IN THE STATE OF WISCONSIN CIRCUIT COURT

SAWYER COUNTY

________________________________________________________

STATE OF WISCONSIN, United States et al.                                                                                                                                                                                                   

            Plaintiff/Respondent/Defendant                             

                                                               Case No.  2009CF000048

Vs.                                                         Petition for Declaratory Judgment

                                                               Under  § Wis. 806.04

KENNETH LEROY DRIESSEN

           Defendant/Petitioner

____________________________________________________________

             This Motion Challenges the Constitutionality of Wisconsin Statutes

 § 961.41(3g)(e) and §961.573(1), seeking relief in the form of an order dismissing those current counts of this complaint, it also seeks protection from prosecution for violation of those Wisconsin Statutes and provisions of Federal Code 21 USC 844 concerning simple possession of small amounts of marijuana also known as Cannabis for personal use.

____________________________________________________________

INTRODUCTION

     Kenneth Driessen, Defendant/Petitioner named in the Case, so numbered above, claims that his Wisconsin Constitutional rights to life, liberty and the pursuit of happiness, under Article I, Section 1 are violated by criminal sanctions relating to his personal possession and use of Marijuana, also know as Cannabis, THC and other Cannabanoids. His rights to his personal control of his mind and body are also protected under the US Constitution's 1st Amendment because the moral grounds for criminal prohibition of such personal choice to use  natural intoxicants are religious and ideological in nature. Marijuana prohibition enforced by criminal sanction is also a violation of Driessen's US Constitution 14th Amendment rights because it cannot be show that his personal life, liberty or property (here stated that marijuana is property), is a danger or any perceived violation of another's rights merely through personal use or possession.  Driessen seeks a Wisconsin Circuit Court order for the dismissal of Counts 1 and 4 of the Criminal complaint 2009CF48 do to the fact that those counts are based on unconstitutional statutes for reasons briefly and clearly explained in the Statement of Facts and Claims and Causes of Action sections of this motion. Driessen additionally requests this Court to issue a preliminary injunction to restrain state and federal agents from arresting, prosecuting or citing Driessen for any violation pertaining to his personal, religious use and/or medicinal use and possession of marijuana until such laws be repealed or modified to accommodate his rights as clearly defined within this motion for Declaratory Judgement.  A reasonable probability of success on the merits of his claim exists Winter v. NRDC, Inc[i].

PARTIES

     Defendant/Petitioner Driessen is the soul petitioner accused in this complaint; the enjoining of additional petitioner parties to this petition depends on which issues and arguments the Judge agrees to be sufficient to grant the petition. Religious basis to a defense from marijuana criminal sanctions has the strongest in case precedence. Medicinal exemption is the strongest in moral principle for declaring immunity from marijuana criminal sanctions. Doing away with marijuana criminalization, replacing it with a regulation and taxation scheme to allow personal recreational use is most logical solution due to arbitrary nature and irrationality of the law.

     Respondent/Defendant/Plaintiff's are any person under the color of Wisconsin law or otherwise who would use unconstitutional statutes or codes to confiscate or steal the petitioner's property, restrain, arrest or jail him within the state of Wisconsin for observing and practicing his guaranteed rights.  Federal government agents should be enjoined because they also operate business of criminally sanctioning marijuana possession here within this state and district so obviously contrary to the Wisconsin and US Constitution Articles and Amendments mentioned.

JURISDICTION AND VENUE

      Wisconsin Constitution Article VII Section 8 Circuit court: jurisdiction; except as otherwise provided by law, the circuit court shall have original jurisdiction in all matters civil and criminal within this state and such appellate jurisdiction in the circuit as the legislature may prescribe by law. The circuit court may issue all writs necessary in aid of its jurisdiction.

      Although a substitution of judge was requested and granted, the Case/Complaint venue is where the Plaintiff (state) does it's business and within the district of Defendant Driessen's residence so under Wisc.Article 3 sections 1-3 and the 6th Amendment of the US Constitution the Sawyer County Circuit Court is the proper Venue and Jurisdiction. Furthermore the US 6th amendment asserts the state has original jurisdiction in criminal matters. Therefore since Federal marijuana laws show intentions to depriving Driessen of his Constitutional rights as defined in this Petition, there is no other venue to begin a claim such as this, also to protect Driessen from any notion the DA may have to turn the case over to the Federal government for prosecution under its code or statutes. Therefore injunctive relief enjoining the federal government's agents is necessary.  Since there were no laws concerning the criminality of the possession of any intoxicating substance in 1849, marijuana was legal under common law at that time, being another indication that this cause may be heard by this Court, see: Village Food & Liquor Mart v. H & S Petroleum[ii]

STATEMENT OF FACTS

Driessen's first use of marijuana: The first time I tried marijuana, the summer of 1970,  I had already been drinking alcohol that night. To me it looked like tea that you would drink. I did not notice any effect from it, which I now believe, was due to ingestion of alcohol. Later I thought it might have been tea so I tried to smoke tea and it was nearly impossible to smoke compared to what I smoked that summer night in 1970.  The first time I experienced marijuana by itself I was 16 going on 17, I was all but over come by thought and emotion. I was afraid I might never be the same as I was before I had tried it. It was thrilling and anxiety gave way to a creative thought pattern. I did come down from it and slept that night; within a few days I wanted to try it again. Within recent years I have found that, at that time there were no valid laws criminally sanctioning marijuana possession, even concerning minors, because at that time the Supreme Court found the laws criminalizing the use and possession to be unconstitutional, see: LEARY v. UNITED STATES, 395 U.S. 6 (1969) 395 U.S. 6 and the Controlled Subsance Act (Oct. 27, 1970)

