DISTRICT COURT, COUNTY OF EL PASO, STATE OF COLORADO

Case No. 97CR1969 Division 8 Courtroom 305

THE PEOPLE OF THE STATE OF COLORADO,

Plaintiff,

v.

Elisabeth C. Mykut,

Defendant.

IN THE COURT OF THE HONORABLE JUDGE CISNEROS

COMES NOW Defendant, by and through her Attorney, and respectfully submits her Motion to Dismiss: Statute Unconstitutional. Defendant respectfully requests that the marijuana statutes be declared unconstitutional under the Constitution of the United States and the Constitution of the State of Colorado, both "as enacted" and "as applied," and that the LSD–25 and psilocybin statutes be declared unconstitutional "as applied."

I. The Marijuana Laws Should be Subject to Strict Scrutiny Because of Discriminatory Intent and Disparate Impact

Where a statute on its face implicates neither a suspect class nor a fundamental right, the statute is reviewed only under the "rational basis" test, the lowest level of scrutiny applicable to due process and equal protection challenges. A facially neutral law is nonetheless subject to "strict scrutiny" if it is an obvious pretext for discrimination. Personnel Adm’r of Massachusetts v. Feeney, 442 U.S. 256, 272 (1979). The U.S. Supreme Court has instructed that disparate impact alone is insufficient to support a finding of invidious racial discrimination in a facially neutral law. Washington v. Davis, 426 U.S. 229, 239 (1977). The disparate impact must be traceable to a discriminatory legislative purpose. Personnel Adm’r of Massachusetts v. Feeney, 442 U.S. at 272. " ‘Discriminatory purpose’ . . . implies more than intent as volition or intent as awareness of consequences." Id. at 442 U.S. 279. The decisionmaker must have "selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group." Id.

The history of the marijuana laws, both state and federal, is replete with racism and discriminatory intent. The marijuana laws were originally aimed not at the drug, but at the Mexican immigrants and other persons of color associated with the drug.

The legal history was perhaps best summarized by Charles Whitebread, II, Professor of Law at the University of Southern California, in his speech to the California Judges Association 1995 annual conference:

Charles H. Whitebread, II, The History of the Non–Medical Use of Drugs in the United States (last modified April 6, 1997) <http://206.61.184.43/schaffer/

History/whiteb1.htm>.

The legal history of the marijuana laws was, surprisingly, first reviewed in 1970 by Professors Richard J. Bonnie and Charles H. Whitebread, II in The Forbidden Fruit and the Tree of Knowledge: An Inquiry into the Legal History of American Marijuana Prohibition, Virginia Law Review 971–1203 (1970). Professors Bonnie and Whitebread noted that the discriminatory aspects of early marijuana legislation are directly confirmed in Montana and Colorado:

Richard J. Bonnie & Charles H. Whitebread, II, The Forbidden Fruit and the Tree of Knowledge: An Inquiry into the Legal History of American Marijuana Prohibition, Virginia L. Rev. 971, 1014–15 (1970).

Colorado enacted the Uniform Act in 1935. "Passage of the Act in each state was attended by little publicity, no scientific study and even more blatant ethnic aspersions than the earlier laws." Id. at 1034. Bonnie and Whitebread, II conclude "users were still concentrated regionally in the West and Southwest and socio–economically within the lower–class Mexican–American and Black communities. Id. at 1035.

The attitudes and intent of the people of Colorado are illustrated in a letter from Floyd K. Baskette, City Editor of The Alamosa Daily Courier of Alamosa, Colorado, which was read into the record of the hearings on the 1937 Marihuana Tax Act (the first federal law regulating marijuana) by Harry J. Anslinger, Commissioner of the Federal Bureau of Narcotics. This letter stated in part:

The Marihuana Tax Act of 1937, Transcripts of Congressional Hearings, Additional Statement of H. J. Anslinger, Commissioner of Narcotics (last modified April 6, 1997) <http://206.61.184.43/schaffer/hemp/taxact/t10a.htm>; See also Richard J. Bonnie & Charles H. Whitebread, II, The Forbidden Fruit and the Tree of Knowledge: An Inquiry into the Legal History of American Marijuana Prohibition, Virginia L. Rev. 971, 1037 (1970) (quoting Tax Act Hearings 32). "So successful were the Commissioner’s efforts in the Congress that the hearings before the House Ways and Means Committee and the floor debate on the bill are near comic examples of dereliction of legislative responsibility." Id. at 1053. It is notable that Professors Bonnie and Whitebread were the first to request transcripts of the hearings. The volume was so thin that the Library of Congress was unable to locate it for four months--it had slid down into the bookcase.

The disparate impact that the drug laws, including the marijuana laws, are having on minority groups has been widely documented and discussed in newspapers, magazines and television programs and on the World Wide Web. Requested good faith discovery efforts of racial data on arrests and convictions under the marijuana laws was understandably "not accomplished" by the District Attorney’s Office--such statistics are not kept by the Colorado Department of Public Safety, the Colorado Attorney Generals Office, the Colorado Department of Corrections or the Colorado Civil Rights Commission. However, private and government studies have demonstrated the disparate impact of the drug laws on minorities nationwide. In light of the discriminatory intent behind Colorado’s laws and the laws of the U.S. government, failure of the State to keep such statistics should not be held against Defendant, but rather should be viewed as a further neglect of duty on the part of the State.

