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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. American Civil Liberties Union of Alaska (04/03/2009) sp-6357
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
| STATE OF ALASKA, DAVID W. | ) |
| MARQUEZ, Attorney General for | ) Supreme Court No. S- 12370 |
| the State of Alaska, in his official | ) |
| capacity, | ) Superior Court No. 1JU-06- 793 CI |
| ) | |
| Appellants, | ) O P I N I O N |
| ) | |
| v. | ) No. 6357 April 3, 2009 |
| ) | |
| AMERICAN CIVIL LIBERTIES | ) |
| UNION OF ALASKA, JANE DOE, | ) |
| and JANE ROE, | ) |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, First Judicial District, Juneau,
Patricia A. Collins, Judge.
Appearances: Dean J. Guaneli, Special
Assistant Attorney General, Talis J. Colberg,
Attorney General, Juneau, for Appellants.
Jason Brandeis, ACLU of Alaska Foundation,
Anchorage, Adam B. Wolf, M. Allen Hopper,
ACLU Foundation, Santa Cruz, California, for
Appellees. Allen F. Clendaniel, Dorsey &
Whitney LLP, Anchorage, for Amici Curiae Dr.
Melanie Dreher, Dr. David Ostrow, and Dr.
Craig Reinarman.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Carpeneti, and Winfree, Justices.
MATTHEWS, Justice.
CARPENETI, Justice, with whom WINFREE, Justice, joins,
dissenting.
Under the ripeness doctrine, the constitutionality of a
statute generally may not be challenged as an abstract
proposition. The plaintiffs in the present case have brought a
pre-enforcement challenge to a newly amended statute that
prohibits the possession and use of marijuana. They claim that
because the statute criminalizes the use by adults of small
amounts of marijuana in their homes it violates their privacy
rights as interpreted in Ravin v. State.1 The question addressed
in this opinion is whether the general bar on abstract
adjudication should apply. The plaintiffs argue for an
exception, contending that it is unfair to put them to a choice
of either continuing to use marijuana in their homes and risking
prosecution or giving up its use. We conclude that the need to
make this choice is not a product of the challenged statute
because the plaintiffs will remain subject to prosecution under
federal law regardless of how we might rule. For this reason,
and because other factors that counsel against deciding cases in
an abstract setting are also present, we conclude that any
challenge to the statute must await an actual prosecution.
I. FACTS AND PROCEEDINGS
In June 2006 the Alaska Legislature amended AS
11.71.060(a) to prohibit the possession of less than one ounce of
marijuana.2 The American Civil Liberties Union of Alaska and two
anonymous individuals, Jane Doe and Jane Roe (collectively, ACLU
or plaintiffs), sued for declaratory and injunctive relief. They
argued that section .060 as amended conflicts with the privacy
clause of the Alaska Constitution,3 as interpreted in Ravin v.
State,4 to the extent that it criminalizes possession of small
amounts of marijuana in the home by adults for personal use.
The ACLU moved for a temporary restraining order and
preliminary injunction pending resolution of the suit. At a
hearing before Superior Court Judge Patricia A. Collins the ACLU
agreed that its motion for a temporary restraining order and
preliminary injunction could be treated as a motion for summary
judgment. Later the State moved to dismiss Jane Doe and the ACLU
on standing grounds. The State argued that Doe lacked standing
because she could seek protection under Alaskas medical marijuana
law.5 It further contended that the ACLU lacked organizational
or associational standing. The State also opposed the ACLUs
motion for preliminary relief or summary judgment and cross-moved
for summary judgment. The superior court concluded that the
plaintiffs had standing to challenge the law because they are
exposed to potential criminal prosecution for possession of small
amounts of marijuana in their homes.6 In the same order, the
court, relying on our decision in Ravin, granted summary
declaratory judgment in favor of the ACLU.
The State appeals. It argues that Ravin should no
longer be considered controlling for several reasons. The State
contends that marijuana is much more intoxicating now than it was
in 1975 when Ravin was decided.7 Further, according to the
State, more people are using marijuana and starting to do so at
younger ages than at the time Ravin was decided, and the adverse
consequences of using marijuana are better understood. The State
points out that the legislature held hearings on marijuana usage
before enacting the 2006 amendments and made a number of
findings. The State summarizes the findings, in part, as
follows:
(1) Marijuana potency has increased
dramatically in the last 30 years,
particularly in Alaska, and corresponds to an
increase in rehabilitative and hospital
treatment related to marijuana use.
(2) Hundreds of Alaskans are treated for
marijuana abuse each year, more than half
being children; pregnant women in Alaska use
marijuana at a higher rate than the national
average.
(3) Many users become psychologically
dependent on marijuana under recognized
clinical standards.
(4) Early exposure to marijuana increases
the likelihood of health and social problems,
including mental health problems.
(5) Many people treated for alcoholism also
abuse marijuana, and alcoholism treatment is
more difficult when marijuana is used.
(6) Marijuana affects many body and brain
functions; it often contains bacteria and
fungi harmful to humans.
