IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

________________________________________________________________________

BRYAN KRUMM CNP * Case No: CIV-08-1056 JB WDS

In propria persona, *
*
Plaintiff *
*
V *
*
MICHAEL B. MUKASEY, Attorney *
General of the United States, *
MICHELE LEONHART, Acting *
Administrator of the United States *
Drug Enforcement Administration, *
GREGORY J. FOURATT, United *
States Attorney for the District of *
New Mexico, and *
GARY KING, Attorney General *
for the State of New Mexico *
*
Defendants *
*

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

INTRODUCTION, JURISDICTION, AND VENUE

1. This is a suit by Bryan Krumm, a Certified Nurse Practitioner, seeking (1)

preliminary and permanent injunctive relief preventing Defendants from interfering with

the Lynn and Erin Compassionate Use Act NMSA § 26-2B-1 et.seq. (2007); (2) a

declaratory judgment that the Controlled Substances Act (CSA), 21 U.S.C. § 801-971, and

regulations promulgated pursuant to schedule I placement in the CSA, do not apply to

medical use of marijuana in the State of New Mexico; (3) such other injunctive and

declaratory relief as the Court deems appropriate; and (4) fees and costs as deemed

appropriate.

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 2. Petitioner brings this case pursuant to the Controlled Substances Act (CSA), 21

USCA § 801 et seq., which explicitly contemplates a role for the States in regulating

controlled substances, as evidenced by its preemption provision.

“No provision of this subchapter shall be construed as indicating an intent on

the part of the Congress to occupy the field in which that provision operates . . .
to the exclusion of any State law on the same subject matter which would
otherwise be within the authority of the State, unless there is a positive conflict
between that provision . . . and that State law so that the two cannot consistently
stand together.” §903.

3. This Court is authorized to grant declaratory relief by the Declaratory Judgment

Act, 28 U.S.C. §§ 2201–2202. This Court is authorized to grant preliminary and permanent

injunctive relief under Federal Rule of Civil Procedure 65 and federal common law.

4. This Court has jurisdiction under 28 U.S.C. § 1331 because the action arises

under the laws and Constitution of the United States. Venue is proper in this Court under

28 U.S.C. § 1391(e) because: (a) all Defendants are officers and employees of the United

States and its agencies and were at all relevant times acting in their official capacities and

under color of legal authority; (b) at least one Defendant officially resides in this district;

(c) the cause of action arose in this district; and (d) Plaintiff resides in this district, and no

real property is at issue.

5. The laws of New Mexico recognize the accepted medical use of marijuana and

allow for its use pursuant to the Lynn and Erin Compassionate Use Act NMSA § 26-2B-1

et.seq. (2007).

6. Defendants claim that federal law does not recognize the medical use of

marijuana and that any use is a violation of Federal law. Defendants continue to assert that

the CSA’s regulatory scheme and placement in Schedule I of the CSA, prohibits Plaintiff’s

medical use of marijuana, and threaten to prosecute anyone attempting to implement our

medical cannabis program.

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 7. The parties’ dispute regarding the applicability of the DEA regulations to the

State’s medical use of marijuana is a case or controversy within this Court’s jurisdiction.

Accordingly, in addition to a permanent injunction prohibiting Defendants from interfering

with the State’s practice of medicine, Plaintiff also seeks a declaratory judgment that

Defendants’ regulations, which were promulgated to bar doctors from using their

prescription-writing powers as a means to engage in illicit drug dealing and trafficking as

conventionally understood, do not apply to the legitimate medical use of marijuana, see

Gonzales V. Oregon, 546 U.S. 243 (2006)

8. The issues before this Court are: (1) whether the fact that New Mexico has

accepted the medical use of marijuana precludes the continued Schedule I placement of

marijuana in the Controlled Substances Act and (2) whether Defendants may lawfully

prevent implementation of the Lynn and Erin Compassionate Use Act by prohibiting the

solely intrastate production and distribution of marijuana to patients in the State’s medical

cannabis program.

