National Organization for Reform of Marijuana Laws v. Gain

• Decision Date: 30 November 1979
• Court: California Court of Appeals Court of Appeals
• Parties: NATIONAL ORGANIZATION FOR the REFORM OF MARIJUANA LAWS (NORML) et al., Plaintiffs and Appellants, v. Charles GAIN, as Chief of Police of the City of San Francisco, et al., Defendants and Respondents, Evelle J. Younger, Attorney General of the State of California, Intervenor and Respondent. Civ. 45596.

Page 181

161 Cal.Rptr. 181

100 Cal.App.3d 586

NATIONAL ORGANIZATION FOR the REFORM OF MARIJUANA LAWS (NORML) et al., Plaintiffs and Appellants, v. Charles GAIN, as Chief of Police of the City of San Francisco, et al., Defendants and Respondents Evelle J. Younger, Attorney General of the State of California, Intervenor and Respondent.

Civ. 45596.

Court of Appeal, First District, Division 4, California.

Nov. 30, 1979.

Hearing Denied Feb. 20, 1980.

Mark I. Soler, San Francisco, for plaintiffs and appellants.

George Agnost, City Atty., Daniel E. Collins, III, Deputy City Atty., San Francisco, for defendants and respondents.

George Deukmejian, Atty. Gen. of Cal., Robert H. Philibosian, Chief Asst. Atty. Gen., Criminal Div., Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins, Eugene W. Kaster, Dane R. Gillette, Deputy Attys. Gen., San Francisco, for intervenor and respondent.

POCHE, Associate Justice.

This is a many-faceted attack on those California Health and Safety Code sections which prohibit the private possession and use of marijuana by adults. It takes the form of a petition for declaratory and injunctive relief brought by the National Organization for the Reform of Marijuana Laws (hereafter NORML) and 32 individual taxpayers against the Chief of Police, City Attorney, Sheriff and District Attorney of San Francisco. After the complaint had been amended once, the Attorney General intervened. He then moved for summary judgment. This appeal tests his success.

The first amended complaint alleged that the statutes in question ¹ violated appellants' constitutional rights of privacy, equal protection, due process, liberty, pursuit of happiness, and protection against cruel and unusual punishment. In granting summary judgment the trial court necessarily determined that there were no triable issues of fact (Code Civ.Proc., § 437c) and that, as a matter of law, none of these rights was violated by the statutes in issue.

Right of Privacy

In their first cause of action, appellants allege that the marijuana statutes violate their federal and state constitutional right of privacy. On appeal, they rely only on the protection of the California Constitution. ²

By constitutional amendment in 1974, the right of privacy achieved the status of an "inalienable right." Article 1, section 1 now reads: "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy." A definitive map detailing the outside dimensions of this amendment's protections has not yet been published by the California courts. (Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 656, 125 Cal.Rptr. 553, 542 P.2d 977, see People v. Privitera (1979) 23 Cal.3d 697, 711, 153 Cal.Rptr. 431, 439, 591 P.2d 919, 927. (Bird, C. J. Diss. Opn.; "The right of privacy is a concept of as yet undetermined parameters.") However, we have learned enough from the first sketchings (People v. Privitera, supra) to disagree with respondent's opinion that the right is limited to protection from governmental snooping.

People v. Privitera, supra, determined only that the right under consideration does not encompass "a right of access to drugs of unproven efficacy" in the treatment of terminal cancer. (23 Cal.3d at p. 709, 153 Cal.Rptr. at p. 438, 591 P.2d at p. 926.) Although the majority there also noted that the "principal objective" of the constitutional amendment was to restrain information activities of government and business, the decision does not purport to constrain the application of this constitutional protection to such cases. (Id., at pp. 709-710, 153 Cal.Rptr. 431, 591 P.2d 919.)

The holding in Privitera is that the California constitutional right of privacy does not grant terminally ill cancer patients the right of access to a drug which is of debatable merit but which they and their doctors believe may alleviate suffering and prolong life. In our judgment, it follows that the right of privacy does not guarantee adult Californians the privilege of smoking a possibly harmful drug, even in the privacy of their homes. (See People v. Davis (1979) 92 Cal.App.3d 250, 154 Cal.Rptr. 817.)

