Carl Olsen resists the State’s Motion to Dismiss. In support, Mr. Olsen states the following:

The Religious Freedom Restoration Act (RFRA), Iowa Code Chapter 675, provides the following remedies: “... appropriate relief, including damages, injunctive relief, or other appropriate redress”.  § 675.4(2).

The respondent says the petition was unclear about the relief requested.  Motion to Dismiss at 1.  Mr. Olsen agrees with the respondent.

Mr. Olsen’s last arrested for cannabis was in 1980.  Mr. Olsen seeks declaratory relief because there is no current enforcement action to enjoin.

The exceptions to Iowa Code Chapter 124 are declarations, and Mr. Olsen seeks a declaration of his rights from this court pursuant to the RFRA.  See §§ 124.204(7), 124.204(8), and 124.401(5)(c).

The respondent’s motion is deficient because it relies on facts as they existed between 1989 and 2008, and those facts have been undercut by the government’s subsequent actions.  Mr. Olsen appreciates the respondent’s motion and appreciates the opportunity to address Collateral Estoppel.

Identical arguments are precluded by collateral estoppel.  Mr. Olsen previously argued his religious activity was protected by the religious freedom clauses of the state and federal constitutions and he included an “equal protection / establishment clause” argument based on the state and federal religious exemptions for peyote.  Olsen v. Mukasey, 541 F. 3d 827 (8th Cir. 2008).  Mr. Olsen does not agree with any of those previous decisions (comparing the popularity of the two substances), but agrees he cannot make an identical argument again.

The religious exemption for peyote, Iowa Code § 124.204(8), is a declaration of rights, but it comes from federal regulations and the federal government does not embed religious exemptions in the federal statute.  See 21 C.F.R. § 1307.31 (religious exemption for peyote).  The Iowa legislature copied the federal regulation in 1966, and embedded it statute in 1967.  Federal Register, Vol. 31, No. 54, Saturday, March 19, 1966, at page 4679; 21 C.F.R. § 166.3(c)(3) (1968); 1967 Iowa Acts ch. 189, § 2(12); Iowa Code § 204A.2(12) (1968).

Embedding this religious exemption in a statute was an awkward choice.  Iowa did not follow the Uniform Act.  See Final Report of the Drug Abuse Study Committee to the Sixty-Fourth General Assembly of the State of Iowa (1971), at 1.  The legislature could have kept the statute religiously neutral and generally applicable, but chose not to.  See Boerne v. Flores, 521 U.S. 507, 514 (1997):

By contrast, where a general prohibition, such as Oregon’s, is at issue, “the sounder approach, and the approach in accord with the vast majority of our precedents, is to hold the test inapplicable to [free exercise] challenges.”  Id., at 885.  Smith held that neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest.

All of Mr. Olsen’ previous cases compared the popularity of cannabis to popularity of peyote.  And, cannabis, being popular, has made a lot of progress since those cases were decided.  In 1996 California became the first state to create an exception for the compassionate use of cannabis, and since then forty-eight (48) states, including Iowa, have enacted compassionate exceptions for cannabis.  All of the arguments Mr. Olsen is making in this petition are based on the exceptions created for cannabis after 1996 after Mr. Olsen’s appeals were exhausted in 1990, but specifically relevant to Iowa, after Mukasey in 2008:

1. Changes made since 2014 regarding compassionate use of cannabis in Iowa, Iowa Code Chapter 124D, Iowa Code Chapter 124E, Iowa Code § 124.401(5)(c).
2. Changes made since 2018 regarding recreational use of delta-9 THC in Iowa, Iowa Code Chapter 204, Iowa Code § 124;204(7).

The argument Mr. Olsen is barred from making did not include any of these changes regarding cannabis, and Mr. Olsen lost all of those cases because cannabis was more popular than peyote and a greater problem for law enforcement (enforcing an unpopular law).  The fact that cannabis now has widespread accepted uses should negate collateral estoppel because the facts have dramatically changed since 1990 (and 2008, if Mukasey makes any difference).

Since 2018, the state and federal governments have authorized the sale of products containing delta-9 THC in Iowa grocery stores, Iowa Code Chapter 204; Iowa Code Chapter 124, section 204(7).

Since 2014, the state and federal governments have authorized multi-state criminal organizations to operate state cannabis programs, including the one in Iowa, Iowa Code Chapter 124E¹; Iowa Code Chapter 124, section 401(5)(c).

