Opinion
MMXCR140204977T
06-01-2018
STATE of Connecticut v. William BRADLEY
UNPUBLISHED OPINION
OPINION
Keegan, J.
The present case comes before the court on two motions to dismiss filed by the defendant, William Bradley. The relevant facts for the purpose of the present motions, as agreed to by the parties, are that, on January 13, 2017- twenty-four days after being placed on probation for a previous marijuana-related conviction- the defendant was subject to a home visit and search during which probation officers discovered approximately thirty ounces of marijuana. As a result, the defendant was charged with possession of one-half ounce or more of a cannabis-type substance within 1500 feet of a school in violation of General Statutes § 21a-279(b) and possession of marijuana with intent to sell in violation of General Statutes § 21a-277(b)(1). See State v. Bradley, Superior Court, judicial district of Middlesex, Docket No. M09M-CR17-0210994-S. The defendant has also been charged under General Statutes § 53a-32 with violating the terms of his probation, which had been imposed pursuant to a prior conviction under § 21a-277(b)(1). See State v. Bradley, Superior Court, judicial district of Middlesex, Docket No. MMX-CR14-0204977-T.
The legality of the search is not at issue in these motions.
General Statutes § 21a-279 provides in relevant part:
General Statutes § 21a-277 was amended by No. 17-17, § 1, of the 2017 Public Acts, which made technical and clarifying changes to the statute that are not relevant to the present motions to dismiss. For purposes of clarity, the court refers to the current revision of the statute, which provides in relevant part: "No person may manufacture, distribute, sell, prescribe, dispense, compound, transport with the intent to sell or dispense, possess with the intent to sell or dispense, offer, give or administer to another person, except as authorized in ... chapter [420b] or chapter 420f [of the General Statutes], any controlled substance other than a (A) narcotic substance, or (B) hallucinogenic substance." General Statutes § 21a-277(b)(1).
See note 3 of this memorandum of decision.
On April 25, 2017, the defendant moved to dismiss these three charges on the grounds that (1) Connecticut’s criminalization of the possession and sale of marijuana is unconstitutional because it is based in a racially discriminatory purpose; and (2) such laws have been "superseded" by federal law, which now permits the possession and sale of marijuana. In support of these motions, the defendant filed a memorandum of law and several exhibits, including a report by Professor Jon Gettman, Ph. D., of Shenandoah University, in which he presents research and analysis of data on arrests for marijuana offenses in the state of Connecticut. On September 25, 2017, the state filed a memorandum of law in opposition to the defendant’s motions to dismiss, as well as several exhibits. The defendant in turn filed a reply brief on November 1, 2017.
The defendant filed an amended memorandum of law on September 8, 2017.
On November 15, 2017, the court conducted a hearing on the motions. At the hearing, the court admitted Dr. Gettman’s report as a full exhibit and heard testimony from Dr. Gettman indicating that there is a racial disparity in arrest rates in Connecticut for marijuana offenses. The court also heard the parties’ legal arguments.
Following the hearing, on December 27, 2017, the court ordered supplemental memoranda of law addressed to the issue of whether the defendant, being Caucasian, has standing to raise equal protection claims based on alleged discrimination against African Americans. The parties filed their respective supplemental memoranda on January 26, 2018, and the court then heard oral argument on the standing issue on February 7, 2018. For the reasons that follow, the defendant’s motions must be denied.
DISCUSSION
Pursuant to Practice Book § 41-8(8), any claim that the law defining the offense charged is unconstitutional or otherwise invalid, or any other claim capable of determination without a trial of the general issue, must be raised by a pretrial motion to dismiss the information. "A motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the [state] cannot as a matter of law and fact state a cause of action that should be heard by the court ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction ... [Our Supreme Court’s] review of the trial court’s ultimate legal conclusion and resulting [decision to deny] ... the motion to dismiss will be de novo." (Citation omitted; internal quotation marks omitted.) State v. Courchesne, 296 Conn. 622, 668, 998 A.2d 1 (2010).
I
The defendant makes two arguments with respect to the constitutionality of Connecticut’s criminalization of the possession and sale of marijuana: (1) it violates federal constitutional equal protection principles because it is based in a racially discriminatory purpose; and (2) it violates the equal protection clause of the Connecticut constitution, article first, § 20, as amended by articles five and twenty-one of the amendments, because it has a disparate impact on African Americans. Before reaching the substance of these arguments, however, the court must first address two preliminary issues: (1) whether the defendant has standing to maintain these equal protection claims; and (2) whether the defendant may have waived any such claims.
With respect to his first argument, the defendant does not specify in his amended memorandum of law whether he is proceeding under the federal or state constitution, or both. Nevertheless, the defendant’s analysis is based exclusively on federal constitutional jurisprudence, and, thus, even if the defendant intended to proceed under both constitutions, the analysis would be the same because he fails to provide an independent analysis under the state constitution. See Perez v. Commissioner of Correction, 326 Conn. 357, 382 n.10, 163 A.3d 597 (2017) (where petitioner claimed violation of equal protection under both state and federal constitutions but failed to provide independent analysis under state constitution, court would "treat both provisions as embodying the same level of protection").
A
"The issue of standing implicates this court’s subject matter jurisdiction ... [O]nce the question of lack of jurisdiction of a court is raised ... the court must fully resolve it before proceeding further with the case ... Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy ... When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue ...
"Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved ... The fundamental test for determining aggrievement encompasses a well-settled twofold determination: [F]irst, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the subject matter of the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action] ... Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest ... has been adversely affected." (Citations omitted; internal quotation marks omitted.) State v. Long, 268 Conn. 508, 531-32, 847 A.2d 862, cert. denied, 543 U.S. 969, 125 S.Ct. 424, 160 L.Ed.2d 340 (2004).
" [S]tanding is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented ... These two objectives are ordinarily held to have been met when a complainant makes a colorable claim of direct injury [that] he has suffered or is likely to suffer, in an individual or representative capacity. Such a personal stake in the outcome of the controversy ... provides the requisite assurance of concrete adverseness and diligent advocacy." (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 153, 851 A.2d 1113 (2004).
