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NOTICE
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opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
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Courts:
303 K Street, Anchorage, Alaska 99501
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E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| DOUGLAS MYERS, | ) |
| ) Court of Appeals No. A-8739 | |
| Appellant, | ) Trial Court No. 3AN-02-10502 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| MUNICIPALITY OF ANCHORAGE, | ) |
| ) | |
| Appellee. | ) No. 2041 April 7, 2006 |
| ) | |
Appeal from the District Court, Third Judi
cial District, Anchorage, Brian K. Clark,
Judge.
Appearances: Rebecca J. Hozubin, Wilkerson,
Hozubin, & Burke, for the Appellant. John E.
McConnaughy III, Assistant Municipal
Prosecutor, and Frederick H. Boness,
Municipal Attorney, Anchorage, for the Appel
lee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
STEWART, Judge, dissenting.
This appeal involves a constitutional attack on the
Municipality of Anchorages drug paraphernalia ordinances a trio
of laws that, read together, prohibit the possession and sale of
items connected with the manufacturing, dispensing, storing, and
use of controlled substances.
The parties to this appeal describe the main issue as
whether these ordinances are too vague. Vagueness is, indeed,
one of the problems with these laws. As we discuss in detail
below, the definition of drug paraphernalia codified in
AMC 08.35.010 can not easily be understood or applied. But there
is another major problem with the ordinances: under the
ordinances, people may be convicted of a crime without any proof
that they acted with a culpable mental state.
There is yet another problem with the drug
paraphernalia ordinances: as written, these ordinances outlaw
the sale or possession of any item connected with the
manufacture, dispensing, storage, or use of controlled substances
regardless of whether that manufacture, dispensing, storage, or
use is lawful or unlawful. On their face, the ordinances
prohibit conduct that drug manufacturers, pharmacists, doctors,
and patients must necessarily engage in when they lawfully
manufacture, store, prepare, dispense, and use controlled
substances.
As we explain below, this third problem appears to be a
drafting error. If this third problem were the only flaw in the
ordinances, we would probably resolve this case by adopting a
limiting construction of the ordinances. But we can not solve
the other two problems: the fact that the definition of the
prohibited conduct is so vague that it can not be understood or
applied, and the fact that the ordinances authorize criminal
convictions without proof of a culpable mental state.
For these reasons, we conclude that the Municipalitys
drug paraphernalia ordinances are flawed beyond judicial salvage,
and that they must be declared unconstitutional.
Overview of the Municipality of Anchorages drug
paraphernalia ordinances
As mentioned above, this case involves a trio
of ordinances found in the Anchorage Municipal Code.
Section 08.35.010 defines the term drug
paraphernalia.
Section 08.35.020 prohibits the sale of drug
paraphernalia or the possession of drug paraphernalia
with intent to sell, except as specifically authorized
and permitted by Title 17 of the Alaska Statutes or by
state regulations adopted under the authority of Title
17.
Section 08.35.025 prohibits the possession of
drug paraphernalia in public (even if the possessor has
no intent to sell it, and regardless of whether the
item ... is publicly displayed).
To understand the issues presented in this
case, one must study the definition of drug
paraphernalia codified in section 08.35.010. One
difficulty in discussing section 08.35.010 is that its
definition of drug paraphernalia is divided into two
distinct parts two discrete definitional paragraphs
and neither of these definitional paragraphs is
designated with a number or letter. Moreover, each of
these two definitional paragraphs is followed by a
numbered list, and both lists begin with 1.
To make it easier for readers to follow our
discussion of this ordinance, we will refer to the two
definitional paragraphs as Paragraph A and Paragraph B.
Paragraph A of the ordinance declares that
drug paraphernalia means:
any items [sic: item] whose objective
characteristics or objective manufacturers
design indicate that it is intended for use
in the consumption, ingestion, inhalation,
injection or other method of introduction of
a controlled substance into the human body or
to facilitate a violation of AS 11.71.
(Under the Anchorage Municipal Code, a
controlled substance is any substance listed
in any of the six schedules codified in AS
11.71.140 190. See AMC 08.35.010(A).)
Because the definition of drug
paraphernalia codified in Paragraph A hinges
on an items objective characteristics or
design, we will refer to this portion of the
definition as the objective characteristics
test.