Religious/Spiritual/Shamanistic Use: During and since my first experience with marijuana I have contemplated the social and physical realities of being human. I have chosen to study religious metaphysical and moralistic teachings in an eclectic manner. While I attend family and traditional religious ceremonies from time to time, I make it clear to the few who ask that I believe in the teaching of Jesus concerning treating others as you wish to be treated but I do not believe in god; nature is my higher power.  If I did profess to include even a slight belief in the Abrahamic God and choose to make use of marijuana, such a belief would also entitle me to be free from religious persecution because Genesis 1:29 of the Bible states that: "And God said, Behold, I have given you every herb bearing seed, which is upon the face of all the earth, and every tree, in the which is the fruit of a tree yielding seed; to you it shall be for meat", marijuana is a herb bearing seed.

      I combine religious studies with philosophy of life study adapting humanistic and naturalistic views of life and prefer worshipping life with persons who hold similar views.  Being that marijuana use is an integral part of our worship I cannot divulge with whom and where I worship for fear they too will be persecuted. Most members of our group have come to a personal conclusion that 'god' was invented by men and that belief is as central to our beliefs as use of the natural herb marijuana (cannabis) as we worship nature.

     We believe, combining old spiritual moralistic notions with new, gives way to faith necessary for the health, well-being and survival of our species. The old ways enlighten us to the mythical yet very real goal the majority of all humans share; a desire of some sort of eternal everlasting connection. While there are many teachers of spiritual evolution, scientific naturalism and humanism, for me Albert Einstein sticks out because, the speed of light, theory of relativity and the unsolved unified field theory clearly show that an eternal alpha omega connection is possible for us to achieve if we are to act even as a loosely united species.  In other words to continue worshipping deities that separate us into tribal, denominational and nationalistic factions who fight and kill each other for land and control will lead to our extinction.

     Once the realization that a collective cooperative effort is the only way to achieve our goals of health, well-being and longevity on a species and planetary scale is revealed; the next level of true understanding can someday take us to an existence beyond the limitations of the physical realm. Yes, the speed of light and relativity signify real barriers that we shall overcome. The yet to be solved, the unified field theory appears to be real meaning that a nanosecond within a nanoliter is connected to the singular eternity just as every human is one with all.

      Whether or not a judge determines marijuana is or is not a necessity to my religious contemplation or spiritual path, a path which has lead me to establishing and concluding religious notions described above; marijuana is a natural plant that Driessen has used and that use along with association with other users who feel they also have right to ingest plants that are said to have intoxicating and psychoactive effects for spiritual/religious purpose cannot be denied.  There is nothing in the constitution stating that such marijuana intoxication or liberalization in itself is morally unacceptable therefore I intend to retain such right through this petition for declaratory judgment and relief in accordance with the US Constitution Article 6 and Amendment 9.    

     I don't think anybody has ever described such a goal orientated all-inclusive description of life as to predict our ability to achieve an eternal connection through a group species effort before. I'm saying that I would not have arrived at those religiously held conclusions without times spent in an alternative state of mind I get through use of marijuana.

Personal Medicinal Experience: During the mid 1990s I went through a divorce and like any individual involved in such proceedings I was quite upset by it all. I became depressed; several people and then counselors said that my problems were caused by abuse of marijuana and alcohol. Trying abstinence seemed to make matters worse for me and I ended up on pharmaceutical drugs, which supposedly would remove the depression but also deadened my libido and love for life. I spent many months wishing I would die and did receive shock treatments. I eventually weaned myself off of a regiment of such drugs and went back to alcohol and marijuana doing quite fine other than being criminally charged for marijuana possession several times since then.

     In February of 2007 while moving a couch I hurt my back. The doctor said the injury was only muscular. It hurt when I breathed and the doctor told me I had torn my diaphragm muscles, it hurt in the groin area and he said I had torn those muscles, I also felt pain in my lower back and he said I had also torn muscles there.  Before this injury I had never thought of marijuana as a pain reliever considering its affects to be psychological. The pain was considerably less when I did use marijuana and many studies do indicate that ingredients in marijuana have analgesic properties.  

Personal Recreational Experience: None of the six times I have been arrested and charged with marijuana possession since my first experience in 1970 have I ever considered the mere possession and use of marijuana a crime or anything against moral standards I was raised and schooled with. I graduated from Hayward High School in 1974 61st out of 130 with about a 2.3 gpa. I attended Mount Scenario College and in 1984 I had a 2.43 gpa.  Attending Michigan Technological University in 1988, I achieved a 2.95 gpa overall and a 3.50 gpa in the Mechanical Design Engineering Technology Department. I smoked marijuana regularly during those years and realized it's potential to encourage creative thought and to discourage or slightly impair mathematical right brain thought.  I was able to use marijuana to relax, ponder and utilize it for creative, spiritual thought and abstain from it for rudimentary and higher critical right brain tasks or activities. While certain people become angry when they reach a certain state of alcohol intoxication and such a state does not seem to be completely counteracted by the addition of marijuana use, I have never been physically or violently attacked by any person who I knew to be under the influence of marijuana. 

