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,
Civil Action No. 98-2634 (RWR)
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
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,
_____(signed)______________
Arthur B. Spitzer
D.C. Bar No. 235960
American Civil Liberties Union
of the National Capital Area
1400 20th Street, N.W.
Washington, D.C. 20036
(202) 457-0800
_____(signed)______________
Graham Boyd
American Civil Liberties
Union Foundation
160 Foster Street
New Haven, CT 06511
(203) 668-6112
Attorneys for Plaintiffs
Of counsel:
Matthew S. Watson
D.C. Bar No. 13623
1701 Q Street, N.W.
Washington, D.C. 20009
(202) 986-7500
October 30, 1998