|
No. ______________________________
______________________________
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1996
______________________________
LEWIS J. ATLEY,
Petitioner,
VS.
STATE OF IOWA,
Respondent.
__________________________________________________
ON PETITION FOR A WRIT OF CERTIORARI TO
THE SUPREME COURT OF IOWA
__________________________________________________
PETITION FOR WRIT OF CERTIORARI
__________________________________________________
LEWIS J. ATLEY, pro se Petitioner
#1074758-A
Anamosa State Penitentiary
406 North High Street
P.O. Box 10
Anamosa, Iowa 52205-0010
(319) 462-3504
__________________________________________________
QUESTION PRESENTED
Does Iowa Statute §
124.204(4)(s), as interpreted by the Iowa Supreme Court, in conflict with the Florida
Supreme Court, as to the scope of the term "material" in the statute's phrase
"any material, compound, mixture, or preparation which contains ...," violate
the Petitioner's Due Process protections of the Fifth and Fourteenth Amendments to the
United States Constitution, and is void-for-vagueness, as it would: (1) lead to
"absurd results" by outlawing much of the life-forms on this planet; (2) result
in overbreadth, giving law enforcement virtually unlimited power to arrest and imprison
almost every citizen on an ad hoc and subjective basis; and (3) threaten the First
Amendment rights of several religions, including Petitioner's?
PARTIES TO THE PROCEEDING
All parties appear in the
caption of the case on the cover page.
TABLE OF CONTENTS
QUESTION PRESENTED
PARTIES TO THE PROCEEDING
TABLE OF AUTHORITIES
OPINIONS BELOW
BASIS FOR JURISDICTION
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
STATEMENT OF THE CASE
LEGISLATIVE BACKGROUND
JUDICIAL BACKGROUND
PETITIONER'S CASE
REASONS FOR GRANTING THE WRIT
This Court should grant certiorari as the Opinion below
conflicts with the Opinion of the Florida Supreme Court and conflicts with this Court's
previous decisions for the interpretation of terms used in a statute that leads to absurd
results
This court should grant certiorari due to the National
Importance, in that the interpretation of "material" to encompass non-specified
plants would permit "a standardless sweep" and open up almost every citizen to
arrest and imprisonment by giving unbridled license to law enforcement to "pursue
their personal predilection" of arbitrary and discriminatory enforcement
This Court should grant certiorari to consider if the statute is
unconstitutionally vague and would threaten the First Amendment rights of several
religions, including Petitioner's
CONCLUSION
PROOF OF SERVICE
INDEX TO APPENDICES |
[Appendices filed as a separate volume pursuant
to Rule 14(1)(i) of the Supreme Court Rules.] |
APPENDIX A |
-Opinion of the Iowa Supreme Court, on rehearing, reported in
State v. Atley, 564 N.W.2d 817
(Iowa 1997) |
|
-Order granting Rehearing |
|
-Appellant's Petition for Rehearing |
APPENDIX B |
-Written Opinion of the District Court on Due Process -
Motion to Dismiss (unpublished) (& Motion) |
APPENDIX C |
-Oral Ruling of the District Court on Religious Freedom
Motion (Trial Tr. pp. 28-29) (& Motion) |
APPENDIX D |
-Amendments I, V, VI and XIV to the United States
Constitution |
APPENDIX E |
-Code of Iowa Statutory Provisions Involved |
APPENDIX F |
-Florida Statutory Provisions Involved |
|
-Fiske v. State, 366 So.2d 423 (Fla. 1978) - Opinion |
|
-State v. Savrda, 679 So.2d 363 (Fla.App. 4 Dist.
1996)
-State v. Savrda, District Court Opinion - (unpublished)
-Newspaper article from Florida (Fiske case) |
APPENDIX G |
-CHART A - (plants and controlled
substances) |
APPENDIX H |
-Scientific Authority |
APPENDIX I |
-Affidavit of Petitioner |
|
-Affidavit of The Fane of the Psilocybe Mushroom |
APPENDIX J
(Unpublished) |
-Final Order, Olsen v.
DEA, No. 93-1109 (D.C. Cir. May 16, 1994) |
APPENDIX K |
-Affidavits concerning the Psilocybe Mushrooms by: |
|
-John S. Beresford, M.D.
-Nicholas V. Cozzi, Ph.D.
-Jonathan Ott, Entheobotonist |
|
-Chart and table of Dependence Potential and Acute
Toxicity by Robert S. Gable, J.D., Ph.D. |
APPENDIX L |
Letter from Chandler, Arizona Chief of Police & Narcotics
Unit Officer |
TABLE OF AUTHORITIES
SUPREME COURT
Bouie v. Columbia, 378 U.S. 347 (1964)
Chapman v. U.S., 500 U.S. 453 (1991)
Church of the Holy Trinity v. United States, 143 U.S. 457 (1892)
City of Boerne v. Flores, ____ U.S. ____, 117 S.Ct. 2157 (1997)
Connally v. General Const. Co., 269 U.S. 385 (1925)
Cuyler v. Sullivan, 446 U.S. 335 (1980)
Employment Div., Dept. of Human Res. v. Smith, 494 U.S. 872
(1990)
Giaccio v. State of Pennsylvania, 382 U.S. 399 (1966)
Graynard v. City of Rockford, 408 U.S. 104 (1972)
Green v. Bock Laundry Machine Co., 490 U.S. 504 (1989)
Hernandez v. CIR, 490 U.S. 680 (1989)
Holloway v. Arkansas, 435 U.S. 475 (1978)
Kolender v. Lawson, 461 U.S. 364 (1983)
Lanzetta v. New Jersey, 306 U.S. 451 (1939)
Larson v. Valente, 456 U.S. 228 (1982)
Lewis v. City of New Orleans, 415 U.S. 130 (1974)
Moskal v. United States, 498 U.S. 103 (1990)
Papachristou v. City of Jacksonville, 450 U.S. 156 (1972)
Public Citizen v. U.S. Dept. of Justice, 491 U.S. 440 (1989)
Thornhill v. Alabama, 310 U.S. 88 (1940)
United States v. Powell, 423 U.S. 87 (1975)
United States v. Reese, 92 U.S. 214 (1875)
United States v. Rodgers, 466 U.S. 475 (1984)
Village of Hofmann Estates v. Flipside, 455 U.S. 489 (1982)
APPEALS COURTS
Action on Smoking and Health v. Harris, 655 F.2d 236 (D.C. Cir.
1980)
Olsen v. DEA, No. 92-1109 (D.C. Cir.), (unpublished) (May 16,
1994)
LOWER COURTS
Bemis v. State, 652 N.E.2d 89 (Ind.App. 1995)
Fiske v. State, 366 So.2d 423 (Fla. 1978)
People v. Dunlap, 422 N.E.2d 1379 (Ill.App. 1982)
State v. Atley,
564 N.W.2d 817 (Iowa 1997)
State v. Justice, 704 P.2d 1012 (Kan.App. 1985)
State v. Patterson, 679 P.2d 416 (Wash.App. 1984)
State v. Savrda, 679 So.2d 363 (Fla.App. 4 Dist. 1996)
State v. Winters, 346 So.2d 991 (Fla. 1977)
State v. Wohlever, 500 N.E.2d 318 (Ohio App. 1985)
United States v. McCollough, 891 F.Supp. 422 (N.D. Ohio 1993)
CONSTITUTION OF THE UNITED STATES
U.S. Constitution Amendment I
U.S. Constitution Amendment V
U.S. Constitution Amendment VI
U.S. Constitution Amendment XIV
IOWA STATUTES
Code of Iowa § 124
Code of Iowa § 124.101(13)(c)
Code of Iowa § 124.101(16)
Code of Iowa § 124.204(4)
Code of Iowa § 124.204(4)(p)
Code of Iowa § 124.204(4)(s)
Code of Iowa § 124.204(8)
Code of Iowa § 124.208(3)(e), (f)
Code of Iowa § 124.401(1)(b)
Code of Iowa § 124.401(1)(c)(6)
Code of Iowa § 124B.2(c)
Code of Iowa § 205.5
Code of Iowa § 453B.12
FLORIDA STATUTES
Florida Statute § 893.03(1)(15) (1975), now is - § 893.03(1)(c)(28)
Florida Statute § 893.13(1)(a)(2)
FEDERAL STATUTES AND REGULATIONS
21 C.F.R. § 166.3(c)(3) (1996)
21 C.F.R. § 1307.31
21 C.F.R. § 1308.11(8)
21 U.S.C. § 801 et seq.
21 U.S.C. § 321(g)(1)
21 U.S.C. § 811(a),(b)
21 U.S.C. § 841(b)(1)(B)(v)
OTHER AUTHORITY
H.R. 1444
H.R. 13742
H.R. 17463
H.R. 18583 (P.L. 91-513)
111 Cong. Rec. 15, 977-978 (1965)
Controlled Substances Act (C.S.A.)
Drug Abuse Control Amendments of 1965
Model Controlled Substances Act of 1970, (Revised 1990)
Religious Freedom Restoration Act of 1993
The Entheogen Law Reporter, Issue 2, Spring 1994
Henman, A.R. (Ed.) 1990, The Anti-Prohibitionist
Review, No. 1, Jan. 1990
Motolina, F. de, 1971. Momales o Libro de law Cases
de la Nueva Espaņa
universidad Nacional Autonomia de Mexico, Mexico City. Originally
published in 1541
Ott, J., 1995. The Age of Entheogens & The
Angel's Dictionary,
Natural Products, Kennewick, WA
Sahgun, B. de, 1950-1969 Florentine Codex: General
History of the Things
of New Spain by Fray Bernardina de Suhgun, Twelve Volumes, University
of Utah Press, Salt Lake City, Utah
Wasson, R.G., 1980 The Wonderous Mushrooms: Mycolatry
in Mesoamerica,
Harcourt Brace Jovanovich, New York, N.Y.