While Blacks and Hispanics make up only 20 percent of the marijuana smokers in the U.S., John Morgan, M.D. and Lynn Zimmer, Ph.D., Marijuana Facts: A Review of the Scientific Evidence (1997), they comprised 55 percent of the marijuana offenders sentenced under federal law in 1995. Id. State arrest and incarceration rates paint a similar portrait. For example, in Illinois, 57 percent of those sent to prison for marijuana in 1995 were Black or Hispanic. Id. (quoting Illinois Department of Corrections, personal communications, October 1, 1996). In California, 49 percent of those arrested for marijuana offenses in 1994 were Black or Hispanic. Id. (quoting California Department of Justice, Crime and Delinquency in California 1994 (1995)). In New York state, 71 percent of those arrested for misdemeanor marijuana charges in 1995 were non–white. Id. (quoting New York State Division of Criminal Justice Services, Characteristics of 1995 Adult Arrestees for Marijuana (1996).

II. The Marijuana, Psilocybin and LSD–25 Statutes Should be Subject to Strict Scrutiny as Infringing the Fundamental Constitutional Rights to Self Treatment of Unique Medical Problems and Most Effective Medical Treatment

Defendant Elisabeth Mykut has found that marijuana and psychedelic substances (including both controlled substances and non–controlled substances) aid her in "feeling" her body, an ability she lost in a serious automobile accident involving concussion and prolonged oxygen deprivation to the brain.

Elisabeth Mykut has found that self–administration of marijuana aids in controlling the spasms of her muscles, muscle tremors and in treatment of her incapacitating headaches and nausea, increases her appetite which is impaired due to loss of sensation, and is often superior to or a valuable adjunct to doctor–prescribed medications. The medicinal benefits of marijuana experienced by Ms. Mykut are well documented in the medical literature. Control of muscle spasms and tremor, relief from migraine headache, relief from nausea and stimulation of appetite are currently recognized as therapeutic benefits of marijuana (see below). In addition, Ms. Mykut has found that marijuana and tryptamine derivatives, such as psilocybin and LSD–25 are the only medications that can entirely control her incapacitating headaches. Lysergic acid derivatives (also referred to as ergot derivatives), including some prescription lysergic acid derivatives that are hallucinogenic in high doses, have long been utilized as a primary medication for migraine headaches. The ability of psilocybin and other psychedelic plants, mushrooms and compounds to react with serotonin receptors and thereby control migraine has recently been recognized. Ethan B. Russo, Rustern Medora, Keith Parker & Charles Thompson, Schedule 1 Research Protocol: An Investigation of Psychedelic Plants and Compounds for Activity in Serotonin Receptor Assays for Headache Treatment and Prophylaxis, MAPS Bulletin, Winter 1996-97, at 4. The use of such psychedelic plants and extracts by native healers to control headaches goes back many centuries. Id.; Richard Schultes and Albert Hofmann, Plants of the Gods (1979). In addition, "[c]annabis, or marijuana, has been used for centuries for both symptomatic and prophylactic treatment of migraine." Ethan Russo, Jeannine Meke, Laura Taylor Painter, Stuart Hall & Brian Steele, Cannabis in Acute Migraine Treatment Project, MAPS Bulletin, Summer 1997, at 16. It is Ms. Mykut’s contention that she has a fundamental right under the United States Constitution to make rational choices regarding her medical care, and that the state may not limit her choices for effective medical treatment without demonstrating a compelling need and employing a means that is narrowly tailored to accomplish its objective.

The State of Colorado, in failing to offer any provision for the medical use of marijuana and Schedule I controlled substances by individuals such as the Defendant, unduly infringes upon her basic rights to choice in medical decision–making and self–preservation. For these reasons, the application of Colorado’s controlled substances statutes to the Defendant’s personal medical use violates both the Constitutions of the United States and of the State of Colorado and these charges should be dismissed. Since the charges depend upon the underlying offenses of unlawful possession of marijuana, LSD–25 and psilocybin, these charges must also be dismissed.

Defendant Elisabeth C. Mykut suffers unique and serious medical problems as the result of a March 1996 automobile accident in which she suffered a severe concussion and the emergency medical team arrived to find her "dead" in that she had no heartbeat or pulse. Over 8 minutes later (as timed by the EMT stopwatch), Defendant was finally revived. Defendant was transported to the hospital, where her heart stopped and she was revived twice more. Defendant’s Father and Daughter were advised that Defendant was suffering from excessive pressure on the brain as a result of the concussion, and both were aware that Defendant was likely to suffer from a permanent vegetative state as a result of the prolonged absence of oxygen to her brain. Permission for the neurosurgeon to operate to relieve the pressure was therefore not granted. The next day a "medical miracle" occurred and Defendant regained consciousness.

Defendant awoke basically unable to feel her body except for totally incapacitating headaches often accompanied by nausea and vomiting. Defendant has also suffered spasticity and tremor of the muscles. Defendant also suffered from various cognitive and memory disabilities. These conditions have proved resistant to conventional treatments. Defendant was unable to resume her career building high–quality acoustic guitars as her medical practitioners will not allow her to work with power tools or machinery, and Defendant remains medically unemployed and receives DSSI benefits. Although her injuries may not be as apparent to the eye as those victims of automobile accidents who suffer extensive physical damage, the injury to her brain and neurological functioning have left her with problems as serious and frustrating as any physical problems, and Defendant faces a prolonged and uncertain rehabilitation.

The injuries to the brain from prolonged oxygen deprivation and concussion has proven extremely frustrating in regard to cognitive functioning, as the attention span, ability to comprehend complex situations and ramifications of actions, judgment and memory have all been affected. The inability to "feel" her body has left Ms. Mykut not only detached from the physical world (she states "her body feels like wood"), but with an extreme detachment from her emotions (her inability to feel her body has been accompanied by an impairment of the ability to feel emotions).

