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Illinois Norml, Inc. v. Scott

OPINION FILED NOVEMBER 16, 1978.

ILLINOIS NORML, INC., ET AL., PLAINTIFFS-APPELLANTS,

v.

WILLIAM J. SCOTT, ATTORNEY GENERAL, ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. NATHAN M. COHEN, Judge, presiding. MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

Plaintiffs brought this action for a declaratory judgment that the Cannabis Control Act (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 701 et seq.) is unconstitutional insofar as it applies to the private possession and use of cannabis by adults and for injunctive relief to prevent enforcement of the statutes as to such activities. Upon defendants' motions the trial court dismissed the complaint and plaintiffs brought this appeal.

The issues on appeal are: (1) whether the right to privacy, as guaranteed by the United States and Illinois constitutions, encompasses a right to private possession and use of cannabis by adults; (2) whether the trial court properly took judicial notice of the existence of differing scientific opinions as to the harmfulness of cannabis use; (3) whether plaintiffs should have been permitted to file an amended complaint; (4) whether the challenged statutes constitute a valid exercise of the police power; (5) whether the criminal penalties provided for the private possession and use of cannabis constitute cruel and unusual punishment; (6) whether State prohibition of the private use of cannabis but not the private use of alcohol and tobacco violates the constitutional guarantee of equal protection.

We affirm the judgment of the trial court.

I.

• 1 Plaintiffs assert that the private use and possession of cannabis is protected by the constitutional right of privacy. However, this right of privacy has only been recognized by the United States Supreme Court in connection with certain fundamental rights. Thus in Griswold v. Connecticut (1965), 381 U.S. 479, 14 L.Ed.2d 510, 85 S.Ct. 1678, a law forbidding the use of contraceptives was held to infringe on the marriage relationship, an area found to be within the zone of privacy created by fundamental constitutional guarantees, including the right of association emanating from the First Amendment. Subsequently this right of privacy was also recognized in connection with laws affecting the individual's decision concerning procreation (Eisenstadt v. Baird (1972), 405 U.S. 438, 31 L.Ed.2d 349, 92 S.Ct. 1029 (striking down a Massachusetts law permitting distribution of contraceptives only to married people)), and whether to terminate a pregnancy (Roe v. Wade (1973), 410 U.S. 113, 35 L.Ed.2d 147, 93 S.Ct. 705). In Stanley v. Georgia (1969), 394 U.S. 557, 22 L.Ed.2d 542, 89 S.Ct. 1243, the court held that the private possession of obscenity in the home was protected by the right to privacy. Plaintiffs misconstrue this opinion, placing sole emphasis on the home-use aspect of the case. Analysis of Stanley reveals that the right to privacy there was found in the nexus of the First Amendment right to receive information and ideas and the fact that enforcement of the challenged statute would uphold an intrusion into the home with respect to this right. In the case of laws prohibiting private possession and use of cannabis the home intrusion aspect may arguably be present, but there is no threat to a substantive right analogous to the First Amendment right discussed in Stanley or the important marital and procreative rights protected in Roe, Eisenstadt, and Griswold. There is no fundamental right to use cannabis (State v. Kantner (1972), 53 Haw. 327, 493 P.2d 306, cert. denied (1972), 409 U.S. 948, 34 L.Ed.2d 218, 93 S.Ct. 287), nor do plaintiffs assert such an unqualified right. The mere fact that this otherwise unprotected activity is conducted in the home does not, in itself, place it in the protected zone of the constitutional right of privacy. Indeed, the court in Stanley stated:

"What we have said in no way infringes upon the power of the State or Federal Government to make possession of other items, such as narcotics, firearms, or stolen goods, a crime. Our holding in the present case turns upon the Georgia statute's infringement of fundamental liberties protected by the First and Fourteenth Amendments. No First Amendment rights are involved in most statutes making mere possession criminal." (394 U.S. 557, 568 n. 11, 22 L.Ed.2d 542, 551 n. 11, 89 S.Ct. 1243, 1249-50 n. 11.)

We hold that the Federal constitutional right of privacy does not extend to the use and possession of cannabis in the home. State v. Kells (1977), 199 Neb. 374, 259 N.W.2d 19; State v. Baker (1975), 56 Haw. 271, 535 P.2d 1394; State v. Murphy (1977), 117 Ariz. 57, 570 P.2d 1070; Commonwealth v. Leis (1969), 355 Mass. 189, 243 N.E.2d 898.

• 2 Nor do we believe that the reference to invasions of privacy found in the Illinois Constitution provides protection for the activities at issue. That reference is contained in section 6 of article I, which states:

"The people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of communications by eavesdropping devices or other means. No warrant shall issue without probable cause, supported by affidavit, particularly describing the place to be searched and the persons or things to be seized." (Ill. Const. 1970, art. I, § 6.)

The Illinois Supreme Court initially construed this provision as creating an independent constitutional right of privacy. (Stein v. Howlett (1972), 52 Ill.2d 570, 289 N.E.2d 409, appeal dismissed (1973), 412 U.S. 925, 37 L.Ed.2d 152, 93 S.Ct. 2750.) However that construction was greatly modified in Illinois State Employees Association v. Walker (1974), 57 Ill.2d 512, 315 N.E.2d 9, cert. denied (1974), 419 U.S. 1058, 42 L.Ed.2d 656, 95 S.Ct. 642. The analysis of the court is useful:

"The changes from the Constitution of 1870 are first, that the word `possessions' is substituted for the word `effects,' and second, that the phrase `invasions of privacy or interceptions of communications by eavesdropping devices or other means' is added to the protections against unreasonable searches and seizures. As the section was initially reported to the Constitutional Convention by its Bill of Rights Committee, an argument could have been made that it established an independent right of privacy rooted in the State Constitution, apart from or in addition to the common law right of privacy recognized in Leopold v. Levin (1970), 45 Ill.2d 434, 259 N.E.2d 250. During its progress through the Constitutional Convention, however, the provision was altered so that as submitted to and approved by the people it was restricted in the manner indicated above. The original form of the provision, together with added material shown by underscoring and stricken material by printing and striking, was as follows:

`The people shall have the right of the people to be secure in their persons, houses, papers and other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of their communications by eavesdropping devices or other means,. or invasions of their privacy shall not be violated, and No warrant shall issue without probable cause, supported by affidavit, particularly describing the place to be searched, and the persons or things to be seized.' (6 Record of Proceedings, Sixth Illinois Constitutional Convention 210 (hereafter Proceedings).)

Not all members of the court are convinced that this provision should be interpreted as asserting anything beyond protection from invasions of privacy by eavesdropping devices or other means of interception." (57 Ill.2d 512, 522-523, 315 N.E.2d 9, 14-15.)

Justice Ryan dissented, expressing his view that even as amended this provision created a right of privacy independent of the prohibition against unreasonable searches and seizures and wiretapping. But the majority did not rely solely on the analysis we have cited; they held more narrowly that the provision established no right of privacy restricting governmental requirements of disclosure of economic interests by State officers and employees. Similarly, we need not determine whether an independent State constitutional right of privacy was created by section 2, for we find no support for plaintiffs' contention that such a right would shelter from criminalization the private possession and use of cannabis. Only ...


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