Wasson, R.G., 1968 Soma: Divine Mushroom of
Immortality, Harcourt Brace
Jovanovich, New York, N.Y.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1996
___________________________________
PETITION FOR WRIT OF CERTIORARI
___________________________________
Petitioner respectfully prays that a writ of certiorari issue to review
the judgment below.
OPINIONS BELOW
The Opinion of the Supreme
Court of Iowa is reported as State v.
Atley, 564 N.W.2d 817 (Iowa 1997), and appears in Appendix A to this Petition.
The unpublished written opinion of the District Court for Scott County, Iowa
appears in Appendix B to this petition. The oral denial of Petitioner's written pro
se Motion to Dismiss - Religious Freedom appears, along with the motions in Appendix C to
this Petition.
BASIS FOR JURISDICTION
The Iowa Supreme Court's
Opinion, upon rehearing, was filed on June 18, 1997. This Court has jurisdiction to
review the Judgment of the Iowa Supreme Court pursuant to Title 28 U.S.C. § 1257(a).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
Pursuant to Rule 14(f) of the
Supreme Court Rules, the citation of relevant constitutional, statutory, and regulatory
provisions involved are listed here, while the pertinent text is set out in the Appendices
D, E and F to this Petition.
First, Fifth, Sixth and
Fourteenth Amendments of the United States Constitution.
Iowa Statutes:
Code of Iowa § 124.101(13)(c)
Code of Iowa § 124.101(16)
Code of Iowa § 124.204(4)
Code of Iowa § 124.204(4)(p)
Code of Iowa § 124.204(4)(s)
Code of Iowa § 124.204(8)
Code of Iowa § 124.208(3)(e),(f)
Code of Iowa § 124.401(1)(b)
Code of Iowa § 124.401(1)(c)(6)
Code of Iowa § 124B.2(c)
Code of Iowa § 205.5
Code of Iowa § 453B.12
Florida Statutes:
Drug Abuse Act § 893.03(1)(15) - [now § 893.03(1)(c)(28)]
Drug Abuse Act § 893.13(1)(a)(2)
STATEMENT OF THE CASE
I. LEGISLATIVE BACKGROUND
During the 1960's drug use and abuse
came to the forefront of American consciousness -- for those involved, and for those who
saw mind-altering substances as dangerous to our way of life. Congressional response
began in 1965, when Congress gave power to the Secretary of Health, Education and Welfare
to amend the list of regulated drugs to include "any drug which [he] after
investigation has found to have, and by regulation designates as having, a potential for
abuse because of its depressant or stimulant effect on the nervous system or its
hallucinogenic effect ..." Drug Abuse Control Amendments of 1965, Federal
Food, Drug and Cosmetic Act, § 210(v) (1965).
Following that mandate, the Secretary added
LSD, peyote, psilocybin, mescaline and DMT to the list of controlled substances. 21
C.F.R. § 166.3(C)(3) (1966). It is noteworthy that both mescaline, the chemical
found in peyote, and the plant peyote were listed.
In 1970 Congress passed the Controlled
Substances Act, 21 U.S.C. 801 et seq. ("C.S.A.") in an effort "to deal in a
comprehensive fashion with the growing menace of drug abuse in the United States."
H.R. 1444, 91st Cong. 2d Sess. 1 (1970). Title II of the Act contains the
schedules of controlled drugs and the criminal penalties for their possession and sale.
Title I deals with treatment and rehabilitation. Both of these Titles were
considered in public hearings before the Subcommittee on Public Health and Welfare of the
Committee on Interstate and Foreign Commerce during February and March 1970.
Following the hearings, the Subcommittee held 37 executive sessions and reported out the
bill, H.R. 18583, to the full committee, which considered it in eight more executive
sessions. Id. at 12.
The House Ways and Means Committee also
considered similar bills, H.R. 13742 and H.R. 17463, insofar as the legislation relates to
import and export of controlled substances. Id.
H.R. 18583, which became P.L. 91-513 initially
scheduled only those drugs which had already been controlled by law or regulation. A
number of drugs have since been added to the schedules in the manner set forth below.
The classification of psilocybin, psilocin, LSD and the other hallucinogens
scheduled by the Secretary of HEW under the authority of the 1965 law has not changed
since the Act was passed.
In a review of the records of the public
hearings on the Act, no mention of psilocybin, psilocin, mushrooms or fungi was found.
There is considerable comment on LSD "and other hallucinogens."
However, of the "others," only peyote appears to have been singled out for
specific discussion, usually because of questions raised by the Native American
Church. Other drugs receiving scattered attention were marijuana and amphetamines.
The Act of 1970 set up a process whereby the
attorney General may add to, delete from, or reschedule any drug she thinks should be
controlled. Changes in the schedules may be made only after a hearing, which the
Attorney General, the Secretary of HEW, or any other interested party may request.
21 U.S.C. § 811(a),(b). This principle rule was stressed in the DEA's Final Order in the Matter of Petition of Carl Eric Olsen,
dated May 16, 1994, No. 92-1109, (affirmed, No. 94-1605, D.C. Cir., Oct. 6, 1996):
Under the CSA (Controlled Substance Act) the regulation of chemicals and the plant
material are distinct from each other. The classification of delta-9-THC has no
bearing on the classification of marijuana. Under the CSA, a proposed change in the
scheduling of either THC or the plant material requires the Attorney General to proceed
independently.
In the case of the Act, or the Iowa Statute,
it must be noted that the plant Petitioner had, mushrooms, is not listed as one of the
controlled substances.
It is not difficult to argue that Congress, the
Secretary of HEW and the DEA never intended to place mushrooms within the list of
controlled substances. In other cases of plants and the substances contained within,
both were listed. This is indicative that when they wished to outlaw a plant, they
did so specifically, and not just by listing a chemical found to be an endogenous part of
the natural plant. [i.e., marijuana & THC; peyote & mescaline; coca leaves
& cocaine; opium poppies & opium; Tabernanthe iboga & ibogaine.]
Congress specified what plants it deemed proper to control. They did not
designate any plant, mushroom or fungi on the list that Petitioner was involved with.
Subsequently, all but two states (New Hampshire
and Vermont) have adopted the Federal Model Controlled Substances Act with little
individual State Legislative discussion or change. Thus, the legislative history,
supra, is applicable to those 48 states who have adopted the Model Act. However, it
should be noted this is not true of the sentencing, or treatment, provisions.
Penalties vary widely between the individual states, and the state's and federal statutes,
as does method of determining the penalty. But, as to the substances prohibited in
the "Schedules," the language defining the offenses, and the placing of
substances in the schedules, they are all virtually identical, with only minor
differences.
II. JUDICIAL BACKGROUND
In 1978 the Florida Supreme Court, in Fiske
v. State, 366 So.2d 423 (Fla. 1978) held an essentially identical statute to the Iowa
Statute in question to be unconstitutionally vague as applied to the non-specific
mushrooms. Finding the statute made no mention of any mushroom, and were not a
"material," they held that "in capsule, pill or similar form" the
psilocybin statute could be applied constitutionally, where it could not in regards to a
mushroom in its natural state. Fiske, supra, at 424.
Following Fiske, 4 State Appeals
Courts have considered the same issue, with different results: People v. Dunlap,
422 N.E.2d 1379 (Ill.App. 1982); State v. Justice, 704 P.2d 1012 (Kan.App. 1985);
State v. Patterson, 679 P.2d 416 (Wash.App. 1984); and Bemis v. State,
652 N.E.2d 89 (Ind.App. 1995). Also, one Florida Court of Appeals, State v.
Savrda, 679 So.2d 363 (Fla.App. 4 Dist. 1996) (Upholding dismissal of mushroom
charges "based on the authority of Fiske.") One Court of Appeals
ruled on a slightly different, related issue, State v. Wohlever, 500 N.E.2d 318
(Ohio App. 1985) ("Psilocybe mushrooms are not among substances proscribed by
statute.") The only other state Supreme Court, besides Florida's, to
consider the issue has been the Iowa Supreme Court in the Petitioner's case, and the
Opinion is in disagreement with that of the Florida Supreme Court's. No Federal
court is known to have considered the issue.
III. PETITIONER'S CASE
On July 11, 1994, the Quad-City Metropolitan
Enforcement Group (MEG) executed a consent search at Petitioner's residence in Davenport,
Iowa. The MEG officers seized a large number of Mason jars containing mushroom
cultures and mushrooms, and some dried mushrooms. No equipment for extracting the
chemical substance from the mushrooms was found, and no extracted, or isolated chemical
substance was found. All mushrooms were in their natural state, either fresh or
dried. They had not been processed in any manner.
Pursuant to State Lab test results showing that
some of the mushrooms and cultures endogenously contained the controlled substance
psilocybin, charges were filed in the Scott County, Iowa District Court, as follows:
Manufacture of a Controlled Substance (Psilocybin), § 124.401(1)(c)(6); Possession of a
Controlled Substance with Intent to Deliver (Psilocybin), § 124.401(1)(b); Failure to
Affix Tax Stamp (Psilocybin), § 453B.12, and several unrelated, (to this Petition),
offenses.
Several pretrial motions were filed by
Petitioner's court-appointed attorneys, as well as numerous pro se motions. On Dec.
30, 1994, a Motion to Dismiss Counts I, II & III: Violation of Right to Due Process
was filed. On May 24, 1995, a hearing was held in Scott County District Court before
Judge James R. Havercamp on this, and other, motions. On May 25, 1995, a written
Opinion denying the motion was filed. [See Appendix B.]
On June 2, and 5, 1995, Petitioner filed
several pro se motions due to his court-appointed attorney's failure to do so, and due to
a conflict of interest in that his attorney had just been hired as the drug prosecutor for
Scott County on June 1, 1995. The motions relevant to this Petition, filed pro se,
were: Motion to Dismiss, based on absence of legislative intent to control psilocybe
mushrooms; Motion to Dismiss - mushrooms specifically excepted; Motion to Dismiss -
void-for-vagueness and overbroad; and a Motion to Dismiss, based on violation of the First
Amendment Freedom of Religion and the RFRA (which the judge ruled was "preserved for
appeal" when she denied the motion). These motions, and all others (including
the Attorney's own Motion to Withdraw due to the Conflict of Interest) were denied by the
trial judge, Bobbi M. Alpers, on June 5, 1995, just prior to the start of the jury trial.
