Free Motion to Dismiss - District Court of California - California

Case 4:07-cv-03885-CW

Document 7

Filed 09/11/2007

Page 1 of 8

1 EDMUND G. BROWN JR. Attorney General of the State of California 2 CHRISTOPHER E. KRUEGER Senior Assistant Attorney General 3 STEPHEN P. ACQUISTO Supervising Deputy Attorney General 4 JILL BOWERS, State Bar No. 186196 Deputy Attorney General 1300 I Street, Suite 125 5 P.O. Box 944255 Sacramento, CA 94244-2550 6 Telephone: (916) 323-1948 Fax: (916) 324-5567 7 Email: [email protected] 8 Attorneys for Defendant Arnold Schwarzenegger, 9 Governor of the State of California 10 11 12 13 14 JOHN PHILLIPS, 15 Plaintiff, 16 v. 17 18 19 20 21 Defendants. 22 23 24 TO: JOHN PHILLIPS, PLAINTIFF IN PROPRIA PERSONA, Please take notice that on October 31, 2007, at 9:30 A.M., or as soon thereafter as Complaint Filed: July 30, 2007 CITY OF OAKLAND, CALIFORNIA, KAREN P. TANDY, Administrator, U.S. Drug Enforcement Administration, SCOTT N. SCHOOLS, U.S. Attorney for the Northern District of California, ARNOLD SCHWARZENEGGER, Governor of the State of California, NOTICE OF MOTION AND MOTION TO DISMISS PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE, RULE 12(b)(6); MEMORANDUM OF POINTS AND AUTHORITIES Hearing: October 31, 2007 Time: 9:30 A.M. Courtroom: F U.S.M.J.: The Hon. James Larson Case No. C07-03885-JL IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

25 counsel may be heard, Defendant, The Hon. Arnold Schwarzenegger, Governor of the State of 26 California, will move this Honorable Court, located at the United States Courthouse, Federal 27 Building, Courtroom F, 15th Floor, 450 Golden Gate Avenue, San Francisco, California, 94102, 28 / / /
Defendant Governor's Motion to Dismiss Phillips v. City of Oakland, et al. C07-03885-JL

1

Case 4:07-cv-03885-CW

Document 7

Filed 09/11/2007

Page 2 of 8

1 to dismiss this case pursuant to Federal Rules of Civil Procedure, Rules 12(b)(6), for failure to 2 state a claim upon which relief may be granted. 3 This Motion is based on the attached Memorandum of Points and Authorities; the

4 record and pleadings herein; and such other additional matters as may properly come before this 5 Court. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Defendant Governor's Motion to Dismiss Phillips v. City of Oakland, et al. C07-03885-JL

Dated: September 11, 2007 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California CHRISTOPHER E. KRUEGER Senior Assistant Attorney General STEPHEN P. ACQUISTO Supervising Deputy Attorney General /s/ Jill Bowers JILL BOWERS Deputy Attorney General Attorneys for Defendant Arnold Schwarzenegger, Governor of the State of California

2

Case 4:07-cv-03885-CW

Document 7

Filed 09/11/2007

Page 3 of 8

1 2 3

MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION Plaintiff John Phillips seeks an injunction prohibiting state and federal

4 authorities­including Defendant Governor Arnold Schwarzenegger­from interfering with his 5 Oakland storefront business of growing and selling marijuana in compliance with the California 6 Compassionate Use Act of 1996. He alleges that he is "federally licensed to grow and sell 7 marijuana" and thus is immune to state criminal prosecution, case number "488924A, Superior 8 Court of California, County of Alameda." (Pet. ¶¶ 9-10.) Phillips apparently also alleges that 9 California courts have declined to apply the Compassionate Use Act. (Pet. ¶ 11.) 10 Phillips asserts only one of his five causes of action against the Governor, that is, the

11 third, for "Violation of the Supremacy Clause." (Pet. ¶¶ 21-22.) Phillips alleges no act or 12 omission by the Governor, who is sued only in his official capacity. 13 But even if the Governor were the state actor responsible for Phillips's California

14 Superior Court prosecution, the federal Anti-Injunction Act precludes federal injunctions against 15 proceedings already commenced in state court, such as the one Phillips targets. In addition, 16 federalism constraints, and the principles of comity expressed in the Younger abstention 17 doctrine, require federal courts to abstain from enjoining ongoing state criminal proceedings. 18 Finally, Phillips fails to allege any facts or legal theories which state a cognizable claim against 19 the Governor. 20 The Governor is therefore entitled to dismissal for failure to state a claim as to which

21 relief may be granted. 22 23 LEGAL STANDARD A Rule 12(b)(6) dismissal is proper only where there is either a "lack of a cognizable