PARTIES

9. Petitioner is Bryan A. Krumm, a Certified Nurse Practitioner and Director of

New Mexicans for Compassionate Use. I am an expert on the medical use of marijuana

and an author of the Lynn and Erin Compassionate Use Act, who wishes to use marijuana

to alleviate suffering and save lives of seriously ill New Mexicans. Petitioner was also

referred to the Lynn Pierson Therapeutic Research Program NMSA 26-2A-1 et seq. 1978,

by his primary care physician but because of the threat of serious legal repercussions he is

forbidden from using a safe/effective medication and instead is forced to use far more

dangerous drugs such as acetaminophen and ibuprofen to alleviate pain.

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 10. Defendant Michael B. Mukasey is the Attorney General of the United States.

He is sued in his official capacity only, in which capacity he is responsible for the

enforcement of the CSA. Pursuant to 28 U.S.C. § 1391(e), he may be served by certified

mail at the United States Department of Justice, 5111 Main Justice Building, 10th St. and

Constitution Ave. N.W., Washington, D.C.

11. Defendant Michele Leonhart is Acting Administrator of the United States

Drug Enforcement Administration. She is sued in her official capacity only, in which

capacity she is responsible for enforcing and administering the CSA and for promulgating

and enforcing the CSA’s regulatory scheme. Pursuant to 28 U.S.C. § 1391(e), she may be

served by certified mail at the DEA, 2401 Jefferson Davis Highway, Alexandria, VA

22301.

12. Defendant Gregory J. Fouratt is United States Attorney for the District of New

Mexico. He is sued in his official capacity only, in which capacity he is responsible for

prosecutions under the CSA in this District. His residence in his official capacity is U.S.

Attorney’s Office, 201 Third Street, NW, Suite 900, Albuquerque, NM 87102, where he

may be served with process.

13. Defendant Gary King is Attorney General for the State of New Mexico. He is

sued in his official capacity only, in which capacity he is responsible for prosecutions

under the State CSA. Furthermore, he has a duty to prosecute and defend all actions and

proceedings brought by or against any state officer or head of a state department, board or

commission, or any employee of the state in his official capacity NMSA 8-5-2 C, but has

refused to defend officers of the Department of Health against illegal intrusion into the

State’s medical cannabis program by the Federal Government (Exhibit 1). His residence in

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his official capacity is New Mexico Attorney General’s Office, 111 Lomas NW, Ste 300,

Albuquerque, NM 87102, where he may be served with process.

BACKGROUND

14. The laws of New Mexico recognize the accepted medical use of marijuana and

allow for its use pursuant to the Lynn and Erin Compassionate Use Act NMSA § 26-2B-1

et.seq. (2007).

15. The States, not the Federal government, have been given the authority to

regulate medical practice. In Gonzales V. Oregon, 546 U.S. 243, 269-270 (2006) the court

found “that Congress regulates medical practice insofar as it bars doctors from using their

prescription-writing powers as a means to engage in illicit drug dealing and trafficking as

conventionally understood. Beyond this, however, the statute manifests no intent to

regulate the practice of medicine generally. The silence is understandable given the

structure and limitations of federalism, which allow the States “ ‘great latitude under their

police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet

of all persons.’ ” Medtronic, Inc. v. Lohr, 518 U. S. 470, 475 (1996) (quoting Metropolitan

Life Ins. Co. v. Massachusetts, 471 U. S. 724, 756 (1985)).”

16. Defendants claim that it is unlawful for the State, or patients, to produce,

distribute, possess, and use marijuana for legitimate medical purposes. They have

threatened to prosecute state agents and patients under the CSA and take other actions to

prevent or otherwise interfere with implementation of the Lynn and Erin Compassionate

Use Act NMSA § 26-2B-1 et.seq.

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 17. On the basis of Defendants’ statements, and prosecutions in other States with

medical marijuana laws, Plaintiff reasonably believes that unless enjoined, Defendants will

prosecute State agents and patients if they produce, attempt to produce, possess, attempt to

possess, distribute, or attempt to distribute marijuana pursuant to state laws allowing for the

medical use of marijuana.

