ON PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF PENNSYLVANIA

PETITION FOR WRIT OF CERTIORARI

Petitioner, JOHN M. GRUBOR, J.D. respectfully requests that a Writ of Certiorari issue to review the Judgment and Order of the Supreme Court of Pennsylvania denying Petitioner's Allocatur Petition for Allowance of Appeal from the Judgment and Order of the Commonwealth Court of Pennsylvania.

OPINIONS BELOW

On November 4, 1993, after a five minute hearing, the Trial Court upheld the suspension of Petitioner's Driver's license for an offense that had nothing to do with the Motor Vehicle Code. The Opinion of the Trial Court is attached to this Petition in the appendix, infra, and labeled as "Exhibit B." The Petitioner filed a timely appeal to the Commonwealth Court of Pennsylvania. The Opinion and Order of the Commonwealth Court are also in the appendix and labeled Exhibits "D" and "E," respectively. The Order of the Supreme Court of Pennsylvania, denying a review of the Commonwealth Court decision, is also attached in the appendix and labeled as "Exhibit F."

The Petitioner filed a timely Allocatur Petition for Allowance of Appeal to the Supreme Court of Pennsylvania, and on July 18, 1995, the Pennsylvania Supreme Court denied Petitioner's Petition. The jurisdiction of this Honorable Supreme Court of the United States to review the final order of a State Supreme Court is vested in Title 28 UNITED STATES CODE Section 1257 and United States Supreme Court Rule 13. Thereby, Petitioner has 90 days from the State Supreme Court's Decision date within which to file a Petition for Certiorari.

There are two Constitutional Provisions involved in the instant case. They are:

"United States Constitution, Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in

the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation," and,

"United States Constitution, Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

There are two statutes involved in the instant case. The Primary Statute is the Pennsylvania State Controlled Substance Act, 35 P.S. section 780-113(m) which mandated a driver's license suspension for any conviction under the State Controlled Substance Act, the verbatim text of which is set forth in the Appendix, and marked as "Exhibit G."

The Secondary Statute involved is of the Pennsylvania State Motor Vehicle Code, 75 Pa.C.S. Section 1553, which excludes the Petitioner from eligibility for the issuance of an "Occupational limited license," the verbatim text of which is set forth in the Appendix, and marked as "Exhibit H."

This Case involves the bona fide medical use of a controlled substance (Cannabis) for a "life or death" medical necessity. In January of 1982, Petitioner had an auto accident in which he received a severe impact injury to his head. Thereafter, Petitioner began having bloody nocturnal epileptic seizures. For almost five years, Petitioner was treated with Dilantin and other prescription drugs by three different Neurologists, but none of the Physicians or prescription drugs were able to stop the Petitioner's bloody seizures. Because of the

nocturnal seizures, Petitioner was in fear of his death for two reasons. The first was the possibility of ending a seizure on his back and thereby suffocating on the "swallowing of the tongue" effect. But he was also fearing death from "drowning in his own blood." On many a morning, Petitioner woke up with blood all over his pillow and sheets. His tongue was severely bitten into on both sides and the taste of blood would last for days. Sometime it would take weeks for the tongue to heal and the pain resulting from the back spasms during the seizures would last for months. In 1986, Petitioner read a book by a Harvard Physician, Dr. Lester Grinspoon, and the medical literature indicated that Cannabis was the only known substance to actually stop epileptic seizures from occurring.

Because Petitioner had "no legal alternative," he began using Cannabis for his life threatening medical necessity in late 1986, and he has had no seizures ever since. In the spring of 1991, Petitioner was charged with the possession of 1/3 ounce the controlled substance Cannabis, and in March of 1992, Petitioner plead guilty to "possession" of Cannabis. The trial court was aware of the Petitioner's claim of a "medical necessity," and a plea bargain of "one year probation with NO other penalty" was agreed to by the parties. Neither during the plea bargain discussions with the Prosecution nor during the Trial Court Colloquy on the guilty plea was there ever any discussion of any "additional penalty" of a driver's license suspension, and the Petitioner was not aware of any "additional penalty." If Petitioner had been aware of an "additional penalty" at the time of the plea, he would not have entered into the plea bargain agreement with the Prosecutor.