Facts about Popular Historical Use of Marijuana and Intoxicants:

Psychopharmacologist Ronald K. Siegel Ph. D. draws on 20 years of groundbreaking research to provide countless examples of the intoxication urge in humans and animals. Presenting his conclusions on the biological and cultural reasons for the pursuit of intoxication, Siegel offers recommendations for curbing the negative effects of drug use in Western culture by designing safe intoxicants. Siegel refers to intoxication as the "fourth drive," arguing that the human instinct to seek mind-altering substances has so much force and persistence that it functions like the human desire to satisfy hunger, thirst and the need for shelter … is a natural part of our biology[iii]

      The discovery of late Stone Age beer jugs has established the fact that purposely fermented beverages existed at least as early as c. 10,000 BC. It has been suggested that beer may have preceded bread as a staple[iv].  Evidence of the inhalation of cannabis smoke can be found as far back as the 3rd millennium B.C., as indicated by charred cannabis seeds found in a ritual brazier at an ancient burial site in present day Romania[v].  In 2003, a leather basket filled with cannabis leaf fragments and seeds was found next to a 2,500- to 2,800-year-old mummified shaman in the northwestern Xinjiang Uygur Autonomous Region of China. "Lab work to identify 2,800-year-old mummy of shaman"[vi]. By the way the researchers say he was a blue-eyed fair complexion person. 

     Intoxication is the state of being affected by one or more psychoactive drugs.

More than once in human history, certain segments of society, more or less the ruling class, would try to limit use of intoxicants out of demands for loyalty and attempts to increase productivity of slaves and the working class.  Also some groups of persons within republically organized nations believed that they had or have a right to be free from the affects and actions of other persons while under the influence of intoxicants namely alcohol. This allegation of certain people's rights over others became the temperance movement that lead to passing of the 18th Amendment known as prohibition. Prohibition lead to criminals controlling the supply of the criminalized yet commonly used substance ethanol in spite of such a law.  This eventually led to the passing to the 21st amendment repealing the 18th.  Since the passing of the 21st Amendment there is no constitutional basis for criminalizing possession and use of substances known as intoxicants, intoxicating being synonymous with psychoactive. 

     In part marijuana prohibition, as well as the prohibition of many psychoactive natural plants shortly after the repeal of alcohol prohibition was undoubtedly created to keep the police state agents of alcohol prohibition employed. Prejudice against African and Latin Americans is also a certain factor involved in prohibition. At any rate the following government studies illustrate that prohibition was not instigated under honest rational open-minded fair pretenses and a great deal of propaganda and undemocratic influence was used to get legislators to pass prohibitive criminally sanctionable drug laws. The following studies confirm the truthfulness of the folly which marijuana prohibition is:     

La Guardia Committee Report 1938 to 1944

"… From the study as a whole, it is concluded that marihuana is not a drug of addiction, comparable to morphine, and that if tolerance is acquired, this is of a very limited degree. Furthermore, those who have been smoking marihuana for a period of years showed no mental or physical deterioration which may be attributed to the drug.” – Fiorello La Guardia, 1944[vii]

Shafer Commission (Nixon Blue Ribbon Report) 1972

The Commission recommended decriminalization of simple possession, finding: "The criminal law is too harsh a tool to apply to personal possession even in the effort to discourage use. It implies an overwhelming indictment of the behavior which we believe is not appropriate. The actual and potential harm of use of the drug is not great enough to justify intrusion by the criminal law into private behavior, a step which our society takes only 'with the greatest reluctance." The Commission also recommended that the distinctions between licit and illicit drugs be dropped, finding that "the use of drugs for pleasure or other non-medical purposes is not inherently irresponsible; alcohol is widely used as an acceptable part of social activities"[viii].

     Marijuana prohibition has since become a phenomenon of hypocrisy, sadistic  lunacy and a travesty of justice due to the unwarranted criminality of such a popularity activity. How can an activity tried by almost half of the adults in North America be a crime in a republic purporting democratic tendencies? The popular use of marijuana has exceeded a threshold where prohibitionist factions can no longer legitimately claim the compelling interest of criminal sanctioned prohibition. They can no longer defend an arbitrary vague unconstitutional law.   

     UN WHO data for the United States for the years  2002-3 and persons over age  18, once or more life time use of Cannabis/Marijuana is at 42.4%  "Toward a Global View of Alcohol, Tobacco, Cannabis, and Cocaine Use: Findings from the WHO World Mental Health Surveys". July 2008, Volume 5, Issue 7, e141. PLoS Medicine (Public Library of Science). Full article: See Table 1 for the survey dates, and participant ages. See Table 2 for the percentages of use[ix].

Marijuana is the Nation's most commonly used illicit drug. More than 94 million Americans (40 percent) age 12 and older have tried marijuana at least once, according to the 2003 National Survey on Drug Use and Health (NSDUH)[x]

Despite 70+ years of criminal prohibition, marijuana still remains widely popular among Americans, with over 102 million Americans (41 percent of the U.S. population) having used it during their lifetimes, 26 million (10 percent) having used it in the past year, and over 15 million (6 percent) admitting that they use it regularly. (By contrast, fewer than 15 percent of adults have ever tried cocaine, the second most ‘popular’ illicit drug, and fewer than 2 percent have ever tried heroin — so much for that supposed ‘gateway effect.’) Predictably, all of the 2008 marijuana use figures are higher than those that were reported for the previous year — great work John Walters![xi]

With the time and effort I have spent publishing and submitting this document to the Court I mean to show respect and honor to our judicial system. By expressing the truth and how utterly police state fascist, unproductive, unjust and unachievable marijuana prohibition is I don't think an honorable individual professional jurist should take personal offence in my words.  Least they do, the fact remains a law of criminal sanctions arresting only about 800,000 individuals annually for doing what about 25 million do annually makes about as much sense as catching one out of every 30 murderers and letting the rest go, marijuana prohibition is simply undeniably unconstitutionally vague and ambiguous. 

