NH Hemp Council v. Constantine, DEA CV-98-280-JD 10/11/98 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
New Hampshire Hemp Council, Inc., et al.
v. Civil No. 98-280-JD
Thomas A. Constantine, Admin., Drug Enforcement Administration
O R D E R
The plaintiffs, Derek Owen and the New Hampshire Hemp
Council, brought this action against the defendant, Thomas
Constantine, the Administrator of the United States Drug
Enforcement Agency ("DEA"), pursuant to the Administrative
Procedure Act, 5 U.S.C.A. § 702 and § 703, asserting that the
defendant exceeded its statutory authority under the
Comprehensive Drug Abuse Prevention and Control Act and
unlawfully violated their constitutional rights. Before the
court now is the plaintiffs' objection to the Report and
Recommendation of Magistrate Judge James R. Muirhead which
recommended that the plaintiffs' motion for a temporary
restraining order and preliminary injunction be denied and the
case be dismissed for lack of standing (document no. 15). Background1
Plaintiff Owen is an established New Hampshire agricultural
producer who currently grows a wide range of commodities. The
New Hampshire Hemp Council is a non-profit corporation. Owen, in
cooperation with the New Hampshire Hemp Council, seeks to grow
hemp on his farm as an agricultural commodity and to demonstrate
hemp's value in contributing to improved soil productivity and
sustainable local agriculture.
Owen is also a New Hampshire State Representative. In the
1998 New Hampshire legislative session, Owen co-sponsored a bill
entitled "An act permitting the development of an industrial hemp
industry in New Hampshire and continually appropriating a special
fund." See Compl. at 7. The bill would have established a state
system for licensing and inspecting hemp growing operations.
Although the bill was recommended for passage in the legislature
by the Committee on Environment and Agriculture of the New
Hampshire House of Representatives, the full House of
Representatives defeated the bill with a 175-164 vote.
On February 3, 1998, during consideration of the bill, DEA
Special Agent George Festa testified before the Committee that
1The facts related herein represent the findings of the court for the purposes of the temporary restraining order and preliminary injunction.
2 the DEA's interpretation of federal law did not recognize a
distinction between hemp and marihuana and criminalized both of
them. Therefore, the proposed state legislation would conflict
with federal legislation, and the DEA would treat industrial hemp
cultivation as a federal offense. These statements were
allegedly a cause of the bill's failure in the New Hampshire
House of Representatives.
The plaintiffs assert that the DEA has exceeded its
statutory authority in declaring hemp manufacture and distribu
tion illegal and in threatening prosecution for engaging in such
activities under the Comprehensive Drug Abuse Prevention and
Control Act. See 21 U.S.C.A. § 801 - § 966 (West 1981) ("1970
Act"). They argue that these actions violated their Fifth
Amendment rights and that the DEA agent's testimony before the
Committee violated their First Amendment rights. Ultimately the
plaintiffs seek, inter alia, a permanent injunction prohibiting
the DEA from prosecuting them for hemp cultivation, and a
declaration of hemp's legality.
On May 2, 1998, the plaintiffs filed a motion for a
temporary restraining order and preliminary injunction, which was
opposed by the defendant. The motion was referred to Magistrate
Judge James R. Muirhead pursuant to 28 U.S.C.A. § 636(b)(1)(B).
A hearing before the Magistrate followed and his report and
3 recommendation was issued on June 9, 1998. The magistrate
recommended dismissal of the plaintiffs' action, finding that the
plaintiffs lacked standing. The magistrate reasoned that because
the plaintiffs could not grow hemp legally in New Hampshire under
state law, the defendant's allegedly erroneous interpretation of
federal law and unlawful threat of prosecution caused no injury
to the plaintiffs.
In the event the plaintiffs were found to have standing, the
magistrate also considered the merits of the plaintiffs' motion
for a temporary restraining order and preliminary injunction. In
evaluating the four factors that a court must weigh in
considering a preliminary injunction, that is, the likelihood of
success on the merits, the potential for irreparable harm, the
balance of eguities, and the public interest, the Magistrate
found the plaintiffs' motion should not be granted. First, the
plaintiffs were unlikely to succeed on the merits of the claim as
Congress had spoken clearly on the issue and intended to
criminalize hemp. Second, because the plaintiffs do not grow
hemp, nor have they ever grown hemp, and because New Hampshire
law criminalizes hemp independently of federal law, the status
guo was not likely to be changed by the defendant's actions and
there was no risk of irreparable harm. Finally, the magistrate
determined that while the public interest favored no party
4 clearly, equity favored the defendant since distinguishing
between immature hemp and marihuana plants is difficult and the
DEA's efforts to enforce the nation's drug laws would be
frustrated. The plaintiffs filed their objections to the
magistrate's report on June 19, 1998.