In April 1992, when the Pennsylvania Department of Transportation's Bureau of Driver Licensing tried to suspend Petitioner's Driver's License, Petitioner filed a Statutory Appeal and was then scheduled for a de novo hearing on November 4, 1992. Before beginning the hearing, Petitioner was told by the Court "tipstaff" that he would be allowed only FIVE minutes to present his entire defense case to the trial court, and because of that pre-set limitation, Petitioner was not able to call any other witnesses to testify but himself. Petitioner's defense began on page five of the hearing transcript. (See "Exhibit A" for the relevant sections of

the trial transcript.) Although Petitioner had five separate arguments to present, for the convenience of the Trial Court he told the Judge (page 6 of the transcript) that he would "get them in in five minutes." Only three minutes later, (at page 9 of the Transcript) the Judge said to the Petitioner: "Finish up, please." Petitioner's entire defense is contained in pages 5 to 10 of the trial transcript which is attached in the Appendix to this Petition and marked as "Exhibit A."

Petitioner thereafter filed a timely appeal to the Commonwealth Court of Pennsylvania, and on October 28, 1994, the Commonwealth Court rendered an opinion on Petitioner's appeal, hereafter attached in the appendix to this Petition and marked as "Exhibit D." Thereafter, Petitioner filed a timely petition for reconsideration, which was denied. Finally, Petitioner filed an Allocatur Petition for Allowance of Appeal to the Supreme Court of Pennsylvania which was denied on July 18, 1995. This Certiorari Petition now requests a review of that Order.

Under Rule 10 of the U.S. Supreme Court rules, there are stated three main "characters of compelling reasons" which are considered by this Honorable Supreme Court of the United States when considering review on a Writ of Certiorari. Both the second and the third "characters of compelling reasons" are applicable to the instant case, and the third character is twice applicable.

FIRST REASON FOR GRANTING THE WRIT:
STATE vs. STATE CONFLICT.

The second character of "compelling reason" stated in Rule 10 is when:
"A state court of last resort has decided a federal question in a way that conflicts with the decision of another state court of last resort or of a United States Court of appeals;" That is exactly what has occurred in the instant case. Because of some 1989 Federal mandates to the States (updated Code found at Title 23 U.S.C. section 159), all 50 of the United States have been mandated to pass

some kind of "smoke a joint, lose your license" law to keep their share of
Federal Highway funds. The 50 different states have responded in scores of different ways (See Marijuana Policy Project Article at Exhibit K) and over 31 states have "opted-out" by legislative vote, and have decided to forego Federal Highway funds in amounts of up to $100 million dollars a year. (See 1995 California "Smoke a Joint, Lose your License Law" in Appendix as "Exhibit J) This option by the California Legislature creates a great indication of the "peoples' view" of these license suspension regulations' constitutionality or fairness, and the Courts of the States are just as divided.

At the present time, only 18 States have opted to continue to follow this Federal mandate (See MPP Article, Exhibit K) and in the States that have, the States' Supreme Courts have been just as divided when rendering opinions directly opposite to other State Courts. The crux of the matter at issue in the instant case is whether Petitioner's driver's license suspension, as mandated by the Pennsylvania State Crimes Code, is actually a "criminal penalty" or a "collateral civil consequence" from which he is entitled to no constitutional protections. In the case at bar, the highest State Court of Pennsylvania has held the later, thus denying the Petitioner his constitutional rights in the instant driver's license suspension case. See Duffey v. Department of Transportation, Bureau of Driver Licensing, 639 A.2d 1174 (1994). But other State Courts have held that this type of driver's license suspension was a "criminal penalty" and therefore any proceedings must be subjected to all Constitutional rights protections. See the very recent IOWA Supreme Court Decision in WANDA JOY HILLS vs. IOWA DEPARTMENT OF TRANSPORTATION AND MOTOR VEHICLE DIVISION at No. 111/94-453 (Filed July 14, 1995 -- slip opinion not yet published.)

The third "compelling reason" stated in U.S. Supreme Court Rule 10 is when:
"A state court ... has decided an important question of federal law that has not been, but should be, settled by this Court, OR has decided a federal question in a way that conflicts with applicable decisions of this Court." BOTH are true in the case at bar.

SECOND REASON FOR GRANTING THE WRIT:

STATE COURTS DECIDE IMPORTANT QUESTION OF

FEDERAL LAW THAT SHOULD BE SETTLED BY THIS COURT.