¹  Public Law 118-42, § 531, 138 STAT. 25, 174 (March 9, 2024) Consolidated Appropriations Act, 2024 (H.R. 4366); Public Law 117-328, § 531, 136 STAT. 4459, 4561 (December 29, 2022) Consolidated Appropriations Act, 2023 (H.R. 2617); Public Law 117-103, § 531, 136 STAT. 49, 150 (March 15, 2022) Consolidated Appropriations Act, 2022 (H.R. 2471); Public Law 116-260, § 531, 134 Stat. 1182, 1283 (Dec. 27, 2020) Consolidated Appropriations Act, 2021 (H.R. 133); Public Law 116-93, § 531, 133 Stat. 2317, 2431 (Dec. 20, 2019) Consolidated Appropriations Act, 2020 (H.R. 1158); Public Law 116-6, § 537, 133 Stat. 13, 138 (Feb. 15, 2019) Consolidated Appropriations Act, 2019 (H.J. Res. 31); Public Law 115-141, § 538, 132 Stat. 347, 444 (Mar. 23, 2018) Consolidated Appropriations Act, 2018 (H.R. 1625); Public Law 115-31, § 537, 131 Stat. 135, 228 (May 5, 2017) Consolidated Appropriations Act, 2017 (H.R. 244); Public Law 114-113, § 542, 129 Stat. 2241, 2332 (Dec. 18, 2015) Consolidated Appropriations Act, 2016 (H.R. 2029); Public Law 113-235, § 538, 128 Stat. 2129, 2217 (Dec. 16, 2014) Consolidated and Further Continuing Appropriations Act, 2015 (H.R. 83).

Mr. Olsen does not need to be arrested again to have standing to bring this action under the Religious Freedom Restoration Act, Iowa Code Chapter 675.  Mr. Olsen’s religious claim was never rejected for lack of standing and the last disposition of that claim was in 2008.  Olsen v. Mukasey, 541 F. 3d 827 (8th Cir. 2008).

If material facts had not changed since 2008, Mr. Olsen’s current claim might be barred by collateral estoppel. However, that claim wasn’t limited to Mr. Olsen’ personal use.  And it wasn’t a claim at all, it was a defense.  The Iowa RFRA now authorizes a claim in addition to a defense, which was never available to Mr. Olsen prior to 2024.

The respondent says the petitioner’s claim must be different from the public, but religious freedom is guaranteed to every citizen.  Privilege and immunities not equally available on the same terms to all citizens are forbidden by article 1, section 6 of the Iowa Constitution.  Exceptions are neither forbidden nor required, but equal protection, due process, and redress are required when the state chooses to make exceptions.  Employment Division v. Smith, 494 U.S. 872 (1990).

Anyone can file a petition for federal reclassification of cannabis, 21 U.S.C. § 811(a), or a petition for federal exemption, 21 U.S.C. § 822(d).  Anyone can file a federal RFRA claim in a federal district court.

But, in Iowa, the only petition anyone can file is a RFRA claim (Chapter 675).

The fact exemptions already exist in Iowa, Iowa Code § 124.204(8), Iowa Code § 124.204(7), and Iowa Code § 124.401(5)(c), is neither conjectural nor hypothetical.  They exist to protect users and to inform law enforcement of protected activity.  Religious use of cannabis is of equal or greater value.

The respondent places a higher value on medical use of cannabis outside the context of the controlled substances act, in violation of article 1, section 3, of the Iowa Constitution (free exercise and establishment).  The controlled substances act says cannabis has no medical use and is unsafe for use under medical supervision.  State v. Middlekauff, 974 N.W.2d 781 (Iowa 2022); State v. Bonjour, 694 N.W.2d 511 (Iowa 2005); Iowa Code §§ 124.203(1)(b), 124.204(4)(m).

The respondent’s medical cannabis program is inconsistent with federal drug law and exposes everyone who participates to federal jeopardy.  Federal racketeering schemes for cannabis that abuse consumers are not a higher value than religious freedom.

The respondent’s medical cannabis program has a misleading name that conceals its purpose, the name “cannabidiol”.  Cannabidiol (CBD) is just a single cannabinoid, but the program authorizes the use of “any” cannabinoid.  Iowa Code 124E.2(10). 9% of products are balanced THC:CBD; 8.5% are high CBD, and 82.6% are High THC.  Medical Cannabidiol Board, Annual Report, 2024, at page 19.

The respondent allows hemp dealers to extract THC, or worse yet use waste byproduct from industrial hemp production,and sell it in grocery stores in Iowa.  Recreational use of THC in not a higher value than religious freedom.

The compelling interest test required by the RFRA requires strict scrutiny, which the respondent cannot simply dismiss.

This is not the same defense the petitioner made in 2008.  All the petitioner’s previous cases involved the use of cannabis in public places, not in the privacy of the petitioner’s home.  None of the petitioner’s previous cases involved already existing state exceptions for cannabis: (1) a federally illegal program with a misleading name to conceal its purpose, and now THC in grocery stores.  There is no collateral estoppel on a claim that has never been made before.  Claims were not even possible until the RFRA was enacted last year.  A federal claim also exists based on Congress giving these federally illegal programs a free pass in annual appropriations for the past 11 years and now authorizing sale of THC in grocery stores for the past 7 years.  The petitioner has a federal RFRA claim for personal, private religious use pending with the DEA.

It’s no wonder the respondent want this court to dismiss based on old facts as they may have existed in 2008 and end this matter there.  The petitioner asks the court to deny the respondent’s motion to dismiss.