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Class Action Declaratory and Injuctive Relief by John Worthington

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Declaratory and injunctive relief

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SUPERIOR COURT OF WASHINGTON FOR KING COUNTY

Joe blow and others simularly situated,

Plaintiff,

vs.


WASHINGTON STATE;GOVERNOR OF WASHINGTON,CHRISTINE GREGOIRE;WASHINGTON STATE ATTORNEY GENERAL ROB MCKENNA ET AL

DefendantS, No.


PLAINTIFF’S COMPLAINT FOR DECLARITORY JUDGMENT AND INJUNCTIVE RELIEF








I.REQUEST FOR RELIEF
1. COMES NOW the plaintiff, _____________ and other similarly situated, to seek declaratory and injunctive relief pursuant to the federal Declaratory Judgment Act 28 U.S.C. § 2201, and the Washington State Uniform Declaratory Judgments Act 7.24, under the Civil Rights act of 42 U.S.C. §§ 1988, under the Americans with Disabilities Act of 1990, 42U.S.C.§ 12101,(hereinafter the ADA),and directly under the Constitution of the Unites States, under the laws of the State of Washington (“state law”), for, inter alia, declaratory, temporary,preliminary, and permanent injunction relief, damages, and such other and further relief as may be just and proper in accordance with law and equity, from past, current, and threatened deprivations of plaintiff’s rights under the Constitution and laws of the United States, and the State of Washington, by the defendants acting individually and in concert.

2. Plaintiffs and others similarly situated allege the defendants from the state are not

qualified to practice medicine in Washington State; are without a license and medical

malpractice insurance; do not have the authority to regulate medical practice under RCW

18.71.002; are interfering with the patient physician relationship and illegally regulating medical

practice in Washington State by enacting section 301 of SB 5073 into Washington State law.


3. Plaintiff's also allege that he and others similarly situated would suffer

irreparable harm by the implementation of section 301 of SB 5073,which as written requires

these medical marijuana patients and their physicians to use other alternatives to medical

marijuana without regard to the patients current medical conditions.


JURISDICTION
4. This action is brought for violations of the Eighth, and Fourteenth Amendments to the Constitution of the United States, , under 42 U.S.C. §§ 1988, 28 U.S.C. § 2201, Americans with Disabilities Act 42U.S.C.§ 12101,directly under the Constitution of the United States, under the laws of Washington State, for tortuous conduct under Federal laws, and under the laws of the State of Washington.
9. In addition, this court has subject matter jurisdiction of the matter of this action ental jurisdiction codified at 28 U.S.C. § 1367(a). under 28 U.S.C. §§1343(a) (3) for relief against violations of the Civil Rights Act; and under 42 U.S.C. § 2000 (d) et seq. for relief against violations of the ADA titles II, and III. Venue is properly laid in Western District of Washington pursuant to 28 U.S.C. §§ 1391 (b) (2) in that this is the District in which the critical events and claims herein arose, Venue is appropriate under 42 U.S.C. § 2000 e-5 (f) (3).
10. The acts resulting in the plaintiff’s injuries occurred in King County and the court has jurisdiction of this action and the persons of the parties hereto under R.C.W. 4.12.020. Venue is properly established in this judicial district pursuant to R.C.W. 4.12.020, R.C.W.4.92 and R.C.W. 4.96.020.
11. The Superior Court has original jurisdiction over the subject matter of this action pursuant to RCW 2.08.010(Superior Court general provision), RCW 4.12.025 (1) an action may be brought in any county in which the Defendant resides.
12. The Superior court has personal and subject matter jurisdiction over claims for declaratory relief against the state and state officers under RCW7.24.10. Plaintiff has arranged for the timely service of the Washington State Attorney General pursuant to 7.24.110.
13. Venue is proper in this court because the Plaintiffs live in King County,
RCW 492.010 (1).