In the present case, the defendant contends in his supplemental memorandum of law that he has standing in his own right to challenge the constitutionality of Connecticut’s criminalization of marijuana by virtue of his prosecution and potential conviction under § § 21a-277 and 21a-279. More specifically, the defendant maintains that, because he faces conviction and incarceration under the challenged statutes, he thus possesses a specific, personal, and legal interest in their constitutionality, for, if the statutes were adjudged unconstitutional, he could not be convicted under them. The state counters in its supplemental memorandum that the defendant, being Caucasian, lacks standing to raise equal protection claims premised on alleged discrimination against African Americans. The basis for this argument appears to be that, because the defendant is not a member of the disadvantaged class, he cannot establish aggrievement. The state also notes that, generally, one may only assert his own rights, not those of third parties, and that the defendant’s case does not come within the exception to this rule.
The court agrees with the defendant. Contrary to the state’s suggestion, the defendant need not necessarily be a member of the class discriminated against in order to be personally aggrieved by the statute. As our Supreme Court has repeatedly concluded, "a genuine likelihood of criminal liability or civil incarceration is sufficient to confer standing [to challenge a statute]." (Emphasis added; internal quotation marks omitted.) State v. Long, supra, 268 Conn. 532; see, e.g., id., 533 ("because the defendant risks actual prospective deprivation of his liberty interest under the challenged statute, we conclude that he is classically aggrieved, and has standing to challenge the statute"); Bond v. United States, 564 U.S. 211, 217, 131 S.Ct. 2355, 180 L.Ed.2d 269 (2011) (holding that defendant had standing to challenge federal criminal statute, under which she had been indicted, on ground that Congress exceeded its constitutional powers in enacting it and thus intruded upon sovereignty of states; defendant’s challenge to her conviction and sentence clearly satisfied federal constitution’s "case-or-controversy" requirement because incarceration constitutes concrete injury caused by conviction that is redressable by invalidation of conviction); Board of Pardons v. Freedom of Information, 210 Conn. 646, 648-50, 556 A.2d 1020 (1989) (holding that Board of Pardons had standing to challenge validity of order of Freedom of Information Commission that required board to conduct most of its deliberations in public, thus rejecting Appellate Court’s conclusion that board had not been aggrieved by separate interests of prisoners in confidentiality of their records; members of board had "specific and personal" interest in validity of order given that noncompliance with it constituted class B misdemeanor, and members therefore faced risk of injury, in form of criminal prosecution and sanctions, if they failed to comply with order). Thus, the pending prosecution against the defendant and potential deprivation of liberty constitute very real harm that can, by itself, establish standing. Such harm is plainly personal to the defendant; he need not rely on an injury against a third party. See Donahue v. Southington, 259 Conn. 783, 791-92, 792 A.2d 76 (2002) (holding that employer town had standing to challenge, on equal protection grounds, constitutionality of statute requiring workers’ compensation commission to use certain wage tables in calculating average weekly earnings of injured employees where such statute was limited in its application to only those individuals who had contributed under Federal Insurance Contributions Act; contrary to plaintiff’s contention that town was attempting to bring constitutional claim on behalf of third party, town was clearly basing its claim on its own injury in that it claimed to have sustained economic injury by operation of statute because it had been required unconstitutionally to pay higher level of compensation to plaintiff than it would have had to pay, under challenged wage tables).
2
Although the defendant has standing to maintain his equal protection challenges, the state argues that the court nevertheless cannot entertain them because the defendant waived any such constitutional claims when he agreed to abide by the conditions of probation imposed in relation to his conviction in docket number MMX-CR14-0204977-T. More specifically, the state contends that, by expressly agreeing to abide by the condition of probation that he not violate any state law, the defendant effectively waived his right to challenge the constitutionality of any law he may be accused of violating during the term of his probation. For this contention, the state primarily relies on State v. Klinger, 103 Conn.App. 163, 927 A.2d 373 (2007). This reliance is misplaced.
Klinger involved a defendant who had pleaded guilty to first degree larceny and agreed, as a condition of his probation, to pay restitution to a certain bank. State v. Klinger, supra, 103 Conn.App. 165-66. When the defendant sought to have the conditions of probation vacated two years later, his motion was denied. Id., 167. On appeal, the defendant argued that the condition of probation requiring him to pay restitution to the bank was improper because he had not been convicted of any offense with respect to that entity. Id., 170. The Appellate Court rejected this argument, agreeing with the state that the defendant had waived any challenge to the condition of probation by acquiescing to it without objection before the trial court. Id., 171.
Unlike the defendant in Klinger, the defendant in the present case is not challenging the validity of any of the conditions of his probation- he does not dispute the propriety of the court’s decision in docket number MMX-CR14-0204977-T to require, as a condition of probation, that he not violate any state law. Rather, the defendant is challenging the validity of the criminal laws that he currently stands accused of violating in docket number M09M-CR17-0210994-S, and which underlie the probation violation charge in docket number MMX-CR14-0204977-T. Although the defendant, by having previously pleaded guilty to a violation of § 21a-277, may have waived the right to challenge the constitutionality of that statute as it relates to his conviction in docket number MMX-CR14-0204977-T; see Henderson v. Commissioner of Correction, 181 Conn.App. 778, 797 (2018) (" [w]here ... a guilty plea is entered on the advice of counsel, the plea constitutes an admission of guilt and a waiver of nonjurisdictional defects and claims, including federal constitutional claims, which might otherwise be raised by way of defense, appeal or collateral attack" [internal quotation marks omitted] ); he has pleaded not guilty to the violations of § § 21a-279 and 21a-277 charged in docket number M09M-CR17-0210994-S, and, therefore, he remains free to challenge the constitutionality of those statutes.
The court holds that the defendant has standing to challenge the constitutionality of § § 21a-279 and 21a-277, and he has not waived his right to do so. The court therefore proceeds to the merits of the defendant’s equal protection claims.
