Blowing Smoke: Dee v. State

Benjamin Dexter, J.D. Candidate, 2016

Few citizens have tried as many times as Michael J. Dee to overturn Maine’s marijuana laws.  Dee has sought on more than a dozen occasions to legalize possession and cultivation of recreational cannabis in this state.  Recently, the Maine Supreme Judicial Court, sitting as the Law Court, noted that since 1983 he has “repeatedly and unsuccessfully challenged the constitutionality of marijuana prohibitions.”  Dee v. State, 2014 ME 106, ¶ 2, ___ A.3d ___.  Despite his previous lack of success, Dee once attacked the laws prohibiting his enjoyment of the most politically polarizing herb in the garden, and once again, the Law Court shut him down.

Dee has raised due process arguments under the Fourteenth Amendment of the US Constitution (State v. Dee, 2012 ME 26, ¶ 2, 39 A.3d 42), and fundamental rights arguments under the Fourth Amendment (State v. Dee, 2007 WL 4698274 (Me. Super. June 25, 2007).  In most instances his affirmative complaints (and after arrests, his spurious defenses) have been disposed on the weakness and incoherency of his case, but it seems that, several years ago, Maine courts finally became fatigued with his endless cipher of pro-pot challenges.

In 2007, the Superior Court enjoined Dee from filing further suits to challenge Maine’s marijuana laws without prior court approval. Id.  Dee did not take the hint.  After Superior Court (Cumberland County, Wheeler, J.) dismissed his complaint for declaratory judgment seeking marijuana legalization, he appealed to the Law Court.  With three short paragraphs the Law Court affirmed: “[T]he court acted well within its discretion in rejecting Dee’s request for approval to file suit and granting the State’s motion to dismiss his petition with prejudice.”  As one Maine Law professor likes to explain to his first-year Civil Procedure class: in court, you don’t get any do-overs.

Despite Dee’s series of losses, the tide seems to flow in favor of marijuana legalization throughout Maine.  While once a controversial topic, more and more communities have been raising the question of whether or not to allow citizens recreational access to cannabis.  What the Law Court has emphasized in Dee v. State is that any future legalization efforts must be made legislatively.

Medical marijuana, for example, has been available in Maine since 1999, when the legislature passed a bill allowing limited possession and writing of prescriptions for medical grade cannabis.  See 22 MRS § 2383-B (2014); Maine’s Medical Marijuana Law,, (last updated Aug. 26, 2014).  Possession of marijuana without a medical prescription remains, under state statute, a civil violation that carries a fine of $350-$600 for up to 1 ¼ ounces and $700-$1000 for 1 ¼ ounces to 2 ½ ounces.  22 M.R.S. § 2383 (2014).  But as more municipalities (particularly in Southern Maine) institute decriminalizing measures, the state possession fines look more and more susceptible to amendment.

For example, a 2013 a voter referendum in Portland decriminalized the recreational possession and use of marijuana. Portland, Maine, Legalizes Recreational Marijuana, (last updated 11/6/2013).  Per city ordinance an individual may possess up to 2 ½ ounces, as well as paraphernalia.  Portland, Me., City Code of Ordinances, ch. 17, art.VIII, §§ 17-113, 114 (2014). A group of citizens in York have been trying to put measures legalizing  recreational marijuana use on the ballot for some time.  Dennis Hoey, York Selectmen Vote Against Pot Referendum Again, Portland Press Herald, (last updated 9/9/2014).  And both South Portland and Lewiston slated referendums for their November, 2014 ballots. Gillian Graham, Lewiston Voters to Decide Whether to Legalize Marijuana in Their City, Portland Press Herald, (last updated 9/2/2014).  South Portland voters, of course, approved the measure, while Lewiston voters narrowly declined to do so.  Local Election Results, Portland Press Herald, (last accessed 11/11/2014).

This is not a problem to be solved judicially.  Instead, Dee should seek to spark referendums in other communities, using his long record of “grass” roots activism to affect the changes he desires in drug law.  The Law Court firmly sees this as an issue for the voters, and as another Maine Law professor likes to say: if Dee has a problem with the current law, he should tell it to the legislature.