Judge Curiel gets another tough one

Landlords want ouster of Indian group specializing in peyote, marijuana

On Friday, June 9, another possibly controversial lawsuit landed in the lap of federal Judge Gonzalo P. Curiel, who made headlines for his handling of the Trump University case, which ended with President Trump agreeing to pay the plaintiffs $25 million.

Judge Gonzalo Curiel

Judge Gonzalo Curiel

This case, the Razooky Family Trust vs. Oklevueha Native Indian Church of Sacramental Healing, Inc., was moved Friday from superior court to Curiel's chambers. Samir and Raidh Razooky, who run a Lakeside grocery store, among other things, charge that the Sacramental Healing group rented space at 13313 Highway 8 business route in El Cajon, and said they would not sell peyote or marijuana, their specialty. The suit charges that the defendants immediately began selling marijuana. So, the plaintiffs filed an unlawful detainer action in superior court in April.

The Oklevueha website explains the base of the group's religion: "Attending earth based indigenous American native spiritually empowering and healing ceremonies — especially Native American Church indigenous ceremonies that involve sacraments (peyote, cannabis, ayahuasca, etc.) that are otherwise illegal for non-members to partake and or be in possession of."

The Orange County Register reported last year that the group was preparing to run three pot shops where they intended to use and dispense marijuana and other then-illegal drugs. "Church members say almost anyone can join the religion and partake in its hallucinogenic sacraments, regardless of whether they have Native American heritage," wrote the Register.

The lawsuit says that in the rental agreement, there are words specifying that "the premises would not be used for the sale of controlled substances, including marijuana." But the defendants immediately began selling marijuana, were told to stop, and didn't, say the Razooky brothers.

In the notice of the removal of the suit to federal court, the church says that "as a Native Indian Church of Sacramental Healing, [the church] is a sovereign nation and the litigation violates its civil rights. The plaintiffs' unlawful detainer suit in state court would prevent the group from practicing its rituals, says the church, citing other legal reasons the suit must go to federal court.

One question Curiel may have to wrestle with: If this church allows almost anyone to join, can it call itself a sovereign nation?

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I haven't looked at the removal notice, but there's probably no need to get too carried away with considerations of what constitutes a "sovereign nation," Mr. Bauder. Indian tribes are sovereign for purposes of Federal jurisdiction, and the inquiry doesn't involve whether or not people can freely join the church. If the litigation is between a plaintiff residing in California, and a defendant Indian tribe, it's no big deal to remove it to Federal court. The defendants would want to do so based on two principles: (1) if the plaintiffs filed suit in state court, then the defendants want to be somewhere else; and (2) judgments for defendants are MUCH more likely in removal cases.

Ian Pike: I won't gainsay what you state, but it seems to me that the plaintiffs could argue that this church -- welcoming non-Indians who like the weed and presumably the rituals -- should not have the legal protections that, say, a tribe with a casino, living in a specific location granted by the U.S. government years ago, enjoys.

I am not a lawyer and, admittedly, it has been a couple of decades since I have done a story about Indian tribes and legal entanglements involving questions of national sovereignty.

The suit mentions marijuana, now legal, but doesn't mention peyote or ayahuasca, also hallucinogenics. That interests me. Best, Don Bauder

This may be a simple case. The defendants "said" they would not sell pot on the premises. Then they did. If what they said can be established in court by witness accounts, the oral representations will be seen as part of the lease. The lease was violated in such a situation, and the lessor can kick them out. The smart way for the lessor to handle it would have been to write the marijuana prohibition into the lease. Then it's a slam dunk. The judge could rule on the simple matter of a lease dispute, and also rule that all the other considerations are extraneous to the case. Heck, I think he could even send it back to state court.

Indian tribes and bands love their sovereignty when it suits them, i.e. when it is advantageous. But when it gets in the way of doing things such as making donations in elections to help favored candidates, you hear nothing of it from them. It is hard to blame them, but that sovereignty they possess is a blade that should cut in both directions.

Visduh: Yes, the lease barring sale of marijuana is in the suit. Assuming it is legitimate, the defendants would seemingly argue that the plaintiffs did not demand the sales stop, as the plaintiffs maintain. Or, the defendants could claim that the document barring marijuana sales could be a forgery.

After all this, could the defendants' arguments about sovereignty and their civil rights being trampled be moot? I don't know. Is this a legitimate Indian tribe or a clever way to sell banned drugs? That could be an issue. I still think it could be interesting. Best, Don Bauder

love your generalities about 'indian tribes'. How about becoming one before disparaging them? You have no idea of any tribe's history, suffering or struggles, so you can only show an uneducated opinion about 'them' and not anything from direct experience.

These brothers bringing the suit- have they alleged harm as a result of the alleged drug sales? What is the nature of that harm? This appears to be a civil, not a criminal action.