Defendant has found Cannabis and other psychoactive substances to be useful in increasing her sensory awareness and sensitivity, allowing her to "feel" her body. Defendant’s injury to her brain is in its own way every bit as serious as recognized maladies and treatments for which marijuana has proven effective, including epilepsy, muscular dystrophy, chemotherapy (see below) and glaucoma. Defendant found Cannabis to be effective treatment for her condition, including spasticity and tremor of the muscles, debilitating headache, nausea and vomiting, and weight loss and loss of taste sensation, all conditions for which Cannabis has proven effective in maladies ranging from muscular dystrophy to AIDS wasting syndrome to nausea and loss of appetite from chemotherapy. Cannabinoids as Therapeutic Agents (Raphael Mechoulam ed., 1986); Robert C. Randall, Muscle Spasm, Pain & Marijuana Therapy (1990); Petro D., Marihuana as a therapeutic agent for muscle spasm or spasticity, Psychosomatics 21, 1980 at 81-85; Lester Grinspoon and James B. Bakalar, Marihuana, The Forbidden Medicine (1993); Cannabinoids for Nausea, Lancet, Jan 31, 1981; Harris, L., Analgesic and Antitumor Potential of the Cannabinoids, The Therapeutic Potential of Marihuana 299-305 (Cohen et al. eds., 1976); Marijuana Medical Papers (Tod Mikuriya, ed., 1972); Lester Grinspoon and James B. Bakalar, Marihuana: An Old Medicine of the Future (last modified 08/04/97) <http://www.rxmarihuana.com/old_medicine.com>.

MEDICINAL USES OF MARIJUANA

Ms. Mykut’s claim to a medical use for marijuana is supported by centuries of documented use, volumes of recent scientific research, and legislative action in at least 36 states. The extensive documentation of the therapeutic use of controlled substances, particularly marijuana, demonstrates the irrationality of the State of Colorado in failing to enact provisions allowing for its controlled use by individuals with a particularized medical need.

Marijuana has been used as medicine for thousands of years. Doctors in the United States officially recognized its therapeutic value as early as the 1840s, including it in the United States Pharmacopoeia from 1850 through 1942. The United States government accepted and even encouraged the medicinal uses of marijuana. USDA Farmer’s Bulletin No. 663 (in print from 1915–1935) provided instructions on growing Cannabis sativa for medical/pharmaceutical purposes.

Marijuana is one of the safest therapeutically active substances known; no one has ever died from an overdose. It has a wide variety of therapeutic applications: relief from nausea and increase of appetite; reduction of intraocular (within–the–eye) pressure; reduction of muscle spasms; and relief from mild to moderate chronic pain and acute headache pain. In 1982, the National Academy of Sciences reported:

National Research Council of the National Academy of Sciences, An Analysis of Marijuana Policy (1983).

Marijuana is frequently beneficial in the treatment of the following conditions: AIDS, glaucoma (by reducing intraocular pressure, alleviating the pain, and slowing--sometimes even stopping--the progress of the disease); cancer (by stimulating the appetite and alleviating nausea and vomiting, common side effects of chemotherapy treatment); Multiple Sclerosis (by limiting the muscle pain and spasticity caused by the disease, as well as relieving tremor and unsteadiness of gait); epilepsy (by preventing seizures in some patients and alleviating the adverse side effects of antiepileptic medications); and by alleviating the chronic, often debilitating pain caused by myriad disorders and injuries. Each of these applications has been deemed legitimate by at least one court, legislature, and/or government agency in the United States.

In 1995 the American Public Health Association (APHA), the oldest and largest organization of public health professionals with more than 50,000 members nationwide, adopted the following resolution, reprinted here in its entirety (footnotes are contained in Appendix 1):

"9513: Access to Therapeutic Marijuana/Cannabis

The American Public Health Association,

Being aware that cannabis/marijuana has been used medicinally for centuries and that cannabis products were widely prescribed by physicians in the United States until 1937 [1,2]; and

Being aware that "marijuana" prohibition began with the Marihuana Tax Act of 1937 under false claims despite disagreeing testimony from the AMA’s representative [3,4]; and

Being further aware that the Controlled Substances Act of 1970 completely prohibited all medicinal use of marijuana by placing it in the most restrictive category of Schedule I, whereby drugs must meet three criteria for placement in this category: 1) have no therapeutic value, 2) are not safe for medical use, and 3) have a high abuse potential [5]; and

Being cognizant that the Drug Enforcement Administration’s own administrative law judge ruled in 1988 that marijuana must be removed from Schedule I and made available for physicians to prescribe [6-8]; and

Knowing that 36 states have passed legislation recognizing marijuana’s therapeutic value [9,10]; and

Also knowing that the only available access to legal marijuana which was through the Food and Drug Administration’s Investigational New Drug Program has been closed by the Secretary of Health and Human Services since 1992 [11]; and

Understanding that while synthetic Tetrahydrocannabinol (THC) is available in pill form, it is only one of approximately 60 cannabinoids which may have medicinal value individually or in some combination; and

Understanding that marijuana has an extremely wide acute margin of safety for use under medical supervision and cannot cause lethal reactions [6,32,34]; and

