Supreme Court of Ohio Clerk of Court - Filed January 07, Case No NO IN THE SUPREME COURT OF OHIO STATE OF OHIO

Transcription

1 Supreme Court of Ohio Clerk of Court - Filed January 07, Case No NO IN THE SUPREME COURT OF OHIO STATE OF OHIO Plaintiff-Appellant vs. Mark Hutchings Defendant-Appellee MEMORANDUM IN OPPOSITION OF JURISDICTION Counsel for Plaintiff-Appellant TIMOTHY J. McGINTY CUYAHOGA COUNTY PROSECUTOR ADAM M. CHALOUPKA ( ) (COUNSEL OF RECORD) Assistant Prosecuting Attorney The Justice Center, 8 TH Floor 1200 Ontario Street Cleveland, Ohio (216) Counsel for Defendant-Appellee David V. Patton P.O. Box Solon, Ohio

2 TABLE OF CONTENTS EXPLANATION OF WHY THE PROPOSITION OF LAW RAISED BY DEFENDANT- APPELLANT DOES NOT PRESENT SUBSTANTIAL CONSTITUTIONAL QUESTIONS OR ISSUES OF GREAT PUBLIC OR GENERAL INTEREST...1 STATEMENT OF THE CASE AND RELEVANT FACTS...3 LAW AND ARGUMENT...4 APPELLANT S FIRST PROPOSITION OF LAW: WHERE A CITIZEN OF A FOREIGN STATE IS CONVICTED OF A CRIME IN OHIO, AND THE FOREIGN CITIZEN IS LAWFULLY ENTITLED TO USE MEDICAL MARIJUANA IN THE FOREIGN STATE, AN OHIO COURT MAY NOT, AS A COMMUNITY CONTROL CONDITION, FORBID THE FOREIGN CITIZEN FORM LAWFULLY USING MEDICAL MARIJUANA IN THE FOREIGN STATE. CONCLUSION...16 CERTIFICATE OF SERVICE...16 i

3 EXPLANATION OF WHY THE PROPOSITION OF LAW RAISED BY DEFENDANT- APPELLANT DOES NOT PRESENT SUBSTANTIAL CONSTITUTIONAL QUESTIONS OR ISSUES OF GREAT PUBLIC OR GENERAL INTEREST Defendant-appellant Mark Hutchings fails to demonstrate any compelling or meritorious reasons why his proposition of law rises to the level of substantial constitutional questions or issues of great public or general interest. Hutchings raises one proposition of law that involves the application of well-settled constitutional principles to the particular facts of this unique case. The Eighth District Court of Appeals properly weighed the evidence in this case according to controlling law, and there are no substantial constitutional questions or issues of great public or general interest for this Honorable Court to resolve. After being arrested and charged in a multi-count indictment in for a large marijuana growing and drug trafficking operation conducted out of his suburban Berea, Ohio, home, Hutchings pleaded guilty to a fourth degree felony violation of Drug Trafficking with forfeiture specifications. The trial court sentenced Defendant to three years of community control sanctions. One of the conditions of his community control sanctions was to abstain from the use of illegal drugs. Less than three months after the imposition of his sentence, Huthcings tested positive for marijuana use and found to be in violation of the terms of his community control sanctions. This violation allegedly stemmed from the use of validly prescribed medicinal marijuana for chronic pain in his new resident state of Michigan. Instead of filing a motion with the trial court to have his probation transferred to a county in Michigan, Defendant decided to try and modify his community control sanctions in the trial court to allow for marijuana use. This motion was made under the premise it that is was unconstitutional and in violation of federal law to prohibit the use of medical marijuana as a term of community control sanctions. 1

