State v. Anonymous (1976-3)

• Decision Date: 27 October 1970
• Docket Number: S.F. R,No. 31,No. 74-332,No. 75-567,No. 12,12,31,74-332,75-567
• Citation: 32 Conn.Supp. 324,355 A.2d 729
• Court: Connecticut Superior Court
• Parties: STATE of Connecticut v. ANONYMOUS (1976-3). * . BERDON, Judge. The defendant is charged with possession of 'a cannabis-type substance, 1 to wit: marihuana, with intent to sell 2 or dispense in violation of' General Statutes § 19-480(b). 3 Before the court is the defendant's motion to quash, 4 in which inter alia 5 he claims that the statute is unconstitutional as it pertains to possession with intent to sell or dispense marihuana because it arbitrarily and irrationally classifies marihuana with far more dangerous drugs. It is his claim that such classification is in violation of the equal protection clauses of the fourteenth amendment to the federal constitution and article first, § 20, of the Connecticut constitution. 6 The defendant, charged with violation of § 19-480(b), in part bases his constitutional claims on the assumption that violations concerning narcotic substances (morphine- and cocain-type drugs) 7 fall within this paragraph for penalty purposes. Although the wording of this statute leaves much to be desired, there can be no question that the legislature intended to classify narcotic substances under paragraph (a), which calls for a much more severe penalty. 8 Paragraph (a) prohibits acts pertaining to narcotic substances and hallucinogenic substances other than marihuana, and paragraph (b) applies to all other controlled substances, including marihuana, barbiturate-type drugs 9 and amphetaminetype substances. 10 The court must therefore determine whether this classification of marihuana, amphetamines and barbiturates for penalty purposes is a violation of the equal protection clauses of the federal and state constitutions. ' 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,

Page 729

355 A.2d 729

32 Conn.Supp. 324

STATE of Connecticut v. ANONYMOUS (1976-3). ^*

Superior Court of Connecticut.

BERDON, Judge.

The defendant is charged with possession of 'a cannabis-type substance, ¹ to wit: marihuana, with intent to sell ² or dispense in violation of' General Statutes § 19-480(b). ³ Before the court is the defendant's motion to quash, ⁴ in which inter alia ⁵ he claims that the statute is unconstitutional as it pertains to possession with intent to sell or dispense marihuana because it arbitrarily and irrationally classifies marihuana with far more dangerous drugs. It is his claim that such classification is in violation of the equal protection clauses of the fourteenth amendment to the federal constitution and article first, § 20, of the Connecticut constitution. ⁶

The defendant, charged with violation of § 19-480(b), in part bases his constitutional claims on the assumption that violations concerning narcotic substances (morphine- and cocain-type drugs) ⁷ fall within this paragraph for penalty purposes. Although the wording of this statute leaves much to be desired, there can be no question that the legislature intended to classify narcotic substances under paragraph (a), which calls for a much more severe penalty. ⁸ Paragraph (a) prohibits acts pertaining to narcotic substances and hallucinogenic substances other than marihuana, and paragraph (b) applies to all other controlled substances, including marihuana, barbiturate-type drugs ⁹ and amphetaminetype substances. ¹⁰ The court must therefore determine whether this classification of marihuana, amphetamines and barbiturates for penalty purposes is a violation of the equal protection clauses of the federal and state constitutions.

' 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, Conn. (37 Conn.L.J. No. 12 Pp. 25, 26); Liistro v. Robinson, Conn. (37 Conn.L.J., No. 31, pp. 9, 11). Possession of marihuana is not a fundamental right graranteed by the constitution. Therefore, in determining whether the classification is constitutional, the court will apply the 'rational relationship' test. ¹¹

That test requires that the statutory classification 'be based upon some real and substantial distinction, bearing a reasonable and just relation to the things in respect to which such classification is imposed; and classification cannot be arbitrarily made without any substantial basis.' Southern Ry. Co. v. Greene, 216 U.S. 400, 417, 30 S.Ct. 287, 291, 54 L.Ed. 536; Atchison, T. & S.F. Ry. Co. v. Vosburg, 238 U.S. 56, 59, 35 S.Ct. 675, 59 L.Ed. 1119 . . . ; State v. Hurliman, 143 Conn. 502, 506, 123 A.2d 767. (But see footnote 59 infra). And it is clear that if the statute includes within the class an object whose inclusion is irrational or arbitrary, such inclusion is in violation of the equal protection clause. '(W)e recognize that the constitutionality of a statute, valid on its face, may be assailed by proof of facts tending to show that the statute as applied to a particular article is without support in reason because the article, although within the prohibited class, is so different from others of the class as to be without the reason for the prohibition.' United States v. Carolene Products Co., 304 U.S. 144, 153, 58 S.Ct. 778, 784, 82 L.Ed. 1234. But, in 'adjusting legislation to the need of the people of a state, the Legislature has a wide discretion, and it may be fully conceded that perfect uniformity of treatment . . . is neither practical nor desirable, that classification . . . is constantly necessary, and that questions of proper classification are not free from difficulty.' Truax v. Corrigan, 257 U.S. 312, 337, 42 S.Ct. 124, 131, 66 L.Ed. 254. 'Primarily the question of classification is one for the legislature, and the courts will not interfere unless it is clearly unreasonable.' State v. Zazzaro, 128 Conn. 160, 166, 20 A.2d 737, 741.