Discussion
After a party makes a timely written objection to a
magistrate's report, the district court must review the matter de
novo. See Northinqton v. Marin, 102 F.3d 1564, 1570 (10th Cir.
1996). "The district court must consider the actual testimony or
other evidence in the record and not merely review the
magistrate's report and recommendation." Id.
As discussed above, Owen, in cooperation with the Hemp
Council, intends to cultivate hemp for industrial purposes and
thereby demonstrate its usefulness as a valuable rotational crop.
The plaintiffs therefore seek an injunction prohibiting the DEA
from prosecuting persons manufacturing and distributing hemp, as
well as a declaratory judgment, in furtherance of their intention
to grow hemp, finding hemp cultivation legal and requiring
prosecutors to establish in criminal cases, when appropriate,
that the substance at issue is marihuana and not hemp.
In support of their action, the plaintiffs assert that
5 Congress only sought to criminalize, inter alia, the manufacture
and possession of psychoactive Cannabis sativa L., which the
plaintiffs refer to as marihuana, as opposed to the allegedly
non-psychoactive Cannabis sativa L., which they refer to as hemp.
The plaintiffs argue that the defendant's interpretation of the
statute as proscribing the cultivation and possession of hemp is
in error. Conseguently, the defendant's actions declaring hemp
cultivation illegal and threatening prosecution for such
cultivation are allegedly beyond its statutory authorization and
unlawful. The defendant responded, in part, that the plaintiffs
lack standing to bring this action and challenged the injury that
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NH Hemp Council v. Constantine, DEA CV-98-280-JD 10/11/98 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
New Hampshire Hemp Council, Inc., et al.
v. Civil No. 98-280-JD
Thomas A. Constantine, Admin., Drug Enforcement Administration
O R D E R
The plaintiffs, Derek Owen and the New Hampshire Hemp
Council, brought this action against the defendant, Thomas
Constantine, the Administrator of the United States Drug
Enforcement Agency ("DEA"), pursuant to the Administrative
Procedure Act, 5 U.S.C.A. § 702 and § 703, asserting that the
defendant exceeded its statutory authority under the
Comprehensive Drug Abuse Prevention and Control Act and
unlawfully violated their constitutional rights. Before the
court now is the plaintiffs' objection to the Report and
Recommendation of Magistrate Judge James R. Muirhead which
recommended that the plaintiffs' motion for a temporary
restraining order and preliminary injunction be denied and the
case be dismissed for lack of standing (document no. 15). Background1
Plaintiff Owen is an established New Hampshire agricultural
producer who currently grows a wide range of commodities. The
New Hampshire Hemp Council is a non-profit corporation. Owen, in
cooperation with the New Hampshire Hemp Council, seeks to grow
hemp on his farm as an agricultural commodity and to demonstrate
hemp's value in contributing to improved soil productivity and
sustainable local agriculture.
Owen is also a New Hampshire State Representative. In the
1998 New Hampshire legislative session, Owen co-sponsored a bill
entitled "An act permitting the development of an industrial hemp
industry in New Hampshire and continually appropriating a special
fund." See Compl. at 7. The bill would have established a state
system for licensing and inspecting hemp growing operations.
Although the bill was recommended for passage in the legislature
by the Committee on Environment and Agriculture of the New
Hampshire House of Representatives, the full House of
Representatives defeated the bill with a 175-164 vote.
On February 3, 1998, during consideration of the bill, DEA
Special Agent George Festa testified before the Committee that
1The facts related herein represent the findings of the court for the purposes of the temporary restraining order and preliminary injunction.
2 the DEA's interpretation of federal law did not recognize a
distinction between hemp and marihuana and criminalized both of
them. Therefore, the proposed state legislation would conflict
with federal legislation, and the DEA would treat industrial hemp
cultivation as a federal offense. These statements were
allegedly a cause of the bill's failure in the New Hampshire
House of Representatives.
