Editor of the Alamosa Daily

Courier, was read into the legislative record of the Marijuana Tax Act of 1937, by Harry
Anslinger, the original Drug Czar.

"I wish I could show you what a small marihuana cigarette can
do to one of our degenerate Spanish-speaking residents. That's
why our problem is so great; the greatest percentage of our
population is composed of Spanish-speaking persons, most of
who are low mentally, because of social and racial conditions".

(Richard J. Bonnie and Charles H. Whitebread, II; The Forbidden Fruit and the Tree of

Knowledge: An Inquiry into the Legal History of American Marijuana Prohibition. Virginia

Law Review 971-1203 (1970) at p. 1037).

20. For over a century, every serious scientific inquiry into the health effects of marijuana has

found it to be a reasonably safe drug that causes little harm to society (John Morgan M.D. and

Lynn Zimmer Ph.D, Marijuana Myths; Marijuana Facts: A Review of the Scientific Evidence

(1997)).

21. The government's response to attempts at correcting this injustice, demonstrates a

totalitarian control over the American People that can not be tolerated in a "Free Society". The

current prohibition has resulted in untold suffering for millions of Americans.

22. In 1988, the DEA's own administrative law judge found "Marijuana in its natural form, is

one of the safest therapeutically active substances known to man. By any rational analysis,

marijuana can be safely used within a supervised routine of medical care" and went on to find

that "the evidence in this record clearly shows that marijuana has been accepted as capable of

relieving the distress of great numbers of very ill people, and doing so with safety under medical
supervision. It would be unreasonable, arbitrary, and capricious for the DEA to continue to

stand between those sufferers and the benefits of this substance in light of the evidence in this

record." (In the Matter of Marijuana Rescheduling Petition, Docket No. 86-22, U.S. Department

of Justice, Drug Enforcement Administration)

23. Tetrahydrocannabinol (THC) is the primary psychoactive ingredient in marijuana and is the

reason marijuana has been placed in Schedule I of the CSA. Marinol, a purified synthetic form

of THC, is available as a Schedule III drug.

24. The government has chosen to be unreasonable, arbitrary, and capricious. The inappropriate

placement of marijuana in schedule I of the CSA is used to justify the demonization,

criminalization, and persecution of millions of American citizens, including those who use

marijuana as a medicine and/or Holy sacrament.

Statement of the Law

1. NMSA § 30-31-3 (1978) states that the Board of Pharmacy shall administer the Controlled

Substances Act and may add by regulation substances to the list of substances enumerated in

Schedules I through IV pursuant to the procedures of the Uniform Licensing Act, NMSA § 61-1-

1 et. seq. (1978). In determining whether a substance has the potential for abuse, the board shall

consider the following:

(1) the actual or relative abuse of the substance;

 (2) the scientific evidence of the pharmacological effect of the substance, if known;

(3) the state of current scientific knowledge regarding the substance;

(4) the history and current pattern of abuse;

(5) the scope, duration and significance of abuse;

(6) the risk to the public health; and

(7) the potential of the substance to produce psychic or physiological dependence liability.

2. NMSA § 30-31-5(A)(1978) The board shall place a substance in Schedule I if it finds that

the substance:

(1) has a high potential for abuse; and

(2) has no accepted medical use in treatment in the United States or lacks accepted safety for

use in treatment under medical supervision.

3. NMSA § 30-31-10 (B)(1978) states that the board may by regulation exempt any compound,

mixture or preparation containing any depressant or stimulant substance enumerated in

Schedules III, IV or V from the application of the Controlled Substances Act if:

(1) the compound, mixture or preparation contains one or more active medicinal ingredients

not having a depressant or stimulant effect on the central nervous system; and

(2) such ingredients are included in such combinations, quantity, proportion or concentration

as to vitiate the potential for abuse of the substances which do have a depressant or stimulant

effect on the central nervous system.

4. The powers of law enforcement personnel to enforce criminal sanctions against marijuana

users are granted by the Board of Pharmacy. NMSA § 30-31-30 (1978)

5. The International Religious Freedom Act of 1998 , US Public Law: 105-292, 112 STAT

2787 [HR 2431] finds that “freedom of religious belief and practice is a universal human right

and fundamental freedom articulated in numerous international instruments, including the

Universal Declaration of Human Rights, the International Covenant on Civil and Political

Rights, the Helsinki Accords, the Declaration on the Elimination of All Forms of Intolerance and

Discrimination Based on Religion or Belief, the United Nations Charter, and the European

Convention for the Protection of Human Rights and Fundamental Freedoms. Article 18 of the

Universal Declaration of Human Rights recognizes that `Everyone has the right to freedom of

thought, conscience, and religion. This right includes freedom to change his religion or belief,

and freedom, either alone or in community with others and in public or private, to manifest his

religion or belief in teaching, practice, worship, and observance.”

6. The Free Exercise Clause of the First Amendment provides that "Congress shall make no law

respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging of

freedom, ... or the right of the people to assemble...." U.S. Const. Amend. I. While the freedom

to act upon religious beliefs is not absolute, "only those interests of the highest order and those

not otherwise served can overbalance legitimate claims to the free exercise of religion."

Wisconsin v. Yoder, 406 U.S. 205, 215, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15 (1972). Traditional

free exercise jurisprudence has long held that in order for government to substantially burden
religiously motivated conduct, Government must justify such restrictions by a compelling state

interest and use means narrowly tailored to achieve that interest. See Hernandez v.

Commissioner, 490 U.S. 680, 699, 109 S.Ct. 2136, 2148-49, 104 L.Ed.2d 766 (1989); United

States v. Lee, 455 U.S. 252, 257-58, 102 S.Ct. 1051, 1055-56, 71 L.Ed.2d 127 (1982); Thomas

v. Review Bd. of Indiana Employment Secur. Div., 450 U.S. 707, 717-19, 101 S.Ct 1425, 1431-

32, 67 L.Ed.2d 624 (1981); Sherbert v. Verner, 374 U.S. 398, 403, 83 S.Ct. 1790, 1793-94, 10

L.Ed.2d 965 (1963).

7. The history of protecting the right to practice religion in New Mexico actually began long

before New Mexico became a state. Article 3 of the Kearny Bill of Rights of 1846 proclaimed:

That all men have a natural and indefeasible right to worship Almighty God according to the

dictates of their own conscience; that no person can ever be hurt, molested or restrained in his

religious professions if he do not disturb others in their religious worship; . . . Thus, beginning at

least with the 1846 Kearny Bill of Rights, religiously-grounded behavior, not just thoughts, were

protected from government encroachments in New Mexico.

8. The Constitution of the State of New Mexico expressly provides further protections not found

in the US Constitution. The following four sections protect religious practices (or in the case of

Art. XII, even non-practice of religion)

9. Article II, § 11 assures that “every man shall be free to worship God according to the dictates

of his own conscience, and no person shall ever be molested or denied any civil or political right
or privilege on account of his opinion or mode of religious worship. No person shall be required

to attend any place of worship or support any religious sect or denomination; nor shall any

preference be given by law to any religious denomination or mode of worship.”