PARTIES
15. At all times material herein, plaintiff’s and others similarly situated are residents of King County and elsewhere in the State of Washington.
16. Washington State Attorney General’s office is a department of and agency separate from Defendant State of Washington. As such Defendant Washington State Attorney General’s office exists, is duly incorporated and organized under the laws of the State of Washington and the laws of the United States of America, and is duly incorporated, and organized under the laws of the State of Washington and the laws of the United States of America. At the time of the incident alleged herein, Defendant Washington State Attorney General’s office was the employer of Rob Mckenna. The Washington State Attorney General’s office also defends the state of Washington in all legal matters. Upon information and belief that the Washington State Attorney General’s office failed to protect the Washington State medical marijuana law from illegal alterations to RCW 69.51A,and failed to recognize that the Washington State legislature and the Governor of Washington State could not legally practice medicine, or regulate medical practice in Washington State..
17. Defendant Christine Gregoire was at all times material herein the Governor of Washington State. Defendant Gregoire was acting in her official capacity as Governor. Upon information and belief Christine Gregoire failed to protect the Washington State medical marijuana law from illegal alterations, and failed to recognize that the Washington State legislature and the Governor of Washington State could not legally practice medicine, or regulate medical practice in Washington State..
18. Defendant Rob McKenna was at all time’s material herein the Attorney General of Washington State. Defendant McKenna was acting in his official capacity as Washington State Attorney General. Upon information and belief Rob McKenna failed to protect the Washington State medical marijuana law from illegal alterations to, and failed to recognize that the Washington State legislature and the Governor of Washington State could not legally practice medicine, or regulate medical practice in Washington State.
19. Defendant State of Washington is a state of the United States duly incorporated, and organized under the laws of the State of Washington and the laws of the United States of America. Upon information and belief the State of Washington failed to protect the Washington State medical marijuana law from illegal alterations, and failed to recognize that the Washington State legislature and the Governor of Washington State could not legally practice medicine, or regulate medical practice in Washington State..

20. At all times referred to herein, Defendants , Christine Gregoire, Rob McKenna State of Washington, Washington State Attorney General’s office acted under color of the laws, statutes, resolutions, regulations, policies, customs and usages of the United States, State of Washington.

CLASS ACTION ALLEGATIONS
21 The Plaintiffs and other simulary situated brings this action as a Medical marijuana patient and on behalf of all other similarly situated Washington State medical marijuana patients. The exact sizes of the effected amount of Patients are unknown to the Plaintiff, but Plaintiff believes the amount of the Patients are so numerous that joinder of all members is impracticable; joinder is also impracticable because, due to the stigmatizing nature of the necessary medications, members are not likely to be willing to broadcast to the world that they require the use of medical marijuana to treat a chronic condition.

FACTS

22. This action arises from the implementation of section 301 of SB 5073, which will

be enacted into law in ___ 2011.This section of SB 5073 will require that a medical treatment

plan to use other alternatives besides medical marijuana be followed by patients and physicians,

or the physician will be punished for not complying with said medical treatment plan.


BACKGROUND- SECTION 301 OF SB 5073

22. Sec. 301. RCW 69.51A.030 and 2010 c 284 s 3 are each amended to read as

follows:

(iv) Documenting other measures attempted to treat the terminal or debilitating medical

condition that do not involve the medical use of cannabis.

(3) A violation of any provision of subsection (2) of this section constitutes unprofessional

conduct under chapter 18.130 RCW.


BACKGROUND – RCW 18.71.002


I.PURPOSE

23. It is the purpose of the medical quality assurance commission to regulate the

competency and quality of professional health care providers under its jurisdiction by

establishing, monitoring, and enforcing qualifications for licensing, consistent standards of

practice, continuing competency mechanisms, and discipline. Rules, policies, and procedures

developed by the commission must promote the delivery of quality health care to the residents of

the state of Washington.

24. As a direct and proximate result of; and said acts and failures to act of the Washington State Attorney General’s office, Washington State Governors office, Christine Gregoire, Rob McKenna, and the State of Washington ,further described in the following paragraphs, the Plaintiff's and other similarly situated will suffer injuries and damages, including but not limited to:
a. Violation of Worthington’s and others similarly situated constitutional rights under the Eighth and Fourteenth Amendments to the United States Constitution;
e. Violations of Washington State rights and laws;
f. Fear, emotional distress;
g. Pursuant to Washington’s Declaratory Judgment Act RCW Chapter
7.24, and the federal Declaratory Judgment Act 28 U.S.C. 2201, plaintiff’s are
entitled to a Declaratory Judgment that Defendant actions As described herein violate
the Washington State , and, further is entitled to an Injunction
to prevent Defendants from continuing to violate the Washington State Medical
Marijuana Act or Worthington’s and other similarly situated civil rights;
The actions of the Defendants also violated the following clearly established and well- settled federal constitutional rights of the plaintiff’s, as further described below.