Understanding that marijuana has been reported to be effective in: a) reducing intraocular pressure in glaucoma [12,13]; b) reducing nausea and vomiting associated with chemotherapy [14-16]; c) stimulating the appetite for patients living with AIDS (acquired immunodeficiency syndrome) and suffering from the wasting syndrome [17-19]; d) controlling spasticity associated with spinal cord injury and multiple sclerosis [20-25]; e) decreasing the suffering from chronic pain [26-28]; and f) controlling seizures associated with seizure disorders [29-31]; and

Understanding that marijuana seems to work differently from many conventional medications for the above problems, making it a possible option for persons resistant to the conventional medications [32,33]; and

Being concerned that desperate patients and their families are choosing to break the law to obtain this medicine when conventional medicines or treatments have not been effective for them or are too toxic [34,35]; and

Realizing that this places ill persons at risk for criminal charges and at risk for obtaining contaminated medicine because of the lack of quality control; and

Realizing that thousands of patients not helped by conventional medications and treatments may find relief from their suffering with the use of marijuana if their primary care providers were able to prescribe this medicine; and

Concluding that cannabis/marijuana was wrongfully placed in Schedule I of the Controlled Substances Act depriving patients of its therapeutic potential; and

Recognizing that APHA adopted a resolution (7014) on Marijuana and the Law which urged federal and state drug laws to exclude marijuana from classification as a narcotic drug [36]; and

Concluding that greater harm is caused by the legal consequences of its prohibition than possible risks of medicinal use; therefore the APHA:

1. Encourages research of the therapeutic properties of various cannabinoids and combinations of cannabinoids;

2. Encourages research on alternative methods of administration to decrease the harmful effects related to smoking;

3. Urges the Administration and Congress to move expeditiously to make cannabis available as a legal medicine where shown to be safe and effective and to immediately allow access to therapeutic cannabis through the Investigational New Drug Program." Am. J. Public Health 441–442 (1996).

A number of scientific studies over the last fifty years confirm historical observations of the therapeutic benefits of marijuana. As was reported in the Journal of the American Medical Association, between 1840 and 1900, European and American medical journals published more than 100 articles on the therapeutic uses of Cannabis indica. Grinspoon and Bakalar, Marijuana as Medicine, JAMA 1875 (1995).

In 1972, a petition was submitted to the Bureau of Narcotics and Dangerous Drugs--now the Drug Enforcement Administration (DEA)--to reschedule marijuana as a prescribable medicine. After 16 years of court battles, the DEA’s Chief Administrative Law Judge, Francis L. Young, ruled: "Marijuana, in its natural form, is one of the safest therapeutically active substances known." Young, J., Opinion And Recommended Ruling, Findings Of Fact, Conclusion Of Law And Decision Of Administrative Law Judge In The Matter Of Marijuana Rescheduling Petition, Docket No. 86–22, U.S. Department of Justice, Drug Enforcement Administration 68 (1988)

In 1975, Robert Randall, who suffers from glaucoma, was arrested for cultivating his own marijuana. He won his case by using the "medical necessity defense," and ultimately forced the government to find a way to provide him with his medicine. As a result, the Investigational New Drug (IND) compassionate access program was established, enabling qualified patients to receive marijuana from the government. In 1992, in response to a flood of new applications from AIDS patients, the Bush administration closed the program to all new applicants. It remains in operation today for only the eight surviving recipients approved prior to 1992.

Unlike the citizens in the 36 states which have recognized the therapeutic benefits of marijuana, and unlike the eight people with special access to marijuana grown by the federal government, citizens of Colorado currently suffering from any of the conditions mentioned above, for whom the legal medical options have proven unsafe or ineffective, have two options: continue to suffer from the ailment itself; or illegally obtain marijuana--and risk imprisonment. This untenable position results in a violation of the constitutionally protected right to individual medical decision–making.

A. THE UNITED STATES CONSTITUTION GUARANTEES AN INDIVIDUAL THE RIGHT TO MAKE RATIONAL CHOICES CONCERNING MEDICAL CARE AND TREATMENT

The Fourteenth Amendment provides that the states may not "deprive any person of life, liberty, or property, without due process of law." In Planned Parenthood v. Casey, 122 S.Ct. 2791 (1992) (aff’g Roe v. Wade, 410 U.S. 113 (1973)) (hereinafter Casey), the Supreme Court reaffirmed a woman’s right to choose to have an abortion before viability and to obtain it without undue interference from the State, finding the State did not have a sufficiently strong interest to justify the imposition of a substantial obstacle to the right of a woman to choose. The Court based its determination on an analysis of the "liberty" protections of the Due Process Clause of the Fourteenth Amendment, finding that the Constitution promised "a realm of liberty which the government may not enter." Id. at 2806. The Court noted that "[i]t is settled now, as it was when the Court heard arguments in Roe v. Wade, that the Constitution places limits on a State’s right to interfere with a person’s most basic decisions about family and parenthood, as well as bodily integrity." Id.

The protection of basic personal decisions from state intrusion limits the State’s power to interfere with the doctor–patient relationship and the joint selection and implementation of appropriate treatment. In Casey, the Court found that "[t]hese matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life." Id. at 2807. Casey recognizes that the State’s ability to insist that an individual endure suffering is quite limited. Id. Casey, as Roe v. Wade before it, presents an important analysis of the extent of the protection of liberty provided by the Constitution.

A similar analysis is found in Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261 (1990) (hereinafter Cruzan), in which the Supreme Court acknowledged that competent persons have the constitutional right to direct the removal of life–sustaining medical treatment and thus hasten death. Cruzan addressed the issue of the level of evidence Missouri could require as to the wishes of a competent person that life–sustaining treatment be withdrawn. The Court made it clear that a state’s interest in this area is in ensuring a voluntary decision, not in interfering with the decision. Cruzan noted "the recognition of a general liberty interest in refusing medical treatment." Id. at 278.

