Richard Davis' "Constitutional
Challenge," against the State of Arizona and the Federal Government
for the Right to possess as property, plant, grow, harvest, sell and consume
(as food, medicine, sacrament and recreationally), Cannabis Sativa and
its seed and all Extracts thereof.
The converse of the above ruling must be equally true. The inclusion of Cannabis/Marijuana within the classification of Schedule I drugs must be based upon some "legitimate ground," for the inclusion to be correct. As shown by the facts presented in this motion, Cannabis/Marijuana simply does not fit within such classification in terms of legitimate societal interest.
The United States Supreme Court has held that a classification which does not rest upon a reasonable basis and which is essentially arbitrary in nature constitutes a violation of the Equal Protection Clause. See, McLaughlin vs. Florida, supra. where the court held at page 191:
"Judicial inquiry under the Equal Protection Clause, therefore, does not end with a showing of equal application among the members of the class defined by the legislation. The courts must reach and determine the question whether the classifications drawn in a statute are reasonable in light of its purpose, in this case, whether there is an arbitrary or invidious discrimination between those classes covered by Florida's cohabitation law and those excluded."
Even if the legislature was laboring under some misconception with respect to the proper classification for Cannabis/Marijuana, nevertheless the court had a duty to rectify said error by holding the statute in question unconstitutional. As pointed out by the U.S. Supreme Court in Meyer vs. Nebraska, supra, at page 401: "(A) desirable end cannot be promoted by prohibited means."
Further, as pointed out by the Supreme Court in Levy vs. Louisiana, 391 U.S. 68 at page 71:
"While a state has broad power when it comes to making classifications (Ferguson vs. Skrupa, 372 U.S. 726, 732), it may not draw a line which constitutes an invidious discrimination against a particular class. (See Skinner vs. Oklahoma, 316 U.S. 535, 541-542.) Though the test has been variously stated, the end result is whether the line drawn is a rational one. (See Morey vs. Doud, 354 U.S. 457, 456-466.)
In English vs. Miller, 341 Fed. Supp. 714 (1972) the District Court
for the Eastern District of Virginia considered the constitutionality of
the Virginia law classifying marijuana as a narcotic and held at page 171:
"The classification of marijuana as a narcotic is, in this Court's opinion, violative of the equal protection clause of the United States Constitution. The statutory pronouncement that "every substance not chemically distinguishable," from coca leaves and opium, cannabis and isonipeciane" is a narcotic drug, as referred to in Virginia Code 54-487 (14), is so vague that, even if it could be pharmacologically substantiated, due process considerations compel its repudiation."
In the English case, in footnote number four (4), at page 718 the court noted as follows:
"The court's power to determine the actual state of facts concerning marijuana, as well as the court's reliance on current writing of authorities in a rapidly developing field, is based upon pronouncements of the U.S. Sup. Ct. in Brown vs. Board of Education, 347 U.S. 483, 494, F.N. 11, 74 S.Ct 686, 98 L.Ed. 873 (1954) where unquestionably the court has the power to determine the true state of facts upon which the law is based." (See also, People vs. Sinclair, supra, (1972.)
According to Justice Holmes, even a judge being bound to declare
the law must know or discover the facts that established the law. (See,
Prentis vs. Atlantic Coast Line Co., 211 U.S. 210, 1908).