Petition for Declaratory Judgment

Olsen v. IDPH

In Octo­ber, I filed a Peti­tion for Declara­to­ry Judg­ment ask­ing to par­tic­i­pate in the state Med­ical Cannabid­i­ol Act for reli­gious rea­sons.  My sacra­ment has been cannabis since the 1970s and I have nev­er been allowed to use it.  I filed the case based on the free exer­cise of reli­gion claus­es of First Amend­ment to the U.S. Con­sti­tu­tion and Arti­cle 1, Sec­tion 3, of the Iowa Con­sti­tu­tion.

The state attor­ney has filed a Motion to Dis­miss the case, say­ing I can­not sue the state for vio­lat­ing the state and fed­er­al con­sti­tu­tions because of sov­er­eign immu­ni­ty.  I accept that as an accu­rate state­ment.

The state attor­ney men­tions the Iowa Admin­is­tra­tive Pro­ce­dures Act, which is some­thing I had thought about.  The Med­ical Cannabid­i­ol Pro­gram explains the process to apply for a med­ical cannabid­i­ol card.  I decid­ed I should file in court rather than apply for a card.  How­ev­er, I decid­ed to apply for the card last week after read­ing the motion to dis­miss.

The prob­lem with the appli­ca­tion is that the Med­ical Cannabid­i­ol Act does not men­tion reli­gious use as one of the qual­i­fy­ing con­di­tions.  I am fair­ly cer­tain an admin­is­tra­tive agency can­not address this omis­sion.  Courts can resolve issues involv­ing the con­sti­tu­tion­al­i­ty of a statute, but admin­is­tra­tive agen­cies just do what it says in the statute.

See for exam­ple, Nation­al Law Review, Ready, Fire, Aim — Pick­ing the Cor­rect Vehi­cle for Con­sti­tu­tion­al Chal­lenges to Admin­is­tra­tive Agency Deci­sions, Wednes­day, Sep­tem­ber 30, 2020.

The appli­ca­tion for the card had a place to upload a cer­tifi­cate of a qual­i­fy­ing med­ical con­di­tion, which I do not have.  I uploaded a dec­la­ra­tion of my reli­gious use in place of the qual­i­fy­ing med­ical con­di­tion.

Now that I have filed an appli­ca­tion with the Iowa Depart­ment of Pub­lic Health (IDPH) for a card, I can see I need to amend my peti­tion to include the IDPH as a defen­dant.  I asked the court to give me a declara­to­ry order allow­ing me to do the same thing as a card hold­er.  But now that I have applied for a card, I might as well just ask the court to order the depart­ment to issue me the card.  I will file a motion to amend my peti­tion with the court.

The dec­la­ra­tion I sub­mit­ted with my appli­ca­tion for the card is set out below.

Declaration of Carl Olsen — November 24, 2021

In the Beginning

I began using psy­che­del­ic sub­stances in the late 1960s.  Because these sub­stances were pro­hib­it­ed, it was dif­fi­cult to know whether they were cut with depres­sants or stim­u­lants (also pro­hib­it­ed for any­thing oth­er than phar­ma­ceu­ti­cal use).  Every­thing was for sale on the illic­it mar­ket.  I end­ed up addict­ed to metham­phet­a­mine and bar­bi­tu­rates.

I lost weight.  I could not string a sen­tence togeth­er.  Some of my more health con­scious friends were shift­ing toward cannabis.  When I got des­per­ate, with help from these friends, I tried replac­ing metham­phet­a­mine and bar­bi­tu­rates with cannabis.  Cannabis gave me a high and helped me sleep.  I can’t prove cannabis saved my life, but it cer­tain­ly helped.

These friends went to Jamaica in the late 1960s and used cannabis with the Rasta­far­i­ans.  They came back say­ing Christ had res­ur­rect­ed as a black man by the name of George Bak­er Ivy.

Christ res­ur­rect­ing as a per­son was dif­fi­cult to fol­low, but sacra­men­tal use of cannabis made sense.  Some­thing else made sense, the com­par­i­son of blacks in Jamaica (the result of the slave trade) to Israelites in the Bible.

‘Black Moses’ Lives On: How Mar­cus Garvey’s Vision Still Res­onates

Desmond Dekker & The Aces – “Israelites”

In 1970, Broth­er Ivy died mys­te­ri­ous­ly.