The plaintiffs assert that the DEA has exceeded its
statutory authority in declaring hemp manufacture and distribu
tion illegal and in threatening prosecution for engaging in such
activities under the Comprehensive Drug Abuse Prevention and
Control Act. See 21 U.S.C.A. § 801 - § 966 (West 1981) ("1970
Act"). They argue that these actions violated their Fifth
Amendment rights and that the DEA agent's testimony before the
Committee violated their First Amendment rights. Ultimately the
plaintiffs seek, inter alia, a permanent injunction prohibiting
the DEA from prosecuting them for hemp cultivation, and a
declaration of hemp's legality.
On May 2, 1998, the plaintiffs filed a motion for a
temporary restraining order and preliminary injunction, which was
opposed by the defendant. The motion was referred to Magistrate
Judge James R. Muirhead pursuant to 28 U.S.C.A. § 636(b)(1)(B).
A hearing before the Magistrate followed and his report and
3 recommendation was issued on June 9, 1998. The magistrate
recommended dismissal of the plaintiffs' action, finding that the
plaintiffs lacked standing. The magistrate reasoned that because
the plaintiffs could not grow hemp legally in New Hampshire under
state law, the defendant's allegedly erroneous interpretation of
federal law and unlawful threat of prosecution caused no injury
to the plaintiffs.
In the event the plaintiffs were found to have standing, the
magistrate also considered the merits of the plaintiffs' motion
for a temporary restraining order and preliminary injunction. In
evaluating the four factors that a court must weigh in
considering a preliminary injunction, that is, the likelihood of
success on the merits, the potential for irreparable harm, the
balance of eguities, and the public interest, the Magistrate
found the plaintiffs' motion should not be granted. First, the
plaintiffs were unlikely to succeed on the merits of the claim as
Congress had spoken clearly on the issue and intended to
criminalize hemp. Second, because the plaintiffs do not grow
hemp, nor have they ever grown hemp, and because New Hampshire
law criminalizes hemp independently of federal law, the status
guo was not likely to be changed by the defendant's actions and
there was no risk of irreparable harm. Finally, the magistrate
determined that while the public interest favored no party
4 clearly, equity favored the defendant since distinguishing
between immature hemp and marihuana plants is difficult and the
DEA's efforts to enforce the nation's drug laws would be
frustrated. The plaintiffs filed their objections to the
magistrate's report on June 19, 1998.
Discussion
After a party makes a timely written objection to a
magistrate's report, the district court must review the matter de
novo. See Northinqton v. Marin, 102 F.3d 1564, 1570 (10th Cir.
1996). "The district court must consider the actual testimony or
other evidence in the record and not merely review the
magistrate's report and recommendation." Id.
As discussed above, Owen, in cooperation with the Hemp
Council, intends to cultivate hemp for industrial purposes and
thereby demonstrate its usefulness as a valuable rotational crop.
The plaintiffs therefore seek an injunction prohibiting the DEA
from prosecuting persons manufacturing and distributing hemp, as
well as a declaratory judgment, in furtherance of their intention
to grow hemp, finding hemp cultivation legal and requiring
prosecutors to establish in criminal cases, when appropriate,
that the substance at issue is marihuana and not hemp.
In support of their action, the plaintiffs assert that
5 Congress only sought to criminalize, inter alia, the manufacture
and possession of psychoactive Cannabis sativa L., which the
plaintiffs refer to as marihuana, as opposed to the allegedly
non-psychoactive Cannabis sativa L., which they refer to as hemp.
The plaintiffs argue that the defendant's interpretation of the
statute as proscribing the cultivation and possession of hemp is
in error. Conseguently, the defendant's actions declaring hemp
cultivation illegal and threatening prosecution for such
cultivation are allegedly beyond its statutory authorization and
unlawful. The defendant responded, in part, that the plaintiffs
lack standing to bring this action and challenged the injury that
the plaintiffs allegedly incurred at the defendant's hands along
with the relief the plaintiffs sought.
A. Standing
Article III of the Constitution limits the jurisdiction of
the federal courts to actual "cases" or "controversies." One
such "case-or-controversy" doctrine limiting the power of the
federal courts is the reguirement that a litigant have
"standing." See Allen v. Wright, 468 U.S. 737, 750 (1984). The
standing reguirement "has a core component derived directly from
the Constitution. A plaintiff must allege personal injury fairly
traceable to the defendant's allegedly unlawful conduct and
6 likely to be redressed by the requested relief." Id. at 751.
