Oklevueha Native American Church of Hawaii, Inc. et al v. Holder et al

Filing 103

DISCOVERY ORDER re 102 - Signed by Judge BARRY M. KURREN on 5/14/13. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
OKLEVUEHA NATIVE
AMERICAN CHURCH OF
HAWAII, INC., ET AL.,

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)
)
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Plaintiffs,
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vs.
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)
ERIC H. HOLDER, JR., ET AL.,
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Defendants.
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______________________________ )

Civ. No. 09-00336 SOM-BMK
DISCOVERY ORDER

DISCOVERY ORDER
Before the Court are the parties’ letter briefs dated April 15, 2013, in
which the Government seeks answers to interrogatories and production of
documents by Plaintiffs. The Court addressed these issues at a discovery
conference on May 10, 2013. This Discovery Order follows the oral ruling
provided by the Court at that hearing.
The Government has served 12 Interrogatories and 19 Requests for
Document Production on Plaintiffs Oklevueha Native American Church of Hawaii,
Inc. and Michael Rex Mooney. Mooney is the sole proprietor of the Church and
invoked the Fifth Amendment privilege against self-incrimination in response to

the Interrogatories. Although Mooney produced some documents to the
Government, it argues that the discovery responses are inadequate.
After Chief District Judge Susan Oki Mollway dismissed most of the
claims in the First Amended Complaint, the only remaining claim in this case is
Plaintiffs’ assertion that the Government violated the Religious Freedom
Restoration Act (RFRA) with respect to their claimed use of cannabis in the
exercise of their religion. Plaintiffs seek declaratory and injunctive relief.
The RFRA “prohibits the Federal Government from substantially
burdening a person’s exercise of religion, unless the Government ‘demonstrates
that application of the burden to the person’ represents the least restrictive means
of advancing a compelling interest.” Gonzales v. O Centro Espirita Beneficente
Uniao do Vegetal, 546 U.S. 418, 423-24 (2006) (citation omitted). Under the
RFRA, unless the Government satisfies a “compelling interest test,” “the Federal
Government may not, as a statutory matter, substantially burden a person’s
exercise of religion, ‘even if the burden results from a rule of general
applicability.’” Id. (citation omitted).
In the Ninth Circuit, “[t]o establish a prima facie RFRA claim, a
plaintiff must present evidence sufficient to allow a trier of fact rationally to find”
that the activities the plaintiff claims are burdened by Government action are an
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“exercise of religion” and that the Government action “substantially burdens” the
plaintiff’s exercise of religion. Navajo Nation v. United States Forest Serv., 535
F.3d 1058, 1068 (9th Cir. 2008) (en banc) (emphases added). The en banc court
described a “substantial burden” as follows:
Under RFRA, a “substantial burden” is
imposed only when individuals are forced to
choose between following the tenets of their
religion and receiving a governmental
benefit . . . or coerced to act contrary to their
religious beliefs by the threat of civil or
criminal sanctions . . . . Any burden
imposed on the exercise of religion short of
that . . . is not a “substantial burden” within
the meaning of RFRA, and does not require
the application of the compelling interest
test.
Id. at 1069-70 (emphasis added).
If the plaintiff cannot prove that its activities are an “exercise of
religion” or that the Government action “substantially burdens” that exercise of
religion, the RFRA claim fails. Id. at 1068. “Conversely, should the plaintiff
establish a substantial burden on his exercise of religion, the burden of persuasion
shifts to the government to prove that the challenged government action is in
furtherance of a ‘compelling governmental interest’ and is implemented by ‘the
least restrictive means.’” Id. (citation omitted). “If the government cannot so
prove, the court must find a RFRA violation.” Id.
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In deciding whether the discovery sought by the Government is
relevant to its defense of this claim, the Court must determine whether the
discovery is relevant to whether Plaintiffs’ activities are an “exercise of religion,”
whether the Government’s actions “substantially burden” that exercise of religion,
and whether the Government’s conduct is in “furtherance of a ‘compelling
governmental interest’ and is implemented by ‘the least restrictive means.’”
Regarding the Government’s Requests for Document Production, at
the discovery conference, Plaintiffs’ counsel stated on the record that all responsive
documents have been produced, except for those that are privileged and one other
document: Michael Rex Mooney’s State of Hawaii Department of Public Safety
Narcotics Enforcement Division Medical Marijuana Registry Patient Identification
Certificate. As stated at the conference, the Court ORDERS Plaintiffs to copy and
produce this document.
With respect to the Government’s Interrogatories, the Court finds that
only Interrogatory No. 2 is relevant to and necessary for the Government to defend
against Plaintiffs’ RFRA claim. Interrogatory No. 2 seeks information that goes to
the heart of whether Plaintiffs’ use of cannabis is an “exercise of religion.” The
remaining Interrogatories concern matters such as: Mooney’s affiliation with other
organizations (Nos. 1 and 6), membership and leadership of the Church (Nos. 3-5,
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11), how Plaintiffs obtain cannabis (Nos. 7-8), Plaintiffs’ financial records (Nos.
9-10), and who assisted in answering the Interrogatories (No. 12).
In sum, the Court ORDERS Plaintiffs to copy and produce Mooney's
State of Hawaii Department of Public Safety Narcotics Enforcement Division
Medical Marijuana Registry Patient Identification Certificate. The Court also
ORDERS Plaintiffs to respond to Interrogatory No. 2. Plaintiffs need not respond
to the other Interrogatories.
Any appeal of this Discovery Order shall be filed in accordance with
Local Rule 74.1.
DATED: Honolulu, Hawaii, May 14, 2013.
IT IS SO ORDERED.

/S/ Barry M. Kurren
Barry M. Kurren
United States Magistrate Judge

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