Petition for Writ of Certiorari — Olsen v. Holder (No. 08-777)

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In The - OFF OF THE CLERK

Supreme Court of the United. States

CARL ERIC OLSEN,

Petitioner,

Vv.

MICHAEL B. MUKASEY, ATTORNEY GENERAL OF THE

UNITED STATES; MICHELE LEONHART, ACTING

ADMINISTRATOR OF THE UNITED STATES

DRUG ENFORCEMENT ADMINISTRATION;

THOMAS MILLER, ATTORNEY GENERAL OF IOWA;

JOHN SARCONE, ATTORNEY OF POLK COUNTY, IOWA; AND

DENNIS ANDERSON, SHERIFF OF POLK COUNTY, IOWA,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

PETITION FOR WRIT OF CERTIORARI

James R. Cook John W. Whitehead

Counsel of Record Douglas R. McKusick

JAMES R. COOK, P.C. THE RUTHERFORD INSTITUTE

401 Grand Avenue Post Office Box 7482

West Des Moines, IA 50265 Charlottesville, VA 22906

(515) 327-9494 (434) 978-3888

Counsel for the Petitioner

——-~

acon eiteiadicontioenas

LANTAGNE LEGAL PRINTING

601 East Main Street Suite 100 Richmond, Virginia 23219 (800: 647-0477

QUESTIONS PRESENTED

Petitioner Carl Olsen brought this action after

this Court’s decision in Gonzales v. O Centro Espirita

Beneficente Uniao Do Vegetal, 546 U.S. 418 (2006),

seeking a declaration that he is allowed, under the

Religious Freedom Restoration Act (RFRA) and the

United States Constitution, to use marijuana in the

course of his religious worship and for appropriate

injunctive rehef against law enforcement officials of

the United States and the State of Iowa. The courts

below refused to even consider the merits of

Petitioner’s claims, dismissing them on the basis of

collateral estoppel.

Petitioner requests review and reversal of the

judgment entered in the Court of Appeals, which

raise the following questions:

1) Did the lower courts err in applying collateral

estoppel to the Petitioners’ claims under RFRA and

the Equal Protection Clause where the prior

decisions relied upon for the estoppel were decided

before the enactment of RFRA and applied legal

principles that conflict with this Court’s decision in O

Centro Espirita?

2) Did the lower courts err in ruling that the

state and federal Controlled Substances Acts (CSA)

are “generally-applicable” laws for purposes of the

First Amendment's Free Exercise Clause, even

though those laws provide exemptions for particular

religious and non-religious uses?

PARTIES TO THE PROCEEDINGS

Petitioner, who was Plaintiff-Appellant in the

Court of Appeals, is Carl Eric Olsen, an adult citizen

of the State of Iowa.

Respondent Michael B. Mukasey was an

Appellee in the Court of Appeals below, is the

Attorney General of the United States, and was

substituted for Acting Attorney General Peter D.

Keisler as the proper party to this action while the

appeal was pending.

Karen Tandy was an Appellee in the Court of

Appeals as the Administrator of the United States

Drug Enforcement Agency. Respondent Michele

Leonhart is the Acting Administrator of the United

States Drug Enforcement Agency and 1s properly

substituted for Karen Tandy.

Respondent Thomas Miller is the Attorney

General of the State of Iowa.

Respondent John Sarcone is the Polk County

(lowa) Attorney.

Respondent Dennis Anderson is the Polk

County (Iowa) Sheriff.

ill

TABLE OF CONTENTS

QUESTIONS PHEGEN TED ... nccccvcescssscsessesseossoeseneveyer 1

PARTIES TO THE PROCEEDINGS .......................... u

Te OE TA ess eivecsnciecindecnarvanseceseesvboserayes ill

TRIE BOT IIe BOD osecccccncsienvessorantanssacssteuveres Vv

PETITION FOR WRIT OF CERTIORARI................. 1

CFF CRIED MINE sv sksscirisr ations eisesieominnsnnions 1

JURISDICTIONAL STATEMENT .....................eeeeee. 2

CONSTITUTIONAL AND STATUTORY

SRC FESR I Ee BEN VA IR OW UD cs osicenccencissces onvsasansenevesssnnsss 2

STATEMENT OF THE CASE. ..............cccccccssssoereeceness 4

REASONS FOR GRANTING THE WRIT................ 13

I. OLSEN’S RFRA CLAIM IS NOT BARRED

BY COLLATERAL ESTOPPEL BECAUSE THE

PRIOR DECISIONS FORMING THE BASIS FOR

ESTOPPEL DID NOT APPLY THE RFRA

ANALYSIS REQUIRED BY THIS COURT'S

DECISION IN O CENTRO ESPIRITA ..................... 14

IJ. THE CSA 1S NOT A GENERALLY

APPLICABLE LAW AND OLSEN IS ENTITLED TO

A DETERMINATION OF WHETHER THE

RESTRICTION ON HIS SACRAMENTAL

MARIJUANA USE IS SUPPORTED BY A

COMPELLING INTEREST OR VIOLATES HIS

RIGHTS UNDER THE FREE EXERCISE CLAUSE

OF THE FIRST AMENDMENT....................ccccc eee ee 24

1. The Controlled Substances Acts Are Not

Neutral and Generally Applicable. ............ 26

2. Olsen’s Claims in This Case Involve “Hybrid

Rights” Requiring Strict Scrutiny.............. 29

Il. COLLATERAL ESTOPPEL DOES NOT

BAR OLSEN’S EQUAL PROTECTION CLAIMS

BECAUSE THE RECENT DECISION IN O

CENTRO ESPIRITA DEPRIVES ANY PREVIOUS

DECISIONS OF THEIR PRECLUSIVE EFFECT ......

eT ern S) Aeterna MES ee AR Dt EES FOE RLS, 30

I sake is saentis canis pteinresesaranpivervianenced 35

Appendix

Opinion of the United States Court of Appeals

og ge Beare A-1

Order of the United States District Court for the

Southern District of Iowa ....................... A-1l

TABLE OF AUTHORITIES

Cases

Church of the Lukumi Babalu Aye, Inc. v. City of

Praeeen, sue U.S. 520 (1993) .................... 25, 27, 29

Commissioner v. Sunnen, 333 U.S. 591 (1948) .. 15, 23

Cornerstone Bible Church v. City of Hastings, 948

I MR BED ce. saccccessevevcnseccserens+es 26, 30

Employment Division v. Smith, 494 U.S. 872 (1990)

Teen os as cunt dwcnsdievsascevnsseonsnes: passim

Fraternal Order of Police v. City of Newark, 170 F.3d

359 (3d Cir. 1999), cert. denied, 539 U.S. 942...... 27

Gonzales v. O Centro Espirita Beneficente Uniao Do

Vegetal, 546 U.S. 418 (2006) .......................... passim

Hobbie v. Unemployment Appeals Comm'n of Fla.,

480 US. 136 (1987) ............. dc wwinccets 27

Larson v. Valente, 456 U.S. 228 (1982) .................... 27

Locke v. Davey, 540 U.S. 712 (2004)....................0..2. 34

Olsen v. Drug Enforcement Admin., 878 F.2d 1458

Neen nT ee a snneesasuceesevsues passim

Olsen v. Mukasey, 541 F.3d 827 (8 Cir. 2008) ......... 1

Quaring v. Peterson, 728 F.2d 1121 (8t Cir. 1984),

ee 20

Randall v. Wyrick, 441 F.Supp. 312 (W.D. Mo. 1977)

Neen Tn en a iccbavtwuencsesecccsaccasecccecs 21

Sherbert v. Verner, 374 U.S. 398 (1963) ............. 11, 20

State Farm Mut. Auio. Ins. Co. v. Duel, 324 U.S. 154

EL Se 15

State v. Olsen, 315 N. W. 2d 1 ine EGS) ......-... 11, 20

Tenafly Eruv Assn. v. Borough of Tenafly, 309 F.3d

144 (3d Cir. 2002), cert. denied, 539 U.S. 942 (2003)

Cees sceunsddseceenvacnsees 25

United States v. Bauer, 84 F.3d 1549 (9¢ Cir.),cert.

EME, OES We, BOT CI BBG). .........ccceccevccesscacsceeseete 23

United States v. Kuch, 288 F.Supp. 439 (D.D.C. 1968)

a a ceva pevaveesacderwevcbeos 21

United States v. Meyers, 95 F.3d 1475 (10 Cir.

1996), cert. denied, 522 U.S. 1006 (1997) ............. 28

United States v. Middleton, 690 F.2d 820 (11th

Cir.1982), cert. denied, 460 U.S. 1051 (1983)....... 21

United States v. Milk, 281 F.3d 762 (8t» Cir. 2002) . 28

United States v. Rush, 738 F.2d 497(15t Cir. 1984),

cert. denied, 470 U.S. 1004 (1985)...........0...... passim

United States v. Spears, 443 F.2d 895 (5th Cir.1971),

cert. denied, 404 U.S. 1020,(1972) PE en aneacutaeieers a4

Wisconsin v. Yoder, 406 U.S. 205 (1972)............ 11, 20

Statutes

EE a 6S |) 6

Ne eco isdcecesy ccvkvdnvsesvevvinsvessenssu'es 8, 26

acs ciucesdasacdnvecessossecescesevswonsesouens 2

a iocencscececcvcccssvssececscecesecccseresereeene 4

oS inecancasceeacesssvenecosssccdetescesecs 4

Cee iiwicwecesnscossesustckveesesewcasnoseses 5

i iss cence ssnenesnseevccesvsavecvecsceccenses 3

lowa Code § 124.204 (2006) .........................00008 6, 8, 26

Religious Freedom Restoration Act, 42 U.S.C. §§

A ee er passim

Other Authorities

Memorandum Opinion for the Chief Counsel, Drug

Enforcement Administration, Peyote Exemption for

vil

Native American Church 403, 419 (Dec. 22, 1981)

iinet lid achat sie Peau detec. aah ie ia ad deta a Aelia tea, 36

Restatement (Second) of Judgments § 28(2)(d) ........ 16

Rules

ee, Bes a, B,D ses cin boty evaceneacsan cance covecastaceucs 5, 10

Regulations

Oe I oars cia su wa iesduidendiaceales nina trek camiuoes 26

Be ee NE indiana vcard edsves sna doviondsvccniniouvven 8, 31

21 C.F. & 1505. LEGS) COO1) 6. onic cccccssnsssccsccece 6

Be i a aii ea anda Se dick vv dadnnite cbtvteeuelcls 8, 26

ee oy sc aveesdesacbauaeeean 8

Constitutional Provisions

United States Constitution, Fifth Amendment .. 2, 10,

29, 30

United States Constitution, First Amendment passim

United States Constitution, Fourteenth Amendment,

OR SI RN STINT A Vane OURO E santas MRIs oy ae

Jn the Supreme Court of the Gnited States

No. 08-_

CARL ERIC OLSEN, Petttioner,

Uv.

MICHAEL MUKASEY, ATTORNEY GENERAL OF THE

UNITED STATES, ET AL., Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

PETITION FOR WRIT OF CERTIORARI

Carl Eric Olsen respectfully petitions this

Court for a writ of certiorari to review the judgment

of the United States Court of Appeals for the Eighth

Circuit.

OPINIONS BELOW

The opinion of the Court of Appeals is reported

as Olsen v. Mukasey, 541 F.3d 827 (8 Cir. 2008),

and is reprinted in the Appendix beginning at page

A-1. The opinion of the United States District Court

for the Southern District of Iowa is not reported and

is set forth in the Appendix beginning at page A-11.

JURISDICTIONAL STATEMENT

The United States Court of Appeals for the

Eighth Circuit entered its judgment and opinion on

September 8, 2008. This Court has jurisdiction over

this matter pursuant to 28 U.S.C. § 1254(1)

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First Amendment to the United States

Constitution provides, in relevant parts:

Congress shall make no law respecting

an establishment of religion, or

prohibiting the free exercise thereof].}

The Fifth Amendment to the United States

Constitution provides, in relevant parts:

No person shall be held to answer for a

capital, or otherwise infamous crime,

unless on a presentment or indictment

of a grand jury, .. ., nor be deprived of

life, liberty, or property, without due

process of law[.]

The Fourteenth Amendment to the United

States Constitution, Section 1, provides, in relevant

parts:

All persons born or naturalized in the

United States, subject to the jurisdiction

thereof, are citizens of the United States

and of the state wherein they reside.