4 The trial court denied Hutchings s motion and he subsequently appealed to the Eighth District Court of Appeals. The Eight District affirmed the trial court s ruling and held that a prohibition of marijuana use as term of community control is permitted under Ohio criminal statutes and such a prohibition is not unconstitutional nor violative of any federal or state law because Hutchings has a medical marijuana prescription from another state. State v. Hutchings, 8 th Dist. Cuyahoga No , 2014-Ohio In Defendant s sole proposition of law he regurgitates the same arguments he made before the Eight District that a defendant under community control sanctions in Ohio for Drug Trafficking has a constitutional right to use marijuana when the drug s use is permitted in a defendant s resident state of Michigan, but prohibited under the criminal laws of Ohio. As correctly asserted by the Eighth District Court of Appeals, such a proposition of law is simply invalid. So long as marijuana use is illegal under the criminal laws of Ohio and the United States criminal code, no support for Defendant s proposition of law asking for a constitutional right to use marijuana while on community control sanctions can be found in the Constitution of the United States, the state constitutions of Ohio and Michigan, or within the federal American s with Disability Act and Rehabilitation Act. Here, it is the simple facts before the Court and not a legitimate dispute about the governing constitutional standards that dictate the outcome. The Court of Appeals thoughtfully and thoroughly applied well-settled and properly stated rules of law to this case and found that defendant s assignments of error lacked merit. The State submits that this case does not present this Honorable Court with a substantial constitutional question or issue of great public or general interest. 2

5 The State of Ohio therefore respectfully requests that this Honorable Court decline jurisdiction of the proposition of law raised by the Defendant-appellant Mark Hutchings. STATEMENT OF THE CASE AND RELEVANT FACTS In June of 2012, police executed a search warrant at Defendant-Appellant Mark Hutchings, residence in Berea, Ohio. Police found marijuana plants and approximately $24,000 in cash. Hutchings was not arrested or charged with any crime at the time of the search warrant s execution. State v. Hutchings, 8 th Dist. Cuyahoga No , 2014-Ohio-4675, at 2. In August of 2012, Hutchings moved to Ypsilanti, Michigan. Id. at 3. On December 18, 2012, a Cuyahoga County Grand Jury indicted Hutchings with Illegal Cultivation of Marijuana, Drug Trafficking, Possession of Controlled Substances, and Possessing Criminal Tools. Id. at 4. On February 7, 2013, Hutchings pleaded guilty to one count of Drug Trafficking, a fourth degree felony, under R.C (A)(2) and sentenced to three years of community control sanctions. Id. at 5. As conceded by Hutchings, these community control sanctions prohibited the use of any drugs. (Appellant s Memorandum in Support of Jurisdiction at pg. 2). On May 1, 2013, Defendant failed a drug test by testing positive for marijuana. On July 11, 2013, the trial court found Defendant to be in violation of his community control sanctions. Id. at 7. On October, 1, 2013, Defendant filed a motion to modify his community control sanctions. In the motion, he argued that it was improper for the trial court prohibit his use of marijuana because he had a valid prescription to use medical marijuana under the Michigan Medical Marijuana Act. The trial court denied the motion. Id. at 8. 3

6 Defendant subsequently appealed to the Eighth District Court of Appeals raising various constitutional claims and federal statutory challenges. On October 23, 2014, the Eighth District properly affirmed the trial court s adjudication and sentence. LAW AND ARGUMENT APPELLANT S FIRST PROPOSITION OF LAW: WHERE A CITIZEN OF A FOREIGN STATE IS CONVICTED OF A CRIME IN OHIO, AND THE FOREIGN CITIZEN IS LAWFULLY ENTITLED TO USE MEDICAL MARIJUANA IN THE FOREIGN STATE, AN OHIO COURT MAY NOT, AS A COMMUNITY CONTROL CONDITION, FORBID THE FOREIGN CITIZEN FORM LAWFULLY USING MEDICAL MARIJUANA IN THE FOREIGN STATE. This Honorable Court should decline Defendant-appellant Mark Hutchings request for discretionary review of his sole assignment of error as the Eighth District Court of Appeals correctly held that Ohio s enforcement of valid community control sanctions does not violate Hutchings s federal or state constitutional rights. State v. Hutchings, 8 th Dist. Cuyahoga No , 2014-Ohio-4675, at 48. It is well established under federal, Ohio, and Michigan law that trafficking marijuana is illegal. See Gonzales v. Raich, 541 U.S. 1 (2005); R.C (A)(2); Mich. Comp. Laws Ann ; 21 U.S.C Hutchings chose to break the law by growing and selling marijuana in Ohio. Further, he chooses to violate Ohio law each time tests positive for marijuana while on community control. R.C ; Hutchings is not entitled to any special protections from a fair and valid application of federal or state law as a result of moving to Michigan and obtaining a prescription for medical marijuana and using the drug in Michigan while he is on community control in Ohio. A person violating Ohio s prohibition on the trafficking of marijuana is subject to community control sanctions in accordance with Ohio law. There is no protection provided by 4

