Case 1:09-cv-00336-SOM-BMK Document 83 Filed 12/07/12 Page 1 of 6 PageID #: 729

INCLINATIONS

It is Judge Mollway’s practice, whenever possible, to notify attorneys and pro se parties scheduled to argue motions before her of her inclinations on the motions and the reasons for the inclinations. This is part of Judge Mollway’s normal practice, rather than a procedure unique to a particular case, and is designed to help the advocates prepare for oral argument. It is the judge’s hope that the advance notice of her inclination and the accompanying reasons will focus the oral argument and permit the advocates to use the hearing to show the judge why she is mistaken or why she is correct. The judge is not bound by the inclination and sometimes departs from the inclination in light of oral argument.

Judge Mollway attempts to communicate her inclinations no later than one working day before a hearing. The court’s preference is to distribute the inclinations to the parties via
the court’s electronic filing system (“CM/ECF”). Accordingly, parties are encouraged to participate in the court’s CM/ECF system.

The inclination is intended to be only a summary of the court’s thinking before the hearing and not a complete legal discussion. The court will issue a written order with a detailed analysis after the hearing.

The parties are reminded that, under Local Rule 7.4, they may not submit supplemental briefs (such as briefs addressing the inclination) unless authorized by the court. Supplemental declarations, affidavits, and/or other evidence in response to the court’s inclinations are prohibited unless authorized by the court. The parties are also reminded that they must comply with Local Rule 7.8 if they intend to rely on uncited authorities at the hearing.

Occasionally, Judge Mollway does not announce an inclination, especially if materials are submitted to her right before the hearing. Because briefing on criminal motions closes just a few days before the hearing, it is not uncommon for her to be unable to announce an inclination on a criminal motion until the start of the hearing itself. Certainly if an evidentiary hearing is scheduled on matters necessary to a decision on either a civil or criminal motion, no inclination will be announced.

Judge Mollway’s inclinations may not be cited as authority for any proposition. However, the inclinations will be electronically filed for the convenience of the parties.

Judge Mollway announces the following inclinations:

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Oklevueha Native American Church of Hawaii, Inc., et al. v. Holder, et al., Civ. No. 09-00336 SOM/BMK

Plaintiffs Michael Rex “Raging Bear” Mooney and the Oklevueha Native American Church of

Hawaii, Inc., allege that cannabis (marijuana) is a central part of their religion. Plaintiffs assert

that their right to religious freedom is being infringed on by the United States as it enforces

federal drug laws, specifically 21 U.S.C. § 841. The remaining claims in this case include the

“preenforcement” claims asserted in Count 1 (Religious Freedom Restoration Act claim), Count 2

(American Indian Religious Freedom Act claim), Count 3 (Equal Protection Clause claim), Count 4

(First Amendment free exercise of religion claim), Count 6 (Declaratory Judgment Act claim), and

Count 7 (injunctive relief claim). On July 13, 2012, Defendants moved to dismiss the remaining

claims asserted in the First Amended Complaint. See ECF No. 63. The court is inclined to grant

that motion in part and to deny it in part. With respect to the Religious Freedom Restoration Act

of 1993 (“RFRA”) claims asserted in Count 1, the court is inclined to grant the motion to the

extent Defendants seek relief unrelated to their exercise of religion, but to deny the motion in all

other respects. The court is inclined to rule that Plaintiffs sufficiently allege that the Controlled

Substances Act places a substantial burden on Plaintiffs’ exercise of their

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religion. The court is inclined to rule that whether the Controlled Substances Act actually

substantially burdens Plaintiffs’ exercise of their religion is a question of fact not amenable to

resolution on a Rule 12(b)(6) motion to dismiss.

Plaintiffs’ prayer for relief seeks an injunction prohibiting Defendants from arresting or

prosecuting Plaintiffs not only in connection with the religious use of cannabis, but also in

connection with “possession of therapeutic cannabis for individual use in compliance with State of

Hawaii Revised Statutes,” the “ability to obtain cannabis from any other legal source in

compliance with State of Hawaii Revised Statutes,” the “ability . . . to cultivate and distribute

cannabis to any person or entity in compliance with State of Hawaii Revised Statutes,” and the

“cultivation of cannabis for therapeutic . . . needs.” The court requests that Plaintiffs come to the

hearing prepared to identify the section(s) of Hawaii Revised Statutes they are referring to. If

Plaintiffs are referring to sections 329-121 to 329-128 of the Hawaii Revised Statutes, which

govern the medical use of cannabis, how is that related to Plaintiffs’ religion? Because the

medical use of cannabis appears to be unrelated to Plaintiffs’ religion, the court is inclined to

dismiss the RFRA claim to the extent it is based on the allegation that the Controlled Substances

Act infringes on Plaintiffs’ rights established by Hawaii statutes.

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With respect to the claims asserted in Count 2 under the American Indian Religious Freedom Act,

42 U.S.C. § 1996 (“AIRFA”), the court is inclined to grant the motion, as the Ninth Circuit has

noted that “AIRFA creates no judicially enforceable individual rights.” United States v. Mitchell,

502 F.3d 931, 954 (9 Cir. 2007). Instead, “AIRFA is simply a the policy statement and does not

create a cause of action.” Henderson v. Terhune, 379 F.3d 709, 711 (9 Cir. 2004).

With respect to the claims asserted in Count 3 under the Equal Protection Clause, the court is

inclined to deny the motion. The court is inclined to rule that whether Defendants have a rational

basis supporting their differing treatment of religious groups using different entheogens is not a

matter this court may decide on this motion to dismiss. Although this court could convert this

part of the motion to one under Rule 56 of the Federal Rules of Civil Procedure, the court is

inclined not to do so because this issue has not been sufficiently briefed and because Defendants

may bring a separate summary judgment motion raising the same arguments. With respect to

the First Amendment claims asserted in Count 4, the court asks the parties to come to the

hearing prepared to discuss whether this claim is duplicative of the RFRA claim asserted in Count

1. Does the court analyze the First Amendment free exercise of religion claim under a different

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standard from the RFRA claims? Or does the court apply the RFRA standard to the First

Amendment claims, making them identical to the claims asserted in Count 1? Compare Emp’t Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872 (1990), with Gonzales v. O Centro

Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006); 42 U.S.C. § 2000bb-1(b). If different

standards apply to the claims such that the First Amendment claim involves a more difficult

burden for Plaintiffs, do Plaintiffs want to proceed on their First Amendment claim? If the

standards are the same, do Plaintiffs want to proceed on the duplicative claims (and, if so, why)

or should the court dismiss the First Amendment claim as duplicative?

With respect to the declaratory and injunctive relief claims asserted in Counts 6 and 7, the court

is inclined to grant the motion. The court is inclined to rule that those claims are not independent

claims, but instead state forms of relief available if Plaintiffs prevail on a substantive claim. See

Hoilien v. OneWest Bank, FSB, 2012 WL 1379318 (D. Haw. Apr. 20, 2012) (“the Court follows the

well-settled rule that a claim for injunctive relief cannot stand as an independent cause of

action”); Teaupa v. U.S. Nat’l Bank N.A., 836 F. Supp. 2d 1083, 1091 (D. Haw. 2011) (same);

Pugal v. ASC (America’s Servicing Co.), 2011 WL 4435089 (D. Haw. Sept. 21, 2011) (same); see

also Mangindin v. Wash. Mut. Bank, 637 F. Supp. 2d 700, 707 (N.D. Cal.