No state shall make or enforce any law

which shall abridge the privileges or

immunities of citizens of the United

States; . . .; nor deny to any person

within its jurisdiction the equal

protection of the laws.

Section 3 of the Religious Freedom Restoration

Act of 1993 (RFRA), 42 U.S.C. § 2000bb-1, provides

as foilows:

a) In general

Government shall not substantially

burden a person’s exercise of religion

even if the burden results from a rule of

general applicability, except as provided

in subsection (b) of this_ section.

(b) Exception

Government may substantially burden

a person’s exercise of religion only if it

demonstrates that application of the

burden to the person--

(1) is in furtherance of a compelling

governmental interest; and

(2) is the least restrictive means of

furthering that compelling

governmental interest.

A person whose religious exercise has

been burdened in violation of this

section may assert that violation as a

claim or defense in a judicial proceeding

and obtain appropriate relief against a

government. Standing to assert a claim

or defense under this section shall be

governed by the general rules of

standing under article Ill of the

Constitution.

STATEMENT OF THE CASE

The Petitioner, Carl Eric Olsen, brought this

action in the U.S. District Court for the Southern

District of lowa seeking declaratory and injunctive

relief to protect the Appellant’s right to possess and

use cannabis as a sacrament in connection. with

Appellant’s exercise of his religious beliefs. The

District Court had jurisdiction over Olsen’s claims

under 28 U.S.C. §§ 1331 and 1343(a), as the claims

set forth in the Complaint arise under the

Constitution, laws and treaties of the United States

and such claims are to secure equitable relief under

Acts of Congress providing for the protection of civil

rights, specifically the Religious Freedom

Restoration Act, 42 U.S.C. §§ 2000bb et seq., and 42

U.S.C. § 1983.

Olsen is a sincere adherent of the teachings of

the Ethiopian Zion Coptic Church, a centuries-old

church that uses cannabis, i.e., marijuana, as its

sacrament (Dist. Ct. Dkt. # 1; Complaint p.9). The

Complaint! elaborates as follows:

25. Asa necessary and essential part

of the Ethiopian Zion Coptic Church’s

religious practice, church members

receive communion’ through _ the

Sacramental use of Cannabis, which is

the blood of Christ... ., in their religious

ceremonles.

26. It is a central and _ essential

practice of the Ethiopian Zion Coptic

Church that its members assemhie for

communion, reasoning, and worship

through the Sacramental offering of

Cannabis during prayer to the living

god known to the church as Rastafari.

1! Because the District Court granted judgment in

favor of the Respondents upon a Fed. R. Civ. P.

12(b)(6) motion to dismiss and the Court of Appeals

affirmed that judgment, the allegations of Olsen’s

Complaint must be accepted as true. Indeed, it has

never been asserted that Olsen’s religious beliefs at

issue in this case are not genuine and sincerely held.

(Dist. Ct. Dkt. # 1; Complaint p. 10). Thus,

“fblecause the Ethiopian Zion Coptic Church

considers Cannabis to be its Sacrament, a prohibition

against partaking in the Sacramental use of

Cannabis in the United States completely prevents

[Olsen] from freely practicing his religion” (Dist. Ct.

Dkt. # 1; Complaint p. 11). The cultivation of

cannabis is essential to the exercise of Olsen’s

religion (Dist. Ct. Dkt. # 1; Complaint pp. 25, 28, 29

and 31).

The Complaint goes on to allege that “[t]he

Defendants have taken the position with respect to

the Ethiopian Zion Coptic Church’s use of Cannabis

that Cannabis is a Schedule I control substance

pursuant to 21 U.S.C. § 812(c)(I)(c)(10) and 21 C.F.R.

§ 1308.11(d)(19) (2001), and Iowa Code § 124.204

(2006). Severe civil and criminal penalties are

prescribed for, inter alia, the unlawful importation,

possession and distribution of Cannabis” under

federal and state law. “As a result of the threat of

criminal prosecution, the Plaintiff has been

compelled to suspend the practice of his religion in

the United States.” Olsen has been forced to forego

the essential sacrament of his religion since the

decision in Olsen v. Drug Enforcement Admin., 878

F.2d 1458 (D.C. Cir. 1989) became final and all

avenues of direct review were exhausted (Dist. Ct.

Dkt. # 1; Complaint p. 12).

In 1993, after the decision in Olsen v. Drug

Enforcement Agency, supra, Congress enacted and

the President signed into law the Religious Freedom

Restoration Act (RFRA), 42 U.S.C. §§ 2000bb et seq.

(Dist. Ct. Dkt. # 1; Complaint p. 1). On February 21,

2006, this Court issued its decision in Gonzales v. O

Centro Esptirita Beneficente Uniao Do Vegetal, 546

U.S. 418 (2006), which involved the application of the

prohibitions of the Controlled Substances Act in light

of RFRA (Dist. Ct. Dkt. # 1; Complaint p. 4). Olsen

alleged that the decision in O Centro Espirita

requires a court to review de novo the particular use

of a controlled substance made by a church and

determine whether such use is protected and allowed

by RFRA (Dist. Ct. Dkt. # 1; Complaint pp. 5, 8). He

further alleged that the application of the federal and

state Controlled Substances Acts to prohibit his use

of cannabis as a religious sacrament violates his

right under the First Amendment to freely exercise

his religion (Dist. Ct. Dkt. # 1; Complaint pp. 13-14).

Olsen contacted the Defendants and

attempted to obtain an agreement that they would

not seek to prosecute him for his religious use of

cannabis (Dist. Ct. Dkt. # 1; Complaint p. 12).

“However, Defendants, having failed and refused to

guarantee they will not arrest or prosecute [Olsen] if

he moves forward with the practice of his religion are

effectively threatening [Olsen] with arrest and

prosecution. The actions of the Defendants have a

chilling and prohibitive effect on [Olsen’s] exercise of

his religion” and are causing Olsen to. suffer

psychologically and _ spiritually because he is

ahenated from his church (Dist. Ct. Dkt. # 1;

Complaint p. 13).

The Complaint also alleges as follows:

39. Federal CSA regulations and the

Iowas CSA _ expressly exempt the

sacramental use of peyote despite the

fact that peyote is listed in Schedule I of

both the Federal and State versions of

the CSA. See 21 C.F.R. § 1307.31 and

Iowa Code § 124.204(8) (2006). No such

exemption exists for Plaintiffs

Sacramental use of Cannabis.

40. The Federal CSA contains other

exceptions permitting the use _ of

controlled substances for purposes such

as scientific research and medical use,

and the Iowa CSA specifically exempts

medical use of marijuana from the

prohibitions of Schedule I of the Iowa

CSA while any other use of marijuana

remains prohibited. See, e.g., 21 U.S.C.

§ 823, 21 C.F.R. §§ 291.505, 1301.26,

1301.34, and Iowa Code § 124.204(7),

124.204(7).?

(Dist. Ct. Dkt. # 1; Complaint p.14). The use and

possession of marijuana for medical purposes is

allowed by the Defendants and has been allowed at

2 The second reference to Iowa Code § 124.204(7) in

paragraph 40 of the Complaint is a typographical

error. The correct citation is Iowa Code §

124.206(7)(a).

the Iowa State Capitol. “The fact that both [sic]

Defendants allow the use and the possession of

Marijuana in a public place like the State Capitol

Building proves beyond any reasonable doubt that

the use and possession of marijuana does not cause

any threat to public health and safety sufficient to

substantiate a ‘compelling interest’ on the part of the

government to restrict the Sacramental use of

Cannabis by [Olsen] because a compelling interest

cannot be ignored” (Dist. Ct. Dkt. # 1; Complaint pp.

14-15).

The Commission on Marijuana and Drug

Abuse was specifically established by the Controlled

Substances Act of 1970. The Commission found in

1972, “The total prohibition scheme was rejected

primarily because no sufficiently compelling social

reason, predicated on existing knowledge, justifies

intrusion by the criminal justice system into the

private lives of individuals who use marijuana”

(Dist. Ct. Dkt. # 1; Complaint Exhibit #21).

The Chief Administrative Law Judge (ALJ) for

the DEA found in 1988, “[nJearly all medicines have

toxic, potentially lethal effects. But marijuana is not

such a substance. There is no record in the extensive

medical literature describing a proven, documented

cannabis-induced fatality” (Dist. Ct. Dkt. # 1;

Complaint Exhibit #1, page 56). “This is a

remarkable statement. First, the record = on

marijuana encompasses 5,000 years of human

experience. Second, marijuana is now used daily by

enormous numbers of people throughout the world.

Estimates suggest that from twenty million to fifty

million Americans routinely, albeit illegally, smoke

marijuana without the benefit of direct medical

supervision. Yet, despite this long history of use and

the extraordinarily high numbers of social smokers,

there are simply no credibie medical reports to

suggest that consuming marijuana has caused a

single death” (Dist. Ct. Dkt. # 1; Complaint Exhibit #

1, p. 57). “Marijuana, in its natural form, is one of

the safest therapeutically active substances known to

man” (Dist. Ct. Dkt. # 1; Complaint Exhibit # 1, p.

58-59).

Based on these allegations, Olsen claimed that

any prohibition upon his use of cannabis for

sacramental purposes violates RFRA, the Free

Exercise Clause of the First Amendment (Dist. Ct.

Dkt. # 1; Complaint pp. 16-17), and the guarantee to

equal protection of the law provided by the Fifth and

Fourteenth Amendments. Olsen requested a

declaratory judgment and an injunction that would

forbid the Defendants from enforcing federal and

state Controlled Substances Acts against him for his

“Sacramental use of Cannabis, including its

possession, consumption,' distribution and

importation for this purpose” (Dist. Ct. Dkt. # 1:

Complaint p. 32).

The federal and state Defendants filed

separate motions under Fed. R. Civ. P. 12(b) seeking

dismissal of all the claims. The Distriet Court

entered an Order granting the motion to dismiss

under Rule 12(b)(6) for failure to state a claim. It

held that Olsen’s RFRA and First Amendment claims

were barred by collateral estoppel because, in cases?

decided before this Court’s ruling in O Centro

Espirita, he had previously and unsuccessfully

asserted that he had a right under the First

Amendment’s Free Exercise Clause to use marijuana

as a sacrament in the practice of his religious beliefs

(A-28, -29). It similarly held that Olsen’s equal

protection claims were barred by collateral estoppel

(A-31). Olsen timely appealed the District Court's

order dismissing his claims.

Affirming that decision and order, the Court of

Appeals for the Eighth Circuit recognized that

“{clollateral estoppel does not apply if the controlling

facts or legal principles have changed significantly

since Olsen’s prior judgments” (A-5). However, the

Court of Appeals held that this Court’s decision in O

Centro Espirita was not such a change because that

decision applied RFRA and RFRA is intended to

“restore the compelling interest test as set forth in

Sherbert v. Verner, 374 U.S. 398 (1963) and

Wisconsin v. Yoder, 406 U.S. 205 (1972),” which

applied to Free Exercise Clause claims before the

decision in Employment Division v. Smith, 494 U.S.

3 The cases involving Olsen's Free Exercise Clause

claim are reported and include Olsen v. Drug

Enforcement Admin., 878 F.2d 1458 (D.C. Cir. 1989)

(hereafter “DEA”), United States v. Rush, 738 F.2d

497(1s* Cir. 1984), cert. dented, 470 U.S. 1004 (1985),

and State v. Olsen, 315 N.W.2d 1 (Iowa 1982)

(hereafter “Olsen’”).

872 (1990). “The pre-Smith standard applicable in

Olsen, Rush, and DEA is the same. standard

applicable to Olsen’s current claim,” the Court of

Appeals held. “There is no difference in the

controlling law. Olsen’s federal RFRA claim is

barred by collateral estoppel” (A-6).

With respect to Olsen’s Free Exercise Clause

claim, the Court of Appeals recognized that even

after Smith, which held that a compelling interest is

not required to uphold neutral and_ generally-

applicable laws against claims that the laws burden

the First Amendment right to exercise religion, the

compelling interest test is applicable if a law is not

“neutral” or “generally-applicable” (A-8).

Notwithstanding Olsen’s allegations that the federal

and state Controlled Substances Acts are not

“generally-applicable” because there are exemptions

for medical uses of marijuana and the sacramental

use of peyote by Native Americans, the Court ruled

that “[g]leneral applicability does not mean absolute

universality. Exceptions do not negate that the

CSAs are generally applicable” (A-8). To the extent

Olsen based his claim on the “hybrid rights” theory

recognized by Smith, 494 U.S. at 881, the Court of

Appeals held that it, like the RFRA claim, was

barred by collateral estoppel (A-9).