10. Article XII, § 9. Assures that “no religious test shall ever be required as a condition of

admission into the public schools or any educational institution of this state, either as a teacher

or student, and no teacher or student of such school or institution shall ever be required to attend

or participate in any religious service whatsoever.” Petitioner is subject to refusal of admission

to educational institutions which have adopted “drug free school” policies.

11. Article XX, § 13 assures “the use of wines soley for the purposes under church authority at

any place within the state shall never be prohibited.” This recognizes that the use of intoxicants

as a holy sacrament is an important aspect of some religions and this practice should not be

interfered with by the State.

12. Article XXI, § 1 assures that “perfect toleration of religious sentiment shall be secured, and

no inhabitant of this state shall ever be molested in person or property on account of his or her

mode of religion. Freedom of religion is guaranteed to every citizen of New Mexico.”

13. Furthermore, Article II, § 5 states that “the rights, privileges and immunities, civil, political

and religious guaranteed to the people of New Mexico by the Treaty of Guadalupe Hidalgo shall

be preserved inviolate.”
14. Article IX of the Treaty of Guadalupe Hidalgo assures that citizens in the State of New

Mexico shall be maintained and protected in the free enjoyment of their liberty and property, and

secured in the free exercise of their religion without; restriction.

15. Article XXII of the Treaty of Guadalupe Hidalgo assures that in the event that war should

break out between the two republics (and indeed "war" has broken out not between, but within

the two republics) that all persons whose occupations are for the common subsistence and

benefit of mankind, shall be allowed to continue their respective employments, unmolested in

their persons. Nor shall their houses or goods be burnt or otherwise destroyed, nor their cattle

taken, nor their fields wasted, by armed force into whose power, by the events of war, they may

happen to fall; but if the necessity arise to take anything from them for the use of such armed

force, the same shall be paid for at an equitable price. All churches, hospitals, schools, libraries,

and other establishments for charitable and beneficiant purposes, shall be respected and all

persons connected with the same protected in the discharge of their duties, and the pursuit of

their vocation.

16. The prevailing case regarding the resolution of Free Exercise and marijuana use claims in

New Mexico is State v. Brashear, 92 N.M. 622 (Ct.App. 1978). Since Brashear was decided,

other developments concerning the Free Exercise of religion have occurred. Most significant are

the passage of the International Religious Freedom Act of 1998 , US Public Law: 105-292,112

STAT 2787 [HR 2431], the Religious Freedom Restoration Act 42 I_J.S.C.~2000bb et seq., and
the decisions in City of Boerne v.Flores, 117 S.Ct. 2157, 138 L.Ed. 2d 624 (1997), Employment.

Div., Dept of Human Resources of Oregon v. Smith, 494 US. 872, 108 L.Ed.2d 876, 110

SD.1595 (1990), United States v. Meyers, 95 F.3d 1475 (lOth Cir. 1996), and United States v.

Boyll, 774 F. Supp. 1333, 1342 (NM. 1991). This Court should reconcile these cases and

statutes with State v. Brashear to clearly define New Mexico’s First and Fourteenth Amendment

jurisprudence and any protections provided under the State Constitution at Article II Section 18

and Article XXI, Section 1.

17. The government may not substantially burden the free exercise of religion without a rational

reason. The free exercise of religion is substantially burdened by statute if it requires a person to

refrain from engaging in a practice important to his or her religion, or forces the person to

choose between following a particular religious practice or accepting the statutes benefit.

Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136, 140-41, 107 S.Ct. 1046 (1987).

18. Where government action burdens the fundamental rights of some more than others, the

disparity is subject to strict scrutiny. See, e.g. City of Cleburne v. Cleburne Living Center, Inc.,

473 U.S. 432, 440 (1985); Loving v. Virginia, 388 U.S. 1 (1967). In Skinner v. Oklahoma, 316

U.S. 535 (1942), for example, the Court recognized that personal autonomy in reproductive

matters is a fundamental right and that a law requiring sterilization of all felons except white

collar felons was subject to strict scrutiny. Skinner establishes that classifications that unequally

distribute access to fundamental choices are presumptively invalid under the Equal Protection

Clause. In Eisenstadt v. Baird, 405 U.S. 438 (1972), the Court examined a state law that
prohibited the sale of contraceptives to single persons, but granted access for married persons.

The Court found that "[i]n each case, the evil, as perceived by the State, would be identical, and

the underinclusion would be invidious." Id. at 454. Because a fundamental right is involved, the

statute that limits this right can be justified only by a "compelling state interest," Shapiro v.

Thompson, 394 U.S. 618, 634 (1969) and it must be narrowly drawn to serve only that interest.

Aptheker v. Secretary of State, 378 U.S. 500, 508 (1964).

19. NMSA § 26-2A-1 et.seq. (1978) as amended established the "Lynn Pierson Therapeutic

Research Program", also known as the Controlled Substances Therapeutic Research Act, in the

Health and Environment department to implement the findings of the New Mexico Legislature

"that recent research has shown that the use of marijuana may alleviate the nausea and ill effects

of cancer chemotherapy, and, additionally, may alleviate the ill effects of glaucoma. The

legislature further finds that there is a need for further research and experimentation with regards

to the use of marijuana under strictly controlled circumstances." See also § 30-31-6 E. --

(stating that listing of marijuana as a Schedule I controlled substance does not apply to use of

marijuana by certified patients pursuant to § 26-2A-1 et seq.).

20. Under the Lynn Pierson Program patients were allowed to have access to marijuana for

medicinal use. Lynn Pierson cultivated his own marijuana because the federal government did

not supply marijuana for the program until after his death. This was public knowledge and was

reported to the Governor and Legislature. (See “Report to the Governor and the Thirty-forth

Legislature on the Controlled Substances Therapeutic Research Program”).

21. The Fourteenth Amendment of the U.S Constitution and Article II, § 18. of the N.M.

Constitution assure that no person shall be deprived of life, liberty or property without due

process of law; nor shall any person be denied equal protection of the laws.

22. In Planned Parenthood v. Casey, 112 S.Ct. 2791 (1992) (aff'g Roe v. Wade, 410 U.S. 113

(1973), the Supreme Court reaffirmed a woman's right to choose to have an abortion before

viability and to obtain it without undue interference from the State, finding the State did not

have a sufficiently strong interest to justify the imposition of a substantial obstacle to the right of

a woman to choose. The Court based its determination on an analysis of the "liberty" protections

of the Due Process Clause of the Fourteenth Amendment, finding that the Constitution promised

"a realm of liberty which the government may not enter." Id at 2805. The Court noted that "[i]t

is settled now, as it was when the Court heard arguments in Roe v. Wade, that the Constitution

places limits on a State's right to interfere with a person's most basic decisions about family and

parenthood, as well as bodily integrity." Id. at 2806

23. The protection of basic personal decisions from state intrusion limits the State's power to

interfere with the doctor-patient relationship and the joint selection and implementation of

appropriate treatment. In Casey, the Court found that "[t]hese matters, involving the most

intimate and personal choices a person may make in a lifetime, choices central to personal

dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the

heart of liberty is the right to define one's own concept of existence, of meaning, of the universe,
and of the mystery of human life." Id. at 2807. Casey recognizes that the State's ability to insist

that an individual endure suffering is quite limited. Id. Casey, as Roe before it, presents an

important analysis of the extent of the protection of liberty provided by the Constitution.

