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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Citizens for Implementing Medical Marijuana v. Municipality of Anchorage (02/24/2006) sp-5990
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| CITIZENS FOR IMPLEMENTING | ) |
| MEDICAL MARIJUANA and | ) Supreme Court No. S- 11345 |
| AL ANDERS, | ) |
| ) Superior Court No. 3AN-02-12732 CI | |
| Appellants, | ) |
| ) O P I N I O N | |
| v. | ) |
| ) No. 5990 - February 24, 2006 | |
| MUNICIPALITY OF ANCHORAGE, | ) |
| and GREG MOYER, CLERK, | ) |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Morgan Christen, Judge.
Appearances: Kenneth P. Jacobus and Karen
Bretz, Anchorage, for Appellants. Joseph D.
OConnell, Assistant Municipal Attorney, and
Frederick H. Boness, Municipal Attorney,
Anchorage, for Appellees.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
Citizens for Implementing Medical Marijuana (CIMM) sued
the Municipality of Anchorage and Municipal Clerk Greg Moyer
after Clerk Moyer refused to certify CIMMs citizen initiative
petition and submit its ballot proposition to municipal voters.
Because we conclude that the petition is confusing and misleading
and therefore legally insufficient, we affirm the superior courts
summary judgment that held that the clerk properly denied
certification.
II. FACTS AND PROCEEDINGS
On April 10, 2002, Citizens for Implementing Medical
Marijuana submitted an initiative petition to Greg Moyer,
Municipal Clerk for the Municipality of Anchorage, seeking
placement of CIMMs ballot proposition on the next citywide
ballot. The petition proposed an initiative to legalize
marijuana paraphernalia and referred to, among other things, the
Alaska Statute allowing medical use of marijuana and the Alaska
Constitutions guarantee of the right to privacy. The petition
stated:
An Initiative Petition Allowing Those Items
Used with Marijuana Legal as Medicine or a
Right To Privacy
WHEREAS, in 1998, the Alaska voters
overwhelmingly passed an initiative to allow
the use of marijuana as medicine (Nov. 3,
1998 Bill allowing medical use of Marijuana
[97PSDM], 131,586 voting yes versus 92,701
voting no);
WHEREAS, in 1975, the Alaska Supreme Court
unanimously ruled that the Alaska
constitutional right to privacy, Article I,
Section 22, included the right to use
marijuana in ones home, (Ravin v. State);
WHEREAS, in 1993, the Alaska Superior Court
ruled that the Alaska Constitution cannot be
amended by initiative and that the right to
privacy still included the right to use
marijuana (McNeil v. State);
WHEREAS it is in the best interests of the
residents of the Municipality of Anchorage to
use law-enforcement resources to pursue
violent crime and to combat the growing
threat of terrorism;
THEREFORE, We, the undersigned registered
voters of the Municipality of Anchorage,
direct the Municipal Assembly to put the
following charter amendment before the voters
at the next regular municipal election:
THE PROPOSITION: Shall Article II of the
Municipal Charter be amended to add the
following section:
(14) The right to buy, sell, or
possess those items which could be
used to consume, grow or process
marijuana for medicine, or as is in
accord with the right to privacy
protected by Article I, Section 22
of the Alaska Constitution.[1]
Clerk Moyer rejected the petition on May 13, 2002 after
finding that it lacked the requisite number of valid signatures.
After CIMM demonstrated that it had obtained the necessary number
of signatures, Clerk Moyer asked the municipal attorney to review
the petitions legal sufficiency. The municipal attorney
concluded that it was legally insufficient, reasoning that the
first whereas clause contained a false and misleading statement
of law,2 and that the proposition would violate federal and state
law by authorizing the sale and purchase of marijuana seeds and
plants. Clerk Moyer therefore refused to certify the petition
and place the initiative on the ballot.
CIMM and Al Anders (collectively CIMM) sued the
Municipality of Anchorage and Clerk Moyer, and asked the superior
court to declare that the petition correctly stated the current
law per Ravin v. State,3 and to compel Clerk Moyer to certify the
petition and place the initiative on the ballot. The parties
cross-moved for summary judgment. The superior court held that
the title of the petition, two of its whereas clauses, and the
proposition were confusing and misleading, and therefore
concluded that Clerk Moyer had properly rejected the petition as
legally insufficient. The court consequently denied CIMMs motion
for partial summary judgment, granted the municipalitys cross-
motion for summary judgment, and entered judgment for the
defendants.
