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THE COURT OF APPEALS OF THE STATE OF ALASKA
RUSSELL L. SHETTERS, )
) Court of Appeals No. A-3516
Appellant, ) Trial Court No. 2KB-S88-411CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1225 - May 15, 1992]
)
Appeal from the Superior Court of the State
of Alaska, Second Judicial District,
Kotzebue, Paul B. Jones, Judge.
Appearances: Mary C. Geddes, Assistant
Public Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Eric
Johnson, Assistant Attorney General, Office
of Special Prosecutions and Appeals,
Anchorage, and 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.
Russell L. Shetters pleaded no contest to importation
of alcohol into Kiana, a community that had, by local option
election, voted to prohibit the sale and importation, but not
possession, of alcoholic beverages. AS 04.11.496(b). Because
Shetters imported more than twelve liters of distilled spirits,
the importation was a class C felony. AS 04.16.200(e)(2).
Superior Court Judge Paul B. Jones sentenced Shetters to a
presumptive term of two years of imprisonment. Judge Jones
stayed execution of the sentence pending the appeal of the
constitutional issues Shetters had preserved in accordance with
Cooksey v. State, 524 P.2d 1251 (Alaska 1974). Shetters appeals
his conviction to this court, raising several issues. We affirm.
Shetters first contends that AS 04.11.496 violates due
process as unconstitutionally vague because it fails to give
adequate notice of what conduct is prohibited. Shetters points
out that Kiana did not ban possession of alcohol. He argues the
word "importation" often connotes importing for purposes of sale.
He contends that the only constitutional interpretation of AS
04.11.496 is that the state bans importation for purposes of
sale, not importation for personal possession. He argues that if
this court interprets AS 04.11.496 as prohibiting importation for
personal possession, the statute is unconstitutionally vague.
However, AS 04.11.496 provides in relevant part as
follows:
Prohibition of sale and importation of
alcoholic beverages. (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 and importation of
alcoholic beverages be prohibited in. . . . .
(name of municipality or village)? (yes or
no)".
(b) If a majority of voters vote "yes"
on the question set out in (a) of this
section, a person, beginning on the first day
of the month following certification of the
results of the election, may not knowingly
send, transport, or bring an alcoholic
beverage into the municipality or established
village, unless the alcoholic beverage is
sacramental wine to be used for bona fide
religious purposes based on tenets or
teachings of a church or religious body, is
limited in quantity to the amount necessary
for religious purposes, and is dispensed only
for religious purposes by a person authorized
by the church or religious body to dispense
the sacramental wine.
(Emphasis added.)
The statute seems clear. Alaska Statute 04.11.496(b)
does not use the word "importation"; instead, the statute forbids
a person to "knowingly send, transport, or bring an alcoholic
beverage into the municipality or established village." The fact
that the statute provides for only one exception, the importation
of a limited amount of sacramental wine, further clarifies that
the statute forbids importation of an alcoholic beverage for any
other purpose, including personal consumption. Similarly, AS
04.16.200(e), which sets penalties for such importation, refers
to "[a] person who sends, transports, or brings alcoholic
beverages into a municipality or established village in violation
of AS 04.11.496." We conclude that the statute is not vague and
clearly prohibits the importation of alcoholic beverages for
personal consumption. See also Harrison v. State, 687 P.2d 332,
342 (Alaska App. 1984).
Shetters next argues that a potential defendant "would
be unable to find any published law banning the importation of
alcohol into Kiana." He contends that it would be difficult for
a person to establish which local communities had banned the
importation of alcohol. He contends that although the Alcoholic
Beverages Control Board attempts to keep track of which
communities have banned the importation of alcohol, this list is
not always accurate or up to date. He argues that this lack of
notice to a potential defendant constitutes a denial of due
process. Shetters does not discuss any authority concerning this
defense of "ignorance due to unavailable law." It appears to us
that for Shetters to prevail, he would have to prove, in addition
to showing information concerning the law was not made reasonably
available, that he made reasonable efforts to act lawfully and
that he subjectively did not know that his conduct was criminal
and believed that there was "no risk of criminality." 2 Paul H.
Robinson, Criminal Law Defenses 182 at 381-85 (1984); see also
United States v. Hall, 742 F.2d 1153, 1155 (9th Cir. 1984) (per
curiam) (although regulation not published in Federal Register,
defendants had actual and timely notice of prohibited conduct);
Harrison, 687 P.2d at 346 (although local option election not yet
approved by federal government in accordance with Voting Rights
Act, defendant did not allege he detrimentally relied on good
faith belief of legality of importation and so could not claim he
had lacked notice); 1 Wayne R. LaFave & Austin W. Scott, Jr.,
Substantive Criminal Law 5.1(e)(1) at 589-90 (1986). In this
case, Shetters does not contend that he inquired into the
legality of bringing alcoholic beverages to Kiana or that he was
actually unaware that such importation was illegal. In fact, at
an evidentiary hearing before Judge Jones, Alaska State Trooper
Kim Nay testified that he had encountered Shetters on July 6,
1988, and informed him that taking alcoholic beverages to Kiana
was illegal, and that Shetters responded that he knew Kiana was
"dry" and that he would not take alcoholic beverages there.2 We
conclude the court did not err in denying this claim.
