IN THE WISCONSIN SUPREME COURT
___________________________________________________________
STATE OF WISCONSIN
Plaintiff-Respondent,
Motion for
Procedural
Order § 809.14(2)
and for
V. Clarification and Direction
of the Court
2009AP2988-CR
Circuit Case No. 09 CF 48
KENNETH LEROY DRIESSEN
Defendant-Appellant-Petitioner
____________________________________________________________
In a December 22, 2009 letter addressed to Mr. Schanker, the Clerk of Courts, Gregory Weber Assistant Attorney General,
in part states, "Although the state opposes the petition, as it does not meet the standards enunciated in Wis. Stat. §809.62,
it will not file a formal written response, unless ordered by the court." Petitioner,
Driessen objects to the state's notion of his petition being substandard under a statute pertaining to rules for petition
to review. The Court of Appeal's decision to dismiss the appeal of this case based on lack of jurisdiction is not actually
even a summary judgment. Therefore Driessen is wondering if his Petition essentially arrived in the Supreme Court as a bypass
of the Appeals Court, rather then a petition for review of a negative Appeals Court decision. Whether proceeding as a bypass
or review, the Appeals Court dismissal took place before an appellant's brief was due or filed. While Driessen feels his Motion
for a Stay filed in the Appeals Court is adequate and does pray for the Court's decision on it at it's soonest convenience,
no proper brief or petition has been filed as of this time. Petitioner, Driessen
here asks the court for clarification as to if he should file a brief adhering to that statutory format or a petition formated
under § 809.62(2)? Since holidays took place between the Appeals Court, December
15th, 2009, denial of reconsideration; is the § 808.10(1) time limit for filing a brief or a petition the 14th of January
2010 or could it be extended to let say January 30th or any other time period convenient to the Court and state?
In further reply to the Plaintiff-Respondent's letter, to help the State determine it's intensions to oppose the petition,
and help the Honorable Judges understand more precisely the Petitioner's purpose, below are the issues stated in the form
of questions to relate to § 809.62(1r) Criteria for granting review:
1.) The following issues would normally be appealable for review at the appellate court level but the Third
District Appeals Court refused to hear the appeal claiming lack of jurisdiction:
a.) Did Judge Eaton error and abuse his discretionary power when he allowed the state to amend the complaint
to delete information related to false probable cause notion that Driessen did not possess a valid license on March 28, 2009?
b.) Did Judge Eaton error during the evidentiary hearing when he allowed Trooper Lewis to change her account
of the incident in comparison to her official written report concerning Driessen allegedly speeding, swerving completely in
the oncoming lane and Deputy Knapp removing a small jar from Driessen's pants pocket?
c.) Judge Eaton refused to
consider the possibility that Deputy Knapp wrote a false report in this case concerning probable cause even when Driessen's
statements and written statements of a fellow law enforcement agent disagree with the Deputy's account. In this light, Driessen
attempted to submit evidence from another incident where Deputy Knapp grabbed and struck a person with no authority on video
and in the Deputy's report it states he warned the person at least 6 times before the deputy attacked the person when he gave
no such warnings. Should Judge Eaton have dismissed the complaint considering the state does not have a credible witness?
Since the appellate court refused
to hear concerns of violation of Driessen's 4th Amendment rights by the Deputy, by writing a report suspect of false
statements concerning probable cause, if the Supreme Court would refuse to hear such concerns to possibly over rule or aquit
on such grounds, would a violation of Driessen's 1st Amendment right to petition the government for redress occur? Since the Court of Appeals did not rule on the merits of this Appeal/Petition should
or could the Supreme Court overturn, aquit or remand all counts due to the errors mentioned above? Are the Circuit Court decisions
and the Appeals Court decision involving this case in conflict with State and Federal Court decisions concerning probable
cause within the criteria necessary for review under 809.62(1r) d or e?
2.) It has come to Driessen's attention
that contrary to the actions of the State respondent, the Circuit Court and the Appeals Court; through legislation, statute
59.54(25) already exists that decriminalizes marijuana in the State of Wisconsin. The writing of the ordinance statute itself
is vague and can be enforced arbitrarily. If Driessen or any individual were
repeatedly issued citations for possession of marijuana they would never be convicted under §961.41(3g) and never face becoming
a felon. Considering the range of statutes available to the state and court to punish a person for simple possession of marijuana
are laws criminalizing such possession unconstitutionally vague and arbitrary? Does
the question of vagueness above meet any or all of the criteria necessary for review under 809.62(1r) a thru e?