[The Religious Freedom motion and trial transcript appear in Appendix C.]
Throughout three-and-a-half days or trial
testimony there was a complete absence of any evidence that the Petitioner intended to, or
acted to, extract from or process the mushrooms in any way. All mushrooms were in
their natural state.
Testimony at trial, by the MEG officers, was
given that Petitioner told them he was an expert on "the law governing"
mushrooms, Atley, at 831-832, and
that he was growing many types of mushrooms "for medical and scientific
purposes," Atley, at 822,
during the search of his residence. He also told them he had examined the law and
that no mushrooms were illegal.
The Jury returned a verdict of guilty on June
8, 1995. The Petitioner was sentenced to a term of incarceration equal to 20 years
on June 27, 1995. A notice of Appeal was filed that day.
On direct appeal to the Iowa Supreme Court,
Petitioner's attorney raised several issues, the Due Process, void-for-vagueness violation
being one of them.
On Jan. 22, 1997, a panel of 5 Iowa Supreme
Court Justices filed a 15 page Slip Opinion affirming Petitioner's convictions.
On Feb. 4, 1997, Petitioner filed a pro se
Petition for Rehearing with the Court claiming that the court has made several errors in
its Opinion as follows:
- That they had failed to address the Conflict of Interest issue under the Sixth
Amendment, Holloway and Cuyler.
- That they failed to address many of the arguments made in the appeal briefs on the
void-for-vagueness issue; had sua sponte raised a standing issue not raised by the State;
had failed to note the Religious Freedom Motion in the Appendix, or the arguments on
Religious Freedom; and they had failed to apply a proper void-for-vagueness analysis.
The Iowa Supreme Court, on Feb. 13, 1997,
"invited the State to file a written response," which the State did.
Petitioner filed a pro se Reply Brief to the State's Response. On March 20, 1997,
the Iowa Supreme Court, en banc, granted the Petition. [The Petition, Order and
Final Opinion appear in Appendix A.]
On June 18, 1997, the Iowa Supreme Court, en
banc, filed its amended Opinion, supplanting their 15 page Slip Opinion of Jan. 22, 1997,
with a new 40 page Opinion, including an 11 page dissent by three Justices on the Sixth
Amendment issue. The Opinion in the other issues remained, essentially, the same.
[This is reported as State v. Atley,
564 N.W.2d 817 (Iowa 1997).]
Petitioner presented to the Iowa Supreme Court
the same arguments that follow in this Petition. The Opinion failed to address many
of Petitioner's arguments, and instead, adopts the faulty logic, and improper analysis, of
several Courts of Appeals, misinterprets the Florida Supreme Court's Opinion in Fiske,
rejects their conclusion, and contradicts itself by failing to find standing to facially
challenge the statute, stating there's "no basis in the record" for the First
Amendment claim, Atley, at 833,
after noting, in the Sixth Amendment issue, that Petitioner raised a Religious Freedom
issue at the trial level, Atley,
at 825. [FN#1]
[FN#1] Petitioner has been a member of The Fane
of the Psilocybe Mushroom, a Canadian Chartered Church, since 1984, [Affidavit of The Fane
appears in Appendix I], and of the Sacred Mushroom Church, [Affidavit of Petitioner
appears in Appendix I].
Nevertheless, the Opinion they made,
essentially, is that cultivation of the non-specified mushrooms, along with Petitioner's
"knowledge" that they contained psilocybin, made the statute constitutional
"as applied." They failed to make a true void-for-vagueness analysis, or
even address many of Petitioner's arguments.
The Iowa Supreme Court's decision rests on the
statute's phrase in Iowa Code § 124.204(4)(s) that "any material, compound,
mixture, or preparation which contains ... psilocybin" encompasses whole mushrooms in
their natural state. Specifically they state: "Certainly a psilocybe mushroom
is a 'material containing psilocybin,' under the ordinary and reasonable use of these
words." Atley, at
831. They never address Petitioner's arguments, fully briefed, as to the
"absurd results" such interpretation would lead to; its possible effects on the
Native American Church or Petitioner's religion; or the possible law enforcement problems
with such a broad interpretation. These same arguments are presented within this
Petition, and under a proper Chapman, infra, type of analysis, the Iowa Supreme
Court's Opinion must fail.
The Iowa Supreme Court's conclusion, Atley, at 831-832, that
"material" is not vague for a person who "knows" a non-specified
plant, the mushrooms in this case, endogenously contain a minute amount of a controlled
substance, would outlaw, by implication, the cultivation of untold numbers of perfectly
legal plants and organisms "known" to contain such substances. Some of
these are Morning Glories, Silver Maple trees, sensitive plants, San Pedro cacti, common
forage grass, lettuce, certain toads ... just to name a few. [A Chart is provided in
Appendix G with an extensive Scientific Authority section in Appendix H for reference to
the many plants and organisms that endogenously contain a controlled substance.]
Each and every one of these would be illegal for Petitioner, or anyone else who also
"knows" their endogenous constituents, under the Iowa Supreme Court's Opinion
that the term "material" covers non-specified plants in their natural
state. No showing of any overt act, or intent to act, in violation of the statute's
defined prohibitions needs to be shown under the Court's Opinion - and none was shown in
Petitioner's case.
This is in direct opposition to the Florida
Supreme Court's Opinion that "material" does not advise a person of common and
ordinary intelligence that an unlisted plant is illegal, and that "material"
could only be applied constitutionally "in capsule, pill or similar form ..."
Fiske, supra, at 424.
The Iowa Supreme Court's interpretation of
"material" violates the Due Process protections of the Fifth and Fourteenth
Amendments by being so vague and overbroad that it would (1) lead to "absurd
results" by outlawing much of the life-forms on this planet; (2) result in
overbreadth, giving law enforcement virtually unlimited power to arrest and imprison
almost every citizen on an ad hoc and subjective basis; and (3) threaten the First
Amendment rights of several religions, including Petitioner's.
Since the Model Controlled Substances Act of
1970 (revised 1990), has been adopted by most of the States in the Nation, the
interpretation of the term "material" is relevant to 48 of the 50 States.
For these reasons, as well as the arguments that follow, Petitioner
respectfully believes this Court should issue a writ of certiorari to review the Opinion
of the Iowa Supreme Court.
REASONS FOR GRANTING THE PETITION
I. This Court should grant certiorari as the Opinion below
conflicts with the Opinion of the Florida Supreme Court and conflicts with this Court's
previous decisions for the interpretation of terms used in a statute that lead to
"absurd results."
A. Iowa and Florida
Supreme Courts Disagree
The Iowa Supreme Court held that the term
"material" as used in the Iowa Statute § 124.204(4)(s) in the phrase "any
material, compound, mixture, or preparation, which contains ... psilocybin,"
encompasses an unlisted plant, the mushrooms Petitioner cultivated, since Petitioner knew
they contained the substance psilocybin naturally. Specifically they stated:
"Certainly a psilocybe mushroom is a 'material containing psilocybin,' under the
ordinary and reasonable use of these words." Atley, 564 N.W.2d 817, 831 (Iowa
1997).
The Florida Supreme Court, in Fiske v.
State, 366 So.2d 423, 424 (Fla. 1978), in examining a statute almost identical to
Iowa's, found differently:
Section 893.03(1)(15), part of Schedule I, controls any material which contains a
quantity of the hallucinogenic substance "psilocybin." Section
893.13(1)(a)(2) makes possession of psilocybin a felony of the third degree. The
Statute makes no mention of psilocybe mushrooms or, for that matter, of any other
psilocybic organic form that grows wild. If the statute were to specify that
psilocybin was contained in certain identifiable mushrooms and were to name those
mushrooms, thereby apprising a prospective defendant that possession of those mushrooms is
unlawful, it would not be unconstitutional as applied.
Fiske, at 424. (emphasis added) In other words, had the statute
specified mushrooms, or "psilocybe" mushrooms, the statute (law) would have been
constitutional "as applied," to Mr. Fiske, in the (fact) situation of the case.
Several jurisdictions since Fiske
failed to note the Florida Supreme Court's statement that it was only because the statute
failed to "apprise a prospective defendant" that mushrooms which contained
psilocybin were unlawful that it couldn't be "applied."
A Kansas Court of Appeals, in State v.
Justice, 704 P.2d 1012 (Kan.App. 1985) adopted the faulty reasoning in People v.
Dunlap, 422 N.E.2d 1379, 1385 (Ill.App. 1982) that "material," as commonly
used, would advise a person of ordinary intelligence that Psilocybe mushrooms are illegal.
Neither Dunlap nor the Iowa Supreme Court addressed the "absurd
results" that would lead to. But more importantly, Dunlap erroneously
applied a subjective element of fact without first doing a proper objective
void-for-vagueness analysis of law. Without fair warning that any mushroom is
unlawful (law), scienter (fact) is impossible to form at all.
The Justice Court, in a weak attempt
to reconcile Dunlap's faulty reasoning, with the Fiske Court's
void-for-vagueness type analysis, made a most curious interpretation of Fiske.
Of controlling importance in the Florida court's decision was the complete absence of
any evidence that defendant knew that the mushrooms he possessed contained psilocybin.
The court did not strike down the statute as unconstitutional but held that it could
not be applied to a defendant who was not shown to have criminal knowledge.
Justice, at 1016 (emphasis added). It appears that the Justice
Court lifted, word-for-word, the emphasized phrase, supra, from West Publishing's
"[1]" syllabus and their heading notes. This is not what the Florida Court
said at all. In fact they said, "if the statute were to name those mushrooms
... it would not be unconstitutional as applied" to Mr. Fiske.
