Motion to Dismiss or Affirm — Dunlap v. Illinois

No. 83-48 SEP 6 |

SNE:

In THE

Supreme Court of the Gnited States

Octoser Term, 1983

BRIAN K. DUNLAP and REVEL L. FREEMAN,

Appellants,

vs.

THE PEOPLE OF THE STATE OF ILLINOIS,

Appellee.

On Appeal From The Appellate Court Of Illinois,

Fifth Judicial District

MOTION TO DISMISS OR AFFIRM

Neit F. Harrtican,

Attorney General, State of Illinois,

Micnaet B. WEINSTEIN,®

Assistant Attorney General,

188 West Randolph Street,

Suite 2200,

Chicago, Illinois 60601,

(312) 793-2570,

Counsel for Appellee.

Eiten M. Fiavm,

Lesuiz J. Rosen,

Assistant Attorneys General,

Of Counsel. * Counsel of Record

Printed by Authority of the State of Illinois (P.O. 31960—55—9-2-83)

i

QUESTIONS PRESENTED

I. Whether the State of Illinois’ classification of

psilocyn as a Schedule I controlled substance violates

appellants’ right to equal protection of the law as

guaranteed by the Fourteenth Amendment to the United

States Constitution where there are rational bases for

upholding the legislative classification?

II. Whether the State of Illinois’ inclusion, of “any

material . . . which contains any quantity of ...

psilocyn”, in its enumeration of Schedule I controlled

substances, sufficiently apprised appellants that posses-

sion of Psilocybe mushrooms was proscribed so as to not

violate their rights to due process of law as guaranteed

by the Fourteenth Amendment to the United States

Constitution?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED .................

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OPINION

ARGUMENT:

THIS APPEAL SHOULD BE DISMISSED,

OR ALTERNATIVELY, THE JUDGMENT

OF THE COURT BELOW SHOULD BE

AFFIRMED, FOR WANT OF A SUBSTAN-

TIAL FEDERAL QUESTION ...........

A.

The State Of Illinois’ Classification Of

Psilocyn As A Schedule I Controlled

Substance Is Rationally Based And

Thus, Does Not Deprive Appellants Of

Equal Protection Of The Law ......

The State Of Illinois’ Inclusion Of “Any

Material ... Which Contains Any

Quantity Of ... Psilocyn’’ In Its

Enumeration Of Schedule I Controlled

Substances Sufficiently Apprised Ap-

llants That Possession of Psilocybe

ushrooms Was Proscribed, And Thus,

Their Due Process Rights Were Not

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iii

TABLE OF AUTHORITIES

CASES: PAGE(S)

Illinois Normal, Inc. v. Scott, 66 Ill. App. 3d 633,

383 N.E.2d 1330 (1st Dist. 1978) ..........

National Organization for Reform of Marijuana

Law's v. Bell, 488 F. Supp. 123 (D.D.C. 1980)

People v. Dunlap and Freeman, 110 Ill. App. 3d

738, 442 N.E.2d 1379 (5th Dist. 1982) .....

People v. McCarty, 86 Ill. 2d 247, 427 N.E.2d 147

PE iC heeded nacks eer shaens<unevaeh eis

Rose v. Locke, 423 U.S. 48 (1975) ............

Thillens, Inc. v. Morey, 11 Ill. 2d 579, 144 N.E.2d

735 (1957), appeal dismissed, 355 U.S. 606

RE erry rey Py ere

United States v. Carolene Products, 304 U.S. 144

cea has eGun sae os aeedeebacsleekee cease

United States v. Solow, 574 F.2d 1318 (5th Cir.

ee cav ee beds Shack seWadeekbatsaceceupes

United States v. Stieren, 608 F.2d 1135 (5th Cir.

EL icak a cone pune eves 6 baa bbie e0eck ee boe

Vance v. Bradley, 440 U.S. 939 (1979) ........

Williamson v. Lee Optical of Oklahoma, Inc., 348

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CONSTITUTIONAL PROVISIONS:

U.S. Const. amend. XIV, §1 ................