Paragraph B of the ordinance
supplements the objective characteristics
test codified in Paragraph A. Paragraph B
declares that, in addition to all of the
items covered by Paragraph A, drug
paraphernalia also means:
any item where circumstances reasonably
indicate that the subjective intent of [its]
possessor is to use it or sell it for the
consumption, ingestion, inhalation, injection
or other method of introduction of a
controlled substance into the human body or
to facilitate a violation of AS 11.71.
Because the definition of drug
paraphernalia codified in Paragraph B hinges
on whether the circumstances furnish a
reasonable indication of the possessors
intent, we will refer to this portion of the
definition as the reasonable indication of
intent test.
As written, the two definitions of drug paraphernalia
in AMC 08.35.010 (Paragraphs A and B) cover any
item connected with the preparation, distribution,
storage, or use of a controlled substance
regardless of whether the use of the controlled
substance is legal or illegal
Both Paragraph A and Paragraph B of the
ordinance declare that an item is drug
paraphernalia if it is intended for either of two
purposes: (1) to aid the introduction of a
controlled substance into a human body, or (2) to
facilitate a violation of our states Controlled
Substances Act, AS 11.71.
The problem here is that the introduction of
controlled substances into a human body is not illegal
per se. Every day in this state, thousands of people
lawfully prepare, dispense, store, and use controlled
substances. The introduction of a controlled substance
into a persons body is unlawful only if the controlled
substance has not been prescribed for a medical purpose
that is, only if the use of the controlled substance
violates our states Controlled Substances Act, AS
11.71.1
But the second clause of Paragraphs A and B
already covers all items intended to facilitate
violations of AS 11.71. Thus, using normal rules of
statutory construction in particular, the rule that a
statute should not be construed so as to make any of
its provisions superfluous2 we would be led to
conclude that the first clause of Paragraphs A and B
was intended to apply to instances where the
introduction of a controlled substance into a persons
body does not violate the Controlled Substances Act
that is, instances where the persons use of the
controlled substance is lawful.
At first blush, one might think that this
flaw is cured by a certain provision of AMC 08.35.020,
the ordinance that prohibits the sale of drug
paraphernalia or the possession of drug paraphernalia
with intent to sell. This ordinance declares that it
is a crime to sell drug paraphernalia, or to possess
drug paraphernalia with intent to sell it, except as
specifically authorized and permitted under the
provisions of AS 17 and by such rules and regulations
as are adopted there[under].
One might assume (indeed, we made this
assumption when we first read this ordinance) that the
language quoted in the last sentence refers to specific
statutes in Title 17, or to specific state regulations,
that authorize the sale and possession of drug
paraphernalia in connection with the lawful
manufacture, dispensing, and use of controlled
substances. But this assumption would be wrong.
With the exception of the statutes governing
the medical use of marijuana (AS 17.37.010 080), Title
17 of the Alaska Statutes contains no provision that
specifically authorizes the sale or possession of drug
paraphernalia for any purpose. Nor does the Alaska
Administrative Code contain any regulation promulgated
under Title 17 that specifically authorizes the sale or
possession of drug paraphernalia.
Thus, although AMC 08.35.020 contains a
clause that purports to allow the sale or possession of
drug paraphernalia when that sale or possession is
specifically authorized and permitted by state law,
this clause is essentially a nullity.
This brings us back to our initial reading of
the drug paraphernalia ordinance: the second clause of
Paragraphs A and B covers all items that are intended
to facilitate the unlawful use of controlled substances
(any use that violates AS 11.71), while the first
clause of Paragraphs A and B covers all items that are
intended to facilitate the lawful use of controlled
substances.
The legislative history of the Municipalitys
drug paraphernalia ordinances suggests that this
problem arises from a drafting error committed twenty-
five years ago and that the language of Paragraphs A
and B of the ordinance fails to reflect the intention
of the Municipal Attorneys Office (which drafted the
ordinance) and the Municipal Assembly (which adopted
the ordinance).
The pertinent legislative history begins with
the minutes of the Municipal Assemblys meeting of
January 1982. At this meeting, the Assembly debated
whether to enact Anchorages predecessor drug
paraphernalia ordinance. From the minutes of this
discussion, it appears that the Assembly was thinking
only of the unlawful use of controlled substances, and
that the Assembly did not intend to outlaw the
possession or sale of items connected with the lawful
use of controlled substances.
The predecessor ordinance defined drug
paraphernalia as any item intended for use in
introducing into a human body a controlled substance.3
This language suffered from the same flaw as the
current definition: it outlawed all items connected
with the lawful use of controlled substances as well as
items connected with the unlawful use of controlled
substances.