The Court of Appeals also held that collateral

estoppel barred Olsen's claim under the Fourteenth

Amendment's Equal Protection Clause. Equal

protection claims were raised in Olsen’s_ prior

litigation and O Centro Espirita did not address

equal protection issues, so did not change the

controlling law (A-9).

REASONS FOR GRANTING THE WRIT

In O Centro Espirita, this Court established

that the Religious Freedom Restoration Act of 1993

requires the government to demonstrate that it has a

compelling interest to apply a _ prohibition on

possession or use of a controlled substance to the

particular religious use of the person invoking RFRA.

This ruling that a “focused” compelling interest

inquiry is required was a significant departure from

prior decisions, which had uniformly held that the

classification of a substance by Congress as subject to

restriction and control was enough to demonstrate a

compelling interest for refusing a _ religious-based

exemption from the _ prohibitions imposed by

controlled substance laws. Those prior decisions

included cases involving Olsen, and the lower court

seized upon those aecisions as a convenient basis for

dismissing his religious freedom claims.

A writ of certiorari to review and reverse the

judgment dismissing Olsen’s claim is required

because the judgment conflicts with this Court’s

decision in O Centro Espirita and deprives Olsen of

his right to be heard on his claims under federal

statutory and constitutional law. The O Centro

Espirita decision established law which wholly

undermines the reasoning that led to the pre-RFRA

decisions against Olsen; where the controlling legal

principles have changed or been clarified, collateral

estoppel must not be used to deprive a person of his

or her right to a hearing. The lower courts treated

the prior decisions as if they created in the

government some vested right to continue to deprive

Olsen of his ability to exercise his religious beliefs,

ignoring this Court's admonitions in O Centro

Espirita that claims to religious exemptions from

controlled substance laws must be adjudged on a

case-by-case basis.

I. OLSEN’S RFRA CLAIM IS NOT

BARRED BY COLLATERAL

ESTOPPEL BECAUSE THE PRIOR

DECISIONS FORMING THE

BASIS FOR ESTOPPEL DID NOT

APPLY THE RFRA ANALYSIS

REQUIRED BY THIS COURT’S

DECISION IN O CENTRO

ESPIRITA.

Neither the District Court nor the Court of

Appeals considered the merits of Olsen’s claim under

RFRA. Instead, the lower courts avoided confronting

Olsen’s claim that the state and federal governments

have no compelling interest for forbidding his

sacramental use of marijuana by applying collateral

estoppel, relying upon decisions involving Olsen that

were decided before the enactment of RFRA and

before this Court’s watershed decision in O Centro

Espirita. The 2006 decision in O Centro Espirita is

crucial because it determined that RFRA may

prevent application of the Controlled Substances Act

where it would forbid use of a substance in

connection with the exercise of religion. O Centro

Espirita, 546 U.S. at 432.

The court decisions rebuffing Olsen’s previous

claims that his sacramental use of marijuana is

protected by the First Amendment should not have

barred his religious freedom claims in this action

because RFRA and O Centro Espirita changed the

controlling legal analysis. This Court has held that

“it is nevertheless the general rule that res judicata

is no defense where between the time of the first

judgment and the second there has been an

intervening decision or a change in the law

creating an altered situation.” State Farm Mut.

Auto. Ins. Co. v. Duel, 324 U.S. 154, 162 (1945)

(emphasis added). This principle was extended to

collateral estoppel in Commissioner v. Sunnen, 333

U.S. 591, 599 (1948), which held as follows with

respect to the preclusive effect of prior judicial

determinations:

But a subsequent modification of the

significant facts or a change or

development in the controlling

legal principles may make that

determination obsolete or

erroneous, at least for future

purposes. ... [Collateral estoppel] is

designed to prevent repetitious lawsuits

over matters which have once been

decided and which have remained

substantially static, factually and

legally. It is not meant to create vested

rights in decisions that have become

obsolete or erroneous with time, thereby

causing inequities among taxpayers.

(Emphasis added). Thus, “a judicial declaration

intervening between the two proceedings may so

change the legal atmosphere as to render the rule of

collateral estoppel inapplicable.” Jd. at 600. Accord

Restatement (Second) of Judgments § 28(2)(d)

(although an issue is actually litigated and

deterinined by a valid and final judgment, “a new

determination is warranted in order to take account

of an intervening change in the applicable legal

context[.]”).

RFRA and the decision in O Centro Espirita

wrought precisely the kinds of change in the legal

climate that deprive the Rush, Olsen, and DEA

decisions of any preclusive effect in Olsen’s present

action. In O Centro Espirita, this Court upheld the

entry of a _ preliminary injunction in favor of

individuals, allowing them to use for religious

purposes a tea made from a plant that contains

DMT, a CSA Schedule I controlled substance. The

unanimous decision rejected the government's

request that it recognize a categorical prohibition on

religious use exemptions from the Controlled

Substances Act, holding that this was inconsistent

with the mandate of RFRA:

Under the more focused inquiry

required by RFRA and the compelling

interest test, the Government's mere

invocation of the general characteristics

of Schedule I substances, as set forth in

the Controlled Substances Act, cannot

carry the day. It is true, of course, that

Schedule I substances such as DMT are

exceptionally dangerous.

Nevertheless, there is no indication that

Congress, in classifying DMT,

considered the harms posed by the

particular use at issue here -- the

circumscribed, sacramental use. of

hoasca by the UDV. The question of the

harms from the sacramental use of

hoasea by the UDV was litigated below.

Before the District Court found that the

Government had not carried its burden

of showing a compelling interest in

preventing such harms, the court noted

that it could not “ignore that the

legislative branch of the government

elected to place materials containing

DMT on Scheduie I of the [Act],

reflecting findings that substances

containing DMT have ‘a high potential

for abuse, and ‘no currently accepted

medical use in treatment in the United

States, and that ‘there is a lack of

accepted safety for use of [DMT] under

medical supervision.” ... But Congress’

determination that DMT should be

listed under Schedule I simply does not

provide a _ categorical answer that

reeves the Government’ of the

obligation to shoulder its burden under

RFRA.

O Centro Espirita, 546 U.S. at 433 (citations

omitted).

RFRA, as interpreted and applied by O Centro

Espirita, changes the analysis of claims like Olsen's

that a governmental burden on religious exercise

should be removed by judicial declaration. O Centro

Espirita recognized that RFRA was enacted to

reverse the effect of the decision in Employment

Division v. Smith, 494 U.S. 872 (1990). RFRA was

meant to reestablish that federal laws, including

controlled substance regulations, that burden the

free exercise of religion be supported by a compelling

governmental interest. O Centro Espirita, 546 U.S.

at 439.

More significantly, the O Centro Espirita case

made clear that the “compelling interest” analysis

required by RFRA precludes a court from relying

solely upon a generalized congressional finding of a

“compelling interest” to justify a burden on religious

exercise resulting from a_é federal law. The

unanimous Court ruled that a “more focused inquiry”

is required by RFRA; courts must examine whether

there is a compelling interest for applying the law to

the RFRA claimant. In O Centro Espirita, this

meant that “Congress determination that DMT

should be listed under Schedule I simpiy does not

provide a categorical answer that relieves the

Government of the obligation to shoulder its burden

under RFRA.” Z7d. at 433.

This ruling wholly undermines the preclusive

effect of the previous decisions involving Olsen

because those decisions applied the very “categorical”

approach rejected by O Centro Espirita. Thus, in

U.S. v. Rush, 738 F.2d at 512, the court rejected

Olsen's First Amendment defense to marijuana

charges because

fijn enacting substantial criminal

penalties for possession with intent to

distribute, Congress has weighed the

evidence and reached a conclusion

which it is not this court’s task to

review de novo. Every federal court

that has considered the matter, so far as

we are aware, has accepted. the

congressional determination that

marijuana in fact poses a real threat to

individual health and social welfare,

and has upheld the criminal sanctions

for possession and distribution of

marijuana even where such sanctions

infringe on the free exercise of religion.

(Emphasis added). The Dhistrict of Columbia's

decision in DEA was similarly predicated upon the

determination of a compelling interest to regulate

Schedule I substances, not on a determination that

there was a compelling interest as applied to Olsen

and the Ethiopian Zion Coptic Church. DEA, 878

F.2d at 1462. And in Olsen, 315 N.W.2d at 8, the

court relied upon a committee report submitted in

connection with the enactment of the Iowa CSA

which determined that marijuana posed a difficult

problem in controlling drug abuse. Clearly, this is

tantamount to the Congressional finding held

insufficient to demonstrate a compelling interest

under RFRA in O Centro Espirita.

Although the Court of Appeals recognized that

a change in controlling legal principles can make

collateral estoppel inapplicable, it found this rule

was inapposite because after the enactment of RFRA

and the decision in O Centro Espirita, “there is no

difference in the controlling law.” It pointed to this

Court's statement in O Centro Espirita

characterizing the compelling interest test laid down

in Sherbert v. Verner, 374 U.S. 398 (1963), and

Wisconsin v Yoder, 406 U.S. 205 (1972), as “look[ing]

beyond broadly formulated interests justifying the

general applicability of government mandates and

scrutinizing the asserted harm of granting specific

exemptions to particular religious claimants.” 546

U.S. at 431. It also cited a single Eighth Circuit

decision holding, in the context of a request for a

driver's license, that a particularized evaluation of

the claim for a religious exemption was required

under pre-Smith Free Exercise Clause jurisprudence.

Quaring v. Peterson, 728 F.2d 1121 (8 Cir. 1984),

aff'd, 472 U.S. 478 (1985) (A-6).

Notwithstanding the Court of Appeals’ view of

the law that was theoretically applicable to Olsen’s

previous Free Exercise Clause claims, the law that

was actually applied to his claims was clearly

different than the law that now controls under O

Centro Espirita. In the first place, the case law

regarding Free Exercise Clause claims for

exemptions from the federal CSA did not involve a

“particularized evaluation” of the claimed exemption.

As pointed out in Rush, “[e]very federal court that

has considered the matter, so far as we are aware,

has accepted the congressional determination

that marijuana in fact poses a real threat to

individual health and social welfare, and has

upheld the criminal sanctions for possession and

distribution of marijuana even where such sanctions

infringe on the free exercise of religion.” 738 F.2d at

512 (citing United States v. Middleton, 690 F.2d 820,

825 (llth Cir.1982), cert. denied, 460 U.S. 1051

(1983); United States v. Spears, 443 F.2d 895 (5th

Cir.1971), cert. denied, 404 U.S. 1020 (1972); Leary v.

United States, 383 F.2d 851, 859-61 (Sth Cir.1967),

rev'd on other grounds, 395 U.S. 6 (1969); Randall v.

Wyrick, 441 F.Supp. 312, 316 (W.D. Mo. 1977);

United States v. Kuch, 288 F.Supp. 439, 448 (D.D.C.

1968)).4 Thus, before RFRA was enacted, the law

4 Federal appellate courts began adopting the

congressional finding to find a compelling interest for

forbidding use of marijuana as a religious sacrament

with Leary, 383 F.2d at 860. It is significant,

however, that the Leary decision found the

compelling interest analysis of Sherbert inapplicable

accepted the generalized finding of Congress as

sufficient to establish a compelling interest for

rejecting a_ religious-based exemption from a

controlled substance prohibition.5 O Centro Espirita

clearly changed this law.

Even more to the point, the “compelling

interest” analysis actually applied in Olsen’s prior

cases was different than the analysis required hy

RFRA under the O Centro Espirita decision. The

Court of Appeals did not purport to rule that the

courts in Rush, DEA, and Olsen made the kind of

particular and individualized evaluation of Olsen’s

Free Exercise claims that is now required under

RFRA (even as to claims for exemptions from the

CSA, as O Centro Espirita makes abundantly clear).

Instead, those prior decisions used the kind of

categorical approach to controlled substances that

was expressly rejected by this Court in O Centro

Espirita.

The Eighth Cuircuit’s decision in this case

conflicts with the decision of the Ninth Circuit in

United States v. Bauer, 84 F.3d 1549, 1557 (9t* Cir.

to cases claiming that restrictions on marijuana use

violate the fundamental right to free exercise of

religion.