18. As alleged with more particularity below, Defendants’ threat to prosecute the

sick and suffering, as well as any State agents who attempt to provide medical care to them,

violates their equal protection right to have access to this life saving medication.

Defendants do not have any compelling interest in interfering with or preventing the

legitimate practice of medicine in New Mexico. In addition, banning the medical use of

marijuana is not the least restrictive means of furthering any of the compelling interests

Defendants may assert.

19. Unless the Court permanently enjoins Defendants from threatening to

prosecute or prosecuting State agents and patients, patients will have to choose to either (1)

abandon needed medical treatment or (2) continue medical treatment and risk prosecution

and imprisonment. Defendants’ threats and conduct substantially burden the ability of

patients to seek needed medical treatment and is in violation of the preemption provision of

the Controlled Substances Act (CSA), 21 USCA §903

ARGUMENT

20. The scheduling of marijuana under the Controlled Substances Act, 21 U.S.C.

§§ 801 et seq. (CSA hereafter), is unlawful because marijuana has “accepted medical use in

treatment in the United States”. Thirteen States now recognize accepted medical use of

marijuana. According to 21 U.S.C. § 812(b)(1) requirements for schedule I placement are

as follows:

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 (A) The drug or other substance has a high potential for abuse.

(B) The drug or other substance has no currently accepted medical use in treatment

in the United States.

(C) There is a lack of accepted safety for use of the drug or other substance under

medical supervision.

21. Marijuana does not meet criteria for placement in Schedule I of the Controlled

Substances Act NMSA § 30-31-1 et seq.

(1) Marijuana does not have the high potential for abuse required for placement in

Schedule I of the CSA. Although millions of Americans have used marijuana, it has

had little negative impact on the lives of the vast majority of users. THC, the

primary psychoactive ingredient in marijuana has been placed in schedule III of the

Controlled Substances Act. Thus, the THC in cannabis lacks the abuse potential for

placement in Schedules I or II.

(2) Marijuana has accepted medical use in treatment in the State of New Mexico and has

been proven to be safe for use in treatment under medical supervision. Four

individuals are currently supplied with marijuana for medical use by the Federal

government, Conant v. Walters, 309 F.3d 629, 648-

649 (9th Cir. 2002) (appendix -affidavits of the four legal users, George

McMahon, Barbara Douglass, Elvy

Musikka, and Irv Rosenfeld). A comprehensive study of legal medical marijuana

users found only mild changes in pulmonary function associated with long term

heavy use. No functionally significant attributable sequelae were noted in any

other physiological system examined in the study, which included: MRI scans of

the brain, pulmonary function tests, chest X-ray, neuropsychological tests,

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 hormone and immunological assays, electroencephalography, P300 testing, history,

and neurological clinical examination. (see Russo et.al. 2002, “Chronic Cannabis

Use in the Compassionate Investigational New Drug Program: An Examination of

Benefits and Adverse Effects of Legal Clinical Cannabis”),

(3) Furthermore, research conducted under the Lynn Pierson Therapeutic Research

Program by the NM Department of Health proved the safety and efficacy of smoked

marijuana in treating the nausea and vomiting associated with cancer chemotherapy

(see “Report of the Lynn Pierson Therapeutic Research Program, New Mexico State

Department of Health” 1984). The New Mexico Medical Society supports the

medical use of marijuana. (see letter to Senator Roman Maes from Allan Haynes,

January 21, 2002) and the New Mexico Nurses Association voted unanimously to

support the medical use of marijuana (see letter to Bryan A. Krumm from the New

Mexico Nurses Association dated July 28, 1997).

22. Plants are not typically scheduled in schedules more restrictive than the

psychoactive substances which are obtained from them. The coca plant, from which

cocaine is extracted, is in schedule II. The opium poppy, from which morphine is extracted,

is in schedule II. Both cocaine and morphine are in schedule II. Pure THC, the primary

psychoactive ingredient in marijuana, is listed as a Schedule III drug. Thus, the THC in

marijuana lacks the potential for abuse required for placement in Schedule I.

