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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
PETER ALLAM, )
) Court of Appeals No. A-3787
Appellant, ) Trial Court No. 3AN-90-3475
Cr
)
v. )
) O P
I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1218 - April 10, 1992]
________________________________)
Appeal from the District Court, Third Judi
cial District, Anchorage, Natalie Finn,
Judge.
Appearances: David R. Weber, Assistant
Public Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Leroy K.
Latta, Jr., Assistant District Attorney,
Edward E. McNally, District Attorney,
Anchorage, and Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Mannheimer,
Judge, and Andrews, Superior Court Judge.*
[Coats, Judge, not participating.]
MANNHEIMER, Judge.
Peter Allam pleaded no contest to a charge of sixth-
degree misconduct involving a controlled substance under former
AS 11.71.060(a)(3) and AS 11.71.190(b) -- possession of marijuana
by a person under the age of 19. When he entered his plea, Allam
preserved the right to challenge the constitutionality of this
statute on appeal. Cooksey v. State, 524 P.2d 1251 (Alaska
1974).
On May 15, 1990, Allam was 18 years old and a senior at
Dimond High School in Anchorage. He and the rest of his high
school class were at Kincaid Park, participating in "Senior Fun
Day", a school-sponsored event. Allam and three other boys, one
of whom was also 18 years old and two of whom were under 18 years
of age, left the main group of students and went off by
themselves to an area several hundred yards away. A school
official found the four of them rolling marijuana cigarettes.
The boys were taken back to the high school, where school
officials called the police. Allam and the other 18-year-old
were arrested.
Allam asserts that, under former AS 11.71.060(a), he
and all other 18-year-olds were denied the equal protection of
the law. He contends that the legislature unreasonably put 18-
year-olds in a class by themselves: a person older than 18 who
possessed up to four ounces of marijuana committed no crime, an
18-year-old like Allam who possessed the same amount of marijuana
would be criminally prosecuted, while persons 17 years old or
younger who possessed marijuana would be dealt with under the
juvenile justice system. AS 47.10.010(a)(1). We reject Allam's
attack on the statute and affirm his conviction.
The Alaska Supreme Court has recognized that the
legislature may restrict minors' freedom in ways that would be
unconstitutional if applied to adults. In Hanby v. State, 479
P.2d 486, 498 (Alaska 1970), the court upheld a criminal statute
that prohibited the distribution or showing of certain sexually
oriented material to minors, even though the material did not
qualify as "obscene" and thus could not be banned for the general
population. Similarly, in Anderson v. State, 562 P.2d 351, 358-
59 (Alaska 1977), the court upheld criminal prohibitions on
consensual sexual activity with minors. Lastly, in Ravin v.
State, 537 P.2d 494, 511 & n.69 (Alaska 1977), when the court
declared that the Alaska Constitution protected marijuana
possession and use in the privacy of one's home, the court
emphasized that this rule did not apply to minors.
The most explicit statement of the legislative
authority over minors is contained in L.A.M. v. State, 547 P.2d
827 (Alaska 1976), where the Alaska Supreme Court rejected a
minor's claim that it was unconstitutional for the legislature to
declare her a "delinquent minor" or a "child in need of
supervision" (and thus subject to the coercive power of the
state) when she ran away from her home and from foster placement.
Against L.A.M.'s claim that the constitution gave her the right
to do as she wished so long as she did not hurt anyone, the court
held that parents and the State itself have legitimate interests
in protecting minors by preventing them from engaging in
activities for which they are physically, intellectually, or
emotionally unprepared. L.A.M., 547 P.2d at 832-34 (court's
opinion) and 836 n.1 (Boochever, J., concurring).
Allam concedes that he has no fundamental or protected
right to smoke or possess marijuana. He argues, however, that if
the legislature allows people 19 years of age or older to engage
in these activities then the equal protection clauses of the
federal and state constitutions (United States Constitution,
Fourteenth Amendment, Section 1; Alaska Constitution, Article I,
Section 1) require the legislature to extend the same freedom of
action to 18-year-olds.
