MAY 3 1 2011

IN THE DISTRICT COURT
U. S. DISTRICT COURT
fAS.IERN. DISTRICI Qf MQ
FOR THE WESTFJRN'DISTRICT OF MISSOURI
CAPE GERARDEAU DIVISION
RODGER SERATT, individually, )
on behalf of himself, )
Petitioner, )
)
I,' J \ CV ()CA4:JJ/J
vs. Civil No.
STATE OF MISSOURI, a sovereign )
Governmental Entity, )
Respondent.
PETITION FOR WRIT OF PROHIBITION OR. IN THE ALTERNATIVE.
PETITION FOR WRIT OF MANDAMUS AND DECLARATORY ORDER
DECLARING A STATE STATUTE UNCONSTITUTIONAL
COMES NOW the petitioner, RODGER SERATT, pro se, as his own
attorney on behalf of himself and respectfully submits the following petition to
prohibit the State of Missouri from enforcing a specific state statute; to obtain
a declaratory order declaring said statute to be unconstitutional, and for such
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other and further relief as the Court may deem just and proper under the
circumstances:
1. Petitioner, RODGER SERATT, is a citizen of the United States of
America and of the sovereign State of Missouri. Currently, he resides in Naylor
Missouri which is within territorial jurisdiction of this Court. He is engaged in
a sales business that involves a product the State of Missouri is, by enactment
of the statute in issue here (Missouri Revised Statutes Chapter 195.017,
August 28, 2010), attempting to ban from sale within the State of Missouri. If
enforced, the statute will interfere with petitioner's ability to carry out what
otherwise would be a lawful, legitimate and profitable business venture in a
manner equal to others engaged in similar business ventures involving
products that, like petitioner's, can be used in an inappropriate manner.
2. Respondent, STATE OF MISSOURI, is a Governmental Entity. It may
govern the intrastate commerce within the State of Missouri except that it may
not govern or regulate such intrastate commerce in a manner that is
unreasonable and is premised upon legislative action that is vague and
ambiguous to the extent that the average man is unable to understand and
know what activity is regulated.
3. This petition is presented pursuant to 28 U.S.C. 1651 (better known as
the "All Writs Act."
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4. This court has jurisdiction over this matter pursuant to 28 U.S.C. 1331,
and venue is proper pursuant to 28 U.S.C. 1291.
5. The Petitioner is an entrepreneur whose business is the distribution and
sales of products known as K2, SPICE and Bathsalts. These are brand
names for types of incense and/or bath salts manufactured by methods of
mixing chemical compounds that include a combination of chemicals that are
not on any Schedule or other regulatory list of the United States or of the State
of Missouri. Indeed, the products sold by the petitioner contain compounds
that have not been banned by any entity and, to the extent that any entity
may have listed said compounds on a drug schedule, said listing was not
based on any extended study or other criteria common to such listings.
6. Because the State of Missouri is attempting to ban the compounds sold
by the petitioner, and the petitioner has attested to the fact that the
compounds are not intended for use in the manner for which the State
premises its ban, there is now an existing, actual and justifiable controversy
between the parties and petitioner is entitled to a declaration of his rights, to
the fact of the unconstitutionality of the statute, and to such other and further
relief as the court may deem just and proper based on the facts, conditions,
and circumstances hereinafter set out.
7. In the 2010 legislative session of the State of Missouri, a statute was
brought before the House and Senate and passed which bans the sale of
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products the legislature refers to as "synthetic cannabis." Although the
statute makes no mention of it, it is presumed that the legislature was
targeting compounds such as those distributed and sold by the petitioner in
the enactment of the statute. The statute does not define, nor does it provide a
list of the chemicals which are used to produce the "synthetic cannabis" the
statute seeks to outlaw. The statute's failure to list the chemical agents
contained in the "synthetic cannabis" referenced within the statute, allows
for law enforcement to identify virtually any product as "synthetic cannabis,"
if the compound has a similar chemical structure to that of tetrahydro
cannabis (also known as "THe"), and to bring charges against any person who
may be in possession of, distributing, selling, and/or manufacturing any such
compound.
8. The statute is so vague and uncertain that it fails to afford fair warning
to would be violators of what is unlawful.