5 Significantly, the decision in Smith, 494 U.S. at

889, cited the decision in DEA as an example of a

case where the court did not make an individualized

decision on whether there was a compelling interest

for denying an exemption from the federal CSA.

1996), cert. denied, 519 U.S. 907 (1996), which

recognized that RFRA _ requires a_ different

“compelling interest” analysis than had been applied

in previous cases involving the federal drug laws. In

Bauer, the court refused to follow the ruling in Leary,

a circuit court decision that was followed in Rush

and Olsen, and instead held that under RFRA, “the

government had the obligation, first, to show that

the application of the mariuana laws to the

defendants was in furtherance of a compelling

governmental interest and, second, to show that

the application of these laws to. these

defendants was the least restrictive means of

furthering that compelling governmental

interest.” Bauer, 84 F.3d at 1559 (emphasis added).

Bauer confirms that the reasoning underlying Rush

and Olsen has been undermined by RFRA and O

Centro Espirita.

O Centro Espirita’s explication of how the

“compelling interest” test should be applied in this

context is clearly a “development in the controlling

legal principles” and “judicial declaration” that so

changes the legal atmosphere “as to render the rule

of collateral estoppel inapplicable.” Sunnen, 333 U.S.

at 5°9-600. The government has no vested right in

the cecisions in Rush, DEA, and Olsen, especially

where it is crystal clear that the legal reasoning used

in those decisions to find a compelling governmert

interest is “obsolete [and] erroneous’ in light of this

Court's controlling decisions. Id. at 599.

The Court of Appeals’ application of collateral

estoppel exalts form and theory over substance and

practice and, in the process, sacrifices Olsen’s right

to a fair determination according to the controlling

law of his request to be allowed to exercise nis

religious beliefs. The decisions in Olsen’s prior cases

are plainly in conflict with this Court’s decision in O

Centro Espirita. A wooden application of the

decisions in Olsen’s prior cases ignores the change in

the legal atmosphere and deprives Olsen of the right

to have his claim of religious freedom treated equally

with those of the O Centro Espirita Beneficente

Uniao do Vegetal Church and other religious

adherents seeking relief under RFRA. Application

of collateral estoppel here is a “foolish consistency”

that creates a conflict with this Court’s recent

precedent. Therefore, the judgment of the Court of

Appeals against Olsen must be reversed.

II. THE CSA IS NOT A GENERALLY

APPLICABLE LAW AND OLSEN IS

ENTITLED TO A DETERMINATION

OF WHETHER THE RESTRICTION

ON HIS SACRAMENTAL

MARIJUANA USE IS SUPPORTED

BY A COMPELLING INTEREST OR

VIOLATES HIS RIGHTS UNDER

THE FREE EXERCISE CLAUSE OF

THE FIRST AMENDMENT.

Olsen’s complaint also sought relief under the

Free Exercise Clause of the First Amendment,

claiming that the CSA’s restriction on _ his

sacramental use of marijuana was an improper and

unjustified burden on his ability to practice his

religion. Although the decision in Employment Div.

v. Smith holds that restrictions on the use of

controlled substances for religious purposes need not

be justified by a compelling state interest, Smith

qualified the rule by holding that the prohibition

must be neutral and generally applicable. Smith,

494 U.S. at 879. Thus, if a law is not “neutral and

generally applicable,’ the government must

demonstrate that an application which infringes

upon the religious liberty of an individual is

supported by a compelling governmental interest and

that the law is narrowly tailored to serve that

interest. Tenafly Eruv Assn. v. Borough of Tenafly,

309 F.3d 144, 165 (3d Cir. 2002), cert. denied, 539

U.S. 942 (2003) (citing Church of the Lukumi Babalu

Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532, 542

(1993)). “[I]n circumstances in which individualized

exemptions from a_— general requirement are

available, the government ‘may not refuse to extend

that system to cases of ‘religious hardship’ without

compelling reason.” Church of the Lukumi Babalu

Aye, 508 U.S. at 537 (quoting Smith, 494 U.S. at

884).

Additionally, the Smith Court left open the

viability of Free Exercise Clause attacks on laws that

violate the First Amendment in conjunction with

other constitutional protections. In these “hybrid

rights” situations, heightened scrutiny is required.

Cornerstone Bible Church v. City of Hastings, 948

F.2d 464, 472-73 (8th Cir. 1991) (citing Smith, 494

U.S. at 881-82).

,. The Controlled Substances Acts Are

Not Neutral and Generally Applicable.

As pointed out in the Complaint, the federal

and Iowa CSA make express exemption for certain

controlled substance use, such as use of peyote for

religious purposes. The federal CSA contains other

exceptions permitting the use of controlled

substances for purposes such as scientific research

and medical use, and the lowa CSA specifically

exempts medical use of marijuana from the

prohibitions of Schedule I of the Iowa CSA, while

religious use of marijuana remains prohibited. See,

e.g., 21 U.S.C. § 823, 21 C.F.R. §§ 291.505, 1301.26,

1301.34, and lowa Code § 124.204(7), 124.204(7).

Thus, the Controlled Substances Acts do not apply

across-the-board, either as to Schedule I substances

generally or as to marijuana in particular. Instead,

both the federal government and the State of lowa

have allowed use of Schedule I substances and

marijuana under particular circumstances, including

as a religious sacrament.

Even if the state and federal CSA are neutral

(in the sense that they are not targeted at religious

exercise), the existence of these exemptions and

exceptions to the CSA’s prohibitions means that the

laws are not generally applicable. “The Free

Exercise Clause ‘protect{s] religious observers

against unequal treatment,” Hobbie v.

Unemployment Appeals Comm'n of Fla., 480 U.S.

136, 148 (1987) (Stevens, J., concurring in judgment).

The Constitution is offended when the government

prefers certain religious denominations. See Larson

v. Valente, 456 U.S. 228, 245 (1982) (striking down

denominational preference).

The federal government and Iowa provide

exemptions from the prohibition on the use of

marijuana and other controlled substances for

certain non-religious and religious uses. Having

done so, these governments may not refuse to extend

the exemption to Olsen’s claim of religious hardship

without compelling reason. “[WJjhere the State has

in place a system of individual exemptions, it may

not refuse to extend that system to cases of ‘religious

hardship’ without compelling reason.” Smith, 494

U.S. at 884; accord Church of the Lukumi Babalu

Aye, 508 U.S. at 537. In Fraternal Order of Police v.

City of Newark, 170 F.3d 359 (3d Cir.), cert. denied,

528 U.S. 817 (1999), the court, in an opinion

authored by then circuit judge Alito, held

unconstitutional a police department policy that

granted exemptions from a “no beards” policy for

medical reasons but refused to grant exemptions to

officers whose religious beliefs required growing a

beard. In holding that the policy was subject to strict

scrutiny under Smith, the court wrote as follows:

[T]he medical exemption raises concern

because it indicates that the

Department has made a value judgment

that secular (1.e., medical) motivations

for wearing a beard are important

enough to overcome its general interest

in uniformity but that religious

motivations are not. As discussed

above, when the government makes a

value judgment in favor of secular

motivations, but not religious

motivations, the government’s actions

must survive heightened scrutiny.

Id., 170 F.3d at 366.

The Court of Appeals ruling that the CSAs are

generally applicable is simply unsupported. It wrote

that “[g]Jeneral applicability does not mean absolute

universality. Exceptions do not negate that the

CSAs are generally applicable,” citing O Centro

Espirita, 546 U.S. at 436, and two circuit court

decisions® as support for its ruling (A-8, -9). Neither

circuit court decision involved general applicability

under the Free Exercise Clause and so are

inapposite.? Moreover, this Court in O Centro

° United States v. Milk, 281 F.3d 762, 768 (8 Cir.

2002), and United States v. Meyers, 95 F.3d 1475,

1481 (10t Cir. 1996), cert. denied, 522 U.S. 1006

(1997).

’ The decision in Milk made a passing reference to

the “general applicability” of the drug laws, but

simply for the purpose of rejecting a defendant’s

claim that an exception for tribal housing should be

implied into the definition of “public housing” in 21

U.S.C. § 860. In Meyers, the defendant never argued

Espirita, 546 U.S. at 436, stressed that because the

federal government granted exemptions to some

controlled substance uses, including religious uses, it

could not categorically deny exemptions for other

religious uses.

The grant of exemptions from the CSAs for

certain religious and non-religious reasons while

denying similar treatment to persons such as Olsen

seeking to exercise sincerely-held religious beliefs

prevents these laws from being considered “generally

applicable.” As a consequence, application of the

laws to Olsen must be shown to be supported by a

“compelling interest” and to be narrowly tailored to

serve that interest. Church of the Lukumi Babalu

Aye, Inc., 508 U.S. at 532, 542.

2. Olsen’s Claims in This Case Involve

“Hybrid Rights” Requiring Strict

Scrutiny.

A compelling interest inquiry also is required

here because Olsen’s claims involve the Free

Exercise Clause, combined with other constitutional

rights. In addition to the First Amendment, the

Complaint sets forth infringements of Olsen’s rights

to equal protection of the law, see infra, to due

process under’ the Fifth and Fourteenth

Amendments, to assemble and worship with other

that the CSA’s prohibition on marijuana was not

generally applicable, and so the court never

addressed that issue.

members of his faith, his property rights under the

Fourth and Fifth Amendments, and the prohibition

on ex post facto applications of the law to his

religion, which is centuries old and has regularly

used cannabis as its sacrament. In Cornerstone Bible

Church, 948 F.2d at 472-73, the court recognized

that a “hybrid rights” free exercise claim under

Smith is stated where the First Amendment claim is

combined with, inter alia, equal protection claims.

That is precisely the situation here. The existence of

this “hybrid rights” claim triggers strict scrutiny and

requires judicial examination under the approach set

forth in O Centro Espirita.

Il. COLLATERAL ESTOPPEL DOES

NOT BAR OLSENS EQUAL

PROTECTION CLAIMS BECAUSE

THE RECENT DECISION IN O

CENTRO ESPIRITA DEPRIVES

ANY PREVIOUS DECISIONS OF

THEIR PRECLUSIVE EFFECT.

The lower courts also relied upon collateral

estoppel to dismiss Olsen’s claims against the

Defendants based upon the Fifth and Fourteenth

Amendments’ guarantees to equal protection (A-9).8

With respect to those claims, Olsen alleged that he is

similarly situated to Native American Church

members in their sacramental use of a substance

* The lower courts relied upon the decisions in the

cases set forth in footnote 3, supra.

considered a Schedule I controlled substance and to

UDV Church members who were claimants in the O

Centro Espirita case. “Consequently, the

Defendants’ decision to allow the members of the

Native American Church to use peyote and members

of the UDV church to use DMT for religious

purposes, while denying the same protection to

Plaintiff, violates the Equal Protection rights of the

Plaintiff guaranteed by the Fifth and Fourteenth

Amendments to the U.S. Constitution (Dkt. # 1;

Complaint p. 18).

The application of collateral estoppel to these

equal protection claims was error because it again

fails to take into account the decision in O Centro

Espirita. O Centro Espirita rejected the federal

government's claim that it had demonstrated a

compelling interest to require denial of the

preliminary injunction. This Court stressed that the

government's claim of a compelling interest was

undermined by the exemption given to Native

American churches for peyote. The unanimous

decision concluded that there is no _ reasonable

distinction between the sacramental use of the tea

with DMT and Native American use of peyote:

For the past 35 years, there has been a

regulatory exemption for use of peyote --

a Schedule I substance -- by the Native

American Church. See 21 C.F.R. §

1307.31 (2005). In 1994, Congress

extended that exemption to all members

of every recognized Indian Tribe. See 42

U.S.C. § 1996a(b)(1). Everything the

Government says about the DMT in

hoasca -- that, as a Schedule I

substance, Congress has determined

that it “has a high potential for abuse,”

“has no currently accepted medical use,”

and has “a lack of accepted safety for

use ... under medical supervision,” 21

U.S.C. § 812(b)(1) -- applies in equal

measure to the mescaline in peyote, yet

both the Executive and Congress itself

have decreed an exception from the

Controlled Substances Act for Native

American religious use of peyote. If

such use is permitted in the face of

the findings in § 812(b)(1) for

hundreds of thousands of Native

Americans practicing their faith, it

is difficult to see how those same

findings alone can preclude any

consideration of a similar exception

for the 130 or so American members

of the UDV who want to practice

theirs. See Church of Lukumi Babalu

Aye, Inc. v. Htaleah,.- 508 U.S. 520, 547,

118 8S. Ct. 2217, 124 L. Ed. 2d 472

(1993) (“It is established in our strict

scrutiny jurisprudence that ‘a law

cannot be regarded as protecting an

interest ‘of the highest order’... when

it leaves appreciable damage to that

supposedly vital interest unprohibited”

(quoting Florida Star v. B.J.F., 491 U.S.