Allam's underlying premise is that, because he had
achieved the age of 18, he was an adult and the legislature
should have treated him like other adults (that is, allowed him
to possess marijuana). Allam argues in the alternative that, if
he was to be treated as a minor, then the proceedings against him
should have taken place in juvenile court under AS 47.10.
However, Allam's arguments are premised upon his misapprehension
of the concepts of "majority" (legal adulthood) and "minority".
Minority is not a natural condition that is shed like a
cocoon by the child on his or her eighteenth birthday. A person
remains a minor until he or she attains the "age of majority",
the law's dividing line between adults and minors. This line is
drawn by the legislature. The Supreme Court of Vermont
succinctly explained this concept in Beaudry v. Beaudry, 312 A.2d
922, 925 (Vt. 1973): "The term 'minor' ... does not imply any
particular age limit. ... [T]he term [simply] embraces the
person who has not yet arrived at the age of majority prescribed
by law, for minority is a status created by law and is subject to
statutory limitation and exception."
One hundred years ago, Alaska law echoed the common-law
rule that a person became an adult for all legal purposes when he
or she reached 21 years of age. Thomas H. Carter, Laws of Alaska
(1900), Part V, chapter 5, 34. The age of majority remained
set at 21 years until Alaska's statehood. See 460 CLA (1913);
1161 CLA (1933); 20-1-1 ACLA (1949).
In 1959, Alaska's first state legislature changed the
age of majority to 19 years. Ch. 37, 1, SLA 1959. In 1977,
the legislature again changed the age of majority, lowering it to
18 years. Ch. 63, 5, SLA 1977. The statute which declares the
age of majority for general purposes, AS 25.20.010, currently
reads:
A person is considered to have arrived at
majority at the age of 18, and thereafter has
control of the person's own actions and busi
ness and has all the rights and is subject to
all the liabilities of citizens of full age,
except as otherwise provided by statute.
By including the phrase "except as otherwise provided by
statute", the legislature authorized itself to enact various
different ages of majority to govern specific situations or
activities.
Sometimes, the legislature has decreed a lower age of
majority. For example, upon attaining the age of 16, a person
can possess a firearm without the consent of his or her parent or
guardian. AS 11.61.220(a)(3). A 16- or 17-year-old who marries
is considered to have arrived at the age of majority. AS
25.20.020 and AS 25.05.171(a). In most situations, a person may
lawfully consent to sexual conduct once he or she has attained
the age of 16 years. AS 11.41.434(a) and AS 11.41.436(a). (The
legislature has set a higher age of consent, 18 years, if the
child's sexual partner is someone who has certain types of legal
authority over the child. AS 11.41.410(a)(3)(B); AS 11.41.
420(a)(2)(B); AS 11.41.434(a)(2); and AS 11.41.436(a)(3).)
Sometimes, the legislature has raised the age of
majority. Generally, a person must be 19 years old to be adopted
without parental consent. AS 25.23.050(a)(7). A person must be
19 years old to use or possess tobacco. AS 11.76.105. And a
person must be 21 years old to use or possess alcohol. AS 4.16.
050.
The legislature has also provided that a 16- or 17-year-
old can petition the superior court for removal of most of the
disabilities of minority. AS 9.55.590. The superior court can
make a 16- or 17-year old minor an "adult" in the eyes of the law
for any specified purpose, or for all purposes -- the only
exceptions being voting and alcohol consumption. AS 9.55.090(f)
& (g).
Statutes like these, and the social policy decisions
that underlie them, are within the province of the legislature.
There is no legal requirement that the same age of majority apply
to all activities and circumstances. For example, the Alaska
Supreme Court held that, even after the legislature had lowered
the general age of majority from 19 years to 18 years, 18-year-
olds could still be prohibited from possessing or consuming
alcoholic beverages; such a law or regulation does not run afoul
of the general age of majority specified in AS 25.20.010 because
it falls within the "except as otherwise provided by statute"
language of that statute. See Michael v. State, 583 P.2d 852
(Alaska 1978).