At its January 1982 meeting, the Anchorage
Assembly heard comments from various members of the
public, including a representative of the American
Diabetes Association, expressing concern that the
proposed ordinance would impose penalties on lawful
users of controlled substances. In response, the
municipal attorney told the Assembly that the proposed
ordinance prohibit[ed] the sale of drug paraphernalia
[only] if the seller knows [that the item] is to be
used to ingest illicit drugs.4
Strictly speaking, there are no illicit
drugs, but only illicit uses of drugs. The municipal
attorney assumedly meant that the ordinance was
intended to apply only to items connected with the
unlawful use of controlled substances. This
interpretation is confirmed by the fact that the
municipal attorney also told the Assembly that the
proposed ordinance would have no effect on diabetics or
other people who carried syringes or other items
connected with the lawful ingestion of controlled
substances.5
Thus, even though the 1982 version of the
drug paraphernalia ordinance, as written, outlawed all
items connected with any use even lawful uses of
controlled substances, it appears that the Municipal
Assembly voted for this ordinance only after being
assured that the ordinance applied only to items
connected with the unlawful use of controlled
substances.
Alaska does not follow the plain meaning rule
of statutory interpretation the rule that bars a court
from considering legislative history as an interpretive
aid if a statutes meaning is facially plain.6
Accordingly, we are authorized to rely upon the
legislative history from 1982 to narrow the scope of
the drug paraphernalia ordinance even though, as
written, the ordinance plainly covers all items
connected with any use even lawful uses of controlled
substances.
The situation is, however, made more
complicated by the Municipal Assemblys enactment of
amended drug paraphernalia ordinances in 2000.
The Anchorage drug paraphernalia ordinances
were substantially re-written in 2000.7 It was during
this revision that the definition of drug paraphernalia
assumed its current form covering all items intended
for either of two purposes: (1) to aid the
introduction of a controlled substance into a human
body, or (2) to facilitate a violation of our states
Controlled Substances Act, AS 11.71.
Under normal circumstances, this change in
the wording of the ordinance would be a strong
indication that the ordinance was, in fact, intended to
cover items connected with any use of controlled
substances, whether that use was lawful or unlawful.
The ordinance now outlaws all items that are
intended either (1) to aid the introduction of a
controlled substance into a human body, or (2) to
facilitate a violation of the states drug laws. The
rules of statutory construction direct us to interpret
the first clause of this definition as supplementing
the second clause, not simply restating it. Since
clause (2) covers all items connected with the unlawful
use of controlled substances, clause (1) must cover all
items connected with any other use of controlled
substances in other words, lawful uses.
The legislative history of this 2000 re-
writing of the ordinance is essentially silent on this
point. Even though the Municipal Attorneys Office was
proposing an extensive revision of the Anchorage drug
paraphernalia ordinances, the supporting memorandum
prepared by the municipal attorney devoted only two
sentences to the proposed amendment, and only one of
those sentences is pertinent to the issue we are
discussing. That one sentence declared that the drug
paraphernalia ordinances were being amended [to]
reflect decisions on the constitutionality of similar
ordinances by the United States Supreme Court. The
memorandum did not specify what court decisions the
municipal attorney was referring to.
The minutes from the Anchorage Assembly
meeting of July 2000 reflect that no one appeared
before the Assembly to offer public comment on the
proposed revision.8 The minutes do reflect that an
attorney from the Municipal Attorneys Office responded
to Assembly questions regarding definitions, the
difference between subjective and objective standards
of state and municipal laws, and ... [the] outcomes of
[court] cases in other states.
We assume, from the context, that at least
some of the assistant municipal attorneys remarks were
aimed at clarifying the proposed revision of the drug
paraphernalia ordinances. The minutes do not, however,
give any details of the Assemblys questions or the
attorneys responses.
(We note, moreover, that it is possible that
the assistant municipal attorney was addressing other
aspects of the proposed ordinance because this same
ordinance also proposed amendments to several other
unrelated sections of the Municipal Code. In
particular, Anchorage Ordinance 2000-95 also amended
the sections of the Code relating to child abuse, the
illegal use of computers and e-mail, resisting or
interfering with a police officer, and the
identification of criminal offenses that stem from acts
of domestic violence.)