Appellants rely heavily on the Alaska Supreme Court case of Ravin v. State (Alaska 1975) 537 P.2d 494. There the possession and use of marijuana in the home was held to be protected by the right of privacy contained in the Alaska Constitution, article 1, section 22: "The right of people to privacy is recognized and shall not be infringed." That decision treats the right of privacy in the home as including the right to possess and ingest marijuana in a purely personal, noncommercial context. (Id., at p. 504.) Apparently Alaska stands alone. (See, e. g., State v. Murphy (1977) 117 Ariz. 57, 570 P.2d 1070, 1072; Marcoux v. Attorney General (Mass.1978) 375 N.E.2d 688, citing at p. 693 the following cases: United States v. Drotar, 416 F.2d 914 (5th Cir. 1969), vacated on other grounds, 402 U.S. 939, 91 S.Ct. 1628, 29 L.Ed.2d 107 (1971); State v. Murphy, 117 Ariz. 57, 570 P.2d 1070 (1977); Laird v. State, 342 So.2d 962 (Fla.1977); Blincoe v. State, 231 Ga. 886, 204 S.E.2d 597 (1974); State v. Renfro, 56 Haw. 501, 542 P.2d 366 (1975); State v. Kells, 199 Neb. 374, 259 N.W.2d 19 (1977); State v. Anderson, 16 Wash.App. 553, 558 P.2d 307 (1976).) We find no violation of the California right of privacy in the mere statutory proscriptions which are challenged here.

Equal Protection

Secondly, appellants contend that the marijuana laws violate their right to equal protection of the laws because other substances such as alcohol and tobacco are not illegal. This contention was rejected in People v. Aguiar (1968) 257 Cal.App.2d 597, 604, 65 Cal.Rptr. 171. Other federal and state courts have consistently taken a similar position. (See, e. g., United States v. Kiffer (2d Cir. 1973) 477 F.2d 349, 355; State v. Renfro, supra, 56 Haw. 501, 542 P.2d 366, 369-370.)

The mere fact that the Legislature has chosen to prohibit one dangerous product such as marijuana, does not compel it to regulate or prohibit all such substances. (United States v. Kiffer, supra.) It is generally accepted that the state will normally be given "the widest discretion" in "determining whether to attack some, rather than all, of the manifestations of the evil aimed at . . . ." (McLaughlin v. Florida (1964) 379 U.S. 184, 191, 85 S.Ct. 283, 288, 13 L.Ed.2d 222.)

In reviewing challenges to the constitutionality of legislation, courts must presume that the enactment is valid, and that the Legislature ascertained facts to support its action. (Dribin v. Superior Court (1951)37 Cal.2d 345, 352, 231 P.2d 809.) Where the validity of a statute depends on a question that is at least debatable, courts properly defer to the legislative judgment. (U. S. v. Carolene Products (1938) 304 U.S. 144, 154, 58 S.Ct. 778, 82 L.Ed. 1234.) If there is a legitimate scientific debate regarding whether marijuana is harmful it follows that the legislative determination that it should be regulated is not without rational basis.

The existence of a debate within the scientific community was not challenged by appellants but was presented in bold face relief by the affidavits and other evidence filed in proper form by both sides. It is not necessary to restate the substance or the detail contained in the affidavits. A taste suffices. Respondent, the moving party, presented the affidavit of a professor of psychiatry at the University of California's Langley Porter Institute in San Francisco. Included was his conclusion that "There is currently an active and sometimes passionate scientific debate . . . a legitimate debate, as to the relative harmlessness or harmfulness of marijuana." In his opinion sufficient data is not yet available so that a prudent medical scientist could conclude that marijuana is a harmless drug. Cumulative evidence was supplied by the Fifth and Sixth Reports of the Department of Health, Education and Welfare to the United States Congress, entitled Marihuana and Health. On the other side, appellants presented the affidavits of three medical experts. Each was of the opinion that marijuana involves only the most minimal risks to health. Because the affidavits did not in any real sense question the existence of the scientific debate but only the proper conclusion to be drawn from the scientific arguments, the trial court was correct in issuing summary judgment against this equal protection challenge. Still valid is the court's conclusion in People v. Aguiar, supra :

". . . The facts which we may judicially notice are such that it may be reasonably said that the Legislature is warranted in concluding that the use of alcohol is not as antisocial as the use of marijuana or that the differences inherent in those euphorics reasonably justify differentiation in treatment. Suffice it to say that in light of present medical attitudes towards marijuana, we cannot say that the proscription against the possession of marijuana is palpably arbitrary and erroneous beyond rational doubt."

(257 Cal.App.2d at p. 605, 65 Cal.Rptr. at p. 176.)

Cruel and Unusual Punishment

The third cause of action advanced by appellants is that enforcement of the marijuana laws subjects them to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution.

That argument was put to rest six years ago by In re Jones (1973) 35 Cal.App.3d 531, 110 Cal.Rptr. 765. The question there was whether Imposition of a sentence of five years to life for violation of Health and Safety Code section 11531 (sale of marijuana) constituted cruel and unusual punishment. In approaching the problem the court first set forth the ground rules earlier established by the Supreme Court in In re Lynch (1972) 8...