24. A similar analysis is found in Cruzan v. Director, Mo. Dept. of Health, 497 U.S. 261

(1990), in which the Supreme Court acknowledged that competent persons have the

constitutional right to direct the removal of life-sustaining medical treatment and thus hasten

death. Cruzan addressed the issue of the level of evidence Missouri could require as to the

wishes of a competent person that life-sustaining treatment be withdrawn. The Court made it

clear that a state's interest in this area is in ensuring a voluntary decision, not in interfering with

the decision. Cruzan noted "the recognition of a general liberty interest in refusing medical

treatment." Id. at 278.

25. An aspect of the liberty interest is the right to personal privacy, or a guarantee of certain

areas or zones of privacy. Carey v. Population Servs. Int'l, 431 U.S. 678, 684 (1977). This

privacy right includes "the interest in independence in making certain kinds of important

decisions." Whalen v. Roe, 429 U.S. 599-600 (1977).

26. In Bowers v. Hardwick, 478 U.S. 186 (1986), while declining to hold that a state could not

limit consensual sexual acts between adults, the Court did find that a liberty interest should be

judicially recognized if it encompasses "fundamental liberties that are implicit in the conception

of ordered liberty" or "liberties that are deeply rooted in this Nation's history and tradition." In a
similar vein, the Court has stated that "this Nation's history and tradition" help to define the

content of substantive due process. Moore v. East Cleveland, 431 U.S. 494, 503 (1977).

27. Privacy in medical decision-making has a deeply rooted history. In the late nineteenth

century, the Court wrote: "No right is held more sacred, or is more carefully guarded, by the

common law, than the right of every individual to the possession and control of his own person,

free from all restraint or interference of others unless by clear and unquestioned authority of

law." Union Pac. R. Co. v. Botsford, 141 U.S. 250 (1891). In 1914, Judge Cardozo wrote:

"[E]very person of adult years and sound mind has a right to determine what to do with his own

body." Schloendorff v. Society of New York Hospitals, 211 NY 125, 105 NE 92 (1914).

28. These decisions all flowed into the analysis of the right to privacy contained in Griswold v.

Connecticut, 381 U.S. 479 (1965), where the Court held that the First, Third, Fourth, Fifth,

Ninth and Fourteenth Amendments created a "penumbra" that included an unenumerated right to

privacy and extended that right to privacy to prohibit regulation of the sale of birth control

products by the states. The majority's treatment implies that the Ninth Amendment can extend

rights specifically mentioned elsewhere in the Constitution, but cannot by itself be the source of

any constitutional rights. Justice Goldberg's concurring opinion discusses the Ninth Amendment

at length and expresses the fundamental principle that "[t]he language and history of the Ninth

Amendment reveal that the Framers of the Constitution believed that there are additional

fundamental rights, protected from governmental infringement, which exist alongside those

fundamental rights specifically mentioned in the first eight constitutional amendments." In

support of that general principle, Justice Goldberg quoted statements by Madison and Justice

Story, to invoke the construction principle that "real effect shall be given to all the words" in the

Constitution. The majority made it clear that a "governmental purpose to control or prevent

activities constitutionally subject to state regulation may not be achieved by means which sweep

unnecessarily broadly and thereby invade the area of protected freedoms." Id. at 485 (quoting

NAACP v. Alabama, 377 U.S. 288, 307 (1964)).

ARGUMENT

1. Marijuana meets none of the criteria for placement in Schedule I of the Controlled

Substances Act NMSA § 30-31-5(A). According to NMSA § 30-31-3 (C), "If any substance is

designated as a controlled substance under federal law and notice is given to the board, the board

may, by regulation, similarly control the substance under the Controlled Substances Act after

providing for a hearing pursuant to the Uniform Licensing Act." The Board of Pharmacy is not

"required" to follow federal guidelines as to placement of drugs within the CSA. They have

failed to base scheduling of marijuana on an independent analysis as to its health effects, and

have arbitrarily placed marijuana in Schedule I of the CSA based on the incorrect placement of

marijuana in Schedule I of the federal CSA. If the abuse potential of pure THC allows it to be

placed in Schedule III of the CSA, then marijuana should be scheduled similarly.

2. NMSA § 30-31-3(D). Authority to control under this section does not extend to distilled

spirits, wine, malt beverages, tobacco or pesticides as defined in the Pesticide Control Act
 NMSA 76-4-1 et.seq. (1978). The fact that regulatory systems are in place for tobacco and

alcohol, both of which have a far higher potential for abuse than marijuana, demonstrates that

less restrictive methods are available for controlling the abuse of marijuana as well. Like

tobacco and alcohol, marijuana should be exempted from control under the CSA.

3. Petitioner recognizes that while federal cases provide persuasive authority, they are

not binding on the NM constitution.

4. In U.S. v. Boyll, 774 F.Supp. 1333 (D.N.M. 1991), Chief Judge Burciaga finds, "There is a

genius to our Constitution. Its genius is that it speaks to the freedoms of the individual. It is this

genius that brings the present matter before the Court. More specifically, this matter concerns a

freedom that was a natural idea whose genesis was in the Plymouth Charter, and finds its present

form in the First Amendment to the United States Constitution -- the freedom of religion." Id. at

1334

5. The Government's "war on drugs" has become a wildfire that threatens to consume those

fundamental rights of the individual deliberately enshrined in our Constitution. Ironically, as we

celebrate the 200th anniversary of the Bill of Rights, the tattered Fourth Amendment right to be

free from unreasonable searches and seizures and the now frail Fifth Amendment right against

self-incrimination or deprivation of liberty without due process have fallen as casualties in this

"war on drugs." It was naive of this Court to hope that this erosion of constitutional protections

would stop at the Fourth and Fifth Amendments. But today, the "war" targets one of the most
deeply held fundamental rights -- the First Amendment right to freely exercise one's religion."

Id.

6. The petitioner asserts that he has a fundamental right to use marijuana as a Holy sacrament

and as a medicine, and that the total prohibition of marijuana violates the Constitutions of the

United States and the State of New Mexico. The Petitioner understands that the judiciary may

not sit as a superlegislature to judge the wisdom or desirability of legislative policy

determinations made in areas that neither affect fundamental rights nor proceed along suspect

lines (427 U.S. at 303, 96 S.Ct. at 2517). However, laws creating a total prohibition of

marijuana do affect fundamental rights, and proceed along suspect lines.

