RICHARD MARVIN DAVIS
Los Angeles, CA (323) 658-8829
SUPERIOR COURT OF CALIFORNIA
IN AND FOR THE COUNTY OF LOS ANGELES, CENTRAL DISTRICT
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Petitioner vs. SANDRA SHEWRY, as Director of Health Services and BILL LOCKYER, as Attorney General, Respondents
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SECOND AMENDED PETITION FOR WRIT OF MANDATE TO STOP THE EFFECTIVENESS OF CALIFORNIA SENATE BILL 420 DATE: December 3, 2004 TIME: 9:30 a.m. DEPT: 85 JUDGE; Dzintra Janavs
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THIS SECOND AMENDED PETITION PETITIONS THE COURT FOR A WRIT OF MANDATE TO STOP THE EFFECTIVENESS OF CALIFORNIA SENATE BILL 420 AND TO DECLARE IT UNCONSTITUTIONAL ON ITS FACE AND FOR AN ORDER
In Accord with CCP 526 (a) (1), (2)
TO SHOW CAUSE DIRECTED TO RESPONDENT/DEFENDANTS TO PRODUCE AUTHORITY TO AMEND, CLARIFY, ALTER, IMPROVE OR OTHERWISE CHANGE INITIATIVE LAW OR THE COMPASSIONATE USE ACT OF 1996, NOW CA HEALTH & SAFETY CODE 11362.5, IN VIOLATION OF THE CALIFORNIA CONSTITUTION AND THE CONSTITUTION OF THE UNITED STATES OF AMERICA.
AFFIDAVIT
1. COMES NOW, Richard Marvin Davis (Petitioner) by Verified Affidavit to this court for a writ of mandate to stop the effectiveness of S.B. 420 and declare it unconstitutional on its face.
2. An injunction is requested against SANDRA SHEWRY, as Director of Health Services and BILL LOCKYER, as Attorney General, Respondents who are the proper parties in the writ of mandate for actions of unauthorized, unlawful, alterations of California Initiative Proposition 215, The Compassionate Use Act of 1996, now CA Health & Safety Code 11362.5; until resolution of this affidavit before this honorable court.
3. Petitioner alleges that the Respondents are in violation of due process of law, due to the fact that the alterations and amendments appearing in Senate Bill 420 were not voted into law by the People or the Initiative Process. Said acts or actions by Respondents to amend, change, clarify, or otherwise alter the Law as laid down by the Compassionate Use Act of 1996, Initiative Law, without authority to do so is clearly a misrepresentation of the scope of authority and duties outlined by the California Constitution, Article 2, Sec. 8, Sec. 10 (c), Article 4, Sec. 1, and therefore Senate Bill 420 (and subsequent attempts to amend S.B. 420, such as S.B. 1494) is on its face an unconstitutional attempt to amend initiative law without the approval of the electors (of which the Petitioner is one). This conduct by the Respondents violates clearly established constitutional rights of the Petitioner as a California Citizen to make laws and to vote amendments into effect (CA Constitution Article 2, Sec. 1, Sec. 8 (a), Sec. 10 (c); Article 4, Sec. 1, Sec. 8.5). Based on this constitutional rule (Art 2, Sec. 10 (c), California case law has steadfastly held that an unconstitutional amendment is “any change of the scope or effect of an existing statute, whether by addition, omission, or substitution of provisions…a statute which adds to or takes away from an existing statute is considered an amendment.” (Franchise Tax Board v. Kenneth Cory, 80 Cal. App. 3d 772, 776 (1978).
4. Petitioner alleges that the failure of the Respondents to mention in S.B. 420 the Compassionate Use Act of 1996 as Initiative Law is prima facie evidence of attempt of the Respondents to undermine the Initiative Process. This of course involves the fundamental right of the Petitioner and all California citizens to make laws and vote to amend Initiative Law under the California Constitution. After seven years of inaction on the Compassionate Use Act of 1996, the Respondents passed S. B. 420. Section (1) (e) of S.B. 420 asserts medical marijuana as a matter of states rights, by misquoting the Tenth Amendment of the U.S. Constitution. Section 1(e) reads: “The Legislature further finds and declares that it enacts this act pursuant to the powers reserved to the State of California and its people under the Tenth Amendment to the United States Constitution.”
5. This is clearly not the case in California. The Constitution of California is a limitation placed upon the powers of the State. California Constitution, Article 1, Declaration of Rights states: SEC. 26. The provisions of this Constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise.