It then remains to be seen whether the statute in question meets this rational relationship test. It must be borne in mind that when challenging the constitutionality of a statute the defendant has a heavy burden of proof. ¹² Kellems v. Brown, 163 Conn. 478, 486, 313 A.2d 53, 58. 'Because of the separation of powers, one claiming that a legislative enactment is invalid on the ground that it is unconstitutional must establish its invalidity on that ground beyond a reasonable doubt.' Adams v. Rubinow, 157 Conn. 150, 152, 251 A.2d 49. Kellems v. Brown, supra. 'It is our duty to approach the question with great caution, examine it with infinite care, make every presumption and intendment in its favor, and sustain the act, unless its invalidity is, in our judgment, beyond reasonable doubt.' Beach v. Bradstreet, 85 Conn. 344, 349, 82 A. 1030, 1032. Within this context, we must review the statutory classification of marihuana.

It is obvious that the purpose of the legislation is not only to protect the health of those who may be tempted to use marihuana but, in the exercise of the state's police power, to protect society from the effects of a drug which the legislature concluded to be appropriately classified for penalty purposes with amphetamines and barbiturates. This court is therefore required to look at the effect of marihuana on both the user's ¹³ health and the public welfare, and to compare this to the effect of amphetamines and barbiturates.

The court is not required to restrict itself to the facts or data that were present before the legislature when the legislation prohibiting the conduct was adopted. '(a) police regulation, although valid when made, may become, by reason of later events, arbitrary and confiscatory in operation.' Abie State Bank v. Bryan, 282 U.S. 765, 772, 51 S.Ct. 252, 255, 75 L.Ed. 690; Leary v. United States, 395 U.S. 6, 38, 89 S.Ct. 1532, 23 L.Ed.2d 57. '(A) Court is not at liberty to shut its eyes to an obvious mistake, when the validity of the law depends upon the truth of what is declared. . . . A law depending upon the existence of . . . certain state of facts to uphold it may cease to operate if . . . the facts change even though valid when passed.' Chastleton Corporation v. Sinclair, 264 U.S. 543, 547, 44 S.Ct. 405, 406, 68 L.Ed. 841. So, even if there was no empirical data available to the legislature at the time, or the legislature had erroneous information regarding the effects of marihuana, this court is not bound to review the constitutionality of the statute based on these misconceptions. The question before this court is whether the present state of knowledge of the effects of marihuana provides a rational basis within the standards previously set forth to classify it with amphetamines and barbiturates for penalty purposes. ¹⁴

The defendant, pursuant to a stipulation entered into with the state, introduced in evidence transcripts of the testimony of expert witnesses for the defendant in the case of United States v. Maiden, 355 F. Supp. 743 (D.Conn.). The state offered no evidence. This testimony was given by Lester Grinspoon, professor of psychiatry at Harvard Medical School, Joel Fort of the University of California and a former consultant to the United Nations World Health Organization, and Edward Brecher, a scientific research writer. The court is satisfied that the evidence constituted a sufficient record on which it could determine the issues raised in this case.

The facts relied on by the court in its decision are based on the testimony contained in the transcripts. The court has also made references to corroborating empirical data and other studies which included the first report of the National Commission on Marihuana and Drug Abuse, entitled 'Marihuana: A Signal of Misunderstanding' (1972), cited as 'Signal of Misunderstanding,' and its second report, entitled 'Drug Use in America: Problems in Perspective' (1973), cited as 'Drug Use in America.' This commission was authorized by Cogress in the Comprehensive Drug Abuse Prevention and Control Act of 1970, and it was directed to study and report on marihuana. ¹⁵ The significant findings of the commission were confirmed by the Canadian Commission of Inquiry into the Non-Medical Use of Drugs, Cannabis (1972).

Marihuana comes from the hemp plant, cannabis sativa. It is a psychoactive drug ¹⁶ and its strength varies greatly depending on the amount of isomers of tetrahydrocannabiniol, or THC, from the plant's resin, it contains. Marihuana, which is generally used in this country, has the least potency; the strongest is hashish. ¹⁷ Although hashish is many more times stronger in effect than marihuana, Connecticut statutes make no distinction between these drugs. ¹⁸

The evidence introduced before this court is that there are no significant short-term physiological effects from the use of marihuana. ¹⁹ It has been described by Grinspoon as 'a remarkable drug for the paucity of physiological effects.' The minimal short-term physical effects are limited to the reddening of the whites of the eyes, a slight lowering of blood pressure and an increase in the pulse rate. ²⁰ The short-term psychological...