7 the constitution to use marijuana or other drugs in Michigan while subject to community control sanctions in Ohio. I. A Community Control Sanction Prohibiting Drug Use Does Not Violate the Full Faith and Credit Clause of the United States Constitution. The State s imposition of a community control sanction prohibiting marijuana use is valid under the Full Faith and Credit Clause of the United States Constitution because an Ohio court s imposition of community control sanctions that prohibits the use of marijuana is lawful under the Ohio Revised Code. Hutchings argues that the Full Faith and Credit Clause requires an Ohio recognize a prescription for medical marijuana under Michigan Medical Marijuana Act ( MMMA ) because it is a record within the meaning of the clause. (Appellant s Memo in Support of Jurisdiction at pg. 3). This is not a correct interpretation of the clause and has been previously settled in the State s favor in at least on other jurisdiction. A community control sanction prohibiting drug use does not violate the Full Faith and Credit Clause of the United States Constitution. The issue of whether the Full Faith and Credit Clause requires the modification of community control sanctions based on the offender making use of another state s medical marijuana laws has not been address by Ohio courts or the Sixth Circuit. However, the Oregon Court of Appeals, in State v. Berringer, 234 Ore. App. 665 (Or. Ct. App. 2010), addressed this issue. In Berringer, the defendant, a California resident who was qualified to possess marijuana in California, was arrested in Oregon while driving through for unlawful possession. Id. at 668. The California Compassionate Use Act ( CCUA ) by its terms provides nothing more than a defense against the enforcement of certain California marijuana laws. Id. at 671. The appellate court found that: The CCUA does not (and could not) provide a defense against enforcement of Oregon's marijuana laws in Oregon. Put another way, the Full Faith and Credit Clause requires (at most) that a state give effect to 5

8 Id. (emphasis added). rights established between parties that arise from judgments, agreements, or statutes originating in other states. See Delehant v. Board on Police Standards, 317 Ore. 273, 282, 855 P.2d 1088 (1993). The CCUA establishes (again, at most) rights between qualified California residents and the state of California--not the state of Oregon. Thus, in this case, Oregon does give full faith and credit to the CCUA, because Oregon does not (and could not) enforce California's marijuana laws against defendant. Here, just as in Berringer, the defendant s application of the Full Faith and Credit Clause is misconceived. The MMMA establishes rights between qualified Michigan residents and the state of Michigan not the state of Ohio. Ohio does give full faith and credit to the MMMA, because Ohio does not enforce Michigan s marijuana laws against defendant. Accordingly, defendant s contention is without merit, under Berringer. Hutchings marijuana use is not protected under the Full Faith and Credit Clause of the United States Constitution. If this Honorable Court choses not recognize the clause s interpretation, involving nearly identical facts and circumstances, by the Berringer court, the outcome will still be the same under Ohio s adopted Full Faith and Credit analysis. The doctrine of Full Faith and Credit requires that the state of Ohio give to these acts, records, and judicial proceedings of another state the same faith and credit as they have by law or usage in the courts of such State * * * from which they are taken. Holzemer v. Urbanski, 86 Ohio St. 3d 129 (Ohio 1999). Thus, Ohio courts must give the same credit to the Michigan court proceeding at issue in this case as that proceeding would carry in Michigan's own courts. See Durfee v. Duke (1963), 375 U.S. 106, 109, 84 S.Ct. 242, 244, 11 L.Ed.2d 186, 190. Full faith and credit simply means that Ohio courts must give the same effect to the Michigan court proceedings as that proceeding would be given by Michigan courts the court action, record, or previous judicial proceedings is to be admitted 6