7. Petitioner is aware that in addressing religious freedom, Congress was deprived of all

legislative power over mere opinion, but was left free to reach actions which were in violation of

social duties or subversive of good order. Reynolds v. U.S., 98 U.S. 145 (1878) However, the

enactment of the Controlled Substances Therapeutic Research Act, NMSA § 26-2A-1 et.seq.

(1978) and the federal Investigational New Drug Program for medical marijuana use

demonstrate that marijuana use in certain circumstances is consistent with social duties and is not

subversive of good order.

8. In U.S. v. Morrison, 120 S.Ct. 1740, 1748, it is confirmed that every law enacted by

Congress must be based on one or more of its powers enumerated in the Constitution. “The

powers of the legislature are defined and limited; and that those limits may not be mistaken or
forgotten, the constitution is written.” Marbury v. Madison, 1 Cranch 137, 176 (1803) (Marshall,

C. J.). Congress has explicitly identified the sources of federal authority on which it relied in

enacting the Controlled Substances Act. Title 21 USC sec. 801 shows that Congress found it

had the authority to prevent intrastate commerce and distribution of marijuana because local

distribution can affect interstate trafficking.

9. U.S. v. Morrison, 120 S.Ct. 1740, 1748, also confirms that the decisions of the legislature

should only be invalidated upon a plain showing that Congress has exceeded its constitutional

bounds. See United States v. Lopez, 514 U. S., at 568, 577-578, 115 S.Ct. 1624 (KENNEDY, J.,

concurring); United States v. Harris, 106 U.S., at 635, 1 S.Ct. 601. Lopez emphasized that even

under the modern, expansive interpretation of the Commerce Clause, Congress’ regulatory

authority is not without effective bounds. Id., at 557, 115 S.Ct. 1624.

10. In U.S. v. Morrison, 120 S.Ct. 1740, at 1749, the Supreme Court reviews Congress'

regulatory authority under the Commerce Clause. As observed in Lopez, modern Commerce

Clause jurisprudence has “identified three broad categories of activity that Congress may

regulate under its commerce power.” 514 U. S., at 558, 115 S.Ct. 1624 (citing Hodel v.

Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 276-277, 101 S.Ct. 2352, 69

L.Ed.2d 1 (1981); Perez v. United States, 402 U. S. 146, 150, 91 S.Ct. 1357, 28 L.Ed.2d 686

(1971)). “First, Congress may regulate the use of the channels of interstate commerce.” 514 U.

S., at 558, 115 S.Ct. 1624 (citing Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241,

256, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964); United States v. Darby, 312 U. S. 100, 114,
61 S.Ct. 451, 85 L.Ed. 609 (1941)). “Second, Congress is empowered to regulate

and protect the instrumentalities of interstate commerce, or persons or things in

interstate commerce, even though the threat may come only from intrastate activities.”

514 U. S., at 558, 115 S.Ct. 1624 (citing Shreveport Rate Cases, 234 U. S. 342, 34 S.Ct. 833, 58

L.Ed. 1341 (1914); Southern R. Co. v. United States, 222 U. S. 20, 32 S.Ct. 2, 56 L.Ed. 72

(1911); Perez, supra, at 150, 91 S.Ct. 1357). “Finally, Congress’ commerce authority includes

the power to regulate those activities having a substantial relation to interstate commerce, . . .

i.e., those activities that substantially affect interstate commerce.” 514 U. S., at 558-559, 115

S.Ct. 1624 (citing Jones & Laughlin Steel, supra, at 37, 57 S.Ct. 615).

11. In Lopez, (see Morrison at 1749) it was held that the Gun-Free School Zones Act of 1990,

18 U. S. C. §922(q)(1)(A), which made it a federal crime to knowingly possess a firearm in a

school zone, exceeded Congress’ authority under the Commerce Clause. See 514 U. S., at 551,

115 S.Ct. 1624. Several significant considerations contributed to this decision. First, it was

observed that §922(q) was “a criminal statute that by its terms has nothing to do with ‘

commerce’ or any sort of economic enterprise, however broadly one might define those terms.”

Id., at 561, 115 S.Ct. 1624. In reviewing case law, the Supreme Court noted that “we have

upheld a wide variety of congressional Acts regulating intrastate economic activity where we

have concluded that the activity substantially affected interstate commerce.” Id., at 559, 115

S.Ct.1624. Although they cited only a few examples, including Wickard v. Filburn, 317 U. S.

111, 63 S.Ct. 82, 87 L.Ed. 122 (1942); Hodel, supra; Perez, supra; Katzenbach v. McClung,

379 U. S. 294, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964); and Heart of Atlanta Motel, supra, they
stated that the pattern of analysis is clear. Lopez, 514 U. S., at 559-560, 115 S.Ct. 1624. “Where

economic activity substantially affects interstate commerce, legislation regulating that activity

will be sustained.” Id., at 560, 115 S.Ct. 1624.

12. In the present case, neither the petitioner nor his conduct has a commercial character, and

neither the purposes nor the design of the prohibition statute have an evident commercial nexus.

The Controlled Substances Act makes the simple possession of marijuana a criminal offense.

13. Morrison at 1752 shows that the existence of congressional findings is not sufficient, by

itself, to sustain the constitutionality of Commerce Clause legislation. As stated in Lopez,

“[S]imply because Congress may conclude that a particular activity substantially affects

interstate commerce does not necessarily make it so.” 514 U. S., at 557, n. 2, 115 S.Ct. 1624

(quoting Hodel, 452 U. S., at 311, 101 S.Ct. 2389 (REHNQUIST, J., concurring in judgment)).

Rather, “[w]hether particular operations affect interstate commerce sufficiently to come under

the constitutional power of Congress to regulate them is ultimately a judicial rather than a

legislative question, and can be settled finally only by the Court.” 514 U. S., at 557, n. 2, 115

S.Ct. 1624 (quoting Heart of Atlanta Motel, 379 U. S., at 273, 85 S.Ct. 348 (Black, J.,

concurring)).

14. The court has always rejected readings of the Commerce Clause and the scope of federal

power that would permit Congress to exercise a police power, 596-597, and n. 6, 115 S.Ct. 1624

(noting that the first Congresses did not enact nationwide punishments for criminal conduct
under the Commerce Clause) U.S. v. Morrison, 120 S.Ct. 1740, at 1754.

15. Petitioner is aware of the Supreme Court decision, which found that medical necessity is not

a defense to manufacturing and distributing marijuana. United States v. Oakland Cannabis

Buyers' Cooperative, 532 U. S. ____ (2001). However, this case involves cultivation and

possession of marijuana for personal, non-commercial use, where distribution is not an issue.

16. The petitioner has asserted a First Amendment claim and a claim pursuant to the Fourteenth

Amendment and Article II Section 18 of the New Mexico Constitution. The First Amendment

claim prevails when it is paired with another fundamental Constitutional right. This is known as

the hybrid rights analysis in First Amendment jurisprudence. Employment Division, Dept. of

Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990).

This analysis has not been utilized frequently, however it is applicable in this case.

17. The Treaty of Guadalupe Hidalgo is a founding document for the State of New Mexico. It

is ostensibly used to support the religious, spiritual and customary traditions of New Mexicans.

