Notice: This opinion is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE COURT OF APPEALS OF THE STATE OF ALASKA
DAVID E. BURNOR, )
)
Appellant, ) Court of Appeals No. A-3472
) Trial Court No. 2KB-S89-262CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, ) [No. 1213 - April 3, 1992]
)
Appellee. )
)
)
CHARLES EVAK, )
)
Appellant, ) Court of Appeals No. A-3473
) Trial Court No. 2KB-S89-266CR
v. )
)
STATE OF ALASKA, )
)
Appellee. )
)
)
REED HENRY, JR., )
)
Appellant, ) Court of Appeals No. A-3475
) Trial Court No. 2KB-S89-271CR
v. )
)
STATE OF ALASKA, )
)
Appellee. )
)
)
GILBERT M. SCHAEFFER, )
)
Appellant, ) Court of Appeals No. A-3478
) Trial Court No. 2KB-S89-281CR
v. )
)
STATE OF ALASKA, )
)
Appellee. )
)
)
ENOS W. OUTWATER, JR., )
)
Appellant, ) Court of Appeals No. A-3480
) Trial Court No. 2KB-S89-278CR
v. )
)
STATE OF ALASKA, )
)
Appellee. )
)
)
CARRIE M. SPENCER, )
)
Appellant, ) Court of Appeals No. A-3481
) Trial Court No. 2KB-S89-283CR
v. )
)
STATE OF ALASKA, )
)
Appellee. )
)
)
ROBERT J. ALLEN, )
)
Appellant, ) Court of Appeals No. A-3512
) Trial Court No. 2KB-S89-261CR
v. )
)
STATE OF ALASKA, )
)
Appellee. )
)
)
RONALD L. OAKLEY, )
)
Appellant, ) Court of Appeals No. A-3513
) Trial Court No. 2KB-S89-277CR
v. )
)
STATE OF ALASKA, )
)
Appellee. )
)
)
WILLIAM J. HENSLEY, )
)
Appellant, ) Court of Appeals No. A-3514
) Trial Court No. 2KB-S89-272CR
v. )
)
STATE OF ALASKA, )
)
Appellee. )
)
)
ALFRED B. SHELDON, )
)
Appellant, ) Court of Appeals No. A-3515
) Trial Court No. 2KB-S88-495CR
v. )
)
STATE OF ALASKA, )
)
Appellee. )
)
)
JOHN R. EVANS, JR., )
)
Appellant, ) Court of Appeals No. A-3518
) Trial Court No. 2KB-S89-268CR
v. )
)
STATE OF ALASKA, )
)
Appellee. )
)
)
MOSHE ELAZAR, )
)
Appellant, ) Court of Appeals No. A-3519
) Trial Court No. 2KB-S89-265CR
v. )
)
STATE OF ALASKA, )
)
Appellee. )
)
)
EDGAR G. KENWORTHY, )
)
Appellant, ) Court of Appeals No. A-3566
) Trial Court No. 2KB-S89-478CR
v. )
)
STATE OF ALASKA, )
)
Appellee. )
)
)
DANIEL M. MELTON, )
)
Appellant, ) Court of Appeals No. A-3643
) Trial Court No. 2KB-S89-275CR
v. )
)
STATE OF ALASKA, )
)
Appellee. )
)
)
JEFFREY B. OUTWATER, )
)
Appellant, ) Court of Appeals No. A-3648
) Trial Court No. 2KB-S89-279CR
v. )
)
STATE OF ALASKA, )
)
Appellee. )
)
Appeal from the Superior Court of the State
of Alaska, Second Judicial District,
Kotzebue, Paul B. Jones and Charles R.
Tunley, Judges.
Appearances: Vern Halter, Assistant Public
Defender, Kotzebue, and John B. Salemi,
Public Defender, Anchorage, for Appellants
Sheldon, Melton, and Jeffrey B. Outwater.
Robert D. Lewis, Law Office of Robert D.
Lewis, Anchorage, for Appellants Henry, Enos
W. Outwater, Jr., Spencer, Allen, Oakley,
Elazar, and Kenworthy. H. Connor Thomas,
Larson Timbers & VanWinkle, Inc., Nome, for
Appellants Burnor, Evak, Schaeffer, and
Hensley. Scott Jay Sidell, Law Office of
Scott Sidell, and Larry S. Cohn, Law Office
of Larry S. Cohn, Anchorage, for Appellant
Evans. Eric A. Johnson, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
COATS, Judge.
