Casey William Hardison v. The State of Wyoming , 2022 WY 45 ( 2022 )

IN THE SUPREME COURT, STATE OF WYOMING
2022 WY 45APRIL TERM, A.D. 2022
April 6, 2022
CASEY WILLIAM HARDISON,
Appellant
(Defendant),
v. S-21-0097
THE STATE OF WYOMING,
Appellee
(Plaintiff).
Appeal from the District Court of Teton County
The Honorable Timothy C. Day, Judge
Representing Appellant:
Cody M. Jerabek, Jerabek Law, LLC, Cheyenne, Wyoming. Argument by Mr.
Jerabek.
Representing Appellee:
Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney
General; Joshua C. Eames, Senior Assistant Attorney General; Timothy P. Zintak,
Senior Assistant Attorney General. Argument by Mr. Zintak.
Before FOX, C.J., and DAVIS*, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
* Justice Davis retired from judicial office effective January 16, 2022, and, pursuant to Article 5, § 5 of the
Wyoming Constitution and Wyo. Stat. Ann. § 5-1-106(f) (LexisNexis 2021), he was reassigned to act on
this matter on January 18, 2022.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are
requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of
any typographical or other formal errors so that correction may be made before final publication in the
permanent volume.
GRAY, Justice.
[¶1] After being charged with three counts of delivery of a controlled substance
(marijuana) in violation of Wyo. Stat. Ann. § 35-7-1031(a)(ii) (Wyoming Controlled
Substances Act or Act), Casey William Hardison filed a motion to dismiss the charges. He
claimed the Wyoming Controlled Substances Act is unconstitutional—violating his rights
to equal protection and substantive due process under the United States and Wyoming
Constitutions—by operating in an unequal and disparate manner because tobacco and
alcohol are excluded from its application. 1 The district court denied his motion to dismiss.
Mr. Hardison entered a conditional plea of guilty to two counts of delivery of a controlled
substance and timely filed this appeal. We affirm.
ISSUE
[¶2] Does the exclusion of “distilled spirits, wine, malt beverages, or tobacco” from the
Wyoming Controlled Substances Act violate Mr. Hardison’s equal protection rights under
the United States and Wyoming Constitutions?
FACTS
[¶3] On three occasions between 2017 and 2018, Mr. Hardison sold marijuana to a
confidential informant in Teton County. He was charged with three counts of delivery of
a controlled substance (marijuana) in violation of the Wyoming Controlled Substances
Act. 2 Mr. Hardison filed a pro se motion to dismiss the indictment on constitutional
grounds which the circuit court denied. Mr. Hardison was then appointed counsel who
filed a second motion to dismiss the indictment in the district court. On December 14,
2020, Mr. Hardison entered a conditional plea agreement where he pleaded no contest to
two counts of marijuana delivery, the remaining counts were dismissed, and he reserved
the right to appeal the denial of his constitutional claims.
[¶4] Following Mr. Hardison’s plea, the district court issued its Order Denying Motion
to Dismiss. The district court rejected Mr. Hardison’s claims that the Act violated his
fundamental right to freedom of thought. Analyzing the claims under a rational basis test,
the district court concluded that “the classification of marijuana as a Schedule 1 substance[]
is rationally related to a legitimate state objective.” The court sentenced Mr. Hardison to
concurrent sentences of one year in the Teton County Jail followed by three years of
probation.
1
On appeal, Mr. Hardison does not argue the Act violates substantive due process.
2
Mr. Hardison was also charged with two counts of aggravated assault and battery for swerving his car in
the direction of two officers as part of a successful escape from arrest following the third delivery in 2018.
Mr. Hardison made it to California where he stayed until he waived extradition in 2020.
1
STANDARD OF REVIEW
[¶5] All of Mr. Hardison’s arguments are premised on his claim that the Wyoming
Controlled Substances Act is unconstitutional. “The question of whether a statute is
constitutional is a question of law over which this Court exercises de novo review.”
Vaughn v. State, 2017 WY 29, ¶ 7, 391 P.3d 1086, 1091 (Wyo. 2017) (quoting Kammerer
v. State, 2014 WY 50, ¶ 5, 322 P.3d 827, 830 (Wyo. 2014)). “Statutes are presumed to be
constitutional, and we will resolve any doubt in favor of constitutionality.” Id. (citing
Kammerer, ¶ 5, 322 P.3d at 830). In most cases, the appellant bears the burden of proving
the statute is unconstitutional. Normally, this burden is heavy in that appellant must clearly
and exactly show the unconstitutionality beyond any reasonable doubt. Michael v.