In this case it should apply to the petitioner’s use of the marijuana. The use of marijuana for

religious and medical purposes was established in New Mexico prior to the signing of the treaty.

The petitioner asks this Court to recognize the Treaty’s protections for his spiritual beliefs. The

Treaty of Guadalupe Hidalgo also invokes an independent and adequate state grounds review

that should utilize the standard in Brashear v. State 92 N.M. 622, (1979) as opposed to that

applied in Oregon v. Smith.

18. The petitioner is mindful of the Supreme Courts view that the court has no authority to

determine the truthfulness or reasonableness of the defendants convictions. United States v.

Ballard, 322 U.S. 78, 86-87, 64 S.Ct. 882 (1944) (reversible error to submit the question of

validity of religious belief to the trier of fact.); Hernandez v. Commissioner, 490 U.S. 680, 699,

109 S.Ct. 2136 (1989) (rejecting free exercise challenge to payment of income taxes allegedly to

make religious activities more difficult.) Notwithstanding, although the courts should not pass

judgement on which religion is bona fide or fake, the Court must make a preliminary inquiry in

order to distinguish sham claims from sincere ones. People v. Woody, 394 P.2d 813 (Ca. 1964).

19. While there are problems inherent in defining religion, the religious nature of the

petitioner's beliefs can be determined. These beliefs need not be logical, rational or classifiable

in a scientific sense. They also need not be supported by any organized church. Instead a legal

test is applicable to beliefs to determine whether they are philosophical or personal and thus

secular. Both U.S. v. Meyers 95 F.3d 1475 (1996) and Brashear bear on the definition of

“religious beliefs” important for meeting the first prong of the hybrid First Amendment analysis.

See also Frazee v. Illinois Employement Security Dept., 489 U.S. 829, 830-834, 109 S.Ct. 1514,

1515-1518 (1989) (Defining religiously motivated actions).

20. The Tenth Circuit in U.S. v. Meyers, 95 F.3d 1475, at 1483 (1996) has adopted the

following test for the indicia of beliefs that are “in the realm of religious beliefs” (According to

Meyers the threshold for establishing the religious nature of beliefs is low): 1) Ultimate Ideas:
The petitioner expresses a religious belief in "God" and "God’s gift" of Marijuana for healing

and understanding; 2) Metaphysical beliefs: The petitioner believes in the power of marijuana to

channel Gods energy in positive directions; 3) Moral or Ethical system: The petitioner ascribes

to a system of morality which includes a belief in a duty to do good and be true to "God's" work;

4) Comprehensiveness of Beliefs: The petitioner's beliefs are part of a comprehensive approach

to the physical and spiritual problems confronting humans; 5) Accoutrements of Religion:

External signs indicating the petitioner’s beliefs are religious: a) Teachers: The petitioner acts as

a teacher, sharing knowledge, and making the world aware of the benefits of marijuana. He has

created the world's largest online collection of medical and scientific research about the medical

benefits of marijuana b) Important writings: "The Cannabis Research Library" c) Gathering

Places: Not generally applicable. d) Keepers of Knowledge: The petitioner serves as a keeper of

knowledge about marijuana. e) Ceremonies and Rituals: Not generally applicable f) Structure

or Organization: Petitioner believes that true spirituality is something that must be found

individually and can not be taught through any defined structure or organization. g) Holidays:

April 20'th is recognized by the petitioner as a Holy day meant for giving thanks for marijuana

and honoring those who have lost their lives in the drug war. h) Diet or Fasting: Marijuana seed

is a valuable food source, which is denied to the petitioner. i) Appearance and Clothing: The

petitioner's appearance and clothing are not significantly different from the rest of society, the

blood and excrement of petitioner are used to identify him for punishment. j) Propagation: The

petitioner does not generally proselytize, he “keeps alive” the tradition of using marijuana for

religious and medicinal purposes. See U.S. v. Meyers, 95 F.3d 1475, 1483 (10th Cir. 1996); See

also State v. Brashear, 92 N.M. 622, 625-629 (1979).

21. Both Meyers and Brashear bear on the definition of “religious beliefs” important for

meeting the first prong of the hybrid First Amendment analysis. See also Frazee v. Illinois

Employment Security Dept., 489 U.S. 829, 830-834, 109 S.Ct. 1514, 1515-1518 (1989)

(Defining religiously motivated actions). For the petitioner, marijuana use is an integral part of

a system of religious beliefs, within a well-defined context, and not just a philosophy or way of

life. The petitioner meets the First Amendment prong of the hybrid test because the statutes in

question in this case seriously infringe on his religious belief system, a system of beliefs that

recognize the importance of marijuana to mankind.

22. The second prong of the hybrid test requires another fundamental right, in this case the right

“of every human being of adult years and sound mind to [sic] determine what shall be done with

his own body.” Vacco v. Quill, 117 S.Ct. 2293, (quoting Justice Cardozzo in Scholoendorff v.

Society of New York Hospital, 211 N.Y. 125, 129-130, 105 N.E. 92,93 (1914)). Medical

decision making encompasses the right to remove life sustaining support. Id. It also

encompasses the right to use a cure that does not clearly endanger public health, welfare or

morals. No reliable evidence has been presented by the Government that marijuana endangers

public health, welfare, or morals. In fact, seven U.S. citizens are supplied with marijuana for

medical use by the Federal government. This clearly violates equal protection guarantees of the

Fourteenth Amendment and Article II section 18 of the N.M. Constitution. Thus, the hybrid test

for using the First Amendment has been met. See e.g. Cornerstone Bible Church v. City of

Hastings, 948 F.2d 464, 473 (8th Cir. 1991); First Covenant Church of Seattle v. City of Seattle,
120 Wash. 2d 203, 216, 840 P.2d 174 (Wash. 1992) (Finding a hybrid rights claim stemming

from Free Speech defined as unspoken communicative conduct) something that could be

analogized with the petitioner's "speech" during the ritualistic use of marijuana, (and examining

a pre-Smith, compelling state interest approach to First Amendment freedoms using independent

state grounds under the Washington Constitution).

23. Once the hybrid test is met the State must show a compelling state interest in the application

of the law. The State has failed to introduce any scientific evidence regarding its interest in

prohibiting the sacramental use of marijuana. Our Supreme Court has defined New Mexico’s

“legislative judgement” concerning Marijuana as a judgement that “marijuana is a

hallucinogenic substance.” State v. Brashear, 92 N.M. 622, 629 (1979). Based on this

definition the Court found the regulation of distribution and use of marijuana to be a substantial

interest of the state Id. Brashear’s First Amendment defense was denied because it could be

relied upon by anyone advancing the same claims as Brashear. However, Brashear involved

distribution of marijuana rather than possession for personal religious use. The petitioner does

not wish to distribute marijuana and has a right to his religious beliefs regardless of whether

others may choose to convert to those beliefs. The State has not demonstrated a compelling state

interest in totally prohibiting individual possession of marijuana.