Given this history (or, rather, lack of
history) from 2000, it appears that the Anchorage
Assembly did not give any particular thought to the
revised definition of drug paraphernalia that it
adopted in 2000. As a result of the Assemblys action,
both Paragraph A and Paragraph B of the ordinance now
define drug paraphernalia as any item connected with
the consumption, ingestion, inhalation,
injection or other method of introduction of
a controlled substance into the human body or
to facilitate a violation of AS 11.71.
This revised wording that is, the wording of the current
ordinance that governs this case clearly covers all items
that facilitate any use of controlled substances, whether
that use is lawful or unlawful.
Nevertheless, in light of the municipal attorneys
explanation of the intended meaning of the corresponding language
from the predecessor ordinance of 1982, and in light of the scant
attention paid to the new definitional language that appeared in
the re-written ordinance in 2000, it appears that the Assembly
may still have been relying on the municipal attorneys assurance
(from January 1982) that the drug paraphernalia ordinances would
apply only to items connected with the unlawful use of controlled
substances. Moreover, if we interpreted the drug paraphernalia
ordinance in accordance with its language, this would lead to
results that, without a doubt, the Anchorage Municipal Assembly
would never have approved.
Under such circumstances, we are not bound by the
wording of the ordinance. As our supreme court explained in
Federal Deposit Insurance Corp. v. Laidlaw Transit, Inc.:
[E]ven when a statutes language [and] meaning
seems plain on its face, ambiguity may arise
if applying that meaning would yield
anomalous consequences. ... Thus, [even]
courts adhering to the plain meaning rule of
statutory interpretation commonly define the
rule to apply only [when both the] language
of a statute is clear and construction [of
the statute] according to its terms does not
lead to absurd consequences.
21 P.3d 344, 351 & n. 27 (Alaska 2001)
(citations and internal quotes omitted).
For these reasons, we might
conceivably cure the problem in Paragraphs A
and B of the ordinance by striking the words
or to facilitate a, and then replacing those
words with a single word, in. After this
change, the definitions in Paragraph A and
Paragraph B would apply only to items
connected with the consumption, ingestion,
inhalation, injection or other method of
introduction of a controlled substance into
the human body in violation of AS 11.71 in
other words, items connected with a violation
of the controlled substances chapter of
Alaskas criminal code.
But as we explain in the remainder
of this opinion, even if we adopted this
narrowing construction of Paragraphs A and B,
each of these definitional paragraphs would
still suffer from an intractable
constitutional problem.
The definition of drug paraphernalia Paragraph A: the
objective characteristics test
As we mentioned above, each of the two
definitional paragraphs in AMC 08.35.010 is followed by
a numbered list. In the case of Paragraph A, the list
is introduced by the following words: Drug
paraphernalia [as defined in Paragraph A] includes but
is not limited to .... The ordinance then lists twelve
categories of items that are declared to be drug
paraphernalia.
Among the twelve listed categories of drug
paraphernalia, we see items that are commonly sold at
groceries, greenhouses, and hardware stores for
example, [any kit] used or intended for use in
planting, propagating, cultivating, growing, or
harvesting ... any species of plant which [either] is a
controlled substance or from which a controlled
substance can be derived (Item A.1). We also see items
that are found in any pharmacy for example, [any kit]
used or intended for use in manufacturing, compounding,
converting, producing, processing, or preparing
controlled substances (Item A.2).
We see items that are sold at department
stores and cookware stores for example, [s]cales and
balances used or intended for use in weighing or
measuring controlled substances (Item A.5), as well as
[b]lenders, bowls, containers, spoons, and mixing
devices used or intended for use in compounding
controlled substances (Item A.8).
We see items that can be found in stationery
stores envelopes (Item A.9), and items that can be
found in party supply stores balloons (Item A.9).
We see items that can be found in the
residences of people who rely on certain forms of daily
medication hypodermic syringes, needles, and other
objects used or intended for use in parenterally9
injecting controlled substances into the body (Item
A.11). We see items that can be found in tobacco shops
wooden, ... plastic, or ceramic pipes (Item A.12.a),
and in the homes of people who come from the Middle
East or who have visited that region [w]ater pipes
(Item A.12.b).
