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.  


Response to Richard Davis' Constitutional Challenge

from
David Flader
Deputy County Attorney
MARICOPA COUNTY ARIZONA
 
 

STATE OF ARIZONA vs. RICHARD M. DAVIS

RICHARD M. ROMLEY
MARICOPA COUNTY ATTORNEY

David Flader
Deputy County Attorney
Bar ID #: 011853
Southwest Facility
222 E. Javelina Ave. Ste 2400
Mesa, AZ 85210-6237
Telephone: 602 506-2888
Attorney for Plaintiff
 

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

 

STATE OF ARIZONA,

                Plaintiff,

        vs.

RICHARD MARVIN DAVIS,

                Defendant.
 

NO.  CR 96-92561

STATE'S RESPONSE TO DEFENDANT'S
MOTION TO DISMISS BASED ON
SECTION I, ARTICLE II, OF THE
ARIZONA CONSTITUTION IN THE CASE
STATE OF ARIZONA V. RICHARD M. DAVIS

(Assigned to the Honorable Brian Ishikawa, Div. P)
 

        The State of Arizona, by and through undersigned counsel, David Flader, hereby responds to and opposes the Defendant's Motion for the following reasons.

1.  STATEMENT OF FACTS:

        The State incorporates by reference the Statements of Facts contained within the State's previous motions.

II.  STATEMENT OF LAW:

        A.  GENERAL DISCUSSION

       Mr. Davis requests the Court to rule on issues that are not relevant to this case or that this Court has already ruled upon. This Court has already ruled that compliance pursuant to A.R.S. 42- 1203, justification pursuant to A.R.S.  13-402, Entrapment, and Character for Truthfulness, are not viable defenses in this case. Accordingly, under the doctrine of Stare decisis, these issues should not be relitigatedHe also asks this Court to make rulings on issues over which this Court has no jurisdiction.  Mr. Davis further asks this Court to rule on the constitutionality of Titles 36 and 42; however, he is not charged under these statutes.  The Defendant was charged under Title 13 and this Court has already ruled upon the Defendant's Motion to Dismiss based on Title 42 compliance and Double Jeopardy.

        Mr. Davis asks this Court to make rulings regarding the United Nations Charter and the Marijuana Tax Act of 1937.  This Court has no jurisdiction to rule on Federal laws and international agreements. The Defendant challenges Proposition 200.  However,  Proposition 200 is not relevant to this case.  Its passage was subsequent to the dates of these offenses and this case does not involve the defendant selling marijuana for medical use.
Additionally, Proposition 200 cases apply to "possession" or "use" cases.

        Many of the defendant's arguments are contained within the case of NORML v. Bell, 488 F. Supp. 123 (1980).  The State has attached a copy to the motion as Exhibit A, and adopts the reasoning and the conclusions contained within that case.

        B.  RIGHT TO PRIVACY

        The right to privacy includes:
"...only those personal rights that can be deemed ‘fundamental' or ‘implicit' in the concept of ordered liberty," Id.  At
 152, 93 S.Ct.  At 726 (quoting Palko v. Connecticut, 302 U.S.  319, 325, 58 S.Ct. 149, 152, 82 L.Ed.  288 (1937) The Court  has expressly recognized as fundamental Those rights regarding familial concerns and  obligations: marriage, contraception, child rearing and familial living arrangements. NORML at 131.
    Smoking marijuana does not qualify as a fundamental right.  Ravin v. State, 537   P.2d 494, 502 (Alaska 1975 (dictum) 23.  In ascertaining whether a right is fundamental, A court must determine whether the right is Explicitly or implicitly guaranteed by the Constitution.   San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 33-34, 93 S.Ct.  1278-1297, 36L.Ed. 2d 16 (1973).
On this issue, Justice Stewart once noted:

                        The Court . . . does not pick out particular human Activities, characterize them as fundamental, and give them added protection ***.   To the contrary, the Court simply recognizes, as it must, an established constitutional right, and gives to the right no less protection than the Constitution itself demands.
Shapiro v.  Thompson.  394 U.S.  618, 642, 89 S.Ct.  1322, 1335, 22 L.Ed.2d 600 (Stewart,  J., concurring).  Smoking marijuana receives No explicitly or implicit constitutional Protection.   NORML at 132.
There is no fundamental right to possess marijuana.  State v. Murphy, 117, Ariz.  57, 570 P.2d 1070 (Ariz.  1977).