STATUTORY PROVISIONS:

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Ill. Rev. Stat. 1979, ch. 56%, § 1100 et seq. .

3,

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iv

SECONDARY AUTHORITIES:

Illinois Legislative Investigation Commission, The

Drug Crisis—Report of Drug Abuse in Illinois

EE Cee eos es eu eNdderrcs sh ecdbenenees

Uniform Controlled Substances Act, 9 Uniform

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In THE

Supreme Court of the United States

Ocroser Term, 1983

BRIAN K. DUNLAP and REVEL L. FREEMAN,

Appellants,

vs.

THE PEOPLE OF THE STATE OF ILLINOIS,

Appellee.

On Appeal From The Apyellate Court Of Illinois,

Fifth Judicial District

MOTION TO DISMISS OR AFFIRM

To The Chief Justice And Associate Justices Of The Supreme

Court Of The United States:

The People of the State of Illinois respectfully move

this Court to dismiss the appeal herein or, in the alter-

native, to affirm the judgment of the Appellate Court

of Illinois, Fifth Judicial District, on the ground that this

case does not present a substantial federal question.

=e

OPINION BELOW

The Appellate Court of Illinois, Fifth Judicial District,

reversed the order of the Circuit Court of Williamson

County, Illinois, which dismissed criminal Informations

filed in the above-entitled cause. The opinion of the Ap-

pellate Court is reported at 110 Ill. App. 3d 738, 442 N.E.

2d 1379 (5th Dist. 1982) and is set out in full in the Ap-

pendix to the Jurisdictional Statement at 1-38. On April

12, 1983, the Supreme Court of Illinois denied appellants’

Petition for Leave to Appeal. Appendix to Jurisdictional

Statement at 41.

STATEMENT OF THE CASE

The People of the State of Illinois adopt the statement

of facts contained in the Illinois Appellate Court opinion

and incorporate it by reference herein. See Appendix to

Jurisdictional Statement at 1-4.

a wa

ARGUMENT

THIS APPEAL SHOULD BE DISMISSED, OR ALTER-

NATIVELY, THE JUDGMENT OF THE COURT BELOW

SHOULD BE AFFIRMED, FOR WANT OF A SUBSTANTIAL

FEDERAL QUESTION.

A.

The State Of Illinois’ Classification Of Psilocyn As A

Schedule I Controlled Substance Is Rationally Based And

Thus, Does Not Deprive Appellants Of Equal Protection Of

The Law.

Appellants’ claim that there is no rational basis for the

State of Illinois’ classification of psilocyn as a Schedule

I controlled substance is completely without merit. Iden-

tical arguments have been made and uniformly lost with

regard to the classification of marijuana and cocaine.!

Nothing about appellants’ contentions in this case

distinguish their claim from the claims advanced in those

classification cases. Accordingly, this appeal should be

treated in a like fashion and it should either be dis-

missed or the judgment below should be affirmed.

In order to prove that the legislature has properly ex-

ercised its prerogative to classify psilocyn as a Schedule

I controlled substance, the People need merely show that

any state of facts, either made known or reasonably

1 See e.g., United States v. Stieren, 608 F.2d 1135 (8th Cir. 1979);

United 8 tes v. Solow, 574 F.2d 1318 (5th Cir. 1978); National

Organization For Reform Of Marijuana Laws v. Bell, 488 F.

ary a (D.D.C. 1980); Illinois Normal, Inc. v. Scott, 66 Ill. App.

3d 633, 383 N.E. 2d 1330 (1st Dist. 1978); People v. McCarty, 86

Ill. 2d 247, 427 N.E. 2d 147 (1981) and cases cited therein at 152.

(Indeed, the expert who testified in this case, Dr. Ronald Siegal,

= also one of two experts who testified in McCarty, 427 N.E.

2d at 149.)

lie

assumed, supported its legislature’s judgment. United

States v. Carolene Products Co., 304 U.S. 144, 152 (1938).