Apparently, the Kansas Court failed to heed West's general disclaimer: "the syllabus
constitutes no part of the opinion of the court ..." The Iowa Supreme Court in
Petitioner's case appears to just rubber-stamp the Justice recitation of West's
erroneous syllabus.
The language of the Florida Supreme Court is
classic void-for-vagueness language, and principles. There would have been no reason
for that if "knowledge," or lack thereof, on Mr. Fiske's part, was the reason
for the ruling, as is claimed in Atley,
at 832-833. No other court has realized the simple fact that the Fiske
Court said, in the fact situation at hand, the statute would have been constitutional
"as applied" if mushrooms were specified in that statute. They went on to
say that "in capsule, pill or similar form the statute may be applied
constitutionally ..." But as to whole, unprocessed, mushrooms:
The statute as presently framed, however, gives no information as to what plants may
contain psilocybin in its natural state. More particularly, the statute does not
advise a person of ordinary and common intelligence that this substance is contained in a
particular variety of mushroom. The statute, therefore, may not be applied
constitutionally to appellant. It does not give fair warning that possession of the
mushrooms possessed by appellant is a crime. See Bouie v. Columbia, 378
U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 893 (1964); State v. Winters, 346 So.2d 991
(Fla. 1977).
While the Opinion in Atley adopts the misinterpretations
of Fiske, a recent Florida case, where the Defendant was shown to know what
mushrooms he had, the State claimed Fiske didn't apply. The lower court
dismissed, and the State appealed. In upholding the dismissal "based on the
authority of Fiske ..." there was no doubt as to the meaning of Fiske,
in State v. Savrda, 679 So.2d 363 (Fla.App. 4 dist. 1996). The Iowa Supreme
Court should have looked to the Court's Opinion in Fiske, or the the Florida
Appeals Court, rather than the Kansas Appeals Court's. In fact, they should have
made a proper, de novo, void-for-vagueness analysis of the term "material" based
on this Court's guidelines in Chapman v. U.S., 500 U.S. 453 (1991).
While Fiske leaves some room for a
more complete void-for-vagueness analysis, it is still the only Court in the United States
to apply a proper constitutional analysis. It is in direct conflict with the Iowa
Supreme Court's, the only other Supreme Court to consider the issue. No
Court, though, has yet to consider the true problem with the interpretation of the term
"material" such that it encompasses non-specified plants, such as the mushrooms
Petitioner cultivated. That problem is the term, so construed, leads inexorably to
"absurd results."
B. The Iowa
Supreme Court's Interpretation of "Material" and Common Usage Leads to Absurd
Results
With the several cases on this very issue of
"material" being vague that have been brought, and with different results being
found by the Florida Supreme Court and the Iowa Supreme Court, we have "a statute
which either forbids or requires the doing of an act in terms so vague that men of common
intelligence must necessarily guess at its meaning and differ as to its application,
[which] violates the first essential of due process of law." Connally v.
General Const. Co., 269 U.S. 385, 391 (1926). This Court should now,
specifically and unequivocally, do the first, and definitive, analysis of this issue.
This Court has already decided that the term
"mixture" or "substance," in Title 21 U.S.C. § 841(b)(1)(B)(v) of the
federal statutes, as applied to LSD including the "carrier weight" that the LSD
is mixed or diluted with, did not lead to an unconstitutionally "absurd result."
Chapman v. U.S., 500 U.S. 453 (1991). The same type of analysis of
the term "material" in the Iowa Statute being applied to a non-specified plant
that endogenously contains a controlled substance will lead to quite a different
conclusion.
There are literally thousands of common plants,
and living organisms, that would be outlawed for anyone "knowing" botany,
chemistry, pharmacology, biology, or who is just well-informed, if "material"
means any non-specified plant which "contains" one of the specified substances.
The mushrooms in this case are only one of them. [See Chart A, in Appendix G,
for a partial list of various plants and controlled substances.] [Claims made,
infra, in this Petition of an organism's natural chemistry used as an example will,
hereinafter, be followed by a number(s) in a bracket []. Bracketed numbers refer to
a Scientific Authority, which appears in Appendix H, that support the claim made.]
A few of the non-specified organisms, and the
controlled substances they endogenously contain are: Morning Glory (Lysergic acid) [31,
32, 55]; Mimosa pudica, the "sensitive plant" (DMT) [68, 73, 98]; Psilocybe
mushrooms (Psilocybin & Psilocin) [8, 24, 46, 47, 52, 103]; Bufo alvarius, the
"Colorado River Toad" (Bufotenine) [29, 30, 36]; Acer saccharinum, the
"silver maple" (DMT) [73]; Trichocereus pachanoi, the San Pedro cacti, and
Trichocereus peruvianus, the Peru cacti (Mescaline) [6, 7, 28, 67, 74, 83]; Phalaris
arundinacea & Phalaris tuberosa, wild grass - livestock forage grass (DMT &
Bufotenine) [12, 41, 42, 43, 72, 88, 108]; and even Homo sapians, human beings (DMT,
morphine & codeine) [25, 26, 27, 51, 90]. To even begin to say each of the above
is illegal for the Petitioner, or any one, to cultivate or possess just because he
"knows" they naturally "contain" a listed controlled substance is
absurd.
Giving the common meaning to the term
"material" results in the opposite conclusion found in Chapman's
analysis of the term "mixture" or "substance" in the Federal
Sentencing Statute as applied to the "carrier weight" of a LSD
"mixture." A straightforward reading of Iowa Code § 124.204(4) does
"produce a result 'so absurd or glaringly unjust,'" United States v. Rodgers,
466 U.S. 475, 484 (1984) (citation omitted), "as to raise a 'reasonable doubt' about
Congress' intent." Chapman, supra, at 463-464.
It would be absurd to even argue that the
statute was meant to outlaw all the plants and animals that endogenously contain a
specified substance, and that includes mushrooms in this case. If they are illegal
to grow because the Petitioner "knows" they contain a minute quantity of
psilocybin, what is the position of the Petitioner, and everyone who reads this Petition,
in regards to the "knowledge" of vast numbers of organisms that naturally
contain a specified substance but are not specified in the statute? Is it illegal
for Petitioner to grow Morning Glories? Silver Maple trees? Does the
Petitioner have to buy a tax stamp for Bufotenine when he goes fishing with Colorado River
Toads as bait and affix the tax stamp to the toads? Is Petitioner going to be guilty
of "Possession of Mescaline" to cultivate the San Pedro cacti in his home?
What is the charge if he helps a farmer cut and bale a field of Phalaris
arcundinacea grass - "Possession with Intent to Deliver a Ton of DMT"?
The Iowa Supreme Court's Opinion that
"material" and the "knowledge" of a plant's endogenous make-up outlaws
that growing of an organism, even if its not listed as illegal, is subject to the ultimate
reductio ad absurdum argument; Since Petitioner "knows" his own body
endogenously "contains" the controlled substance DMT, along with several other
listed substances, does he now have to buy a tax stamp, affix it to his forehead, and turn
himself in for destruction as a "controlled substance"?
Since the use of the word "material"
in such a manner as to encompass a mushroom not listed leads to the absurd outlawing of
thousands of other organisms that naturally contain a listed substance "[w]e are
confronted here with a statute which, if interpreted literally, produces an absurd, and
perhaps unconstitutional, result." Green v. Bock Laundry Machine Co.,
490 U.S. 504, 527 (1989) (Justice Scalia concurring in judgment).
C. The Better
Interpretation of "material"
It is axiomatic that all laws must be
reasonably construed. It would, therefore, be patently absurd for the government to
try and make its case by arguing that cacti, toads and mushrooms seized in this case are
illegal "containers," "mixtures," or "materials" containing
the scheduled drugs. Such an argument should fail because it stretches to ludicrous
proportions the definition of "container," "mixture," or
"material." The average person would not naturally think of a plant or
mushroom as a "container," "mixture," or "material."
In fact, such unnatural reductionist definitions would make possession of our own brains
illegal for the simple reason that they endogenously contain DMT.
The Entheogen Law Reporter, Issue No. 2, Spring 1994, p. 8.
In examining a statute, a term should be
given its ordinary meaning, Moskal v. United States, 498 U.S. 103, 108 (1990),
unless that would lead to absurd results. For "material" to encompass a
mushroom, the term must be interpreted broad enough to, at least, mean "an
organism," perhaps so broad as to mean "anything." The argument,
supra, shows the absurd result obtained by that broad an interpretation, and thus, such an
interpretation is unconstitutional. Yet it must have some meaning since the
legislature used it.
Only in the most reductionistic and unnatural
interpretation could a whole unprocessed mushroom, or any other plant, be considered to be
a "material." In fact, if the legislature intended the term
"material" to be read so broadly as to include the whole mushroom, or other
whole natural organisms, it should have used the term "anything." It
should be noted that the legislature used very specific terms in the listing:
"Material, compound, mixture, or preparation." The Legislature is presumed
not to waste words or to use words that are redundant. Given that fact, it is
illogical to conclude that the term "material" is so encompassing as the Iowa
Supreme Court contends; for it they were accurate, then only the word "material"
would have been used. Given such is not the case, the logic of the Iowa Court fails.
Considering the rule that the legislature does
not intend words to be redundant, there is a particular application in this case. If
the legislature intended the term "material" to include the natural plant, it
would have intended the term "material" to be very broad and non-specific, akin
to the ordinary scope of the term "anything." If such were the case, then
the legislature would not have used the other terms in the listing, i.e.,
"compound," "mixture" and "preparation," since the term
"anything" or a broadened scope of "material" would have included
those terms in the denotation of "anything. The reason for this conclusion is
that the one word, "material," would cover everything. It follows,
therefore, that the legislature's inclusion of the term "material," in a list of
laboratory-type terms used together, would be meant to have "material" be
related to the other terms. The phrase, in tote, draws to mind a setting where
chemicals, or controlled substances, are mixed, compounded, and prepared to produce
"materials."