B
Relying on federal equal protection principles, the defendant first contends that Connecticut’s criminalization of marijuana is unconstitutional because it was enacted with a racially discriminatory purpose. As the defendant clarifies in his reply brief, the equal protection violation alleged is not premised on any express, racial classification but, rather, is based on the supposedly discriminatory motivation behind the criminalization. The crux of this argument is that the impetus for marijuana criminalization was racial prejudices toward those associated with its use- mainly Mexicans and African Americans. The court is not persuaded.
Although defense counsel appeared to espouse a contrary argument at the November 15, 2017 hearing, he effectively abandoned it by failing to properly present the issue to the court. At the hearing, Dr. Gettman testified that the term "marijuana" has historically had racially derogatory connotations. Defense counsel then proceeded to propose, in a conclusory manner, that, because the statutes under which the defendant was charged employ this "racially charged language," they cannot be considered facially neutral. Defense counsel provided no substantive analysis or support for this abstract assertion, nor did he seek to address the issue in a supplemental brief. Therefore, the court deems this argument abandoned, and, thus, the court is not required to address it. See Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003) (" [The Connecticut Supreme Court] repeatedly [has] stated that [it is] not required to review issues that have been improperly presented to [it] through an inadequate brief ... Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly ... Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned ... These same principles apply to claims raised in the trial court ." [Citation omitted; emphasis added; internal quotation marks omitted] ).
The legal principles underlying the defendant’s equal protection claim are well established. "The [e]qual [p]rotection [c]lause of the [f]ourteenth [a]mendment commands that no [s]tate shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike." (Internal quotation marks omitted.) Broadnax v. New Haven, 294 Conn. 280, 300, 984 A.2d 658 (2009). " [T]he concept of equal protection [under both the state and federal constitutions] has been traditionally viewed as requiring the uniform treatment of persons standing in the same relation to the governmental action questioned or challenged ... Thus, [t]o implicate the equal protection [clause] ... it is necessary that the state statute ... in question, either on its face or in practice, treat persons standing in the same relation to it differently." (Citations omitted; internal quotation marks omitted.) Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 157-58, 957 A.2d 407 (2008).
"Generally, for an equal protection claim to trigger strict scrutiny, the [claimant] must allege that a government actor intentionally discriminated against him or her on the basis of race or national origin." Jana-Rock Construction, Inc. v. Dept. of Economic Development, 438 F.3d 195, 204 (2d Cir. 2006). "There are many ways for a [claimant] to plead [such] intentional discrimination ..."; Pyke v. Cuomo, 567 F.3d 74, 76 (2d Cir.) (per curiam), cert. denied, 558 U.S. 1048, 130 S.Ct. 741, 175 L.Ed.2d 515 (2009); "including by pointing to a law that expressly classifies on the basis of race, a facially neutral law or policy that has been applied in an unlawfully discriminatory manner, or a facially neutral policy that has an adverse effect and that was motivated by discriminatory animus." (Internal quotation marks omitted.) Id. "When the government expressly classifies persons on the basis of race or national origin ... its action is immediately suspect"; (internal quotation marks omitted) Jana-Rock Construction, Inc. v. Dept. of Economic Development, supra, 204; and, thus, the claimant "need not make an extrinsic showing of discriminatory animus or a discriminatory effect to trigger strict scrutiny." Id., 205. Where the law being challenged is facially neutral, however, the claimant "bear[s] the burden of making out a prima facie case of discriminatory purpose." (Internal quotation marks omitted.) Pyke v. Cuomo, supra, 78; see Hunt v. Cromartie, 526 U.S. 541, 546, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999) (" [a] facially neutral law ... warrants strict scrutiny only if it can be proved that the law was motivated by a racial purpose or object ... or if it is unexplainable on grounds other than race ..." [citations omitted; internal quotation marks omitted] ).
The defendant does not claim that the marijuana criminalization scheme expressly classifies persons on the basis of race. Thus, "to trigger strict scrutiny [the defendant] must prove the following two elements of a prima facie case: (1) the law has a disparate impact on a particular group, and (2) the impact on this group is intentional in the sense that it results from a discriminatory purpose or design. See Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 272, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979); United States v. Dumas, 64 F.3d 1427, 1429-31 (9th Cir. 1995) (citing [Personnel Administrator of Massachusetts v. Feeney, supra, 442 U.S. 272, 279] ); United States v. Coleman, 24 F.3d 37, 38-39 (9th Cir. 1994) (same). To show a disparate impact, [the defendant] must show that the law’s practical effect is to burden one group of persons more heavily than others. See [Personnel Administrator of Massachusetts v. Feeney, supra, 442 U.S. 272-77]. To show discriminatory purpose, [the defendant] must show that discriminatory purpose was a motivating factor in the decision to enact the particular law. That is, the law must have been adopted "at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group." [Id., 279.] The discriminatory purpose element can be proven in a number of ways, among other things, by (1) legislative history; (2) the manner of adoption; (3) inferring intent from application; or (4) other circumstantial evidence. See Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265-69, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977)." United States v. Pickard, 100 F.Supp.3d 981, 1003-04 (E.D.Calif. 2015).
Even assuming that the defendant has shown via Dr. Gettman’s report and testimony that Connecticut’s criminalization of marijuana has disparately impacted African Americans, the defendant has nonetheless failed to establish discriminatory intent. To establish that race was a motivating factor in Connecticut’s criminalization of marijuana, the defendant relies on the legislative history of the Uniform State Narcotic Drug Act- the predecessor to our present controlled substances statutory scheme- as well as Dr. Gettman’s report indicating a racial disparity in arrest rates in Connecticut for marijuana offenses. Contrary to the defendant’s assertions, the legislative history cited is devoid of any evidence of a racially discriminatory motive, and the statistical data, by themselves, are insufficient to support an inference of discriminatory intent. Consequently, the defendant cannot make out a prima facie case of an equal protection violation.