CIMM appeals.
III. DISCUSSION
A. Standard of Review
We review de novo the superior courts determination
that the petition was legally insufficient.4 The burden is on
the municipality, as the party challenging the petitions legal
sufficiency, to demonstrate that it is biased or misleading.5
[W]hen reviewing initiative challenges, we liberally construe
constitutional and statutory provisions that apply to the
initiative process.6
B. The Petition Is Confusing and Misleading.
1. Petitions must be comprehensible and truthful.
At times relevant to this appeal, the Anchorage
Municipal Code required petition summaries to describe the law
proposed by the petition.7 We have held that this provision
requires the description to be truthful, impartial, and
comprehensible.8 This requirement stems from the public interest
in informed lawmaking9 and guides our inquiry here. [O]ur main
concern should be that all matters (legislative enactments,
initiative petitions and even proposed resolutions) should be
presented clearly and honestly to the people of Alaska.10
2. We review the legal sufficiency of the entire
petition, not just the proposition.
CIMM argues that because the whereas clauses would not
have been placed on the ballot if the petition had been
certified, our review should be limited to whether the
proposition itself would have confused or misled voters.11 This
argument ignores the important screening function that the
signature requirement plays in the initiative process.12
The signature-gathering requirement ensures that only
propositions with significant public support are included on the
ballot.13 But when a petition, including its title and summary,
is confusing or misleading, petition signers may not understand
what they are signing. Signatures on a confusing or misleading
petition therefore may or may not indicate support for the
measure. Under such circumstances, it cannot be known whether
the signature-gathering requirement has served its screening
function. Moreover, the municipality correctly points out that a
biased and partisan title14 was a factor in our determination that
the citizens challenging the petition in Faipeas v. Municipality
of Anchorage had shown a likelihood of success on the merits of
their contention that the petition was legally insufficient.15
Similarly, confusing and misleading titles and summaries are
valid grounds for refusing to certify a petition.
3. The petition title is confusing.
The petition is entitled An Initiative Allowing Those
Items Used with Marijuana Legal as Medicine or a Right To
Privacy. The superior court concluded that the titles literal
meaning suggests that the proposition would declare paraphernalia
to be medicine (and therefore legal) and/or declare that
paraphernalia is a right to privacy. (Emphasis in original.)
This conclusion accurately reflects the titles grammatical
difficulties. The superior court also noted, however, that the
confusion engendered by the title, standing alone, might not
render the petition legally insufficient.
CIMM correctly points out that we relax procedural and
technical requirements for citizen initiatives because they are
often drafted by non-lawyers.16 Likewise, courts liberally
construe constitutional and statutory requirements so that the
people (are) permitted to vote and express their will on the
proposed legislation. 17 But confusing or misleading petitions
frustrate the ability of voters to express their will. Contrary
to CIMMs contention, therefore, we are not required to interpret
unclear language in the petition in a manner which does not
render it invalid.
The titles grammatical difficulties stem from its use
of the term marijuana. It appears only once in the title but
serves several functions. Ordinarily, a word is used as only one
part of speech each time it appears in a sentence. Here,
marijuana is first used in the clause (those items used with
marijuana) that describes the objects that are the subject of the
initiative. The superior court correctly characterized these
objects as paraphernalia, even though that word does not appear
in the petition.18 Marijuana also seems to be used to refer to
the substance marijuana itself, because it seems to be modified
by the phrase legal as medicine or a right to privacy. This
implies that the proposition would allow marijuana paraphernalia
either when the marijuana with which the paraphernalia is
associated is used in accordance with Alaskas medical marijuana
statute19 or when its use is protected by the right to privacy.20
It is therefore not obvious from the words of the title
exactly what is intended. Persons considering whether to sign
the petition could not reasonably be expected to engage in the
grammatical analysis required to discover exactly what the title
means. Nonetheless, we agree with the superior court that the
titles puzzling grammatical deficiencies would not render the
petition legally insufficient, absent any problems with the rest
of the petition. The title at least conveys some sense of the
initiatives purpose: to allow items whose use is somehow related
to marijuana. But readers confused by the rest of the petition
could derive little guidance by referring back to the title for
clarification. Most importantly, the title does not assist in
understanding what conduct the proposition would protect. The
title does not help resolve deficiencies discussed in Parts
III.B.4 and III.B.5.