Whether considered independently, or together,
those words in the context of an anti-drug provision reasonably would be understood as
applying to the wide array of binding agents, cutting agents, liquid suspensions, and the
like, which are "part-and-parcel" of street drugs. In other words, since
the legislature does not "waste words" in constructing statutes, the inclusion
of a list of terms connotes the intention to have each term mean something, not merely to
be redundant. The failure of the Iowa Supreme Court to realize this simple
observation should not preclude this Court from a proper understanding. The proper
understanding being that the denotation of the term "material" is bound to a
laboratory-type of context, and not the reductionist and over-general denotation found in
the Iowa Supreme Court's Opinion in Atley.
D. legislative
Intent
This Court aptly noted, in Public
Citizen v. U.S. Dept of Justice, 491 U.S. 440, 454 (1989):
As we said in Church of the Holy Trinity
v. United States, 143 U.S. 457, 459, 12 S.Ct. 511, 512, 36 L.Ed. 226 (1892): [F]requently
words of general meaning are used in a statute, words broad enough to include an act in
question, and yet, a consideration of the whole legislation, or of the circumstances
surrounding its enactment, or of the absurd results which follow from giving such broad
meaning to the words, makes it unreasonable to believe that the legislator intended to
include the particular act."
Where the literal reading of a statutory
term would "compel an odd result," Green v. Bock Laundry Machine Co.,
490 U.S. 504, 509, 109 S.Ct. 1981, 1985, 104 L.Ed.2d 557 (1989), we must search for other
evidence of congressional intent to lend the term its proper scope.
The rule of lenity should be used to
construe an ambiguous statute of this type in favor of Petitioner. Since
"material," as interpreted by the Iowa Supreme Court, does lead to such absurd
results, it raises a "reasonable doubt" about legislative intent. Moskal
v. United States, supra at 108. The term "material" given the
dictionary meaning of "consisting of matter," State v. Patterson, 679
P.2d 416 (Wash.App. 1984) (citing Webster's Third New Int'l Dictionary 1392 (1975)), would
prohibit any and all of the plants and organisms which endogenously contain a listed
substance, and such a broad scope could not have been the legislative intent.
Further evidence that such was not the
legislator's intent can be discerned by a review of the statute and the substances they did
list. Applying this Court's analysis in Chapman, supra at 454, ("Congress knew
how to indicate that the weight of the pure drug was to be used to determine the
sentence" [PCP] "and did not make that distinction with respect to LSD.");
the legislative intent can be discerned in respect to mushrooms, where they "knew how
to indicate that" a plant was prohibited "and did not make that distinction with
respect to any mushroom.
The legislature specified the plants it wanted
to outlaw as well as their chemical: Peyote & mescaline; coca leaves & cocaine;
Papaver somniferum L. (opium poppy) & opium and codeine; Tabernanthe iboga &
ibogaine are all examples. More telling of the legislative intent is marijuana, and
THC, which are not only both listed, but in Iowa, and most states, the natural plant has a
much less severe penalty than the extracted, (or synthesized) THC chemical it endogenously
contains.
The meaning of this double listing of certain
plants, as well as their separated chemical speaks volumes as to legislative intent.
When the legislature wanted to outlaw a plant, they did so specifically. Had
they intended "material" to be so broad as to encompass "anything"
there would have been no reason to list any plant at all.
The DEA recognizes there is a difference in the
statutes between a "substance of natural origin" and the chemicals it contains.
As pointed out in the DEA's Final Order in The
Matter of Petition of Carl Eric Olsen, dated May 16, 1994, No. 94-1109,
(affirmed, No. 94-16O5, D.C. Cir., Oct. 6, 1996):
Under the CSA (Controlled Substances Act) the
regulation of chemicals and the plant material are distinct from each other. The
classification of delta-9-THC has no bearing on the classification of marijuana.
Under the CSA, a proposed change in the schedule of either THC or the plant marijuana
requires the Attorney General to proceed independently." (emphasis added) (Final
Order appears in Appendix J.)
The chemical, psilocybin, like THC, would
have "no bearing on the classification" of the plant. In this case, a
plant, the mushroom, that is not scheduled at all. [Perhaps due to psilocybe
mushrooms which contain only a minute amount of psilocybin being the safest of all such
substances, scheduled or not. Safer than coffee, alcohol, peyote, tobacco or marijuana.)
[See Appendix K - Affidavits for more information.]
As in Chapman, supra at 459, a reading
of the statute confirms that "material" was not meant to be so broad as to
encompass an unlisted plant. The legislature has specifically enumerated certain
chemicals, and where they desired, certain plants, as "controlled." It is
unreasonable to assume any other plant, any other chemical, or any other life-form is a
"controlled substance" if not specifically listed as such. No person of
common and ordinary intelligence, in examining the statute, would come to the conclusion
that silver maples, morning glories, or mushrooms were intended to be outlawed, even with
the "knowledge" of their endogenously containing a listed controlled substance
gained from this Petition.
A simple test will confirm this. Going to
the statute with the "knowledge" contained herein, does the statute prohibit
morning glories (Lysergic acid); San Pedro cacti (mescaline); sensitive plants (DMT); or
mushrooms (psilocybin)? Since none of these plants are listed we must look further
to discern what the statute prohibits. The Code of Iowa § 124.101(16),
"manufacture" defined, says in part, "extraction from substances of
natural origin" (of a scheduled substance) is prohibited. But the language,
"from substances of natural origin," indicates that the legislature intended to
differentiate, and not outlaw, the "substances of natural origin" unless they
specifically listed them. The conclusion, of the person of common and ordinary
intelligence, would be that it is legal to grow, possess, or sell morning glories, San
Pedro cacti, sensitive plant - and there is no reason to conclude otherwise as to
mushrooms. Processing any of the above to "extract" the substances
scheduled is what the statute clearly prohibits. There would have been no reason for
the phrase "extraction from substance of natural origin" if the legislature had
not intended to differentiate between "legal plants of natural origin" and the
scheduled substances obtainable by "extraction."
The definition of "manufacture" can
also be applied to "substances of natural origin" that are, themselves,
scheduled. With different statutory penalties for marijuana and THC, the
legislature, as in Chapman, supra at 459, "clearly distinguished between the
"plant" and the extracted chemical. The intent is clear that a misdemeanor
marijuana offense wasn't meant to become a felony THC offense simply by a person's
"knowing" marijuana "contains" THC. Without
"extraction" of the THC, a marijuana offense is not a THC offense. The
legislature surely did not intend for their penalty differentiation to be subverted by the
faulty reasoning found in the Iowa Supreme Court's Opinion.
A further indication of legislative intent may
be found in the definition of "drug" in the statute as "Substances, other
than food, intended to affect the structure or any function of the human body
..." Iowa Code § 124.101(13)(c). This specifically says that a
"food" (such as coffee, oranges, ginseng and others from which a chemical, if
isolated and sold in "capsule, pill or similar form ..." would be regulated, or
controlled) that "affects the structure or any function of the human body," is
not a "drug" for purposes of the statute.
More importantly, in seeking to find
legislative intent, it would be fair to say that most people would think of a mushroom as
a "food" and not a "material." In addition, the common usage of
"food" used to designate a mushroom, or other non-listed plant, does not lead to
the "absurd results" that "material" does.
The federal definition of "drug"
includes the exact same paragraph. Title 21 U.S.C. § 321(g)(1), and has long been
looked to for what substances that if "extracted," would become a
"drug." One example is the ephedra plant, also known as Ma-Huang, which
contains ephedrine endogenously. While ephedrine has long been regulated, Iowa Code
§ 124B.2(c), it is only recently that the plant has been legislated in some states.
The point being, until the plant itself was listed, it was not regulated just
because it "contained" ephedrine. It had to be specified. Fair
warning had to be given.
Mushrooms, like the ephedra plant, coffee, tea
and ginseng are "food," and unless specifically prohibited would fall into the
same category as any other food substance. They are not a drug as the Iowa Code §
124.101(13) defines "drug." See United States c. McCullough, 891
F.Supp. 422 (N.D. Ohio 1995) (Discussion on "food" as used in the phrase
"Substances, other than food ...")
Congress had to first designate tobacco as a
"nicotine delivery system" before the FDA could exercise control over it.
Yet it has always, unquestionably, been a plant that contains nicotine. Almost
everyone "knows" it, and it would be fair to say it is used for the nicotine
drug, at least in part. In Iowa, it is a felony offense to sell nicotine. Code
of Iowa § 205.5. Yet it would be absurd to allow a prosecution for "Sales of
Nicotine" to go forward against every grocery store, gas station, or all of the other
outlets selling cigarettes. Up until recently nicotine was only controlled in its
"extracted" form, in "materials" such as "capsules, pills and
similar form," Fiske, supra, at 424. (i.e., nicotine patches and gum).
While now that Congress has labeled cigarettes
a "nicotine delivery system," and they can be regulated by the FDA, "fair
warning" has been given the manufacturers that cigarettes are so designated. As
Action on Smoking and Health v. Harris, 655 F.2d 236, 241 (D.C. Cir. 1980)
("Labeling or banning cigarettes is a step that can be take [sic] only by the
Congress.") points out, "if the statute requires expansion, that is the job of
Congress.") If the legislature wanted to outlaw a mushroom, they would have
done so, as they did with other plants, and as is required by the protections of Due
Process
When all of the above is considered, Code of
Iowa § 124, as a whole, cannot fairly be said to prohibit mushrooms. An examination
of the statute would find, at the most basic level, no mushroom (or morning glory, silver
maple, sensitive plant...) is specified by the legislature who did list other plants as
well as their chemical extracts. The fact that mushrooms are most commonly
considered a "food," combined with a reading of § 124.101(13)(c), a
"drug" defined, further indicates legislative intent. With a reading of §
124.101(16), "manufacture" defined, it becomes clear that the legislature did
not intend to outlaw all "substances of natural origin" from which a prohibited
chemical can be extracted, and that only those "substances of natural origin"
they specified were meant to be outlawed. Finally, "material," interpreted
to encompass mushrooms in their natural state, leads to "absurd results."