9 into a trial in Ohio. Holzemer at 136. The clause does not, and Hutchings has not provided any law suggesting, that a prescription issued by a Michigan Doctor equates to a court record. Furthermore, under the Full Faith and Credit Clause, we must analyze this case giving it the same effect that the Michigan courts would give this defendant. Under Michigan law, Should a qualifying patient forego the option to have a primary caregiver, they can possess 12 marihuana plants and no more than 2.5 ounces of usable marihuana for their personal use. Mich. Comp. Laws Ann (a). Section(k) states: Any registered qualifying patient or registered primary caregiver who sells marihuana to someone who is not allowed to use marihuana for medical purposes under this act shall have his or her registry identification card revoked and is guilty of a felony punishable by imprisonment for not more than 2 years or a fine of not more than $ 2,000.00, or both, in addition to any other penalties for the distribution of marihuana. (emphasis added). Here, Hutchings was convicted in Ohio of R.C (A)(2), drug trafficking. Analyzing what would have occurred in a Michigan court, we can easily come to the conclusion that the defendant would have been charged under section (k), which is similar in nature to the Ohio drug trafficking statute. Hutchings openly admitted that his operation was used for the selling of marijuana in his conviction below. Michigan law provides that if a person sells marijuana to someone who is not allowed to use it, his identification card would be revoked. Mich. Comp. Laws Ann (k). With a revoked license in Michigan, defendant would not be able to smoke marijuana legally. Giving it the same effect that the Michigan courts would give this defendant, it is clear that, in Michigan also, he would be prohibited from smoking if convicted of the offense he committed in Ohio. Therefore, applying the Full Faith and Credit Clause as applied under Holzemer, the community control sanctions conform to this court s 7

10 constitutional duty. Accordingly, jurisdiction over Hutching s proposed rule of law should be denied. II. A Michigan Law Permitting The Use Of Marijuana For Medical Treatment Does Not Confer The Same Rights To An Individual In Ohio. Hutchings cannot argue that Ohio s community control sanction laws prohibiting drug use in Ohio are invalid simply because a law in Michigan may allow the use of medical marijuana while on probation or another mechanism similar to community control in Michigan. In an effort to find a loophole in Ohio s community control sanction statutes, Hutchings attempts to argue that an Ohio court cannot prohibit Hutchings from using prescribed medical marijuana in Michigan. This argument is premised upon the well accepted legal principles that Ohio and Michigan are independent, sovereign, political entit[ies] and that one state lacks jurisdiction to enforce or encroach upon another state s laws. (Appellant s Memo in Support of Jurisdiction at pgs. 4-5). However, the results that logically follow from this argument is that the Michigan prescription for medical marijuana under the MMMA, a Michigan law, has no effect upon the community control sanctions laws of Ohio. Taking his argument one step further, and in conjunction with the Full Faith and Credit Clause analysis above, the community control sanction prohibiting drug use may actually be recognized by a Michigan court if Hutching s community control is ever transferred from Cuyahoga County to a county in Michigan. The community control sanction prohibiting Hutching s marijuana use is found in a journal entry that records the trial court s action during a previous court proceeding in Ohio. At least under Ohio law, and if Michigan also follows the federal standard for the clause s analysis, the prohibition will be recognized by Michigan courts making Hutching s sovereign states argument fatally flawed. As such, jurisdiction over his proposition of law is unwarranted. 8