Shetters next argues that local option elections do not
conform to the constitutional requirements that state laws must
be passed by majority vote of each house of the legislature, must
be subject to veto by the governor, must be limited to the
constitutional provisions and restrictions regarding initiative
elections, and must be enacted according to due process. Alaska
Const. art. I, 7; art. II, 14, 15; art. XI 1-4, 6, 7.
Shetters also argues that these local elections are an unconstitu-
tional delegation of legislative power.
These arguments can be addressed together because they
rely on the same misconception of the nature of local option
elections. It is the state legislature that has enacted the
local option laws; the local voters have no authority to pass
state laws, but merely elect whether the state laws will take
effect within their communities. Shetters does not argue that AS
04.11.496 or any other statute of the local option law was not
constitutionally enacted by the legislature and subject to veto
by the governor. The voters of Kiana could vote to adopt this
option without submitting their election results to the state
government for enactment. It is not an unconstitutional
delegation of legislative power to grant local communities the
choice of whether to adopt the state law. See Duncan v. Marcin,
403 N.E.2d 653, 655 (Ill. App. 1980); Malito v. Marcin, 303
N.E.2d 262, 264-65 (Ill. App. 1973); see also People v. Superior
Court (Skoblov), 241 Cal. Rptr. 322, 328-29 (Cal. App. 1987)
(local option to establish pretrial diversion procedure for
misdemeanor defendants); Two Guys from Harrison, Inc. v. Furman,
160 A.2d 265, 281-82 (N.J. 1960) (local option "Sunday Closing"
law).
The fact that the local community is not itself
enacting a state law when it holds a local option election
disposes of Shetters' other arguments that local options are
unconstitutionally enacted. It does not violate due process for
local voters to elect to adopt a state law regulating alcoholic
beverages without the opportunity to specifically vote on all the
provisions of the state law. Nor does the possibility that a
community might frequently change its local option establish an
unlimited delegation of legislative power.3 Finally, because the
community voters were not empowered to and in fact did not enact
a state law, the elections were not subject to the constitutional
provisions on initiative measures.
Next, Shetters argues that the local option law is
unconstitutional as a "local or special act." Alaska Const. art.
II, 19. Shetters argues that the local option laws are local
and special acts by their very nature, and are therefore
unconstitu-tional "if a general act can be made applicable." Id.
Shetters argues that a state law which specifically prohibited
importation of alcoholic beverages into Kiana would be an
unconstitutional special act, and therefore achieving the same
result through the local option law is also unconstitutional.
In State v. Lewis, 559 P.2d 630 (Alaska), appeal
dismissed, 432 U.S. 901 (1977), the Alaska Supreme Court stated:
The test to be employed in determining
whether legislation contravenes Art. II, Sec.
19 is substantially the same as that
applicable to nonsuspect classifications
challenged as violative of equal protection.
Examining both the legislative goals and the
means used to advance them, we must determine
whether the legislation bears a "fair and
substantial relationship" to legitimate
purposes. If this standard is satisfied, the
bill will not be invalid because of
incidental local or private advantages.
Legislation need not operate evenly in all
parts of the state to avoid being classified
as local or special.
559 P.2d at 643 (footnotes omitted). In Lewis, the court held
that a legislative act relinquishing specific land to the United
States was not an unconstitutional local or special act, but "a
general legislative treatment of complex problems of pressing
importance and of statewide concern." Id. at 644.
This court has already evaluated the equal protection
implications of the local option law and found that it is a
general legislative treatment of complex problems of pressing
importance and of statewide concern. The state interest in
controlling alcohol-related problems is rationally linked to
punishing those who import alcoholic beverages into those
communities that have affirmatively voted to prohibit
importation, even if those communities do not include all
communities in the state with similar alcohol-related problems.
See Burnor v. State, ____ P.2d ____, Op. No. 1213 at 8-9 (Alaska
App., April 3, 1992); Harrison, 687 P.2d at 340-41. Therefore,
the local option laws are properly considered general legislation
rather than special or local acts. See also Two Guys from
Harrison, Inc., 160 A.2d at 282 (local option "Sunday Closing"
law not unconstitutional special act).
Finally, Shetters argues that the local option laws
violate the equal protection clause. Alaska Const. art. I, 1.
Shetters argues that it is irrational and discriminatory to
create a "crazy quilt pattern" of jurisdictions in which
different state laws regulating alcoholic beverages are
operative. See Pleasure Time Development Corp. v. State, 225
S.E.2d 57, 58 (Ga. 1976) (Nichols, C.J., dissenting). However,
again, under Harrison and Burnor, we have concluded that the
legislature may constitutionally treat local option communities
differently from other communities because the difference in
treatment results from an election that all communities are
equally free to make. We again find no equal protection
violation.
The conviction is AFFIRMED.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
2. Trooper Carl Schramm testified that at the time he
arrested Shetters, Shetters stated that he thought having alcohol
in Kiana was legal as long as it was for personal consumption.
Shetters apparently never testified to any lack of knowledge.
3. In 1988 the legislature enacted AS 04.11.502(d),
which requires that elections to remove (but not to impose) local
restrictions on alcohol be held no more frequently than every
twelve months.