Former AS 11.71.060(a)(3) established 19 years as the
age of majority for the purpose of regulating the possession of
marijuana. This statute was passed in 1982, when the general age
of majority was 18 years. Nevertheless, the legislative history
of former AS 11.71.060 demonstrates that, for purposes of possess
ing and using marijuana, the legislature intended to set the age
of majority at 19 years. The sectional analysis adopted by the
legislature states that "the prohibition in paragraph 3 [of AS
11.71.060(a)] codifies a holding implicit in Ravin v. State, [537
P.2d 494, 511 & n.69 (Alaska 1977)], that the protection afforded
to adults in possessing small amounts of marijuana in the home
for personal use does not apply to minors." 1982 House Journal,
Supplement No. 4 (January 22) at 23.
The legislature's sectional analysis of Title 4
provides further evidence of the legislature's intent to make 19
years the age of majority for purposes of regulating alcohol and
controlled substances. The House Journal's analysis of AS
11.71.010 (the statute prohibiting delivery of a scheduled IA
controlled substance to a person under nineteen who is at least
three years younger than the defendant) explains that "the cut-
off age of nineteen has been selected in order to be consistent
with laws involving alcohol in Title 04." Id. at 12. In the
sectional analysis of AS 04.16.050 (the statute prohibiting
possession or consumption of alcohol by persons under the age of
nineteen), the statute is described as a prohibition on "minors
consuming". 1980 Senate Journal, Supplement No. 23 (April 1) at
16. In the analyses of other sections of Title 4, the
legislature repeatedly refers to persons under the age of
nineteen as "minors". Id. at 16-17.
Thus, while the Alaska legislature has, since 1977,
been willing to recognize 18-year-olds as legal adults in most
respects, the legislature has consistently affirmed its view
that, for purposes of alcohol and drug use, the age of majority
should be set higher.
To satisfy the requirement of substantive due process,
legislation must be rationally related to a valid legislative
purpose. State v. Enserch Alaska Construction, Inc., 787 P.2d
624, 632 n.12 (Alaska 1989); Concerned Citizens of South Kenai
Peninsula v. Kenai Peninsula Borough, 527 P.2d 447, 452 (Alaska
1974). The Alaska Supreme Court has repeatedly recognized the
protection of minors as a valid legislative purpose. Anderson v.
State, 562 P.2d 351; Ravin v. State, 537 P.2d 494; L.A.M. v.
State, 547 P.2d 827; and Hanby v. State, 479 P.2d 486. Within
our system of government, subject to constitutional limitations,
it is the legislature's prerogative to restrict or forbid the use
of dangerous intoxicants and, if a restriction is based on age,
to establish the age at which persons can presumably be trusted
to handle those intoxicants in a mature and socially acceptable
manner. Former AS 11.71.060(a)(3) set the age for marijuana use
at 19 years. We conclude that this choice was rational.
Allam concedes that the legislature's current decision
to establish the drinking age at 21 years is supported by "years
of scientific study and years of conscious legislative debate".
If a drinking age of either 19 years (Alaska law until 1983) or
21 years (current Alaska law) is constitutional, then we have no
difficulty concluding that reasonable people could also conclude
that 19 years should be the minimum age for using marijuana,
another intoxicant.
The facts of Allam's particular case demonstrate
another rationale for establishing the age of marijuana use at
19 years. Allam and another 18-year-old were found sharing
marijuana with two other high school students who were under the
age of 18 years. Like Allam, many 18-year-olds attend high
school and regularly associate with students under the age of 18
years. Establishment of a minimum age of 19 years for marijuana
use is justified by the danger that, if 18-year-olds were allowed
to possess and use marijuana, they would share the drug with
other younger students or would at least frequently expose those
younger students to drug use.
Allam's arguments against setting the minimum age at
19 years constitute nothing more than pleas for this court to
enforce a numerical consistency upon the legislature. As
discussed earlier in this opinion, the legislature is not
required to set the same age of majority for all purposes.