24 legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." 25 Ballistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). In resolving a 26 Rule 12(b)(6) motion, the court must (1) construe the complaint in the light most favorable to the 27 plaintiff; (2) accept all well-pleaded factual allegations as true; and (3) determine whether the 28 / / /
Defendant Governor's Motion to Dismiss Phillips v. City of Oakland, et al. C07-03885-JL

3

Case 4:07-cv-03885-CW

Document 7

Filed 09/11/2007

Page 4 of 8

1 plaintiff can prove any set of facts to support a claim that would merit relief. Cahill v. Liberty 2 Mutual Insurance Co., 80 F.3d 335, 337-338 (9th Cir. 1995). 3 4 5 6 Under the Anti-Injunction Act, a federal court "may not grant an injunction to stay A. DISCUSSION THE ANTI-INJUNCTION ACT PROHIBITS THIS COURT FROM ENJOINING AN ONGOING STATE CRIMINAL PROCEEDING.

7 proceedings in a State court except as expressly authorized by Act of Congress, or where 8 necessary in aid of its jurisdiction, or to protect or effectuate its judgments." 28 U.S.C. § 2283. 9 Phillips alleges an ongoing California Superior Court criminal proceeding and fails to allege any 10 facts showing that this proceeding must be stayed in aid of federal court jurisdiction or to protect 11 or effectuate a federal court judgment. Phillips's claim for injunctive relief is thus barred by the 12 Anti-Injunction Act. See McLucas v. Palmer, 427 F.2d 239 (2d Cir. 1970) (holding that the rule 13 against federal court interference with state court criminal prosecution cannot be circumvented 14 by seeking declaratory judgment in addition to or in lieu of injunction); see also, H. J. Heinz Co. 15 v. Owens, 189 F.2d 505 (9th Cir. 1951) (affirming dismissal where 28 U.S.C. § 2283 prohibited 16 grant of declaratory and injunctive relief). 17 Defendant Governor is entitled to dismissal from this lawsuit for failure to state a

18 claim as to which relief may be granted. Fed. R. Civ. P. 12(b)(6). 19 20 21 B. THE YOUNGER ABSTENTION DOCTRINE REQUIRES THIS COURT TO ABSTAIN FROM ENJOINING THE ONGOING STATE COURT CRIMINAL PROCEEDINGS. "Whether it is labeled `comity,' `federalism,' or some other term, the policy objective

22 behind Younger abstention is to avoid unnecessary conflict between the state and federal 23 governments." United States v. Morros, 268 F.3d 695, 707 (9th Cir. 2001). Absent extraordinary 24 circumstances, federal courts may not enjoin or otherwise interfere with pending state criminal 25 prosecutions on constitutional grounds. The federal court must abstain and allow the state courts 26 to adjudicate all claims, state and federal. Younger v. Harris, 401 U.S. 37, 49-53 (1971) 27 (overturning district court judgment enjoining county district attorney from further prosecution 28 of defendant under California's Criminal Syndicalism Act); Samuels v. Mackell, 401 U.S. 66, 68Defendant Governor's Motion to Dismiss Phillips v. City of Oakland, et al. C07-03885-JL

4

Case 4:07-cv-03885-CW

Document 7

Filed 09/11/2007

Page 5 of 8

1 73 (1971) (holding that district court should have denied any relief, including declaratory relief, 2 without consideration of merits where plaintiffs sought to enjoin pending state court criminal 3 prosecutions). 4 The federal courts must abstain from the exercise of jurisdiction where state court

5 proceedings (1) are pending when the federal action is filed; (2) implicate important state 6 interests; and (3) provide adequate opportunity to raise the federal claims. Middlesex County 7 Ethics Committee v. Garden State Bar Association, 457 U.S. 432, 431 (1982); Dubinka v. Judges 8 of the Superior Court, 23 F.3d 218, 223 (9th Cir. 1994) (holding that Younger barred relief and 9 affirming dismissal where plaintiffs, defendants in pending California state court criminal 10 proceedings, challenged constitutionality of state law requiring reciprocity in discovery in 11 criminal cases). 12 Phillips seeks to enjoin ongoing criminal proceedings against him in the Alameda

13 County Superior Court. This state court criminal matter was pending when he filed his federal 14 action. Thus the first prong of the three-point federal abstention test is satisfied. 15 The Supreme Court of the United States has held that a state has a "vital" interest in

16 enforcing its criminal laws and in protecting "the authority of the judicial system, so that its 17 orders and judgments are not rendered nugatory." Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 14 18 (1987) (holding that federal court should have abstained from adjudicating challenges to 19 contempt proceedings pending in state court). Thus, the second prong of the federal abstention 20 test is satisfied. 21 Phillips does not allege that the California Superior Court denies him an adequate