Marijuana Medicinal Use Facts: On September 6, 1988, Administrative Judge Francis Young wrote the following:

     The administrative law judge recommends that the Administrator conclude that the marijuana plant considered as a whole has a currently accepted medical use in treatment in the United States, that there is no lack of accepted safety for use of it under medical supervision and that it may lawfully be transferred from Schedule I to Schedule II.  The judge recommends that the Administrator transfer marijuana from Schedule I to Schedule II.[xii]

Yet to this very day the DOE and the ONDCP maintain that marijuana has no medical use, and then also contrary to their statements,  the US holds a patent on marijuana's cannabinoids that clearly demonstrates medicinal use, see:

United States Patent  6,630,507; Hampson , et al.  October 7, 2003; Cannabinoids as antioxidants and neuroprotectants: Cannabinoids have been found to have antioxidant properties, unrelated to NMDA receptor antagonism. This new found property makes cannabinoids useful in the treatment and prophylaxis of wide variety of oxidation associated diseases, such as ischemic, age-related, inflammatory and autoimmune diseases. The cannabinoids are found to have particular application as neuroprotectants, for example in limiting neurological damage following ischemic insults, such as stroke and trauma, or in the treatment of neurodegenerative diseases, such as Alzheimer's disease, Parkinson's disease and HIV dementia. Nonpsychoactive cannabinoids, such as cannabidoil, are particularly advantageous to use because they avoid toxicity that is encountered with psychoactive cannabinoids at high doses useful in the method of the present invention. A particular disclosed class of cannabinoids useful as neuroprotective antioxidants is formula (I) wherein the R group is independently selected from the group consisting of H, CH.sub.3, and COCH.sub.3. ##STR1##

Assignee: The United States of America as represented by the Department of Health and Human Services (Washington, DC)[xiii]

Marijuana Compound May Fight Lung Cancer Apr 17, 2007:

Harvard University researchers have found that, in both laboratory and mouse studies, delta-tetrahydrocannabinol (THC) cuts tumor growth in half in common lung cancer while impeding the cancer’s ability to spread. The compound “seems to have a suppressive effect on certain lines of cancer cells,” explained Dr. Len Horovitz, a pulmonary specialist at Lenox Hill Hospital in New York City.  According to the researchers, THC fights lung cancer by curbing epidermal growth factor (EGF), a molecule that promotes the growth and spread of particularly aggressive non-small cell lung cancers. “It seems to go to (EGF) receptor sites on cells and inhibit growth,” said Horovitz, who was not involved in the study. The findings were to be presented this week at the annual meeting of the American Association for Cancer Research (AACR) in Los Angeles. Lung cancer is the number one cancer killer in the world. Lung tumors that over-produce the EGF receptor tend to be extra-aggressive and don’t respond well to chemotherapy. In the new study, the researchers first showed that two different lung cancer lines, as well as samples from patient lung tumors, produced the cannabinoid receptors CB1 and CB2. Endocannabinoids — cannabinoids produced naturally in the body — are thought to have an effect on pain, anxiety and inflammation when they bind to cannabinoid receptors. Next, the researchers injected standard doses of THC into mice implanted with human lung cancer cells. After three weeks of treatment, tumors shrank by about 50 percent in animals treated with THC, compared to those in an untreated control group, the researchers reported…“I find it fascinating, wondering if the reasons we’re not seeing this spike is that THC inhibits lung cancer cells,” he said. “It would be very ironic, although you certainly wouldn’t tell somebody who smoked cigarettes to add marijuana[xiv].”

     Beyond ameliorating the side-effects of chemotherapy, research also suggests that marijuana may play a role in killing cancer cells.  Recent journal articles have discussed how the chemicals in marijuana (i.e. delta9-THC) suppress or inhibit the growth of a variety of cancer cells invitro including breast cancers cells, brain cancer (glioblastoma cells), and leukemia cells.  See for example: Brain ­ Cannabinoids selectively inhibit proliferation and induce death of cultured human glioblastoma multiforme cells. Leukemia ­ Targeting cannabinoid receptors to treat leukemia: role of cross-talk between extrinsic and intrinsic pathways in Delta9-tetrahydrocannabinol (THC)-induced apoptosis of Jurkat cells.   In fact, the knowledge that cannabinoids suppress Lewis lung carcinoma cell growth has been known for 30 years[xv].

   Rather than the threat to health and safety claimed with millions of tax payer dollars spent on propaganda commercials with egg in a pan frying like your brain on pot; this petitioner has every reason to believe that marijuana used responsibly is actually a healthy, medicinally useful, natural herb and prohibiting him from using it is a danger to his health and well-being within the realm of a necessity defense and meets the test of crewel and unusual if his use were to be prohibited and was to be incarcerated as a result of his  refusal to comply with marijuana possession laws as they now exist, see Helling v. McKinney[xvi].  