Wal­ter Wells wrote, “It was Broth­er Ivy who ful­ly opened the doors of Sal­va­tion to the white inhab­i­tants of the world with­in this dis­pen­sa­tion; and taught black and white to unite togeth­er for one com­mon cause …”

John 10:11 (“I am the good shep­herd: the good shep­herd giveth his life for the sheep”); Matthew 26:31 (“I will smite the shep­herd, and the sheep of the flock shall be scat­tered abroad”); Mark 14:27 (“I will smite the shep­herd, and the sheep shall be scat­tered”).

Christ in the Bible

The Bible describes Christ as a col­lec­tive body, not just a sin­gle indi­vid­ual.  See I Corinthi­ans 12:27 (“Now ye are the body of Christ, and mem­bers in par­tic­u­lar.”).  A sin­gle indi­vid­ual would have phys­i­cal blood cir­cu­lat­ing through their body.  So the blood of Christ (as a col­lec­tive body of indi­vid­u­als) must be some­thing con­stant­ly flow­ing through the mem­bers of that body.  See I Corinthi­ans 11:25 (“After the same man­ner also he took the cup, when he had supped, say­ing, This cup is the new tes­ta­ment in my blood: this do ye, as oft as ye drink it, in remem­brance of me”).  Cannabis is exact­ly that to me.

Many Jamaicans believe the Emper­or of Ethiopia (Ras Tafari) is the res­ur­rect­ed Christ.  Again, the Bible describes God as more than one per­son.  Gen­e­sis 1:26 (“And God said, Let us make man in our image, after our like­ness: …”), again describ­ing a col­lec­tive body, peo­ple, not a per­son.

https://en.wikipedia.org/wiki/Rastafari
https://en.wikipedia.org/wiki/Haile_Selassie

Ste­vie Won­der – “Super­sti­tious”

Niah Keith

After Broth­er Ivy died, lead­er­ship passed to Kei­th Gor­don.  Gor­don and oth­ers incor­po­rat­ed the Ethiopi­an Zion Cop­tic Church in 1976.

https://www.ethiopianzioncopticchurch.org/pdfs/jamaica_1976.pdf

Respond­ing to media reports com­par­ing the church to a mass sui­cide cult in Jon­estown, Guyana, Wal­ter Wells wrote about the his­to­ry of the Ethiopi­an Zion Cop­tic Church in the church’s pub­li­ca­tion, The Cop­tic Time.

https://www.ethiopianzioncopticchurch.org/history/

Octo­ber 28, 1979, CBS Six­ty Min­utes report­ed, “Law enforce­ment agen­cies say that with his new-found Amer­i­can friends, Kei­th Gordon’s mar­i­jua­na busi­ness took off like a tur­pen­tined cat.”

https://www.ethiopianzioncopticchurch.org/pdfs/Sixty_Minutes_1979_10_28.pdf

Novem­ber 1, 1979, The Flori­da Supreme Court wrote, “the Ethiopi­an Zion Cop­tic Church is not a new church or reli­gion but the record reflects it is cen­turies old and has reg­u­lar­ly used cannabis as its sacra­ment.”  Town v. State ex rel. Reno, 377 So.2d 648, 649 (Fla. 1979).

https://www.ethiopianzioncopticchurch.org/cases/town/

July 18, 1984, The Iowa Supreme Court wrote, “Tes­ti­mo­ny at his tri­al revealed the bona fide nature of this reli­gious orga­ni­za­tion and the sacra­men­tal use of mar­i­jua­na with­in it.”  State v. Olsen, No. 171–69079.

https://www.ethiopianzioncopticchurch.org/cases/olsen1986/

In 1984, Gor­don and Wells autho­rized me as the reg­is­tered agent in Flori­da for the Ethiopi­an Zion Cop­tic Church in Jamaica.  I wit­nessed for the church in fed­er­al tax and civ­il court cas­es.

https://www.ethiopianzioncopticchurch.org/pdfs/1986_Florida_Secretary_of_State.pdf
https://www.ethiopianzioncopticchurch.org/cases/king/
https://www.ethiopianzioncopticchurch.org/pdfs/1984_Pre_Trial_Conference.pdf
https://www.ethiopianzioncopticchurch.org/cases/olsen1989/

Before going to prison, I incor­po­rat­ed the church in Iowa.

https://www.ethiopianzioncopticchurch.org/pdfs/1984_Iowa_Secretary_of_State.pdf

Prison

I went to prison in 1985, pass­ing through sev­er­al state and fed­er­al insti­tu­tions: (1) Clas­si­fi­ca­tion Cen­ter in Oak­dale, IA; (2) Cor­rec­tion­al Facil­i­ty in Mt. Pleas­ant, IA; (3) State Pen­i­ten­tiary in Ft. Madi­son, IA; (4); Fed­er­al Pen­i­ten­tiary in Ft. Leav­en­worth, KS; (5) Fed­er­al Pen­i­ten­tiary in Ter­ra Haute, IN; (6) Fed­er­al Cor­rec­tion­al Insti­tu­tion in Tal­lade­ga, AL; and (7) Fed­er­al Cor­rec­tion­al Insti­tu­tion in Tal­la­has­see, FL.