In his amended memorandum in support, the defendant also points to marijuana arrest statistics for several other states and for the nation as whole. Because the defendant’s constitutional challenge is necessarily limited to the criminalization of marijuana in Connecticut, these additional statistics are irrelevant, and, therefore, the court will not consider them.
The defendant’s legislative history argument centers around certain offensive statements allegedly made at some point by Harry Anslinger, the first commissioner of the Federal Bureau of Narcotics. According to the defendant, after the repeal of the federal prohibition of alcohol in 1933, Anslinger began to vigorously push for a nationwide ban on marijuana by publicly linking marijuana use by African Americans and other racial minorities to violent crime and by claiming that it caused African Americans to forget appropriate racial barriers. The defendant asserts that it was this activism by Anslinger that prompted the General Assembly to first criminalize the sale and possession of cannabis in 1935 when it enacted the Uniform State Narcotic Drug Act, Public Acts 1935, c. 283. Pointing to Anslinger’s alleged role in the passage of the act, the defendant argues that Connecticut’s criminalization of cannabis was racially motivated. Even assuming, arguendo, that a legislature that enacts legislation in response to lobbying necessarily adopts the discriminatory motivations of the lobbyist, the defendant’s argument must fail, for there is no evidence that Anslinger in any way influenced the passage of the act.
Even if the defendant had submitted evidence establishing a link between Anslinger’s efforts and the passage of the act, his claim would still fail, for he has presented no analysis or legal authority to support the implicit assumption underlying his argument- that the discriminatory motivations of Anslinger may be imputed to the General Assembly merely because it ultimately enacted the lobbied-for legislation. By failing to brief this issue, the defendant abandoned it; see Connecticut Light & Power Co. v. Dept. of Public Utility Control, supra, 266 Conn. 120; and without this logical stepping stone, his overarching argument cannot survive.
In support of his assertion that the act was enacted in response to Anslinger’s lobbying, the defendant relies on a statement made at a public hearing before the Joint Standing Committee on Public Health and Safety by an individual identified in the hearing transcript as "Mr. Burns." See Conn. Joint Standing Committee Hearings, Public Health and Safety, Pt. 1, 1935 Sess., p. 93. Mr. Burns was opposed to the proposed legislation because, in his view, it was "practically a repetition" of the federal Harrison Narcotics Act of 1914, 38 Stat. 785 (repealed 1970); Conn. Joint Standing Committee Hearings, supra, p. 93; which "sought to exert control over the possession and sale of narcotics ... [in part] by requiring producers, distributors, and purchasers to register with the [f]ederal [g]overnment ..." Gonzales v. Raich, 545 U.S. 1, 10, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005). In the course of expressing such opposition, Mr. Burns characterized the proposed state legislation as "an attempt on the part of Harry Anslinger of Washington to register [narcotics producers, distributors, and purchasers] throughout the country." Conn. Joint Standing Committee Hearings, supra, p. 93. The defendant interprets this statement as an acknowledgement by the General Assembly that it was acting in response to Anslinger’s activism. Upon closer inspection of the legislative history, however, it is clear that such interpretation is untenable.
During the January session of the General Assembly in 1935- the legislative session in which the committee hearing in question took place- there was exactly one member in the General Assembly with the surname "Burns": Representative J. Agnes Burns of Hartford. See Connecticut State Register and Manual (1935), p. 144. Representative Burns, however, was a woman. See M. Berger, "Mary Hall; The Decision and the Lawyer," 79 Conn. Bar J. 29, 57 n.154 (2005) (noting that Burns "was the first woman attorney from Hartford County to appear on a brief before the Connecticut Supreme Court and served as member of the Connecticut House of Representatives"). It is thus apparent that, contrary to defense counsel’s representation at the November 15, 2017 oral argument, the "Mr. Burns" referred to in the committee hearing transcript was not a member of the General Assembly but, rather, a member of the public or a nonlegislative public official appearing before the committee as a witness. As such, Mr. Burns’ opinion as to Anslinger’s role in the enactment of the act, without more, cannot be ascribed to the General Assembly. There thus being no evidence of Anslinger’s involvement in the passage of the act, the defendant’s legislative history argument fails.
The January session of 1935 ran from January 9 to June 5; Connecticut State Register and Manual (1935), p. 168; the committee hearing was held on April 16, 1935. Conn. Joint Standing Committee Hearings, supra, p. 93.
Defense counsel referred to Mr. Burns as "Representative Burns."
In his amended memorandum in support, the defendant also references the legislative history of an amendment to the act in 1939; see Public Acts 1939, c. 201; which indicates that the purpose of the amendment was to make the act conform to federal law. See Conn. Joint Standing Committee Hearings, Public Health and Safety, Pt. 1, 1939 Sess., p. 117. The defendant asserts that this federal law- the Marihuana Tax Act of 1937 (tax act), Pub. L. No. 75-238, 50 Stat. 551 (repealed 1970)- was enacted with a racially discriminatory purpose, and he argues that the General Assembly’s "adoption" of this federal legislation therefore violates equal protection guarantees. Def.’s Am. Mem. Support p. 38. Although the defendant has adequately explained the basis for his assertion that Congress passed the tax act with a discriminatory motive, he has completely failed to address how such discriminatory purpose can be imputed to the General Assembly. As such, the defendant has failed to adequately brief this argument, and the court will not consider it. See Connecticut Light & Power Co. v. Dept. of Public Utility Control, supra, 266 Conn. 120.