Finally, we see items that could be found
almost anywhere: [c]ontainers and other objects used
or intended for use in storing ... controlled
substances. (Item A.10)
Admittedly, this list of categories is
preceded by the objective characteristics language in
Paragraph A. For this reason, it would make sense to
interpret these twelve listed categories of items as if
each category were implicitly limited by the objective
characteristics test. Thus, even though an item might
be included among the twelve listed categories, the
item would qualify as drug paraphernalia only if its
objective characteristics showed that it was intended
for some use connected with the unlawful introduction
of a controlled substance into a human body.
But, as District Court Judge Gregory J.
Motyka discovered when he tried to apply the objective
characteristics test during an earlier stage of this
case, it is often all but impossible to determine
whether an items objective characteristics show that it
is intended for a use connected with the unlawful
introduction of controlled substances into a human
body.
For instance, what objective characteristic
of a scale or a spoon shows that it is intended for the
weighing or measuring of controlled substances instead
of other things? Or what objective characteristic of a
pipe (of normal size and construction) shows that it is
intended for the smoking of marijuana as opposed to
tobacco or other herbs? Does the characterization of
these items as drug paraphernalia hinge on the type of
decoration found on them? Would an illustration of a
marijuana leaf render the scales or the pipe drug
paraphernalia? What about a paisley pattern or other
brightly colored design?
The task becomes even harder when we consider
such listed items as syringes, balloons, and bowls.
What objective characteristics of a syringe would lead
to the conclusion that it was intended for use in the
unlawful injection of controlled substances, as opposed
to the lawful injection of controlled substances
prescribed as medicines? What objective
characteristics of a balloon would lead to the
conclusion that it was intended to be used for the
unlawful transporting or storing of controlled
substances as opposed to being used as a party
decoration? What objective characteristics of a bowl
would lead to the conclusion that it is intended for
use in sifting marijuana as opposed to flour, or what
objective characteristics of a mortar would indicate
that it was intended for the grinding of controlled
substances as opposed to spices?
Hardest of all is Item A.10, containers.
What objective characteristics of a box, a plastic
storage container, a bottle, or a spice jar would lead
to the conclusion that it was intended for the storage
of controlled substances as opposed to other things?
Moreover, pill bottles and pill dispensers are
containers that are commonly used by pharmacists,
doctors, and patients in connection with the lawful use
of controlled substances i.e., the use of controlled
substances by prescription. What objective
characteristics of such an item would lead to the
conclusion that it was intended for the storage of
controlled substances that are to be ingested
unlawfully, as opposed to the storage of lawful
medicines?
The text of the Anchorage drug paraphernalia
ordinance does not supply the answers to these
questions.
A potential way to solve this statutory
problem is suggested by the United States Supreme
Courts decision in Village of Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102
S.Ct. 1186, 71 L.Ed.2d 362 (1982).
In Hoffman Estates, the United States Supreme
Court addressed a constitutional challenge to a city
ordinance that prohibited the sale of any item designed
or marketed for use with illegal ... drugs.10 The
Supreme Court dealt with the potential vagueness of
this definition in two ways. First, the Court limited
the designed for use clause by interpreting it to cover
only items which, by virtue of [their] objective
features, i.e. features designed by [their]
manufacturer, are principally used with illegal
drugs.11 Second, the Court limited the marketed for
use clause by interpreting it to require proof that the
defendant intentionally displayed the item in a manner
that appeal[ed] to or encourag[ed] illegal drug use.12
In other words, the government had to prove that the
defendant intend[ed] that [illegal] use of the item.13
The Supreme Court acknowledged that, even
after the ordinance was limited in this fashion, the
ordinance still posed a significant risk of
discriminatory enforcement. The Court noted that the
record of the lower court proceedings revealed
confusion concerning the scope of items covered by the
ordinance.14 The Court further noted that, according
to the record, city officials relied extensively on the
judgment of [individual] police officers to give
meaning to the ordinance and to enforce it fairly.15
The Supreme Court emphasized that it was not
deciding whether these potential flaws might bar
enforcement of the ordinance in the future. Rather,
the Court was deciding only that these problems did not
render the ordinance facially unconstitutional, once
the ordinance was limited in the fashion described in
its opinion.16
The Supreme Courts decision in Hoffman
Estates suggests a potential narrowing and saving
interpretation of the definition of drug paraphernalia
codified in Paragraph A of AMC 08.35.010. We could
construe the objective characteristics test in
Paragraph A as covering only those items which, judged
by their objective characteristics, have but one
principal use: the consumption, ingestion, inhalation,
injection or other method of introduction of a
controlled substance into the human body in violation
of AS 11.71.