‘“(T]hose challenging the legislative judgment must con-

vince the court that the legislative facts on which the

classification is apparently based could not reasonably be

conceived to be true by the governmental decisionmaker.”’

Vance v. Bradley, 440 U.S. 939, 949 (1979). This standard

of judicial review gives legislatures wide discretion and

permits them to attack problems in any rational manner.

Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S.

483 (1955), cited in National Organization For Reform Of

Marijuana Laws v. Bell, 488 F. Supp. 123, 134 (D.D.C.

1980). Surely, the state has met its burden in this case,

where there is ample authority and precedent for the

classification.

The Illinois legislature enacted the Controlled Sub-

stances Act (Ill. Rev. Stat. 1979, ch. 56%, § 1100 et seq.)

in order to combat the rising incidence in the abuse of

drugs and other dangerous substances and its resultant

damage to the peace, health and welfare of the citizens

of Illinois. Jll. Rev. Stat. 1979, ch. 56%, §1100. This act

is based on the Uniform Controlled Substances Act. 9

Uniform Laws Annot. 197 (1970). In determining that the

classifications established by the Uniform Act were ap-

propriate for state use, the legislature utilized the infor-

mation it had before it concerning the substances proposed

to be controlled, including psilocyn. See Illinois Legislative

Investigation Commission, The Drug Crisis—Report of

Drug Abuse in Illinois, at 114-15, 185-86, 354-63 (1971).

The legislature classified psilocyn in its most serious

category as a Schedule I controlled substance as did both

the Uniform Act and the federal Drug Abuse Prevention

and Control Act. 21 U.S.C. §812. The commissioners’

Note to Section 203 of the Uniform Act provides that ma-

a

jor hallucinogens and certain narcotic substances are in-

cluded in Schedule I primarily because “both groups of

drugs have no accepted use in the United States and both

have a high potential for abuse.’’ 9 Uniform Laws Annot.

197 (1970).

The issue of the validity of the state’s classification of

psilocyn as a Schedule I controlled substance was one of

law, not of fact. Thus, the appellate court was called upon

to analyze the available authorities on the subject. This

the court appropriately did. Based on those authorities

it held that the legislature’s decision to include psilocyn

in Schedule I was not so arbitrary as to deny the ap-

pellants equal protection of the law. The court recognized

that commentators and researchers have disagreed on the

wisdom of the approach taken in prohibiting these

substances and also that ‘“{WJhether the enactment is wise

or unwise; whether it is the best means to achieve the

desired results, and whether the legislative discretion

within its proscribed limits should be exercised in a par-

ticular manner are matters for the judgment of the

legislature, and the honest conflict of serious opinion does

not suffice to bring them within the range of judicial

cognizance.”’ People v. Dunlap and Freeman, 110 Ill. App.

3d 738, 442 N.E. 2d 1379, 1388 (5th Dist. 1983), quoting

Thillens, Inc. v. Morey, 11 Ill. 2d 579, 144 N.E. 2d 735,

743 (1957), appeal dismissed, 355 U.S. 606 (1958); Appen-

dix to Jurisdictional Statement at 36-37. This was the ap-

propriate analysis of the issue and there is no reason

whatever for this Court to disturb the appellate court’s

conclusion.

The fact that appellants produced an expert witness in

the trial court who opined that psilocyn was not justifiably

classified as a Schedule I controlled substance, while the

People produced no expert witnesses, did not affect the

i

disposition of the matter. Resolution of the issue simply

did not turn on the appellate court’s counting the number

of experts each side presented or the number of articles

each side submitted. Resolution turned solely on whether

the classification offended the Equal Protection Clause of

the Fourteenth Amendment as a matter of law. The ex-

pert’s opinion only lent authority to appellants’ claim; it

did not serve, nor could it have served, as a substitute

for the court’s analysis of the legal issue presented. Ac-

cordingly, anpellants’ argument that they should have an

opportunity to contest “the correctness and authority of

these articles’ (Jurisdictional Statement at 18) is beside

the point.