3.) § 961.41(3g) in part states:
"…unless the person obtains the substance or the analog directly from, or pursuant to a valid prescription or order
of, a practitioner who is acting in the course of his or her professional practice..." While this clause of the statute
certainly illustrates the availability of an affirmative medicinal use defense and exemption to laws criminalizing marijuana
possession, the state and the courts continue to ignore and override this legislation as it pertains to medicinal marijuana. Directly below is a copy of a letter that is for all practical purposes a prescription
for marijuana from an MD that no longer practices because he is a professor that teaches doctors and psychiatrists:
Dear Mr. Driessen,
It almost seems anachronistic to
hear of someone threatened with incarceration for the possession of a small amount of marijuana, especially in a relatively
enlightened state like Wisconsin. If I were still practicing and if I lived in
a state where it is possible for a physician to "prescribe" marijuana as a medicine, I would certainly make it possible for
you to have an opportunity to use marijuana for the treatment of your depression, anxiety and joint pain. While I am, at heart, very conservative in prescribing drugs, I find that where marijuana is concerned,
because its toxicity is so limited, my attitude is: since there is anecdotal evidence supporting its use for these three purposes,
you should try it and if it works great, if it doesn't you have lost nothing.
I wish you the best of luck.
Sincerely yours,
Lester Grinspoon M.D.
Lester Grinspoon MD
Harvard Medical School
35 Skyline Drive
Wellesley, MA 02482
(www.marijuana-uses.com)
(www.rxmarijuana.com)
Consider that on October 19,
2009 the US DOJ issued a memorandum stating in part: "As a general matter, pursuit of these priorities should not focus
federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state
laws providing for the medical use of marijuana." This means that the US government will no longer prosecute law abiding
suppliers/sellers of medicinal marijuana in states that have similar clauses as Wisconsin § 961.41(3g) which allows
for the medicinal use of marijuana. Considering that no case concerning
medicinal use of marijuana has come before the Wisconsin Supreme Court since it has been announced in 2003 that the US government
obtained a patent on marijuana, number 6,630,507 , negating the states claim that
marijuana has no medicinal use, does the medicinal claim within this case, on it's own, present a constitutional, policy
or novel question that meets any or all of the criteria necessary for review under 809.62(1r) a thru e?
4.) In his Circuit Court pleadings
pertaining to this case Driessen claimed to use marijuana in a religious sense within the meaning of the 1st Amendment
of the US constitution and the Religious Freedom Restoration Act
42 U.S.C. §§ 2000bb-2000bb(4). Since the only case related to such a claim
and challenge to the constitutionality of statutes prohibiting the use of marijuana was State v. Peck in 1988, from
before the religious Freedom Restoration Act, and was a growing production, distribution case rather than a simple possession
of a small amount case; does the question of the right to religious use of marijuana on it's own meet any or all of
the criteria necessary for review under 809.62(1r) a thru e?
5.) Petitioner Driessen has also developed an argument that through overwhelming popularity of
marijuana use nation wide, verified by US Government statistics stating that over 42% of the population consisting of over
100 million people have tried marijuana at least once, has been submitted to the Courts. Marijuana use may have surpassed
a threshold of popularity where it's possession and personal use can no longer be considered a crime and the law enforcement
agent's self-serving agenda concerning marijuana must be restrained by the constitution and courts consisting of judges sworn
to uphold it. Some people have compared marijuana use to speeding in an automobile, "everybody does it but you got caught
and must pay the price." A speeding ticket issued in response to well documented
danger is a civil infraction not a freedom and life destroying criminal sanction. Although Driessen intends to develop this
argument further, bearing in mind that a large portion of the population considers the state's compelling interest to criminalize
marijuana fraudulent; does an overwhelming popularity of a behavior make criminal sanctions for such behavior unconstitutional? Does the question directly above, on it's own, meet any or all of the criteria
necessary for review under 809.62(1r) a thru e?
In conclusion Driessen asks that his Petition be allowed to proceed. Driessen again asks the court for clarification
as to whether he is to write and file a brief or a petition and when is the due date limit for such document? Driessen is scheduled to appear at a Circuit Court sentencing hearing January 8th, 2010, when he believes
it is very likely he will be sentenced to a period of incarceration. Driessen
begs the court to consider and grant his motion for a stay pending appeal and/or petition sent and filed with the Court of
Appeals along with his Notice of Appeal on November 25, 2009. Driessen is also interested in assisting the Court by supplying
them with any and all possible relevant information they may require to make a well-informed decision including the possible
attendance of any oral hearing.
Respectfully submitted,
_____ Dated _Janurary
4, 2010___
Kenneth
Leroy Driessen (pro se)
12022 N.
Co. Rd. T
Hayward
WI 54843
715-634-2801
wiscokidd@hotmail.com