The only other evidence of discriminatory intent proffered by the defendant is Dr. Gettman’s report, which purports to show that the arrest rate of African Americans for marijuana-related offenses in Connecticut is substantially greater than that of Caucasians and that this disparity cannot be explained by differences in the prevalence of marijuana use among these populations. In arriving at these conclusions, Dr. Gettman relies on three sources of data: data regarding the number of arrests for marijuana offenses in Connecticut from 1994 through 2015, broken down by race, are drawn from the Federal Bureau of Investigation’s Uniform Crime Reporting Program (arrest data); data regarding the population of Connecticut by race are drawn from the United States Census Bureau (census data); and data regarding the annual use of marijuana in Connecticut from 2002 through 2009, broken down by race, are drawn from the National Survey on Drug Use and Health (usage data). Using the arrest and census data sets, Dr. Gettman was able to compare marijuana-related arrests of African Americans and Caucasians in proportion to the total populations of those groups in Connecticut. According to Dr. Gettman’s analysis, for the period from 1994 to 2015, the average annual arrest rate of African Americans for marijuana possession offenses was 3.6 times higher than that of Caucasians, 4.3 times higher for marijuana sales offenses, and 3.7 times higher for marijuana offenses overall. Using the arrest and usage data sets, Dr. Gettman was also able to compare the number of marijuana-related arrests of African Americans and Caucasians in proportion to the number of marijuana users within each respective population. According to this analysis, for the period from 2002 through 2009, African American marijuana users in Connecticut were arrested for marijuana possession and sales offenses 4.6 times more often than Caucasian marijuana users. Even assuming, arguendo, that Dr. Gettman’s methodology was sound, these statistics, without more, are insufficient to support an inference of discriminatory intent.
The National Survey on Drug Use and Health is conducted annually by the Substance Abuse and Mental Health Services Administration of the federal Department of Health and Human Services.
As the United States Supreme Court first recognized in Village of Arlington Heights, " [t]he impact of the official action- whether it bears more heavily on one race than another ... may provide an important starting point [in determining whether the action was taken with discriminatory intent]." (Citation omitted; emphasis added; internal quotation marks omitted.) Village of Arlington Heights v. Metropolitan Housing Development Corp., supra, 429 U.S. 266. "But unless a ‘clear pattern, unexplainable on grounds other than race, emerges’ ... ‘impact alone is not determinative, and the [c]ourt must look to other evidence.’ " (Citation omitted.) Hayden v. Paterson, 594 F.3d 150, 163 (2d Cir. 2010), quoting Village of Arlington Heights v. Metropolitan Housing Development Corp., supra, 266. Examples of such "rare" cases where a statistical pattern is "stark" enough to infer discriminatory purpose are Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886), and Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). Village of Arlington Heights v. Metropolitan Housing Development Corp., supra, 266.
In Gomillion, a state legislature violated the fifteenth amendment to the United States constitution by altering the boundaries of a particular city "from a square to an uncouth twenty-eight-sided figure." Gomillion v. Lightfoot, supra, 364 U.S. 340. The alterations excluded 395 of the 400 African American voters without excluding a single Caucasian voter. Id., 341. In Yick Wo, an ordinance prohibited operation of 310 laundries that were housed in wooden buildings but allowed such laundries to resume operations if the operator secured a permit from the government. Yick Wo v. Hopkins, supra, 118 U.S. 358-59. When laundry operators applied for permits to resume operation, all but one of the white applicants received permits, but none of the over 200 Chinese applicants were successful. Id., 359. In those cases, the court found the statistical disparities "to warrant and require"; id., 373; a "conclusion [that was] irresistible, tantamount for all practical purposes to a mathematical demonstration [that the state acted with a discriminatory purpose]." Gomillion v. Lightfoot, supra, 364 U.S. 341.
In the present case, Dr. Gettman’s report clearly demonstrates that Connecticut’s criminalization of the sale and possession of marijuana has impacted African Americans to a greater extent than Caucasians in terms of arrest rates. Even so, this evidence does not present the same sort of stark pattern as was found in Yick Wo and Gomillion . Unlike in those cases, the statistical evidence in the present case does not lead to the inescapable conclusion that the legislature acted with discriminatory intent. In Yick Wo and Gomillion, as in the present case, the statistics showed that minorities were disproportionately affected by the challenged law. But the statistics in those cases showed more than disparate impact. They revealed that almost all minorities- every minority in Yick Wo and all but five minorities in Gomillion - were negatively affected by the law. It was therefore clear in both cases that the statistical disparity at issue was caused by the defendants’ actions, which allowed the court to conclude that statistics alone were enough to prove unconstitutional disparate treatment.
Dr. Gettman’s statistics fail to present a similarly overwhelming disparity. According to his report, in the period from 2002 through 2009, 8.3 percent of African American marijuana users were arrested for marijuana-related offenses. Although not insignificant, this is substantially lower than the 100 percent of Chinese negatively affected in Yick Wo, and the 98 percent of African Americans adversely affected in Gomillion . Moreover, unlike in Yick Wo and Gomillion, the disparate impact demonstrated in the present case is not necessarily "unexplainable on grounds other than race." Village of Arlington Heights v. Metropolitan Housing Development Corp., supra, 429 U.S. 266. Although Dr. Gettman’s report may have ruled out differences in marijuana usage among African Americans and Caucasians as one potential explanation for the disparity in arrest rates, it did nothing to rule out the possibility that the arrest rate disparity may be due to some other innocuous explanation.
In sum, the defendant’s statistical evidence cannot by itself support an inference of intentional racial discrimination, and the only other proof proffered- the legislative history behind the Uniform State Narcotic Drug Act- is devoid of any indication of discriminatory intent. Consequently, the defendant cannot make out a prima facie case of a federal equal protection violation.
C
Alternatively, the defendant claims that the criminalization of the sale and possession of marijuana violates the equal protection clause of the Connecticut constitution, article first, § 20, as amended by articles five and twenty-one of the amendments. The crux of the defendant’s argument is that a statute’s racially disparate impact alone may provide an independent ground for invalidating it under the state constitution because the state constitution affords a greater level of protection than the federal constitution. In other words, the defendant’s position appears to be that purposeful discrimination is not a required element of an equal protection claim under our state constitution.