All these factors, found in the statute in question, would cause any person of common and
ordinary intelligence to conclude that a plant, not listed, is not illegal, no matter if
the person contemplating cultivation or selling that plant "knows" what it
contains as long as there is not intent, or overt act, to extract the controlled
substance. There is no evidence of such illegal act in this case.
As an Ohio Court of Appeals noted in State
v. Wohlever, 500 NE.2d 318 (Ohio App. 1985), where Ms. Wohlever was charged with
"Sales of Psilocybe Mushrooms":
The legislature has clearly detailed
substances which are controlled and Psilocybe mushrooms are not among them.
(emphasis added)
As pointed out, supra, before a defendant can have scienter, an issue of fact,
the law must first, and fairly, warn of the prohibited conduct - or a
"guilty mind" is legally impossible.
This Court should grant certiorari to consider
whether Petitioner's cultivation of mushrooms is no more prohibited than if he cultivated
Morning Glories, sensitive plants, or any plant or organism not specified, regardless of
his "knowledge" that they contain a controlled substance. This Court
should find that the legislature "clearly detailed substances which are controlled
and Psilocybe mushrooms are not among them." Wohlever, supra.
II. This Court
should grant certiorari due to the National Importance, in that the interpretation of
"material" to encompass non-specified plants would permit "a standardless
sweep" and open up almost every citizen to arrest and imprisonment by giving
unbridled license to law enforcement to "pursue their personal predilection" of
arbitrary and discriminatory enforcement.
While this Petition concerns an Iowa
Statute, all states in the United States (except New Hampshire and Vermont) have adopted
the Federal Model Controlled Substances Act in one of its forms. Thus, this Court
should consider the "Question Presented," once and for all the Nation.
While this issue has not been presented to a federal court as of yet, it has been
presented to 6 State Courts of Review, with only two State Supreme Courts who have
considered the issue, Florida and Iowa, disagreeing. This Court should now take this
opportunity to settle this disagreement due to the National importance of the dangers to
all law-abiding citizens the issue presents.
Statutes are created as a warning to
law-abiding citizens of society's boundaries. They are not intended to be a
concealed trap to snare the well intentioned. A citizen attempting to act within the
clearly specified parameters of the law as to any of the number of "substances of
natural origin" "known" to "contain" a controlled substance would
not find the statute to give fair warning that any mushroom is illegal.
Petitioner does not question the State's power
to regulate potentially hazardous drugs. In considering the validity of a given
statute, this Court should also consider whether the statute is sufficiently specific to
provide guidelines to its enforcement, and whether it is narrow enough that the
enforcement is not arbitrarily applied to certain members within the class affected by it.
In Papachristou v. City of Jacksonville, 450 U.S. 156 (1972), this Court
struck down a Jacksonville, Florida vagrancy ordinance, noting that not only did the
statute not give fair notice to potential offenders, but that the vagueness permitted and
encouraged an arbitrary and discriminatory enforcement of the law. See also, Giaccio
v. State of Pennsylvania, 382 U.S. 399 (1966). For the Nation as a whole, the
dangers inherent in the enforcement prong of the Due Process analysis is, perhaps, the
most important reason for this Court to grant certiorari.
The defect in the Iowa Supreme Court's
reasoning, pointed out supra, also means that no guidelines are provided to law
enforcement personnel. But more importantly, the problem with enforcement is the
potential for arbitrary action. This is more a matter of overbreadth, as in Papachristou,
supra, where a great many activities fell within the language of the vagrancy ordinance,
and by selectively enforcing it the police were able to use the ordinance for other
purposes. The statute under which Petitioner was convicted clearly lends itself to
arbitrary enforcement. By its terms, as interpreted by the Iowa Supreme Court, it
applies to all property owners, garden shops, farmers, and anyone who can be shown to have
"knowledge" of a plant's natural make-up which they happen to be growing, and
who fail to destroy such plants.
The broad interpretation of
"material" violates the minimal guidelines for enforcement doctrine by
"setting a net large enough to catch all possible offenders" that this Court
warned about as far back as United States v. Reese, 92 U.S. 214 (1875), or as
recently as Kolender v. Lawson, 461 U.S. 352, 357 (1983) ("As generally
stated, the void-for-vagueness doctrine requires that a penal statute define the criminal
offense with sufficient definiteness that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary and discriminatory
enforcement.") As warned about in Kolender, supra, the term
"material" in Iowa Code § 124.204(4),
... "furnishes a convenient tool for 'harsh and discriminatory enforcement by
local prosecution officials against particular groups deemed to merit their
displeasure,'" Papachristou, 405 U.S., at 170, 92 S.Ct., at 847-848 (quoting
Thornhill v. Alabama, 310 U.S. 88, 97-98, 60 S.Ct. 736, 741-742, 84 L.Ed. 1093
(1940)), and "confers on police a virtually unrestrained power to arrest and charge
persons with a violation." Lewis v. City of New Orleans, 415 U.S. 130,
135, 94 S.Ct. 970, 973, 39 L.Ed.2d 214 (1974) (Powell, J., concurring in result).
Kolender, at 360.
While the government is expanding the "get
tough" approach to the drug problem, the scientific revelations in this Petition
point to how wide the interpretation of "material" might allow "harsh and
discriminatory enforcement." The interesting fact that the illicit drug DMT is
a mammalian neurotransmitter [25, 26, 27, 90] raises important legal considerations.
Moreover, diazepam (trade name Valium) has been found to occur in rat brains
[109] and in trace amounts in wheat grains [109], and "diazepam-like compounds"
have been found in bovine urine [63]. The controlled opiates morphine and codeine
have been found to be normal components of human cerebrospinal fluid [21], and morphine
has been found to be a trace constituent of cow and human milk [51]. Trace amounts
of morphine have been detected in "various plants such as hay and lettuce" [34,
50]. Some, such as the forage grass, Phalaris arundinacea, which contains DMT [43,
88, 108] are common articles of commerce which may be purchased by the truckload.
Since a person would have to remain ignorant of all botany to avoid "knowledge"
of certain plant's endogenous contents, a large portion of the population of the Nation
could be prosecuted at the whim of law enforcement.
With law enforcement armed with an
interpretation of "material" broad enough to include mushrooms, which, by
implication includes all of the above plants and organisms, where does this leave the
concept of specific guidelines for enforcement? If morphine occurs in hay and
lettuce, in every one of our bodies, even in all the milk sold ... on what basis can a
cultivator of mushrooms be punished, without also punishing cultivators of lettuce and
hay, tobacco growers, flower growers, and the corner Mom and Pop grocery for illicit
trafficking in controlled substance? [Perhaps the Court will discern an Equal
Protection violation in Petitioner's convictions as well.]
As this Court said 25 years ago in Graynard
v. City of Rockford, 408 U.S. 104, 108-109 (1972):
A vague law impermissibly delegates basic policy matters to policemen, judges and
juries for resolution on an ad hoc and subjective basis, with the attendant dangers of
arbitrary and discriminatory application.
Not only should this Court declare the
statute unconstitutional on the grounds that it does not provide adequate notice and that
it encourages arbitrary enforcement, but in addition there is no good reason to uphold the
Iowa Supreme Court's interpretation of "material." The very failure to
give notice defeats the aims of the government in enacting such a statute. If the
aim is deterrence of the particular behavior which is harmful to the individual, the
statute is totally ineffective in deterring that behavior if the behavior is neither
identified in the statutes nor discernible by examination of the statute.
By the same token, if the goal of the
government is prevention of potential harm to the public done by persons in regards to
controlled substances, such harm, again, is avoided only if the potential offenders are
aware of the prohibited act.
Finally, if the aim of the statute is to
provide sufficient guidelines for enforcement, to protect the public, the statute is
actually harmful, as it gives law enforcement virtually unlimited power to arbitrarily and
discriminatorily arrest and imprison almost any citizen, seize their property, and all
because of the extreme overbroadness of the statute, as interpreted by the Iowa Supreme
Court, as to the scope of "material."
But it is this Court's own words, in Kolender,
supra, at 360, that speak most eloquently to the constitutional importance of this
Petition:
Appellants stress the need for strengthened
enforcement tools to combat the epidemic of crime that plagues our Nation. The
concern of our citizens with curbing criminal activity is certainly a matter requiring the
attention of all branches of government. As weighty as this concern is, however, it
cannot justify legislation that would otherwise fail to meet constitutional standards for
definiteness and clarity. See Lanzetta v. New Jersey, 306 U.S. 452, 54
S.Ct. 618, 83 L.Ed. 888 (1939).
The statute, as presently framed, without
this Court's determination as to the scope of the term "material," not only
fails to accomplish the legislative goals, under the Iowa Supreme Court's Opinion, it is a
threat to the right to Due Process and to the protections afforded by the Constitution.
III. This Court
should grant certiorari to consider if the statute is unconstitutionally vague and would
threaten the First Amendment rights of several religions, including Petitioner's.
No right has been more cherished, or is more
deeply held to be fundamental, than the First Amendment right to freely exercise one's
religion. The Iowa Supreme Court's interpretation of "material" opens up
the possibility of police, prosecutors, judges and juries using such interpretation to
persecute and prosecute protected religious practices by an arbitrary and discriminatory
application of the statute in question.
In 1965, when the Drug Abuse Control Amendments
were enacted, the first legislative action exempting the Native American Church's use of
Peyote was issued. It is instructive to note that the Food and Drug Administration
(the agency then concerned with drug enforcement) saw no need for such an exemption.
In a letter to chairman of the House Committee on Interstate and Foreign Commerce,
Congressman Harris, they stated:
If the church is a bona fide religious organization that makes sacramental use of
peyote, then it would be our view that H.R. 2, even without the peyote exemption
which appeared in the House-passed version, could not forbid bona fide religious use of
peyote. We believe that the constitutional guarantee of religious freedom
fully safeguards the rights of the organization and its communicants.