23. The United States Supreme Court has recently clarified the meaning and

scope of the Federal CSA in Gonzales v. Oregon, 56 U.S. 243 (2006). The power to

define medical practice is given to the states, and the federal authorities must defer to the

states' determinations on issues of medical practice. The DEA is not authorized to make a

rule declaring illegitimate a medical standard for care and treatment of patients that is

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specifically authorized under state law. Gonzales v. Oregon at 258. What constitutes

"legitimate" medical practice is not subject to interpretation by the DEA. Gonzales v.

Oregon at 260.

24. Gonzales V. Oregon, 546 U.S. 243, 270, 126 S.Ct. 904, 923, 163 L.Ed.2d

748, 775 (2006) notes that “the structure and operation of the CSA presume and rely upon

a functioning medical profession regulated under the States’ police powers.” The CSA

explicitly contemplates a role for the States in regulating controlled substances, as

evidenced by its preemption provision.

“No provision of this subchapter shall be construed as indicating an intent on the

part of the Congress to occupy the field in which that provision operates . . . to the
exclusion of any State law on the same subject matter which would otherwise be
within the authority of the State, unless there is a positive conflict between that
provision . . . and that State law so that the two cannot consistently stand together.”
§903.

25. "The Government, in the end, maintains that the prescription requirement

delegates to a single Executive officer the power to effect a radical shift of authority from

the States to the Federal Government to define general standards of medical practice in

every locality. The text and structure of the CSA show that Congress did not have this far

reaching intent to alter the federal-state balance and the congressional role in maintaining

it." Gonzales v. Oregon, 546 U.S. at 275.

26. The issue of who defines medical practice under 21 U.S.C. § 903 was not

considered in United States v. Oakland Cannabis Buyers Cooperative, 532 U.S. 483 (2001)

(OCBC hereafter). The only question presented to the Supreme Court was whether the

Federal CSA contains a "medical necessity defense". The Supreme Court declined to rule

on whether the prohibition of medical marijuana exceeded Congress’ Commerce Clause

powers. OCBC, 532 U.S. at 494 (“Because the Court of Appeals did not address these

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claims, we decline to do so in the first instance.”); OCBC, 532 U.S. at 495 ("Nor are we

passing today on a constitutional question, such as whether the Controlled Substances Act

exceeds Congress' power under the Commerce Clause."). OCBC, 532 U. S. 483 (2001) at

492, states the Attorney General can include a drug in schedule I only if the drug “has no

currently accepted medical use in treatment in the United States,” “has a high potential for

abuse,” and has “a lack of accepted safety for use . . . under medical supervision.” §§

812(b)(1)(A)–(C). Under the statute, the Attorney General could not put marijuana into

schedule I if marijuana had any accepted medical use, which it now has in 13 states.

27. The issue of who defines medical practice under 21 U.S.C. § 903 was not

considered in Gonzales v. Raich, 545 U.S. 1, 9 (2005): “The case is made difficult by

respondents' strong arguments that they will suffer irreparable harm because, despite a

congressional finding to the contrary, marijuana does have valid therapeutic purposes. The

question before us, however, is not whether it is wise to enforce the statute in these

circumstances; rather, it is whether Congress' power to regulate interstate markets for

medicinal substances encompasses the portions of those markets that are supplied with

drugs produced and consumed locally. Well-settled law controls our answer. The CSA is a

valid exercise of federal power, even as applied to the troubling facts of this case.

However, the Court also wrote: “We acknowledge that evidence proffered by respondents

in this case regarding the effective medical uses for marijuana, if found credible after trial,

would cast serious doubt on the accuracy of the findings that require marijuana to be listed

in Schedule I.”” Id. at 28 n37.

28. While the Government may have an interest in preventing drug abuse, there is

no legitimate basis to totally prohibit the medical use of marijuana. The fact that

substances which have clear potential for abuse, are available for medical use, indicates

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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 for medical purposes, especially in light of

serious and potentially lethal side effects associated with pharmaceuticals, which are not

attributable to marijuana.

29. For over 30 years, the Federal government has supplied marijuana to medical

patients and they currently supply 4 individuals with marijuana for medical use through the

Investigational New Drug Program (IND). Petitioner was a participant in Kiromiya v.

