Hardison v. State, S-21-0097

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtGRAY, Justice.
Citation507 P.3d 36
Parties Casey William HARDISON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
Docket NumberS-21-0097
Decision Date06 April 2022

507 P.3d 36

Casey William HARDISON, Appellant (Defendant),
The STATE of Wyoming, Appellee (Plaintiff).


Supreme Court of Wyoming.

April 6, 2022

Representing Appellant: Cody M. Jerabek, Jerabek Law, LLC, Cheyenne, Wyoming. Argument by Mr. Jerabek.

Representing Appellee: Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Joshua C. Eames, Senior Assistant Attorney General; Timothy P. Zintak, Senior Assistant Attorney General. Argument by Mr. Zintak.


GRAY, Justice.

¶1] After being charged with three counts of delivery of a controlled substance (marijuana) in violation of Wyo. Stat. Ann. § 35-7-1031(a)(ii) (Wyoming Controlled Substances Act or Act), Casey William Hardison filed a motion to dismiss the charges. He claimed the Wyoming Controlled Substances Act is unconstitutional—violating his rights to equal protection and substantive due process under the United States and Wyoming Constitutions—by operating in an unequal and disparate manner because tobacco and alcohol are excluded from its application.1 The district court denied his motion to dismiss. Mr. Hardison entered a conditional plea of guilty to two counts of delivery of a controlled substance and timely filed this appeal. We affirm.


[¶2] Does the exclusion of "distilled spirits, wine, malt beverages, or tobacco" from the Wyoming Controlled Substances Act violate Mr. Hardison's equal protection rights under the United States and Wyoming Constitutions?


[¶3] On three occasions between 2017 and 2018, Mr. Hardison sold marijuana to a confidential informant in Teton County. He was charged with three counts of delivery of a controlled substance (marijuana) in violation of the Wyoming Controlled Substances Act.2 Mr. Hardison filed a pro se motion to dismiss the indictment on constitutional grounds which the circuit court denied. Mr. Hardison was then appointed counsel who filed a second motion to dismiss the indictment in the district court. On December 14, 2020, Mr. Hardison entered a conditional plea agreement where he pleaded no contest to two counts of marijuana delivery, the remaining counts were dismissed, and he reserved the right to appeal the denial of his constitutional claims.

[¶4] Following Mr. Hardison's plea, the district court issued its Order Denying Motion to Dismiss. The district court rejected Mr. Hardison's claims that the Act violated his fundamental right to freedom of thought.

[507 P.3d 39

Analyzing the claims under a rational basis test, the district court concluded that "the classification of marijuana as a Schedule 1 substance[ ] is rationally related to a legitimate state objective." The court sentenced Mr. Hardison to concurrent sentences of one year in the Teton County Jail followed by three years of probation.


[¶5] All of Mr. Hardison's arguments are premised on his claim that the Wyoming Controlled Substances Act is unconstitutional. "The question of whether a statute is constitutional is a question of law over which this Court exercises de novo review." Vaughn v. State , 2017 WY 29, ¶ 7, 391 P.3d 1086, 1091 (Wyo. 2017) (quoting Kammerer v. State , 2014 WY 50, ¶ 5, 322 P.3d 827, 830 (Wyo. 2014) ). "Statutes are presumed to be constitutional, and we will resolve any doubt in favor of constitutionality." Id. (citing Kammerer , ¶ 5, 322 P.3d at 830 ). In most cases, the appellant bears the burden of proving the statute is unconstitutional. Normally, this burden is heavy in that appellant must clearly and exactly show the unconstitutionality beyond any reasonable doubt. Michael v. Hertzler , 900 P.2d 1144, 1146 (Wyo. 1995) (quoting Miller v. City of Laramie , 880 P.2d 594, 597 (Wyo. 1994) ). "However, ‘that rule does not apply where a citizen's fundamental constitutional right, such as free speech, is involved.’ " In that case, "[t]he strong presumptions in favor of constitutionality are inverted, the burden then is on the governmental entity to justify the validity of the [statute], and this Court has a duty to declare legislative enactments invalid if they transgress [a] constitutional provision." Reiter v. State , 2001 WY 116, ¶ 7, 36 P.3d 586, 589 (Wyo. 2001) (quoting Michael , 900 P.2d at 1146 (quoting Miller , 880 P.2d at 597 )). As a result, our standard of review as applied to equal protection claims is dependent on whether the interest at stake involves a fundamental right or a suspect class. Reiter , ¶ 20, 36 P.3d at 593.