What is behind prohibition?:  Certain individual's moral distaste for the altering of ones mind through the use of natural and artificial substances is not a constitutionally valid reason to implementation of criminal sacntions. Each year over 60% more people die in motor vehicle accidents where no alcohol or drugs are involved then those who parish while under the influence of one or more drugs. I'm not arguing about the validity of DUI laws, which I too believe are valid. I am arguing that total abstinence through criminal sanction has not been constitutional since prohibition of intoxicating liqueurs was repealed.

      I feel there is something more than rational honest concern, then the service and protection of the public at large at play here, when considering the logic behind the criminalization of the effects of marijuana which are certainly to be considered intoxicating.  It could very well be that basic survival of the fittest instinctive traits are subconsciously used to belittle others for behavior that has been part of human history at least as long as it has been recorded.  In fact many individuals who climb the socio-economic ladder to occupy positions of power and wealth have used marijuana themselves yet hypocritically preach abstinence and support prohibition through criminal sanctions including incarceration of simple possessors and users of intoxicants, in this case marijuana.  Natural tendency for hierarchy and domination is hypocritical because use of intoxicants crosses political, social, economic status lines.  It is therefore rational to think that alpha dog wolf pack and bull elk like deeply imbedded mammalian survival techniques are responsible for continued prohibition of marijuana rather than sound compelling interests within a constitutional republic that values democratic principles.  Consider the following short list of our leaders:

Al Gore, John Edwards, John Kerry, Howard Dean, George W. Bush, Bill Bradley, Clarence Thomas:  Justice Thomas, nominated by President Bush in 1991 to replace Justice Thurgood Marshall, James P. Moran, Susan Molinari, Newt Gingrich, Connie Mack, Lincoln Chafee, Gary Johnson, George Pataki, Mary Donohue, Dick Lamm, Bruce Babbitt, Mike McCurry, Arnold Schwarzenegger, Mike Bloomberg, and Norm Coleman are a few people who tried marijuana and yet won't stand up against prohibition if it's use through criminal sanctions.

How many of these people listed above would continue supporting marijuana prohibition if their constituents were aware of the dubious deceptive propagandist nature through which it came about in the first place?

"There are 100,000 total marijuana smokers in the US, and most are Negroes, Hispanics, Filipinos and entertainers. Their Satanic music, jazz and swing, result from marijuana usage. This marijuana causes white women to seek sexual relations with Negroes, entertainers and any others." -Harry J. Anslinger, testimony to Congress, 1937

    Least restrictive means is to the regulation of marijuana is to regulate it rather than criminalize simple use and possession. The interest of the health and safety of our citizens can be better served through educating the people as to the responsibility and accurate science of the use of intoxicants.  On the other hand, driving and operating dangerous equipment requiring full mental capacity to react quickly and safely is a situation that does justify non-use and criminal sanctions for drug use under those circumstances are valid. Such laws are certainly constitutional and are already in place making simple possession laws redundant and over restrictive.  In fact there is legislation proposed by a small group of representatives who agree this Petitioner's prayer for relief should be granted to all. Chances are, the monetary strength of law enforcement and other groups with a vested interest in continuing prohibition will again overpower rationality with ideologue unless directed toward constitutionality by the Judicial Branch of our government, See:

H.R. 2943: Personal Use of Marijuana by Responsible Adults Act of 2009

This is an excerpt from the text of the bill (status: Introduced in House). Notwithstanding any other provision of law, no penalty may be imposed under an Act of Congress for the possession of marijuana for personal use, or for the not-for-profit transfer between adults of marijuana for personal use. For the purposes of this section, possession of 100 grams or less of marijuana shall be presumed to be for personal use, as shall the not-for-profit transfer of one ounce or less of marijuana, except that the civil penalty provided in section 405 of the Controlled Substances Act may be imposed for the public use of marijuana if the amount of the penalty does not exceed $100.

   Certain lobbies being a subclass of society consisting of individuals like police officers, legal professionals, and treatment counselors who stress zero tolerance policies are making a living off of prohibition and therefore have a vested prejudicial interest. Judge a large portion the populous criminal and reap the unconstitutional spoils of the drug war. Regardless of perceived popularity of judicial and political peers; being sworn into office through a mandatory oath to defend the constitution, once this information, demonstrating the unconstitutional status of the marijuana prohibition is brought before a judge, he has very little choice as to whether or not he abides by the Constitution or succumbs to the gratuitous ideology of those peers who may disagree with an order of declaratory relief from marijuana possession laws which appear unconstitutional on their face.   

CLAIMS AND CAUSES OF ACTION

Religious use case law:  Other eclectic and shamanistic forms of spirituality similar to Driessen's such as Secular Humanism and Pagan Nature worship have been determined to be valid religions within the meaning of the 1st amendment by the courts, see: Torcaso v. Watkins (367 U.S. 488), "free exercise" grounds Abington v. Schempp, 374 U.S. 203, 264-65 (1962).  Among religions in this country which do not teach what would generally be considered a belief in the existence of God are Buddhism, Taoism, Ethical Culture, Secular Humanism, and others. See Fellowship of Humanity v. County of Alameda, 153 Cal. App. 2d 673, 315 P.2d 394.