"The equal protection clause of the Connecticut constitution, article first, § 20, as amended by articles five and twenty-one of the amendments, provides in relevant part that ‘[n]o person shall be denied the equal protection of the law ...’ It is well established that federal constitutional and statutory law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights ... [Hence], although [our Supreme Court] often [relies] on the United States Supreme Court’s interpretation of the amendments to the constitution of the United States to delineate the boundaries of the protections provided by the constitution of Connecticut, [our Supreme Court has] also recognized that, in some instances, our state constitution provides protections beyond those provided by the federal constitution, as that document has been interpreted by the United States Supreme Court ... The analytical framework by which [our Supreme Court] determine[s] whether, in any given instance, our state constitution affords broader protection to our citizens than the federal constitutional minimum is well settled." (Footnote omitted; internal quotation marks omitted.) State v. Dickerson, 151 Conn.App. 658, 674, 97 A.3d 15, cert. denied, 314 Conn. 926, 101 A.3d 271 (2014).
" [I]n State v. Geisler, 222 Conn. 672, 685, 610 A.2d 1225 (1992), [our Supreme Court] set forth six factors that, to the extent applicable, are to be considered in construing the contours of our state constitution so that [the court] may reach reasoned and principled results as to its meaning. These factors are: (1) the text of the operative constitutional provision; (2) holdings and dicta of [our Supreme Court] and the Appellate Court; (3) persuasive and relevant federal precedent; (4) persuasive sister state decisions; (5) the history of the operative constitutional provision, including the historical constitutional setting and the debates of the framers; and (6) contemporary economic and sociological considerations, including relevant public policies. Id. Although, in Geisler, [the Supreme Court] compartmentalized the factors that should be considered in order to stress that a systematic analysis is required, [the court] recognize[s] that they may be inextricably interwoven ... [Moreover], not every Geisler factor is relevant in all cases ... Accordingly, [the court’s] equal protection analysis is informed by any of those Geisler factors that may be relevant to that analysis." (Citation omitted; internal quotation marks omitted.) Kerrigan v. Commissioner of Public Health, supra, 289 Conn. 157.
In the present case, the Geisler factors do not support the defendant’s argument that disparate impact alone may be sufficient to support a state constitutional equal protection claim. The first factor instructs the court to consider the text of the provision itself in determining whether it requires a showing of purposeful discrimination. The equal protection clause of the Connecticut constitution, article first, § 20, provides in relevant part that " [n]o person shall be denied the equal protection of the law ... because of ... race ..." The defendant argues that this provision’s explicit recognition of race as a suspect class warrants this court to construe it as affording greater protection than the equal protection clause of the fourteenth amendment to the United States constitution. This argument lacks merit. Although the federal equal protection clause does not expressly enumerate race as a suspect class like our state constitution does; see U.S. Const., amend. XIV, § 1 (providing that no state shall "deny to any person within its jurisdiction the equal protection of the laws"); it has been interpreted by the United States Supreme Court to require strict scrutiny of racial classifications. Kerrigan v. Commissioner of Public Health, supra, 289 Conn. 159. Thus, the two provisions are, in effect, substantially similar. This supports a conclusion that the equal protection guarantee in the Connecticut constitution is the same as that set forth in the United States constitution. See State v. Dickerson, supra, 151 Conn.App. 675 (fact that equal protection provisions of state and federal constitutions are very similar is relevant to Geisler analysis and supports conclusion that equal protection guarantee set forth in Connecticut constitution is same as that set forth in federal constitution). The first Geisler factor therefore militates against the defendant.
Although article first, § 20, of the Connecticut constitution has been amended by articles five and twenty-one of the amendments, the classes of persons to which protection was extended under these amendments are not relevant for purposes of the defendant’s claim in the present case.
The second Geisler factor instructs that the court consider any relevant holdings and dicta of our Appellate Court and Supreme Court. The only authority to which the defendant cites is Kerrigan, for the proposition that "the [state] constitution was not intended to be a static document incapable of coping with changing times" and therefore "should not be interpreted too narrowly or too literally so that it fails to have contemporary effectiveness for all of our citizens." (Internal quotation marks omitted.) Kerrigan v. Commissioner of Public Health, supra, 289 Conn. 156-57. This statement from Kerrigan does nothing to answer the question at hand- whether proof of disparate impact alone, without any evidence of intent, may support a claim under the equal protection clause of the Connecticut constitution. Although there does not appear to be any binding appellate precedent on point, the Appellate Court, addressing this precise question in dicta in Abdullah v. Commissioner of Correction, 123 Conn.App. 197, 1 A.3d 1102, cert. denied, 298 Conn. 930, 5 A.3d 488 (2010), suggested that discriminatory intent is a necessary element of an equal protection claim brought under the state constitution.
The habeas petitioner in that case had asserted in his petition for a writ of habeas corpus that Connecticut’s judicial procedures for prosecuting and sentencing criminal defendants resulted in disproportionately longer sentences for black defendants who refused to plea bargain than for white defendants who refused to plea bargain. Abdullah v. Commissioner of Correction, supra, 123 Conn.App. 198. The habeas court had dismissed the petition, agreeing with the state that the petitioner’s failure to allege the existence of any purposeful discrimination was fatal to his claim. Id., 200-01. More specifically, the habeas court had concluded that the petitioner’s federal equal protection claim was governed by the United States Supreme Court’s holding in McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987), which demands that, in order to prevail, a party alleging an equal protection violation under the fourteenth amendment must demonstrate the existence of purposeful discrimination. Abdullah v. Commissioner of Correction, supra, 201. With respect to the petitioner’s state constitutional claim, the habeas court had determined that the petitioner was not relieved under the Connecticut constitution of his burden to plead facts that demonstrated that his sentence was the result of purposeful discrimination. Id. The petitioner appealed the dismissal to the Appellate Court. Id.