Hertzler, 900 P.2d 1144, 1146 (Wyo. 1995) (quoting Miller v. City of Laramie, 880 P.2d
594, 597 (Wyo. 1994)). “However, ‘that rule does not apply where a citizen’s fundamental
constitutional right, such as free speech, is involved.’” In that case, “[t]he strong
presumptions in favor of constitutionality are inverted, the burden then is on the
governmental entity to justify the validity of the [statute], and this Court has a duty to
declare legislative enactments invalid if they transgress [a] constitutional provision.”
Reiter v. State, 2001 WY 116, ¶ 7, 36 P.3d 586, 589 (Wyo. 2001) (quoting Michael, 900
P.2d at 1146 (quoting Miller, 880 P.2d at 597)). As a result, our standard of review as
applied to equal protection claims is dependent on whether the interest at stake involves a
fundamental right or a suspect class. Reiter, ¶ 20, 36 P.3d at 593.
[¶6] The principles of equal protection analysis are well established. Greenwalt v. Ram
Rest. Corp. of Wyoming, 2003 WY 77, ¶ 39, 71 P.3d 717, 729–31 (Wyo. 2003). Claims of
unconstitutional classification are analyzed under two levels of scrutiny. If the class is
suspect or if a fundamental right is involved, a strict scrutiny standard is applied which
requires a demonstration that the classification is necessary to achieve a compelling state
interest. In re Honeycutt, 908 P.2d 976, 979 (Wyo. 1995); Allhusen v. State By & Through
Wyoming Mental Health Pros. Licensing Bd., 898 P.2d 878, 885 (Wyo. 1995); Washakie
Cnty. Sch. Dist. No. 1 v. Herschler, 606 P.2d 310, 333 (Wyo. 1980). If a suspect class or
a fundamental right is not involved, a rational relationship test is used to determine if the
classification has a rational relationship to a legitimate state interest. Honeycutt, 908 P.2d
at 979 (citing Meyer v. Kendig, 641 P.2d 1235, 1239 (Wyo. 1982)). “A party attacking the
rationality of the legislative classification has the heavy burden of demonstrating the
unconstitutionality of a statute beyond a reasonable doubt.” Greenwalt, ¶ 39, 71 P.3d at
730 (citing F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 315, 113 S.Ct. 2096, 2102, 124
L.Ed.2d 211 (1993); Small v. State, 689 P.2d 420, 426 (Wyo. 1984); Nehring v. Russell,
582 P.2d 67, 74 (Wyo. 1978)).
ANALYSIS
Fundamental Right
2
[¶7] Before turning to Mr. Hardison’s equal protection argument, we address his claim
that the Act impinges on a fundamental right invoking strict scrutiny. 3 Mr. Hardison argues
that prohibiting “the consumption of a controlled substance illegal[ly] infringes [on] one’s
fundamental right to freedom of thought,” because every “individual has the right to
control, alter and effect one’s thoughts, emotions, and sensations in a comprehensive
sense.” In a stretch to include the distribution of an illegal substance in his argument, he
asserts “the ability to consume or utilize a controlled substance is directly affected by the
legality of one being able to possess or deliver it.” (Emphasis added.) We clarify at the
outset, Mr. Hardison was convicted of “possession with intent to deliver” marijuana, not
consuming or using marijuana. His argument that he has a fundamental right to distribute
marijuana has been soundly rejected by every court to consider it. See infra ¶ 22.
[¶8] Mr. Hardison cites a Seventh Circuit case, Doe v. City of Lafayette, Ind., 377 F.3d
757, 765 (7th Cir. 2004) (affirming city’s ban of pedophile sexual offender’s presence in
city parks), in support of his contention that regulation of a controlled substance infringes
on his fundamental right to free thought. There, the court stated:
A government entity no doubt runs afoul of the First
Amendment when it punishes an individual for pure thought.
The Supreme Court has held that the First Amendment
prohibits the government from commanding a citizen to
profess or disseminate an ideological message contrary to that
citizen’s conscience, see Wooley v. Maynard, 430 U.S. 705,
713, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977); West Virginia State
Bd. of Educ. v. Barnette, 319 U.S. 624, 633–34, 63 S.Ct. 1178,
87 L.Ed. 1628 (1943), and from screening certain types of
stimuli from flowing to a citizen under the guise of mind
control, see Stanley v. Georgia, 394 U.S. 557, 565–66, 89 S.Ct.