24. In order for government action to withstand a challenge under the Free Exercise Clause, the

action must satisfy the two- step analysis of the compelling interest test. The Court must first

determine whether the Government's action "imposes any burden on the free exercise of
[defendant]'s religion." Sherbert, 374 U.S. at 403, 83 S.Ct. at 1794. Then, if such burden exists,

the Court must "consider whether some compelling state interest ... justifies the substantial

infringement of [defendant]'s First Amendment right." Id. at 1795. "The compelling interest

test reflects the First Amendment's mandate of preserving religious liberty to the fullest extent

possible in a pluralistic society." Employment Division, Dept. of Human Resources of Oregon v.

Smith, 494 U.S. 872, 110 S.Ct. 1595, 1613,108 L.Ed.2d 876 (1990) (O'Connor, J., concurring).

While the Court is well aware that drug abuse is "one of the greatest problems affecting the

health and welfare of our population" and, thus, "one of the most serious problems confronting

our society today," National Treasury Employees Union v. Von Raab, 489 U.S. 656, 668, 674,

109 S.Ct. 1384, 1392, 1395, 103 L.Ed.2d 685 (1989), this amorphous problem, without more,

cannot justify the serious infringement on the observance of religion.

25. In this case, the total prohibition of marijuana, does not pass the strict scrutiny analysis

because the Government has not demonstrated a compelling interest to deny the petitioner his

rights to the free exercise of religion and medical decision making. The Government has not

even alleged that the laws address a compelling state interest. Only paramount governmental

interests suffice to permit limitation upon the free exercise rights. Sherbert v. Verner, 374 U.S.

398, 83 S.Ct. 1790 (1963), Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526 (1972). The

Supreme Court has found compelling governmental interest in maintaining the tax system,

Hernandez v. C.I.R., 490 U.S. 680, 109 S.Ct. 2136 (1989); preserving national security, Gillette

v. United States, 401 U.S. 437, 91 S.Ct. 828 (1971); ensuring public safety, Prince v.

Massachusetts, 321 U.S. 158, 64 S.Ct. 438 (1944); providing public education, Wisconsin v.
Yoder, supra; and enforcing participation in the social security system, United States v. Lee, 455

U.S. 252, 102 S.Ct. 1051 (1982). Moreover, the law may infringe on a persons right only if it

does so in the least restrictive way possible. The Government has not alleged or attempted to

show that prohibition is the least restrictive means of carrying out its purpose. The current

systems of regulation for alcohol and tobacco demonstrates that less restrictive means are

available to regulate marijuana as well.

26. The State has the burden of putting on convincing evidence concerning their alleged

compelling interest. If the State in fact puts on this evidence, then this Court must engage in a

careful balancing to determine to what extent the State's interest would be frustrated by non-

enforcement against the petitioner. For e.g., in Yoder, the Supreme Court found that the Amish

system of on-the-job vocational training minimized the harm from foregoing compulsory

education to age 16. Essentially, if the State actually proves a compelling state interest, then the

Court has to determine whether non-enforcement against the petitioner creates major

interference with the compelling interest. In other words, if the law burdens a person's exercise

of religion, the government must demonstrate that the application of the burden to this particular

person furthers a compelling governmental interest and that this application is the least

restrictive means of furthering that compelling governmental interest. The petitioner emphasizes

that there is no logic in assuming the correctness of the legislature's position on criminalizing use

of marijuana.

27. "Individual freedom, whether it be freedom of religion, expression or association, has been
particularly important to maintaining the culturally diverse character of New Mexico. Here, we

celebrate the right of the individual to revel in the passions of the spirit. The survival of this

right owes much to the protection afforded by the First Amendment, which has allowed New

Mexico's distinct cultures to learn mutual respect for each other's jealously-guarded customs and

traditions. Diversity is New Mexico's enchantment." U.S. v. Boyll, 774 F.Supp. 1333

28. The State has no compelling interest to justify total prohibition of marijuana. In light of the

absence of factual support, the present prohibition is, at best, an overreaction driven by political

passions or, at worst, influenced by religious and racial insensitivity, if not outright hostility.

29. The Supreme Court has held that “where the state has in place a system of individual

exemptions, it may not refuse to extend that system to cases of religious hardship without

compelling reason. City of Boerne v. Flores, 117 S.Ct. 2157, at 2161 (citing Employment

Division v. Smith, 494 U.S. 872, 884 (1992)). The individual exemptions in this case are

provided by the Lynn Pierson Therapeutic Research Act. NMSA § 26-2A et seq. (1997) and the

Investigational New Drug Program through which 7 Americans are exempted from criminal

prosecution for the medical use of marijuana. If a state has a provision allowing an exemption to

a statute for “good cause” that exemption should apply for religious use. Employment Division

v. Smith, 494 U.S. 872, 884. In this case the “good cause” exemption is medical use under Lynn

Pierson and the IND program. The petitioner is acting on “good cause” religious beliefs in

herbal healing through use of faith, and marijuana. As noted in Smith the “good cause”

exemption is applicable when a determination must be made for individual cases (such as
employment compensation cases or, as petitioner would posit, medical and religious cases) to

determine when an exemption should apply. Id.

30. The State Constitution provides: Every man shall be free to worship God according to the

dictates of his own conscience, . . . No person shall be required to attend any place of worship or

support any religious sect or denomination; nor shall any preference be given by law to any

religious denomination or mode of worship. N.M. Const. Art II, § 11. Thus, the New Mexico

Constitution explicitly forbids giving preference to any religion or mode (manner or way of

acting, doing, or being) of worship. Thus, the legislative protection for use of peyote in bona

fide religious ceremonies by a bona fide religious organization and denial of the same for

religious use of marijuana in bona fide religious ceremonies by a bona fide religious

organization violates the federal and state constitutions' establishment clauses. There is yet

another reason why our State constitution must be construed as extending protection to the

religious use of marijuana, Art XX, § 13 of the New Mexico Constitution protects absolutely

from prohibition the sacramental use of wines" the use of wines solely for sacramental purposes

within the State shall never be prohibited". This Article was part of the original N.M.

Constitution adopted in 1911. At that time, alcohol prohibition was the law in many states. (The

federal prohibition amendment, Amend. XVIII, was submitted for ratification by the States in

1917.) Thus, the immediate purpose of Art. XX, § 13 was to protect the religious use of wine

from the threat posed by prohibition laws in the surrounding states. However, in order to avoid

conflict with the state and federal establishment clauses, Art. XX, § 13 must be interpreted

expansively-- to absolutely protect sacramental use of substances. In 1911, the sacrament

threatened was wine. If Art. XX, § 13 is narrowly construed as only protecting wine, the

sacrament of the Catholic Church, then our state constitution is self-contradictory (Art. XX, § I.3

contradicts the mandate of Art. II, § 11) and also violates the federal establishment clause. To

be valid, Art. XX, § 13 must be expansively interpreted to protect sacramental use of marijuana

as well.