(7) A higher percentage of adults and
juveniles arrested in Alaska have marijuana
in their systems at the time of arrest.
(8) If a parent uses marijuana, then their
children are much more likely to become
marijuana users; studies have shown that
criminal penalties increase the perception
among teenagers of the risks of using
marijuana, thus reducing use.
The ACLU argues that marijuana has not changed
significantly since Ravin was decided, that it is a relatively
harmless substance, and that no grounds exist for reconsidering
Ravin. The ACLU further argues that if the court were inclined
to reconsider Ravin, a remand for a hearing would be appropriate
to assess the nature of marijuana and the consequences of its
use.
After this case was submitted for decision on appeal,
we requested supplemental briefing on the question of ripeness.
In their supplemental briefing, both parties argued that this
appeal is fit for resolution because the plaintiffs otherwise
must risk criminal prosecution in order to challenge the amended
statute. We disagree and conclude that this case is not ripe
because it does not arise from an actual prosecution brought
under the amended statute. The relaxed approach to ripeness
sometimes taken with respect to pre-enforcement challenges to
criminal laws is not appropriate here because the plaintiffs
already face a risk of prosecution for home use of marijuana
under federal drug statutes.
II. STANDARD OF REVIEW
The State and ACLU contend that we should review the
superior courts ripeness conclusion for an abuse of discretion.
We disagree and employ de novo review. The State and ACLU
conflate the two requirements for declaratory judgment standing
and the prudential basis for granting declaratory relief and the
different standards of review that attach to each requirement.
Alaskas declaratory judgment statute provides in
relevant part: In case of an actual controversy in the state, the
superior court, upon the filing of an appropriate pleading, may
declare the rights and legal relations of an interested party
seeking the declaration, whether or not further relief is or
could be sought.8 Though a superior court may issue declaratory
relief, the superior court may only exercise this discretion in a
case of . . . actual controversy.9 The statutes reference to an
actual controversy encompasses considerations of standing,
mootness, and ripeness.10 As we have recently recognized, this
court is the ultimate arbiter of such issues and we review de
novo a superior courts ripeness determination.11 To the extent
that our prior decisions have suggested that abuse of discretion
review applies to both a superior courts finding of an actual
controversy and a ruling that declaratory relief is in other
respects appropriate,12 we now clarify those cases in light of our
more recent decisions.
III. DISCUSSION
A. The Requirements of the Ripeness Doctrine.
The actual controversy limitation in Alaskas
declaratory judgment act13 reflects a general constraint on the
power of courts to resolve cases. Courts should decide cases
only when a plaintiff has standing to sue and the case is ripe
and not moot.14 Because ripeness constrains the power of courts
to act, courts should not rely on an agreement by the parties
that a case is ripe for decision.15 In its recent decision in
Alaska Right to Life Political Action Committee v. Feldman,16 the
Ninth Circuit Court of Appeals explained the basic requirement of
ripeness: While pure legal questions that require little factual
development are more likely to be ripe, a party bringing a
preenforcement challenge must nonetheless present a concrete
factual situation. 17 We have similarly recognized that a case is
justiciable only if it has matured to a point that warrants
decision.18 [W]hile Alaskas standing rules are liberal this court
should not issue advisory opinions or resolve abstract questions
of law.19
The concept of ripeness can be explained in both
abstract and practical formulations. The abstract formulation is
that ripeness depends on whether . . . there is a substantial
controversy, between parties having adverse legal interests, of
sufficient immediacy and reality to warrant the issuance of a
declaratory judgment.20 On a more practical level, our ripeness
analysis fundamentally balances the need for decision against the
risks of decision.21 We examine the fitness of the issues for
judicial decision and the hardship to the parties of withholding
court consideration.22
Under this formulation, varying degrees of concreteness
might be deemed acceptable depending on the need for a judicial
decision. Thus, in the context of free speech, a court may adopt
[a] somewhat relaxed approach to justiciability because of the
special consideration traditionally afforded speech rights.23
Where a statute criminalizes conduct, threats of enforcement will
support a pre-enforcement challenge if the threats are real and
actually force the plaintiff to choose between forgoing the
behavior and facing penalties.24
B. The Parties Face Little Hardship If Their Claims Are
Not Resolved in a Hypothetical Setting.
Both the State and ACLU argue that the ACLUs pre-
enforcement challenge is ripe because the threat of enforcing AS
11.71.060(a) forces plaintiffs to either change their behavior or
face the risk of criminal liability. Neither party sets forth
other hardships that might occur if we refrain from reaching the
merits of this appeal.
We conclude that the risk of criminal liability
argument rings hollow because the activities that the plaintiffs
wish to engage in are already criminal under federal law. Thus,
the plaintiffs do not have a strong claim of need for a pre-
enforcement decision on the constitutionality of the amended
statute because their current practices are and will remain
illegal and expose them to a risk of criminal prosecution,
regardless of any ruling this court might make.
