Peyote Way Church of God, Inc. v. Smith

• Decision Date: 07 February 1983
• Docket Number: No. CA 3-82-0778-C.,CA 3-82-0778-C.
• Citation: 556 F. Supp. 632
• Parties: PEYOTE WAY CHURCH OF GOD, INC. v. William F. SMITH, Attorney General of the United States, and Jim Mattox, Attorney General of the State of Texas.
• Court: U.S. District Court — Northern District of Texas

556 F. Supp. 632

PEYOTE WAY CHURCH OF GOD, INC. v. William F. SMITH, Attorney General of the United States, and Jim Mattox, Attorney General of the State of Texas.

No. CA 3-82-0778-C.

United States District Court, N.D. Texas, Dallas Division.

February 7, 1983.

Richard A. Allen and Raymond E. White, American Civil Liberties Union, Dallas Chapter, Dallas, Tex., for plaintiff.

John T. Bannon, Jr., (for Wm. F. Smith) General Litigation and Legal Advice Section, Crim. Div., Dept. of Justice, Washington, D.C., James A. Rolfe, U.S. Atty., Paula Mastropieri-Billingsley, Asst. U.S. Atty., Dallas, Tex., for William French Smith.

Jim Mattox, Atty. Gen. of Texas, Gilbert J. Pena, Chief, Enforcement Section, Douglas M. Becker, Leslie A. Benitez, Asst. Attys. Gen., Austin, Tex., for Jim Mattox.

James G. Abourezk, Atty. Gen. of Navajo Nation, Lawrence A. Aschenbrenner, Deputy Atty. Gen., Elizabeth Bernstein, Staff Atty., Dept. of Justice of the Navajo Nation, Window Rock, Ariz., amicus curiae.

OPINION

WILLIAM M. TAYLOR, Jr., Senior District Judge.

Plaintiff is an Arizona non-profit religious organization with its headquarters in Arizona. It has sued on its own behalf and on behalf of its members to have Tex.Rev. Civ.Stat.Ann. art. 4476-15, § 4.11(a), 4.032, 4.042 & 4.051 (Vernon 1976 & Supp.1982, 21 U.S.C. §§ 841 & 844 (1976) and 21 C.F.R. § 1307.31 (1981) declared unconstitutional under, variously, 42 U.S.C. § 1983, the First, Fifth and Fourteenth Amendments to the United States Constitution and Article 1, § 3 of the Texas Constitution. Also, a preliminary and permanent injunction is sought to vindicate the alleged deprivation of Plaintiff and its members rights under 42 U.S.C. §§ 1981 & 1983 (1976) the First, Fifth, Ninth and Fourteenth Amendments to the United States Constitution and Article 1, § 6 of the Texas Constitution.¹ Essentially, Plaintiff wants to have the right to possess and use peyote buttons as part of the sacraments which is presently illegal under both Texas and Federal law except for members of the Native American Church.²

Defendant Smith is charged with the enforcement of the Federal drug laws in Part E of Chapter 13 of Title 21 of the United States Code, 21 U.S.C. § 871 et seq. So he is the logical federal defendant.

Art. 4476-15, Tex.Rev.Civ.Stat.Ann. (Vernon 1976 & Supp.1982), the Texas Controlled Substances Act, does not give similar powers and responsibilities to Defendant Mattox but to the Commissioner of Health of the Texas Department of Health and the Director of the Texas Department of Public Safety. A perusal of the Texas statutes does not show that the Attorney General of the State of Texas has any control over any law enforcement agency of the State or any of its political subdivisions or over the County and District Attorneys of the 254 counties of Texas. But as he is the chief legal officer of the State of Texas, his defense of the questioned Texas statutes is vigorous and he has raised no question as to his being a proper defendant in this civil action, we find that there is sufficient case or controversy between Plaintiff and Defendant Mattox, leaving the question of ripeness as raised by him aside for the moment, for this Court to have jurisdiction over these parties.

The Defendants have moved for dismissal and summary judgment. These motions are ripe for decision. Also, a hearing on the Motion for Preliminary Injunction has been had and is ripe for decision, if the motions of the Defendants are not granted.

Abstention

Defendant Mattox has moved for the Court to abstain under the doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). That doctrine states, in short, that federal courts should not interfere with ongoing state criminal proceedings.

Plaintiff's attorneys have apprised the Court that subsequent to the hearing on the Motions on December 1 and 2, 1982, they were informed that a member of Plaintiff was arrested in Webb County, Texas for possession of peyote on November 19, 1982. No evidence has been adduced as to this incident but there does not seem to be any dispute between the Parties as to whether Plaintiff's member was arrested for possession of peyote.