4. The text of the proposition itself is deficient
because it does not explain whether it creates or
abolishes rights.
The text of the proposed initiative reads:
Shall Article II of the Municipal Charter be
amended to add the following section:
(14) The right to buy, sell, or
possess those items which could be
used to consume, grow or process
marijuana for medicine, or as is in
accord with the right to privacy
protected by Article I, Section 22
of the Alaska Constitution.
Because the petition does not explain the context and
purpose of Article II of the Anchorage Municipal Charter, it is
unclear from the face of the proposition even whether it would
create or abolish rights respecting marijuana paraphernalia. A
reader would have to infer the effect of the proposition from
other sources, such as the name of the group promoting the
petition or possibly from other parts of the petition.
The uncertainty created by this lack of context
violates the principle of informed lawmaking that underlies all
petition requirements.21 Because potential petition signers could
not know with sufficient certainty what they were endorsing, the
petition is legally insufficient.22
Although we do not have to decide the issue here, we
note in passing that the text of the proposition might also be
misleading in regards to its scope. The text may be read
narrowly, thus suggesting that it would protect the acquisition,
sale, or possession of items only when circumstances would
support a belief that the items would be used with marijuana
actually used in accordance with Alaskas medical marijuana
statute or the right to privacy. Or the text may be read
broadly, suggesting that it would protect the acquisition, sale,
or possession of those types of items that conceivably could be
used in connection with marijuana potentially usable in
accordance with Alaskas medical marijuana statute or the right to
privacy. Because this ambiguity in the text of the initiative
might cause voters to sign the petition who would not sign if
they perceived the broader possible reading, the text itself is
potentially problematic. But we do not have to decide if the
text is actually problematic given the petitions other
deficiencies.
5. If the ballot proposition is given the
interpretation CIMM advocates, the petition is
misleading as to what conduct the proposition
would protect.
At oral argument before us, CIMMs counsel asserted that
the ballot proposition would create a right to buy, sell, or
possess any item that could be used in accordance with Alaskas
medical marijuana statute or in accordance with Ravins
interpretation of the right to privacy, whether or not
circumstances indicated that the marijuana would in fact be used
in one of these legally protected contexts. CIMMs counsel
likewise argued that it is impossible to separate people who use
marijuana in accordance with the statute or the right to privacy
from people whose association with marijuana is not protected by
law, including people acting for commercial purposes. But CIMMs
counsel also stated that the proposition would not protect
purchases that were clearly [for] commercial operation[s], such
as five hundred grow lights.
It is not obvious that these latter two contentions are
completely consistent. We nonetheless assume without deciding
that CIMMs interpretation of the proposition is correct. But
this means that the petition, which must [d]escribe the ordinance
or resolution sought,23 is legally insufficient because the title
is misleading as to the propositions scope. As noted above, the
petition is entitled An Initiative Petition Allowing Those Items
Used with Marijuana Legal as Medicine or a Right To Privacy.
CIMM argues that the title states that the initiative
proposes to legalize those items used with marijuana which is
legal as medicine and those items used with marijuana which is
legal under Alaskans privacy rights. This is a fair reading of
the title, but not the only fair reading. CIMMs interpretation
of the title therefore suggests that to be protected, the
paraphernalia would have to be used to grow, consume, or process
marijuana only in instances in which the conduct is permitted by
Alaskas medical marijuana statute or the right to privacy.