22 opportunity to present federal defenses to any pending state criminal charges. Even if Phillips 23 correctly alleges that California courts have declined to apply the Compassionate Use Act as a 24 defense to state criminal prosecution for medical marijuana production and distribution, Younger 25 abstention is still a bar to this Court's exercise of jurisdiction because it is based on state not 26 federal law. Thus, the third prong of the federal abstention test is satisfied. 27 / / / 28 / / /
Defendant Governor's Motion to Dismiss Phillips v. City of Oakland, et al. C07-03885-JL

5

Case 4:07-cv-03885-CW

Document 7

Filed 09/11/2007

Page 6 of 8

1

Because Younger abstention doctrine requires the federal court to limit its exercise of

2 jurisdiction over Phillips's claims, the Governor is entitled to dismissal for failure to state a 3 claim as to which relief may be granted. 4 5 6 C. THE GOVERNOR IS ENTITLED TO DISMISSAL UNDER RULE 12(b)(6) BECAUSE PHILLIPS HAS ASSERTED NO COGNIZABLE CLAIM AGAINST HIM. Phillips's Petition, in its entirety, fails to state a cognizable legal theory for two

7 additional reasons. First, although the Compassionate Use Act "encourage[s] the federal and 8 state governments to implement a plan to provide for the safe and affordable distribution of 9 marijuana to all patients in medical need of marijuana[,]" it does not expressly authorize the 10 commercial production and distribution of medical marijuana. Cal. Health & Saf. Code § 11 11362.5(b)(1)(C). Thus, Phillips's conduct is not protected activity under this statute. Second, 12 the Supreme Court of the United States has ruled that Congress's Commerce Clause authority 13 includes the power to enforce the federal Controlled Substances Act (CSA), which prohibits the 14 local cultivation and use of marijuana in compliance with state law. Gonzales v. Raich, 545 U.S. 15 1 (2005) (holding that application of the CSA, 21 U.S.C. § 801, et seq., criminalizing the 16 manufacture, distribution, or possession of marijuana, to intrastate growers and users of 17 marijuana for medical purposes within California Compassionate Use Act, does not violate the 18 Commerce Clause). Thus, even if Phillips's conduct were protected activity under California 19 law, state law does not immunize him from federal prosecution under the Controlled Substances 20 Act. 21 Phillips fails to allege any legal theory purporting to explain why he is entitled to

22 declaratory and injunctive relief against the Governor for violation of the Supremacy Clause. 23 Further, Phillips has alleged no acts or omissions of the Governor purportedly giving rise to a 24 right to declaratory and injunctive relief against him. 25 Because Phillips alleges neither a cognizable legal theory nor sufficient facts under a

26 cognizable legal theory to merit declaratory and injunctive relief, the Governor is entitled to 27 dismissal from this lawsuit for failure to state a claim as to which relief may be granted. 28 Ballistreri, 901 F.2d at 699; Fed. R. Civ. P. 12(b)(6).
Defendant Governor's Motion to Dismiss Phillips v. City of Oakland, et al. C07-03885-JL

6

Case 4:07-cv-03885-CW

Document 7

Filed 09/11/2007

Page 7 of 8

1 2

CONCLUSION Phillips's "Supremacy Clause" claim against the Governor fails for three reasons.

3 First, it is barred by the Anti-Injunction Act. Second, the Younger abstention doctrine prohibits 4 this Court from adjudicating it given the pending state court criminal matter. Finally, Phillips 5 has failed to allege any facts or legal theories to state a cognizable claim against the Governor. 6 Therefore, under Rule 12(b)(6), Phillips's claim against the Governor should be dismissed. 7 8 9 10 11 12 13 14 15 16 17
10372827.wpd

Dated: September 11, 2007 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California CHRISTOPHER E. KRUEGER Senior Assistant Attorney General STEPHEN P. ACQUISTO Supervising Deputy Attorney General /s/ Jill Bowers JILL BOWERS Deputy Attorney General Attorneys for Defendant Arnold Schwarzenegger, Governor of the State of California

18 19 20 21 22 23 24 25 26 27 28

SA2007102364

Defendant Governor's Motion to Dismiss

Phillips v. City of Oakland, et al. C07-03885-JL

7

Case 4:07-cv-03885-CW

Document 7

Filed 09/11/2007

Page 8 of 8

DECLARATION OF SERVICE BY U.S. MAIL Case Name: No.: Phillips v. City of Oakland, et al.

C07-03885-JL

I declare: I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same day in the ordinary course of business. On September 11, 2007, I served the attached NOTICE OF MOTION AND MOTION TO DISMISS PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE, RULE 12(b)(6); MEMORANDUM OF POINTS AND AUTHORITIES by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 1300 I Street, Suite 125, P.O. Box 944255, Sacramento, CA 94244-2550, addressed as follows: John Richard Phillips 2337 Ransom Avenue Oakland, CA 94601-3827

I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on September 11, 2007, at Sacramento, California.

Rachel Aldred Declarant
10375387.wpd

/s/ Rachel Aldred Signature