"[T]he plaintiff must have suffered an injury-in-fact -an
invasion of a legally protected interest which is (a) concrete
and particularized . . . and (b) actual or imminent, not
conjectural or hypothetical." Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 (1992) (citations and quotations omitted). The
plaintiff "must allege specific, concrete facts demonstrating
that the challenged practices harm him, and that he personally
would benefit in a tangible way from the court's intervention."
Warth v. Seldin, 422 U.S. 490, 508 (1975) . "[RJelief from the
injury must be 'likely' to follow from a favorable decision."
Allen, 468 U.S. at 751 (citations omitted). In determining
redressability, the court must "examine[] the causal connection
between the alleged injury and the judicial relief requested."
Id. at 753 n .19.
I. The Status of Hemp Under New Hampshire Law
The magistrate found that the plaintiffs have no standing to
sue because irrespective of the defendant's interpretation of the
1970 Act, which is what the plaintiffs have put at issue in this
case, the plaintiffs are prohibited from growing hemp under New
Hampshire law. The court agrees with the magistrate that New
Hampshire forbids the manufacture, possession, control, sale,
7 purchase, or transport of any controlled drug. See N.H. Rev.
Stat. Ann. § 318-B:2(I) (1995) ("RSA"). Under New Hampshire law,
controlled drugs are defined as "any drug or substance, or
immediate precursor, which is scheduled pursuant to RSA 318-B:1-
a." See RSA § 318-B:1(VI) (1995). The schedule establishes a
list of controlled drugs by reference to federal administrative
law, see State v. Cartier, 133 N.H. 217, 222 (1990); see also,
1985 N.H. Laws 293:8, and thereby incorporates 21 C.F.R.
§ 1308.11(d)(19) (1998), which lists marihuana as a schedule I
controlled substance. 21 C.F.R. § 1308.02 (1998) refers to 21
U.S.C.A. § 802 for the definition of marihuana, which states that
marihuana is :
all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin. Such term does not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.
21 U.S.C.A. § 802(16) (West Supp. 1998). Therefore, if the
federal definition encompasses hemp, then hemp is illegal under
New Hampshire law.
The first step in statutory construction is application of the plain meaning rule. See, e.g.. Catholic Social Servs. Inc.
v. Meese, 664 F. Supp. 1378, 1382, 1383 (E.D. Cal. 1987). "If
the statutory language is clear and unambiguous, 'that language
must ordinarily be regarded as conclusive.'" Id. (guoting North
Dakota v. United States, 460 U.S. 300, 312 (1983) (internal
guotations and citations omitted)). A court may then look to
legislative history "to determine only whether there is 'clearly
expressed legislative intention' contrary to that language, which
would reguire [the court] to guestion the strong presumption that
Congress expresses its intent through the language it chooses."
INS v. Cardozo-Fonseca, 480 U.S. 421, 432 n.12 (1987) (citations
omitted).
Marihuana is defined as "all parts of the plant Cannabis
sativa L. . . ." 21 U.S.C.A. § 802(16). Therefore, anything
that is part of the plant Cannabis sativa L. and that is not
expressly excluded in the statutory definition is, for purposes
of the 1970 Act, marihuana and a controlled substance. That both
hemp and marihuana are subsumed within the genus Cannabis sativa
L. is evident from the testimony of the plaintiffs' expert
witness Dr. Paul Mahlberg, a botanist licensed by the DEA to grow
and study the genus Cannabis:
The Court: So from a biological point of view are they different plants that are part of the same fam - The Witness: Biologically? At the present time taxonomically or in terms of classifying these plants they are placed together. This has been a case that has gone into the literature for guite some time.
Correctly they are placed in the same genus called cannabis sativa. In the past there were separations between different forms of this plant; that is, back in the 1930s and well before that. But legally, as you know now, we've only been dealing with one so-called species of the plant, although there are various numerous strains.
The Court Okay. If Congress wanted to, would they be able to adopt a scientifically recognized distinction between the two plants so as to legalize one and keep the other illegal?
The Witness I can't, I can't hear that very well.
The Court: Could you repeat the guestion for him?
[Plaintiffs' Counsel]: Yes. If Congress wanted to, could it adopt a scientifically acceptable distinction in the law between the plants?
The Witness: Yes. Congress could do that, very much as they have done in Europe, by identifying and distinguishing between the forms on the basis of their THC content.