Soon after being released in 1987, I enrolled in a two year Legal Assis­tant Asso­ciate Degree pro­gram (some­times referred to as a para­le­gal) at the Des Moines Area Com­mu­ni­ty Col­lege and began work­ing as a cler­i­cal for the Iowa Depart­ment of Trans­porta­tion.

Appeals

The U.S. Court of Appeals reject­ed my peti­tion for reli­gious exemp­tion in 1989.  By that time, sev­er­al state and fed­er­al courts had reject­ed sim­i­lar claims, “each has reject­ed the argu­ment that accom­mo­da­tion to sacra­men­tal use of the drug is fea­si­ble and there­fore required.”  Olsen v. DEA, 878 F.2d 1458, 1462 (D.C. Cir. 1989).

I based my argu­ment on state and fed­er­al reli­gious exemp­tions for anoth­er church, the Native Amer­i­can Church, and anoth­er Sched­ule I con­trolled sub­stance, pey­ote.  21 C.F.R. § 1307.31 Native Amer­i­can Church; Iowa Code § 124.204(8) Native Amer­i­can Church.

The dis­sent­ing opin­ion in Employ­ment Divi­sion v. Smith, 494 U.S. 872, 918 (1990) (Black­mun, J., with whom Bren­nan, J., and Mar­shall, J., joined, dis­sent­ing), summed it up [Some reli­gions, for exam­ple, might not restrict drug use to a lim­it­ed cer­e­mo­ni­al con­text, as does the Native Amer­i­can Church.  See, e.g., Olsen, 878 F.2d, at 1464 (“[T]he Ethiopi­an Zion Cop­tic Church … teach­es that mar­i­jua­na is prop­er­ly smoked ‘con­tin­u­al­ly all day’”).]

Smith

Many peo­ple, includ­ing myself, were not expect­ing the Supreme Court to find reli­gious use of pey­ote unpro­tect­ed by the First Amend­ment.  In 1973, a new fed­er­al law was enact­ed to over­turn Smith, the Reli­gious Free­dom Restora­tion Act (RFRA), Pub. L. No. 103–141, 107 Stat. 1488 (Novem­ber 16, 1993).

Only a few years lat­er, the Supreme Court found Con­gress vio­lat­ed sep­a­ra­tion of pow­ers by try­ing to leg­is­late how the court should inter­pret the Con­sti­tu­tion.  See City of Boerne v. Arch­bish­op Flo­res, 521 U.S. 507 (1997).  The judi­cial and leg­isla­tive branch­es are co-equal.  While Con­gress has the sole author­i­ty to make laws, the Supreme Court has the sole author­i­ty to inter­pret the Con­sti­tu­tion.  So, the Smith deci­sion still stands.

Peyote

The fed­er­al pey­ote exemp­tion was cre­at­ed in 1966.  Con­gres­sion­al Record — House, July 8, 1965, Vol. 111, pp. 15977–15978; Fed­er­al Reg­is­ter, March 19, 1966, Vol. 31, pp. 4679–4680; Code of Fed­er­al Reg­u­la­tions, 21 C.F.R. § 166.3©(3) (1968); U.S. House Hear­ings, Feb­ru­ary 3, 1970, 1970 Ser­i­al No. 91–45, pp. 117–118.

The fed­er­al pey­ote exemp­tion was orig­i­nal­ly going to be includ­ed in a statute, because many peo­ple assumed it was con­sti­tu­tion­al­ly required by the First Amend­ment.  How­ev­er, it was decid­ed to cre­ate it by reg­u­la­tion.  Con­gress removed it from pro­posed leg­is­la­tion because Con­gress want­ed a fed­er­al admin­is­tra­tive agency to have com­plete author­i­ty over the sub­stances being placed under the agency’s con­trol.  The dif­fer­ence here is key.  If the pey­ote exemp­tion had been includ­ed in a fed­er­al statute, the fed­er­al admin­is­tra­tive agency would have no con­trol over it.  By includ­ing it in a reg­u­la­tion, it became a priv­i­lege rather than a right.

The Smith deci­sion makes sense if you look at it from this his­tor­i­cal per­spec­tive.  No fed­er­al right to use pey­ote had ever been cre­at­ed.

