Richard Davis' reply to Prosecutor Flader's Response
to Constitutional Challenge
in the case of " STATE OF ARIZONA Vs. RICHARD M. DAVIS."
RICHARD M. DAVIS
Attorney pro per
11921 Kiowa Ave. #4
Los Angeles, CA 90049
Tel: (310) 442-9073
IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
IN AND FOR THE COUNTY OF MARICOPA
STATE OF ARIZONA,
NO. CR 96-92561
RICHARD MARVIN DAVIS,
REPLY TO STATE'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS BASED ON SECTION I, ARTICLE II, OF THE ARIZONA CONSTITUTION IN:
The Defendant Richard
M. Davis, Attorney pro per, hereby replies to the
State's response on his motion to dismiss based on Section I, Article II, of the Arizona
Constitution which reads:
"A frequent recurrence to the fundamental principles is essential to the security of individual rights and the perpetuity of free government."
The defendant placed his motion before an Arizona judge, based on the Arizona Constitution. The Federal Constitution is the supreme law of the land, including Arizona, and that law includes "... all treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
Article II, Section 32, of the Arizona Constitution states:
"The provisions of this Constitution are mandatory, unless by express words they are declared to be otherwise."
The State of Washington's Constitution contains an identical section (Article I, Section 32) to Arizona's Article II, Section I, quoted above. Three cases citing, "A frequent recurrence to the fundamental principles...", bear on the defendant's case:
1. The doctrine
of stare decisis should not result in outmoded 19th
century precedents being forced to resolve 20th century disputes automobiles should not
be governed by horse and buggy laws. Foote v. Grant, 55 Wn.2d 797, 806-7, 350 P.2d
2. Likewise, in
a case involving the "taking" of property by creating loud
jet noise in the airspace over it, the Supreme Court of Washington held:
The invention of the airplane and the development of modern air transportation...have occurred somewhat subsequently to the development of the legal concepts emphasized in formulating early common law theories of liability. An awareness of these changes makes it incumbent upon us to heed the advice of the framers of the Washington constitution when they said: "A frequent recurrence to fundamental principles is essential to the security of individual rights and the perpetuity of free government."
Ackerman v. Port of Seattle, 55 Wn.2d 400, 407, 348 P.2d 664 (1960).
In both of the above cases, the relation to the instant case
Times change, new information becomes known, and legal theories adequate in times past should be changed to do justice.
As a direct parallel, it is a fundamental principle that a drug prohibited sixty years ago for dubious reasons (1937 Marijuana Tax Act), should not remain prohibited after it is shown that it is beneficial both as a basic resource in farm production and as a
medicine, unique in its safety and ability to relieve suffering.
3. In a much more recent case, the Supreme Court (Washington State),
held that while massive, intrusive searches of apartment buildings may in fact enhance public safety, ...it is often when government is most eagerly pursuing what it perceives to be the public interest that it is most likely to sidestep constitutional
safeguards or to denigrate constitutional liberties. For precisely such reasons, our
constitution wisely counsels us:
A frequent recurrence to fundamental principles is essential to the
security of individual right and the perpetuity of free government...
We therefore cannot permit these warrants to be executed, regardless of Seattle's pressing (and undoubtedly laudable) desire to see its housing codes enforced.
City of Seattle v. McCready, 123 Wn.2d 260, 281, 868 P.2d 134 (1994).
This is precisely the case now before the Court. The government "is most eagerly pursuing what it perceives to be the public interest" in retaining a valuable therapeutic drug in a prohibited category, and in doing so is violating the fundamental rights of farmers to control farm production and of its citizens to be free of needless physical suffering.
It is a fundamental principle that irrational laws breed disrespect for the rule of law. It is irrational to prohibit, criminalize, and schedule as "most dangerous" a natural plant that has not one death from its consumption in 5,000 years of recorded Cannabis history. Despite the unwillingness of the government to even admit that prohibition exists and reaches its tentacles to many parts of the law, prohibition exists. And because prohibition has such an obvious impact on the defendant's fundamental liberty and pursuit of happiness, it must be repealed.
Article II, Section I, of the Arizona Constitution gives this Court jurisdiction to uphold the fundamental principles, thus securing the rights of the defendant as an individual to be free of all prohibitive Cannabis laws. Without Title 36 schedules, there would be no Title 13 laws, and without Title 13 laws, no Title 42 laws which brought the defendant to Arizona on December 1, 1995.