31. Petitioner also asks this Court to take judicial notice of the federal court's findings

concerning the use of peyote in the Native American Church in United States v. Boyll, 774

F.Supp. 1333 (D N.M. 1991), use in the context of the Native American Church clearly sharing

the peyote with other worshippers. See State v . Brashear, 92 N.M. 622, 593 p.2d 63 (Ct. App.

1979) (cases cited therein) (describing use of peyote during Native American Church ceremony);

State v. Whittingham, 504 P.2d 950 (Ct. App. AZ. 1973); People v. Woody, 394 P.2d 813 (Ca.

1964). New Mexico's controlled substances law grants a religious exemption for the religious

use of peyote but not for the religious use of marijuana. Thus, the law classifies according to

religion. Classifications infringing fundamental right to free exercise of religion is subject to

strict scrutiny under both federal and state equal protection clauses. U.S. Const., Amend. XIV;

City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87

L.Ed 2d 313 (1985) (strict scrutiny applies when analyzing legislation that infringes fundamental

constitutional rights); N.M. Const. Art. II, Sec. 18; Trujillo v. City of Albuquerque, 1998 NMSC

031, 965 P.2d 305 (l998) (when fundamental right is involved, government must show

compelling state interest for the challenged classification). Also, exempting religious use of

peyote and not exempting other religious sacraments favors one religion over another, running
afoul of the federal and state establishment clauses. U.S. Const. Amend I; N.M. Const. Art II, §

11; N.M. Const. Art. XX, § 13. Again, the New Mexico protection is broader than the federal

protection.

32. The Fourteenth Amendment of the U.S. Constitution and Article II, section 18. of the N.M.

Constitution, provide that the state may not deprive any person of life, liberty, or property,

without due process of law. In Planned Parenthood v. Casey, 112 S.Ct. 2791 (1992) (aff'g Roe

v. Wade, 410 U.S. 113 (1973), the Supreme Court reaffirmed a woman's right to choose to have

an abortion before viability and to obtain it without undue interference from the State, finding

the State did not have a sufficiently strong interest to justify the imposition of a substantial

obstacle to the right of a woman to choose. The Court based its determination on an analysis of

the "liberty" protections of the Due Process Clause of the Fourteenth Amendment, finding that

the Constitution promised "a realm of liberty which the government may not enter." Id at 2807.

The Court noted that "[i]t is settled now, as it was when the Court heard arguments in Roe v.

Wade, that the Constitution places limits on a State's right to interfere with a person's most basic

decisions about family and parenthood, as well as bodily integrity." Id. at 2806. By prohibiting

the medical use of marijuana, the State is interfering with the petitioner's most basic decisions

about bodily integrity by prohibiting needed medical care.

33. The Fourteenth Amendment of the U.S. Constitution and Article II, § 18. of the N.M.

Constitution also state that the equal protection of the law cannot be denied by the State to any

person within its jurisdiction. Under the Lynn Pierson Program, hundreds of New Mexicans
were provided with marijuana for medical use. The federal government continues to supply

seven U.S. citizens with marijuana for medical use but has refused to allow the petitioner or

others, equal access to needed medication.

34. Several judicial decisions have found that the classification of marijuana as a Schedule I

narcotic implicates equal protection. In People v. McCabe, 49 Ill. 2d 338, 275 N.E.2d 407

(1971), the Supreme Court of Illinois held that the classification of marijuana under the Narcotic

Drug Act was an unconstitutional violation of the equal protection clause. A similar

determination was made in People v. Sinclair, 387 Mich. 91, 194 N.W. 2d 878 (1972). See also:

English v. Miller, 341 F. Supp. 714 (E.D. Va. 1972) (classifying marijuana as a narcotic violates

equal protection); State v. Rae, Connecticut Supreme Court, 20 Cr. L. Rptr. 2051 (1976)

(concurring opinion of Justice Bogelanski: marijuana is less harmful than alcohol and tobacco

and therefore prohibition of private possession violates equal protection).

35. An aspect of the liberty interest is the right to personal privacy, or a guarantee of certain

areas or zones of privacy. Carey v. Population Servs. Int'l, 431 U.S. 678, 684 (1977). This

privacy right includes "the interest in independence in making certain kinds of important

decisions." Whalen v. Roe, 429 U.S. 589, 599-600 (1977). The petitioner has a right to make

important medical decisions that affect his quality of life.

36. The protection of basic personal decisions from state intrusion, limits the State's power to

interfere with the doctor-patient relationship and the joint selection and implementation of
appropriate treatment. In Planned Parenthood v. Casey, 112 S.Ct. 2791 (1992), the Court found

that "[t]hese matters, involving the most intimate and personal choices a person may make in a

lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by

the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of

existence, of meaning, of the universe, and of the mystery of human life." Id. at 2807. Casey

recognizes that the State's ability to insist that an individual endure suffering is quite limited. Id.

Casey, as Roe before it, presents an important analysis of the extent of the protection of liberty

provided by the Constitution.

37. A similar analysis is found in Cruzan v. Director, Mo. Dept. of Health, 497 U.S. 261

(1990), in which the Supreme Court acknowledged that competent persons have the

constitutional right to direct the removal of life-sustaining medical treatment and thus hasten

death. Cruzan addressed the issue of the level of evidence Missouri could require as to the

wishes of a competent person that life-sustaining treatment be withdrawn. The Court made it

clear that a state's interest in this area is in ensuring a voluntary decision, not in interfering with

the decision. Cruzan noted "the recognition of a general liberty interest in refusing medical

treatment." Id. at 278.

38. One constitutional scholar reasons persuasively that the right to privacy should be found to

apply where the challenged law would subject the person claiming the right to "totalitarian

burdens" in his or her daily life (Jed Rubenfeld, The Right to Privacy, 102 Harv. L. Rev. 737,

788 (1989)) Total prohibition of marijuana places such totalitarian burdens on the petitioner in
ordering his daily life. He is denied access to a Holy sacrament and a needed medication. He

faces serious legal and social consequences for actions which harm no one. He is robbed of his

dignity by propaganda campaigns designed to demonize, rather than educate. These policies

clearly violate fundamental liberty interests.

39. Once a determination is made that a liberty interest is at stake, the analysis shifts to whether

the statutory regulation places an "undue burden" on the personal right. See Planned Parenthood

v. Casey, 112 S.Ct. 2791 (1992), at 2830 (concluding that a statute regulating abortion was

invalid on its face because "in a large fraction of the cases" in which the statute would operate it

would "operate as a substantial obstacle to a woman's choice to undergo an abortion" and

therefore placed an "undue burden"). There is no question that a total ban on the use of

marijuana, including use for religious and therapeutic reasons, is an undue burden on the rights

to religious freedom and medical decision making. Consequently, neither TITLE 21,

CHAPTER 13 USC or NMSA § 30-31-23 can be constitutionally applied to religious and

medicinal use of marijuana by the petitioner.