Appellants (hereinafter designated as "Burnor") were
convicted of selling alcohol without a license or permit in
Kotzebue, Alaska in violation of AS 04.11.010(a).1 Alaska
Statute 04.16.200 sets forth the penalties for violation of AS
04.11.010(a). Alaska Statute 04.16.200 provides in pertinent
part:
(a) Except as provided under (b) of
this section, a person who violates AS
04.11.010 is, upon conviction, guilty of a
class A misdemeanor.
(b) A person who violates AS 04.11.010
in an area where the results of a local
option election have, under AS 04.11.490 -
04.11.500, prohibited the [Alcoholic Beverage
Control] board from issuing, renewing, or
transferring one or more types of licenses or
permits under this title in the area is, upon
conviction, guilty of a class C felony.
. . . .
(d) Upon conviction of a person of a
violation under (a) of this section, the
court shall impose a minimum sentence of
imprisonment of not less than 10 consecutive
days. The execution of the sentence may not
be suspended and probation or parole may not
be granted until the minimum imprisonment pro
vided in this subsection has been served.
Imposition of sentence may not be suspended
except upon the condition that the defendant
be imprisoned for no less than the minimum
period provided in this subsection.
On October 6, 1987, the city of Kotzebue voted to ban
the sale of alcoholic beverages. The amended AS 04.16.200(b),
which provided that the sale of alcohol in a local option
community was a class C felony, became effective on August 3,
1988. Ch. 27, SLA 1988. On December 6, 1988, Kotzebue again
voted to prohibit the sale of alcohol in a local option election.
Therefore, under AS 04.16.200(b), Burnor and the other appellants
in these cases were subject to punishment for class C felonies.
Burnor first contends that the two differing penalty
provisions of AS 04.16.200 violate equal protection and due
process.2 Burnor points out that if Kotzebue had not held a
local option election at all, the unlicensed sale of alcoholic
beverages would be punishable as a misdemeanor under AS
04.16.200(a). However, the Alcoholic Beverage Control Board
(hereinafter "ABC Board") would be required to deny new licenses
and permits in Kotzebue in either instance. The ABC Board could
issue new licenses and permits only if Kotzebue held a local
option election and voted not to prohibit the sale of alcoholic
beverages. AS 04.11.320(a)(11), (12), (b)(4).3 Therefore,
Burnor argues, AS 04.16.200 is underinclusive: the sale of
alcoholic beverages without a license is a felony in some, but
not all, communities where the ABC Board is required to deny new
permits and licenses. Alaska's equal protection and due
process clauses confer broader protection than do their federal
counterparts. Maeckle v. State, 792 P.2d 686, 688 (Alaska App.
1990). Alaska has a "sliding scale" approach to equal
protection: the more significant the individual right infringed,
the more strictly this court will scrutinize the legitimacy and
importance of the state's purpose and the link between that
purpose and the statutory means to effectuate it. Id. Because
Burnor does not challenge the propriety of AS 04.11.010 or the
local option statutes, but only challenges the propriety of the
specific penalties imposed for violating them, the individual
interest affected by AS 04.16.200 is the relatively narrow
interest of a convicted offender in minimizing the punishment for
an offense. Id. at 689. In contrast, the state has a
"compelling interest in curbing the problem of alcohol abuse."
Harrison v. State, 687 P.2d 332, 340 (Alaska App. 1984).
In Harrison, we discussed the numerous problems facing
this state as a result of alcohol abuse. We pointed out that "in
response to the growing evidence of a strong relationship between
alcohol abuse and crime, Alaska's local option law was enacted in
1980." Id. at 335. The statutes that Burnor questions in this
case are part of the fabric of the local option law. See
Tuckfield v. State, 805 P.2d 982, 983-84 (Alaska App. 1991). In
discussing Harrison's contention that the local option law
violated equal protection because it permitted one community to
ban the importation of alcoholic beverages and simultaneously
permitted other communities to allow importation of alcoholic
beverages, we stated:
The question is whether differences in
treatment are reasonable in light of the
balance between the importance of the legisla-
tive intent, on the one hand, and the
interest of the individual on the other. . .
. We see no basis for concluding that
differences in the treatment of citizens from
different communities under the local option
law should be considered constitutionally
significant when those differences result
only from the extent to which individual
communities elect to implement that law.