United States, 78 F.Supp.2d 367, 372 (E.D. Pa. 1999). In Kiromiya, the court found that

the fact that some individuals continued to receive marijuana after the termination of the

IND program as a whole does not constitute an equal protection violation. The government

emphasized that these individuals had relied on the government-supplied marijuana for

many years and that it did not wish to harm those individuals by abruptly cutting off their

supply. The government's efforts to persuade these patients and their doctors to utilize

alternative treatments is also consistent with its overall goal of limiting its role in

distributing marijuana. While there is obviously tension between the government's repeated

statements that marijuana has not been proven to provide any beneficial results and its

decision to continue supplying it to eight individuals for medical needs, the government has

argued that there is a difference between individuals who have used government-supplied

marijuana for many years, in some cases, and those who have not. Id at 372. The State of

New Mexico has a right and responsibility to provide the same level of care and protection

to its citizens, as is provided to patients in the IND.

30. 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

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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,

at pages 58-59)

31. Seriously ill New Mexicans continue to be denied a safe, effective and proven

medication. There are thousands of studies in peer reviewed medical and scientific

journals about the endocannabinoid system and the therapeutic potential of cannabinoids,

such as those found in marijuana. There is also a growing compendium of research

proving the safety and efficacy of inhaled marijuana. The failure of the DEA of to act in

the interest of the public, by keeping marijuana in an inappropriate schedule of the CSA,

denies due process and equal protection to patients who need this medication.

32. When Congress placed Marijuana in the Controlled Substances Act of 1970

(CSA), Congress expressed doubt about the need to control Marijuana as a controlled

substance in the CSA and said the placement was temporary. Congress established a

Presidential Commission to review the temporary placement and recommend final

placement. See the Legislative History of the CSA, H.R. Rep. No. 91-1444, October 10,

1970, 1970 USCCAN 4566, at pages 4578-4580.

33. The Commission on Marihuana, established by Congress in the CSA and

appointed for the very purpose of resolving Congress’ doubt about the placement of

marijuana in the CSA, found as a finding of fact that Marijuana is not a sufficient threat to

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public health and safety to justify arresting or prosecuting anyone for using Marijuana.

The First Report of the National Commission on Marihuana and Drug Abuse, at page 150

states, “marihuana use is not such a grave problem that individuals who smoke marihuana,

and possess it for that purpose, should be subject to criminal procedures.” See Public Law

91-513 - Oct. 27, 1970 [84 Stat. 1280-1281] Part F - Advisory Commission - Establishment

of Commission on Marihuana and Drug Abuse - SEC. 601. And see, H.R. Rep. No. 91-

1444, October 10, 1970, 1970 USCCAN 4566, at pages 4578-1580 (explaining the

uncertainty of Congress in placing marihuana in Schedule I of the CSA and the temporary

nature of this placement while the Commission worked on its report). At page 56-57, the

Commission wrote:

“A large amount of research has been performed in man and animals

regarding the immediate effect of marijuana on bodily processes. No
conclusive evidence exist of any physical damage, disturbances of bodily
processes or proven human fatalities attributable solely to even very high
doses of marijuana. Recently, animal studies demonstrated a relatively large
margin of safety between the psychoactive dose and the physical and
behavioral toxic and lethal dose. Such studies seem to indicate that safe
human study could be undertaken over a wide range of doses.”

34. Congress passed the CSA based on its authority under the Commerce Clause

of the Constitution. The Commerce Clause grants Congress the power to “regulate

Commerce with foreign Nations, and among the several States, and with the Indian

Tribes….” U.S. Const. art. I, § 8, cl. 3. The Petitioner argues that the Commerce Clause

cannot support the exercise of federal authority over petitioner’s request. The Supreme

Court expressly reserved this issue in its recent decision, United States v. Oakland

Cannabis Buyers' Cooperative, 532 U. S. 483, 495 (2001). (“Nor are we passing today on a

constitutional question, such as whether the Controlled Substances Act exceeds Congress’

power under the Commerce Clause.”).