11 III. The Community Control Sanction Prohibiting Hutchings s Use of Marijuana Does Not Violate His Constitutional Right to be Free From Cruel and Unusual Punishment. A community control sanction prohibiting marijuana use does not deny Hutchings access to medical care or violate of the Eight Amendment to the United States Constitution or its equivalent section of the Ohio Constitution. Hutchings argues that the failure to modify the community control sanctions prohibiting the use of marijuana violates his right to be free from cruel and unusual punishment, because it merely limits his access to medical treatment. (Appellant s Memo in Support of Jurisdiction at pg. 6). This limitation does not rise to the level a constitutional violation. The Eighth Amendment to the United States Constitution provides that [e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. U.S. Cont. Amend. 8. In Estelle v. Gamble, the Supreme Court recognized that, the government s obligation to provide medical care for those whom it is punishing by incarceration. 429 U.S. 97, 103 (1976) (emphasis added). Ohio Constitution Article 1, 9 provides, in relevant part: "Excessive bail shall not be required; nor excessive fines imposed; nor cruel and unusual punishments inflicted." Because the "cruel and unusual punishment" clauses of the federal and Ohio constitutions are identical, Ohio and federal jurisprudence are identical on this topic. See State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073, Hutchings readily admits that community control sanctions are not incarceration, but seeks to stretch reason and claim a minor limitation on one s liberty (using drugs) makes community control sanctions the functional equivalent of incarceration. (Appellant s Memo in Support of Jurisdiction at pgs. 4-5). But, Hutchings argues because his access to marijuana is 9

12 limited that this somehow translates into the government failing in its obligation to him provide medical care. The requirement of medical treatment under Estelle is distinguishable from the present case. 429 U.S. at 103. The court clearly determined that the Eight Amendment required a duty of adequate medical care for those incarcerated individuals under its authority. Id. As Hutchings admits, he is not incarcerated and therefore this duty does not apply to him. Being on community control is different than incarceration because it allows greater freedom to the offender. Included in this freedom is the right to obtain his own medical treatment and not necessarily have the treatment options be dictated by the State. Hutchings s reading of Estelle is too broad and would require the State to provide probationers with the same access to medical care as those who are incarcerated. Such an interpretation would be burdensome on a society already strained by a complicated and costly healthcare system. Even if this Honorable Court were agree that Hutchings is incarcerated for the purposes of the Eight Amendment, marijuana is not a medically necessary treatment. Hutchings suggests that marijuana is necessary medical treatment. This contention is unfounded, and there is no case law to support it. Currently under federal law, specifically the Controlled Substances Act, there is no acceptable use for marijuana due to the potential detrimental effects on the health and general welfare of the American people. Controlled Substances Act, 21 U.S.C. 801(2) (2007). Marijuana is a Schedule I drug. 21 C.F.R (2012). Schedule I drugs have "a high potential for abuse" and have "no currently accepted medical use in treatment in the United States." 21 U.S.C. 812(b)(1)(a)-(b) (2012). Further, marijuana is not a valid medical treatment under Ohio law. Not only does is marijuana not medically necessary, Hutchings has hundreds of alternatives to dealing with his pain. With a valid doctor s prescription, Hutchings has access to 10

13 medicines that have the same effect, if not better, than marijuana. Accordingly, Hutchings s Eighth Amendment rights are not violated. IV. The Community Control Sanction Prohibiting Hutchings s Use of Marijuana Does Not Violate the Equal Protection Clauses of the Federal and State Constitutions. Smoking marijuana is not a fundamental right. Thus, Hutchings claims under the Equal Protection clauses are without merit. The Equal Protection Clause of the 14 th Amendment to the United States Constitution states that no state shall deny to any person within its jurisdiction the equal protection of the laws. Ohio Constitution Article 1, section 2 provides, [a]ll political power is inherent in the people. Government is instituted for their equal protection and benefit [ ]. The federal and Ohio Equal protection clauses are functionally equivalent and require the same analysis. Mole, 2013-Ohio-3131, 10. Legislation that does not affect a "fundamental" right or a "suspect" class need only bear a rational relationship to a legitimate state interest. State v. Mole, 8 th Dist. No , 2013-Ohio-3131, 10. Smoking marijuana does not qualify as a fundamental right. National Organization for Reform of Marijuana Laws (NORML) v. Bell, 488 F. Supp. 123 (D.D.C. 1980), citing Ravin v. State, 537 P.2d 494, 502 (Alaska 1975) (dictum). Hutchings argues that he is the subject of disparate treatment because his medical marijuana prescription is being treated differently than other drugs. The Equal Protection Clauses do not prohibit his community control sanctions from forbidding the use of marijuana because the sanction does not treat similarly situated persons differently. Equal protection requires that similarly situated persons be treated alike, unless a rational basis justifies treating them differently. Ohio Apt. Assn. v. Levin, 127 Ohio St.3d 76, 2010-Ohio-4414, 936 N.E.2d 919, 38. The State can treat marijuana different than other substances because the use of marijuana is different than other substances. See State v. Steward, 8th Dist. Cuyahoga No. 11

