Katie Stancombe for www.theindianalawyer.com
A case dealing with a man’s constitutional right to the pursuit of happiness in the form of a marijuana blunt is possibly headed to the state’s highest court now that a petition to transfer has been filed.
While hitching a ride to a liquor store, John L. Solomon was arrested during a traffic stop when police found a marijuana blunt near where Solomon had been sitting in the backseat. Police said Solomon claimed nothing in the car was his except the blunt, but at a bench trial more than a year later, Solomon testified he didn’t know about the blunt and that he had told an officer it didn’t belong to him. Solomon was ultimately convicted of Class B misdemeanor possession of marijuana.
Although he raised an argument under the Indiana Constitution challenging Indiana’s criminal law against marijuana, the Indiana Court of Appeals declined to accept Solomon’s assertion that his misdemeanor conviction violated his constitutional rights to liberty and the pursuit of happiness under Article 1, Section 1, of the Indiana Constitution.
Specifically, the COA found Solomon’s claim was waived in John L. Solomon v. State of Indiana, 18A-CR-2041, because it was not raised in the trial court, and that even if it had been justiciable, reversal was not warranted. The court held that the extent to which Solomon’s possession of marijuana under the circumstances constituted a criminal offense was a legislative determination, not a judicial one.
But Indiana University Robert H. McKinney School of Law professor Joel Schumm, who is representing Solomon in the case, has filed a petition to transfer what he considers a case of first impression.
In the petition, Schumm criticized the appellate court’s published opinion of the case, which he noted was primarily devoted to summarizing counsel arguments in several pages before finally resolving the issue in its final paragraph.
“Perhaps most troubling, without citation to authority the opinion broadly declares an Article 1 constitutional claims is off-limits as ‘a legislative determination and not a judicial one,’†Schumm wrote in the March 18 petition to transfer.
The petition states that possession of a single blunt by a person who is not driving does not cause harm to the community and falls well within the protections afforded by Section 1. Among other arguments opposing the COA’s denial, the petition points out that articles cited by the state opposing Solomon’s claims instead place focus on the potential harm to pot users, rather than harm inflicted on the community as a whole.
Schumm also wrote that marijuana use was legal in 1851 when the Indiana Constitution was drafted and ratified, and that in the mid-1800s marijuana was legal in the United States and used for medicinal purposes on a small scale. Schumm additionally asserted that transfer was warranted because the COA’s published opinion conflicted with Indiana Supreme Court precedent, and because it decided on a case of first impression in a manner that “significantly departs from precedent and practice.â€
Solomon’s case is a topical one, as Indiana sits rogue among neighboring states as one that has yet to legalize any form of marijuana. Lawmakers in the Indiana General Assembly have introduced numerous bills to legalize medicinal or recreational marijuana this legislative session. However, all but one of those bills has made little progress.