When the state attacks a complex problem it
need not choose between attacking every
aspect of that problem and doing nothing at
all.
Harrison, 687 P.2d at 341 (citation omitted).
We similarly conclude that the legislature could
rationally distinguish between a community where the voters had
prohibited the sale of alcoholic beverages by a local option
election and other communities that had not prohibited the
issuance of licenses by such an election. The legislature could
rationally decide to punish more severely the unauthorized sale
of alcoholic beverages in communities that had affirmatively
expressed their desire to prohibit the sale of alcohol through a
local option election.
In a related argument, Burnor argues that AS 04.16.200
discriminates on the basis of residence since most locations
where offenders are subject to felony punishment are rural
communities. Essentially, this argument challenges the local
option law itself for discriminating against rural communities, a
challenge this court has previously rejected. See Harrison, 687
P.2d at 341; cf. State v. Hebert, 803 P.2d 863, 865 (Alaska
1990).
Burnor next contends that AS 04.16.200(b) constitutes a
cruel and unusual punishment. Alaska applies a single test to
determine whether a statutory penalty constitutes cruel or
unusual punishment or violates substantive due process: a
punishment so disproportionate to the offense committed as to be
completely arbitrary and shocking to the sense of justice is
unconstitutional. Dancer v. State, 715 P.2d 1174, 1180-81
(Alaska App. 1986). Burnor argues that it is cruel and unusual
to punish the unlicensed sale of alcoholic beverages as a class C
felony.4
Burnor argues that other states impose lesser penalties
for the sale of alcoholic beverages in a local option community
than does Alaska. Superior Judge Charles R. Tunley found this
comparison was not controlling. He pointed out that the other
states which Burnor attempted to compare with Alaska did not have
alcohol related problems similar to rural Alaska where the great
distances, inclement weather, and lack of police services
increase the dangers of alcohol abuse. Cf. Harrison, 687 P.2d at
335 (reviewing the literature on Alaska's unique and pervasive
alcohol problems).
As this court noted in Harrison, the supreme court has
recognized that alcohol has "far more dangerous" effects than
marijuana and that "cocaine is probably less dangerous than
alcohol." 687 P.2d at 338-39 (citing Ravin v. State, 537 P.2d
494, 509-10 (Alaska 1975), and State v. Erickson, 574 P.2d 1, 22
(Alaska 1978)). However, the sale of any amount of cocaine is a
class B felony, and the sale of one ounce of marijuana is a class
C felony. AS 11.71.030; AS 11.71.040. Punishment for the
unlicensed sale of alcohol in a local option community as a class
C felony is not constitutionally disproportionate.
Burnor next contends that AS 04.16.200(b) violates due
process because it fails to give adequate notice of the conduct
it proscribes and the penalty for a violation. First, Burnor
argues that neither AS 04.11.010 nor AS 04.16.200 gives notice of
a specific crime of sale of alcoholic beverages in a local option
community; AS 04.11.010 merely prohibits the unlicensed sale of
alcoholic beverages, and AS 04.16.200 merely establishes
penalties for the violation of another statute. However, in
Linne v. State, 674 P.2d 1345, 1350 (Alaska App. 1983), this
court held that a penal statute, when read in conjunction with a
separate definitional statute, afforded adequate notice of the
conduct forbidden and satisfied the requirements of
constitutional due process. See also Tuckfield, 805 P.2d at 986.
(AS 04.16.200(b) gives sufficient notice of the conduct
prohibited and the penalty for that conduct); Morgan v. State,
661 P.2d 1102, 1103 (Alaska App. 1983) (former AS 04.16.200(b),
providing that violation of AS 04.11.010 in local option area was
class C felony if additional element met, defined a separate
substantive offense). When read in conjunction with AS
04.11.010, AS 04.16.200(b) defines an offense, affords adequate
notice of the proscribed conduct and the prescribed penalty, and
satisfies due process requirements.