In Washington Ethical Society v. District of Columbia, 101 U.S. App. D.C. 371, 249 F.2d 127(1957);The Court Stated, The sole issue raised is whether petitioner falls within the definition of a "church" or a "religious society" . . . . The taxing authority urges denial of the tax exemption asserting petitioner is not a religious society or church and that it does not use its buildings for religious worship since "religious" and "worship" require a belief in and teaching of a Supreme Being who controls the universe. The position of the tax Court, in denying tax exemption, was that belief in and teaching of the existence of a Divinity is essential to qualify under the statute. . . . To construe exemptions so strictly that unorthodox or minority forms of worship would be denied the exemption benefits granted to those conforming to the majority beliefs might well raise constitutional issues . . . . We hold on this record and under the controlling statutory language petitioner qualifies as "a religious corporation or society" .

Although Driessen believes it is not necessary to provide more detail to the explanation of one's religious beliefs than Driessen has already provided to prove he is religious within the 1st Amendment, Driessen is familiar with the United States v. Meyers, 95 F.3d 1475, 1489 (10th Cir. 1996) . He is prepared to verbally answer questions posed concerning establishing a threshold though which a determination as to whether a belief is religious or not. Also conversely if the Court does not consider Driessen's beliefs and use of marijuana are religious within 1st Amendment meaning; than as much as they deny the free exercise clause they also are denying his rights in violation of the respecting an establishment of religion clause because it says "in God we trust" on US Government authorized money meaning the government is like god.  Since abstinence from intoxicating substances is not written into the constitution it must be based on religious notions.

     42 U.S.C. 2000cc-5(7)(A) states, "The term 'religious exercise' includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief." The U.S. Supreme Court has interpreted this amendment to the RFRA in Cutter v. Wilkinson, 544 U.S. 709, 725 (2005), to mean the standard in United States v. Seeger, 380 U.S. 163, 185 (1965) ("courts in this sense are not free to reject beliefs because they consider them 'incomprehensible.' Their task is to decide whether the beliefs professed by a registrant are sincerely held and whether they are, in his own scheme of things, religious.")

Use of other Schedule 1 drugs have already been recognized as sacraments for religious use such as peyote and N,N-dimethyltryptamine (DMT):  .

Employment Division v. Smith, 494 U.S. 872 (1990) "the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government." Justice O'CONNOR suggests that "[t]here is nothing talismanic about neutral laws of general applicability," and that all laws burdening religious practices should be subject to compelling interest scrutiny because the First Amendment unequivocally makes freedom of religion, like freedom from race discrimination and freedom of speech, a "constitutional norm," not an "anomaly."

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006), the United States Supreme Court recognized the drug laws must provide exceptions for religious use under the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb et seq. In 1999, U. S. Customs agents seized over 30 gallons of hoasca (ayahuasca) tea which was shipped to the Santa Fe, New Mexico branch of the Brazil-based UDV; ayahuasca contains dimethyltryptamine, a Schedule I substance. While no charges were filed, the United States chapter, led by Seagram heir Jeffrey Bronfman, filed suit claiming that the seizure was an illegal violation of the church members' rights; they claimed their usage was permitted under the 1993 Religious Freedom Restoration Act.

   While the State Plaintiff has cited only State V. Peck in this case to uphold it's prosecution of Driessen for simple possession of marijuana second offense felony against Driessen. This Defendant/Petitioner has asserted that the marijuana and paraphernalia laws violate his 1st Amendment rights of free exercise of religion and also freedom from having to respect an establishment of religion. When one researches Peck they will find that he was charged with growing (manufacturing) a large amount of marijuana with intent to deliver. Even the Annotations for 961.41 affirm: Possession is not a lesser included offense of manufacturing, see: State v. Peck[xvii].  Driessen's assertion that simple possession of small amounts of marijuana are protected by 1st Amendment clauses is also supported by the following case citations:

In United States v. Bauer, 84 F.3d 1549, 1559 (9th Cir. 1996), the United States Court of Appeals for the Ninth Circuit held that under the RFRA the marijuana laws must give way to religious freedom.

People of Guam v. Guerrero, 290 F.3d 1210 (9th Cir. 2002) Guam argues that while a statute proscribing simple possession of marijuana might substantially burden Guerrero's ability to practice Rastafarianism, a statute forbidding importation certainly would not.

UNITED STATES OF AMERICA v. EDWARD R. FORCHION, et al.

NO. 04-949-ALL (2005) Forchion and Duff maintain that Rastafarians are free to smoke marijuana in national parks, but the First Amendment does not guarantee any such right. To the extent that RFRA creates a potential defense to the possession charges of which they were convicted, Forchion and Duff failed to establish that defense because they did not prove that the criminalization of marijuana possession in Independence National Historical Park substantially burdens the exercise of Rastafarianism. Though their failure to establish a RFRA defense requires us to affirm their convictions, we shall vacate their sentences and remand this case for further proceedings because the magistrate judge did not consider whether six of the probation conditions that he imposed violate the Constitution and/or RFRA.

     Driessen's claiming that possession of small amounts of marijuana for personal use violates his rights to religious freedom appears to present a prima facie cause that should result in dismissal of the counts 1 and 4 of the complaint attached to this case number and a preliminary injunction to protect him from further incursions upon his rights on this basis alone. 

Medicinal use case law: As so stated in the Marijuana Medicinal Use Facts section of this Petition, Unbeknownst to the DEA, the ONDCP or the state and federal court system or even the majority of elected officials; marijuana, in full certainty, has a multitude of medicinal uses. This is verified by the fact that the USG owns a patent stating so and many studies funded by the governments of many nations, in fact every study not funded by special interest groups with vested interest in keeping marijuana prohibited through a scheme of criminal sanctions have; proven it to have valid medicinal uses.