In 1988, the Supreme Court of Ore­gon found reli­gious use of pey­ote was pro­tect­ed by the First Amend­ment.  The U.S. Supreme Court over­turned the Ore­gon Supreme Court’s opin­ion in Smith.

Ore­gon did not have any reli­gious exemp­tions for con­trolled sub­stances.  Oregon’s law was “neu­tral toward reli­gion” and “gen­er­al­ly applic­a­ble”.  As long as these two require­ments were met, the Supreme Court ruled, a reli­gious act pro­hib­it­ed by state law is not pro­tect­ed by the First Amend­ment.

The Smith deci­sion upheld states’ rights, as long as state law is both neu­tral toward reli­gion and gen­er­al­ly applic­a­ble to every­one.

Fur­ther fed­er­al leg­is­la­tion was enact­ed in 1994 to make sacra­men­tal use of pey­ote a fed­er­al­ly pro­tect­ed right, the Amer­i­can Indi­an Reli­gious Free­dom Act Amend­ments (AIRFAA), Pub. L. No. 103–344, 108 Stat. 3125 (Octo­ber 6, 1994).  See 42 U.S.C. § 1996a.

Unlike Ore­gon, Iowa enact­ed a statu­to­ry exemp­tion for the reli­gious use of pey­ote in 1967, imme­di­ate­ly fol­low­ing the cre­ation of the fed­er­al exemp­tion in 1966.  House File 285, Chap­ter 189 (July 5, 1967) (cre­at­ing a statu­to­ry exemp­tion for the reli­gious use of pey­ote).  House File 69, Chap­ter 52 (March 27, 1925) (pro­hibit­ing the use of pey­ote).

My Response

I stopped using cannabis in 1990.  I could see it was no longer pos­si­ble to argue the reli­gious use of cannabis was pro­tect­ed by the First Amend­ment, at least not under those con­di­tions.  The fed­er­al gov­ern­ment was sup­ply­ing cannabis to patients under FDA Com­pas­sion­ate Use pro­to­col, but that was con­sid­ered research not accept­ed med­ical use.  Patients par­tic­i­pat­ing in the Com­pas­sion­ate Use pro­to­col received 300 cig­a­rettes per month with a pre­scrip­tion to smoke 10 per day.  That seemed unusu­al for some­thing clas­si­fied as dan­ger­ous as hero­in.

I wait­ed for cannabis to gain greater accep­tance.  Even­tu­al­ly, the law pro­hibit­ing cannabis would no longer be gen­er­al­ly applic­a­ble.

Iowans for Medical Marijuana

In 1990, I joined with two Iowa patients in the Com­pas­sion­ate Use pro­to­col who were receiv­ing med­ical cannabis from the fed­er­al gov­ern­ment (George McMa­hon and Bar­bara Dou­glass).  The three of us formed an orga­ni­za­tion by the name of Iowans for Med­ical Mar­i­jua­na.

Cannabis did gain greater accep­tance.  The fed­er­al gov­ern­ment stopped accept­ing new appli­ca­tions for the Com­pas­sion­ate Use pro­gram in 1992, but Cal­i­for­nia vot­ers legal­ized per­son­al cul­ti­va­tion of cannabis for med­ical use in 1996.  The Clin­ton Admin­is­tra­tion tried to stop Cal­i­for­nia from imple­ment­ing the new law, but failed.  See Conant v. Wal­ters, 309 F.3d 629 (9th Cir. 2002), and see the per­son­al state­ments from George McMa­hon and Bar­bara Dou­glass attached.

U.S. Supreme Court (2006)

In 2006, the U.S. Supreme Court affirmed that the exemp­tion for the reli­gious use of pey­ote is not based on race or reli­gion.  Gon­za­les v. O Cen­tro Espiri­ta Ben­e­fi­ciente Uniao do Veg­e­tal, 546 U.S. 418, 434 (2006) (“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”).

Iowa Board of Pharmacy

In 2006, the three of us incor­po­rat­ed Iowans for Med­ical Mar­i­jua­na to peti­tion the Iowa Board of Phar­ma­cy to reclas­si­fy cannabis as med­i­cine in Iowa.  We were suc­cess­ful.  In 2010, the Iowa Board of Phar­ma­cy rec­om­mend­ed the leg­is­la­ture reclas­si­fy mar­i­jua­na as med­i­cine in Iowa.