9. The statute gives notice that it is unlawful to be in possession of tetrahydro
cannabis naturally contained in a plant of the genius Cannabis (Cannabis
Plant), as wen as synthetic equivalents of the substances contained in the
Cannabis Plant, or synthetic substances, their derivatives, and their isomers
with similar chemical structures and pharmacological activity to those
substances contained in the plant such as the following: a) 1 cis or trans
tetrahydrocannabinol and their optical isomers; b) 6 cis or tetrahydrocannabi­
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nol and their optical isomers; and c) 3, 4 cis or trans tetrahydrocannabinol and
their optical isomers; and d) any compound of these structures, regardless of
numerical designation of atomic position covered. It says nothing of "what
constitutes a similar chemical structure and pharmacological activity",
nor does it identify what renders a compound "similar to" those natural
substances found in the tetrahydro cannabis plant.
10. Under the statute, because the effects of the improper use of such
compounds as Gasoline, Pam (cooking spray), and glue, these could become
unlawful under the statute. The products distributed and sold by the
petitioner clearly are construed as banned by the statute although the
products have no unlawful chemical agents in them. Like gasoline, Pam, glue
and paint, the K2, Spice and Bathsalt products sold by petition have an
ingredient that, when used inappropriately, can produce the mind altering
effects which would bring it within the statute's reach. But, as with gasoline,
glue, paint and Pam, not every agent that produces a mind altering state when
abused can be regulated by the State when it is sold for its intended use.
11. For a statute, that regulates an activity that individuals may from time
to time engage in to be unlawful, to pass constitutional muster it must state
the forbidden activity with much specificity. The statute, Missouri Revised
Statutes Chapter 195.017, fails to provide notice of those activities so that the
individually may be well informed and made aware of what the State is
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regulating.
12. The statute also discriminates against manufactures, distributors and
retailers of K2, Spice and Bathsalt, as it prohibits individuals from engaging
in such entrepreneurial activities, yet the manufactures of glue, gasoline, Pam,
and paint are not restricted from selling their wares although each of those,
like K2, Spice and Bathsalt, when used inappropriately, alters the mental
functioning process of the individuals so using the product.
13. Like glue, spray paint, Pam and Gasoline, petitioner's products
contain warnings on the label. These warnings inform those who purchase the
products that the products are not for human consumption. They are intended
to be used as incense and bath salts, as they are designated. To rule that the
statute in issue here is constitutional, and that the State of Missouri may
regulate the petitioner's product beyond that of what is required in relation to
glue, gasoline, Pam and other such substances that may be abused by human
beings, would be a direct discrimination against the petitioner that is highly
suspect.
14. If the statute required that retailers sell the product to individuals over
21 years of age, such as alcoholic beverages and cigarettes are subject, the
statute could pass muster. But, the statute does not issue such a regulation.
Rather, the statute forbids the distribution, sale and possession of the legal
compounds contained in the products and, therefore, overreaches and takes
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the regulatory process too far.
15. If allowed to stand as constitutional, Missouri Revised Statute
Chapter 195.017 will cause petitioner to lose a significant amount of
investment money that was invested prior to the enactment of the act. It will
interfere significantly with his ability to engage in fair trading without the
interference of the government, and without discrimination.
16. There are no alternative means to resolve this issue and the State has
already burdened the petitioner's ability to enjoy his liberty by enacting the
statute. Therefore, the issue is ripe for litigation in this original jurisdiction
proceeding.
17. There are no means for exhaustion of administrative or state remedies
as a petition attacking the constitutionality of a statute has no general domain.
Because the statute in issue here violates, when enforced, the Fifth, Eighth and
Fourteenth Amendments to the Constitution, this forum has original
jurisdiction over the controversy.
WHEREFORE, PREMISES CONSIDERED, petitioner prays the Court will
grant him a declaratory order that declares Missouri Revised Statutes
Chapter 195.017 unconstitutional, in violation of the Fifth and Fourteenth
Amendments to the Constitution of the United States of America; a
declaration that Missouri Revised Statutes Chapter 195.017 is
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unconstitutionally vague and ambiguous,and fails to provide would be violators
the kind of notice necessary to pass constitutional muster; a declaration that
Missouri Revised Statutes Chapter 195.017 is unconstitutional because it
discriminates against those engaged in the liberty of selling said product; and,
grant such other and further relief as the court deems just and proper under
the circumstances, including, but not limited thereto, injunctive relief.
IT IS SO PRAYED this3lJ/[day 201 L
Respectfully submitted,
RODGER SERATT
Rural Rt. 1
Box 1996
Naylor, Missouri 63953
.-pJloNE: (;;'/3)
Petitioner Pro Se Sui Juris
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CERTIFICATE OF SERVICE
I hereby certify that a true and exact copy of the forgoing has, this ~
, 2011, been served on the Attorney
day of ~
General for the Stat of Missouri, by placing a copy of same in the United
States mail with sufficient postage and addressing affIxed thereon to assure
delivery.
RODGER SERATT
Petitioner Pro Se Sui Juris
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