 UNITED STATES V. OAKLAND CANNABISBUYERS’ COOPERATIVE (00-151) 532 U.S. 483 (2001) Under any conception of legal necessity, one principle is clear: The defense cannot succeed when the legislature itself has made a "determination of values." 1 W. LaFave & A. Scott, Substantive Criminal Law §5.4, p. 629 (1986). In the case of the Controlled Substances Act, the statute reflects a determination that marijuana has no medical benefits worthy of an exception (outside the confines of a Government-approved research project). Whereas some other drugs can be dispensed and prescribed for medical use, see 21 U. S. C. §829, the same is not true for marijuana. Indeed, for purposes of the Controlled Substances Act, marijuana has "no currently accepted medical use" at all. §811.

Schedule I is the most restrictive schedule.5 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.

 Gonzales v. Raich , 545 U.S. 1 (2005)  IV Para. 10 One need not have a degree in economics to understand why a nationwide exemption for the vast quantity of marijuana (or other drugs) locally cultivated for personal use (which presumably would include use by friends, neighbors, and family members) may have a substantial impact on the interstate market for this extraordinarily popular substance (from decision)…Given the CSA’s findings and the undisputed magnitude of the commercial market for marijuana, Wickard and its progeny foreclose that claim (from syllabus).

§§811, 812. Marijuana is classified as a Schedule I substance, §812(c), based on its high potential for abuse, no accepted medical use, and no accepted safety for use in medically supervised treatment, §812(b)(1). This classification renders the manufacture, distribution, or possession of marijuana a criminal offense. §§841(a)(1), 844(a). Pp. 6—11.

 We can't have people using it marijuana medicinally because it is too popular is not rational argument is  mere police state ideology.

Conant v. Walters (9th Cir 2002) 309 F.3d 629, cert denied Oct. 14, 2003) the government is permanently enjoined from: (i) revoking any physician class member's DEA registration merely because the doctor makes a recommendation for the use of medical marijuana based on a sincere medical judgment and (ii) from initiating any investigation solely on that ground. The injunction should apply whether or not the doctor anticipates that the patient will, in turn, use his or her recommendation to obtain marijuana in violation of federal law.

Medical marijuana, when grown locally for personal consumption, does not have any direct or obvious effect on interstate commerce. Cf. Oakland Cannabis Buyers' Coop., 532 U.S. at 495 n.7 (reserving "whether the Controlled Substances Act exceeds Congress' power under the Commerce Clause"). Federal efforts to regulate it considerably blur the distinction between what is national and what is local. But allowing the federal government, already nearing the outer limits of its power, to act through unwilling state officials would "obliterate the distinction" entirely. United States v. Lopez, 514 U.S. 549, 557 (1995)

Gonzales v. Oregon, 546 U.S. 243 (2006), was a United States Supreme Court case which ruled that the United States Attorney General could not enforce the Controlled Substances Act against physicians prescribing drugs for the assisted suicide of the terminally ill as permitted by an Oregon law.

Raich v Ashcroft No. 30-15481(2003) Medical marijuana, when grown locally for personal consumption, does not have any direct or obvious effect on interstate commerce. United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483  (reserving "whether the Controlled Substances Act exceeds Congress' power under the Commerce Clause"). Federal efforts to regulate it considerably blur the distinction between what is national and what is local. But allowing the federal government, already nearing the outer limits of its power, to act through unwilling state officials would "obliterate the distinction" entirely. United States v. Lopez, 514 U.S. 549, 557 (1995)

Justice Thomas also wrote a separate dissent in the Raich case, stating in part:

“ Respondent's local cultivation and consumption of marijuana is not "Commerce ... among the several States." Certainly no evidence from the founding suggests that "commerce" included the mere possession of a good or some personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana. ” and “ If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress' Article I powers -- as expanded by the Necessary and Proper Clause -- have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to "appropria[te] state police powers under the guise of regulating commerce." and further: “ If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison's assurance to the people of New York that the "powers delegated" to the Federal Government are "few and defined", while those of the States are "numerous and indefinite."

Since Gonzales v. Raich  several more states have either through populist referendum or legislation representative vote legalized medicinal marijuana legal for a total of 13. None of these states have experienced the devastation and total breakdown of society used as a prelude for compelling interest in criminal prosecution of sick people. I don't think it is necessary for individual little Kenny Boy Driessen  to condemn the court for their erroneous, inhumane and ideological decision in Reich. They may judge themselves as history is judging them already. I'm giving this case my best effort and if I do not win I must admit defeat and admit that I wasted my time and quietly accepting prison would have been easier. I think it is honorable to be able to admit to a mistake or at least rapidly changing times of culture and correct for it. Marijuana is morally and rightfully legal as tobacco and alcohol and should be regulated under a similar scheme as soon as possible.

Popular Use of Marijuana Case Law: To this Defendant Petitioner's knowledge, there is no Wisconsin or Federal case history of anyone criminally charged or by civil suit that has challenged the laws prohibiting the simple possession and use of small amounts of marijuana through a scheme of criminal sanctions including fines and imprisonment.  While I find both religious/spiritual value and medicinal value to marijuana use, either which would be valid constitutionally based exemptions, I don't think the court or the congress is privy to granting immunity, exemption or outright re-legalization on such end around issues as religion or medicinal causes for exemption. Therefore considering the inhumanity and shear lunacy of preventing sick people and religious people from using marijuana because it is so popular that over 100 million citizens including the sitting and last two presidents even tried it demands it's legalization and regulation.