An aspect of the liberty interest is the right to personal privacy, or a guarantee of certain areas or zones of privacy. Carey v. Population Servs. Int’l, 431 U.S. 678, 684 (1977). This privacy right includes "the interest in independence in making certain kinds of important decisions." Whalen v. Roe, 429 U.S. 599–600 (1977).

In Bowers v. Hardwick, 478 U.S. 186 (1986), while declining to hold that a state could not limit consensual sexual acts between adults, the Court did find that a liberty interest should be judicially recognized if it encompasses "fundamental liberties that are implicit in the conception of ordered liberty" or "liberties that are deeply rooted in this Nation’s history and tradition." In a similar vein, the Court has stated that "this Nation’s history and tradition" help to define the content of substantive due process. Moore v. East Cleveland, 431 U.S. 494, 503 (1977).

Privacy in medical decision–making has a deeply rooted history. In the late nineteenth century, the Court wrote: "No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others unless by clear and unquestioned authority of law." Union Pac. R.R. Co. v. Botsford, 141 U.S. 250 (1891). In 1914, Judge Cardozo wrote: "[E]very person of adult years and sound mind has a right to determine what to do with his own body." Schloendorff v. Soc’y of New York Hospitals, 113 U.S. 129 (1914).

These decisions all flowed into the analysis of the right to privacy contained in Griswold v. Connecticut, 381 U.S. 479 (1965), where the Court held that the First, Third, Fourth, Fifth, Ninth and Fourteenth Amendments created a "penumbra" that included an unenumerated right to privacy and extended that right to privacy to prohibit regulation of the sale of birth control products by the states. The majority’s treatment implies that the Ninth Amendment can extend rights specifically mentioned elsewhere in the Constitution, but cannot by itself be the source of any constitutional rights. Justice Goldberg’s concurring opinion discusses the Ninth Amendment at length and expresses the fundamental principle that "[t]he language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments." In support of that general principle, Justice Goldberg quoted statements by Madison and Justice Story, to invoke the construction principle that "real effect shall be given to all the words" in the Constitution. The majority made it clear that a "governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." Id. at 485 (quoting NAACP v. Alabama, 377 U.S. 288, 307 (1964)).

One constitutional scholar reasons persuasively that the right to privacy should be found to apply where the challenged law would subject the person claiming the right to "totalitarian burdens" in his or her daily life. Jed Rubenfeld, The Right to Privacy, 102 Harv. L. Rev. 737, 788 (1989). Elisabeth Mykut faces such a totalitarian burden in ordering her daily life. She can choose to attempt to deal with her closed head injury through traditional medications, which have proven ineffective over the past 15 months. Or she can choose medication that has proven to be effective but is prohibited by the State. It is just such a choice that should be recognized as infringing her liberty interest to good health and competent medical decision–making.

Once a determination is made that a liberty interest is at stake, the analysis shifts to whether the statutory regulation places an "undue burden" on the personal right. See Casey, 122 S.Ct. at 2830 (concluding that a statute regulating abortion was invalid on its face because "in a large fraction of the cases" in which the statute would operate it would "operate as a substantial obstacle to a woman’s choice to undergo an abortion" and therefore placed an "undue burden"). There is no question that a total ban on the use of marijuana, including use for therapeutic purposes, is an undue burden on the constitutional right to medical decision making. Consequently, Colorado marijuana and Schedule I statutes cannot be constitutionally applied to Ms. Mykut’s personal use of controlled substances to control her medical problems and aid in her recovery.

B. THE COLORADO STATUTORY PROHIBITIONS OF CONTROLLED SUBSTANCES VIOLATES DUE PROCESS AND EQUAL PROTECTION BY FAILING TO PROVIDE FOR MEDICAL USE

Under Colorado law, few restrictions are placed on the right of a physician to prescribe medications for his or her patient. A physician can prescribe opium, morphine, amphetamines, phencyclidine (PCP or "angel dust"), cocaine and Dronabinol (encapsulated pure THC in sesame oil). However, because of its classification, the Defendant could not have obtained a prescription from her physician for marijuana, LSD–25 or psilocybin mushrooms, even though it could alleviate the physical and emotional pain, discomfort and injury to her health, occupation and livelihood that Ms. Mykut endures as a result of her injuries. In this way, Ms. Mykut was treated differently from all other individuals in need of therapeutic intervention as a result of disability or illness. Thus, Colorado treats individuals who are similarly situated (in need of therapeutic intervention) differently (some may obtain the therapeutic intervention they need--those who require marijuana and Schedule I controlled substances as a therapeutic intervention are not able to obtain relief). This differing treatment is based on no rational distinction between marijuana, Schedule I controlled substances with a history of medicinal use, and other medications that may be obtained either with a prescription, over the counter or that exist in nature. "Sacred mushrooms" (species of Psilocybe) and Cannabis have been used medicinally for hundreds or thousands of years in certain cultures. Schultes et al., Plants of the Gods (1979); Richard Schultes & Albert Hofmann, Botany and Chemistry of the Hallucinogens (1980). LSD–25 was used pharmaceutically and in psychotherapy from the 1940’s to the early 1960’s prior to the criminalization in the 1960’s. Stanislav Grof, LSD Psychotherapy (2nd ed. 1994); Psychedelics (Aaronson et al. eds., 1970); Torsten Passie, Psycholytic and Psychedelic Therapy 1931-1995; A complete International Bibliography (1997); Lester Grinspoon and James B. Bakalar, Psychedelic Drugs Reconsidered (1997); Gary Fisher, Treatment of Childhood Schizophrenia Utilizing LSD and Psilocybin, MAPS Bulletin, Summer 1997, at 18. "The right of the doctor to advise his patients according to his best lights seems so obviously within First Amendment rights as to need no extended discussion." Poe v. Ullman, 367 U.S. 497, 513, 81 S.Ct. 1752, 1761 (1961) (Douglas, J. dissenting from holding that Connecticut statutes prohibiting the use of contraceptives presented no justiciable constitutional question).