COUNT 1 – VIOLATIONS OF RCW 18.130.190 PRACTICING MEDICINE
WITHOUT A LICENSE

a. Article XX of the Washington State Constitution provides that“[t]he legislature shall enact laws to regulate the practice of medicine and surgery, and the sale of drugs and medicines.” In the State of Washington, only legislative authority may be used to regulate the practice of medicine.
b. The legislature delegated the authority to develop medical practice standards to the Washington Medical Quality Assurance Commission. RCW 18.71.002 provides that “t is the purpose of the medical quality assurance commission to regulate the competency and Quality of professional health care providers under its jurisdiction by establishing, monitoring, and enforcing qualifications for licensing, consistent standards of practice, continuing competency mechanisms, and discipline. Rules, policies, and procedures developed by the commission
must promote the delivery of quality health care to the residents of the state of Washington
c. No statutory delegation exists that empowers the legislature or the Governor
as a Group to practice medicine. These State, Defendants can neither “invent” nor “enlarge” their designated statutory authority; nor does their “combination” have that effect to regulate medical practice.
d. Nevertheless, despite the absence of any specific statutory delegation to the Group to establish medical practice standards, the Group purported to set medical treatment guidelines without a medical license or malpractice insurance to cover any adverse outcomes of the results of this new medical treatment plan for medical marijuana.
e. The absence of a specific grant of authority to the state actors to establish medical practice standards, coupled with an explicit grant of such authority to the MQAC to do so renders any medical practice standards purportedly established by the Group ultra vires within the meaning of Washington law. As such, the medical marijuana treatment plan set forth in section 301 of SB 5073 are ultra vires within the meaning of the law of the State of Washington, and the enforcement of the medical marijuana treatment plan violates the due process clause of the Fourteenth Amendment to the United States Constitution, as they were developed and set to be enforced enforced wholly without authority and are therefore invalid.

25. In the alternative, the medical marijuana treatment plans plan set forth in section 301 of SB 5073 are ultra vires within the meaning of Washington medical practice law, and are

therefore arbitrary and capricious as a matter of law, any enforcement of which would constitute

a violation of the Due Process Clause of the Fourteenth Amendment.

a. Even if State Defendants had colorable authority
to practice medicine without a license, and develop a medical treatment plan
ultra vires medical marijuana plant limits, for medical practice standards to
be used under programs operated by State Defendants’
Departments, such authority does not permit Defendants to establish
standards that are contrary to existing Specific lawful standards of medical
practice developed by MQAC ,the medical marijuana treatment plans in section
301 of SB 5073 and creations specifically conflict with the Washington
State medical marijuana initiative, approved by the Washington state voters.
As such, they are ultra vires within the meaning of the law of the State of
Washington, and will of the people violates the due process clause of the
Fourteenth Amendment to the United States Constitution and should be
enjoined in toto by this Court and declared invalid for any lawful purpose.

26. Plaintiff's and othesr simularly situated were seeking treatment for their pain, and were striped of the statutory rights under state law to seek the necessary medical care that would allow him to avoid

intolerable pain and suffering, including choosing medical marijuana when no effective

alternatives were required to be used for listed qualifying conditions other than irretractible pain.

a. The right to make this choice is a fundamental right under the due
process clause, and is entitled to the strongest degree of constitutional
protection.