     Ageless wisdom knowing that the criminalization of the inherent right to use natural herbs to aid one in the personal freedom and control of their minds and bodies in as fundamental as any governmental, legal or constitutional theory that could ever be. The 16th President of the United States defined the perils of prohibition quite clearly and eloquently; his logic and sense of fairness was certainly as valid in his day as it is today: "Prohibition goes beyond the bounds of reason in that it attempts to control a man's appetite by legislation and makes crimes out of things that are not crimes." Abraham Lincoln; "A prohibition law strikes a blow at the very principles upon which our government was founded." Abraham Lincoln.

"An ordinance is unconstitutionally vague if it either forbids or requires the doing of an act in terms so vague that persons of ordinary intelligence must necessarily guess at its meaning and differ as to its application. Connally v. General Constr. Co.,269 U.S. 385, 391 (1926). Such an ordinance is 'void for vagueness' and inconsistent with due process of law. Additionally, an ordinance may be void for vagueness if its imprecision is likely to encourage arbitrary and discriminatory enforcement.  Forsyth County, Ga. v. Nationalist Movement,U.S 112 S.Ct. 2395, 2403 (1992) (stating that the First Amendment prohibits the vesting of unbridled discretion in government officials); Papachristou v. City of Jacksonville, 405 U.S. 156, 170 (1972); Eaves v. Board of Clark County Comm'rs, 96 Nev. 921, 924, 620 P.2d 1248, 1250 (1980)."  City of Las Vegas v. 1017 S. Main Corp., 110 Nev. 1227, 1231, 885 P.2d 552 (1994).           

   When popularity of at least one time use of marijuana approaches half of the adult age citizens according to government sponsored studies such use can no longer be considered criminal if it ever could have to begin with. How can something tried by almost half of the adults in North America be a crime? This notion of the continuation of the criminalizing of a herb like marijuana is absurd. The popular use of marijuana has exceeded a threshold where prohibitionist factions can no longer legitimately claim the compelling interest of criminal sanctions for the use and possession of cannabis. It is an illegal war.  They can no longer honestly defend such an arbitrary law.  Certain lobbies being a subclass of society consisting of individuals like police officers, legal professionals, and treatment counselors who stress zero tolerance policies are making a living off of prohibition and therefore have a vested prejudicial interest. Judge a large portion the populous criminal and reap the unconstitutional spoils of the drug war.    

CONCLUSIONS

   Considering case law concerning the constitutionality of marijuana prohibition, a religious defense to criminal sanctions referencing the Religious Freedom Restoration Act (RFRA) is the strongest and most likely to succeed in supplying this Petitioner with a personal exemption from marijuana laws. 

   Ad to this Petition of Declaratory Judgement the concern and compassion for sick and injured people, the fact that Driessen has certainly experienced relief from mental and physical pain through his use of marijuana; a medicinal use exemption from his being criminally sanctioned is certainly constitutionally applicable once one considers the government's patent of marijuana as a medicine. 

     Currently, truthfully and urgent to societies trust in it's government the laws prohibiting marijuana possession and use should be found unconstitutional because when, as factual USG statistics prove, over 100 million Americans have taken part in an activity at least once in their lives and 15 million Americans have partaken in that activity in the last month, it is not constitutionally valid to criminalize such activity.

   For any one or all of the reasons listed in this conclusions section of this Petition for a Judgment from the Wisconsin Circuit Court of Sawyer County, praying for Declaratory Relief from laws criminalizing the personal possession and use of marijuana, also known as Cannabis and THC, should be granted and relief provided as defined in the relief requested section of this petition or as nearly as the judge determines necessary to uphold Driessen's constitutionally guaranteed rights.

   Furthermore the state's claim to compelling interest is without standing because it does not allow for Driessen's religious, medicinal or personal use under the least restrictive means of defending the tentative interest of criminalizing simple use and possession of marijuana. It is expected that the State will appeal a decision by the Court to provide Driessen with Declaratory relief prayed for and he realizes that submitting briefs to supplement this petition and to seek amicus curiae support for his cause is his responsibility.  

RELIEF REQUESTED

WHEREFORE, Defendant/Petitioner respectfully requests that this Court enter an order in favor of Driessen:

(1) Declaring the current felony and misdemeanor charges against Driessen for possession of marijuana (THC) and related paraphernalia dismissed due to the unconstitutionality of those statutes. 

(2) Order of a Preliminary Injunction to enjoin the Plainiff, State of Wisconsin including its law enforcement agents to restrain them from arresting, criminally charging or civilly citing Driessen for using or possessing marijuana for his own use, anywhere that tobacco is currently allowed to be used, until the laws can be amended or repealed to meet constitutional guarantees of his rights as defined with this petition. 

(3) Order of a Preliminary Injunction to restrain Federal agents from arresting charging or prosecuting Driessen for violation of unconstitutional federal marijuana laws while he is within the Sate of Wisconsin until those laws are repealed or amended to no longer deprive him of his rights as defined within this Petition.

(4) Awarding the Petitioner/Defendant fees and all other reasonable expenses incurred in pursuit of this action; and

(5) Granting other such relief as the Court may deem just and proper.

Respectfully submitted,

_____ Dated _October 1, 2009_____

Kenneth Leroy Driessen (pro se)

12022 N. Co. Rd. T

Hayward WI 54843

715-634-2801

wiscokidd@hotmail.com