14 80993, 2003-Ohio-1337, 32 (upholding the sentencing disparity between powder and crack cocaine under an equal protection challenge.). Moreover, marijuana use is illegal in Ohio and therefore, a ban on its use regardless of if it is through community control sanctions or not does not treat similarly situated persons differently. Additionally, Hutching s correctly states that the regulation of marijuana does not implicate a fundamental right, and therefore, Ohio s regulation of its use need only pass the rational basis test. (Appellant s Memo in Support of Jurisdiction at pgs. 8-9). The rationalbasis test involves a two-step analysis. We must first identify a valid state interest. Second, we must determine whether the method or means by which the state has chosen to advance that interest is rational. Mole, 2013-Ohio-3131, 11 (quoting McCrone v. Bank One Corp., 107 Ohio St.3d 272, 2005-Ohio-6505, 839 N.E.2d 1, 9). Hutching s claim fails the rational basis test, thus Eight District Court of Appeals correctly upheld the trial court s prohibition of marijuana when it found no violation of the Equal Protection Clauses. Hutchings, supra, at The state has a valid interest in the rehabilitation of offenders. One rational method for the rehabilitation of offenders is to mandate that they abstain from the use of certain drugs and behaviors that the State of Ohio has determined can increase the chance of recidivism. The State s community control sanctions regarding the use of marijuana pass the rational basis test. Further, in National Organization for Reform of Marijuana Laws (NORML) v. Bell, 488 F. Supp. 123 (D.D.C. 1980), the court found that classifying marijuana passes the rational relationship test, stating: The inclusion of marijuana as a controlled substance under the CSA easily satisfies this deferential rationality standard. Congress gave the CSA provisions concerning marijuana considerable attention. It recognized that much of the information regarding marijuana was inaccurate and that bias and ignorance had perpetuated many myths about the consequences and dangers of marijuana use. Despite all the concern 12

15 Id. at 135. (emphasis added). over the drug, few reliable scientific studies existed that could give accurate information to the legislators. Accordingly, even though the regulation of marijuana may differ from other drugs, it passes the rational basis test, and is constitutional. A ban on its use through community control sanctions does not run a fowl of the Equal Protection Clauses of the state and federal constitutions. As such, this Court should deny jurisdiction in this case. V. The Trial Court s Prohibition of Marijuana Use in Hutchings s Community Control Sanctions is Constitutional as applied to Hutchings. Hutchings arguments the community control sanction prohibiting marijuana are without merit for the same reasons as his Equal Protection constitutional challenges above. The community control sanctions are not unconstitutional as applied to the Hutchings. The standard for such a challenge is clear and convincing evidence. State ex rel. Ohio Congress of Parents & Teachers v. State Bd. of Edn., 111 Ohio St.3d 568, 2006-Ohio-5512, 857 N.E.2d 1148, 21. In an as applied challenge, the party challenging the constitutionality of the statute contends that the application of the statute in the particular context in which he has acted, or in which he proposes to act, would be unconstitutional. The practical effect of holding a statute unconstitutional as applied is to prevent its future application in a similar context, but not to render it utterly inoperative. Yajnik v. Akron Dept. of Health, Hous. Div., 101 Ohio St.3d 106, 2004-Ohio-357, 802 N.E.2d 632, 14 (quoting Ada v. Guam Soc. Of Obstetricians & Gynecologists, 506 U.S (1992) (Scalia, J., Dissenting)). As explained above Ohio and its courts have the authority to prohibit the use of drugs that are illegal under Ohio law. Nothing with respect to Hutching s particular circumstances changes Ohio s ability to regulate the use of marijuana by probationers or the general public. Hutchings 13

