UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WAYNE TURNER
409 H Street, N.E.
Washington, D.C. 20002,YES ON 59
409 H Street, N.E.
Washington, D.C. 20002,CORNELIUS BAKER
1413 K Street, N.W.
Washington, D.C. 20005,STEVE PARDIECK
1233 4th Street, N.W.
Washington, D.C. 20001,LARRY BRUNI, M.D.
631 Pennslvania Avenue, S.E.
Washington, D.C. 20003,JIM GRAHAM
1407 S Street, N.W.
Washington, D.C. 20009,Plaintiffs,
v.
DISTRICT OF COLUMBIA BOARD OF
ELECTIONS AND ETHICS
441 4th Street, N.W.
Washington, D.C. 20001,Defendant.
COMPLAINT
Civil Action No. 98-_____
COMPLAINT
Introduction
1. This suit seeks a declaration that the Act of Congress prohibiting expenditure of federal funds to conduct a ballot initiative in the District of Columbia to permit the medical use of marijuana violates the First Amendment to the United States Constitution. Plaintiffs also seek injunctive relief requiring the defendant to certify the results of that initiative after the November 3, 1998, election.
Jurisdiction and Venue
2. This court has jurisdiction over all causes of action herein pursuant to 28 U.S.C. §§ 1331 and 1361.
3. Venue is proper in this court under 28 U.S.C. § 1391(e).
Parties
4. Plaintiff Wayne Turner is a registered voter in the District of Columbia. He is the official sponsor of Initiative 59 and is the Chairman and Treasurer of plaintiff Yes on 59.
5. Plaintiff Yes on 59 is an unincorporated association of registered District of Columbia voters and others that is the official campaign committee supporting Initiative 59. Yes on 59 sues on its own behalf and on behalf of its members.
6. Plaintiff Cornelius Baker is a registered voter in the District of Columbia who signed a petition to place Initiative 59 on the ballot and who plans to vote in favor of Initiative 59 on election day. Plaintiff Baker is the Executive Director of the National Association of People With AIDS, a national organization that advocates on behalf of people living with HIV and AIDS in order to end the pandemic and the human suffering caused by it. From his experience, plaintiff Baker knows that, for some patients, marijuana is more effective in providing relief from some of the serious effects of HIV and AIDS than any other available drugs, and the fact that marijuana is not legally available to those suffering from HIV and AIDS results in great suffering on the part of many people.
7. Plaintiff Steve Pardieck is a registered voter in the District of Columbia who signed the petition to place Initiative 59 on the ballot and who plans to vote in favor of Initiative 59 on election day. Plaintiff Pardieck is living with HIV and several years ago found it necessary to use marijuana medically to deal with nausea and loss of appetite from wasting syndrome and HIV-induced colitis. He found that marijuana provided relief while other medications, such as Megace and Marinol, did not. He still has nausea from his medication, and wishes to be able to use marijuana when necessary in consultation with his physician.
8. Plaintiff Larry Bruni, M.D., is a registered voter in the District of Columbia who signed a petition to place Initiative 59 on the ballot and who plans to vote in favor of Initiative 59 on election day. He is a practicing physician in the District of Columbia, specializing in the treatment of HIV infection and AIDS. In his medical experience, using marijuana has clinical benefits for some HIV and AIDS patients that they are unable to obtain from available prescription drugs, he therefore believes that marijuana is indicated for a number of his patients as a necessary medical treatment.
9. Plaintiff Jim Graham is a registered voter in the District of Columbia who signed a petition to place Initiative 59 on the ballot and who plans to vote in favor of Initiative 59 on election day. Plaintiff Graham is the Executive Director of the Whitman-Walker Clinic, the largest medical facility in the District of Columbia devoted to the care of patients with HIV infections and AIDS. From his experience, plaintiff Graham knows that marijuana is sometimes the only effective medical treatment for some of the debilitating side effects of HIV and AIDS, such as nausea and loss of appetite, which often lead to severe weight loss and ultimately death.
10. Defendant District of Columbia Board of Elections and Ethics is an independent agency of the District of Columbia and is charged by law with the duty of conducting ballot initiatives and certifying the results of such elections.
Facts
11. Initiative 59 was placed on the DC ballot on September 17, 1998, after proponents of the measure collected more than 17,000 valid signatures from registered voters in the District of Columbia.
12. On November 3, 1998, the voters of the District of Columbia will consider Initiative 59. By voting upon the Initiative, the D.C. electorate will have the opportunity to enact as law that "[a]ll seriously ill individuals have the right to obtain and use marijuana for medical purposes." Among the persons for whom the initiative expressly seeks to afford this right are those suffering from cancer, HIV and AIDS, glaucoma, and muscle spasms caused by multiple sclerosis or cerebral palsey.