Given CIMMs own interpretation, therefore, the title
does not accurately describe the conduct the proposition would
protect. The title proposes legalization of marijuana
paraphernalia in specific situations. But as we saw above, the
proposition itself could be read to legalize possession and sale
of marijuana paraphernalia in virtually all situations, even if
it were not actually intended to be used, or is in fact not used,
in accordance with Alaskas medical marijuana statute or the right
to privacy. The title is therefore misleading and consequently
legally insufficient.24
The propositions scope is further obscured by the
whereas clauses. They basically assert that (1) Alaska voters
legalized the use of marijuana for medical purposes in a
statewide initiative; (2) since 1975 Alaskas state constitutional
right to privacy has included the right to possess marijuana in
ones home; (3) Alaskas state constitutional right to privacy
continues to include the right to possess marijuana in ones home;
and (4) law enforcement resources are best spent on combating
violent crime and the growing threat of terrorism. The first
three whereas clauses therefore describe several circumstances in
which marijuana possession and consumption are legal. But CIMMs
interpretation of the proposition is not so limited, and would
protect possession of marijuana paraphernalia even when the
marijuana use is not protected by AS 17.37.010 .080 or by the
right to privacy. The first three whereas clauses therefore fail
to describe the propositions full scope under CIMMs
interpretation. And to the extent the clauses imply that the
proposition should be given the narrow reading discussed above,
they could encourage petition signatures by persons who would
oppose the proposition if they gave it the broader reading.
On its face, the fourth whereas clause appears to
justify the propositions scope as it was interpreted by CIMM at
oral argument before us. This clause invites a comparison
between the value of using law enforcement resources to combat
violent crime and terrorism and the value of other unspecified
uses. The superior court correctly recognized that this clause
is a statement of the drafters political opinion with which a
voter may choose to agree or disagree. Read in the context of
the title and other whereas clauses, the relevant comparison the
fourth whereas clause invites is between (1) combating violent
crime and terrorism, and (2) detecting and prosecuting protected
users of marijuana for possessing paraphernalia. If this is not
the comparison the drafters intended, the fourth whereas clause
is meaningless in the context of the title and the other whereas
clauses. Although this clause is not necessarily misleading, it
does not cure the petitions other problems because it does not
reveal whether the proposition is intended to protect the
possession and sale of items that are not in fact used for
purposes protected by AS 17.37.010 .080 or the right to privacy.
This clause therefore cannot support legalizing paraphernalia
beyond circumstances where the marijuana use is protected by AS
17.37.010 .080 or by Ravins interpretation of the right to
privacy.
Nor can we conclude that the use of could be in the
text of the proposition is sufficient to signify the difference
in scope between the title and the whereas clauses and the
proposition itself. Under CIMMs reading of the proposition, the
use of could be renders meaningless the limitations suggested by
the title, the whereas clauses, and the second half of the
proposition itself.25
IV. CONCLUSION
For these reasons, the superior courts order granting
summary judgment to the defendants is AFFIRMED.
_______________________________
1 The superior courts opinion substituted possess for
process in the Proposition section of the petition. Both parties
had used process in documents before the superior court, but use
possess in their appellate briefs. Because the record reveals no
reason for this change, we will use the original word, process.
We would reach the same result whether process or possess were
the correct word.
2 The Anchorage Municipal Code (AMC) provision in effect
at times relevant to this case required that the petition summary
describe the proposed law. AMC 2.50.030(A) (superseded 2002).
In Faipeas v. Municipality of Anchorage, 860 P.2d 1214, 1219
(Alaska 1993), we interpreted this provision to require that the
petition be truthful, impartial, and comprehensible.
3 Ravin v. State, 537 P.2d 494 (Alaska 1975). The Ravin
court held that the right to privacy in article I, section 22 of
the Alaska Constitution encompasses the possession and ingestion
of substances such as marijuana in a purely personal, non-
commercial context in the home unless the state can meet its
substantial burden and show that proscription of possession of
marijuana in the home is supportable by achievement of a
legitimate state interest. Id. at 504. The court concluded that
no adequate justification for the states intrusion into the
citizens right to privacy by its prohibition of possession of
marijuana by an adult for personal consumption in the home has
been shown. Id. at 511. Therefore possession of marijuana by
adults at home for personal use is constitutionally protected,
id., even though there is not a fundamental constitutional right
to possess or ingest marijuana in Alaska. Id. at 502 (emphasis
added).
Because our disposition of this case does not require
us to decide whether the second whereas clause accurately states
Ravins holding, we decline to express an opinion about it.
4 See Cabana v. Kenai Peninsula Borough, 50 P.3d 798, 801
(Alaska 2002) (noting that this court reviews grants of summary
judgment de novo).
5 See Faipeas v. Municipality of Anchorage, 860 P.2d
1214, 1219 (Alaska 1993) (interpreting AMC 2.50.030 (superseded
2002)) (quoting Burgess v. Alaska Lieutenant Governor Terry
Miller, 654 P.2d 273, 276 (Alaska 1982) (affirming superior
courts holding that Lieutenant Governors summary of initiative
petition was not misleading)).