1243, 22 L.Ed.2d 542 (1969) (“Our whole constitutional
heritage rebels at the thought of giving government the power
to control men’s minds. . . . Whatever the power of the state to
control public dissemination of ideas inimical to the public
morality, it cannot constitutionally premise legislation on the
desirability of controlling a person’s private thoughts.”).
Closer to this case, the Court also has indicated that the
government cannot regulate mere thought, unaccompanied by
conduct. . . .
3
On appeal, Mr. Hardison presents a brief argument that the Act is facially unconstitutional. He did not
make this argument below, and we do not consider it here. Gjertsen v. Haar, 2015 WY 56, ¶ 15, 347 P.3d
1117, 1123 (Wyo. 2015) (“[I]ssues raised for the first time on appeal generally will not be considered by
this court unless they are jurisdictional or issues of such a fundamental nature that they must be considered.”
(quoting Byrd v. Mahaffey, 2003 WY 137, ¶ 10, 78 P.3d 671, 674 (Wyo. 2003))).
3
The Supreme Court, however, has made it clear that
only governmental regulations aimed at mere thought, and not
thought plus conduct, trigger this principle. That is,
regulations aimed at conduct which have only an incidental
effect on thought do not violate the First Amendment’s
freedom of mind mandate. Id.; Osborne v. Ohio, 495 U.S. 103,
109, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990). Limiting First
Amendment protection to pure thought is rooted in common-
sense. Thought and action are intimately entwined;
consequently, all regulation of conduct has some impact, albeit
indirect, on thought. . . . The First Amendment’s freedom of
mind principle does not subject every conduct-focused
regulation to First Amendment scrutiny; rather, it only
prohibits those regulations aimed at pure thought and thus
mind control.
Doe, 377 F.3d at 765.
[¶9] We agree with the Seventh Circuit’s analysis. The Wyoming Controlled Substances
Act does not regulate pure thought, it regulates controlled substances, and in Mr.
Hardison’s case, the distribution of a controlled substance. In Paris Adult Theatre I v.
Slaton, the Supreme Court said, “The fantasies of a drug addict are his own and beyond the
reach of government, but government regulation of drug sales is not prohibited by the
Constitution.” Paris Adult Theatre I v. Slaton, 413 U.S. 49, 67–68, 93 S.Ct. 2628, 2641,
37 L.Ed.2d 446 (1973). Mr. Hardison does not have a fundamental right to distribute drugs.
We review his claims under the rational basis test.
Rational Basis
[¶10] The rational basis test requires Mr. Hardison to demonstrate the Act’s exclusion of
tobacco and alcohol from its provisions is, beyond a reasonable doubt, not related to a
legitimate government interest. Greenwalt, ¶ 39, 71 P.3d at 730. “The rational basis test
does not require that the law ‘be in every respect logically consistent with its aims to be
constitutional.’” Vaughn, ¶ 30, 391 P.3d at 1096 (quoting United States v. Comstock, 560
U.S. 126, 151, 130 S.Ct. 1949, 1966, 176 L.Ed.2d 878 (2010) (quoting Williamson v. Lee
Optical of Oklahoma Inc., 348 U.S. 483, 487–88, 75 S.Ct. 461, 464, 99 L.Ed. 563 (1955))).
“[I]t is enough that there is an evil at hand for correction, and that it might be thought that
the particular legislative measure was a rational way to correct it.” Id. (quoting Comstock,
560 U.S. at 151, 130 S.Ct. at 1966). “In reviewing a constitutionally based challenge to a
statute, we presume the statute to be constitutional and any doubt in the matter must be
resolved in favor of the statute’s constitutionality.” V-1 Oil Co. v. State, 934 P.2d 740, 742
(Wyo. 1997) (citing Thomson v. Wyoming In-Stream Flow Comm., 651 P.2d 778, 789–90
(Wyo. 1982)).
4
Wyoming Controlled Substances Act
[¶11] In 1969, President Nixon declared a national “war on drugs” which “culminated in
the passage of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 84
Stat. 1236.” Gonzales v. Raich, 545 U.S. 1, 10, 125 S.Ct. 2195, 2201, 162 L.Ed.2d 1(2005). “The main objectives of the [federal legislation] were to conquer drug abuse and
to control the legitimate and illegitimate traffic in controlled substances.” Id. at 12, 125
S.Ct. at 2203. Following the Congressional lead, the corresponding Uniform Controlled
Substances Act was passed in nearly every state, including Wyoming. See Dawkins v.
State, 547 A.2d 1041, 1044 n.6 (Md. 1988) (identifying forty-eight states). “The Wyoming
controlled substance statute [is] derived primarily from the federal statute, and we accept
federal case law as persuasive authority in our determination of the intent of the Wyoming
legislature.” Pool v. State, 2001 WY 8, ¶ 12, 17 P.3d 1285, 1288 (Wyo. 2001) (citing
Palato v. State, 988 P.2d 512, 514 (Wyo. 1999); Apodaca v. State, 627 P.2d 1023, 1027
(Wyo. 1981); Dorador v. State, 768 P.2d 1049, 1053–54 (Wyo. 1989)).
[¶12] The Wyoming Controlled Substances Act classifies “marihuana” as a Schedule I
hallucinogenic substance. The statute Mr. Hardison stands convicted of states in relevant
part:
(a) Except as authorized by this act, it is unlawful for any
person to manufacture, deliver, or possess with intent to
manufacture or deliver, a controlled substance. Any person
who violates this subsection with respect to:
. . .
(ii) Any other controlled substance classified in
Schedule I, II or III, is guilty of a crime and upon
conviction may be imprisoned for not more than ten
(10) years, fined not more than ten thousand dollars
($10,000.00), or both;
Wyo. Stat. Ann. § 35-7-1031(a)(ii) (LexisNexis 2021). The Act defines a “drug” as:
(A) Substances recognized as drugs in official United States
Pharmacopoeia, official Homeopathic Pharmacopoeia of the
United States, or official National Formulary, or any
supplement to any of them;
5
(B) Substances intended for use in the diagnosis, cure,
mitigation, treatment, or prevention of disease in man or
animals;
(C) Substances (other than food) intended to affect the
structure or any function of the body of man or animals;
and
(D) Substances intended for use as a component of any
article specified in subparagraph (A), (B), or (C) of this
paragraph. It does not include devices or their components,
parts or accessories.
Wyo. Stat. Ann. § 35-7-1002(a)(xi)(A)–(D) (LexisNexis 2021) (emphasis added). The Act
does not identify alcohol or tobacco as a drug. A separate statute—Wyo. Stat. Ann. § 35-
7-1011(e)—governs the authority to add or delete substances to the various schedules set
forth in the Wyoming Controlled Substances Act. The authority to add or delete substances
“does not extend to distilled spirits, wine, malt beverages, or tobacco.” Wyo. Stat. Ann.
§ 35-7-1011(e).
[¶13] Mr. Hardison argues that alcohol and tobacco are identical in their effects on the
human system as the other drugs included in the Schedule I classification; “[a]ll . . . are
dangerous, intoxicating, [and can be] addictive.” He points out that the Wyoming
regulation of alcohol and tobacco in other statutes is an implicit recognition that these
substances are drugs. He concludes that, because the properties of tobacco and alcohol
comply with the definition of “drugs” in the Act, there is no legitimate government interest
in treating these substances, or the people who market them, differently. Mr. Hardison
contends that the Act is unconstitutional because its exclusion of alcohol and tobacco as
controlled substances is without a rational basis and violates the equal protection provisions
of both the United States and Wyoming Constitutions.
Equal Protection
[¶14] The provisions of the Fourteenth Amendment to the United States Constitution and
Wyo. Const. art. 1, §§ 2, 7, 34 and 36 essentially provide that one is entitled to equal
protection under the law. In effect, “all persons similarly situated shall be treated alike,
both in the privileges conferred and in the liabilities imposed.” Reiter, ¶ 26, 36 P.3d at 594
(quoting Allhusen, 898 P.2d at 884). The Fourteenth Amendment to the United States
Constitution provides: “No state shall . . . deny to any person within its jurisdiction the
equal protection of the laws.” U.S. Const. amend. XIV, § 1. State constitutions vary, and
“[m]ost . . . do not contain an ‘equal protection’ clause . . . [b]ut . . . do contain a variety of
equality provisions.” Robert F. Williams, Equality Guarantees in State Constitutional
Law, 63 Tex. L. Rev. 1195, 1196 (1985). The Wyoming Constitution does not contain an
6
express “equal protection” clause, but incorporates a number of equality provisions, viz.,
article 1, §§ 2, 3, and 34; and article 3, § 27. Despite the difference in text between the
federal equal protection clause and the equality provisions in most state constitutions,
“[m]ost state courts use conventional federal equal protection analysis when interpreting
the various equality provisions of their state constitutions.” Williams, supra, at 1222. The
foundational principles of rational-basis review in federal equal protection analysis are not
significantly different from “those used in this Court’s equal protection analysis from the
early days of statehood to the present.” Greenwalt, ¶ 39, 71 P.3d at 730–31.
[¶15] The bedrock principles of equal protection were set forth in Greenwalt:
1. The federal equal protection clause and the Wyoming
equality provisions “have the same aim in view.” Washakie
Cty. Sch. Dist. No. 1 v. Herschler, 606 P.2d 310, 332 (Wyo.
1980); Nehring v. Russell, 582 P.2d 67, 76 (Wyo. 1978); Pirie
v. Kamps, 68 Wyo. 83, 94, 229 P.2d 927, 930–31 (1951); In Re
Gillette Daily Journal, 44 Wyo. 226, 239, 11 P.2d 265, 269
(1932); 68 Wyo. 83, 229 P.2d 927, 26 A.L.R.2d 647.
2. A classification in a statute, such as [the Controlled
Substances Act], comes to the reviewing court bearing a strong
presumption of validity. F.C.C. v. Beach Communications,
Inc., 508 U.S. 307, 314, 113 S.Ct. 2096, 2101–02, 124 L.Ed.
211 (1993); Heller v. Doe, 509 U.S. 312, 319, 113 S.Ct. 2637,
2642, 125 L.Ed.2d 257 (1993); Clajon Prod. Corp. v. Petera,
70 F.3d 1566, 1580 (10th Cir. 1995); Painter v. Abels, 998 P.2d
931, 939 (Wyo. 2000); Hoem v. State, 756 P.2d 780, 782 (Wyo.
1988); State v. Langley, 53 Wyo. 332, 345, 84 P.2d 767, 771
(1938).
3. A party attacking the rationality of the legislative
classification has the heavy burden of demonstrating the
unconstitutionality of a statute beyond a reasonable doubt.
F.C.C. v. Beach Communications, Inc., 508 U.S. at 315, 113
S.Ct. at 2102; Small v. State, 689 P.2d 420, 426 (Wyo. 1984);
Nehring, 582 P.2d at 74.
4. Equal protection is not a license for courts to judge the
wisdom, fairness, or logic of legislative choices and line-
drawing. In areas of social policy, a statutory classification
must be upheld if there is any reasonably conceivable state of
facts that could provide a rational basis for the classification.
F.C.C. v. Beach Communications, Inc., 508 U.S. at 315, 113
7
S.Ct. at 2102; Clajon Prod. Corp., 70 F.3d at 1580; Dandridge
v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25
L.Ed.2d 491 (1970); Mountain Fuel Supply Co. v. Emerson,
578 P.2d 1351, 1355 (Wyo. 1978); [State v.] Sherman, 18
Wyo. [169,] 177, 105 P. [299,] 300 [(1909)]; McGarvey v.
Swan, 17 Wyo. 120, 139, 96 P. 697, 702 (1908).
5. The reviewing court never requires a legislature to
articulate its reasons for enacting a statute; therefore, it is
entirely irrelevant for equal protection purposes whether the
conceived reason for the challenged distinction actually
motivated the legislature. The absence of “legislative facts”
explaining the distinction on the record has no significance in
rational-basis review. In other words, a legislative choice is
not subject to courtroom fact-finding and need not be based
upon evidence or empirical data. F.C.C. v. Beach
Communications, Inc., 508 U.S. at 315, 113 S.Ct. at 2102;
Clajon Prod. Corp., 70 F.3d at 1580.
To ascribe a purpose or purposes to the statutory classification,
“the court may properly consider not only the language of the
statute but also general public knowledge about the evil sought
to be remedied, prior law, accompanying legislation, enacted
statements of purpose, formal public announcements, and
internal legislative history. If an objective can confidently be
inferred from the provisions of the statute itself, recourse to
internal legislative history and other ancillary materials is
unnecessary.” Developments in the Law—Equal Protection,
82 Harv. L. Rev. at 1077. “The court is expected to safeguard
constitutional values while at the same time maintaining proper
respect for the legislature as a coordinate branch of
government.” Id. at 1078.
6. These restraints on judicial review have added force where
the legislature must necessarily engage in a process of line-
drawing. Defining the class of persons subject to a regulatory
requirement inevitably requires that some persons who have an
almost equally strong claim to favored treatment be placed on
different sides of the line, and that the line might have been
drawn differently at some points is a matter for legislative,
rather than judicial, consideration. Such scope-of-coverage
provisions are unavoidable components of most social
legislation. The necessity of drawing lines renders the precise
8
coordinates of the resulting legislative judgment virtually
unreviewable because the legislature must be allowed leeway
to approach a perceived mischief incrementally. F.C.C. v.
Beach Communications, Inc., 508 U.S. at 315–16, 113 S.Ct. at
2102; see also Williamson v. Lee Optical, 348 U.S. 483, 489,
75 S.Ct. 461, 465, 99 L.Ed. 563 (1955); Clajon Prod. Corp.,
70 F.3d at 1581; Garton v. State, 910 P.2d 1348, 1355 (Wyo.
1996); White v. State, 784 P.2d 1313, 1315–16 (Wyo. 1989);
Troyer v. State, 722 P.2d 158, 165 (Wyo. 1986); Galesburg
Const. Co. v. Bd. of Trustees of Mem. Hosp. of Converse Cty.,
641 P.2d 745, 750 (Wyo. 1982) (citing Denny v. Stevens, 52
Wyo. 253, 75 P.2d 378 (1938)); Kenosha Auto Transport Corp.
v. City of Cheyenne, 55 Wyo. 298, 312–13, 100 P.2d 109, 114
(1940); Trent v. Union Pacific, 68 Wyo. 146, 162–63, 231 P.2d
180, 185 (1951), overruled on other grounds, Bowers v. Wyo.
State Treasurer, 593 P.2d 182 (Wyo. 1979); In Re Gillette
Daily Journal, 44 Wyo. at 242, 11 P.2d at 269–70.
7. The rational-basis test is “not a toothless one.” It allows the
court to probe to determine if the constitutional requirement of
some rationality in the nature of the class singled out has been
met. Schweiker v. Wilson, 450 U.S. 221, 234, 101 S.Ct. 1074,
1082, 67 L.Ed.2d 186 (1981); James v. Strange, 407 U.S. 128,
140, 92 S.Ct. 2027, 2034, 32 L.Ed.2d 600 (1972); Johnson v.
State Hearing Examiner’s Office, 838 P.2d 158, 172 (Wyo.
1992); Ludwig v. Harston, 65 Wyo. 134, 169, 197 P.2d 252,
267 (1948).
8. Equal protection permits a state a wide scope of discretion
in enacting laws which affect some groups of citizens
differently than others; it does not prevent a reasonable
classification of the objects of legislation. The question in each
case is whether the classification is reasonable in view of the
object sought to be accomplished by the legislature. All
reasonable doubts are to be resolved in favor of the validity of
the statute. The legislature is presumed to have acted upon a
knowledge of the facts and to have had in view the promotion
of the general welfare of the people as a whole. The legislature
having presumably determined that a difference of conditions
exists rendering the legislation proper, the court must be able
to say, upon a critical examination of the statute in the light of
the object sought to be accomplished, or the evil to be
suppressed, that the legislature could not reasonably have
9
concluded that distinctions existed relating to the purpose and
policy of the legislation. Sherman, 18 Wyo. at 177, 105 P. at
300; see also F.C.C. v. Beach Communications, Inc., 508 U.S.
at 313–16, 113 S.Ct. at 2101–02; McGowan v. Maryland, 366
U.S. 420, 425–26, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961);
WW Enterprises, Inc. v. City of Cheyenne, 956 P.2d 353, 356
(Wyo. 1998); Nehring, 582 P.2d at 78.
Greenwalt, ¶ 39, 71 P.3d at 730–31.
[¶16] The principles laid out in Greenwalt underlie the multi-part test we apply when
considering whether a governmental law violates equal protection guarantees. We:
1. Identify the legislative classification at issue;
2. Identify the legislative objectives;
3. Determine whether the legislative classification is
rationally related to the achievement of an appropriate
legislative purpose. In this element the court is evaluating
whether the legislature’s objectives justify the statutory
classification.
Greenwalt, ¶ 40, 71 P.3d at 732; see generally Allhusen, 898 P.2d at 885–86; Johnson v.
State Hearing Examiner’s Off., 838 P.2d 158, 166–67 (Wyo. 1992).
[¶17] Addressing the classification at issue, we turn first to Mr. Hardison’s argument that
the Act “unnaturally” severs drugs as defined in Wyo. Stat. Ann. § 35-7-1002(a)(xi)(C)
into two classes: (1) tobacco and alcohol, and (2) drugs included in the Wyoming
Controlled Substances Act’s criminal prohibitions when both classes fall within the
definition of substances to be controlled within the Act. Equal protection, however, applies
to classes of “things” or “objects” only in the context of individual rights associated with
those things. The class at issue here, then, is persons who market, deliver, or distribute the
Schedule I items prohibited in the Act, and those who market, deliver, or distribute alcohol
and tobacco.
[¶18] Mr. Hardison must first demonstrate that persons who market Schedule I substances
and persons who market alcohol and tobacco, are similarly situated. “[T]he Equal
Protection Clause ‘does not require things which are different in fact or opinion to be
treated in law as though they were the same.’” Reiter, ¶ 26, 36 P.3d at 594 (quoting Skinner
v. State of Okl. ex rel. Williamson, 316 U.S. 535, 540, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655(1942) (quoting Tigner v. Texas, 310 U.S. 141, 147, 60 S.Ct. 879, 882, 84 L.Ed. 1124(1940))). Neither party argues the class is not similarly situated. Even if we assume,
10
without deciding, that Mr. Hardison has accurately identified a classification through which
similarly situated persons are treated unequally, the remainder of his argument is
unpersuasive.
[¶19] Turning to legislative objectives, Mr. Hardison maintains the Act violates equal
protection because the legislature did not explain why it severed tobacco or alcohol from
its provisions. The Act’s silence as to legislative intent and its noninclusion of reasons is
of no consequence. This Court does not require the legislature to articulate its reasons for
enacting a statute. Greenwalt, ¶ 39, 71 P.3d at 730–31. “If an objective can confidently
be inferred from the provisions of the statute itself, recourse to internal legislative history
and other ancillary materials is unnecessary.” Id.[¶20] The intent of the federal Controlled Substances Act and its state counterparts is
summarized infra and has been addressed by many courts across the nation. We have
stated that “[t]he purpose of the legislation was aimed at the illegal dispensing of controlled
substances.” Cronin v. State, 678 P.2d 370, 372 (Wyo. 1984); see also 28 C.J.S. Drugs
and Narcotics § 210, Westlaw (database updated March 2022) (The Controlled Substances
Act’s “central objectives are to conquer drug abuse and to control the legitimate and
illegitimate traffic in controlled substances.”); People v. Mata, 226 Cal. Rptr. 150, 153 (Ct.
App. 1986) (“[T]he purpose of the Uniform Controlled Substances Act . . .‘unequivocally
manifests a legislative intent to restrict the transportation, sale and possession of controlled
substances so as to protect the health and safety of all persons within this state.’”). The
plain objective of the Act is to protect the health and safety of all persons within Wyoming
by restricting the transportation, sale, and possession of controlled substances.
[¶21] Finally, we examine whether the classification is rationally related to the legislative
purpose. Mr. Hardison does not argue that the State cannot regulate the delivery of
controlled substances. Instead, he maintains that tobacco and alcohol cannot be rationally
removed from a statute imposing the regulation. A substance is listed in Schedule I if it
has (1) a high potential for abuse, (2) no currently accepted medical use in treatment in the
United States, and (3) no accepted safety for use in treatment under medical supervision.
Wyo. Stat. Ann. § 35-7-1011. Mr. Hardison asserts that both alcohol and tobacco fall
within the Act’s definition of drugs, and there is no rational reason to single them out for
different treatment.
[¶22] Although this is the first time we have considered this issue, the argument is not
new. In every case we can find, Mr. Hardison’s theories have been rejected. The reasoning
set forth in Nat’l Org. for Reform of Marijuana L. (NORML) v. Bell is instructive:
“Underinclusive classifications do not include all who
are similarly situated with respect to a rule, and thereby burden
less than would be logical to achieve the intended government
end.” L. Tribe, American Constitutional Law, §16-4, at 997
11
(1978). To be successful in a challenge based on
underinclusiveness, plaintiff must show that the governmental
choice is “‘clearly wrong, a display of arbitrary power, not an
exercise of judgment,’” Mathews v. de Castro, 429 U.S. 181,
185, 97 S.Ct. 431, 434, 50 L.Ed.2d 389 (1976) (quoting
Helvering v. Davis, 301 U.S. 619, 640, 57 S.Ct. 904, 908, 81
L.Ed. 1307 (1937)). Few challengers can sustain such a heavy
burden of proof. Courts have recognized the very real
difficulties under which legislatures operate, difficulties that
arise due to the nature of the legislative process and the society
that legislation attempts to reshape. As Professor Tribe has
explained: “underinclusive” or “piecemeal legislation is a
pragmatic means of effecting needed reforms, where a demand
for completeness may lead to total paralysis . . . .” L. Tribe,
supra § 16-4, at 997.
Legislatures have wide discretion in attacking social
ills. “A State may ‘direct its law against what it deems the evil
as it actually exists without covering the whole field of possible
abuses, and it may do so none the less that the forbidden act
does not differ in kind from those that are allowed.’” Hughes
v. Superior Court, 339 U.S. 460, 468, 70 S.Ct. 718, 723, 94
L.Ed. 985 (1950) (quoting Central Lumber Co. v. South
Dakota, 226 U.S. 157, 160, 33 S.Ct. 66, 67, 57 L.Ed. 164(1912)). Failure to address a certain problem in an otherwise
comprehensive legislative scheme is not fatal to the legislative
plan.
. . .
Given this policy of legislative freedom in confronting
social problems, the exclusion of alcohol and tobacco from the
[Controlled Substances Act] does not render the scheme
unconstitutional. Different legislative schemes control the sale
and distribution of alcohol and tobacco, [(citation omitted)].
The specific exemption of alcohol and tobacco from the
provisions of the [Controlled Substances Act], 21 U.S.C.
§ 802(6) (1976), reflects Congress’s view that other regulatory
schemes are more appropriate for alcohol and tobacco. That
alcohol and tobacco may have adverse effects on health does
not mean the [Controlled Substances Act] is the only proper
means of regulating these drugs, nor does it mean that
marijuana should be treated identically.
12
Nat’l Org. for Reform of Marijuana L. (NORML) v. Bell, 488 F. Supp. 123, 137–38 (D.D.C.
1980); see also State v. Mitchell, 563 S.W.2d 18, 25 (Mo. 1978) (“As to alcohol and
tobacco, the legislature’s decision to prohibit some harmful substances does not thereby
constitutionally compel it to regulate or prohibit all harmful substances.”); United States v.
Fry, 787 F.2d 903, 905 (4th Cir. 1986) (“It is for Congress to weigh the conflicting
considerations and determine the necessity and appropriateness of prohibiting trafficking
in a dangerous substance, and it may conclude that prohibition of the trafficking in one
such substance is appropriate though trafficking in another is left untouched.”); Nat’l Org.
for Reform of Marijuana L. v. Gain, 161 Cal. Rptr. 181, 184 (Ct. App. 1979) (“The mere
fact that the Legislature has chosen to prohibit one dangerous product such as marijuana,
does not compel it to regulate or prohibit all such substances.”); United States v. Maiden,
355 F. Supp. 743, 747–48 (D. Conn. 1973) (Congress not required to take an all or nothing
approach to drug regulation); State v. Lite, 592 So. 2d 1202, 1204 (Fla. Dist. Ct. App.
1992), approved, 617 So. 2d 1058 (Fla. 1993) (“[E]qual protection is not violated where a
permissible classification includes one, but not others who might have been included in the
broader classifications, as long as those within the legally formed class are accorded equal
treatment under the law creating the classification.”).
[¶23] We agree with these courts who, having considered essentially the same arguments
presented by Mr. Hardison, rejected them. The Wyoming Controlled Substances Act is
rationally related to its objectives, and its failure to include “distilled spirits, wine, malt
beverages, or tobacco” does not deny Mr. Hardison equal protection of the law under the
United States Constitution. 4
CONCLUSION
[¶24] The regulation of the substances contained in the Act, as well as the severing of
alcohol and tobacco from its governance, was reasonably related to the legitimate interests
of the State and does not violate Mr. Hardison’s constitutional right to equal protection.
Affirmed.
4
At oral argument, Mr. Hardison raised the substantive due process element of the Fourteenth Amendment
as a basis for the unconstitutionality of the Act. He made no such argument in his appellate brief. Given
that he declined to brief this issue to this Court, we do not address this issue. See Int. of VS, 2018 WY 119,
¶ 32, 429 P.3d 14, 23 (Wyo. 2018). Mr. Hardison also argues the Act violates the equal protection guarantee
found in Wyo. Const. art. 1, § 34 which provides “All laws of a general nature shall have a uniform
operation” and Wyo. Const. art. 3, § 27 which states, “where a general law can be made applicable no
special law shall be enacted.” He points to no specific application of the Wyoming Constitution, cites no
pertinent authority, and provides no cogent argument other than his general analysis under the United States
Constitution. We, therefore, do not consider this argument. Fowles v. Fowles, 2017 WY 112, ¶ 36, 402
P.3d 405, 414 (Wyo. 2017).
13