According to the Fourteenth Amendment, due process (how the State treats Ms. Mykut) and the equal protection of the law (how Ms. Mykut is treated differently from others) cannot be denied by any State to any person within its jurisdiction. The constitutional right to equal protection guarantees that the states treat in a similar manner all individuals similarly situated. See 3 Rounda & Nowak, Treatise on Constitutional Law, § 18.2, at 7 (2d ed. 1992).

III. Under any Analysis or "Level of Scrutiny," the Defendant Should Prevail

In reality, simply labeling the interest (thereby determining the analysis or level of scrutiny) has proven dispositive because strict scrutiny is virtually impossible to pass while rational basis is virtually impossible to fail. Francis S. Chlapowski, The Constitutional Protection of Informational Privacy, B.U. L. Rev. 133, 145 (1991) ("[W]hen the question of whether a right is fundamental is raised, the preliminary finding of a ‘fundamental’ interest is usually outcome–determinative."). See Russell W. Galloway, Jr., Basic Substantive Due Process Analysis, 26 U.S.F. L. Rev. 62, 645 (1992) (rational basis "is so minimal" that "[t]he outcome is a foregone conclusion. . . . The test involves ‘minimal scrutiny in theory and virtually none in fact.’") (citation omitted); see also Laurence H. Tribe, American Constitutional Law 343 (2d ed. 1988) (referring to rational basis as imposing "relatively toothless limits" on the state). Some cases indicate a rational continuum test should be utilized rather than a two– or three–tiered level of scrutiny approach, with liberty interests balanced against the State’s interest. See Youngberg v. Romeo, 457 U.S. 307, 321, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) ("Accordingly, whether respondent’s constitutional rights have been violated must be determined by balancing his liberty interests against the relevant state interests."); Cruzan, 497 U.S. at 278–9, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990) (an individual’s "liberty interests" must be balanced against the state’s interest in regulation). Planned Parenthood v. Casey, 505 U.S. 833, 876, 112 S. Ct. 2791 (1992) held the balancing approach was superior to the two–tiered approach because the "liberty" protected by the Fourteenth Amendment must be viewed on a continuum which balances the citizen’s need for freedom of action against the state’s justification for intervention.

As was noted above, Colorado’s marijuana laws should be subject to strict scrutiny because of the discriminatory intent and disparate impact on minorities, and the marijuana, psilocybin and LSD–25 laws should be subject to strict scrutiny as burdening the fundamental rights discussed above. Surely the liberty interests of freedom from laws that are racist in intent and impact, the freedom from needless suffering, the right to individual autonomy, the right to bodily integrity, the right to physician treatment and medical assistance (including the right to self medicate and the right to have physicians instead of legislatures decide on appropriate treatment), and the freedom from arbitrary, privacy–invading restraint are the principles and fundamental rights applicable here. Offensive, in the extreme, is the proposition that the State may restrict ingestion of a substances found by numerous patients and licensed physicians in numerous studies to be medically advisable to comfort patients. Also offensive in the extreme is the proposition that she has a fundamental right to control her womb through the use of abortion, but no fundamental right to control her brain, sensations and bodily perception through the use of controlled substances.

Where government action burdens the fundamental rights of some more than others, the disparity is subject to strict scrutiny. See, e.g. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985); Loving v. Virginia, 388 U.S. 1 (1967); Tribe, American Constitutional Law 1451–54, 1464 (ed. 1988). In Skinner v. Oklahoma, 316 U.S. 535 (1942), for example, the Court recognized that personal autonomy in reproductive matters is a fundamental right and that a law requiring sterilization of all felons except white collar felons was subject to strict scrutiny. Skinner v. Oklahoma establishes that classifications that unequally distribute access to fundamental choices are presumptively invalid under the Equal Protection Clause. In Eisenstadt v. Baird, 405 U.S. 438 (1972), the Court examined a state law that prohibited the sale of contraceptives to single persons, but granted access for married persons. The Court found that "[i]n each case, the evil, as perceived by the State, would be identical, and the underinclusion would be invidious." Id. at 454. Because a fundamental right is involved, the statute that limits this right can be justified only by a "compelling state interest," Shapiro v. Thompson, 394 U.S. 618, 634 (1969) and it must be narrowly drawn to serve only that interest. Aptheker v. Secretary of State, 378 U.S. 500, 508 (1964).

Defendant Mykut is denied the privilege of alleviating her suffering by the use of drugs she has found to be therapeutic, while others are granted the easing their suffering with access to far more harmful and addictive drugs, such as morphine, cocaine, amphetamines, barbiturates and opium. Other citizens are granted immunity from arrest for possession of therapeutic but potentially harmful drugs by virtue of prescriptions, while plaintiff is denied the opportunity to even obtain a prescription for the controlled substances at issue here. What is the "compelling state interest" in preventing Elisabeth Mykut from relieving her incapacitating nauseating headaches, relieving her spasticity and tremor? What is the "compelling state interest" in preventing Elisabeth Mykut from ingesting any substance that helps her feel her body and relieves the emotional and mental pain resulting from her accident? What is the "necessary and compelling state interest" in absolutely prohibiting marijuana and Schedule I controlled substances while allowing prescription of narcotics and other addictive and dangerous drugs? Why is it not "necessary" to place cocaine, morphine, barbiturates, amphetamines, PCP and opium in Schedule I?