B.

The State Of Illinois’ Inclusion Of ‘‘Any Material .. .

Which Contains Any Quantity Of . . . Psilocyn’’ In Its

Enumeration Of Schedule I Controlled Substances Suffi-

ciently Apprised Appellants That Possession Of Psilocybe

Mushrooms Was Proscribed, And Thus, Their Due Process

Rights Were Not Violated.

Appellants’ claim that their due process rights were

violated because ‘‘the Controlled Substances Act did not

give [them] fair notice that their conduct was proscribed

and that reasonable persons would necessarily guess at

its meaning and differ as to its application. . . .” (Jurisdic-

tiona! Statement at 24), is also not worthy of this Court’s

attention. The Illinois Appellate Court properly found that

the words “‘any material . . . which contains any quan-

tity of . . . psilocyn’”’ were sufficiently clear to apprise

anyone of normal intelligence that possession of Psilocybe

=

mushrooms was proscribed.? There is no reason for re-

examining this issue.

This Court has often spoken of the fair warning re-

quirements embodied in the Due Process Clause and

nothing about this appeal could cause this Court to depart

from its long-standing view on the subject. In Rose v.

Locke, 423 U.S. 48, 49-50 (1975), this Court stated:

It is settled that the fair warning requirement em-

bodied in the Due Process Clause prohibits the States

from holding an individual ‘‘criminally responsible for

conduct which he could not reasonably understand to

be proscribed.”” United States v. Harriss, 347 U.S.

612, 617, 98 L. Ed. 989, 74 S. Ct. 808 (1954); see

Wainwright v. Stone, 414 U.S. 21, 22, 38 L. Ed. 2d

179, 94 S. Ct. 190 (1973). But this prohibition against

excessive vagueness does not invalidate every statute

which a reviewing court believes could have been

drafted with greater precision. Many statutes will

have some inherent vagueness, for “{iIn most English

words and phrases there lurk uncertainties.”’ Robin-

son v. United States, 324 U.S. 282, 286, 89 L. Ed.

944, 54 S. Ct. 666 (1945). Even trained lawyers

may find it necessary to consult legal dictionaries,

treatises, and judicial opinions before they may say

with any certainty what some statutes may compel

or forbid. Cf. Nash v. United States, 229 U.S. 373,

57 L. Ed. 1232, 33 S. Ct. 780 (1913); United States

v. National Dairy Corp., 372 U.S. 29, 9 L. Ed. 2d

561, 83 S. Ct. 594 (1963). All the Due Process Clause

requires is that the law give sufficient warning that

2 Indeed, as the Appellate Court pointed out (110 II]. App. 3d

738, 442 N.E. 2d 1379, 1383 (5th Dist. 1983); Appendix to Jurisdic-

tional Statement at 14-15), even appellants’ own expert testified

that psilocyn is predominantly taken by eating mushrooms which

contain the substance and the only company in the world that

manufactured psilocyn ceased production of it in 1966!

-

men may conduct themselves so as to avoid that

which is forbidden (footnote omitted).

Viewed against this standard, appellants were adequate-

ly apprised that possession of Psilocybe mushrooms was

proscribed. Acccordingly, they have raised no substantial

question regarding their due process rights.

CONCLUSION

For the foregoing reasons, the People of the State of

Illinois request that this appeal be dismissed or, alter-

natively, the decision of the Appellate Court of Illinois,

Fifth Judicial District, be affirmed for want of a substan-

tial federal question.

Respectfully submitted,

New F. Hartiean,

Attorney General, State of Illinois,

MicuaeL B. WELNSsTEIN,®

Assistant Attorney General,

188 West Randolph Street,

Suite 2200,

Chicago, Illinois 60601,

(312) 793-2570,

Counsel for Appellee.

Eviten M. Fav,

Lesure J. Rosen,

Assistant Attorneys General,

Of Counsel. * Counsel of Record

September 2, 1983