With respect to the federal equal protection challenge, the Appellate Court held that the habeas court had properly applied McCleskey to the petitioner’s claim, noting that the petitioner had specifically disclaimed the presence of purposeful discrimination in either his particular sentencing or systemically. Abdullah v. Commissioner of Correction, supra, 123 Conn.App. 205. The Appellate Court then addressed the petitioner’s claim that his sentence violated article first, § 20, of the Connecticut constitution. More specifically, the petitioner claimed that he was not required to allege purposeful discrimination in his habeas petition in order to assert an equal protection violation under our state constitution. Id., 205-06. In deciding this claim, the Appellate Court began by observing: "It is well settled that, as a general matter, this state’s constitutional equal protection jurisprudence follows that of the federal constitution. See Broadley v. Board of Education, 229 Conn. 1, 8 n.15, 639 A.2d 502 (1994); Franklin v. Berger, 211 Conn. 591, 594 n.5, 560 A.2d 444 (1989); Keogh v. Bridgeport, 187 Conn. 53, 66, 444 A.2d 225 (1982). Indeed, in our Supreme Court’s most recent equal protection case under the state constitution, no party claimed that there was any difference between the two, and the court accepted that analytical rubric. See Kerrigan v. Commissioner of Public Health, [supra, 289 Conn. 149 n.13]. Those cases would, at least in the first instance, suggest that, as under the federal constitution, a claim of equal protection under the state constitution would require an allegation and proof of purposeful or intentional discrimination." (Emphasis added.) Abdullah v. Commissioner of Correction, supra, 206. Although this observation in Abdullah is only dicta, the defendant in the present case has not offered any Connecticut appellate authority to the contrary, and this court has found none. The second Geisler factor therefore militates against the defendant.
Ultimately, the Appellate Court in Abdullah was not required to definitively decide this issue. While acknowledging that the state constitution may in some circumstances afford broader protection than the federal constitution; Abdullah v. Commissioner of Correction, supra, 123 Conn.App. 206-07; the court determined that the petitioner had failed to perform the requisite Geisler analysis and therefore rejected his claim. Id., 207.
The third Geisler factor instructs the court to consider any persuasive and relevant federal precedent there may be. As to this factor, the defendant directs the court to the slew of United States Supreme Court decisions cited in the context of his federal equal protection argument. Instead of supporting the defendant’s position, however, these decisions make clear that discriminatory intent is a necessary element of an equal protection challenge under the federal constitution. See, e.g., McCleskey v. Kemp, supra, 481 U.S. 298 (" ‘[D]iscriminatory purpose’ ... implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker, in this case a state legislature, selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group." [Internal quotation marks omitted.] ): Hunter v. Underwood, 471 U.S. 222, 227-28, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985) (" [p]roof of racially discriminatory intent or purpose is required to show a violation of the [e]qual [p]rotection [c]lause" [internal quotation marks omitted] ); Village of Arlington Heights v. Metropolitan Housing Development Corp., supra, 429 U.S. 264-65 ("official action will not be held unconstitutional, solely because it results in a racially disproportionate impact"). The third Geisler factor therefore militates against the defendant.
The fourth Geisler factor instructs the court to consider any persuasive sister state decisions- more specifically, precedent from sister state courts . See, e.g., Kerrigan v. Commissioner of Public Health, supra, 289 Conn. 240 (noting that " [t]he majority of sister state courts that have addressed the issue also have concluded that gay persons are not a suspect or quasi-suspect class" [emphasis added] ). The defendant has not pointed to any such decisions. Instead, he simply identifies a number of states that have legislatively legalized marijuana in some respect. The defendant has therefore failed to demonstrate that the fourth Geisler factor supports his argument.
As to the fifth Geisler factor- the history of the operative constitutional provision- the defendant relies on our Supreme Court’s statement in Kerrigan that "the history surrounding the adoption of article first, § 20, of the state constitution indicates that its drafters intended that provision to embody the very strongest human rights principle that this convention can put forth to the people of Connecticut ... and, in accordance with that purpose, that the provision should be read expansively." (Citation omitted; internal quotation marks omitted.) Kerrigan v. Commissioner of Public Health, supra, 289 Conn. 164. The defendant appears to be arguing that, because our state constitutional equal protection provision is to be construed broadly, it must necessarily be interpreted as extending to disparate impact claims. The defendant, however, fails to adequately explore this argument in his brief; after quoting this passage from Kerrigan, he proceeds to conclude, in a summary fashion, that " [t]his confirms Connecticut’s commitment to protect its citizens from unequal application of the law." Def.’s Am. Mem. Support p. 46. The defendant’s argument regarding the fifth Geisler factor is therefore deemed abandoned. See Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003) (" [The Connecticut Supreme Court] repeatedly [has] stated that [it is] not required to review issues that have been improperly presented to [it] through an inadequate brief ... Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly ... Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned ... These same principles apply to claims raised in the trial court ." [Citation omitted; emphasis added; internal quotation marks omitted] ).
Finally, the court addresses the sixth Geisler factor, which calls for a considering of the public policy implications of permitting equal protection claims under our state constitution to be founded solely upon a showing of disparate impact without any evidence of purposeful discrimination. See Kerrigan v. Commissioner of Public Health, supra, 289 Conn. 246 (construing sixth Geisler factor as requiring court "to consider the public policy implications of recognizing gay persons as a quasi-suspect class under our state constitution"); State v. Diaz, 226 Conn. 514, 540, 628 A.2d 567 (1993) (" [i]n effect, [the sixth Geisler ] factor directs [the court’s] attention to considerations of public policy"). Instead of engaging in such a discussion, the defendant simply reiterates his position that the criminalization of marijuana was motived by a racially discriminatory purpose- an argument that the court has already rejected. The defendant’s failure to properly analyze this factor aside, the court notes that, if our state constitutional equal protection clause could be violated by a mere showing of disparate impact, the result "would be far-reaching and would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes ..." Washington v. Davis, 426 U.S. 229, 248, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). Indeed, it was largely because of these potential repercussions that the United States Supreme Court in Washington first required a showing of discriminatory purpose to support racial discrimination claims under the federal equal protection clause. See id. The sixth Geisler factor thus militates against the defendant.
In sum, none of the Geisler factors support the defendant’s contention that disparate impact alone may independently support an equal protection claim under the Connecticut constitution. As such, the defendant was required to show purposeful discrimination in order for his state constitutional claim to succeed. As already determined in the context of his federal equal protection claim, the defendant has failed to establish the existence of discriminatory intent. Consequently, his state equal protection claim likewise fails.