Initially, the very important decision of federal law, concerning the "constitutional rights applicability" to "federally mandated driver's license suspensions," has never been considered or decided by this Honorable Supreme Court of the United States. This may well be a 10th Amendment issue in all 50 States that sorely needs to be addressed and decided as quickly as possible. The backlog of criminal cases that this Federal driver's license mandate has created is a major national problem (See MPP article at Exhibit K) and it has all been caused by the Federal Statute at Title 23 U.S.C. Section 159, the constitutionality of which Statute has never been decided by this Honorable Court. However, that does not preclude this Honorable Supreme Court of the United States from taking plenary jurisdiction ab initio.

THIRD REASON FOR GRANTING THE WRIT:
STATE SUPREME COURT DECIDES A QUESTION OF FEDERAL LAW IN A WAY
THAT CONFLICTS WITH APPLICABLE UNITED STATES SUPREME COURT
DECISIONS.

The second half of the U.S. Supreme Court's Rule 10 "third compelling reason criteria" is the most applicable in the instant case, because the Pennsylvania Supreme Court's decisions in Duffey v. Department of Transportation, Bureau of Driver Licensing, 536 Pa. 436, 639 A.2d 1174, cert. denied (pre Kurth Ranch), 513 U.S. ___, 115 S.Ct. 223, 130 L.Ed.2d 149 (1994) and Plowman v. Department of Transportation, Bureau of Driver Licensing, 535 Pa. 314, 635 A.2d 124 (1993) (1994) (which were cited by the Commonwealth Court of Pennsylvania in deciding the instant case -- See opinion in Appendix as Exhibit D) are in DIRECT conflict with the recent United States Supreme Court decisions in United States v. Halper, 490 U.S. 435, 104 L.Ed 2d 487, 109 S.Ct. 1892 (1989) and Montana v. Kurth Ranch, ___ U.S. ___, 114 S.Ct. 1937 (1994).

The recent Pennsylvania Commonwealth Court case of Wylie v Department of Transportation, Bureau of Driver's Licensing, 638 A.2d 433 (Pa. Cmwlth. 1994) points out the major problem in the case at bar, and a reading of that Court's opinion and it's following of the Plowman case, id, points out the gross conflict between the Pennsylvania Case Law in Plowman and this Honorable United States Supreme Court's controlling Federal Law decision rendered in U.S. v  Halper, id. In Wylie, id, at pg. 435, when considering the "primary statute at issue" in the instant case, the Pennsylvania Commonwealth Court Held:

"The due process constitutional challenge raised by Wylie is controlled by

our Supreme Court's recent decision in Plowman, id.... -- the Supreme

Court held that the DETERRENCE of illegal drug use was a legitimate

state interest, and Section 13(m) was reasonably related to that end."

(Emphasis supplied)

From this we get the purpose of the "primary statute at issue" in the instant case, which was determined to be "deterrence," and indeed, the Supreme Court of Pennsylvania states in the Plowman, id, Opinion at pg. 127:

"the maximum PENALTY for the criminal violation of possession of

marijuana is 30 days of imprisonment and/or a $500 fine. It is doubtful

that such a PENALTY would be imposed for a first-time offense. In fact,

a first offense may merit nothing more than a small fine. As such, the

prospect of losing one's driver's license may DETER a potential drug user

from committing that first drug offense. At least, that potential user may

consider the loss of his/her license and it's effect on employment..."

(emphasis supplied)

From this Plowman holding, it seems clear that the Pennsylvania Supreme Court considers the primary statute at issue herein, 13(m), to have a legitimate state interest for the purpose of DETERRING the illegal use of drugs in Pennsylvania. But is the Pennsylvania Plowman case "good law" when tested by this Honorable Court's decision in Halper, id? The answer is a resounding NO! According to this Honorable United States Supreme Court, if the sanction is characterized as a "deterrent," it must be considered a double-jeopardy violation of due-process.

In Halper v. United States, at 490 US 435, 448 (1989), this Honorable Supreme Court of the United States held that:

"... the determination whether a given civil sanction constitutes

punishment in the relevant sense requires a particularized assessment of

the penalty imposed and the purposes that the penalty may fairly be said

to serve. Simply put, a civil as well as a criminal sanction constitutes

punishment when the sanction applied in the individual case serves

the goals of punishment."