This narrowing construction would not answer
all of the potential constitutional objections to this
ordinance. For example, even construed in this
fashion, the ordinance would still seemingly forbid a
museum curator from assembling an exhibit of certain
artifacts from the 1960s.
But more importantly, as we pointed out
above, many people e.g., drug company representatives,
pharmacists, doctors, and patients routinely sell and
possess objects which are specifically designed for use
in the preparation, distribution, storage, and personal
use of controlled substances. It is often very
difficult, if not impossible, to identify any objective
characteristics of these items that would reveal
whether the item is primarily connected with the
unlawful use of controlled substances as opposed to the
lawful use of controlled substances.
For this reason, we might further interpret
the ordinance to require proof that the seller or
possessor of the item intends that the item be used for
an unlawful purpose, or that the seller or possessor at
least knows that the item will be used for an unlawful
purpose. But at this point, we would be engaged in a
re-drafting of Paragraph A of the ordinance that would
exceed our proper judicial role.
Moreover, as explained in the next section of
our opinion, Paragraph B of the definition of drug
paraphernalia suffers from a discrete constitutional
difficulty.
The definition of drug paraphernalia Paragraph B: the
reasonable indication of intent test
Paragraph B of the ordinance contains an
alternative definition of drug paraphernalia.
Paragraphs A and B are worded in the disjunctive; that
is, even if an item does not qualify as drug
paraphernalia under Paragraph As objective character
istics test, that item may still qualify as drug
paraphernalia under Paragraph Bs reasonable indication
of intent test.
Paragraph B declares that, in addition to the
items covered by Paragraph A, drug paraphernalia also
means:
any item where circumstances reasonably
indicate that the subjective intent of [its]
possessor is to use it or sell it for the
consumption, ingestion, inhalation, injection
or other method of introduction of a
controlled substance into the human body or
to facilitate a violation of AS 11.71.
The definition codified in
Paragraph B suffers from the same underlying
problem as the definition codified in
Paragraph A: the definition covers both
lawful and unlawful uses of controlled
substances. As explained above, this problem
could conceivably be cured by striking the
words or to facilitate a and replacing those
words with the single word in. After this
change, Paragraph B would define drug
paraphernalia as any item where circumstances
reasonably indicate that the subjective
intent of [its] possessor is to use it or
sell it for the consumption, ingestion,
inhalation, injection or other method of
introduction of a controlled substance into
the human body in violation of AS 11.71.
This curative change would not,
however, eliminate all of the constitutional
problems in Paragraph B.
It is important to note that
Paragraph B does not define drug parapher
nalia in terms of the possessors actual
subjective intent. Paragraph B does not
require proof that the possessor of the item
subjectively intended to use or sell the item
to accomplish or further the unlawful
introduction of a controlled substance into
the human body. Rather, under Paragraph B,
the government must prove merely that the
circumstances reasonably indicate that the
possessor intended that the item be put to
this unlawful purpose.
In other words, Paragraph B allows
a defendant to be convicted of the sale or
possession of drug paraphernalia when, given
the circumstances, a reasonable person would
believe, or think it likely, that the
defendant intended to use or sell the item to
accomplish or further the unlawful
introduction of a controlled substance into
the human body regardless of whether the
defendant actually intended this.
The constitutional dangers inherent
in this formulation of the offense are
exacerbated by the provisions of the numbered
list that follows Paragraph B.
Paragraph B is followed by a list
of fourteen [c]ircumstances to be considered
in assessing the subjective intent of the
possessor of the object. These circumstances
include many things that the possessor of the
item may not know about or may not
understand.
For example, the list of
circumstances that the trier of fact may
consider includes [s]tatements [made] by the
manufacturer [of the item] (Item B.1). The
list also includes [n]ational and local
advertising concerning [the items] use (Item
B.9).
The list of circumstances further
includes [d]irect or circumstantial evidence
of [the possessors] intent ... to deliver
[the item] to persons who [the possessor] ...
should reasonably [know] intend to use the
object to facilitate a violation of [the
state drug laws] (Item B.6) (emphasis added).
In other words, the trier of fact is directed
to consider the defendants negligence
concerning the ultimate purchasers purpose
for buying the object, as opposed to the
defendants actual awareness of the purchasers
purpose.