[Defense Counsel]: Is a hemp plant a cannabis sativa plant?
The Witness: Yes.
10 [Plaintiffs' Counsel]: Dr. Mahlberg, would a distinction between marijuana and hemp in your opinion be a scientific distinction?
The Witness: Be a what difference?
[Plaintiffs' Counsel]: Be a scientific distinction.
The Witness: No, it would not be a scientific distinction in the sense of species designation. However, there are individuals in Europe more so than over here that recognize differences at the species level between forms. So that would be a typical- at the present time [sic]. It's simply because we here in this country have numerous litigation cases on cannabis and on whether it is or is not marijuana, whereas in Europe that's not the case. So the attitude is different over there.
[Plaintiffs' Counsel]: Dr. Mahlberg, let me try to clarify the guestion, or perhaps phrase it differently. The complaint refers to marijuana and hemp as being varieties within the same species. And you indicated that the complaint was accurate. Are you then saying that the distinction between varieties is not in your mind a taxonomic distinction?
The Witness: Well, it's based on the chemical composition. And some view this as taxonomically valid, but this does not mean that it's a different species. But there are, there are subspecific forms, sometimes they're called strains, as I call them, others may call them some
11 other designation, subspecies, for example, but they would state there the characteristic cannabinoid content. Now, over here in this country, as I mentioned before, we are still and seem to be continuously calling it a single species, cannabis sativa.
Transcript of Hearing for Preliminary Injunction, at 46-50 (May
22, 1998) ("Tr."). The court finds that the testimony of the
plaintiffs' expert witness establishes that while marihuana and
hemp may be two different subspecies or strains of Cannabis
sativa L., they are both of the genus Cannabis sativa L. The
court concludes, therefore, that based on the record in this
case, they are both "marihuana" as defined in the 1970 Act.2 It
follows from this conclusion that hemp is a controlled substance
under New Hampshire law.3
In addition, the court finds the language of 21 U.S.C.A.
2Io the extent that the plaintiffs guestion Congress's wisdom or rationale in selecting what to proscribe, the plaintiffs must present their arguments to that legislative forum.
3Ihe plaintiffs argue that the legality of hemp cultivation under New Hampshire law can only be determined upon the occurrence of three events: 1) a discretionary state prosecutorial decision to charge a person growing hemp with cultivating marihuana; 2) a unanimous state jury verdict that the person did intend to manufacture marihuana; and 3) the exhaustion of all appeals and collateral attacks rendering the conviction final. However, inherent in the court's duty to determine its own jurisdiction is its power to interpret laws that are relevant to the guestion of jurisdiction.
12 § 802(16) unambiguous and the intent of Congress clear.4
Contrary to the plaintiffs' assertion. Congress's use of the word
"plant" does not create any ambiguity. As the plaintiffs
concede, "plant" may refer to a genus, a species, or any of the
varieties of subspecies. See Pis.' Objection to Report and
Recommendation of the Magistrate Judge at 2. However, "plant" is
followed and gualified by "Cannabis sativa L.," which the
plaintiffs concede and testimony establishes is the name of a
genus. See id.; see also, Tr. at 46. Within that genus and
pursuant to taxonomic hierarchy fall both hemp and marihuana,
resolving any potential ambiguity. See Tr. at 46-50.
The plaintiffs alternatively claim ambiguity in the
statutory definition because it excepts the mature stalk of the
plant from other prohibited parts, and manufacture of the mature
stalks is technically unfeasible without manufacturing the entire
plant. The court finds the argument to be meritless. New
Hampshire law does prohibit the manufacture of controlled
substances, as well as the purchase, dispensation, and possession
of them.5 See RSA § 318-B:2 (1997). However, given the
legislative history does not evince a "clearly expressed legislative intention" contrary to the plain meaning of the statute. See Cardozo-Fonseca, 480 U.S. at 432 n.12.