Iowa Board of Phar­ma­cy, Feb­ru­ary 17, 2010

Iowa Supreme Court, May 14, 2010

Iowa Code Chapter 124D (2014)

The law pro­hibit­ing cannabis was gen­er­al­ly applic­a­ble in Iowa until 2014.  In 2014, the leg­is­la­ture enact­ed Sen­ate File 2360, Chap­ter 1125 (May 30, 2014), the Med­ical Cannabid­i­ol Act.  The act allowed cer­ti­fied indi­vid­u­als to bring “a nonpsy­choac­tive cannabi­noid found in the plant” with “a tetrahy­dro­cannabi­nol lev­el of no more than three per­cent” from out of state into the state of Iowa.  Id., § 124D.2(1).

Jamaica (2015)

In 2015, Jamaica rec­og­nized reli­gious use of cannabis.  The Dan­ger­ous Drugs Act as Amend­ed by 2015 Act No. 5.  This aligns with the find­ings in Gon­za­les v. O Cen­tro Espiri­ta Ben­e­fi­ciente Uniao do Veg­e­tal, O Cen­tro Espiri­ta Ben­e­fi­ciente Uniao do Veg­e­tal v. Ashcroft, 342 F.3d 1170, 1174 (2003) (“Brazil, in which there are about 8,000 Uniao do Veg­e­tal mem­bers, rec­og­nizes Uniao do Veg­e­tal as a reli­gion and exempts sacra­men­tal use of hoas­ca from its pro­hib­it­ed con­trolled sub­stances.”).

Iowa Code Chapter 124E (2017)

In 2017, the leg­is­la­ture enact­ed House File 524, Chap­ter 162 (May 12, 2017), the Med­ical Cannabid­i­ol Act.  The act allowed cer­ti­fied busi­ness­es to set up large scale cul­ti­va­tion oper­a­tions and dis­tri­b­u­tion cen­ters, and con­tin­ued to allow cer­ti­fied indi­vid­ual to bring “any phar­ma­ceu­ti­cal grade cannabi­noid found in the plant” with “a tetrahy­dro­cannabi­nol lev­el of no more than three per­cent and that is deliv­ered in a form rec­om­mend­ed by the med­ical cannabid­i­ol board, approved by the board of med­i­cine, and adopt­ed by the depart­ment pur­suant to rule” from out of state into the state of Iowa.  Id, § 124E.2(6).

Iowa Medical Cannabidiol Board

In 2019, I peti­tioned the Iowa Med­ical Cannabid­i­ol Board to rec­om­mend peti­tion­ing the DEA for a fed­er­al exemp­tion, like the one for pey­ote, for the state med­ical cannabid­i­ol pro­gram.  The board agreed and vot­ed unan­i­mous­ly to make the rec­om­men­da­tion on August 2, 2019.

Amendments to Chapter 124E (2020)

In 2020, the leg­is­la­ture enact­ed House File 2589, Chap­ter 1116, remov­ing the three per­cent cap on tetrahy­dro­cannabi­nol in prod­uct for­mu­la­tions and replac­ing it with a lim­it of “a com­bined total of four and one-half grams of total tetrahy­dro­cannabi­nol to a patient and the patient’s pri­ma­ry care­giv­er in a nine­ty-day peri­od” (which can be waived by the patient’s health­care provider).  Id., §§ 124E.2(6), 124E.9(14), 124E.9(15).

HF 2589 also required the depart­ment to seek fed­er­al fund­ing guar­an­tees for facil­i­ties open­ly facil­i­tat­ing vio­la­tion of fed­er­al drug law.  Chap­ter 1116, § 31.

Iowa Department of Public Health

On Sep­tem­ber 4, 2020, the Iowa Depart­ment of Pub­lic Health deter­mined that the only way to guar­an­tee fed­er­al fund­ing for facil­i­ties that facil­i­tate vio­la­tion of fed­er­al drug law is to obtain a fed­er­al exemp­tion like the one for pey­ote.  Med­ical Cannabid­i­ol Pro­gram Update.

Religious Exemption

Iowa has autho­rized cul­ti­va­tion, dis­tri­b­u­tion, and use of cannabis, but I haven’t been able to use my sacra­ment since 1990.  Iowa law is not neu­tral toward reli­gion because Iowa has rec­og­nized a statu­to­ry right to use a Sched­ule I con­trolled sub­stance, pey­ote, for reli­gious use since 1967.  Iowa law is not gen­er­al­ly applic­a­ble because Iowa allows 2 licens­es to grow cannabis, 5 licens­es to dis­trib­ute cannabis extracts, and unlim­it­ed licens­es to use cannabis extracts, while deny­ing me that same right for long estab­lished reli­gious use.