Finally, the list of circumstances
includes [e]xpert testimony concerning [the
items] use (Item B.14). As the defendant
points out in his brief to this Court, this
provision allows the Municipality to offer
the testimony of drug enforcement officers
that a particular object is frequently used
in connection with the illegal ingestion of
controlled substances. As explained above,
the ordinance does not require the trier of
fact to determine whether the defendant was
actually aware of the items use within the
drug culture, or that the defendant actually
intended that the item be used in that
fashion. Rather, the ordinance declares that
the trier of fact need only determine whether
the circumstances reasonably indicate that
the defendant intended to put the object to
this use and that, in assessing the
circumstances, the trier of fact can consider
expert testimony about the use of the item by
drug users, regardless of whether the
defendant was personally aware that other
people were putting the item to that illegal
use.
The underlying problem with the
definition of drug paraphernalia codified in
Paragraph B is that it allows a person to be
convicted based on appearances rather than
actual criminal intent. Paragraph B requires
the Municipality to prove only that the
circumstances reasonably indicate that the
seller or possessor of the item intended for
the item to be used in connection with a
violation of the drug laws. We emphasize
that, under the ordinance as written, this
reasonable indication is not being used as
circumstantial evidence of the defendants
true intention. Rather, reasonable
indication is all that must be proved.
Under Alaska law, the guarantee of
due process demands that, before a person is
subjected to criminal penalties, the
government must show that the person acted
with some awareness of wrongdoing.17 This
demand would presumably be met if the drug
paraphernalia ordinance were written so as to
require proof that the seller or possessor of
an item actually intended that the item be
used for unlawful purposes. But the
challenged ordinance is not written that way.
Instead, the ordinance requires the
Municipality to prove only that the
circumstances reasonably indicate that the
seller or possessor intended the item to be
put to an illegal use.
It may be that the drafters of the
ordinance really intended to dispense with
any inquiry into the defendants actual
intent, and to punish defendants based solely
on appearances. Alternatively, the drafters
of the ordinance may have intended to punish
defendants for their actual intent, but
substituted reasonable indication for proof
beyond a reasonable doubt. In either event,
the reasonably indicate language of Paragraph
B violates the due process clause.
The district courts construction of the ordinances
When the defendant in this case presented his
constitutional attacks on the Anchorage drug
paraphernalia ordinances, District Court Judge
Bryan K. Clark adopted a narrow construction of
the ordinances in an effort to answer these
constitutional attacks.
With respect to Paragraph A the objective
characteristics test for drug paraphernalia Judge
Clark ruled that even if the ordinances reference to an
items objective characteristics was not clear enough,
standing alone, to clarify the scope of the prohibition
codified in Paragraph A, the list of the twelve
categories of items that follows Paragraph A provides
rather detailed guidance as to what an officer should
be looking for, and [does] not permit unbridled
discretion in seizing property and charging the
possessors of that property.
For the reasons explained above, we
respectfully disagree with that conclusion. The twelve
categories of items that are listed after Paragraph A
are so broadly worded as to potentially criminalize
every homemaker, gardener, and hobbyist in Anchorage.
With respect to Paragraph B the reasonable
indication of intent test for drug paraphernalia Judge
Clark ruled that this Paragraphs definition of drug
paraphernalia required proof that the seller or
possessor of the item subjectively intended that the
item be used for the unlawful introduction of
controlled substances into a human body. This
interpretation of Paragraph B would indeed solve some
of the constitutional problems discussed here. But
that is not what Paragraph B says.
Our conclusion
The current Anchorage ordinances that define
and punish the sale and possession of drug
paraphernalia are flawed by constitutional problems.
Paragraph A of the definition is unlawfully vague,
while Paragraph B of the definition allows a person to
be convicted without proof of mens rea, or on a
standard of proof less than beyond a reasonable doubt.
Theoretically, it would be possible for this
Court to re-write the definition of drug paraphernalia
to answer these concerns. But the re-write would be
drastic so drastic that we believe it falls outside a
courts proper sphere of action. For this reason, we
conclude that we should not attempt to construe these
ordinances to eliminate their constitutional flaws.
Rather, we simply declare that the ordinances, as
written, are unconstitutional.
The judgement of the district court is
REVERSED.
STEWART, Judge, dissenting.
Relying primarily on a reason that has never
been litigated by the parties, or addressed by the
trial court, the Court today holds that the
Municipalitys drug paraphernalia ordinances are
unconstitutional because they are vague.