Even under the rational continuum test, Defendant Elisabeth Mykut should prevail because her need is personal and great, whereas the State’s interest to prevent the conduct is small if not pretextual. Defendant wonders how many minutes of the inability to feel anything except incapacitating headaches and agony the Legislature would endure before seeing the light. Words are insufficient to convey the needless suffering which the merciless State has imposed; and still the State seeks the decades long mandatory minimum imprisonment which Defendant Mykut faces.

Even if it were determined that the discriminatory intent and disparate impact of controlled substance laws did not deserve strict scrutiny and Defendant’s interest in the therapeutic use of marijuana and Schedule I controlled substances was not a fundamental liberty interest, the distinctions drawn by a challenged statute must bear some "rational relationship" to a legitimate state interest and will be set aside as violative of the Equal Protection Clause if based on reasons unrelated to the pursuit of that goal. What is the "legitimate" state interest in denying Defendant the right to ease her suffering?

Although "the judiciary will 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 proceed along suspect lines. . ." New Orleans v. Duke, 427 U.S. 297 (1976), a classification will not be upheld if the "varying treatment of different groups of 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." Vance v. Bradley, 440 U.S. 93 (1979). A law may be challenged for including within the prohibited class an item that does not rationally belong with the other members of the class. 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 class, is so different from others of the class as to fall outside the reason for the prohibition.

The classification must be "purely arbitrary" or "arbitrary and capricious" to overcome the presumption of rationality under the rational relationship level of scrutiny. As stated by Judge Young (the Chief Administrative Law Judge for the DEA) after taking hundreds of hours of testimony, reviewing thousands of pages of documents, and issuing a 68–page report:

Young, J., Opinion And Recommended Ruling, Findings Of Fact, Conclusion Of Law And Decision Of Administrative Law Judge In The Matter Of Marijuana Rescheduling Petition, Docket No. 86–22, U.S. Department of Justice, Drug Enforcement Administration 68 (1988). Judge Young recommended unequivocally that marijuana be rescheduled as a Schedule II therapeutic drug. Id. In 1989 the head of the DEA rejected Judge Young’s recommendation and refused to reclassify marijuana.

In 1972, a blue–ribbon panel of experts appointed by President Richard Nixon and led by former Pennsylvania Governor Raymond Shafer concluded that marijuana prohibition posed significantly greater harm to the user than the use of marijuana itself. The National Commission on Marijuana and Drug Abuse recommended that state and federal laws be changed to remove criminal penalties for possession of marihuana for personal use and for the casual distribution of small amounts of marijuana. National Commission on Marihuana and Drug Abuse, Marihuana: A Signal of Misunderstanding. Washington DC: U.S. Government Printing Office, 1972.

This year, research findings from a comprehensive, long term study (involving more than 65,000 men and women an 10 years of mortality statistics) concluded no link existed between regular marijuana smoking and mortality and emphasized that marijuana prohibition posed the only significant health hazard to the user. The report advocated that "medical guidelines regarding [marijuana’s] prudent use . . . be established, akin to the common–sense guidelines that apply to alcohol use." Stephen Sidney et al., Marijuana Use and Mortality. Am. J. Pub. Health 5 (April 1997).

Our citizens have a liberty interest in avoiding unnecessary pain and suffering. However, for citizens for whom marijuana and other controlled substances are an effective therapeutic intervention, this liberty interest is infringed and such individuals must face pain and suffering and loss of dignity and privacy. The state’s interest in such cases pales by comparison. Although the state has a legitimate interest in preventing the abuse of psychoactive substances, that right diminishes as it is applied to a rational and competent mature adult with medical needs.

The Colorado Legislature is capable of enacting regulations that serve the state’s interest in preventing drug abuse, while protecting the fundamental liberties of competent mature adults who require therapeutic treatment with marijuana or Schedule I controlled substances. The Legislature has done so in the regulation of other psychoactive and narcotic substances. However, as the law now stands, the law prevents individuals such as Ms. Mykut and her physicians from making informed and competent medical decisions to treat their disabilities or illness with an effective agent. Because the legislature can draft laws that would protect the Defendant’s rights, the existing legislation is not narrowly tailored and cannot be applied to the Defendant in such a fashion as to deny the exercise of her fundamental right to self preservation and legitimate medical decision making.

While the State may have some limited interest in the general prohibition of controlled substances, there is no legitimate basis to prohibit their therapeutic use. The fact that many substances which have clear potential for abuse can be prescribed or even purchased over the counter (including those substances responsible for the most deaths and ill effects, tobacco and alcohol) indicates that concerns about misuse can be dealt with in a less restrictive manner than the total prohibition that exists in Colorado. Thus, no rational reason exists for treating marijuana and Schedule I controlled substances with therapeutic value differently than other substances with therapeutic value.

As Professors Bonnie and Whitebread, II have argued with respect to marijuana:

Richard J. Bonnie & Charles H. Whitebread, II, The Forbidden Fruit and the Tree of Knowledge: An Inquiry into the Legal History of American Marijuana Prohibition, Virginia L. Rev. 971, 1154–55 (1970).

For these reasons, the current charges as applied against the Defendant violate her right to due process and equal protection of the law.