27. Undermining the patient and physicians medical treatment plan unduly burdens a mentally competent adult’s fundamental liberty interest in avoiding intolerable pain and suffering by seeking a physician-patient relationship wherein a physician is allowed to exercise his best professional and scientific judgment, even when such judgment is that pain treatment with medical marijuana when it is medically necessary and no adequate alternative exists or the alternative would cause irreparable harm.

a. When the state exercises sufficient “control and dominion”
over the life circumstances of an individual so that it becomes
impossible for the individual to obtain necessary support , such as
medical care, then by virtue of state “control and dominion” over
those life circumstances, the state undertakes the obligation to
make that support available to the extent that absence of such
support would result in “torture or a lingering death.”
b. The Defendants overall and unduly restrictive regulatory impairment
of the only legal state mechanisms whereby individuals could obtain
necessary medical care with voter-approved medical marijuana, lawful
treatment of severe chronic pain with medical marijuana as restricted
through the act of practicing medicine without a license, illegally regulating
medical practice Act described above -- results in “control and dominion” over
the medical circumstances of persons who, without such treatment, would have
to live in intolerable conditions. When a State, such as here, chooses to exercise
complete “control and dominion,” then by virtue of the state regulatory environment
impairing the availability of necessary medical care, citizens on the street have less
“freedom” to obtain that care than incarcerated prisoners who have a legal entitlement
thereto under the Eighth Amendment.
c. When the State, chooses to exercise such complete
“control and dominion” that it effectively proscribes or stigmatizes all
reasonable lawful avenues for receiving necessary medical care,
then the State has a concomitant obligation to ensure that adequate
resources are available for treatment of those medically necessary
needs which, absent interference by the state, would not otherwise
produce physical “torture or a lingering death.” By virtue of State,
“control and dominion” it is the state impairment that is responsible
for the physical “torture or a lingering death.”


COUNT 2 -- STATUTORY 1983 CLAIMS AGAINST STATE DEFENDANTS
FOR VIOLATIONS OF ADA – PLANT LIMIT GUIDELINES


28. Plaintiff’s realleges and incorporates herein by reference each and every allegation

contained above as though fully set forth herein;

29. This Count is stated by Worthington against all Defendants who are members of the

Group, jointly and severally, in both their official and individual capacities, and arises under the

Civil Rights Act, 42 U.S.C. § 1983, which provides a civil remedy, for damages or injunctive or

other relief, for the deprivation, under color of state law, custom, or usage, of any rights,

privileges or immunities secured by the Constitution or laws of the United States, against any

person causing such deprivation.

30. The State Defendants are “persons” for purposes of 42 U.S.C.1983, and are sued in

both their individual and official capacities, jointly and severally.

31. The State, County and City Defendants hold themselves out as an authorized

instrumentality of the State of Washington; as such the Group has acted “under color of state

law” for purposes of 42 U.S.C. 1983. As officials, the Defendants are heads of State

Departments, which are public entities. The State Defendants have taken their actions challenged

herein as Agents of the Departments of which they are heads, and as such these Agents have

acted “under color of state law” for purposes of 42 U.S.C. 1983.

32. The Defendants’ statutory violations are set forth below in Count 3, all of which

were wholly based upon actions taken under color of authority purportedly granted by the laws

of the State of Washington, or in aid and assistance of others purportedly so acting.

33. The disparate treatment Worthington specifically contemplated ultra vires one size

fits all medical treatment plan without licenses to practice medicine, was therefore caused by

State, Defendants who are members of the same Group. The State Defendants could not

reasonably have believed that their actions were consistent with the ADA since most medical

marijuana patients are physically impaired and have disabled status , or been unaware that

Worthington was an intended beneficiary of the ADA. Moreover, Defendants could not

reasonably have believed that their actions were consistent with existing state laws regulating

medical practice , and their own actions demonstrate awareness that their conduct lacked actual

authority without medicinal licenses or authority under RCW 18.71.002. Their attempts to

project the appearance of authority were also intentional, and no qualified immunity or privilege

from liability for personal damages applies.

34. As the result of civil conspiracy to create and enforce ultra vires medical marijuana

plant limits and the civil conspiracy to enforce a federal drug control policy with State, County

and City resources plaintiff's sustained injury. Such injuries have been and will continue to be

present, to not be fully reparable by retrospective monetary damages, and are likely to continue

unless Defendants’ continuing violations are also restrained and enjoined by this Court.

Regardless of the good faith or reasonableness of the Defendants’ actions, no Defendant is

immune or privileged from declaratory, prospective and injunctive Relief as ordered by this

Court to redress Defendants’ constitutional violations.