(emphasis added)
11 Cong. Rec. 15, 977-978 (1965). They had no doubts, at that time, that
Constitutional protections were all that was needed. Indeed, it would seem as clear
as that. After all, the Framers of the Bill of Rights guaranteed that right.
The Congress scheduled both Peyote (Lophora
williamsii), and mescaline, the active hallucinogenic chemical that peyote endogenously
contains. [10, 18, 19, 20, 60, 100] Federal law, and 21 States (including
Iowa), exempt peyote cultivation and sales to, or use by, members of the Native American
Church (NAC). Code of Iowa § 124.204(8); Title 21 C.F.R. § 1307.31. While
each State's exemption reads slightly differently they are all based on the Federal
Government's example:
The listing of peyote as a controlled
substance in Schedule I does not apply to the non-drug use of peyote in bona fide
religious ceremonies of the Native American Church, and members of the Native American
Church so using peyote are exempt from registration. Any person who manufactures
peyote for or distributes peyote to the Native American church, is required to obtain
registration annually, and to comply with all other requirements of law.
Reading the pertinent section we find that
Peyote, a listed controlled substance, is legal to possess and use by members of the
Native American Church, and further, that anyone can legally manufacture and sell peyote
to members of the NAC if certain requirements are complied with.
A person cultivating peyote for NAC members,
who has complied with the law, will not be charged with "Manufacture of Peyote."
It is not impossible to believe (but highly unlikely) that such a person does not
know the peyote they cultivate contains the controlled substance mescaline, which is
illegal for everyone. Code of Iowa § 124.204(4)(p); 21 C.F.R. § 1308.11(18).
But simply gaining that "knowledge" should not allow an otherwise legal
act to be changed to the illegal act of "Manufacture of Mescaline,"
peyote is a "material," according to the Iowa Supreme Court's interpretation,
that "contains" mescaline, and the person can be shown to "know" it.
But that is exactly what was done in Petitioner's case. Petitioner cultivated
a plant, not listed as illegal at all, that his Church uses as religious sacrament.
He was prosecuted for "Manufacture; Possession with Intent to Deliver; and Failure to
Affix a Tax Stamp ... Psilocybin."
The NAC is not comprised of ignorant members
living on the Plains in the 1800's. Its members are lawyers, chemists, doctors, and
spiritual leaders who surely "know" that peyote contains mescaline, which is
illegal for them, as well as everyone else. They should not be subject to arrest for
"Possession of Mescaline," nor should the person growing the peyote for them, by
the arbitrary and discriminatory whim of some law enforcement official who doesn't approve
of their peyote religion and applies the Iowa Supreme Court's logic as a tool for
religious persecution.
Of course, if the grower extracts the
mescaline from the "substance of natural origin" and sells it to a NAC member,
perhaps in "capsule, pill or similar form," Fiske at 424, then that
person is guilty of "Manufacture of Mescaline," and the Church member would be
guilty of "Possession of Mescaline."
Peyote is not the only cactus that contains
mescaline. [66,100]. At least 13 other varieties contain mescaline as well [2,
3, 7, 65, 67, 74, 83]. Of these, the San Pedro cactus {Trichocereus pachanoi), and
the Peru cactus, (Trichocereus peruvianus) are the most common [7, 28, 74]. They are
sold by such outlets as K-Mart's Garden Center. Several religions are known to use
them as a sacrament due to their legal status.
The Trichocereus pervianus is not considered a
controlled substance by the U.S.D.A. They place several import controls, such as
"... not more than 200 ... in a single shipment," and, "Import tax
increased by 2/3 over other ..." The Federal Government obviously doesn't
consider them illegal just because they contain the controlled substance mescaline.
The Peru cacti is legal, just as the mushrooms in Petitioner Atley's activities.
Recently the Reverend Thane Eichenauer, a
member of the Peyote Way church of God, a church allowed sacramental use of
peyote in Arizona, wrote the Chandler Police Department. Rev. Eichenauer was
concerned as to the implication for his religious practices, as, while peyote is legal for
his Church, mescaline is not legal for anyone. He was concerned that "the
government authorities in Iowa and Illinois," Atley and Dunlap
rulings, "have taken the position that the word 'material' infers and includes any
plants that contain an illegal substance." He went on to ask:
Since the San Pedro Cactus is known to
contain mescaline, I would like to receive clarification as to whether ownership of a San
Pedro cactus is illegal and what Arizona uses as a definition of "material".
Responding to this inquiry, the Chandler
Chief of Police, through Sgt. Jesse Boggs, S-22 Narcotics Unit, replied:
I received your correspondence in reference to the San Pedro Cactus (tricocerus
pachanoi) you purchased at a local nursery, I reviewed your concern that the cactus may be
illegal to possess due to it containing mescaline, a Schedule I controlled substance under
ARS 36-2512.A3(O).
I spoke with Wayne Stewart, a Maricopa County Deputy Attorney, assigned to the
Narcotics Bureau. Mr. Stewart was unaware of any prosecutions undertaken for the
possession of this cactus, but was not certain if this cactus was illegal to
possess. Mr. Stewart referred me to the Agriculture Department, Plant Services
Division.
This second paragraph punctuates that the term "material"
causes this to be "a statute which either forbids or requires the doing of an act in
terms so vague that men of common intelligence must necessarily guess at this meaning and
differ as to its application." Connally v. General Const. Co., 269
U.S. 385, 391 (1926). Even the prosecutor, specialized in Narcotics law, didn't know
the answer to Rev. Eichenauer's question. However, the person he referred Sgt. Boggs
to did. He goes on to write:
I contacted Jim McGinnis, chief Enforcement Officer with the Agriculture Department's
Plant Services Division. Mr. McGinnis assured me that the San Pedro cactus is
perfectly legal to possess and you should not be concerned about any legal problems
arising from the possession of this cactus.
[Letter of July 14, 1997, From Bobby Joe Harris, chief of Police; Sgt. Jesse Boggs,
S-22, Narcotics Unit.] [This letter appears in Appendix L to this Petition.]
Apparently "knowing" that San Pedro cacti contain mescaline wasn't important, at
least not in Maricopa County, Arizona. But it is no wonder that Rev. Eichenauer was
concerned. Petitioner is serving a 20 year sentence for what was essentially the
same question: "Does 'material' encompass unlisted, unscheduled plants 'known' to
contain a controlled substance?" The answer in Florida, is
"no." The answer, according to the prosecutor in Maricopa County was
"I don't know." The answer of the person the narcotics officer turned to,
is "no." But the Iowa Supreme Court's answer is "yes."
Had Rev. Eichenauer gone back and informed the
nursery he purchased the San Pedro cactus at that the cactus "contained"
mescaline, that "knowledge" wouldn't have brought "Manufacture and Sales of
Mescaline" charges against the cultivator/seller - at least not in Arizona. In
Iowa, according to the Iowa Supreme Court's ruling, that's all that would be needed
to place the nursery owner in a cell next to the Petitioner. On the other hand, were
the cultivator, or the Reverend, to "extract" the mescaline, then the statute's
clear definition of "manufacturing" would be applicable. The same should
be true in Petitioner's case.
Another religion, the Santo Daime, of Brazil, and other
religions, use a combination of plants that contain DMT to prepare as a religious
sacrament. These churches flourish in South America and have members throughout the
world.
Their sacrament, a liquid brew called ayahuasca
(eye-a-wasca) is an "extract" who's plant sources of "natural origin"
varies from Shaman to Shaman, but one of the most common plants used is the leaf of the
Psychotria viridis (DMT) [33, 84]. While the "substance of natural
origin," the Psychotria viridis, is not listed as illegal in the United States, the
DEA recently classified the brew made from it - "ayahuasca" - as a Schedule I
controlled substance. The curious part of that action is it would seem to
Petitioner, who has studied the statutes, that ayahuasca, being DMT extracted into
a brew, would be illegal without scheduling it, as it would be covered under the statutory
definition of "manufacturing" as "extraction from substances of natural
origin" - DMT.
However, the DEA apparently thought it the
better course to apprise persons of "common and ordinary intelligence" that the
ayahuasca brew is illegal. This is commendable and gives "fair warning."
But the plant, like the mushrooms Petitioner had, are legal, to grow or possess, as
long as the act of "extraction" to produce the DMT brew (or psilocybin, the
chemical) is not committed. Petitioner committed no act in regards his mushrooms
such that Psilocybin prohibition was violated.
The Christian ayahuasca churches, such as the União
do Vegetal (UDV) and Santo Daime (dime), enjoy some legal dispensation in
Brazil owing to a favorable governmental decision. [See: Herman, A.R. (Ed.) 1990 The
Anti-Prohibitionist Review, No. 1, Jan. 1990.] Thanks to the legal status of
the Daime in Brazil, the Church has established itself in Spain and other
European countries. The DEA's response to ayahuasca may have been religiously
motivated to keep these Churches out of the United States.
In the Petitioner's case, a Motion to Dismiss
Counts I, II & III - Violation of First Amendment was filed pro se just prior to the
trial. This motion was denied by the Trial Court, but was ruled "preserved for
appeal." [Motion and relevant Trial Transcript appear in Appendix C.] The
Iowa Supreme court acknowledged this in their discussion on the Sixth Amendment issue:
"Atley also raised constitutional issues, including an alleged violation of freedom
of religion, ..." Atley,
at 825.