II
As an alternative to his constitutional arguments, the defendant contends that Connecticut’s ban on the sale and possession of marijuana has been "superseded" by federal law, which, according to the defendant, now permits the possession and sale of recreational marijuana nationwide. The defendant’s argument proceeds in two steps. First, the defendant posits that Congress impliedly repealed the federal Controlled Substances Act, 21 U.S.C. § 801 et seq., by failing to strike down the District of Columbia’s Legalization of Possession of Minimal Amounts of Marijuana for Personal Use Act of 2014, Initiative No. 71, D.C. Law 20-153 (codified as amended at D.C. Code § 48-904.01). The defendant then contends that, by virtue of the equal protection clause of the fourteenth amendment to the United States Constitution, when Congress permitted the District of Columbia to legalize marijuana use and possession, "it granted identical medical and recreational cannabis rights for all Americans"; Def.’s Am. Mem. Support p. 48; thus "superseding" Connecticut law. Id.
The United States Constitution provides that Congress shall have power " [t]o exercise exclusive Legislation in all Cases whatsoever, over" the District of Columbia. U.S. Const., art. I, § 8, cl. 17. In 1973, Congress delegated certain congressional powers over the District of Columbia to local government. The District of Columbia Self-Government and Governmental Reorganization Act (Home Rule Act), Pub. L. No . 93-198, 87 Stat. 774 (1973), provided for an elected legislature for the District of Columbia while reserving to Congress several important legislative powers, including the power to prevent local legislation from going into effect. Pursuant to the Home Rule Act, a legislative act of the Council of the District of Columbia, with certain exceptions, may not take effect until at least thirty calendar days after the act has been formally transmitted to Congress, within which period Congress may, by joint resolution, disapprove the act. See D.C. Code § 1-206.02(c)(1).
This argument requires little discussion, for it is well established that " [t]he District of Columbia is not authorized to repeal legislation national in scope ..." McConnell v. United States, 537 A.2d 211, 215 (D.C.App. 1988). Under a provision of the District of Columbia Self-Government and Governmental Reorganization Act, D.C. Code § 1-206.02(a)(3), the Council of the District of Columbia, as well as the voters of the district exercising their right of initiative, are precluded from enacting any law that would "amend or repeal any Act of Congress ... which is not restricted in its application exclusively in or to the District [of Columbia]." The federal Controlled Substances Act, however, is a law of general applicability. See 21 U.S.C. § § 801, 841(a). It therefore follows that the District of Columbia’s legalization of marijuana could not work an effective repeal of any of the provisions of the Controlled Substances Act. See McConnell v. United States, supra, 215 (amendments to District of Columbia’s Uniform Controlled Substances Act could not work implied repeal of any of provisions of federal Narcotic Addicts Rehabilitation Act of 1966, 18 U.S.C. § § 4251-55 [repealed 1984], including those in conflict with amended Uniform Controlled Substances Act). Consequently, the defendant’s argument cannot succeed. The defendant, however, makes one final, related argument.
The defendant contends that, even if marijuana has not in fact been legalized by federal law, he believed that it had been and is therefore relieved of any criminal responsibility for his actions pursuant to General Statutes § 53a-6(b)(2). This argument likewise lacks merit. Section 53a-6(b) provides in relevant part that " [a] person shall not be relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief that it does not, as a matter of law, constitute an offense ... unless (2) such mistaken belief is founded upon an official statement of law contained in a statute or other enactment, an administrative order or grant of permission, a judicial decision of a state or federal court, or an interpretation of the statute or law relating to the offense, officially made or issued by a public servant, agency or body legally charged or empowered with the responsibility or privilege of administering, enforcing or interpreting such statute or law." (Emphasis added.) In the present case, the defendant’s professed belief that marijuana possession and use had been legalized under federal was not based on any "official statement of law," but, rather, the defendant’s own unsupportable assumptions regarding the effect of marijuana legalization in the District of Columbia. The defendant’s reliance on § 53a-6(b)(2) is therefore unavailing.
For the foregoing reasons, the defendant’s motions to dismiss are denied.
(a)(1) Any person who possesses or has under such person’s control any quantity of any controlled substance, except less than one-half ounce of a cannabis-type substance and except as authorized in its chapter, shall be guilty of a class A misdemeanor.
* * * *
(b) Any person who violates subsection (a) of [§ 21a-279] in or on, or within one thousand five hundred feet of, the real property comprising a public or private elementary or secondary school and who is not enrolled as a student in such school or a licensed child care center, as defined in [General Statutes § ] 19a-77, that is identified as a child care center by a sign posted in a conspicuous place shall be guilty of a class A misdemeanor and shall be sentenced to a term of imprisonment and a period of probation during which such person shall perform community service as a condition of such probation, in a manner ordered by the court.
Even so, the court notes that such an argument would surely fail. To say that a law or policy is "facially discriminatory" is to say that "it expressly classifies persons on the basis of [some protected category]." Hayden v. County of Nassau, 180 F.3d 42, 48 (2d Cir. 1999). "A statute or policy utilizes a ‘racial classification’ when, on its face, it explicitly distinguishes between people on the basis of [race]. See, e.g., Loving v. Virginia, 388 U.S. 1, 11-12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967) (invalidating a miscegenation statute which, on its face, prohibited interracial marriages); Wygant v. Jackson Board of Education, 476 U.S. 267, 282-84, 106 S.Ct. 1842, 1851-52, 90 L.Ed.2d 260 (1986) (invalidating a school board plan which expressly utilized race-based preferences in teacher lay-offs); Adarand [Constructors, Inc. v. Pena, 515 U.S. 200, 227, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) ] (concluding that a federal set-aside program which, on its face, provided financial incentives to hire minority subcontractors would be subject to strict scrutiny)." Hayden v. County of Nassau, supra, 48. Clearly, a statute cannot be said to distinguish between people on the basis of race merely because it employs a word with racially derogatory connotations. Such a statute establishes no racial classification and thus cannot be termed "facially discriminatory."