35. Plaintiff’s should be compensated for the harm’s suffered as a direct result

of the actions of State Defendants that created an appearance of authority to regulate medical

practice without such statutory authority being assigned or granted by Washington State law.

COUNT 3 -- VIOLATION OF ADA TITLE II – Illegally regulating medical practice-DIFFERENT SERVICE-RESPONDEAT SUPERIOR

35. Plaintiff’s realleges and incorporates herein by reference each and

every allegation contained above as though fully set forth herein,

36. This Count is stated by plaintiff’s against all Defendants, who are members of the

Group, and, jointly and severally, in both their individual and official capacities.

37. In the ADA, Congress defined "public entity" to mean "any State or local

government" or "any department, agency. . .of a State or local government." 42 U.S.C. §

12131(1)(A) and (B) [ADA § 201(1)(A) and (B)].

38. Thru section 301 of SB 5073Defendants hold themselves out as an authorized

instrumentality of the State of Washington; as such the Group is a public entity within the

meaning of the ADA. As individuals and officials, the Defendants are heads of State

Departments, which are public entities within the meaning of the ADA.

39. Plaintiff’s are persons with a physical conditions resulting in substantial

impairments of one or more major life activities, and qualifies as an individual and classes of

person with a disability, respectively, under 42 U.S.C. § 12102(2)[ADA § 3(2)].

40. Under the ADA, unlawful discrimination occurs when a person with a disability is

"excluded from participation in or [is] denied the benefits of the services, programs, or activities

of a public entity. 42 U.S.C. § 12132 [ADA § 202]. Through this provision, Congress intended

in the ADA to prohibit forms of discrimination which deny disabled persons public services

disproportionately due to their disability.

41. Plaintiff’s requires medical marijuana to mitigate the effects of chronic,

nonmalignant pain resulting from his disabilities, being denied that treatment, and having a

medical treatment plan that decides plaintiff’s must first use any and all alternatives to medical

marijuana enforced triggers differential treatment.

42. The medical marijuana pain medication required by plaintiff’s are

necessary to mitigate the effects of chronic pain which results from his disability, and is

considered a mitigation measure within the meaning of the ADA. For the plaintiff’s there is no

alternative treatment that is equally as effective as medical marijuana .

43. Under the law of the Ninth Circuit, when a public entity’s policies, practices, or

procedures have a disproportionate impact on the availability of a measure necessary to mitigate

the effects of a disability of a qualified person with a disability within the meaning of the ADA,

such disproportionate impact on the mitigation measure constitutes discrimination based on the

underlying disability within the meaning of the ADA.

44. A public entity must not differentially impact a physician’s medical treatment to

mitigate the effects of chronic, nonmalignant pain unless that public entity also requires

provision of alternative services equally as effective. Under Ninth Circuit law, if there is no

equally effective alternative available within the regulatory scheme proposed, the public entity’s

differential impact constitutes a complete denial of service to people with disabilities.


45. As a direct and proximate result of this negligence plaintiff’s will suffer
damages and will continue to incur substantial damages until an injunction can be obtained to prevent the illegal regulation of medical practice by persons without licenses to legally practice medicine in Washington State.
RELIEF REQUESTED
Wherefore, Plaintiff’s respectfully requests the court;
46. Allow for a declaratory judgment :
a. Declare that the State Defendants have illegally practiced medicine with a
license and do not have the authority to regulate medical practice under RCW 18.71.002.

b. Declare that the ultra vires medical marijuana treatment plan does not

constitute enforceable law of any kind, and should not be enforced by anyone in the

State of Washington.

47. That this Court issue a temporary and a permanent injunction enjoining State,

Defendants, their subordinates, and their officers, successors, assigns and all persons in

active concert or participation with them, by;

a. Declaring that the Defendants have engaged in practicing medicine without a

license.
b. Declaring that the Defendants have engaged in regulating medical practice

without authority under RCW 18.71.002.

c. Issue an order enjoining the Defendants to remove section 301 from SB 5073

so it does not become law.


48. A declaratory ruling that the Defendants have committed the other violations

contained Herein.
 
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medme

New Member
WOW,,,,, this is gonna take me a couple days to read,,, i get mind clog with all that legal stuff.... thanks for posting it.........
 
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