In Petitioner's pro Se Petition for Rehearing,
[Appendix A], he addressed the sua sponte raising of a "standing" issue by the
Court. Petitioner claimed they had overlooked the Motion which had been in the
Appeal Appendix, as well as the religious freedom arguments in the briefs. But they
seemed bent on making up whatever it took to avoid making a proper Due Process analysis of
the statute. In the revised Opinion of June 18, 1997, after having noted the
religious freedom claim in their Sixth Amendment issue discussion, they inexplicably
state:
Atley asserts on appeal that the First
Amendment guarantee of freedom of religion protects his use and possession of psilocybin,
because he contends it is used as part of a religious ceremony. Although such an
argument may implicate an exception to the general rule of standing and serve as grounds
to facially challenge a statute, we find his assertion to be meritless and without
support in the record. (emphasis added)
Atley, at 833. The
emphasized part above is a mystery since, as they themselves had noted it had been raised
below, and they had the transcripts, if they had bothered to read them, where the Trial
Court ruled the issue "preserved for appeal." But then, this was a Court
that failed to address most of the void-for-vagueness arguments made in the briefs, and
held it wasn't a Sixth Amendment violation for the Trial Judge to force a lawyer who had
been hired as the County Drug Prosecutor to defend Petitioner over everyone's
objections. As the Dissent stated, it was the majority's "zeal to uphold a
conviction based on what it views as overwhelming evidence of guilt," Atley, at 839, that blinded them to
fair consideration of any issue presented [See Justice Lavorato's Dissent, Atley at 834-839.]
Since all Petitioner had in this case were
mushrooms in their natural state, and cultures for growing them, he felt that prosecution
for the mushrooms he cultivated for his Church and himself violated his First Amendment
rights. [See Affidavits in Appendix I.]
While the RFRA was recently struck down by this
Court in City of Boerne v. Flores, ____ U.S. ____, 117 S.Ct. 2157 (1997), and no
longer applies, Petitioner's First Amendment, Free Exercise Cause, claim is still valid.
Also, the Establishment Clause and Equal Protection would be implicated since the
statute is "facially preferential" to the NAC's use of peyote, a scheduled
substance. This only adds to the seriousness of the Due Process violation of the
Petitioner being prosecuted for the unscheduled mushrooms.
The history of the religious use of the Sacred
Mushrooms goes far back. R.G. Wasson, in his book Soma: Divine Mushroom of Immortality
[Harcourt Brace Jovanovich, New York, NY, 1968] has been accepted as proving that the
god-plant Soma of the ancient Aryan civilization was the sacred mushrooms. The
Aryans swept down from the north into what is now Pakistan and Northern India in the
second millennium B.C., and settled in the Indus Valley. They composed a conan of
sacred hymns called the Vedas, which have become the foundation of Hinduism.
The earliest of the four Vedas, the Rg Veda, deals at length with
soma, which was at once a god, a plant, the juice of the plant, and the urine of a priest
who had ingested the plant. (Note: the active chemicals in the mushrooms are
excreted relatively unchanged in the urine of one who ingests them.)
In the New World, as early as 300 AD there are
stone figurines of shamans with mushrooms from what is now Tenenexpan, Veracruz, Mexico.
[Ott, J., 1995. The Age of Entheogens, The Angel's Dictionary,
Natural Product Co., Kennewick, WA.] Over 200 stone icons have been discovered in
Central America, carved in the shape of mushrooms, with human or animal figures emerging
from the "stems." It has been suggested that these "mushroom
stones" were emblematic to the Sacred Mushroom Cult in the Maya area. These and
other artistic representations show the Indians esteemed the mushrooms with the utmost awe
and reverence.
Quite a different attitude was expressed by
Spanish friars like Sahgun to these "harmful little mushrooms that intoxicate the
same way as wine." [Sahgun, B. De., Trans. l950-1969. Twelve
volumes. University of Utah Press, Salt Lake city, UT.] As friar Motolinia
(Motolinia, F. de, originally published in 1541), put it:
They called these mushrooms teunamucatlh in their language, which
means "flesh of God," or of the Devil that they worshipped, and in this manner,
with this bitter food, they received their cruel god in communion.
Teunamucatlh, or "teonanacatl" was
the name of the mushrooms in Nahuatl, the language of the Nahua, Mexica or Aztecs.
The word would translate more accurately as "sacred mushrooms."
We learn from the writing of the Spaniards that the mushrooms were bitter, induced
visions, and that several species were known to the Indians.
But this was the age of witchcraft, and on 19
June 1620 the Holy Office of the Inquisition formally decreed in Mexico that the ingestion
of inebriating plants was a heresy, stating in no uncertain terms:
The use of the Herb or Root called Peyote ... is a superstitious action and reproved as
opposed to the purity and sincerity of our Holy Catholic Faith ... We decree that
henceforth no person ... may use or use of this said herb, this peyote, or of others for
said effects, nor others similar ... being warned that doing the contrary, besides
incurring said censures and penalties, we will proceed against whoever is rebellious and
disobedient, as against person suspect in the Holy Catholic Faith.
Over the next 265 years, there were at least
90 autos de fe of the Inquisition for the use of peyotl, and numerous autos
de fe involving teonanactl, the sacred mushrooms, [Wasson, R.G., 1980; The
Wonderous Mushroom: Mycolatry in Mesoamerica, Harcourt Brace Jovanovich, New York,
NY.], and obliuhqui, or morning glory seeds which, even more that peyotl or teonanacatl,
attracted the brutal torture and hideous executions of the Inquisition.
In modern America, the NAC is given an
exemption of peyote use by the Federal Government and 21 states; morning glory seeds are
sold openly, and grown by many home owners; and Petitioner sits in a prison cell where he
has been sentenced to 20 years for his religious sacrament - and its not even listed as
illegal. While it is not the torture of the Inquisition, neither is it Due Process
to be deprived of liberty without "fair notice."
The more modern practice of using the sacred
mushrooms as a sacrament to commune with the Divine is evidenced by the Canadian
recognized and chartered religious organization, The Fane of the Psilocybe Mushroom,
which Petitioner has been a member of since 1984. [See Affidavit of The Fane
in Appendix I], and the less formal Sacred Mushroom Church.
There are religions that use: Morning Glory and
Hawaiian Baby Woodrose seeds (both contain lysergic acid) [22, 23, 31, 32, 55, 57]; the
San Pedro cacti; and a variety of other legal plants, including mushrooms.
The issue before this Court is not whether these "substances of natural origin" should
be controlled. The question is one of Due Process; the failure to provide "fair
warning," and the lack of "minimal guidelines" that leads to the
"personal predilections" of law enforcement that should be spelled out in the
statute for persons of "ordinary and common intelligence" to be able to govern
their conduct accordingly. "If the statute requires expansion, that is the job
of Congress." Action on Smoking and Health v. Harris, 655 F.2d 236,
241 (D.C. Cir. 1980).
The unbridled powers that the Iowa Supreme
Court's interpretation of "material" confers, has lead to the selective
prosecution of Petitioner, for a "psilocybin" offense, when all he had were
mushrooms, and such an interpretation dances perilously close to the dangers argued herein
of a vague law's allowing "harsh and discriminatory enforcement by local officials
against particular groups deemed to merit their displeasure." Papachiristou,
405 U.S. at 170. Unlike the Spanish Inquisition in Mexico in 1620, the Constitution
of the United states respects individual freedom, and protects its citizens through its
safeguards.
When a statute opens the door to such
unrestrained power, as the Iowa Supreme court's interpretation of "material"
does, and threatens First Amendment rights, strict scrutiny of the statute is required:
In a facial challenge to the overbreadth and
vagueness of a law, a court's first task is to determine whether the enactment reaches a
substantial amount of constitutionally protected conduct.
Village of Hofmann Estates v. Flipside, 455 US. 489, 494 (1982); United
States v. Powell, 423 U.S. 87, 92 (1975). This is especially true when a
statute is facially preferential to a specific denomination, such as the Iowa Statute's
Peyote exemption for the NAC. See Larson v. Valente, 456 U.S. 228 (1982); Hernandez
v. CIR, 490 U.S. 680 (1989). [Establishment Clause questions require strict
scrutiny.]
In the Iowa Supreme Court's interpretation of
"material," the First Amendment rights of the Native American Church to use
Peyote are threatened. An overzealous prosecutor, who has personal predilections
against, say, all peyote religions, could use the dangerous precedent set by the Iowa
Supreme Court to impose his own beliefs against the NAC, thereby subverting the clear
intent of the legislature to allow the NAC to use peyote and persecute, by prosecution,
under the "mescaline" prohibition. The Petitioner has already been so
prosecuted for his cultivation of a non-specified, and hence legal, plant used as a
religious sacrament, under the "psilocybin" prohibition. Thus, the danger
is not only possible, but in Petitioner's case, actualized.
Due Process is violated without "fair
warning." But, more importantly, the "minimal guidelines" for
enforcement is left so unclear, so vague, that the Iowa Supreme Court's Opinion opens up
the door for abuses of many forms. It leaves to police, and the courts, what is the
providence of the legislature, who did not designate the mushrooms in this case as
prohibited. As this Court pointedly stated in Employment Div., Dept. of Human
Res. v. Smith, 494 U.S. 872, 890 (1990), (as to peyote exemptions being a legislative
responsibility):
It is therefore not surprising that a number of States have made an exception to their
drug laws for sacramental peyote use. (Statutes omitted) But to say that a
nondiscriminatory religious exemption is permitted, or even desirable is not to say that
it is constitutionally required, and that the appropriate occasion for its creation can be
discerned by the courts. It may fairly be said that leaving accommodation to the
political process will place at a relative disadvantage those religious practices that are
not widely engaged in; but that unavoidable consequence of democratic government must be
preferred to a system in which each conscience is a law unto itself or in which judges
weigh the social importance of all laws against the centrality of all religious beliefs.
While, as this Court stated, a peyote
exemption may even be "desirable," the ruling in Smith was that it
wasn't constitutionally required. But Due Process is constitutionally required.
Petitioner is not asking for an "exemption," as there is no law to be
"exempted" from in regards to his activities. Petitioner's convictions are
a violation of the Fifth and Fourteenth Amendment protections, with First Amendment
overtones.
CONCLUSION
For all the foregoing reasons,
the petition for writ of certiorari should be granted.
Dated: September 9, 1997
Respectfully submitted,
LEWIS J. ATLEY, Petitioner
#1074758-A
Anamosa State Penitentiary
406 North High Street
P.O. Box 10
Anamosa, Iowa 52205-0010
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