35. “The very purpose of a Bill of Rights was to withdraw certain subjects from

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the vicissitudes of political controversy, to place them beyond the reach of majorities and

officials and to establish them as legal principles to be applied by the courts. One’s right to

life, liberty, and property, to free speech, a free press, freedom of worship and assembly,

and other fundamental rights may not be submitted to vote; they depend on the outcome of

no elections.” West Virginia State Board of Education v. Barnette, 319 U.S. 624, 638

(1943).

36. The Fourteenth Amendment of the U.S. Constitution states that the equal

protection of the law cannot be denied by the State to any person within its jurisdiction.

The federal government continues to supply four U.S. citizens with marijuana for medical

use but has refused to extend that protection to others, denying equal access to needed

medication.

37. The Fourteenth Amendment of the U.S. Constitution also provides 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 Government is interfering with

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the patient’s most basic decisions about bodily integrity by prohibiting needed medical

care.

38. 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) (aff'g Roe v. Wade, 410 U.S. 113 (1973), 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.

39. 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).

40. Once a determination is made that a liberty interest is at stake, the analysis

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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 therapeutic reasons, is

an undue burden on the right of medical decision making.

41. 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.

42. 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).

43. These decisions all flowed into the analysis of the right to privacy contained in

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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.

44. 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). Patients in New

Mexico have a right to make important medical decisions that affect their quality of life.

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)).

45. Total prohibition of marijuana places such totalitarian burdens on patients in

ordering their daily life. They are denied access to a needed medication. They face serious

legal and social consequences for actions which harm no one. They are robbed of their

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

policies clearly violate fundamental liberty interests.

46. 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

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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 ability of New Mexico citizens’ fundamental right to seek medical care while

four 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 Governmental

interest in denying patients access to needed medication.

47. 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).

48. The Federal Government 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. 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

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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. The rights which have been

violated create a "penumbra", representing a fundamental constitutional magnitude which

must be protected by the court.

49. 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.

50. Either marijuana has accepted use which precludes it’s placement in Schedule

I of the CSA, or it does not have accepted medical use which allows it remain in Schedule

I. Marijuana now has accepted medical use in 12 states. Because federal law defines

accepted medical use to be whatever the states say it is, and because the DEA's own

Administrative Law Judge has already determined that marijuana is safe for use under

medical supervision, the federal definition for a schedule I controlled substance, 21 U.S.C.

§ 812(b)(1)(A)-(C), no longer applies to marijuana and federal law must be amended to

reflect these changes. The DEA and Attorney general are in violation of the CSA by

keeping marijuana in Schedule I, in spite of its accepted medical use in 13 States. The

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DEA has exceeded its legal authority by asserting, without authority, that federal law

"takes precedence" over New Mexico law.

51. Because marijuana has “accepted medical use in treatment” in 12 states (“in

the United States”) the Drug Enforcement Administration must remove marijuana from

schedule I, 21 U.S.C. § 812(b)(1). For the purposes of this Petition, the petitioner does not

take any position on whether marijuana is properly scheduled in schedule 2, but reserves

the right to challenge any scheduling decision the Drug Enforcement Administration might

make is inconsistent with the scheduling criteria.

PRAYER FOR RELIEF

For the reasons set forth above, Plaintiff seeks the following relief: (1) appropriately

tailored preliminary and permanent injunctions forbidding Defendants and those in privity

with them, from again interfering State medical cannabis programs, including its

production, distribution, possession, and use; (2) a judgment declaring that the CSA’s

regulatory scheme does not allow marijuana to remain in Schedule I due to its current

accepted medical use by 13 States; (3) a judgment declaring that the constitutional

principle of equal protection of the law, protects the State’s right to produce, possess,

distribute, and use marijuana for medical purposes; (4) an order to the DEA to place

marijuana into an appropriate schedule of the CSA (5)attorneys’ fees and costs of litigation

pursuant to 42 U.S.C. § 1988(a); and (6) such other and further relief as the Court considers

appropriate.

Respectfully submitted this 12’th day of November 2008.

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Bryan Krumm CNP

733 Monroe NE

Albuquerque, NM 87110

(505) 286-1325

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