370 A.2d 1310 (Conn. 1976), State v. Rao

• Judge: In this opinion LOISELLE, LONGO and BARBER, JJ., concurred. Before HOUSE, CJ, and LOISELLE, BOGDANSKI, LONGO and BARBER
• Parties: STATE of Connecticut v. Robert RAO.
• Date: 14 September 1976
• Citation: 171 Conn. 600,370 A.2d 1310
• Court: Connecticut Supreme Court
• Docket Number: .

Page 1310

370 A.2d 1310 (Conn. 1976)

171 Conn. 600

STATE of Connecticut

v.

Robert RAO.

Supreme Court of Connecticut.

Sept. 14, 1976

Page 1311

Ernest J. Diette, Jr., Asst. State's Atty., with whom, on the brief, was Arnold Markle, State's Atty., for appellant (state).

John R. Williams, New Haven, for appellee (defendant).

Before HOUSE, C.J., and LOISELLE, BOGDANSKI, LONGO and BARBER, JJ.

HOUSE, Chief Justice.

The defendant was charged with possession of a cannabis-type substance, marihuana, with intent to sell or dispense it, in the town of [171 Conn. 601] Hamden on September 12, 1974, in violation of Public Act No. 74-332, § 2(b) (now General Statutes § 19-480(b)). ¹ The

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defendant filed a motion to quash the information claiming that the statute he allegedly violated denied him equal protection of the law contrary to the provisions of the fourteenth amendment to the constitution of the United States and § 20 of article first of the constitution of Connecticut. 'The Connecticut constitutional provision has 'a like meaning to that in the fourteenth amendment to the constitution of the United States which prohibits the states from denying to any person the equal protection of the laws.' Lyman v. Adorno, 133 Conn. 511, 515, 52 A.2d 702, 705.' Kellems v. Brown, 163 Conn. 478, 485, 313 A.2d 53, 58, appeal dismissed, 409 U.S. 1099, 93 S.Ct. 911, 34 L.Ed.2d 678. He claimed the denial on the grounds that the General Assembly had irrationally classified, for penalty purposes, marihuana with, among other substances, amphetamines and barbiturates which are generally considered to be much more harmful to the individual than marihuana. The trial court agreed with the defendant's contention and concluded that the legislative grouping or classification of these substances for penalty purposes violated the equal protection clauses of both constitutions. [171 Conn. 602] It, accordingly, granted the defendant's motion to quash. Pursuant to the provisions of § 54-96 of the General Statutes, the trial court granted the request of the state for permission to appeal its ruling to this court and, on motion duly filed, we ordered that the appeal be expedited. See Practice Book § 762.

The basic controlling principles of law are well settled. "Equal protection analysis must commence with a determination of whether a legislative classification . . . impinges upon a fundamental right. Where the legislation impinges upon a fundamental right . . . it must be struck down unless justified by a compelling state interest. Dunn v. Blumstein, 405 U.S. 330, 335, 342, 92 S.Ct. 995, 31 L.Ed.2d 274. Where the statute does not involve fundamental rights . . . the legislation will withstand constitutional attack if the distinction is founded on a rational basis. McGinnis v. Royster, 410 U.S. 263, 270, 93 S.Ct. 1055, 35 L.Ed.2d 282; Dandridge v. Williams, 397 U.S. 471, 484, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491; F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 64 L.Ed. 989; In re Application of Griffiths, 162 Conn. 249, 258, 294 A.2d 281, rev'd, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910; see Douglas v. California, 372 U.S. 353, 358, 83 S.Ct. 814, 9 L.Ed.2d 811." Laden v. Warden, 169 Conn. 540, 542, 363 A.2d 1063, 1065; Liistro v. Robinson, 170 Conn. 116, 124, 365 A.2d 109. Because the possession for sale and the trafficking in marihuana are not fundamental constitutional rights, the rational basis test is the one applicable in this case and is the test which the trial court purported to apply. A party contesting a statute's constitutionality has a heavy burden to establish unconstitutionality beyond a reasonable [171 Conn. 603] doubt. Kellems v. Brown, supra, 163 Conn. 486, 313 A.2d 53; Adams v. Rubinow, 157 Conn. 150, 152, 251 A.2d 49. The question of classification is primarily one for the legislature, and the courts will not interfere unless a classification presented by statute is clearly irrational and unreasonable. State v. Zazzaro, 128 Conn. 160, 166, 20 A.2d 737.

There had previously been tried in the United States District Court for the District of Connecticut the case of United States v. Maiden, 355 F.Supp. 743. In that case, the same argument advanced by the defendant in this case with respect to the Connecticut statutory classification was made to the federal court with respect to the Comprehensive Drug Abuse Prevention and Control

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Act of 1970, 21 U.S.C. § 841. There is no material difference so far as classification is concerned between the federal and state statutes. One convicted of possession for sale or sale of marihuana under either statute is subject to the same maximum penalty-seven years under § 19-480(b) and five years under 21 U.S.C. § 841(b)(1)(B)-as one convicted of the sale of amphetamines or barbiturates. In both the federal and state laws, the controlled drugs are classified in a lesser category with less severe penalties than narcotic substances ² which are also treated similarly under both laws-General Statutes § 19-480(a) and 21 U.S.C. § 841(b)(1)(A). In [171 Conn. 604] an unusual procedure, the parties stipulated that the evidence which had been submitted to the United States District Court in the Maiden case should be considered as the defendant's evidence in the present case. This was introduced in the form of transcripts of the testimony of expert witnesses who had testified for the defense in the Maiden case, which transcripts were marked as an exhibit. In neither case did the prosecution present any evidence. Having considered the same evidence and tested the constitutionality of what are essentially the same legislative provisions containing the same classifications of controlled drugs and applying the same 'rational basis' test, the courts reached opposite conclusions. The trial court concluded, as has no other court so far as we have been able to determine, that a legislature which provides similar penalties for the possession with intent to sell marihuana, barbiturates and amphetamines has acted irrationally. It is thus ultimate conclusion which the state has assigned as error.

It appears that most of the courts which have considered the classification of marihuana for penalty purposes in the light of equal protection provisions have done so in relation to its classification with narcotic substances. The great majority of them have held that there is sufficient reason for the legislature to classify marihuana with even the more potent and harmful narcotics, based on present medical understanding of the drugs, and that if any change is to be made in this classification it should be accomplished by legislative action rather than by [171 Conn. 605] judicial fiat. See United States v. Kiffer, 477 F.2d 349, 355-57 (2d Cir.); State v. Wadsworth, 109 Ariz. 59, 505 P.2d 230; People v. Summit, 183 Colo. 421, 517 P.2d 850; State v. Kantner, 53 Haw. 327, 493 P.2d 306,...