524, 541-542 (1989) (Scalia, Ji.,

concurring in part and concurring in

judgment)).

The Government responds that there is

a “unique relationship” between the

United States and the Tribes, Brief for

Petitioners 27; see Morton v. Mancart,

417 U.S. 535 (1974), but never explains

what about that “unique” relationship

justifies overriding the same findings

on which the Government relies in

resisting any exception for the UDV’s

religious use of hoasca. In other words,

if any Schedule I substance is in fact

always highly dangerous in any

amount, no matter how used, what

about the unique relationship with the

Tribes justifies allowing their use of

peyote? Nothing about the unique

political status of the Tribes makes

their members immune from the health

risks the Government asserts

accompany any use of a Schedule I

substance, nor insulates the Schedule I

substance the Tribes use in religious

exercise from the alleged risk of

diversion.

O Centro Espirita, 546 U.S. at 433-434 (emphasis

added).

This passage establishes as a matter of law

that there is really nothing to distinguish Native

American church use of peyote from the sacramental!

use of Schedule I controlled substances by other

individuals. The recent recognition of this principle

wholly undermines prior decisions, including those

involving Olsen, that there is some rational basis for

singling out the Native American church for a

Schedule I religious exemption. Indeed, because the

distinction drawn here involves the fundamental

right to free exercise of religion and the Native

American peyote exemption exhibits discrimination

between religions, the classification made here

should be subjected to strict scrutiny. Locke v.

Davey, 540 U.S. 712, 720 n.2 (2004).

The same reasoning has previously been

expressed by the Department of Justice’s legal

counsel in a memo concerning the exemption granted

the Native American Church:

The special treatment of Indians under

our law does not stem from the unique

features of Indian religion or culture.

With respect to these matters, Indians

stand on no different footing than do

other minorities in our _ pluralistic

society. Rather, the special treatment of

Indians is grounded in their unique

status as political entities, formerly

sovereign nations’ preexisting the

Constitution, which still retain a

measure of inherent sovereignty over

their peoples unless divested by federal

statute or by necessary implication of

their dependent status. See United

States v. Wheeler, 435 U.S. 313, 55 L.

Ed. 2d 303, 98 S. Ct. 1079 (1978).

An exemption for Indian religious use of

peyote would not be grounded in the

unigue political status of Indians.

Instead, the exemption would be based

on the special culture and religion of the

Indians. In this respect, Indian religion

cannot be treated differently than other

religions similarly situated without

violation of the Establishment Clause.

DEA, 878 F.2d at 1469 (Buckley, J., dissenting)

quoting Memorandum Opinion for the Chief Counsel,

Drug Enforcement Administration, Peyote Exemption

for Native American Church 4038, 419 (Dec. 22, 1981).

Again, the legal principles applicable to

Olsen’s equal protection claims have changed in the

time since his prior claims were disposed of in earlier

cases. This change in the law means the collateral

estoppel is inapplicable and the District Court erred

in dismissing Olsen’s equal protection claims under

that doctrine.

CONCLUSION

For the reasons set forth above, the petition

for writ of certiorari should be granted.

Respectfully submitted,

JAMES R. COOK

Counsel of Record

JAME R. COOK, P.C.

401 GRAND AVENUE

WEST DES MOINES, Iowa 50265

(515) 327-9494

JOHN W. WHITEHEAD

DOUGLAS R. MCKUSICK

THE RUTHERFORD INSTITUTE

P.O. Box 7482

CHARLOTTESVILLE, VIRGINIA 22906

(434) 978-3888

No. 08-

In The

Supreme Court of the Gnited States

CARL ERIC OLSEN,

Petitioner,

MICHAEL B. MUKASEY, ATTORNEY GENERAL OF THE

UNITED STATES; MICHELE LEONHART, ACTING

ADMINISTRATOR OF THE UNITED STATES

DRUG ENFORCEMENT ADMINISTRATION;

THOMAS MILLER, ATTORNEY GENERAL OF IOWA;

JOHN SARCONE, ATTORNEY OF POLK COUNTY, IOWA; AND

DENNIS ANDERSON, SHERIFF OF POLK COUNTY, IOWA,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

APPENDIX

James R. Cook John W. Whitehead

Counsel of Record Douglas R. McKusick

JAMES R. COOK, P.C. THE RUTHERFORD INSTITUTE

401 Grand Avenue Post Office Box 7482

West Des Moines, IA 50265 Charlottesville, VA 22906

(515) 327-9494 (434) 978-3888

Counsel for the Petitioner

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

A-]

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 07-3062

Carl Eric Olsen,

Appellant,

Michael Mukasey,

Attorney General of the

United States; Thomas

Miller, Attorney General

of Iowa; John Sarcone,

Attorney of Polk County,

Iowa; Dennis Anderson,

Sheriff of Polk County,

Iowa; Karen Tandy,

Administrator of the

United States Drug

Enforcement

Administration,

Appeal from the

United States

District Court for the

Southern District of

Iowa.

* *&€* &€& & Fe FE He HF HERE HF HOW Rei RF FH KF HR OS

Appellees.

Submitted: April 18, 2008

Filed: September 8, 2008

A-2

Before GRUENDER, BRIGHT, and BENTON,

Circuit Judges.

BENTON, Circuit Judge.

Carl Eric Olsen appeals the district court's}

order dismissing his complaint for declaratory and

injunctive relief from the federal and Iowa Controlled

Substances Acts (CSAs) for his sacramental use of

marijuana. Having jurisdiction under 28 U.S.C. §

1291, this court affirms.

Olsen asserts that he adheres to the teachings

of the Ethiopian Zion Coptic Church (EZCC), which

advocates the use of marijuana. In State v. Olsen, 315

N.W.2d 1 (Iowa 1982), Olsen appealed from a

conviction for possession of marijuana with intent to

deliver. The court considered and rejected his free-

exercise-of-religion defense. In United States v. Rush,

738 F.2d 497 (1st Cir.1984), Olsen was one of fifteen

defendants convicted for taking part in an operation

to distribute marijuana. Again, his free exercise

defense was rejected. In Olsen v. DEA, 878 F.2d 1458

(D.C.Cir.1989), the court affirmed the Drug

Enforcement Administration's denial of Olsen's

request for a _ religious-use exemption from the

federal laws proscribing marijuana.

‘The Honorable John A. Jarvey, United States District

Judge for the Southern District of Iowa.

A-3

After Olsen, Rush, and DEA, the Supreme

Court changed the standard of review for neutral

laws of general applicability that burden religion, in

Employment Division v. Smith, 494 U.S. 872, 110

S.Ct. 1595, 108 L.Ed.2d 876 (1990). In response,

Congress passed the Religious Freedom Restoration

Act of 1993 (RFRA), restoring the pre- Smith

compelling interest test in all cases where free

exercise of religion is substantially burdened. 42

U.S.C. § 2000bb.

Olsen filed this complaint in district court

seeking a declaration that for his religious use,

marijuana is not a controlled substance under the

CSAs, and an order enjoining federal, state and local

officials from enforcing the CSAs against him for the

sacramental use of marijuana. The court dismissed

Oisen's claims under Rule 12(b)(6) for failure to state

a claim. This dismissal is a question of law subject to

de novo appellate review. Harris v. Epoch Group,

357 F.3d 822, 824-25 (8th Cir.2004).

II.

Olsen argues that the court erred in

dismissing his statutory claims under RFRA and the

Religious Land Use and Institutionalized Persons Act

(RLUIPA).

A. State RFRA Claim

Olsen contends that the court's dismissal of his

RFRA claim against the state officials was improper

A-4

since RFRA should apply to the same governments as

RLUIPA (which does apply to state governments).

Olsen also maintains that the Iowa CSA “functions

as an appendage of federal drug law” since it adopts

federal designations of controlled substances and

Iowa's drug law enforcement receives funding from

the federal government.

Application of RFRA to the states is

unconstitutional. City of Boerne v. Flores, 521

U.S. 507, 511, 117 S.Ct. 2157, 138 L.Ed.2d 624

(1997); In re Young, 141 F.3d 854, 856 (8th

Cir.1998). The RFRA definition of “government” has

been amended to no _ longer include _ state

governments. Pub.L. No. 106-274, § 7(a)(1), 114

Stat. 806 (2000) (codified at 42 U.S.C. § 2000bb-

2). The Iowa CSA is state law, not subject to RFRA.

B. Federal RFRA Claim

The district court rejected Olsen's federal

RFRA claim based on collateral estoppel. Collateral

estoppel or issue preclusion has five basic elements:

(1) the party sought to be precluded in the second

suit must have been a party, or in privity with a

party, to the original lawsuit; (2) the issue sought to

be precluded must be the same as the issue involved

in the prior action; (3) the issue sought to be

precluded must have been actually litigated in the

prior action; (4) the issue sought to be precluded

must have been determined by a valid and final

judgment; and (5) the determination in the prior

action must have been essential to the prior

A-5

judgment. Robinette v. Jones, 476 F.3d 585, 589

(8th Cir.2007), citing Anderson v. Genuine Parts

Co., Inc., 128 F.3d 1267, 1273 (8th Cir.1997).

Collateral estoppel does not apply if controlling

facts or legal principles have changed significantly

since Olsen's prior judgments. See Montana uv.

United States, 440 U.S. 147, 155, 99 S.Ct. 970, 59

L.Ed.2d 210 (1979). Collateral estoppel “is designed

to prevent repetitious lawsuits over matters which

have once been decided and which have remained

substantially static, factually and _ legally.”

Commissioner v. Sunnen, 333 U.S. 591, 599, 68

S.Ct. 715, 92 L.Ed. 898 (1948).

According to Olsen, his claim is not barred by

collateral estoppel because RFRA, as interpreted in

Gonzales v. O Centro Espirita Beneficente Uniao Do

Vegetal, 546 U.S. 418, 126 S.Ct. 1211, 163 L.Ed.2d

1017 (2006), changed the method for determining

whether the government has a compelling interest in

prohibiting his sacramental use of marijuana. To the

contrary, an explicit purpose of RFRA was to “restore

the compelling interest test as set forth in Sherbert v.

Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965

(1963) and Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct.

1526, 32 L.Ed.2d 15 (1972) and to guarantee its

application in all cases where free exercise of religion

is substantially burdened...."42 U.S.C. § 2000bb-1.

Olsen claims O Centro requires that the compelling

interest of a challenged law must. be evaluated with

respect to the particular claimant whose religious

exercise is substantially burdened, and that this

A-6

requirement did not exist pre- Smith. In fact, O

Centro says that Sherbert and Yoder“looked beyond

broadly formulated interests justifying the general

applicability of government mandates and

scrutinized the asserted harm of granting specific

exemptions to particular religious claimants.” O

Centro, 546 U.S. at 431, 126 S.Ct. 1211. The pre-

Smith standard required a particularized evaluation.

See, e.g., Quaring v. Peterson, 728 F.2d 1121,

1126-27 (8th Cir.1984) (applying Sherbert and Yoder

by evaluating whether a government interest in

requiring driver's license photographs is compelling

as applied to a particular free-exercise claimant),

aff'd by an equally divided court, 472 U.S. 478, 105

S.Ct. 3492, 86 L.Ed.2d 383 (1985). The pre- Smith

standard applicable in Olsen, Rush, and DEA is the

same standard applicable to Olsen's current claim.

There is no difference in the controlling law. Olsen's

federal RFRA claim is barred by collateral estoppel.

C. RLUIPA

RLUIPA protects religious land use and the

religious exercise of institutionalized persons.

RLUIPA applies only to land use regulations and

persons in an institution. 42 U.S.C. § 2000cc et seq.

A “flland use regulation” is “a zoning or

landmarking law, or the application of such a law,

that limits or restricts a claimant's use or

development of land...."42 U.S.C. § 2000cc-5. The

CSAs are not land use regulations under RLUIPA.