"charge that the Sacramental Healing group rented space at 13313 Highway 8 business route in El Cajon" - was this space rented from the brothers? It's still not clear to me that they have standing for legal action, or that they have proof of drug sales.

swell: The suit is extremely long and technical, and I honestly can't remember whether the brothers allege harm because of the alleged continued sales of marijuana.

The El Cajon space was rented to the self-described tribe. Do the brothers have proof of marijuana sales? I don't know that. These are things that I think are interesting. I did some homework on this so-called tribe and find it quite interesting. Best, Don Bauder

swell: Forgot to answer one of your queries; yes, this is civil -- an unlawful detainer suit. Best, Don Bauder

The beauty of this and similar nonsense is that it helps us to focus on the special place of religion in the US. Around the country are some very strange and sometimes dangerous religions and religious practices.

Yet, because our Founding Fathers had a certain attitude toward religion, we let them do whatever they want -- and they don't have to pay taxes. Every city, town and village has at its center some prime real estate that produces no income. These churches can have few members and still prosper because of their low cost of operation.

Modern Americans have evolved somewhat in our attitude toward religion. Maybe it's time to expect them to be responsible public entities and answer to some regulatory control.

BTW, I was ordained in 1965 by the Missionaries of the New Truth. Yes it cost me; ten dollars plus postage at a time when a dollar was almost worth a dollar. I'm watching this case in hopes that it might open the door for me to sell some drugs.

Rev. Swell of the Missionaries of the New Truth: sorry, you can't get a tax-free liquor license despite your $10 donation. The outfit in question gets to sell hallucinogenic drugs because a court has supposedly recognized it as an Indian religion that uses these drugs in its rituals, although you don't have to be an Indian to join.

Have you tried peyote or ayahuasca? Marijuana? Best, Don Bauder

swell: I agree with you 100 percent on that point. Through the years, I have done a number of stories and columns on crooks setting up a phony church, and pulling various scams including, of course, dodging taxes. Apparently, a court has said this church of alleged Sacramental Healing, providing then-illegal drugs to its members, is a legitimate church.

Pardon me, but I would like to look further into it. Best, Don Bauder

This raises lots of interesting questions, including this one: is a landlord obligated to rent to any "church" that asks? Can you say no to leasing to a cult or a Satanic temple?

Miriam: Your question somehow reminds me of recent controversy over retail sales. If you own a flower shop and you believe homosexuality is a sin, are you required to sell flowers to be used at a gay wedding? Do you have a legal right to refuse?

Going farther back, can a restaurant refuse service to minorities? Can blacks be required to sit at the back of the bus? Can a rental owner refuse minorities/females/gays? What about convicted felons? Child molesters?

On one hand, a business owner should have some ability to favor or disfavor some customers or suppliers or potential employees. On the other is what seems to be the right for an individual to deal with any business he chooses.

Many businesses create an environment that can be uncomfortable for the 'wrong kind of people'- a redneck, gay, jazz or punk rock, etc night club. A housing community in a certain part of town. Employers too- I know a medical care facility in San Diego with over 200 employees and more than 90% are from the Philippines and female and young. If an experienced white male was refused employment, would he have legal recourse?

It's a confusing issue even before religion gets involved.

MiriamRaftery: I have never heard that a landlord is obligated to rent to any "church" that asks. Since so many of these so-called "churches" are tax dodges, I would think a landlord has a right to turn them down. But I haven't researched the topic and I don't believe it came up in this suit. Best, Don Bauder

Bill Wisniewski: I believe Judge Curiel did a deft job handling the Trump University case, despite Trump's attacks on him. Best, Don Bauder

Oh heck, one last comment...

So we all know this from the First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." Jefferson pushed for it and the Supremes have upheld and often reinforced the idea.

There is little in Wikipedia related to the Constitution, religion and real estate but this: “Relaxed zoning rules and special parking privileges for churches, the tax-free status of church property, the fact that Christmas is a federal holiday, etc., have also been questioned, but have been considered examples of the governmental prerogative in deciding practical and beneficial arrangements for the society.”

The Wiki also notes that several states have their own official documents that contradict the Establishment Clause.

The right to refuse to rent or sell to a religious organization may be a case where California law takes precedent. Religions are not among the legally protected classes that include minorities, women, LGBT, handicapped, etc. However, now that corporations are people, maybe that includes religions and confers rights upon them that they didn’t have before.

None

by swell

I didn't know there were any civil rights regarding the leasing of commercial property. Employment, residential real estate, yes. Commercial property only has to comply with zoning. The lessor has great latitude with terminating a commercial property lease, especially if one of the clauses of the lease has been violated. It seems this "tribe" is hiding behind religion.

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