But a properly enacted law is presumed to be
constitutional, and courts should construe enactments
to avoid a finding of unconstitutionality to the extent
possible.1 In addition, the party claiming that an
enactment is unconstitutional has the burden of
rebutting the presumption of constitutionality.2 In
this case, Myers owned a head shop and was charged with
and convicted of knowingly possessing drug
paraphernalia with the intent to sell it.
In his pre-trial motions, Myers argued that
the challenged ordinances definitions of drug
paraphernalia did not provide him with adequate notice
of the prohibited conduct. But our supreme court has
recognized that the possibility of difficult or
borderline cases will not invalidate an enactment where
there is a hard core of cases to which the ordinary
person would doubtlessly know the statute
unquestionably applies.3
I conclude that Myerss conduct as the owner
of a head shop does not present a borderline case. To
the contrary, his conduct fell within the hard core of
cases. The factual record supports the conclusion that
items in Myerss inventory had the objective
characteristics or design that indicated that the items
were intended to facilitate a violation of a statute
under AS 11.71 (controlled substances).
Myers also argued that the ordinances have
the potential for arbitrary enforcement. But an
appellate court will not invalidate an enactment on
this ground unless there is some history of arbitrary
or selective enforcement.4 As Judge Clark found, Myers
made no such showing.
I would not find the ordinances
unconstitutional based on reasons not raised or argued
by the appellant, nor briefed in any meaningful way.
Based on Judge Clarks narrow interpretation and
application of the ordinances in this case, and in
light of Myerss conduct, I would affirm Myerss
convictions.
Accordingly, I dissent from the Courts
holding.
_______________________________
1Each provision of AS 11.71 that prohibits the manufacture,
delivery, or possession of controlled substances
(AS 11.71.010 060) begins with the phrase, Except as
authorized in AS 17.30. The pertinent provisions of AS
17.30 (AS 17.30.020 080) declare that preparing,
distributing, storing, and conducting research with
controlled substances is lawful if it is done in conformity
with federal registration requirements or by prescription
for a medical purpose.
2See Mechanical Contractors of Alaska, Inc. v. Department of
Public Safety, 91 P.3d 240, 248 (Alaska 2004) (When we
engage in statutory construction[,] we will presume that the
legislature intended every word, sentence, or provision of a
statute to have some purpose, force, and effect, and that no
words or provisions are superfluous.); Ault v. State, 73
P.3d 1248, 1251 n. 18 (Alaska App. 2003).
3Anchorage Ordinance 81-219, Section 2, proposed AMC
08.20.010(B).
4Minutes of the Anchorage Assembly, January 12, 1982:
discussion of Anchorage Ordinance 81-219.
5Id.
6 University of Alaska v. Tumeo, 933 P.2d 1147, 1152 (Alaska
1997); Lagos v. City and Borough of Sitka, 823 P.2d 641, 643
(Alaska 1991); Gilley v. State, 955 P.2d 927, 930 (Alaska
App. 1998).
7Anchorage Ordinance 2000-95.
8Minutes of the Anchorage Assembly, July 18, 2000, page 14.
9The parenteral introduction of a substance into the human
body refers to introducing the substance in a manner other
than through the gastro-intestinal tract. Websters New
World College Dictionary (Fourth Edition, 2004), p. 1047.
10Hoffman Estates, 455 U.S. at 500, 102 S.Ct. at 1194.
11Id., 455 U.S. at 501, 102 S.Ct. at 1195.
12Id., 455 U.S. at 502, 102 S.Ct. at 1195.
13Id.
14Id., 455 U.S. at 503, 102 S.Ct. at 1196.
15Id.
16Id., 455 U.S. at 503-04, 102 S.Ct. at 1196.
17See Hentzner v. State, 613 P.2d 821 (Alaska 1980);
Kimoktoak v. State, 584 P.2d 25 (Alaska 1978); Alex v.
State, 484 P.2d 677 (Alaska 1971); Speidel v. State,
460 P.2d 77 (Alaska 1969).
1Treacy v. Anchorage, 91 P.3d 252, 260 (Alaska 2004); see
also State v. Morgan, 111 P.3d 360, 361 (Alaska App. 2005).
2See Nason v. State, 102 P.3d 962, 964 (Alaska App. 2004).
3Stock v. State, 526 P.2d 3, 9 (Alaska 1974); see also
Turney v. State, 936 P.2d 533, 544 (Alaska 1997).
4Holton v. State, 602 P.2d 1228, 1237 (Alaska 1979).
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