6. The Ninth Amendment to the U.S. Constitution states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Tenth Amendment to the U.S. Constitution states: “The powers not delegated to
the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
7. Those powers not specifically enumerated in the U.S. Constitution are reserved to the states or the people. The California Constitution (Article 2, Section 1) states: “All political power is inherent in the people.” In the case of medical marijuana, this new right was created by the people a Tenth Amendment right of the people, and not by the state or government which “is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require.” The State Government of California is limited by Initiative Law. The people of California have asserted the right to medical marijuana in the Compassionate Use Act of 1996 initiative law. Medical marijuana is now a matter of individual rights and freedoms, protected by the Declaration of Rights in the California Constitution (Article 1, Section 1).
8. California Constitutional Initiative Laws are fundamental rights of the people, because they have important structural implications for the regulation of governmental power which other rights do not have, and can be categorized as political participation rights involving lawmaking and voting. (Arizona Review, Volume 15, p. 519 (1973). “The legislative power of this State is vested in the California Legislature which consists of the Senate and Assembly, but the people reserve to themselves the powers of initiative and referendum,” (CA Const. Article 4, Sec.1). The Respondents have violated Constitutional limitations on their lawmaking ability, separate from the content of the laws themselves.
9. By their actions in passing S.B. 420 without elector approval, this law is fatally flawed. It will subject the Petitioner and all citizens of the State of California suffering from illness and other Patients of Disabilities requiring “medical marijuana” to continued “unauthorized” enforcement actions by local police drug abatement units. It will subject Petitioner to continued deprivation of rights protected under state law, as well as subject the California Government to costly litigation in defense/protection of said rights under Federal Laws.
10. The failure of the California Government to act in accordance with its mandate to implement a safe and affordable plan for distribution has produced irreparable harm, harassment and injury to Petitioner, as well as the tens of thousands of other citizens of California claiming their rights to medical marijuana, by acts in violation of the law by local, state and federal law enforcement agencies over the past 7 years.
11. All State officials must uphold The Compassionate Use Act of 1996 regardless of whether or not it is said to conflict with federal law [Constitution of the State of California, Amendment III, Section 3.5(c).] Since no judicial challenge has been filed seeking to invalidate the law on the basis of a conflict with federal laws or regulations, or for any other reason, ALL California officials are legally obligated to uphold the Compassionate Use Act of 1996 [Constitution of the State of California, Article 3, Section 3.5(a, b, c)].
Dated this 28th Day of June, 2005
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RICHARD MARVIN DAVIS
825 N. La Jolla Ave.
Los Angeles, CA [90046]
Telephone: (323) 658-8829
In Propria Persona
FIRST CAUSE OF ACTION
12. That Petitioner is domiciled in the County of Los Angeles, in the Republic of California, and is a citizen of the Republic of California. Petitioner is an elector in the Republic of California and is one of the authors of the Compassionate Use Act of 1996 (Attachment 2). The Petitioner is both a patient and caregiver under said Act.
13. That the named Respondents are believed by the Petitioner to be residents of the State of California, and work for the State of California.
14. That the named Respondents by their attempts to enactment of S.B. 420, beyond the content of the bill itself, violated several of the rights guaranteed and protected by the California Constitution (Article 2, Sec. 1, Sec. 8, Sec. 10 (c); Article 4, Sec. 1.), by attempting to amend initiative law without authorization by the electors (of which the Petitioner is one), by violating the Petitioner’s right to make initiative law, to vote to amend initiative law, and to reserve to himself the powers of initiative law.
15. That the Compassionate Use Act of 1996 (now Health & Safety Code 11362.5), initiative law, makes no provision for amendment by Respondents as required by the California Constitution (Article 2, Sec. 10 (c)). California case law has steadfastly held that an unconstitutional amendment is “any change of the scope or effect of an existing statute, whether by addition, omission, or substitution of provisions…a statute which adds to or takes away from an existing statute is considered an amendment.” (Franchise Tax Board v. Kenneth Cory, 80 Cal. App. 3d 772, 776 (1978).
16. That Petitioner’s rights under initiative law to make laws and to vote to amend initiative law are fundamental rights because they have important structural implications for the regulation of governmental power (Goodpasture, Arizona Review, Vol. 15, p. 519, 1973), therefore the Respondents have a “…direct institutional interest” in obeying Constitutional Initiative Law which is a limitation placed upon the powers of the State. “Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument,” (Marbury v. Madison, 5 U.S. 137 (1803).