40. Where government action burdens the fundamental rights of some more than others, the

disparity is subject to strict scrutiny. See, e.g. City of Cleburne v. Cleburne Living, American

Constitutional Law 1451-54, 1464 (ed. 1988). In Skinner v. Oklahoma, 316 U.S. 535 (1942),

for example, the Court recognized that personal autonomy in reproductive matters is a

fundamental right and that a law requiring sterilization of all felons except white collar felons

was subject to strict scrutiny. Skinner establishes that classifications that unequally distribute
access to fundamental choices are presumptively invalid under the Equal Protection Clause. In

Eisenstadt v. Baird, 405 U.S. 438 (1972), the Court examined a state law that prohibited the sale

of contraceptives to single persons, but granted access for married persons. The Court found

that "[i]n each case, the evil, as perceived by the State, would be identical, and the

underinclusion would be invidious." Id. at 454. Because a fundamental right is involved, the

statute that limits this right can be justified only by a "compelling state interest," Shapiro v.

Thompson, 394 U.S. 618, 634 (1969) and it must be narrowly drawn to serve only that interest.

Aptheker v. Secretary of State, 378 U.S. 500, 508 (1964). Prohibition of marijuana for medical

use has greatly burdened the petitioner's fundamental right to seek medical care while seven U.S.

citizens are exempted from such burdens. The laws creating total prohibition of marijuana are

subject to strict scrutiny to determine if there is a compelling State interest in denying the

petitioner access to needed medication.

41. In Bowers v. Hardwick, 478 U.S. 186 (1986), while declining to hold that a state could not

limit consensual sexual acts between adults, the Court did find that a liberty interest should be

judicially recognized if it encompasses "fundamental liberties that are implicit in the conception

of ordered liberty" or "liberties that are deeply rooted in this Nation's history and tradition." In a

similar vein, the Court has stated that "this Nation's history and tradition" help to define the

content of substantive due process. Moore v. East Cleveland, 431 U.S. 494, 503 (1977).

42. The total prohibition of marijuana is a totally arbitrary deprivation of liberty, which violates

the substantive due process guarantee. The substantive due process analysis is available to
protect civil rights. see United States v Carolene Products, 304 U.S. 144, 152-53 n.4, 58 S.Ct.

778, 783-84 (1941). The court has a duty to protect those liberties and rights of "fundamental"

constitutional magnitude. The rights the court has recognized as fundamental and deserving of

significant judicial protection are most of the guarantees of the Bill of Rights. All of the

provisions of the first amendment are protected under the fourteenth amendment. The rights

which have been violated create a "penumbra", representing a fundamental constitutional

magnitude which must be protected by the court.

43. While the Government may have some limited interest in preventing drug abuse, there is no

legitimate basis to totally prohibit the religious and medical use of marijuana. The fact that

substances which have clear potential for abuse, are available for religious and/or medical use,

indicates that concerns about misuse can be protected in a less restrictive manner than the total

prohibition that exists in the United States today. No rational reason exists for treating

marijuana differently than other substances used as Holy sacraments or for medical purposes.

44. Furthermore, the punitive laws that have been enacted as a result of the improper placement

of marijuana into Schedule I of the CSA, inflict forbidden punishment; including imprisonment,

punitive confiscation of property, and legislative enactments barring marijuana users from

participation in specified employments. Marijuana users are singled out for punishment by drug

testing policies which violate their 5'th amendment rights by forcing them to testify against

themselves. After being singled out for punishment, these marijuana users are branded as

"disloyal" and denied educational and vocational opportunities that are granted to other members
of society.

45. Given the type and severity of the burdens imposed on the petitioner by prohibition laws,

these laws can not reasonably be said to further non-punitive goals of government. The laws

prohibiting marijuana were intended to punish Mexican immigrants and are now used to punish

individuals labeled as "subversive" because of their personal beliefs. There are clearly less

burdensome alternatives to protect society from the potential "dangers" of marijuana. Such

irrational and unfair policies clearly violate the bill of attainder clause.

46. Finally, petitioner also asks this Court to consider a state constitutional provision related to

religious freedom, the right to seek and obtain happiness. Art. II, Sec. 4 [Inherent Rights]

provides: All persons are born equally free, and have certain natural, inherent and inalienable

rights, among which are the rights of enjoying and defending life and liberty, of acquiring,

possessing and protecting property and of seeking and obtaining safety and happiness. (emphasis

added) The right to obtain safety was addressed by our Supreme court in Reed v. State, 124

N.M.129, 947 P.2d 86 (1997). In that case, the Supreme Court affirmed the district court's grant

of Reed's petition for habeas corpus finding that Reed fled from Ohio to New Mexico for the

express purpose of finding safety and that New Mexico's Constitution therefore protected his

flight. When a persons life is jeopardized by the actions of the State without due process, no

constitutional interest is of greater consequence. Id. at 150. Prohibition of this medication has

led to the unnecessary suffering and death of New Mexico citizens and jeopardizes the safety of

our people.
47. However, there are no cases actually explaining the "right to obtain happiness". In

Richardson v. Carnegie Library Restaurant, 107 N.M. 688, 763 P.2d 1153 (1988), the New

Mexico Supreme Court recognized that because the right to obtain happiness is in the Bill of

Rights, it is a fundamental right and legislative infringements are subject to the strict scrutiny"

test. Unfortunately, Richardson does not define the "right to obtain happiness". However, an

Attorney General's opinion interprets the right to obtain happiness. "This section means that

each person may seek his safety and happiness in any way he sees fit so long as he does not

unreasonably interfere with the safety and happiness of another". 1966 Op. Att'y Gen. No. 66-

15. On this basis, the A.G. argued that a city ordinance requiring motorcycle helmets was invalid

because an individual's choice to ride without a helmet does not interfere with the safety of

others, only with his own safety. The A.G. wrote that the city could regulate the wearing of

helmets by juveniles under it's power of parens patriae but was constitutionally barred from

interfering with adult choices.

48. Petitioner maintains that his use of marijuana for medical and religious purposes does not

interfere with the safety of others, and that the marijuana laws interfere with his right to seek and

obtain happiness. There is no reasonably conceivable state of facts to justify the total

prohibition of marijuana.

Relief Sought
For all of the foregoing reasons, petitioner asks this court to find placement of marijuana in

Schedule I of the Controlled Substances Act, and the prohibition of marijuana for religious

purposes, Unconstitutional. Petitioner requests that this court issue a Writ of Mandamus to the

Board of Pharmacy ordering them to conduct a review of the scientific evidence concerning

marijuana and place marijuana into an appropriate Schedule of the CSA, no higher than

Schedule III. Petitioner further requests that the cultivation and possession of marijuana for

medical and religious use be exempted from criminal sanctions under the CSA. Petitioner

requests that the Attorney General prohibit law enforcement officers from arresting or harassing

medical and religious marijuana users or from seizing marijuana from individuals who obtain,

possess, use, or cultivate marijuana for their own personal medical or religious use. Petitioner

further requests that the Attorney General be ordered to challenge Unconstitutional provisions of

the federal CSA. Finally, petitioner requests that this court grant him reasonable fees, costs, and

such other and further relief as may appear just and appropriate in the premises.