Second, Burnor argues that AS 04.11.490, the local
option provision establishing the procedure for conducting a
local option election, does not give any notice of an offense or
felony penalty.5 Although AS 04.11.010 and 04.16.200 do give
such notice, Burnor argues that those statutes "pervert[] the
intent" of the "statutory scheme" of the local option laws,
because AS 04.11.490 does not specifically give notice of the
class C felony offense, and therefore the community that votes to
opt under AS 04.11.490 might inadvertently impose the penalty on
its citizens without adequate notice. This court rejected a
similar argument in Tuckfield, 805 P.2d at 986, in which we held
that the class C felony offense of AS 04.16.200(b) applied in
Barrow even though that community had held its local option
election before the felony statute was enacted,6 and so had no
notice at all that its citizens would later be subjected to the
felony penalty. In enacting the current form of AS 04.16.200(b),
the legislature was presumably aware of the previously existing
statutory scheme and of the communities that had held local
option elections. The legislature chose "to have felony
penalties apply to defendants who sold alcohol in communities
where the sale had been banned by local option election."
Tuckfield, 805 P.2d at 986. The fact that AS 04.11.490 does not
itself create or give notice of the felony offense and penalty
does not violate constitutional due process.
The convictions are AFFIRMED.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. Alaska Statute 04.11.010(a) provides:
Except as provided in AS 04.11.020 [not
applicable here], a person may not manu-
facture, sell, offer for sale, possess for
sale or barter, traffic in, or barter an
alcoholic beverage unless under license or
permit issued under this title.
2. Burnor's first due process argument is similar to
his equal protection argument. Due process requires that
enactments be reasonable and not arbitrary. State v. Enserch
Alaska Const., Inc., 787 P.2d 624, 632 n.12 (Alaska 1989).
Burnor also makes separate due process arguments on cruel and
unusual punishment and notice grounds, which we will discuss
later in this opinion.
3. AS 04.11.320 provides in pertinent part:
(a) An application requesting issuance
of a new license shall be denied if
. . . .
(11) the license is sought for the sale
of alcoholic beverages in a first or second
class city in which there are no licensed
premises at the time of application unless a
majority of the voters in a local option
election conducted in accordance with AS
04.11.502 have voted "no" on the question set
out in AS 04.11.490, or have voted "yes" on a
question set out in AS 04.11.492 or
04.11.500; [or]
(12) the license is sought for the sale
of alcoholic beverages in an established
village in which there are no licensed prem
ises at the time of application unless a
majority of the voters in a local option
election conducted in accordance with AS
04.11.502 have voted "no" on the question set
out in AS 04.11.490 or have voted "yes" on
the question set out in AS 04.11.500.
(b) An application requesting issuance
of a new permit shall be denied if
. . . .
(4) the permit is sought for the sale
of alcoholic beverages in a first or second
class city or established village in which
there are no licensed premises at the time of
application unless a majority of the voters
in a local option election conducted in
accordance with AS 04.11.502 have voted "no"
on the question set out in AS 04.11.490.
4. Burnor and the other appellants do not appeal any
of their actual sentences or argue that any particular sentence
received was cruel and unusual. The sentences in this case range
from fifteen days of imprisonment as a condition of an eighteen-
month suspended imposition of sentence to one year of
imprisonment. This range is comparable to the range of sentences
prescribed for misdemeanor unlicensed sale of alcohol, for which
the minimum term of imprisonment is ten days, AS 04.16.200(d),
and the maximum term is one year, AS 12.55.135(a). However, as
Burnor points out, felony status entails various restrictions to
liberty not included in a misdemeanor sentence.
5. AS 04.11.490 provides in part:
(a) The following question, appearing
alone, may be placed before the voters of a
municipality or an established village in
accordance with AS 04.11.502: "Shall the sale
of alcoholic beverages in . . . . . (name of
municipality or village) be prohibited? (yes
or no)".
(b) If a majority of the voters vote
"yes" on the question set out in (a) of this
section, the board shall be notified
immediately after certification of the
results of the election and thereafter the
board may not issue, renew, or transfer
between holders or locations a license for
licensed premises located within the
boundaries of a municipality and in
unincorporated areas within five miles of the
boundaries of the municipality or within the
perimeter of an established village.
Licenses that may not be renewed because of a
local option election held under this section
are void 90 days after the results of the
election are certified. A license that will
expire during the 90 days after the results
of a local option election under this section
are certified may be extended, until it is
void under this subsection, by payment of a
prorated portion of the annual license fee.
6. Indeed, Barrow had held its local option election
in 1977 under former AS 04.10.430(a), which predated not only the
felony offense created in the 1988 revision of AS 04.16.200(b),
but also the entire current local option statutory scheme enacted
in 1980. See Tuckfield, 805 P.2d at 983-84.