Considering the individual and social dangers posed by the use of
intoxicants, it was reasonable for the legislature to conclude
that the general age of majority should not apply to marijuana
use -- that people should have more intellectual and emotional
maturity before they engage in this activity.
We now turn to Allam's contention that the legislature
denied him equal protection of the law when it set 19 years as
the minimum age for marijuana use.
Allam concedes that he has no fundamental right to use
or possess marijuana. Under federal equal protection law, when
neither a fundamental right nor a suspect or quasi-suspect
classification is involved, a statute will satisfy the
requirement of equal protection if it is rationally related to
furthering a legitimate state interest. Under this test, a
statute will not be invalidated unless its "varying treatment of
different groups or persons is so unrelated to the achievement of
any combination of legitimate purposes that ... the legislature's
actions were irrational." Vance v Bradley, 440 U.S. 93, 97; 99
S.Ct. 939, 942-43; 59 L.Ed.2d 171 (1979).
This test is essentially the same as Alaska's
substantive due process test. See State v. Enserch Alaska
Construction, Inc., 787 P.2d 624; Concerned Citizens of South
Kenai Peninsula v. Kenai Peninsula Borough, 527 P.2d 447. Having
found that former AS 11.71.060(a)(3) satisfied the demands of
substantive due process, we likewise conclude that it satisfied
the federal equal protection clause.
The final question is whether former AS 11.71.060(a)(3)
violated the Alaska Constitution's equal protection guarantee.
In State v. Enserch Alaska Construction, Inc., 787 P.2d at 631-
32, the Alaska Supreme Court reviewed the steps of analysis an
appellate court must undertake to decide a challenge to a statute
under Alaska equal protection law.
This court must first identify the individual interest
impaired by the statute and evaluate its importance; we then
identify the social purposes underlying the statute and evaluate
their importance. The level of justification required for the
statute rises in proportion to the importance of the individual
interest it affects. Depending upon the importance of that
individual interest, the government's interest in enacting the
statute must fall somewhere on a continuum between "mere legiti
macy" to a "compelling interest". Enserch Alaska Construction,
787 P.2d at 631.
Second, if the government's interest in enacting the
statute is sufficiently strong, this court must examine the
connection between the social policies underlying the statute and
the means adopted in the statute to further those policies.
Again, depending upon the importance of the individual interest
affected, this nexus between ends and means must fall somewhere
on a continuum between "substantial relationship" and "least
restrictive alternative". Id. at 631-32, 632 n.12.
Here, Allam concedes that he has no protected interest
in possessing or using marijuana. Even if Allam had not conceded
this point, we would recognize the legislature's legitimate
interest in regulating marijuana. Indeed, the Alaska Supreme
Court has already held that, except for personal use of marijuana
by adults in their own home, the legislature is justified in
regulating the possession and use of this drug. Ravin, 537 P.2d
494.
The second prong of the equal protection test is also
satisfied. Because Allam has no interest in possessing or using
marijuana, the classification drawn by former AS 11.71.060(a)(3)
between people at least 19 years old and people younger than
19 years must bear a "substantial relationship" to the policy
interests underlying the regulation of marijuana. Enserch Alaska
Construction, 787 P.2d 624. We conclude that, given the relation
ship between age and discretion, the establishment of a minimum
age of 19 years for marijuana use bears a substantial
relationship to the social interests advanced by marijuana
regulation.
As noted above, Allam presents an alternative argument:
that if he is to be treated as a minor for purposes of marijuana
regulation, the equal protection guarantee requires that he be
prosecuted in juvenile court (as he would be if he were under the
age of 18 years) instead of being prosecuted as an adult. Again,
Allam's argument falsely assumes that the legislature must
establish one age of majority for all purposes.
We discussed earlier that the Alaska legislature has,
at different times, decreed different general ages of majority.