6 Kodiak Island Borough v. Mahoney, 71 P.3d 896, 898
(Alaska 2003).
7 AMC 2.50.030(A) (superseded 2002). Eight months after
CIMM submitted this petition, the Anchorage Assembly amended the
Municipal Code to provide for review of applications for a
petition before signatures may be gathered. Anchorage Ordinance
No. 2002-162 (Dec. 17, 2002). Current version at AMC 2.50.010 et
seq. The Anchorage Municipal Code currently does not require the
petition to describe the ordinance or resolution sought by the
petition, but requires that it set out verbatim the ordinance or
resolution sought to be enacted or repealed by the petition and
meet constitutional, charter and other legal requirements or
restrictions. AMC 2.50.020(B)(3)(a) and (c).
8 Faipeas, 860 P.2d at 1219 (interpreting AMC 2.50.030
(superseded 2002)).
9 Id. at 1221.
10 Id. (quoting Yute Air Alaska, Inc. v. McAlpine, 698
P.2d 1173, 1188 (Alaska 1985) (Moore, J., dissenting) (emphasis
in original)).
11 If the petition had been certified and the proposition
placed on the ballot, the ballot would have contained only (1) an
objectively stated, informative caption or title, (2) the
question posed by the proposition, and (3) the words yes and no.
AMC 28.40.010(D). The whereas clauses therefore would not have
appeared on the ballot.
12 Faipeas, 860 P.2d at 1219 (noting the signature-
gathering requirement[s] . . . important screening purpose).
13 Id. (The signature gathering requirement is important
because it eliminates the initiation of an expensive campaign
process when there is insufficient public support for an
initiative.) (quoting Cynthia L. Fountiane, note, Lousy
Lawmaking: Questioning The Desireabiliy and Constitutionality of
Legislating by Initiative, 61 S. Cal. L. Rev. 735, 746 (1988)).
14 See Faipeas, 860 P.2d at 1217 (REFERENDUM PETITION TO
REPEAL A SPECIAL HOMOSEXUAL ORDINANCE ).
15 Faipeas v. Municipality of Anchorage, 860 P.2d 1214,
1221 (Alaska 1993) (affirming preliminary injunction preventing
proposition from appearing on ballot).
16 Because petitions are often prepared by inexpert
sponsors who nonetheless espouse worthy or popular causes, or
both, courts are reluctant to invalidate them in cases of merely
doubtful legality. Yute Air Alaska, Inc. v. McAlpine, 698 P.2d
1173, 1181 (Alaska 1985). To that end all doubts as to all
technical deficiencies or failure to comply with the exact letter
of procedure will be resolved in favor of the accomplishment of
that purpose. Id. (internal quotation marks omitted).
17 Boucher v. Engstrom, 528 P.2d 456, 462 (Alaska 1974)
(quoting Cope v. Toronto, 332 P.2d 977, 979 (Utah 1958)),
overruled in part on other grounds by McAlpine v. Univ. of
Alaska, 762 P.2d 81 (Alaska 1988).
18 Cf. AMC 8.35.010A (defining drug paraphernalia).
19 See AS 17.37.010-.080.
20 See supra note 3.
21 Faipeas, 860 P.2d at 1221.
22 Cf. In re Title, Ballot Title, and Submission Clause
for Proposed Initiatives 2001-2002 #21 and #22 (English Language
Education), 44 P.3d 213, 219 (Colo. 2002) (articulating policy
that government drafter should whenever practicable, avoid titles
for which the general understanding of the effect of a yes or no
vote will be unclear).
23 AMC 2.50.030(A) (superseded 2002).
24 See Faipeas, 860 P.2d at 1219 (A description which is
untruthful, misleading, or which is not complete enough to convey
basic information as to what the ordinance does, cannot be
regarded as a legally adequate or sufficient description within
the meaning of the ordinance.).
25 The proposition reads:
Shall Article II of the Municipal Charter be
amended to add the following section:
(14) The right to buy, sell, or
possess those items which could be
used to consume, grow or process
marijuana for medicine, or as is in
accord with the right to privacy
protected by Article I, Section 22
of the Alaska Constitution.
(Emphasis added.)
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