Olsen also claims RLUIPA protection as a

person in an institution. According to RLUIPA:

(1) The term “institution” means any facility or

institution-

(A) which is owned, operated, or

managed by, or provides services on

behalf of any State or _ political

subdivision of a State; and

(B) which is-

(i) for persons who are mentally ill,

disabled, or retarded, or chronically ill

or handicapped;

(ii) a jail, prison, or other correctional

facility;

(ii1) a pretrial detention facility;

(iv) for juveniles ...

(v) providing skilled nursing,

intermediate or long-term care, or

custodial or residential care.

42 U.S.C. § 1997. Olsen does not allege any facts

indicating that he is an institutionalized person for

purposes of RLUIPA.

III.

A-8

Olsen argues that the district court erred in

dismissing his free exercise and equal protection

claims. He contends that the CSAs are not neutral

laws of general applicability and therefore, their

application must be supported by a compelling

government interest. He alternatively asserts that

his claims involve “hybrid rights,” requiring the

compelling interest test.

Under Smith, if a law that is not “neutral and

generally applicable” burdens a religious practice, it

must be narrowly tailored to achieve a compelling

government interest. Church of the Lukumi

Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520,

531, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993). A law is

not neutral if its object is “to infringe upon or restrict

practices because of their religious motivation.” Id.

at 533. Absent evidence of an “intent to regulate

religious worship,” a law is a neutral law of general

applicability. Cornerstone Bible Church v. City

of Hastings, 948 F.2d 464, 472 (8th Cir.1991).

Olsen does not allege that the object of the

CSAs is to restrict the religious use of marijuana or

target the EZCC. Rather, he contends that the CSAs

are not generally applicable because they exempt the

use of alcohol and tobacco, certain research and

medical uses of marijuana, and the sacramental use

of peyote. General applicability does not mean

absolute universality. Exceptions do not negate that

the CSAs are generally applicable. See O Centro,

546 U.S. at 436; United States v. Milk, 281 F.3d

A-9

762, 768 (8th Cir.2002); United States v. Meyers,

95 F.3d 1475, 1481 (10th Cir.1996).

In addition to his free exercise claim, Olsen

alleges an equal protection violation, invoking the

Smith “hybrid rights” doctrine: “The only decisions

in which we have held that the First Amendment

bars application of a neutral, generally applicable

law to religiously motivated action have involved not

the Free Exercise Clause alone, but the Free Exercise

Clause in conjunction with other constitutional

protections....". Smith, 494 U.S. at 881 Olsen

contends that since he is alleging a violation of

hybrid rights, the compelling interest test applies.

Olsen's free exercise claim was previously

considered in Olsen, Rush, and DEA. Strict scrutiny

was the appropriate analysis then just as it is under

the “hybrid rights” doctrine. As discussed, there has

not been a change in controlling law since these prior

cases. Therefore, Olsen's free exercise claim-alone or

hybrid-is barred by collateral estoppel.

Olsen has also already litigated his equal

protection claim. See Rush, 738 F.2d at 513;

DEA, 878 F.2d at 1463; Olsen v. State of Iowa,

808 F.2d 652, 653 (8th Cir.1986) (per curiam). He

asserts O Centro is an intervening change in law, but

O Centro does not address equal protection. This

court agrees with the district court that Olsen's equal

protection claim is barred by collateral estoppel.

IV.

A-10

The judgment of the district court is affirmed.

A-11

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF IOWA

CENTRAL DIVISION

CARL ERIC OLSEN,

Plaintiff, No. 4:07-cv-0023-JAJ

VS.

ALBERTO R. GONZALES, et al.,

ORDER

Defendants.

I. Spe Ds cco nc ee ene cueeucees 2

II. CONCLUSIONS OF LAW ............. 3

A. Fea. BACiv.P. M1)... ee eee 3

B. Failure to state a Claim under

Fed.N.Civ.P. EBS)... ww ee 6

1. Statutory Claims........... 7

m. GUE Bo Bees 2 se cc eee ee 7

b. CountI: RLUIPA.......... 12

2. Constitutional Claims...... 13

a. Count II: First Amendment. .13

b. Count III: Equal Protection

er ee ae eae 14

ce. Count TV: Ex Post Facto Clause

eee aera aa ee ae oe ee 15

A-12

e. Count VII: Fifth Amendment ..

ante: Greta eee as ren er ae 16

3. Other Claims ............. 17

a. Count V: Iowa Controlled

suuecemees Act .........-.-. 17

kb. Count VIII: Administrative

Procedure Act ............. 17

c. Count IX: Treaties and

ee 18

d. Count X: Request for

Declaratory Judgment...... 19

Boe. “RPG odo a cc oe eek oS eee wea we 19

I. INTRODUCTION

This matter comes before the court pursuant to

Attorney General of lowa Thomas Miller’s February

7, 2007 Motion to Dismiss (docket 8) and Attorney of

Polk County John Sarcone and Sheriff of Polk County

Dennis Anderson’s March 19, 2007 Joinder (docket

15) (hereinafter “State Defendants” where applicable)

and Attorney General of the United States Alberto

Gonzales and Administrator of the United States

Drug Enforcement Administration Karen Tandy’s

(hereinafter “Federal Defendants”) April 10, 2007

Motion to Dismiss (docket 21).

Plaintiff Car] Eric Olsen’s (hereinafter “Olsen”)

January 16, 2007 Complaint raises the following

claims against State and Federal Defendants

(“Defendants” collectively): (Count I) Violation of the

Religious Freedom Restoration Act (RFRA) and the

A-13

Religious l.amd Use and Institutionalized Persons Act

(RLUIPA); ‘fount ID) Violation of the First

Amendment; (Count III) Violation of the Equal

Protection Clause; (Count IV) Violation of the Ex

Post Facto Clause; (Count V2) Improper Application

of the Controlled Substances to Cannabis; (Count VI)

Violation of the Fourth Amendment; (Count VII)

Violation of the Fifth Amendment; (Count VIII)

Violation of the Administrative Procedure Act;

(Count IX) Violation of International Law and

Treaties; and (Count X) Request for Declaratory

Judgment. Defendant Miller filed his Motion to

Dismiss on February 7, 2007 (docket 8). Olsen filed

his Response on February 23, 2007 (docket 9).

Defendants Sarcone and Anderson joined Defendant

Miller’s Motion and brief in support on March 19,

2007 (docket 15). Federal Defendants filed their

Motion to Dismiss on April 10, 2007 (docket 21).

Olsen filed his Response on May 2, 2007 (docket 30).

Federal Defendants filed their Reply on May 25, 2007

(docket 38). Olsen filed a Motion for Leave to File

Surreply and Motion For Leave to File to File

Overlength Brief on June 4, 2007 (docket 40). The

court denied both of Olsen’s Motions regarding his

proposed Surreply on June 5, 2007 (docket 41). Olsen

filed a Motion for Summary Judgment on July 3,

2007 (docket 46).

Olsen asserts that the RFRA and RLUIPA

amend the Federal Controlled Substances Act and

the Iowa Controlled Substances Act. As such, Olsen

> The court re-numbered the last five claims as Olsen labeled

two claims as claim four.

A-14

urges this court to find that Defendants’

interpretations of the Federal CSA and the lowa CSA

are unlawful and unconstitutional as applied to him.

Specifically, Olsen seeks an order determining that

“Cannabis is not a controlled substance under the

Federal CSA or the Iowa CSA” and “an order

enjoining Defendants from applying the Federal CSA

and the Iowa CSA {to him) for his sacramental use of

cannabis.” For the reasons listed below, the court

dismisses Olsen’s claims against all Defendants.

Il. CONCLUSIONS OF LAW

Defendants base their motions upon Fed. R.

Civ. P. 12(b)(6) (failure to state a claim upon which

relief can be granted). Federal Defendants further

assert that this court should dismiss Olsen’s

complaint for lack of subject matter jurisdiction. Fed.

R. Civ. P. 12(b)(1). The court first addresses the issue

of subject matter jurisdiction. See Brotherhood of

Maintenance of Way Employees Div. of Intern. Broth.

Of Teamsters v. Union Pacific R. Co., 2007 WL

541826, 9 (N.D. Iowa 2007) (court notes that

challenges to subject matter jurisdiction must be

addressed prior to other challenges) (citations

omitted).

A. Fed. R. Civ. P. 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1)

provides a party may move to dismiss in a pre-

answer motion due to “lack of jurisdiction over the

subject matter.” Id. Here, Federal] Defendants raise

the issue “in the form of a Rule 12(b)(1) pre-answer

A-15

motion, [and] the question may be resolved either on

the face of the pleadings or upon factual

determinations made in consideration of matters

outside of the pleadings.” Id. Federal Defendants

assert that Olsen has failed to demonstrate that his

claims are ripe for review because he is not currently

facing an impending threat of prosecution. The court

addresses the issue as to all Defendants, as “subject

matter jurisdiction goes to the court’s power to hear

the case.” See Brotherhood of Maintenance Way

Employees Div. of Intern. Broth. Of Teamsters v.

Union Pacific R. Co., 475 F.Supp.2d 819, 831 (N.D.

Iowa 2007) (court acknowledges the question of

subject matter jurisdiction may be raised by any

party or the court at any time).

“The ripeness doctrine flows both from the

Article III ‘cases’ and ‘controversies’ limitations and

also from prudential considerations for refusing to

exercise jurisdiction.” Pub. Water Supply Dist. No. 10

of Cass County, Mo. v. City of Peculiar, Mo., 345 F.3d

570, 572 (8th Cir. 2003) (quoting Nebraska Pub.

Power Dist. v. MidAmerican Energy Co., 234 F.3d

1032, 1037 (8th Cir.2000)). The test for ripeness

includes two prongs: (1) whether the issue is fit for

judicial decision, i.e. whether the case would benefit

from further factual development, and (2) hardship to

the parties, 1.e. whether Olsen “has sustained or is

immediately in danger of sustaining some direct

injury.” Pub. Water Supply Dist. No. 10, 345 F.3d at

573. Here, the issue centers upon the second prong.

A-16

A claim must be ripe in a declaratory

judgment action, however such an action “can be

sustained [even] if no injury has yet occurred.” Public

Water Supply Dist. No. 8 of Clay County, Mo. v. City

of Kearney, Mo., 401 F.3d 930, 932 8th Cir. 2005)

(internal citations omitted). The Eighth Circuit

recently stated, “Like the Fourth Circuit, we

‘encourage a person aggrieved by laws he considers

unconstitutional to seek a declaratory judgment

against the arm of the state entrusted with the

state’s enforcement power, all the while complying

with the challenged law, rather than to deliberately

break the law and take his chances in the ensuing

suit or prosecution.” St. Paul Area Chamber of

Commerce v. Gaertner, 439 F.3d 481, 488 (8th Cir.

2006) (quoting Mobil Oil Corp. v. Attorney Gen., 940

F.2d 73, 75 (4th Cir.1991)) “[D]ismissal for lack of

subject matter jurisdiction is appropriate only in

those rare instances when the challenged claim

‘clearly appears to be immaterial and made solely for

the purpose of obtaining jurisdiction or where such a

claim is wholly insubstantial and frivolous.” Id.

(citing Trimble v. Asarco, Inc., 232 F.3d 946, 953 (8th

Cir.2000) (quoting Bell v. Hood, 327 U.S. 678, 682-83,

66 S.Ct. 773, 90 L.Ed. 939 (1946)).

The court acknowledges that “[a] document

filed pro se is ‘to be liberally construed,’ and ‘a pro se

complaint, however inartfully pleaded, must be held

no less stringent standards than formal pleadings

drafted by lawyers,” Erickson v. Pardus, 127 S.Ct.

2197, 2200 (2007) (internal citation omitted). Federal

Rule of Civil Procedure 8(a) dictates that a plaintiff

A-17

must make a short, plain statement of the grounds

for this court’s subject matter jurisdiction. In the

present case, Olsen states that this court has

jurisdiction “under 28 U.S.C. § 1331 because the

action arises under the laws and Constitution of the

United States.” Complaint, p. 4. Specifically, Olsen

seeks a determination of his rights under the RFRA

and RLUIPA, raises numerous constitutional and

state law claims, and asserts rights under various

international treaties. The court finds that Olsen

survives the basic requirements of Rule 8(a).

B. Failure to state a Claim under Fed. R. Civ. P.

12(b)(6)

A plaintiff survives a Rule 12(b)(6) motion by

adequately stating a claim’; to do so, the plaintiff

must provide “more than labels and conclusions, and

° The Supreme Court recently clarified the applicable

standard under Rule 12(bX6) in Bel] Atlantic Corp. v.