Defendant would further argue that regardless of medical condition, somewhere within the totality of the Constitution and the Bill of Rights is a "fundamental right" to control those very things that marijuana and other psychoactive drugs affect, such as thought, perceptions, state of consciousness, body image, mood and emotional state, and sensory awareness and sensitivity. Defendant believes that the right to control one’s own brain, thoughts and perceptions is so fundamental as to render all other rights meaningless if one cannot control one’s own thoughts and perceptions.

IV. The Controlled Substance Statutes as Applied Should be Subject to Strict Scrutiny as Infringing Fundamental Rights

In his speech to the Colorado Bar Association’s 92nd Annual Convention (September 14, 1990), Eric Sterling persuasively argued that the Bill of Rights is becoming a casualty of the "war on drugs." Eric E. Sterling, Is the Bill of Rights a Casualty of the War on Drugs (last modified 08/08/95) <http://bong.com/drugs/politics/misc/bill.of.rights.casualty>. Many of Mr. Sterling’s arguments are illustrated by this case and the "routine" procedures employed.

For example, after waiting six days to apply for a search warrant, the police officer–affiant executed the search warrant 20 minutes before the physical copy arrived at the scene. After the door was broken down, almost flattening Defendant Mykut, who was rushing to the door and shouting "don’t break the door down", Elisabeth Mykut, a closed head injury victim, dived on her dog in an attempt to prevent injury to him, and was twice pushed by her head off the dog. Elisabeth Mykut was then handcuffed and later questioned without ever having been read her Miranda rights, with a clear implication that her house would be destroyed during the search if she did not cooperate. Evidence was procured based on the response to this questioning; the evidence was not suppressed. Considering the coercive police conduct, the mental disabilities of defendant, the circumstances of the interrogation and the conduct of the police who stated "we don’t have to read you your Miranda rights," arguably her rights under the 4th, 5th, 6th and 14th Amendments to the U.S. Constitution have been violated, as well as her rights under the Colorado Constitution Article II, sections 7 and 25.

In addition, Defendant believes her Constitutional right to due process and her Constitutional right to challenge the veracity and truthfulness of the statements in the probable cause affidavit for search warrant and the good faith of the officers executing the search have been denied during the prosecution of the charges in this case, despite her affidavit of misidentification and offer of testimony to demonstrate the misidentification found in the police reports and probable cause affidavits and testimony by the police officer–affiant at Preliminary Hearing, and despite clear indications from the tape of the electronic surveillance that the confidential informant was not engaged in a conversation with Ms. Mykut.

Colorado Courts, rather than prohibiting veracity challenges, have repeatedly recognized the appropriateness of such inquiries, at least where the good faith of the police officer–affiant was explicitly or tacitly at issue. People v. Dailey, 639 P.2d 1068 (Colo. 1982). "If the error resulted from perjury or reckless disregard of the truth on the part of the affiant–officer, the Fourth Amendment of the United States Constitution requires that the incorrect statements be stricken." (emphasis added) (citing Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)) Id. at 1075. The Colorado Constitution, Article II, section 7 has been interpreted as providing an individual with even greater protections than those guaranteed by the Fourth Amendment to the United States Constitution. People v. Deitchman, 695 P.2d 1146, 1153 (1985) (per curiam) (Erickson, J., concurring). Furthermore, Colorado courts can, if necessary, invoke the exclusionary rule to deter police officers from violating Colorado’s constitutional guarantees, even though fourth amendment precedent does not require suppression. Id. at 1154. Again, Defendant would argue her 4th Amendment rights under the U.S. Constitution and her rights under the Colorado Constitution Article II, section 7 have been violated.

Mr. Sterling also argues that the U.S. Constitution second amendment rights are violated in a case like this where simple gun possession within a house (which gun was not used in any manner) is the basis of criminal charges. Because she exercised her rights under the second amendment and under the Colorado Constitution Article II, section 13 ("The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question. . . ."), Elisabeth Mykut is currently facing a 24–year mandatory minimum under C.R.S. 18–18–407(1)(f). Mr. Sterling further argues mandatory penalties are used to coerce plea bargains. As Mr. Sterling states, "[v]ery simply, faced with that kind of choice, a guilty pleas is coerced, and the fifth amendment protection against denial of due process of law is lost. Id.

Defendant would simply argue that she was denied her Constitutional right to remain silent, her Constitutional right to counsel, her Constitutional right to due process and her Constitutional right to challenge veracity, to have false statements made in reckless disregard of the truth stricken from the probable cause affidavit, and to demonstrate the lack of "good faith" on the part of the police. Therefore the statutes should be struck down in this case as being unconstitutional as applied.

Elisabeth Mykut has had to suffer the pain and loss of ability and dignity that has resulted from the extremely serious injury she suffered in an automobile accident. She has found that marijuana effectively aids in controlling all of her symptoms, and psilocybin and LSD–25 aid in controlling incapacitating headache and in returning bodily sensation. Colorado has failed to create a process to allow for the therapeutic use of marijuana and Schedule I controlled substances by individuals such as Ms. Mykut. The application of criminal statues regulating controlled substances to Ms. Mykut violate her rights in medical decision making and her right to due process and equal protection of the law. In addition, Colorado’s marijuana laws resulted from a discriminatory intent. For these reasons, the charges against her should be dismissed.

Respectfully submitted this 21st day of August, 1997.

William R. Hyde

Colo. Att. Reg. No. 020854

1833 10th Street

Penrose, CO 81240

(719) 372-6812

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above was served by mail this 21st day of August, 1997, upon: