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Marcoux v. Attorney General

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375 N.E.2d 688 375 Mass. 63, 375 N.E.2d 688, 96 A.L.R.3d 216 (Cite as: 375 Mass. 63, 375 N.E.2d 688)

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Supreme Judicial Court of Massachusetts,Suffolk. Timothy E. MARCOUX et al.FN1 FN1. Thirty-six named persons and sixteen pseudonymous persons. v. ATTORNEY GENERAL. Argued Feb. 13, 1978. Decided April 19, 1978. Civil action was brought seeking declaration that statute prohibiting knowing possession of marihuana is unconstitutional. On motion to dismiss, a single justice, Wilkins, J., entered judgment upholding statute, and appeal was taken. The Supreme Judicial Court, Suffolk County, Kaplan, J., held that statute is constitutional as applied to possession of marihuana in one's own home for personal use. Affirmed. West Headnotes Controlled Substances 96H 6

home for personal use. M.C.L.A. c. 94C § 34; U.S.C.A.Const. Amend. 1; Comprehensive Drug Abuse Prevention and Control Act of 1970, § 404(a), 21 U.S.C.A. § 844(a). **688 *63 Matthew H. Feinberg, Boston, for plaintiffs. Barbara A. H. Smith, Asst. Atty. Gen., for defendant. Before HENNESSEY, C. J., and QUIRICO, KAPLAN and ABRAMS, JJ. KAPLAN, Justice. Lodged in this court for Suffolk County, the action was brought by a number of plaintiffs, for themselves and a class of persons similarly situated, against the Attorney General as defendant. The complaint alleged that the defendant proposed to enforce against the plaintiffs and others a statute, G.L. c. 94C, s 34, which prohibits under penalty the (knowing) possession of marihuana; the relief sought was a declaration that the statute is unconstitutional at least as applied to the personal possession of a small amount of the substance. The defendant having attacked the complaint by motion to dismiss, the single justice held that it described a controversy suitable for a declaration,FN2 *64 and he entered judgment in appropriate form upholding the constitutionality of the statute. He noted that a broad attack on the laws regulating the possession of (as well as the traffic in) marihuana had been repelled by this court in the case of Commonwealth v. Leis, 355 Mass. 189, 243 N.E.2d 898 (1969).FN3 If the **689 Leis case was to be overruled, he thought it should be done

96H Controlled Substances 96HI In General 96Hk4 Statutes and Other Regulations 96Hk6 k. Validity. Most Cited Cases (Formerly 138k43.1, 138k43 Drugs and Narcotics) Statute prohibiting knowing possession of marihuana is constitutional as applied to possession of marihuana in one's own

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375 N.E.2d 688 375 Mass. 63, 375 N.E.2d 688, 96 A.L.R.3d 216 (Cite as: 375 Mass. 63, 375 N.E.2d 688)

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by the full bench. We are not prepared to overrule that 1969 decision, and accordingly we affirm the judgment appealed from. FN2. See First Nat'l Bank v. Attorney Gen., -- Mass. --, -(Mass.Adv.Sh. (1977) 134, 143), 359 N.E.2d 1262, appeal pending in the Supreme Court of the United States, with question of jurisdiction reserved to hearing on the merits, -U.S. --, 98 S.Ct. 1407, 54 L.Ed.2d - (1977) (45 U.S.L.W. 3690 (U.S., Apr. 18, 1977)); Sturgis v. Attorney Gen., 358 Mass. 37, 38, 260 N.E.2d 687 (1970). FN3. The defendants in Leis, prosecuted for possession of marihuana, possession with intent to sell, and conspiracy to violate the narcotic drug laws, moved in Superior Court to dismiss on constitutional grounds. The trial judge denied the motions but reported the question whether the relevant statutes violated provisions of the Constitutions of the Commonwealth and the United States. 355 Mass. at 190, 243 N.E.2d 898. In the Leis case we disagreed with the contention that the use of marihuana involved a liberty of high constitutional rank. Id. at 195, 243 N.E.2d 898. Therefore the validity of the legislation was to be tested in the first place by inquiring whether it bore a reasonable relation to any permissible object of legislation such as the protection of public health or safety. We may observe that in the hands of this court, at least, such an inquiry has not

been merely pro forma with a preordained conclusion favorable to the legislation. See Commonwealth v. Dennis, 368 Mass. 92, -FNa, 329 N.E.2d 706 (1975); Coffee-Rich, Inc. v. Commissioner of Pub. Health, 348 Mass. 414, 204 N.E.2d 281 (1965); Opinion of the Justices, 322 Mass. 755, 79 N.E.2d 883 (1948). In Leis the record at trial level comprised an inquiry through expert testimony into the medical and related aspects of the marihuana problem. See Marihuana and the Law: A Judicial Opinion, 3 Suffolk U.L.Rev. 23 (1968) (excerpts from trial judge's opinion). On review, we took note of the scientific evidence and concluded, as had the trial judge, that the Legislature could believe with reason that the use of marihuana created dangers both to users and to others justifying public control. Marihuana is a psychoactive drug whose immediate effects may include inducement of a state of euphoria or anxiety or panic, reduction in motor control, and *65 alterations of time perceptions and memory. Although the causal links could be disputed, there was ground to suspect that use of the drug was a factor in psychotic incidents experienced by some smokers, in the descent of users to harder and more dangerous drugs, and in the occurrence of highway accidents. As to the last danger, the difficulty or impossibility of testing drivers for marihuana intoxication could be thought to justify a ban on the substance rather than a qualified regulation of it. See Leis, 355 Mass. at 195, 243 N.E.2d 898; 1972 Mass.House Doc. No. 5896, Ninth Interim Report of the Special Commission on Drug Abuse 85-90. FNa. Mass.Adv.Sh. (1975) 1924, 1929. A showing that, since Leis, doubts

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375 N.E.2d 688 375 Mass. 63, 375 N.E.2d 688, 96 A.L.R.3d 216 (Cite as: 375 Mass. 63, 375 N.E.2d 688)

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about the drug had been resolved in its favor beyond reasonable scientific dispute, would portend a different legal result. See State v. Anonymous, 32 Conn.Sup. 324, 355 A.2d 729 (1976). But the plaintiffs conceded at oral argument and in their brief that a fresh inquiry would yield no different result on application of a “rational relation” test.FN4 As the single justice said, the complaint admitted implicitly that marihuana can be harmful in some circumstances. And the most recent judicial opinions (not excluding Ravin v. State, 537 P.2d 494 (Alaska 1975), which within certain limits held unconstitutional a prohibition of possession for private use) have found the apprehension of dangers to health and safety to be rationally based; they mention such risks as psychotic reactions and automobile accidents. See, e. g., State v. Anonymous, supra; Blincoe v. State, 231 Ga. 886, 204 S.E.2d 597 (1974); State v. Baker, 56 Haw. 271, 535 P.2d 1394 (1975); State v. Kells, 199 Neb. 374, 259 N.W.2d 19 (1977). FN5 FN4. The cases at times speak of legislation which need only undergo a test of “reasonable relation” and legislation that must survive “strict scrutiny,” but we conceive that these soubriquets are a shorthand for referring to the opposite ends of a continuum of constitutional vulnerability determined at every point by the competing values involved. Cf. State v. Erickson, 574 P.2d 1, 11-12 (Alaska 1978). FN5. Cited in the briefs of both parties is Marihuana and Health (Fifth Ann.Rep. to Congress from the Secretary of HEW, 1975), which states (at 10) that “evidence of a range of potentially serious

consequences of marihuana use exists.” For recent discussions of the scientific position, see the materials cited in 1972 Mass.House Doc.No. 5896, Ninth Interim Report of the Special Commission on Drug Abuse 91-96, and Ravin v. State, 537 P.2d 494, 504 n. 43 (Alaska 1975). **690 *66 The plaintiffs contend, however, that legislation which goes to the extreme of forbidding the possession in one's own home of a substance meant for personal use, invades a “zone of privacy” ( Griswold v. Connecticut, 381 U.S. 479, 484, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965)) and cannot be justified constitutionally by a slim demonstration of potential harm; better or more substantial reason would have to be shown. That contention, made in somewhat different form, was likewise rejected in Leis, 355 Mass. at 195, 243 N.E.2d 898. It is true that “privacy” has grown in constitutional estimation as related to certain matters in which individual autonomy is thought to be especially important and desirable.FN6 Thus it is held that individual choice as to procreation and other core concerns of human existence may be circumscribed by the State only in deference to highly significant public goals. See, e. g., Roe v. Wade, 410 U.S. 113, 152, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Framingham Clinic, Inc. v. Selectmen of Southborough, -- Mass. --, -FNb, 367 N.E.2d 606 (1977). And so, in our own decision of Superintendent of Belchertown State School v. Saikewicz, -Mass. --, -- - --FNc, 370 N.E.2d 417 (1977), we recognized a constitutional right of independent election, which may as well be called a right of privacy, as to

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the continuation of life itself: here the individual's choice whether to accept or decline medical treatment is normally beyond veto by the State. See also People v. Privitera, 74 Cal.App.3d 936, 141 Cal.Rptr. 764 (1977). FN6. In Whalen v. Roe, 429 U.S. 589, 599, 97 S.Ct. 869, 876, 51 L.Ed.2d 64 (1977), privacy is spoken of as comprising interests in “avoiding disclosure of personal matters” and “independence in making certain kinds of important decisions.” FNb. Mass.Adv.Sh. (1977) 1857, 1863. FNc. Mass.Adv.Sh. (1977) 2461, 2473-2478. The right to possess or use marihuana cannot be readily assimilated in character or importance to the kinds of rights just mentioned (cf. Whalen v. Roe, 429 U.S. 589, 600 n. 26, 97 S.Ct. 869, 876 n. 26, 51 L.Ed.2d 64 (1977)), but the plaintiffs contend that Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969) (decided after Leis ), is close to their *67 case. Stanley was prosecuted for the possession in his home of material claimed to be obscene. The Court wrote that “(i)f the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch.” 394 U.S. at 565, 89 S.Ct. at 1248. The difficulties of proving that possession of obscene matter in a particular case was with intent to distribute (a state of facts assumed to be subject to criminal punishment) would not “justify

infringement of the individual's right to read or observe what he pleases. Because that right is so fundamental to our scheme of individual liberty, its restriction may not be justified by the need to ease the administration of otherwise valid criminal laws. . . . We hold that the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime.” Id. at 568, 89 S.Ct. at 1249. The plaintiffs think the Stanley case suggests that possession of marihuana in the home merits like immunity from governmental intervention, even though no cognizable First Amendment interest is involved. In this connection they cite dicta from the later opinions in Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973), and United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973) (and might have added United States v. 12 200-Ft. Reels of Super 8 MM. Film, 413 U.S. 123, 126, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973) ). These cases, upholding prosecutions for public exhibition and transportation of obscene films against constitutional challenge, sought to distinguish Stanley as having been decided “on the narrow basis of the ‘privacy of the home,’ which was hardly more than a reaffirmation that ‘a man's home is his castle.’ ” 413 U.S. at 66, 93 S.Ct. at 2640. The Court said the “privacy right encompasses and protects the personal intimacies of the home” ( **691Paris Adult Theatre at 65, 93 S.Ct. at 2639), and the “Constitution extends special safeguards to the privacy of the home, just as it protects other special privacy rights such as those of marriage, procreation, motherhood, child rearing, and education.” Orito, 413 U.S. at 142, 93 S.Ct. at 2677. This language does not announce a

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375 N.E.2d 688 375 Mass. 63, 375 N.E.2d 688, 96 A.L.R.3d 216 (Cite as: 375 Mass. 63, 375 N.E.2d 688)

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privacy doctrine universally demanding peculiar justification for enforcing the criminal law against conduct within private homes. Nevertheless*68 such justification may be required when the effects of the behavior are limited more or less to the hearth. Thus the Paris Adult Theatre and Orito cases were stressing the point that in Stanley the place of the possession, the confinement of the viewing of the material, reduced to a null force, or nearly so, any claim of deleterious public effects which could possibly legitimate the State's intrusion. See also Smith v. United States, 431 U.S. 291, 307, 97 S.Ct. 1756, 52 L.Ed.2d 324 (1977). The Stanley Court had indeed said, replying to the argument that the private reading of obscene matter would cause antisocial conduct, that there was “little empirical basis” for that assertion ( 394 U.S. at 566, 89 S.Ct. 1243) and in all events the “least restrictive alternative” analysis familiar in First Amendment discussions would require that the State legislate against the antisocial behavior rather than the ideas that caused it. In contrast, in the case of marihuana, we are bound to assume for constitutional purposes that the private use does have public results, does spill over into the public domain and touch matters of legitimate State interest, while the freedom impaired by the penal statute, taken at its highest evaluation, does not reach the level of that freedom conceived by the Court to be implicated in Stanley. We find direct confirmation for these views in Stanley where the Court speaks to possession of drugs among other contraband: “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. at 568 n. 11, 89 S.Ct. at 1249 n. 11.FN7 FN7. That the Stanley decision resulted from a combination of its First Amendment orientation, the locus of the questioned conduct, and the confinement of the effects of that conduct, is suggested by a comparison with the Supreme Court's affirmance without opinion, 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976), of Doe v. Commonwealth's Attorney for Richmond, 403 F.Supp. 1199 (E.D.Va.1975) (three-judge court), holding that the State could outlaw private homosexual conduct of consenting adults. See also Lovisi v. Slayton, 539 F.2d 349 (4th Cir. 1976); Enslin v. Wallford, 565 F.2d 156 (4th Cir. 1977), cert. applied for, 46 U.S.L.W. 3557 (1976). But note Commonwealth v. Balthazar, 366 Mass. 298, 318 N.E.2d 478 (1974), habeas corpus granted on other grounds, 428 F.Supp. 425 (D.Mass.1977), aff'd, 573 F.2d 698 (1st Cir. 1978); Commonwealth v. Scagliotti, 373 Mass. 626, --, 371 N.E.2d 726 (1977) (Mass.Adv.Sh. (1977) 2323, 2324); Commonwealth v. King, 374 Mass. 5, --, 372 N.E.2d 196 (1977) (Mass.Adv.Sh. (1977) 2636, 2646). *69 With near unanimity, courts have in fact rejected arguments like the plaintiffs', including that based on

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375 N.E.2d 688 375 Mass. 63, 375 N.E.2d 688, 96 A.L.R.3d 216 (Cite as: 375 Mass. 63, 375 N.E.2d 688)

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“privacy,” for a constitutionally-protected right to have and use marihuana in the home. See, e. g., United States v. Drotar, 416 F.2d 914 (5th Cir. 1969), vacated on other grounds, 402 U.S. 939, 91 S.Ct. 1628, 29 L.Ed.2d 107 (1971); State v. Murphy, 117 Ariz. 57, 570 P.2d 1070 (1977); Laird v. State, 342 So.2d 962 (Fla.1977); Blincoe v. State, 231 Ga. 886, 204 S.E.2d 597 (1974); State v. Renfro, 56 Haw. 501, 542 P.2d 366 (1975); State v. Kells, 199 Neb. 374, 259 N.W.2d 19 (1977); State v. Anderson, 16 Wash.App. 553, 558 P.2d 307 (1976). The only contrary decision by an appellate court is that already mentioned, Ravin v. State, 537 P.2d 494 (Alaska 1975),FN8 **692 which, it seems, may rest largely on the explicit privacy right found in art. 1, s 22, of the Alaska Constitution, adopted in 1972.FN9 FN8. The Ravin holding insulated from criminal sanction no more than possession of marihuana for private use by adults within the physical confines of the home. The limited reach of the Alaska privacy doctrine was further demonstrated in State v. Erickson, 574 P.2d 1 (Alaska 1978), holding that possession of cocaine for use in the home could be totally prohibited because of the danger that a user would leave home and commit violent crime while under the influence of the drug. FN9. Attacks predicated on constitutional grounds other than substantive due process and privacy have been also generally rejected. In Leis we passed on and rejected challenges based on theories of equal protection and cruel and unusual punishment. These

contentions, not pressed in the present case, would have less force today because marihuana is no longer classed in our legislation as a “narcotic” and the penalties for simple possession have been reduced. See the text below. See also the cases rejecting contentions that the marihuana laws prevent freedom of expression, threaten cruel and unusual punishment, and either deny equal protection or lack rational basis in distinguishing marihuana from alcohol and tobacco and treating it like true narcotics, e. g., United States v. Kiffer, 477 F.2d 349 (2d Cir. 1973) (Feinberg, J.); United States v. Drotar, 416 F.2d 914 (5th Cir. 1969), vacated on other grounds, 402 U.S. 939, 91 S.Ct. 1628, 29 L.Ed.2d 107 (1971); Louisiana Affiliate of Nat'l Organization for Reform of Marijuana Laws v. Guste, 380 F.Supp. 404 (E.D.La.1974), aff'd, 511 F.2d 1400 (5th Cir.), cert. denied, 423 U.S. 867, 96 S.Ct. 129, 46 L.Ed.2d 96 (1975); People v. Aguiar, 257 Cal.App.2d 597, 65 Cal.Rptr. 171 (1968); State v. Kantner, 53 Haw. 327, 493 P.2d 306 (1972); State v. O'Bryan, 96 Idaho 548, 531 P.2d 1193 (1975). See also State v. Bell, Vt., 385 A.2d 1094 (1978). See generally Soler, Of Cannabis and the Courts: A Critical Examination of Constitutional Challenges to Statutory Marijuana Prohibitions, 6 Conn.L.Rev. 601 (1974); Bonnie & Whitebread, The Forbidden Fruit and the Tree of Knowledge: An Inquiry into the Legal History of American Marijuana Prohibition, 56 Va.L.Rev. 971, 1125-1155 (1970).

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An attack on equal protection grounds did succeed in People v. Sinclair, 387 Mich. 91, 194 N.W.2d 878 (1972); the court's decision that marihuana could not be rationally classified with other drugs led to new legislation reducing the penalties for its possession. See also State v. Leigh, No. 77-267, Fla.Cir.Ct., Dade County, Jan. 18, 1978 (46 U.S.L.W. 2425 (1978)) (finds no rational basis for proscription of use and possession of marihuana in the home). *70 It may indeed be that our discussion has taken too wide a range. If marihuana is supposed with some reason to be harmful to users, the Legislature may claim a power to act against it even without identifying effects on others. Whereas in the First Amendment's realm of information and belief a State “cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts” ( Stanley, supra, 394 U.S. at 566, 89 S.Ct. at 1249), in matters of health and safety the State has long imposed varying constraints which seem directed to protecting individuals from themselves. This notion of governmental power is pervasive even though there is some idea also at work that in the end unhealthy individuals burden the community. See Commonwealth v. Howie, 354 Mass. 769, 238 N.E.2d 373, cert. denied, 393 U.S. 999, 89 S.Ct. 485, 21 L.Ed.2d 464 (1968), where we upheld the constitutionality of legislation requiring motorcyclists to wear safety helmets.FN10 Much health and safety legislation aims not at battling communicable diseases but at saving people from their own folly. Many of the laws controlling impure and unsafe foods and drugs aim not so much at educating the

consumer as at keeping the suspect items wholly beyond his reach. Just how far the *71 State may go in these directions before it encounters a firm right to individual choice, we need not now try to say. FN10. See State ex rel. Colvin v. Lombardi, 104 R.I. 28, 241 A.2d 625 (1968). But see People v. Fries, 42 Ill.2d 446, 250 N.E.2d 149 (1969); American Motorcycle Ass'n v. Department of State Police, 11 Mich.App. 351, 158 N.W.2d 72 (1968). The individual interests which are urged here against the conventional policepower reasons for the ban on marihuana are in essence merely recreational. These interests surely have their place in the assortment of liberties protected by due process guarantees (cf. Selectmen of Framingham v. Civil Serv. Comm'n, 366 Mass. 547, 321 N.E.2d 649 (1974)), but as they are relatively weak they do not overcome those conventional reasons or justifications. The total situation finds a place on the continuum of constitutional vulnerability (see note 4 supra ) where judicial nullification of the proscriptive legislation appears unwarranted. **693 According to the present pattern of the criminal codes of the States of the Union, the possession of marihuana is illegal.FN11 See Soler, Of Cannabis and the Courts: A Critical Examination of Constitutional Challenges to Statutory Marijuana Prohibitions, 6 Conn.L.Rev. 601, 716-723 (1974); also vol. 3 of Marijuana: A Study of State Policies and Penalties (National Governors' Conference, Center for Policy Research and Analysis) 98-104 (1977). Nevertheless the wisdom of such legislation (and of correlative laws as to distribution) remains under active and

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even vehement debate. The menace to health and safety is clearly not as grave as was once supposed and, some would say, is minor compared to the dangers of a number of substances not controlled or banned. See J. Kaplan, Marijuana The New Prohibition (1970). The enforcement problems and evils encountered under current law need not be dwelt on. Some countervailing benefits have been intimated above. These all sum up as matters for legislative deliberation and disposition, and it is worth noting that our Legislature has not been insensitive to the movement of public debate. Since the decision in Leis, the penalty for simple possession of marihuana*72 has been reduced from up to three and a half years' imprisonment and a fine to six months' imprisonment and fine; for first convictions, probation is to be the normal sentence, with records sealed on completion of the term. G.L. c. 94C, s 34, as amended through St.1975, c. 369. The medical, social, and law enforcement aspects of marihuana have been and can be studied by the General Court with an intensity and a breadth no court can readily approximate. See 1972 Mass.House Doc. No. 5896, cited above. It is for that branch of government to decide, perhaps at the plaintiffs' urging, whether the present statute attains to the best solution.FN12 FN11. Subject to certain exceptions, the knowing possession of marihuana is a criminal offense under Federal law as well, 21 U.S.C. s 844(a) (1970), a proscription which would of course continue to apply to the plaintiffs even if they obtained their prayedfor declaration. FN12. In the legislative forum, the

plaintiffs could show that a growing number of States have removed personal possession from the felony category and now regard it as a minor offense. See, e. g., Colo.Rev.Stat. s 12-22-412(12)(a) (Cum.Supp.1976); 1977 N.Y.Laws c. 360 (Marihuana Reform Act of 1977). Further, there is advocacy of withdrawing all criminal sanctions from possession for personal use and from distribution of small amounts not for profit. Among the groups urging such decriminalization are the American Bar Association (ABA Summary of Action Taken by the House of Delegates, 1973, at 12-13), the National Commission on Marihuana and Drug Abuse (Marihuana: A Signal of Misunderstanding (Official Report, 1972)), and the National Conference of Commissioners on Uniform State Laws (Handbook of 1973 Proceedings at 186-187). See also Final Report of the Canadian Commission of Inquiry into the Non-Medical Use of Drugs (1970). Judgment affirmed. Mass.,1978. Marcoux v. Attorney General 375 Mass. 63, 375 N.E.2d 688, 96 A.L.R.3d 216 END OF DOCUMENT

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Date of Printing: Jan 29, 2014 KEYCITE Marcoux v. Attorney General, 375 Mass. 63, 375 N.E.2d 688, 96 A.L.R.3d 216 (Mass., Apr 19, 1978) History Direct History => 1 Marcoux v. Attorney General, 375 Mass. 63, 375 N.E.2d 688, 96 A.L.R.3d 216 (Mass. Apr 19, 1978)

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Date of Printing: Jan 29, 2014 KEYCITE Marcoux v. Attorney General, 375 Mass. 63, 375 N.E.2d 688, 96 A.L.R.3d 216 (Mass., Apr 19, 1978)

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Date of Printing: Jan 29, 2014 KEYCITE Marcoux v. Attorney General, 375 Mass. 63, 375 N.E.2d 688, 96 A.L.R.3d 216 (Mass. Apr 19, 1978) Citing References Positive Cases (U.S.A.) Discussed 1 Goodridge v. Department of Public Health, 798 N.E.2d 941, 985+, 440 Mass. 309, 368+ (Mass. Nov 18, 2003) (NO. SJC-08860) " (in dissent) HN: 1 (N.E.2d) 2 Shell Oil Co. v. City of Revere, 421 N.E.2d 1181, 1183+, 383 Mass. 682, 685+ (Mass. Jun 04, 1981) (NO. M-2266) HN: 1 (N.E.2d) 3 Moe v. Secretary of Administration and Finance, 417 N.E.2d 387, 397+, 382 Mass. 629, 645+ (Mass. Feb 18, 1981) (NO. S-2231) " HN: 1 (N.E.2d) Cited 4 Cote-Whitacre v. Department of Public Health, 844 N.E.2d 623, 656, 446 Mass. 350, 389 (Mass. Mar 30, 2006) (NO. SJC-09436) " HN: 1 (N.E.2d) 5 Doe v. Superintendent of Schools of Worcester, 653 N.E.2d 1088, 1102+, 421 Mass. 117, 143+, 102 Ed. Law Rep. 781, 781+ (Mass. Aug 11, 1995) (NO. SJC06746) " (in dissent) HN: 1 (N.E.2d) 6 Murphy v. Commissioner of Dept. of Indus. Accidents, 612 N.E.2d 1149, 1157, 415 Mass. 218, 232 (Mass. May 12, 1993) (NO. S-6063) HN: 1 (N.E.2d) 7 English v. New England Medical Center, Inc., 541 N.E.2d 329, 333, 405 Mass. 423, 429 (Mass. Jul 20, 1989) (NO. S-5015) " HN: 1 (N.E.2d) 8 Com. v. Nissenbaum, 536 N.E.2d 592, 602+, 404 Mass. 575, 593+ (Mass. Apr 12, 1989) (NO. HD-4496) (in dissent) HN: 1 (N.E.2d) 9 Bachrach v. Secretary of Com., 415 N.E.2d 832, 837, 382 Mass. 268, 278 (Mass. Jan 09, 1981) (NO. S-2237) 10 Opinion of the Justices to the Senate, 376 N.E.2d 810, 818, 375 Mass. 795, 806 (Mass. Apr 27, 1978) 11 Lyons v. Labor Relations Com'n, 476 N.E.2d 243, 249+, 19 Mass.App.Ct. 562, 571+, 24 Ed. Law Rep. 450, 450+ (Mass.App.Ct. Apr 01, 1985) (NO. 84-2) 12 Goodridge v. Department of Public Health, 2002 WL 1299135, *11, 14 Mass.L.Rptr. 591, 591 (Mass.Super. May 07, 2002) (NO. 20011647A) 13 People v. Schmidt, 272 N.W.2d 732, 735+, 86 Mich.App. 574, 580+ (Mich.App. Oct 18, 1978) (NO. 78-1213, 78-319) HN: 1 (N.E.2d)

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14 State v. Smith, 610 P.2d 869, 875, 93 Wash.2d 329, 338 (Wash. Apr 24, 1980) (NO. 44597, 44890, 45296) Mentioned 15 Walden v. Board of Registration in Nursing, 479 N.E.2d 665, 671, 395 Mass. 263, 271 (Mass. Jun 26, 1985) (NO. S-3668) 16 Hampshire Village Associates v. District Court of Hampshire, 408 N.E.2d 830, 832, 381 Mass. 148, 151 (Mass. Jul 15, 1980) 17 Attorney General v. Massachusetts Interscholastic Athletic Ass'n, Inc., 393 N.E.2d 284, 291, 378 Mass. 342, 354 (Mass. Jul 02, 1979) HN: 1 (N.E.2d) 18 Custody of Minor, 389 N.E.2d 68, 74, 377 Mass. 876, 884 (Mass. Apr 20, 1979) 19 Com. v. Cusick, 920 N.E.2d 88, 88, 76 Mass.App.Ct. 1109, 1109 (Mass.App.Ct. Jan 22, 2010) (Table, text in WESTLAW, NO. 08-P-1410) HN: 1 (N.E.2d) 20 National Organization for Reform of Marijuana Laws (NORML) v. Bell, 488 F.Supp. 123, 134+ (D.D.C. Feb 11, 1980) (NO. CIV.1897-73) HN: 1 (N.E.2d) 21 National Organization for Reform of Marijuana Laws v. Gain, 161 Cal.Rptr. 181, 184, 100 Cal.App.3d 586, 593 (Cal.App. 1 Dist. Nov 30, 1979) (NO. CIV. 45596) HN: 1 (N.E.2d) 22 State v. Mallan, 950 P.2d 178, 189, 86 Hawai'i 440, 451 (Hawai'i Jan 30, 1998) (NO. 15608) HN: 1 (N.E.2d) 23 State v. Chrisman, 364 So.2d 906, 908 (La. Nov 02, 1978) (NO. 62260) HN: 1 (N.E.2d) Secondary Sources (U.S.A.) 24 Constitutionality of state legislation imposing criminal penalties for personal possession or use of marijuana, 96 A.L.R.3d 225 (1980) 25 19 Mass. Prac. Series s 301.11, The rule of deference to legislative fact-finding (presumption of constitutionality) (2012) 26 32 Mass. Prac. Series s 468, Unauthorized possession of drugs (2013) HN: 1 (N.E.2d) 27 Massachusetts Proof of Cases Criminal s 47:33, Simple possession, in general (2013) HN: 1 (N.E.2d) 28 West's A.L.R. Digest 96HK6, 6. --Validity (2013) HN: 1 (N.E.2d) 29 RAVIN REVISITED: DO ALASKANS STILL HAVE A CONSTITUTIONAL RIGHT TO POSSESS MARIJUANA IN THE PRIVACY OF THEIR HOMES?, 15 Alaska L. Rev. 315, 344 (1998) HN: 1 (N.E.2d) 30 ORDINARY AND ENHANCED RATIONAL BASIS REVIEW IN THE MASSACHUSETTS SUPREME JUDICIAL COURT: A PRELIMINARY INVESTIGATION, 69 Alb. L. Rev. 415, 444 (2006) 31 PROPORTIONAL, NOT STRICT, SCRUTINY: AGAINST A U.S. "SUSPECT CLASSIFICATIONS" MODEL UNDER ARTICLE 14 ECHR IN THE U.K., 56

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Am. J. Comp. L. 847, 893 (2008) HN: 1 (N.E.2d) 32 THE (RELATIVE) PASSIVITY OF GOODRIDGE v. DEPARTMENT OF PUBLIC HEALTH, 14 B.U. Pub. Int. L.J. 1, 25 (2004) 33 HUNGER STRIKING PRISONERS: THE CONSTITUTIONALITY OF FORCE-FEEDING, 51 Fordham L. Rev. 747, 770 (1983) HN: 1 (N.E.2d) 34 MASSACHUSETTS CIVIL RIGHTS LAW, 76 Mass. L. Rev. 77, 96+ (1991) HN: 1 (N.E.2d) 35 REASONABLE SUSPICION OF AN UNJUST CONCLUSION: HOW COMMONWEALTH V. CRUZ CRIPPLES ENFORCEMENT OF MASS. GEN. LAWS CH. 94C, S 32L, 46 New Eng. L. Rev. 877, 907 (2012) HN: 1 (N.E.2d) 36 TAKING A CLOSER LOOK AT MASSACHUSETTS PUBLIC SCHOOL EXPULSIONS: PROPOSING AN INTERMEDIATE STANDARD OF JUDICIAL REVIEW AFTER DOE V. SUPERINTENDENT OF SCHOOLS, 31 New Eng. L. Rev. 605, 654+ (1997) HN: 1 (N.E.2d) 37 GAY MARRIAGE IN RHODE ISLAND: A BIG ISSUE IN A SMALL STATE, 12 Roger Williams U. L. Rev. 291, 312 (2007) 38 PLANNED PARENTHOOD v. CASEY: THE FLIGHT FROM REASON IN THE SUPREME COURT, 13 St. Louis U. Pub. L. Rev. 15, 137 (1993) HN: 1 (N.E.2d) 39 HARM TO THE "FABRIC OF SOCIETY" AS A BASIS FOR REGULATING OTHERWISE HARMLESS CONDUCT: NOTES ON A THEME FROM RAVIN V. STATE, 27 Seattle U. L. Rev. 41, 74 (2003) HN: 1 (N.E.2d) 40 OVERDUE PROCESS: WHY DENIAL OF PHYSICIAN-PRESCRIBED MARIJUANA TO TERMINALLY ILL PATIENTS VIOLATES THE UNITED STATES CONSTITUTION, 22 Seattle U. L. Rev. 235, 263+ (1998) HN: 1 (N.E.2d) 41 THE MASSACHUSETTS CONSTITUTION-THE LAST THIRTY YEARS, 44 Suffolk U. L. Rev. 331, 358+ (2011) HN: 1 (N.E.2d) 42 PRIVACY OUTSIDE OF THE PENUMBRA: A DISCUSSION OF HAWAI'I'S RIGHT TO PRIVACY AFTER STATE V. MALLAN, 21 U. Haw. L. Rev. 273, 315 (1999) HN: 1 (N.E.2d) 43 MONKEY SEE, MONKEY DO: ON BAKER, GOODRIDGE, AND THE NEED FOR CONSISTENCY IN SAME-SEX ALTERNATIVES TO MARRIAGE, 26 Vt. L. Rev. 959, 988+ (2002) HN: 1 (N.E.2d) 44 UNIVERSAL HEALTH INSURANCE UNDER STATE EQUAL PROTECTION LAW, 23 W. New Eng. L. Rev. 327, 379+ (2002) HN: 1 (N.E.2d) 45 DCCDM Massachusetts Continuing Legal Education Materials 16-1, POSTCONVICTION CONCERNS (2010) Court Documents Appellate Court Documents (U.S.A.)

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Appellate Briefs 46 STONEHILl COLLEGE, Plaintiff/Appellant, v. MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION and Soo Tang Tan, Defendants/ Appellees., 2003 WL 23317654, *23317654+ (Appellate Brief) (Mass. Mar 20, 2003) Supplemental Brief for Defendant/Appellee Soo Tang Tan (NO. SJC09112) " HN: 1 (N.E.2d) 47 Thomas L. BALLERINO and Patricia Ballerino, Plaintiffs-Appellees, v. Donna L. BALLERINO, Defendant-Appellant Thomas A. Ballerino, Defendant; John D. Blixt, Plaintiff-Appellant, v. Kristin Blixt and Paul C Sousa, DefendantsAppellees., 2002 WL 33027606, *33027606+ (Appellate Brief) (Mass. Jan 02, 2002) Brief of Amicus Curiae Gay & Lesbian Advocates & Defenders (NO. SJC-08639) 48 GAY & LESBIAN ADVOCATES & DEFENDERS, Joe Doe, Mark Merante, Adrien Saks, Sue Hyde, Justin Deabler, Beth Jacklin, Carl Koechlin, N. Tyson Smith-Ray, and Tim Smith-Ray, Plaintiffs-Appellants, v. Thomas F. REILLY, in his capacity as Attorney General of the Commonwealth of Massachusetts; Martha Coakley, in her capacity as District Attorney of Middlesex County; and Ralph Martin, in his capacity as District Attorney of Suffolk County, DefendantsAppellees., 2001 WL 34890588, *34890588+ (Appellate Brief) (Mass. Nov 30, 2001) Brief of Amicus Curiae American Civil Liberties Union of Massachusetts in Support of Appellants' Brief (NO. SJC-08539) " HN: 1 (N.E.2d) 49 GAY & LESBIAN ADVOCATES & DEFENDERS, John Doe, Mark Merante, Adrien Saks, Sue Hyde, Justin Deabler, Beth Jacklin, Carl Koechlin, N. Tyson Smith-ray, and Tim Smith-Ray, Plaintiffs-Appellants, v. Thomas F. REILLY, In His Capacity As Attorney General of the Commonwealth of Massachusetts; Martha Coakley, In Her Capacity As District Attorney of Middlesex County; Ralph Martin, In His Capacity As District Attorney of Suffolk County, Defendants-Appellees., 2001 WL 34890582, *34890582+ (Appellate Brief) (Mass. Jun 22, 2001) Brief of Plaintiffs-Appellants (NO. SJC-08539) " 50 Matthew HARLFINGER, Ppa Marlee Harlfinger, Marlee Harlfinger and Robert Harlfinger, Plaintiffs-Appellants, v. Howard MARTIN, M.D., DefendantAppellee., 2000 WL 34607824, *34607824+ (Appellate Brief) (Mass. Aug 14, 2000) Brief of Plaintiffs-Appellants Matthew Harlfinger, Ppa Marlee Harlfinger, Marlee Harlfinger And Robert Harlfinger (NO. SJC-08356) 51 WYNN & WYNN, P.C., Plaintiff - Appellant & Cross-Appellee, v. MASSACHUSETTS COMMISSION AGAINST DISCRIMINATION, and Jill Carmichael, Defendant - Appellees & Cross-Appellant., 1999 WL 34591113, *34591113+ (Appellate Brief) (Mass. Jul 1999) Brief for the Appellee Massachusetts Commission Against Discrimination (NO. SJC-08118) HN: 1 (N.E.2d) 52 COMMONWEALTH, v. Hector RODRIGUEZ., 1999 WL 34604317,

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*34604317+ (Appellate Brief) (Mass. 1999) Brief and Record Appendix for The Commonwealth (NO. SJC-07984) " HN: 1 (N.E.2d) 53 FELIX A. MARINO CO., INC., Plaintiff-Appellant, v. Christine MORRIS, as she is Commissioner of the Department of Labor and Industries and Scott Harshbarger, as he is Attorney General of the Commonwealth, DefendantsAppellees., 1997 WL 33832308, *33832308+ (Appellate Brief) (Mass. Feb 25, 1997) Brief of the Plaintiff-Appellant Felix A. Marino Co., Inc. (NO. SJC07400) HN: 1 (N.E.2d) 54 PLANNED PARENTHOOD LEAGUE OF MASSACHUSETTS, INC., et al., Plaintiffs-Appellants, v. Attorney GENERAL (L. Scott Harshbarger, as Attorney General of the Commonwealth of Massachusetts), Defendant-Appellee., 1996 WL 33684891, *33684891+ (Appellate Brief) (Mass. Nov 01, 1996) Brief of Amicus Curiae American Civil Liberties Union of Massachusetts in Support of Plaintiffs-Appellants (NO. SJC-07121) 55 PLANNED PARENTHOOD LEAGUE OF MASSACHUSETTS, INC., et al., Plaintiffs-Appellants, v. Attorney GENERAL (L. Scott Harshbarger, As Attorney General of the Commonwealth of Massachusetts), Defendant-Appellee., 1996 WL 33684893, *33684893+ (Appellate Brief) (Mass. Mar 11, 1996) Brief of Amici Curiae Abortion Rights Fund of Western Massachusetts, Mass Naral, National Abortion Federation, and National Network of Abortion Funds (NO. SJC-07121) 56 PLANNED PARENTHOOD LEAGUE OF MASSACHUSETTS, INC., et al., Plaintiffs-Appellants, v. Attorney GENERAL (L. Scott Harshbarger, as Attorney General of the Commonwealth of Massachusetts), Defendant-Appellee., 1996 WL 33684889, *33684889+ (Appellate Brief) (Mass. Mar 07, 1996) Brief of Plaintiffs-Appellants (NO. SJC-07121) " 57 Jeffrey H. BENSON, Plaintiff-Appellant and Cross-Appellee, v. Debra R. BENSON, Defendant-Appellee and Cross-Appellant., 1995 WL 17792194, *17792194+ (Appellate Brief) (Mass. 1995) Brief for the Intervenors, Bonnie and Heather Benson. (NO. SJC-06519) 58 Susan PARKINS, Appellant, v. Robert BOULE, et al., Appellees., 1994 WL 16198166, *16198166+ (Appellate Brief) (Mass. Dec 19, 1994) Brief Amicus Curiae of the Center for Law and Education (NO. SJC-06746) " HN: 1 (N.E.2d) 59 William RUSHWORTH, et al., Plaintiffs-Appellants, v. Gerald GNAZZO, Registrar of Motor Vehicles, Defendant-Appellee., 1992 WL 12154104, *12154104 (Appellate Brief) (Mass. Apr 24, 1992) Appellee's Brief on Reservation and Report (NO. SJC-05907) 60 William RUSHWORTH, William Sullivan, and James B. Peterson, Sr., Plaintiffs, v. REGISTRAR OF MOTOR VEHICLES, Defendant., 1992 WL 12154102, *12154102+ (Appellate Brief) (Mass. Mar 31, 1992) Brief for the Plaintiffs (NO. SJC-05907) " HN: 1 (N.E.2d) 61 James M. DISABITINO, Plaintiff, Appellant, v. GEORGETOWN

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CONSERVATION COMMISSION, Defendant, Appellee., 2010 WL 1041004, *1041004+ (Appellate Brief) (Mass.App.Ct. Mar 08, 2010) Reply Brief of Appellant (NO. 2009-P-1596) 62 COMMONWEALTH OF MASSACHUSETTS, Appellee, v. Richard CUSICK & Russell K. Stroup, Defendants-Appellants., 2009 WL 972395, *972395+ (Appellate Brief) (Mass.App.Ct. Mar 20, 2009) Brief and Supplemental Appendix for the Commonwealth on Appeal from a Judgment of the Boston Municipal Court (NO. 2008-P-1410) 63 COMMONWEALTH, Appellee, v. Russell STROUP and Richard Cusick, Defendants - Appellants., 2008 WL 5151274, *5151274+ (Appellate Brief) (Mass.App.Ct. Nov 2008) Brief of Appellants (NO. AC2008-P-1410) 64 COMMONWEALTH, Appellee, v. Michael J. SHEA, Defendant-Appellant., 2007 WL 3156182, *3156182+ (Appellate Brief) (Mass.App.Ct. Sep 2007) Commonwealth's Brief (NO. 07-P-889) HN: 1 (N.E.2d) 65 Margaret C. CONNOLLY and Lee T. Connolly, Plaintiffs - Appellants, v. FOWLER & SONS, INC., Defendant - Appellee., 2001 WL 34727359, *34727359+ (Appellate Brief) (Mass.App.Ct. Jul 18, 2001) Brief of Appellee, Fowler and Sons, Inc. (NO. 01-P-332) 66 State of WISCONSIN, Plaintiff-Respondent, v. Steven L. BEECRAFT, Defendant-Appellant., 2006 WL 6143029, *6143029 (Appellate Brief) (Wis.App. IV Dist. 2006) Brief of Plaintiff-Respondent (NO. 2006AP982) Trial Court Documents (U.S.A.) Trial Motions, Memoranda and Affidavits 67 Curtis NEWVILLE, v. SEX OFFENDER REGISTRY BOARD., 2009 WL 8246051, *1 (Trial Motion, Memorandum and Affidavit) (Mass.Super. Jun 03, 2009) Defendant Sex Offender Registry Board's Opposition to Plaintiff's Motion for Judgment On the Pleadings (NO. ESCV2008-01382) 68 AMERICAN LITHUANIAN NATURALIZATION CLUB, Athol, Mass. Inc., Athol Franco-American Naturalization Club, Inc., and American Legion Post #102, Inc., Plaintiffs, v. Joan E. HAMLETT, L. Edward Chauvette, and Norma Purple, as they constitute the Board of Health of Athol, and the Town of Athol, Defendants., 2004 WL 5040773, *5040773 (Trial Motion, Memorandum and Affidavit) (Mass.Super. Dec 02, 2004) Plaintiff's Motion for Preliminary Injunction (NO. 04-2340B) 69 Hilary GOODRIDGE and others, v. DEPARTMENT OF PUBLIC HEALTH and another., 2002 WL 34372049, *34372049 (Trial Motion, Memorandum and Affidavit) (Mass.Super. May 07, 2002) Memorandum of Decision and Order On Parties' Cross-Motions for Summary Judgment (NO. 2001-1647-A) 70 Hillary GOODRIDGE and Julie Goodridge, David Wilson and Robert Compton, Michael Horgan and Edward Balmelli, Maureen Brodoff and Ellen Wade, Gary

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Chalmers and Richard Linnell, Heidi Norton and Gina Smith, and Gloria Bailey and Linda Davies, Plaintiffs, v. DEPARTMENT OF PUBLIC HEALTH, and Dr. Howard Koh, in his official capacity as Commissioner of the Department of Public Health, Defendants., 2002 WL 32910990, *32910990 (Trial Motion, Memorandum and Affidavit) (Mass.Super. Mar 04, 2002) Memorandum in Opposition to Defendants' Cross Motion for Summary Judgment and Reply (NO. 01-1647-A) " 71 Hillary GOODRIDGE and Julie Goodridge, David Wilson and Robert Compton, Michael Horgan and Edward Balmelli, Maureen Brodoff and Ellen Wade, Gary Chalmers and Richard Linnell, Heidi Norton and Gina Smith, and Gloria Bailey and Linda Davies, Plaintiffs, v. DEPARTMENT OF PUBLIC HEALTH, and Dr. Howard Koh, in his official capacity as Commissioner of the Department of Public Health, Defendants., 2002 WL 34094266, *34094266 (Trial Motion, Memorandum and Affidavit) (Mass.Super. Mar 04, 2002) Memorandum in Opposition to Defendants' Cross Motion for Summary Judgment and Reply (NO. 01-1647-A) " 72 Hillary GOODRIDGE, et al., Plaintiffs, v. DEPARTMENT OF PUBLIC HEALTH, et al., Defendants., 2001 WL 34825137, *34825137+ (Trial Motion, Memorandum and Affidavit) (Mass.Super. Dec 19, 2001) Cross-Motion for Summary Judgment (NO. 01-1647-A) " HN: 1 (N.E.2d) 73 Hillary GOODRIDGE and Julie Goodridge, David Wilson and Robert Compton, Michael Horgan and Edward Balmelli, Maureen Brodoff and Ellen Wade, Gary Chalmers and Richard Linnell, Heidi Norton and Gina Smith, and Gloria Bailey and Linda Davies, Plaintiffs, v. DEPARTMENT OF PUBLIC HEALTH, and Dr. Howard Koh, in his official capacity as Commissioner of the Department of Public Health, Defendants., 2001 WL 34825136, *34825136+ (Trial Motion, Memorandum and Affidavit) (Mass.Super. Aug 20, 2001) Plaintiffs' Motion for Summary Judgment (NO. 01-1647-A) " HN: 1 (N.E.2d) 74 Hillary GOODRIDGE and Julie Goodridge, David Wilson and Robert Compton, Michael Horgan and Edward Balmelli, Maureen Brodoff and Ellen Wade, Gary Chalmers and Richard Linnell, Heidi Norton and Gina Smith, and Gloria Bailey and Linda Davies, Plaintiffs, v. DEPARTMENT OF PUBLIC HEALTH, and Dr. Howard Koh, in his official capacity as Commissioner of the Department of Public Health, Defendants., 2001 WL 35920961, *35920961+ (Trial Motion, Memorandum and Affidavit) (Mass.Super. Aug 20, 2001) Plaintiffs' Motion for Summary Judgment (NO. 01-1647-A) " HN: 1 (N.E.2d) 75 Hillary GOODRIDGE, et al., Plaintiffs, v. DEPARTMENT OF PUBLIC HEALTH, et al., Defendants., 2001 WL 35920960, *35920960+ (Trial Motion, Memorandum and Affidavit) (Mass.Super. Jan 18, 2001) Memorandum in Opposition to Plaintiffs' Motion for Summary Judgment and in Support of Defendants' Motion for Summary Judgment Thomas F. Reilly (NO. 01-1647-A) " HN: 1 (N.E.2d)

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