Twombly, 127 S.Ct. 1955 (2007). Previously, a court would

not dismiss a complaint pursuant to Rule 12(b)(6) according

to “the accepted rule that a complaint should not be

dismissed for failure to state a claim unless it appears

beyond doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to relief.”

Conley v. Gibson, 355 U.S. 41, 46 (1957). The Bell Atlantic

Court rejected Conley’s “no set of facts” standard and instead

determined that “once a claim has been stated adequately, it

may be supported by showing any set of facts consistent with

the allegations in the complaint.” Bell Atlantic, 127 S.Ct. at

1969. The Supreme Court clarified Conley to stand for the

“breadth of opportunity to prove what an adequate complaint

claims, not the minimum standard of adequate pleading to

govern a complaint’s survival.” Bell Atlantic, 127 S.Ct. at

1969.

A-18

a formulaic recitation of the elements of a cause of

action will not do.” Beli Atlantic Corp. v. Twombly,

127 S.Ct. 1965 (2007). "Factual allegations must be

enough to raise a right to relief above the speculative

level,”Id. (citing 5 C. Wright & A. Miller, Federal

Practice and Procedure § 1216, pp. 234-236 (3d

ed.2004). When analyzing the adequacy of a

complaint’s allegations under Rule 12(b)(6), the court

must accept as true all of the complaint’s factual

allegations and view them in the light most favorable

to the plaintiff. Id.; see Swierkiewicz v. Sorema N.A.,

534 U.S. 506, 508 n.1 (2002); Erickson v. Pardus, 127

S.Ct. 2197, 2200 (2007) (“when ruling on a

defendant’s motion to dismiss, a judge must accept as

true all of the factual allegations contained in the

complaint”\(citations omitted).) “The issue is not

whether plaintiffs will ultimately prevail, but rather

whether they are entitled to offer evidence in support

of their claims.” U.S. v. Aceto Agr. Chemicals Corp.,

872 F.2d 1373, 1376 (8th Cir. 1989) (quoting Scheuer

v. Rhodes, 416 U.S. 232, 236 (1974), overruled on

other grounds, Davis v. Scherer, 468 U.S. 183 (1984)).

As noted previously, the court views pro se

complaints more liberally, however a pro se plaintiff

must still provided more than conclusory allegations.

Harris v. Gadd, 2007 WL 1106114, 1 (E.D. Ark. 2007)

(citations omitted).

1. Statutory Claims

Olsen states that the RFRA and RLUIPA were

passed by Congress “to prevent the government from

burdening the free exercise of religion unless it had a

compelling government interest in doing so and it

A-19

accomplished its goal by the least restrictive means.”

As such, Olsen asserts that Defendants have violated

his statutory rights under both statutes because,

(44) Defendants’ interpretations of the

Federal and Iowa versions of the CSA

substantially burden the Plaintiffs

Exercise of his Religion and use of his

land.

(45) Defendants’ criminalization of

Plaintiffs Sacramental use of

Cannabis serves no compelling

government interest.

(46) Even assuming that Defendants’

interpretations of the Federal and

Iowa versions of the CSA did serve a

compelling interest, a complete ban on

the Sacramental use of Cannabis by

the Plaintiff on his own land is not the

least restrictive means of furthering

any such interest.

Complaint, p. 16.

Defendant Miller asserts that “neither the

RFRA nor the RLUIPA apply under the facts of this

case, and, even if they did apply, they would not, asa

matter of law, affect the validity of any prohibition of

the use, possession or sale of marijuana since such

statutory prohibitions are the least restrictive means

of addressing a compelling state interest.”

a. Count I: RFRA

State Defendants assert that Olsen’s RFRA

claim fails “because the United States Supreme

A-20

Court has explicitly held that application of this

statute to the states is unconstitutional.” City of

Boerne v. Flores, 521 U.S. 507 (1997). The court

agrees and dismisses this Count as to the State

Defendants.

Congress enacted the RFRA in response to the

Supreme Court’s decision in Employment Division v.

Smith, 494 U.S. 872 (1990) in order to restore the

“compelling interest” test previously established in

Sherbert_ v. Verner, 374 U.S. 398 (1963) and

Wisconsin v. Yoder, 406 U.S. 205 (1972).4

The RFRA provides that

Government shall not substantially

burden a person’s exercise of religion

even if the burden results from a rule

of general applicability, except as

provided in subsection (b) of this

section.

* The Senate Judiciary Committee noted that

The Religious Freedom Restoration Act of 1993 is intended to

restore the compelling interest test previously applicable to

free exercise cases by requiring that government actions that

substantially burden the exercise of religion be demonstrated

to be the least restrictive means of furthering a compelling

governmental interest. The committee expects that the

courts will look to free exercise cases decided prior to Smith

for guidance in determining whether the exercise of religion

has been substantially burdened and the [] least restrictive

means have been employed in furthering a compelling

governmental interest.

S. Rep. No. 103-111 at 8-9 (1993) as reprinted in 1993

U.S.C.C.A.N. 1892, 1898.

(b)

(c)

A-21

Exception

Government may

substantially burden a

person’s exercise of

religion only’ if _ it

demonstrates that

application of the burden

to the person—

(1)is in furtherance of a

compelling governmental

interest; and

(2) is the least restrictive

means of furthering that

compelling governmental

interest.

Judicial relief

A person whose religious

exercise has been

burdened in violation of

this section may assert

that violation as a claim

or defense in a judicial

proceeding and_ obtain

appropriate relief against

a government. Standing

to assert a claim or

defense under this

section shall be governed

by the general rules of

standing under article III

of the Constitution.

42 U.S.C.A. § 2000bb-1

A-22

Olsen argues that the Supreme Court’s

decision in Gonzales v. O Centro Espirita Beneficente

Uniao do Vegetal, 126 S. Ct. 1211 (2006) supports his

bringing of the instant action. The O Centro court

affirmed the granting of a preliminary injunction

under the RFRA where it determined that “the

Government failed to demonstrate... a compelling

interest in barring the [plaintiff)’s sacramental use of

hoasca.” O Centro, 126 S.Ct. at 1225. This court finds

Olsen’s reasoning unpersuasive. In the initial

decision granting the preliminary injunction at issue

in O Centro, the district court distinguished its

treatment of hoasca from cases involving marijuana.

There is a second major distinction

between the present case and the

cases involving claims that’ the

principles of religious freedom

reflected in the Free Exercise Clause

and RFRA should be interpreted as

permitting the sacramental use of

marijuana. This distinction stems

from the significant differences in the

characteristics of the drugs at issue.

Affirming a trial court’s denial of a

criminal defendants’ request to rely in

*1254 RFRA as aé_e defense to

marijuana charges, the Eighth Circuit

stated “that the government has a

compelling state interest in controlling

the use of marijuana.” United States

v. Brown, 72 F.3d 134 (8th Cir.1995)

(table). As support for this

A-23

observation, the Brown court cited a

number of First Amendment opinions

which had emphasized problems

associated with the marijuana in

particular. See, e.g., United States v.

Greene, 892 F.2d 453, 456-57 (6th

Cir.1989) (“Every federal court that

has considered this issue has accepted

Congress’ determination that

marijuana poses a real threat to

individual health and social welfare

and had upheld criminal penalties for

possession and distribution even

where such penalties may infringe to

some extent on the free exercise of

religion.”); United States v. Middleton,

690 F.2d 820, 825 (llth Cir.1982),

quoting Leary v. United States, 383

F.2d 851, 860-61 (5th Cir.1967) (“It

would be difficult to imagine the harm

which would result if the criminal

statutes against marijuana were

nullified as to those who claim the

right to possess and traffic in this drug

for religious purposes.”)

O Centro Espirita Beneficiente Uniao Do Vegetal v.

Ashcroft, 282 F.Supp.2d 1236, 1253-1254 (D.N.M.

2002)

Further, the government has previously met

the “compelling interest” test in lawsuits brought by

Olsen on the same issue. See United States v. Rush,

A-24

738 F.2d 497 (C.A. Me. 984); Olsen v. Drug

Enforcement Admin., 878 F.2d 1458 (C.A.D.C. 1989).

In fact, Olsen’s previous unsuccessful lawsuit in

United States v. Rush, 738 F.2d 497 (C.A. Me. 984)

has been cited as a reason for dismissing “claims

which, while constituting a RFRA prima facie case,

had already been ruled invalid.” O Centro Espirita

Beneficiente Uniao do Vegetal v. Ashcroft, 342 F.3d

1170, 1179 (10th Cir. 2003) (court notes that “a

plaintiff seeking to use marijuana for religious

purposes would likely not be able demonstrate a

substantial likelihood of success on the merits

because courts have already ruled against

sacramental marijuana claims”\citing Rush, 738

F.2d at 512, for the conclusion that “the Government

has a compelling interest in banning the possession

and distribution of marijuana notwithstanding the

burden on religious practice”).

Federal Defendants thus properly assert that

collateral estoppel, or “issue preclusion,” blocks

Olsen’s claim. In the Eighth Circuit, issue preclusion

has five elements:

(1)the party sought to be precluded in

the second suit must have been a

party, or in privity with a party, to the

original lawsuit; (2) the issue sought

to be precluded must be the same as

the issue involved in the prior action;

(3) the issue sought to be precluded

must have been litigated in the prior

action; (4) the issue sought to be

precluded must have been determined

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by a valid and final judgment; and (5)

the determination in the prior action

must have been essential to the prior

judgment.

Robinette v. Jones, 476 F.3d 585, 589 (8th Cir. 2007)

(citing Anderson v. Genuine Parts Co,, Inc., 128 F.3d

1267, 1273 (8th Cir. 1997).

The court in Rush analyzed the government’s

interest in controlling marijuana use and distribution

as follows:

Much evidence has been adduced from

which it might rationally be inferred

that marijuana constitutes a health

hazard and a threat to social welfare;

on the other hand, proponents of free

marijuana use have attempted to

demonstrate that it is quite harmless.

See Randall v. Wyrick, 441 F.Supp.

312, 315-16 (W.D.Mo.1977); United

States v. Kuch, 288 F.Supp. 439, 446

& 448 (D.D.C.1968). In enacting

substantial criminal penalties for

possession with intent to distribute,

Congress has weighed the evidence

and reached a conclusion which it is

not this court’s task to review de novo.

Every federal court that has

considered the matter, so far as we are

aware, has accepted the congressional

determination that marijuana in fact

poses a real threat to individual

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health and social welfare, and has

upheld the criminal sanctions for

possession and distribution of

marijuana even where such sanctions

infringe on the free exercise of

religion. United States v. Middleton,

690 F.2d 820, 825 (11th Cir. 1982),

cert. denied, 460 U.S. 1051, 103 S.Ct.

1497, 75 L.Ed.2d 929 (1983); United

States v. Spears, 443 F.2d 895 (5th

Cir. 1971), cert. denied, 404 U.S. 1020,

92 S.Ct. 693, 30 L.Ed.2d 669 (1972);

Leary v. United States, 383 F.2d 851,

859-61 (5th Cir. 1967), rev’d on other

grounds, 395 U.S. 6, 89 S.Ct. 1532, 23

L.Ed.2d 57 (1969); Randall, 441

F.Supp. at 316 & n. 2; Kuch, 288

F.Supp. at 448. Only last year, the

Eleventh Circuit rejected identical

claims raised by some of the very

appellants before us in this case, see

Middleton, 690 F.2d 820, and the

United States Supreme Court denied

review. We decline to second-guess the

unanimous *513 precedent

establishing an overriding

governmental interest in regulating

marijuana.

United States v. Rush, 738 F.2d 497, 512-513 (C.A.

Me. 984).

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In Olisen, Olsen conceded that the government

had a “compelling interest in controlling the

distribution and drug-related use of marijuana” and

instead challenged the government’s means. See

Olsen, 878 F.2d at 1462. The court upheld the

government’s means as follows,

The pivotal issue, therefore, is

whether marijuana usage by Olsen

and other members of his church can

be accommodated without undue

interference with the government’s

interest in controlling the drug. Three

circuits have so far considered pleas

for religious exemption from the

marijuana laws; each has rejected the

argument that accommodation to

sacramental use of the drug is feasible

and therefore required. Rush, 738

F.2d at 513 (First Circuit); Olsen v.

Iowa, 808 F.2d at 653 (Eighth Circuit);

Middleton, 690 F.2d at 825 (Eleventh

Circuit). We have no reason to doubt

that these courts have accurately

gauged the Highest Court’s pathmarks

in this area.