Until 1959, the general age of majority was 21 years. From 1959
until 1977, it was 19 years. Since 1977, it has been 18 years.
However, the history of Alaska's juvenile justice system shows
that, for two generations, the legislature has viewed the age
limit for juvenile jurisdiction to be distinct from the general
age of majority.
Originally, the age ceiling for juvenile jurisdiction
was 21 years, the same as the general age of majority. 1911
CLA (1933), as amended by ch. 31 Laws 1935. But in 1943, the
legislature lowered the juvenile jurisdiction ceiling to 18 years
(even though the general age of majority remained at 21 years).
Ch. 8 Laws 1943. This law was later codified as 51-3-3 CLA
(1949). The age limit of 18 years was reaffirmed in 1957 when
the legislature passed the initial version of what is now AS
47.10.010, the statute establishing juvenile court jurisdiction
over minors charged with crimes. Ch. 145 1, SLA 1957 provided:
Definitions. For purposes of this Act, ...
(a) A "minor" shall be considered
any child not having yet reached his
eighteenth birthday.
This age limit of 18 years has remained a fixture of Alaska
juvenile law even while the general age of majority has
fluctuated from 21 years (1943 to 1959) to 19 years (1959 to
1977) to 18 years (1977 to the present).
See R.J.C. v State, 520 P.2d 806, 808 (Alaska 1974),
holding that the emancipation of a child younger than the general
age of majority did not affect his right to be prosecuted under
the juvenile system. See also M.O.W. v State, 645 P.2d 1229,
1233-35 (Alaska App. 1982), holding that a child under the age of
18 years cannot elect to be prosecuted as an adult for possession
of marijuana.
Again, Allam simply argues for numerical consistency.
Allam has not presented this court with concrete reasons to
believe that it is a violation of equal protection for the
legislature to establish a minimum age for marijuana use that
differs from the cut-off age for juvenile jurisdiction. We
conclude that the policies underlying our juvenile justice
statutes are sufficiently distinct from the policies underlying
the laws regulating alcohol and drug use that the Alaska
constitution does not require the legislature to use the same age
limit for both purposes. The legislature could reasonably
conclude that, even though 18-year-olds do not possess the
maturity and discretion to use intoxicants, 18-year-olds
nevertheless possesses sufficient awareness of themselves and
their obligations to society to be held fully responsible if they
choose to violate the criminal law.
For these reasons, we conclude that the Alaska legisla
ture acted constitutionally when they enacted former AS 11.71.060
(a)(3), establishing 19 years as the minimum age for possession
and use of marijuana guarantee, and when they left the maximum
age for juvenile jurisdiction at 18 years, so that 18-year-olds
who violated former AS 11.71.060(a)(3) would be prosecuted as
adults.
Allam makes one final argument. Former AS 11.71.060(b)
provided that use or possession of marijuana by a person under
the age of 19 was a class B misdemeanor. Class B misdemeanors
carry a maximum penalty of 90 days' imprisonment and a $1,000
fine. AS 12.55.135(b) and 12.55.035(b)(4). Allam contends that
imposing such a sentence for his offense constitutes "cruel and
unusual punishment". This claim is meritless.
A sentence violates the cruel and unusual punishment
clause only if it is "completely arbitrary and shocking to the
sense of justice." Davis v. State, 566 P.2d 640, 644 (Alaska
1977), quoting Green v. State, 390 P.2d 433, 435 (Alaska 1964).
Our sense of justice is not shocked by the possibility that a
violator of former AS 11.71.060(a)(3) might be sentenced to a
maximum penalty of 90 days' imprisonment and a $1,000 fine.1
The judgement of the district court is AFFIRMED.
_______________________________
* Sitting by assignment of the chief justice made pursuant
to Article IV, Section 16 of the Alaska Constitution.
1 Allam actually received a penalty considerably less than
this potential maximum; the court imposed a suspended imposition
of sentence conditioned on his good behavior for a period of 90
days, his performance of 24 hours of community work, and his
being screened by the Alcohol Safety Action Program.