The State has adopted the reasoning and the conclusions contained in NORML V. Bell, 488 F. Supp. 123 (1980). In this case the court noted (p. 124, 7):
"The inclusion of marijuana as a controlled substance under the Controlled Substances Act is rational and does not violate equal protection, in view of the continuing debate as to whether marijuana has substantial detrimental effect."
NORML V. BELL, is one of a long series of lawsuits by NORML (National Organization for the Reform of Marijuana Laws) which culminated in the 1980 mandate in NORML V. DEA,
No. 79-1660, which led to the 1986 hearings on rescheduling and safety of marijuana as medicine.
In 1988, Administrative Law Judge Francis L Young of the Drug Enforcement Administration ruled on these issues in Marijuana Rescheduling Petition, Docket No:86-22, dated Sept. 6, 1988 (Attached copy is Exhibit A).
Judge Young ruled on the safety of Marijuana:
"The record shows the following facts to be uncontroverted...(3) The most obvious concern when dealing with drug safety is the possibility of lethal effects. Can the drug cause death? (4) Nearly all medicines have toxic, potentially lethal effects, but marijuana is not such a substance. There is no record in the extensive medical literature describing a proven, documented cannabis-induced fatality. (16) Marijuana, in its natural form, is one of the safest therapeutically active substances known to man. By any measure of rational analysis, marijuana can be safely used within a supervised routine of medical care."
Judge Young concluded:
"If marijuana should be placed in Schedule II, in obedience to the law,
then that is where marijuana should be placed, regardless of misinterpretation
of the placement by some...It would be unreasonable, arbitrary and capricious
for DEA; to continue to stand between those sufferers and the benefits
of this substance in light of the evidence in this record."
The DEA Administrator, did not obey the law and reschedule as required. To say as the State said in its response to the defendants motion to dismiss, that Title 36 of the Arizona revised codes, which mimic the federal law, are not relevant to this case is to miss the long struggle to correct the placing of marijuana in Schedule I. From NORML V. Bell, (p.125, Footnote 3.):
"On May 18, 1972, NORML filed an application with the Attorney General to remove marijuana from control under the CSA or, in the alternative, to reclassify the drug in a different schedule. This endeavor continues today. The Drug Enforcement Administration (DEA) twice rejected these efforts at reclassification, citing American treaty obligations under the Single Convention on Narcotic Drugs, opened for signature Mar. 30, 1961. 18 U.S.T. 1407. 30 TI. A.S. No. 6298, 520 U.N.T.S. 151 (Single Convention). The United States Court of Appeals for the District of Columbia Circuit reversed these determinations. NORML V. DEA, 182 U.S. App. D.C. 114, 559 F.2d 735 (D.C. Cir. 1977)."
"Under the Controlled Substances Act...under this definition, marijuana
is not a narcotic." (NORML V. Bell, p.127, footnote 11)...And
(footnote 15, p.129), "Marijuana is not physically addictive."
Marijuana, non-narcotic, non-addictive, and not fatal if consumed, is
not a dangerous drug. According to Justice Holmes, even a judge being
bound to declare the law must know or discover the facts that established
the law. (See, Prentis v. Atlantic Coast Line Co., 211 U.S.
The Marijuana Tax Act of 1937, illegally controlled farm production, was drafted in secrecy, illegally removed a medicine from the people by misrepresenting it with lies, exaggeration and racial prejudice. Even doctors and the hemp industry itself did not know marijuana was the same plant. Marijuana is a lie, a misrepresentation of a medicine that was used for almost one
hundred years -Cannabis.
The conclusion of the
State that the defendant has no constitutional right to sell or possess
marijuana for sale, is absolutely false. Freedom and equality demand that
the people have the right to control farm production. Farming implies
making a living, selling at market. The free market. This is a fundamental
principle and should not be burdened further by prohibitive drug laws,
especially given the safety of Cannabis sativa. Criminal penalties should
be abolished altogether and replaced by regulation if necessary.
The defendant, a farmer, has committed no crime and asks the Court to dismiss
the charges against him.
RESPECTFULLY SUBMITTED this day of July, 1997.
RICHARD M. DAVIS
Attorney pro per
COPIES of foregoing mailed this
day of July, 1997, to:
Clerk of the Court
222 East Javelina Drive
Mesa, Arizona 85210
The Honorable Brian Ishikawa
Judge of the Superior Court
222 East Javelina Drive
Mesa, Arizona 85210
Maricopa County Attorney's Office
222 East Javelina Drive Suite 200
Mesa, Arizona 85210
Attorney at Law
45 W. Jefferson, Suite 412
Phoenix, Arizona 85003
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