13. As a precondition to deeming that a particular person's use of marijuana is legitimately intended for medical purposes, the Initiative requires that the patient secure the recommendation of a physician who has found the use of marijuana to be medically necessary for him or her. Without this recommendation, patients and their caregivers will not be able to invoke the Initiative's protections from criminal prosecution or sanction under D.C. law.
14. The Initiative does not conflict with federal law, which classifies marijuana as a Schedule I substance, thereby prohibiting its prescription by physicians. The Initiative permits physicians only to recommend marijuana for seriously ill patients. Further, the Initiative does not purport to alter the penalties for marijuana use, possession, cultivation or distribution under the federal Controlled Substances Act or any other provision of federal law.
15. Congress passed the 1999 District of Columbia Appropriations Act as part of the Omnibus Consolidated Appropriations Act of 1998 (Public Law 105-277) on October 21, 1998, and the President signed it on the same day. Section 171 of the District of Columbia Appropriations Act (also known as the Barr Amendment after its sponsor Representative Robert L. Barr, Jr., and hereinafter referred to by that name) provides that:
None of the funds contained in this Act may be used to conduct any ballot initiative which seeks to legalize or otherwise reduce penalties associated with the possession, use, or distribution of any schedule I substance under the Controlled Substances Act (21 U.S.C. 802) or any tetrahydrocannabinols derivative.
16. This provision was targeted specifically at Initiative 59. As explained on the floor of Congress by Representative Hassert, who was the principal co-sponsor of the Barr Amendment, "this piece of legislation says that basically the District of Columbia should not and shall not make marijuana a legal substance." The five states conducting medical marijuana initiatives on November 3, 1998 are not affected by the Barr Amendment since they do not share the District's reliance on federal funds for their governmental operations.
17. The Barr Amendment imposes a viewpoint-based restriction on the initiatives that may be considered or enacted by the voters of the District of Columbia. Initiatives that would "legalize or otherwise reduce" the penalties associated with Schedule I drugs are prohibited, while initiatives that would increase or broaden the penalties associated with Schedule I drugs are permitted.
18. In passing the Barr Amendment, Congress was specifically motivated by a desire to impose such a regime of viewpoint-based discrimination upon the voters of the District of Columbia. Congress intentionally sought to deprive District voters of any opportunity to consider a viewpoint it disfavored -- decreasing penalties for marijuana under any circumstances -- while leaving the voters free to consider any number of other drug law measures which Congress did not find objectionable.
19. On information and belief, the Barr Amendment will not prevent the voters of the District of Columbia from voting on Initiative 59 on election day, because the ballots have already been printed and it requires no further expenditure of funds for the ballots to be cast. However, unless enjoined, the defendant D.C. Board of Elections and Ethics will not certify the results of that vote, on the asserted ground that the Barr Amendment prohibits that action.
20. In prohibiting the use of federal funds to "conduct any ballot initiative ...," the Barr Amendment does not prohibit the use of federal funds to certify the results of an initiative that has already been conducted.
21. Plaintiffs will suffer irreparable harm if defendant does not certify the results of Initiative 59.
Claims for Relief
First Cause of Action
22. By imposing a viewpoint-discriminatory prohibition on the District of Columbia initiative process, the Barr Amendment violates plaintiffs' rights under the First Amendment to the Constitution of the United States.
Second Cause of Action
23. The defendant's refusal to certify the results of the vote on Initiative 59 violates plaintiffs' right to have the defendant perform its statutorily-mandated duty under D.C. Code § 1-1320(r), and is not mandated by the Barr Amendment.
Prayer for Relief
Wherefore, plaintiffs request that the Court:
A. Enter declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202 that the Barr Amendment violates plaintiffs' rights under the First Amendment;
B. Issue preliminary and permanent injunctive relief enjoining the defendant and its members, agents and employees from failing to certify the results of the vote on Initiative 59 in accordance with District of Columbia law;
C. Award to plaintiffs their reasonable attorneys' fees and costs; and
D. Order such other and further relief as this court may deem necessary and proper.
Statement Regarding 28 U.S.C. § 2403(a)
Plaintiffs respectfully call to the Court's attention the following provision of 28 U.S.C. § 2403(a):
In any action, suit or proceeding in a court of the United States to which the United States or any agency, officer or employee thereof is not a party, wherein the constitutionality of any Act of Congress affecting the public interest is drawn in question, the court shall certify such fact to the Attorney General, and shall permit the United States to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality.
Respectfully submitted,
____________________________
Arthur B. Spitzer
D.C. Bar No. 235960American Civil Liberties Union
of the National Capital Area1400 20th Street, N.W.
Washington, D.C. 20036____________________________
Graham Boyd
American Civil Liberties
Union Foundation
160 Foster Street
New Haven, CT 06511Attorneys for Plaintiffs
Of counsel:
Matthew S. Watson
D.C. Bar No. 13623
1701 Q Street, N.W.
Washington, D.C. 20009