Kay Lee's Marijuana Case: DEFENDANT'S BRIEF IN SUPPORT OF MOTION TO DISMISS: UNCONSTITUTIONAL STATUTE: MEDICAL USE

Sections 961.14(4) (t) AND 961.41(3g) (e) OF THE WISCONSIN
STATUTES ARE UNCONSITUTIONALLY VAGUE AND UNCONSTITUTIONAL AS
AS APPLIED BECAUSE THE STATUTE LACKS SUFFICIENT STANDARDS TO DISTINGUISH THC IN MARIJUANA FROM THC IN DRONABINOL
UNDER SECTION 961.18(4m), WIS. STATS.

The defendant acknowledges that all legislation, including the statute herein challenged, is presumed to be constitutional. Unconstitutionality must be proven beyond a reasonable doubt. State ex rel hammermill v. LaPlante, 58 Wis. 2d 32 (1973). A statute which is constitutionally void for vagueness must be shown to fail "to provide fair notice and proper standards for adjudication." State ex rel Bell v. Columbia County, 82 Wis. 2d 401 (1978). Although notice is at issue as well, the policy goal of avoiding arbitrary law enforcement is clear.

The primary purpose of [the vagueness] doctrine as articulated in the modern cases is the realistic one of limiting prosecutorial discretion rather than the unrealistic one of protecting the reliance of people -- for there are precious few -- who actually read statutes, criminal or otherwise before deciding whether to do something.

The intent of the legislature in regard to establishing limits and standards of prosecutorial discretion in Chapter 961, the Uniform Controlled Substances Act, is made manifest under statutes which distinguish between Schedule I and Schedule III controlled substances.

Under the statutes dronabinol is a Schedule III controlled substance under § 961.18(4m) because it contains tetrahydrocannabinol. This drug is used medically as an antiemetic in chemotherapy.

Yet tetrahydrocannabinol is also listed as a Schedule I controlled substance, with no medical benefit, under § 961.18(4) (t). The definition includes "'THC' in any form, including... chemically synthesized."

Given this structure, the defense states that prosecution for the possession of THC, the charge alleged by the prosecution in this case, is unconstitutional because the statute in question, § 961.14(4) (t), does not clearly or adequately distinguish THC in marijuana from THC in dronabinol.

The legislature, in effect, provides for Schedule I non-medical THC and Schedule III medical THC, but does not provide guidelines for distinguishing between medical and non-medical use of THC. The definitions involved cannot serve to distinguish one THC from another. Whatever the word THC means, it means the same thing, creating problems of circular definitions, or logical tautologies. circularity in itself can be grounds in part for holding a law constitutionally invalid. See, Goldy v. Beal, 429 F. Supp. 640, 648 (M.D. Pa. 1976) (holding an involuntary commitment law void for vagueness in part due to circular definitions).

In this situation, possession of medically useful THC is the same as non-medical THC.

Because the statutory definitions are circular and vague, the District Attorney is faced with a case where it cannot always be clearly or fairly determined whether to charge or recommend sentencing based on possession of Schedule I or Schedule III THC.

THERE IS NO RATIONAL BASIS FOR LISTING THC UNDER SCHEDULES I AND III AND PUNISHING THC OFFENSES DISPARATELY WITHOUT REGARD TO WHETHER THE INTENDED USE IS MEDICAL OR NOT.

The overall goals of Chapter 961 are legitimate. Generally, the statutes therein are rationally intended and crafted to control and sanction the manufacture, distribution, use and possession of controlled substances. Even if the Chapter as a whole furthers a legitimate state interest, individual sections of the chapter are not immune from equal protection challenges. Even if the governmental goal is legitimate the government may not use arbitrary and irrational classifications to achieve its ends. Logan v. Zimmerman Brush Co., 455 U.S. 422, (1982) (Blackmun, J.)

In the instant case, the question is whether it is rational to categorize separately the same substance. The test is: do these classifications promote a legitimate governmental interest in a rational manner? Milwaukee Brewers v. Wisconsin Department of Health, 130 Wis. 2d 79 (1986)

The basic issue here is that either THC has a medically useful quality, or it does not. The question simply cannot logically and rationally be answered yes and no at the same time. Can the legislatures, because of political considerations involving the "war on drugs," claim that THC has medical use and that it does not at the same time? Should the legislature adhere to a patently illogical and irrational scheme when options such as differentiating between medical and non-medical use of THC exist?

These are fundamental questions. Even resolving every reasonable doubt in the state's favor, no remotely adequate or logical answers to these questions can be forthcoming, given the existing statutory schema. These statutes are hopelessly muddled. They simply do not withstand close scrutiny. As a result, they cannot pass constitutional muster. "[P]eople of common intelligence must necessarily guess at [the statute's] meaning and differ as to its applicability... ." City of Oak Creek v. King, 148 Wis. 2d 532 (1968).

The legislature, in clearly articulating its intent, should draw a bright line between medical use of THC and recreational use of marijuana. This distinction is inherent in policy deliberations on a national and international level as well. The distinction is not arbitrary. It is rational and it is obvious. Therefore, it does not matter if one possesses THC, but rather to what use that THC is put. And it might not matter whether the THC is in synthetic or plant form. The end result is medical treatment, and not the entry of the controlled substance into the illegal market. The legislature has stated what the rational or substantial distinctions or classes or categories are to be. The legislature cannot articulate a legitimate interest in listing THC under both Schedule I and Schedule III at the same time. To pass muster under equal protection scrutiny the separate classifications of THC "must be based upon substantial distinctions." Omerick v. State, 64 Wis. 2d 6, 19 (1974). Given the dual classification of the same substance plus the confused, muddled circular definitions which effectively state that THC is medically useful at the same time that it has no medical uses, the distinctions are without a difference; they are not substantial. The purpose of the statutory scheme should be to distinguish clearly between medical and recreational or non-medical use. To draw the distinction between THC and THC is irrational and defeats the clear and unambiguous intent of the legislature to allow some medical use of THC.

For these several reasons § 961.14(4) (t) and 961.41(3g) (e) should be invalidated to the extent that they create illegitimate separate classifications of a substance where none rationally exist, rather than properly distinguishing between medical and recreational use in a rational fashion.

While the statutes in question might not be challenged as unconstitutional on the above grounds and arguments by a defendant who can make no bona fide claim of an interest in the therapeutic use of THC, in the instant matter defendant Kay Lee relies jupon the Full Faith and Credit clause of the Constitution of the United States and the argument and exhibit presented in her Motion to Dismiss: Statutory Authorization, incorporated herein by reference, to demonstrate her individualized interest and assert a claim that these statutes are unconstitutional as applied in the instant matter.

Dated January 19, 2007
/s/
Bryon J. Walker
Attorney at Law
State Bar # 01001112
101 North State Street, Suite 3
PO Box 10
La Farge, Wisconsin 54639
(608) 625-4321

STATE OF WISCONSIN,	Plaintiff	DEFENDANT'S BRIEF IN SUPPORT OF MOTION TO DISMISS: UNCONSTITUTIONAL STATUTE: MEDICAL USE
vs
KAY LEE,	Defendant	Case No. 07 CM 68