[¶6] The principles of equal protection analysis are well established. Greenwalt v. Ram Rest. Corp. of Wyoming , 2003 WY 77, ¶ 39, 71 P.3d 717, 729–31 (Wyo. 2003). Claims of unconstitutional classification are analyzed under two levels of scrutiny. If the class is suspect or if a fundamental right is involved, a strict scrutiny standard is applied which requires a demonstration that the classification is necessary to achieve a compelling state interest. In re Honeycutt , 908 P.2d 976, 979 (Wyo. 1995) ; Allhusen v. State By & Through Wyoming Mental Health Pros. Licensing Bd. , 898 P.2d 878, 885 (Wyo. 1995) ; Washakie Cnty. Sch. Dist. No. 1 v. Herschler , 606 P.2d 310, 333 (Wyo. 1980). If a suspect class or a fundamental right is not involved, a rational relationship test is used to determine if the classification has a rational relationship to a legitimate state interest. Honeycutt , 908 P.2d at 979 (citing Meyer v. Kendig , 641 P.2d 1235, 1239 (Wyo. 1982) ). "A party attacking the rationality of the legislative classification has the heavy burden of demonstrating the unconstitutionality of a statute beyond a reasonable doubt." Greenwalt , ¶ 39, 71 P.3d at 730 (citing F.C.C. v. Beach Commc'ns, Inc. , 508 U.S. 307, 315, 113 S.Ct. 2096, 2102, 124 L.Ed.2d 211 (1993) ; Small v. State , 689 P.2d 420, 426 (Wyo. 1984) ; Nehring v. Russell , 582 P.2d 67, 74 (Wyo. 1978) ).


Fundamental Right

¶7] Before turning to Mr. Hardison's equal protection argument, we address his claim that the Act impinges on a fundamental right invoking strict scrutiny.3 Mr. Hardison argues that prohibiting "the consumption of a controlled substance illegal[ly] infringes [on] one's fundamental right to freedom of thought," because every "individual has the right to control, alter and effect one's

[507 P.3d 40

thoughts, emotions, and sensations in a comprehensive sense." In a stretch to include the distribution of an illegal substance in his argument, he asserts "the ability to consume or utilize a controlled substance is directly affected by the legality of one being able to possess or deliver it ." (Emphasis added.) We clarify at the outset, Mr. Hardison was convicted of "possession with intent to deliver " marijuana, not consuming or using marijuana. His argument that he has a fundamental right to distribute marijuana has been soundly rejected by every court to consider it. See infra ¶ 22.

[¶8] Mr. Hardison cites a Seventh Circuit case, Doe v. City of Lafayette, Ind. , 377 F.3d 757, 765 (7th Cir. 2004) (affirming city's ban of pedophile sexual offender's presence in city parks), in support of his contention that regulation of a controlled substance infringes on his fundamental right to free thought. There, the court stated:

A government entity no doubt runs afoul of the First Amendment when it punishes an individual for pure thought. The Supreme Court has held that the First Amendment prohibits the government from commanding a citizen to profess or disseminate an ideological message contrary to that citizen's conscience, see Wooley v. Maynard , 430 U.S. 705, 713, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977) ; West Virginia State Bd. of Educ. v. Barnette , 319 U.S. 624, 633–34, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), and from screening certain types of stimuli from flowing to a citizen under the guise of mind control, see Stanley v. Georgia , 394 U.S. 557, 565–66, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969) ("Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds. ... Whatever the power of the state to control public dissemination of ideas inimical to the public morality, it cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts."). Closer to this case, the Court also has indicated that the government cannot regulate mere thought, unaccompanied by conduct. ...

The Supreme Court, however, has made it clear that only governmental regulations aimed at mere thought, and not thought plus conduct, trigger this principle. That is, regulations aimed at conduct which have only an incidental effect on thought do not violate the First Amendment's freedom of mind mandate. Id. ; Osborne v. Ohio , 495 U.S. 103, 109, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990). Limiting First Amendment protection to pure thought is rooted in common-sense. Thought and action are intimately entwined; consequently, all regulation of conduct has some impact, albeit indirect, on thought. ... The First Amendment's freedom of mind principle does not subject every conduct-focused regulation to First Amendment scrutiny; rather, it only prohibits those regulations aimed at pure thought and thus mind control.

Doe , 377 F.3d at 765.


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