And finally, in Halper, id, at pgs. 448-449, this Honorable Supreme Court states:

"a defendant who has already been punished in a criminal prosecution

may not be subjected to an additional civil sanction to the extent that the

second sanction may not be fairly characterized as remedial, but only as a

DETERRENT or retribution." (emphasis supplied)

The Pennsylvania Court in Plowman held that the purpose of the "primary statute at issue" in the instant case was "deterrence," and this Honorable United States Supreme Court held in Halper that if the purpose or characterization of a sanction was a "deterrent," that the defendant may not be subjected to the sanction. The Pennsylvania Plowman case, by which the decision in the instant case was supported, is in DIRECT conflict with this Honorable Court's ruling in the Halper, id, and thereby creates some very valid grounds for the granting of the Writ of Certiorari to the Petitioner in the case at bar.

In the lower court, Petitioner argued that his 90-day suspension in this case was a violation of due-process, because it took away his constitutional protections against equal protection denial and the cruel and unusual punishment of double jeopardy. Indeed the Commonwealth Court understood this very well when it stated that Petitioner asserted at the trial, "(1) that he was not advised that his driver's license would be suspended if he pleaded guilty," (a double-jeopardy assertion) and "(3) that the ninety-day suspension is cruel and unusual punishment and a violation of due process," (an assertion of both 5th and llth Amendment rights -- See pg. 3&4, Commonwealth Court Opinion, Exhibit D, Appendix.) Double Jeopardy is indeed a kind of "cruel and unusual punishment," and all of these issues were raised at the trial court in a "three minute rush"

defense, and they were preserved for appeal by that proceeding, as well as could be expected given the restrictions imposed by the trial court. The five issues that were preserved for review in both the trial and appellate courts were:

1. Whether a State may rule that a Sanction (Driver's License Suspension) passed under a "Crimes Code" is merely a "collateral civil consequence" or an "additional civil penalty," thereby depriving a Defendant of his 5th Amendment Constitutional Rights, by being given the cruel and unusual punishment of being twice placed in jeopardy for the same offense, and being deprived of his liberty and property without Due Process of Law.

2. Whether a State may deny Due Process of Law to a Defendant who has executed a plea bargain, by later demanding additional Penalties (Driver's License Suspension and over $10,000 in costs) which were not disclosed to the Defendant at the time of the court colloquy on the plea bargain agreement.

3. Whether a Defendant is denied Due Process of Law by being required to present his entire case within less than five minutes. (Defendant's entire Defense case is on pages 5 to 10 of the Lower Court Transcript.)

4. Whether a State may deprive a Defendant of his Liberty and inflict Cruel and Unusual Punishment (Driver's License Suspension) for a Defendant's justifiable use (Medical Necessity) of a controlled substance (Cannabis) which had nothing to do with an automobile or the State Motor Vehicle Code, and whether Due Process demands that the defense of "justification" be available at all proceedings that are derived from the original criminal conviction.

5. Whether a State may refuse to issue an "Occupational Limited License" thereby denying the fundamental right of Liberty to a Defendant who is in a "suspect class" of "Medical Necessity Users of a Controlled Substance," who's actions are "Justified" under Common Law, the State Pennsylvania Law and section 503 of the Model Penal Code, and whether Due Process demands that

the "justification" defense be available at all proceedings that are derived from the original conviction.

All of these issues were presented to the Commonwealth Court of Pennsylvania, and a copy of the above five issues, in proposed Certiorari form, was attached to Petitioner's Allocatur Petition for Allowance of Appeal. The Pennsylvania Supreme Court's finding that Petitioner's Driver's license was a "collateral civil consequence" or a "civil consequence of a criminal violation" is very hard to justify, when one examines the source of the sanction, which was the Pennsylvania "Crimes Code." In addition, the Plowman decision, upon which the Commonwealth Court relies, is in gross conflict with the Halper decision of this Honorable United States Supreme Court, and therefore it must be overruled.

This is a very valid case of some State Law being in conflict with other State Law, and that alone is sufficient reason for the granting of a Writ of Certiorari to Petitioner. However, it is clear from a reading of the Pennsylvania case law that the decisions of the Pennsylvania Supreme Court are in direct conflict with this Honorable Court's Halper decision, and therefore a writ of Certiorari to the Pennsylvania Supreme Court is Petitioner's only effective remedy.

WHEREFORE, Petitioner respectfully prays to this Honorable Supreme Court of the United States to issue a Writ of Certiorari to review the Judgment and Order of the Commonwealth Court of Pennsylvania, and the Judgment and Order of the Supreme Court of Pennsylvania.

Respectfully submitted,

by ____________________

John M. Grubor, pro se, Petitioner