The question is whether this arrest is sufficient cause for this Court to abstain. The guiding case is Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1974). The Supreme Court said in that case, at page 349, 95 S.Ct. at 2291; "... we now hold that where state criminal proceedings are begun against the federal plaintiffs after the federal complaint is filed but before any proceedings of substance on the merits have been taken place in the federal court, the principles of Younger v. Harris should apply in full force."³ The complaint in this civil action was filed on May 20, 1982, a date anterior to the member's arrest.

Defendant Mattox contends that the arrest of the member was the start of a state criminal proceeding. It is true that the Texas Speedy Trial Act specifies in the pertinent part of Vernon's Ann.C.C.P. art. 32A.02:

A criminal action commences for purposes of this article when an indictment, information or complaint against the defendant is filed in court, unless prior to the filing the defendant is either detained in custody or released on bail or personal bond to answer for the same offense arising out of the same transaction in which event the criminal action commences when he is arrested.

As to that member, undoubtedly Younger v. Harris would be of great force. But that is not necessarily so as to Plaintiff.

Plaintiff has a ranch in Arizona which is the home of the Church. Only five members of Plaintiff reside there. The remaining, non-resident members are scattered to the four winds. The arrested member is one of the non-resident members. The lack of control over and even of communication with the non-resident members is best shown by the lack of knowledge of the arrest on the part of Plaintiff's officers and counsel from November 19, 1982 until the end of the hearing in this Court on December 1 and 2, 1982.

Also no evidence has been brought forth showing exactly the posture of that Texas criminal proceeding.

The arrested member is said to be a white male. This is important in that Plaintiff, among other things, is making separate claims for its members who have no Indian blood and for those who have Indian blood but less than 25%.⁴ The Fifth Circuit said in Morial v. Judiciary Com'n. of State of La., 565 F.2d 295 (1977), cert. den. 435 U.S. 1013, 98 S.Ct. 1887, 56 L.Ed.2d 395 at p. 297:

... Younger dismissal is called for only in those circumstances where successful defense of a state enforcement proceeding, initiated before substantial federal proceedings on the merits had occurred, would fully vindicate the federal plaintiff's federal right.

It has not been shown that Plaintiff would have an opportunity to fully vindicate its rights in whatever the state criminal proceedings that may be had against the Plaintiff's non-resident member.

Also, abstention in this case as to the Texas defendant would not terminate this proceeding. Assuming ripeness and standing which will be discussed below, a decision on the merits would still have to be made as to the Federal defendant. For our purposes, the state and federal laws are the same, they both make possession and use of peyote illegal with an exemption for use in Native American Church ceremony (and other non-germane exemptions of a medical nature). Surely, the analysis of Plaintiff's federal rights vis-a-vis one set of laws will be the same as vis-a-vis the other statute. No judicial economy could be had by dismissing Defendant Mattox and going forward with Defendant Smith.

Ripeness and Standing

Both Defendants have moved for summary judgment on the ground that Plaintiff has not presented a ripe controversy so as to have standing to challenge the constitutionality of the state and federal drug laws on their face and as applied to Plaintiff and its members.

The reason that the Texas laws, not Arizona laws, are being challenged in this suit is that the only major source of peyote in this country is in Texas. So Plaintiff's members, if they are to obtain peyote domestically, must come to Texas to purchase it.

The Supreme Court announced in Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974), that potential defendants need not expose themselves to arrest in order to challenge the constitutionality of a criminal statute. In our Fifth Circuit, the case of Intern. Soc. For Krishna Consciousness v. Eaves, 601 F.2d 809 (1979), is an exhaustive explication on standing or justiciability as they relate to anticipatory challenges to the constitutionality of statutes, the Fifth Circuit set out at p. 819 of that opinion a short statement of the applicable test, which reads:

When we decide whether a case or controversy exists, then, we must focus on the plaintiff's interest in "engaging in a course of conduct, arguably affected with a constitutional interest, but proscribed by a statute." Babbit v. UFW, 442 U.S. 289, 298, 99 S.Ct. 2301 2308, 60 L.Ed.2d 895 (1979).

Both of the officers of Plaintiff who testified at the preliminary injunction hearing stated that the use of peyote is central to their religion. Moreover, they stated that Plaintiff had some 200 peyote buttons on hand at that time at the Plaintiff's site in Arizona and that peyote was used on a regular basis by them and their fellow members there at that site.

One of the two officers has no Indian blood so he most certainly cannot avail himself of the exemptions accorded members of the Native American Church. The other officer is 50% American Indian so he could possibly avail himself of those exemptions. But he, personally, as an officer and as the founder of Plaintiff expressed concern that his grandson who lives at Plaintiff's site in Arizona would not be covered by the state and federal exemptions as the grandson is only...