Olsen v. Drug Enforcement Admin., 878 F.2d 1458,

1462 (C.A.D.C. 1989).

The court finds that Olsen was a party in the

above-mentioned lawsuits in which the current issue

was involved, actually litigated, determined by a

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valid, final judgment, and the eurrent claims were

essential to the prior judgment. As such, this Court

agrees that collateral estoppel applies to Olsen’s

claim under RFRA and dismisses Count I as to the

Federal Defendants as well.

b. Count I: RLUIPA

Olsen seeks a determination of his rights

under the RLUIPA, which protects “Religious

Exercise in Land Use and by Institutional Persons,”

as interpreted by the Supreme Court in Cutter v.

Wilkinson, 544 U.S. 709, 715, 125 (2005). In Cutter,

the Supreme Court’s analyzed Section 3 of the

RLUIPA, which provides, in part, that “[nJjo

government shall impose a substantial burden on the

religious exercise of a person residing in or confined

to an institution.” Id. 42 U.S.C.A. § 2000cc.

Defendants argue that Olsen may not bring a claim

under this statute as he is not incarcerated, and the

CSA does not affect Olsen’s religious use of land. The

court agrees and dismisses Olsen’s claims brought

under the RLUIPA as to all Defendants.

2. Constitutional Claims

Olsen alleges violations regarding his First

Amendment free exercise rights, Equal Protection,

the Ex Post Facto Clause, the Fourth Amendment,

and the Fifth Amendment.

a. Count II: First Amendment

Olsen asserts that the Defendants’

interpretation of the statutory and regulatory scheme

of the Federal Controlled Substances Act has violated

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his rights under the Free Exercise Clause of the First

Amendment, which provides that “Congress shall

make no law respecting an establishment of religion,

or prohibiting the free exercise thereof.” US CONST

AMEND I.

State Defendants note that Olsen’s free

exercise claims “have already been found to have no

merit by both the Eighth Circuit Court of Appeals

and by the Iowa Supreme Court.” Olsen v. State of

lowa, 808 F.2d 652 (8th Cir. 1986); State v. Olsen,

315 N.W.2d 1 (Iowa 1982).

Federal Defendants assert that Olsen’s claim

alternatively fails as a matter of law because the

CSA is a neutral law of general applicability, and

thus may burden Olsen’s “religiously motivated

conduct without compelling justification,” citing

Employment Div. Dep’t of Human Resources of

Oregon v. Smith, 494 U.S. 872, 883 (1990); United

States v. Meyers, 95 F.3d 1475, 1481 (10th Cir.

1996); QO Centro Espirita Beneficiente Uniao Do

Vegetal v. Ashcroft, 282 F. Supp. 2d 1236, 1246

(D.N.M. 2002).

As noted previously in the section regarding

Olsen’s RFRA claim in Count 1, the court finds that

Olsen is collaterally estopped from bringing the same

claim in this court. See Olsen, 878 F.2d at 1461.

(court notes that ”Oisen free exercise claim has been

raised, considered, and rejected in the context of

criminal proceedings” city Olsen v. Iowa, 808 F.2d at

653; Rush, 738 F.2d at 512-13; Middleton, 690 F.2d

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at 824-26; State v. Olsen, 315 N.W.2d at 7-9; Town v.

State ex rel. Reno, 377 So.2d at 650-51). The Court

dismisses Count II as to all Defendants.

b. Count UI: Equal Protection Clause

Olsen raises his equal protection clause as follows

57.The Plaintiff is similarly situated

to Native American Church members

in their sacramental use of a

substance considered a Schedule I

controlled substance under’ the

Federal and Iowa versions of the CSA.

Nevertheless, Defendants have

refused to accord the same deference

to the Plaintiff.

58. The Plaintiff is similarly situated

to UDV Church members in their

sacramental use of a_ substance

considered a Schedule I controlled

substance under the Federal and Iowa

versions of the CSA. Nevertheless,

Defendants have refused to accord the

same deference to the Plaintiff.

59. Consequently, the Defendants’

decision to allow the members of the

Native American Church to use peyote

and members of the UDV church to

use DMT for religious purposes, while

denying the same protection to the

Plaintiff, violates the Equal Protection

rights of the Plaintiff guaranteed by

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the Fifth and Fourteenth

Amendments to the United States.

Complaint, pp. 17-18.

As noted for Counts I and II, Olsen previously

brought this identical claim and is collaterally

estopped from re-litigating the same claim. See

Olsen, 878 F.2d at 1463. (court notes that “Olsen has

urged before that members of his church are

similarly situated to the beneficiaries of the

exemption prescribed in 21 C.F.R. § 1307.31. See

Olsen v. Iowa, 808 F.2d at 653; Rush, 738 F.2d at

513. We join our sister courts in rejecting this plea.”).

The court grants dismisses Count III as to all

Defendants.

c. Count IV: Ex Post Facto Clause

Olsen improperly invokes the Ex Post Facto

Clause, which provides that “No Bill of Attainder or

ex post facto Law shall be passed.” U.S.C.A. Const.

Art. I § 9, cl. 3. Olsen states that, “Based upon the

erroneous and unlawful determination that Cannabis

is a controlled substance under the CSA, Defendants

have criminally prosecuted the Plaintiff in the past...

and have threatened to criminally prosecute the

Plaintiff [in the future].”

Our test for determining whether a

criminal law is ex post facto derives

from these principles. As was stated in

Weaver, to fall within the ex post facto

prohibition, two critical elements must.

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be present: first, the law “must be

retrospective, that is, it must apply to

events occurring before its

enactment”; and second, “it must

disadvantage the offender affected by

Miller v. Florida, 482 U.S. 423, 340 (1987)emphasis

in original) (quoting Weaver v. Graham, 450 U.S. 24,

29 (1981)). Defendants argue that this clause does

not apply to Olsen’s claims. This court agrees; Olsen

fails to establish the first element as the CSA was

not applied to him retrospectively. The court

dismisses Count IV as to all Defendants.

d. Count VI: Fourth Amendment

Olsen claims that “Defendant cannot

substantially burden his right to be secure in his

person, house, papers, and_ effects, without

demonstration of the facts of a threat to public health

and safety which triggers the application of the

Compelling Interest Test to review the facts and

application of the law de novo.” Complaint p. 21.

The Fourth Amendment protects

The right of the people to be secure in

their persons, houses, papers, and

effects, against unreasonable searches

and seizures, shall not be violated, and

no Warrants shall issue, but upon

probable cause, supported by Oath or

affirmation, and particularly

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describing the place to be searched,

and the persons or things to be seized.

U.S.C.A. Const. Amend. IV.

State Defendants note as follows,

The nature of this allegation is

unclear. Apart from genera] rubric

about what the Fourth Amendment

protects, little is said to support such a

claim. There is no allegation that

Olsen was ever the victim, or will ever

be the victim, of an illegal search

and/or seizure. There is certainly no

allegation that any _ particular

defendant ever participated in, or

caused, such an event.

Federal Defendants also argue that Olsen fails

to raise a viable claim and cannot save his claim by

comparing it to the “hybrid” situation presented in

Employment Division v. Smith, 494 U.S. at 881-882.

Federal Defendants point out that “the hybrid

situation mentioned in Smith referred only to a few

prior cases were religiously motivated action that

also implicated freedom of speech rights or nghts of

parents to raise their children.”

The court agrees that Olsen fails to state a

claim for which relief can be granted and dismisses

Count VI as to all Defendants.

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e. Count VII: Fifth Amendment

Olsen claims Defendants violated his rights

under the Fifth Amendment due to their failure to

provide him with a pre-deprivation notice and

hearing prior to seizing his property, i.e. his

marijuana, in the past. Defendants state that Olsen’s

claim is frivolous as he cannot claim a

constitutionally protected property interest in

marijuana. This court agrees and dismisses Count

VII as to all Defendants.

3. Other Claims

a. Count V: Iowa Controlled Substances Act

Olsen asserts that Defendants have criminally

prosecuted him in the past and have threatened to

criminally prosecute him in the future due to the

“erroneous and unlawful determination that

Cannabis is a controlled substance under the CSA.”

Defendants assert that this court lacks

jurisdiction to remove marijuana from the CSA and

that the “CSA provides “an administrative remedy

for any interested party to request that a substance

be deleted entirely from the CSA or be transferred to

a less restrictive schedule.” citing 21 U.S.C. § 811(a).

This court agrees and dismisses Count V as to all

Defendants.

b. Count VIII: Administrative Procedure Act

Olsen claims that

A-35

The Federal Defendants’ conduct as

set forth above constitutes agency

action that is: (a) arbitrary and

capricious; (b) an abuse of discretion

and otherwise not in accordance with6

constitutional and statutory rights; (d)

in excess of statutory jurisdiction and

authority; and (e) without observance

of procedures required by law. Such

action should be set aside and

declaratory and _ injunctive relief

provided under the Administrative

Procedure Act, 5 U.S.C. §§ 701-706.

Complaint, p. 22.

Federal Defendants argue that “plaintiff

merely cross-references his previous allegation...{and

thus] this count is completely derivative of plaintiffs

other claims.” Fed. Def. Brief, p. 30. Olsen agrees,

stating that he “feels that he has exhausted

reasonable attempts to obtain relief under the APA.”

Response, p. 28. The court dismisses this count as to

all Defendants.

c. Count [X: Treaties and Conventions

Olsen contends that his religious use of

cannabis is protected under the United Nations

International Covenant on Civil and Political Rights

(“ICCPR”), 138 Cong. Rec. S4781-84 (1992), the

Universal Declaration of Human Rights (“UDHR’”),

GA res. 217A, Dec. 10, 1948, the International

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Religious Freedom Act (“IRFA”), Pub. L. No. 105-292,

112 Stat. 2787 (1998) (codified at 22 U.S.C. §§ 6401-

6481), and the 1971 Convention on Psychotropic

Substances (“CPS”), 32 U.S.T. 543, 1019 U.N.T:S.

175.

State Defendants not that: (1) Plaintiff cites to

documents that refer to the United States

government, rather than the states; (2) Plaintiff lacks

standing to raise any claim as an individual; (3)

Under O Centro, international treaties and

conventions may “not be read as negating an

umambiguous statute such as the Controlled

Substances Act”; and (4) None of the international

treaties/conventions “specifically prohibits the

criminalization of marijuana.”

Federal Defendants note that: (1) The ICCPR

is not self-executing and thus the Plaintiff has no

privately enforceable rights absent implementing

legislation by Congress, citing U.S. ex rel. Perez v.

Warden, FMC Rochester, 286 F.3d 1059, 1063 (8th

Cir. 2002) Payne-Barahona v. Gonzales, 474 F.3d 1, 3

(1st Cir. 2007); Martinez-Lopez v. Gonzales, 454 F.3d

500, 502 (5th Cir. 2006); Guaylupo-Moya v. Gonzales,

423 F.3d 121, 133 (2nd Cir. 2005); (2) The UDHR is

not an enforceable source of law in federal courts,

citing Guaylupo-Moya, 423 F.3d at 133; (3) The CPS

is also not self-executing and thus creates no private

cause of action for the Plaintiff absent implementing

legislation. Similarly, the CPS also does not create a

private right of action. citing Hernandez v. Ciba-

Geigy Corp. USA, 200 F.R.D. 285, 294 (S.D. Tex.

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2001); and (4) The IFRA applies only internationally

and the statute specifically precludes judicial review.

22 U.S.C. § 6450. The court agrees and dismisses

Count [X as to all Defendants.

d. Count X: Request for Declaratory Judgment

As noted previously, the court dismisses all

claims brought by Olsen against all Defendants, thus

Olsen’s request for declaratory judgment is denied.

Hl. CONCLUSION

Upon the foregoing,

IT IS ORDERED that State Defendant

Miller’s February 7, 2007 Motion to Dismiss (docket

8), State Defendants Sarcone and Anderson’s March

19, 2007 Joinder (docket 15), and Federal Defendants

April 10, 2007 Motion to Dismiss (docket 21) are

GRANTED. Olsen’s July 2, 2007 Motion for

Summary Judgment is DENIED as moot. (docket 43).

The clerk shall enter judgment for all Defendants on

all claims.

DATED this 16th day of July, 2007.

JOHN A. JARVEY

UNITED STATES

DISTRICT JUDGE

SOUTHERN DISTRICT

OF IOWA

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