16 has not satisfied his burden of explaining how the State prohibiting his use of marijuana would be unconstitutional in any form. Accordingly, this is not a basis for this Court to accept jurisdiction over his case. VI. The Prohibition Against Hutchings s Marijuana Use does not Violate Federal Statutory Law. As a marijuana user, Hutchings does not qualify for benefits under the American with Disabilities Act or the Rehabilitation Act of 1973 ( ADA ). As such, those acts cannot be used as the basis for a community control modification. Hutchings is not an individual with a disability under the ADA and therefore cannot claim the benefits of its protections. The ADA only applies to any qualified individual with a disability. 42 U.S.C The ADA also provides that the term individual with a disability does not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use. Id (a). The ADA further defines illegal use of drugs as those drugs which are unlawful under the Controlled Substances Act. Id (d) (citing 21 U.S.C. 801 et seq.). Hutchings attempts to rely upon the second sentence of 42 U.S.C 12210(d), that the [term illegal use of drugs ] does not include the use of a drug taken under supervision by a licensed health care professional, allows him to qualify under the ADA because he has a valid medical marijuana prescription from a licensed Michigan physician. However, [c]ongress has made clear that the ADA defines illegal drug use by reference to federal, rather than state, law and federal law does not authorize the plaintiffs medical marijuana use. James v. City of Costa Mesa, 684 F.3d 825 (9 th Cir. 2012); cer t denied, U.S., 133 S.Ct. 2396, 185 L.Ed (2013). Consequently, medical marijuana use is not protected by the ADA. Id. at

17 Hutchings s argument that the ADA requires the modification of his community control to allow his use of marijuana is without merit. The plain language of the ADA clearly states that those using illegal drugs as defined by the Controlled Substances Act are not covered by the ADA. 42 U.S.C (d). Marijuana is prohibited by the controlled substances act. 21 U.S.C Further, the Ninth Circuit Court of Appeals held that the ADA did not provide for the use of medical marijuana even if allowed under state law. James v. City of Costa Mesa, supra. It is clear that the ADA references federal law regarding the use of illegal drugs and as such provides Hutchings with no right to the use of marijuana. In the same vein, his argument that the Rehabilitation Act of 1973 requires a modification is also without merit, because Hutchings s is not a person with a disability. The Rehabilitation act defines person with a disability by referencing 29 U.S.C. 705(20). 21 U.S.C The definition for individual with a disability under the Rehabilitation Act has the same language prohibiting those engaging in the use of illegal from being included as a person with a disability. 29 U.S.C. 705(20)(C)(i). As previously explained because the claimed disability relates to the use of marijuana it is not covered. Hutchings is not a person covered by the Rehabilitation Act of 1973 because he is not an individual with a disability. Accordingly, accordingly this Court should reject his request for jurisdiction of his sole proposition of law. CONCLUSION The Eighth District Court of Appeals thoughtfully and thoroughly applied well-settled and properly stated rules of law to the constitutional issues in this case when it the trial court s decision to deny a modification of community control and continue the prohibition of marijuana use under Ohio s criminal laws. The State therefore respectfully requests that this Honorable Court decline jurisdiction of the proposition of law raised by the Defendant-appellant. 15

18 Respectfully Submitted, TIMOTHY J. MCGINTY CUYAHOGA COUNT PROSECUTOR /S/ Adam M. Chaloupka ADAM M. CHALOUPKA ( ) Assistant Prosecuting Attorney 1200 Ontario Street, 8 th Floor Cleveland, Ohio CERTIFICATE OF SERVICE A copy of the foregoing Memorandum in Opposition of Jurisdiction has been sent via regular U.S. mail or electronic service on 7 th day of January, 2015 to David V. Patton, P.O. Box 39192, Solon, Ohio /S/ Adam M. Chaloupka ADAM M. CHALOUPKA ( ) Assistant Prosecuting Attorney 16