    The Defendant's reliance on Ravin is additionally misplaced because that case involved marijuana possessed within the home. Our case involves public sales. Additionally, the Court is not bound by another State's ruling.

        Thus, the Defendant has no fundamental right to sell marijuana.  The Defendant possesses no right to privacy guaranteed by the Constitution. The Defendant also claims that his use of marijuana conflicts with his religious freedom.  Once again, the instant case does not involve the Defendant's using marijuana privately, but selling and possessing marijuana for sale publicly.

        C.    CRUEL AND UNUSUAL PUNISHMENT

        In determining the severity of a criminal statute:
    A court must compare the severity of  the offense being punished and its sentence with the punishment imposed for other crimes in the jurisdiction and for the crime in  other jurisdictions.   NORML at 142.

        The Defendant in the instant case is not facing a mandatory prison sentenceIf found guilty, the Court can impose probation. The Defendant is not even facing mandatory jail time.  Further, the penalties the Defendant faces in this case are in line with penalties imposed in different jurisdictions.

        D.  EQUAL PROTECTION

                     Legislation that does not affect a "Fundamental" right or a "suspect" class need only bear a rational relationship to a  legitimate state interest. The distinctions drawn by a  challenged statute must bear some rational relationship to a  legitimate state end and will be set aside as violative of the Equal Protection Clause only if based on reasons totally unrelated to the pursuit of that goal. Legislatures are presumed  to have acted constitutionally even if source materials normally resorted to for ascertaining their grounds for action are otherwise silent, and their statutory classification will be set aside only if no grounds can be conceived to justify them.  McDonald v. Board of Election Commissioners, 394 U.S.  802, 809, 89 S.Ct. 1404, 1408, 22 L.Ed.2d 739 (1969).
This standard of judicial review gives legislatures wide discretion and permits them to attack problems in any rational manner.   Williams v.  Lee Optical of Oklahoma, Inc./, 348 U.S.  483, 75 S.Ct.  461, 99 L.Ed 562 (1955).   "In an equal protection case of this type . . . Those challenging the legislative judgment must convince the Court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by The governmental decision maker."  Vance v. Bradley, 440 U.S. 93, 111, 99 S.Ct.  939,950, 59 L.Ed.2d 171(1979). 
The classification will be upheld unless "the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes  that [a court] can only conclude that the Legislature's actions were irrational."  Id. At 97, 99 S.Ct.  At 943.   "In short, the Judiciary may not sit as a super legislature to judge the wisdom or desirability of Legislative policy determinations made in areas that neither affect fundamental rights nor process along suspect lines . . ."  New Orleans v. Dukes,   427 U.S.  297, 303, 96 S.Ct.  2513, 2517, 49 L.Ed.2d 511 (1976). NORML at 134.

        There is no equal protection violation just because alcohol and tobacco are not treated by the legislature the same way as marijuana.   NORML at 137. Nor is there an equal protection violation because marijuana is treated more like cocaine than alcohol and  tobacco.    NORML at 138.

        III.    CONCLUSION

                The Defendant has no constitutional right to sell or possess marijuana for sale.  NORML at 143.
                Submitted July 23, 1997.

                                                RICHARD M. ROMLEY
                                                MARICOPA COUNTY ATTORNEY
 

                                                BY   SIGNED
                                                     David Flader
                                                     Deputy County Attorney
 

   

Copyright 1997 Richard Davis *All Rights Reserved*

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