SECOND CAUSE OF ACTION
17. That the California Government has denied the Petitioner his rights to lawful due process and equal protection under the law. That the Respondents have utilized their powers and authority to undermine the due process and equal protection guaranteed by the United States Constitution. By misquoting the Tenth Amendment of the United States Constitution, the California Government attempted to grant powers to the State which have been specifically reserved by the people and Petitioner “The Legislature further finds and declares that it enacts this act [S.B. 420] pursuant to the powers reserved to the State of California and its people under the Tenth Amendment to the United States Constitution.”
18. Initiative Proposition 215, The Compassionate Use Act of 1996, which makes no provision for amendment, was enacted by the people, not the State of California; therefore any amendments to initiative law, by any other name, in any other statute, must be approved by the voters, the electors- the people. The Ninth Amendment to the U.S. Constitution states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Tenth Amendment to the U.S. Constitution states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
19. Plaintiff alleges that the failure of the California Government to mention in S.B. 420 the Compassionate Use Act of 1996 as Initiative Law is prima facie evidence of the willful attempt of the California Government to undermine the rights of the Petitioner and the Initiative Process.
THIRD CAUSE OF ACTION
20. That the failure of the Respondents to implement the Compassionate Use Act of 1996, and to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana, as encouraged by that act, has subjected the Petitioner to undergo unnecessary suffering due to its failure to implement the Act and said plan.
21. That the Respondents have failed to enforce provisions of the Compassionate Use Act of 1996 that “ensures that patients and their primary caregivers who obtain and use marijuana for medical purposes upon recommendation of a physician are not subject to criminal prosecution or sanction.”
PRAYER FOR RELIEF
1. Petitioner prays for a writ of mandate to stay the effectiveness of S.B. 420 into law as unconstitutional on its face.
2. For an order directing the California Government to show cause or authority to amend, clarify, modify, rephrase, or otherwise change Initiative Proposition 215, The Compassionate Use Act of 1996, and now CA Health & Safety Code 11362.5.
3. For an order and determination that the California Government has the authority to violate the California Constitution and the United States Constitution, and if no authority is found to find S.B. 420 on its face unconstitutional law, and to forward the writ of mandate to the California Appeals Court for a constitutionality ruling in accordance with the Constitution of the State of California, Amendment III, Section 3.5 (a).
4. For Investigation and determination to confirm the Ninth and Tenth Amendment rights of the people to assume by Initiative Law rights and powers not enumerated in the U.S. Constitution.
5. For Investigation and determination whether all laws relating to the plant Cannabis sativa (hemp, marijuana) conform to the rights Petitioner and all California citizens enjoy from the Declaration of Rights of the California Constitution. Due Process, the egregious violations of the present case, the safety of Cannabis medicines, the economic and environmental value of hemp for California, our inalienable rights to liberty, property, safety, happiness and privacy, all demand this Investigation and determination. The Petitioner asks the court to declare an end to prohibition in California as an unconstitutional prohibition of our inalienable rights under the Declaration of Rights in the California Constitution.
Respectfully submitted:
Dated this 29th Day of June, 2005
RICHARD MARVIN DAVIS
In Propria Persona
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TABLE OF AUTHORITIES
Cases:
Franchise Tax Board v. Kenneth Cory, 80 Cal. App. 3d 772, 776 (1978)
Haines v. Kerner, 404 U.S. at 520(1980)
Marbury v. Madison, 5 U.S. 137 (1803)
Codes; Statutes:
Codes
Code of Civil Procedure 526 (a) (1), (2)
Statutes
CA Health & Safety Code 11362.5; may be cited as The Compassionate Use Act of 1996.
CA Health & Safety Code 11362.7 to 11362.83 (Senate Bill 420)
Constitutions:
U.S. Constitution
Amendment IX
Amendment X
California Constitution
Article 1, Sec. 1
Article 2, Sec. 1
Article 2, Sec. 8
Article 2, Sec. 10 (c)
Article 3, Sec. 1
Article 3, Sec. 3.5
Article 4, Sec. 1
Article 4, Sec. 8.5
Article 4, Sec. 16 (a) (b)
Article 4, Sec. 22
Treatises:
Goodpasture, Arizona Review, Vol. 15, p. 519, (1973)