5The plaintiffs make this argument under federal law in arguing their likelihood of success on the merits for the temporary restraining order and preliminary injunction. See
13 generalized nature of § 318-B:2, and the intention to establish
proscribed acts for a broad range of controlled substances, the
apparent incongruity relied upon by the plaintiffs is of little
moment. The exceptions in the definition are not rendered
meaningless as the purchase or possession of the mature stalk of
the plant is permissible, and the stalk can be obtained through
other means than its manufacture, such as through importation.6
II. Injury and Redress
As discussed above, one essential element of standing is
that the plaintiffs allege an actual injury-in-fact - an invasion
of a legally protected interest - that is neither hypothetical
nor conjectural, but that is tangible and concrete. See,
e.g., Lui an, 555 U.S. at 560. The plaintiffs' alleged injury is
the infringement of their use and enjoyment of Owen's land by a
Plaintiffs' Objection to Report and Recommendation of the Magistrate Judge at 15; 21 U.S.C.A. § 841(a) (proscribing the manufacture of controlled substances). The court, however, addresses the argument under New Hampshire law in determining the plaintiffs' standing. See RSA § 318-B:2. New Hampshire and federal law both proscribe the manufacture of controlled substances and the argument is readily transferable.
6The court also finds the plaintiffs' lenity argument to be unpersuasive. The lenity rule may serve only to resolve ambiguity, not to create ambiguity. See, e.g., Albernaz v. United States, 450 U.S. 333, 343 (1981) (rule of lenity inapplicable where statute is unambiguous).
14 supposedly unlawful federal ban on hemp cultivation. However, as
determined above, hemp is a controlled substance under New
Hampshire law, and the cultivation of it is consequently
proscribed. Therefore, since the plaintiffs have no legally
protected interest in growing hemp because such activity is
proscribed by state law, the defendant's allegedly unlawful
conduct does not cause them an injury-in-fact.
The court also finds that the plaintiffs lack standing
because the court could not effectively redress the alleged
injury. The plaintiffs are still precluded from cultivating hemp
by state law, the meaning and validity of which has not been
challenged by the plaintiffs. In this regard, the case at hand
is analogous to Harp Advertising v. Village of Chicago Ridge.
See 9 F.3d 1290 (7th Cir. 1993). In Harp, the plaintiff
advertising firm brought suit under 42 U.S.C.A. § 1983 asserting,
among other things, that certain zoning ordinances which
precluded off-premise signs violated its First Amendment rights.
See id. at 1291. Meanwhile, a second ordinance, the validity of
which was not at issue in the action, precluded signs that were
greater than 200 square feet. The plaintiff sought to erect a
sign that was 1200 square feet. The Seventh Circuit found that
the plaintiff lacked standing to bring the action challenging the
on-premise sign ordinance "because [the plaintiff] could not put
15 up its sign even if it achieved total victory in this
litigation." Id. at 1291. Similarly, in this case the
plaintiffs could not grow hemp in New Hampshire even if they were
successful in this litigation. The plaintiffs therefore lack
standing to bring their Fifth Amendment claim.
B. First Amendment Claim
The plaintiffs have also asserted that the defendant
violated their First Amendment rights by allegedly mis-stating
the law before the Agriculture and Environment Committee.
"[F]ederal courts are without power to entertain claims otherwise
within their jurisdiction if they are 'so attenuated and
unsubstantial as to be absolutely devoid of merit.'" Hagans v.
Lavine, 415 U.S. 528, 536 (1974) (guoting Newburvoort Water Co.
v. Newburvport, 193 U.S. 561, 579 (1904)). Pursuant to this
principle, the substantiality doctrine "places an obligation on
the district court to determine its jurisdiction" that must be
raised sua sponte if necessary. See Ricketts v. Midwest Nat.
Bank, 874 F.2d 1177, 1180, 1181 (7th Cir. 1989). It reguires
dismissal of an alleged federal claim that "'clearly appears to
be immaterial and solely made for the purpose of obtaining
jurisdiction or where such a claim is wholly insubstantial or
frivolous.'" Id. at 1180 (guoting Bell v. Hood, 327 U.S. 678,
16 681-82 (1942). The plaintiffs have identified no legal authority
remotely supporting their novel argument, nor is the court aware
of any. The court finds that the claim is frivolous and warrants
dismissal under the substantiality doctrine.
Conclusion
For the reasons discussed above, the court denies the
plaintiffs' motion for a temporary restraining order and
preliminary injunction. The court further concludes that the
plaintiffs lack standing to bring their Fifth Amendment claim,
and that their First Amendment claim is wholly insubstantial.
Case dismissed. The clerk is ordered to close the case.
SO ORDERED.
Joseph A. DiClerico, Jr. District Judge
September 11, 1998
cc: Gordon R. Blakeney Jr,. Esguire Gretchen Leah Witt, Esguire Arthur R. Goldberg, Esguire