1. The Federal Controlled Substances Act criminalizes
the plaintiffs personal, residential consumption
of marijuana and imposes penalties that exceed
state sanctions.
As part of President Nixons War on Drugs, Congress
passed the Comprehensive Drug Abuse Prevention and Control Act of
1970, also known as the Controlled Substances Act.25 Under this
act, marijuana is classified as a Schedule I drug26 a drug with a
high potential for abuse, lack of any accepted medical use, and
lack of accepted safety for use under medical supervision.27 The
possession of marijuana in any quantity is a federal crime.28 By
comparison, current Alaska law classifies marijuana as a Schedule
VIA drug a drug with the lowest degree of danger or probable
danger to a person or the public.29
Unsurprisingly, the Controlled Substances Act treats
possession and use of marijuana as a much more serious offense
than Alaska law. The federal sanction for a first-time offender
possessing any quantity of marijuana is a term of imprisonment of
not more than one year and a fine of at least $1,000, or both.30
A person who knowingly possesses marijuana for personal use also
faces a federal civil penalty of not more than $10,000.31 By
comparison, under the amended Alaska statute the penalty for a
first offense of possession in the home is, at most, a $500 fine
with no jail time.32
Regardless of the outcome of this case, there is
nothing that this court, or any other branch of the Alaska
government, could do to affect the risk or severity of federal
enforcement.33 The United States Supreme Courts recent decision
in Gonzales v. Raich shows the continuing supremacy of the
federal drug laws.34 In Raich, the Court upheld the Federal
Controlled Substances Act even though it criminalized conduct
that Californias medical marijuana law legalized.35 As the facts
of Raich demonstrate, the Federal Drug Enforcement Agency
enforces the Controlled Substances Act without deference to state
law or policies. Accordingly, both before and after our decision
in Ravin, the risk of federal prosecution has threatened Alaskans
use of marijuana. And the risk of federal prosecution for
marijuana possession amplified by harsh federal penalties
remains a strong reality that the plaintiffs will face
irrespective of any ruling we might make in this appeal.
2. The declarations of Jane Doe and Jane Roe neither
suggest that the amended statute will affect their
conduct nor that they will be the subjects of
enforcement.
The ACLUs complaint for declaratory and injunctive
relief suggests that fear of enforcement is the basis for
ripeness. To support this position, Jane Doe and Jane Roe
submitted declarations regarding their use of marijuana. Jane
Doe declares that she uses marijuana for medicinal purposes,
though she did not register as a medical marijuana user. Jane
Roe declares that she uses marijuana to relieve stress.
Reading the declarations, we conclude that any
incremental deterrence associated with AS 11.71.060, as opposed
to the current federal drug laws, will not impact the plaintiffs.
Jane Doe does not aver that AS 11.71.060 will affect her use of
marijuana. Rather she states that [e]ven if the legislature
makes marijuana illegal, I will continue to use and possess it in
my home. Jane Doe thus does not seem deterred by the amended
state statute. Jane Roe asserts her belief in a right to have
small amounts of marijuana in her home, but explains I dont want
to go to jail. But Jane Roes concern about incarceration is more
real under federal law than under the amended state statute,
since the latter only imposes a small monetary fine on first-time
offenders. Thus the hardships asserted by both named plaintiffs
do not require that we address the constitutionality of AS
11.71.060 at this time.
While the ACLU claims associational standing, it too
did not allege any facts distinguishing the hardship its members
faced before AS 11.71.060 was amended from the hardship its
members faced after the statute was amended. The mere
criminalization of marijuana simply echoes extant federal law.
We also note that the plaintiffs fears of state
criminal enforcement may be speculative and overstated. In Ravin
we recognized that prosecutors and police departments generally
are not interested in pursuing individuals who merely possess
small quantities of marijuana in their home for personal use.36
Thus, to face prosecution, persons violating the amended statute
would need to be in a situation where police have reason to
suddenly enter their homes. Such a scenario bears similarities
to City of Los Angeles v. Lyons, in which the United States
Supreme Court rejected as speculative and not ripe a claim that
Lyons would be subject to a police choke hold in the future.37
The Court noted that Lyons only faced this risk if he acted in a
manner leading to an encounter with police and that, during the
encounter, he resisted detention or failed to comply with police
orders.38 The Court thus concluded, as we do in this case, that
there would be little hardship to the plaintiff if the appeal
were not decided in a hypothetical setting.
C. Decisional Risks Are Present
As we have noted, in determining whether the ripeness
element of the actual controversy requirement exists, we balance
the asserted need for a decision against the risks of making a
decision in an abstract context. In the above discussion we
conclude that the need side of the scale has little or no weight.
It follows that this case should be considered not ripe for
decision if the normal risks associated with deciding
hypothetical cases are present. We conclude that they are.
In Brause v. State, Department of Health & Social
Services,39 we outlined some of the considerations on the risks
side of the scale:
The central perception is that courts
should not render decisions absent a genuine
need to resolve a real dispute. Unnecessary
decisions dissipate judicial energies better
conserved for litigants who have a real need
for official assistance. As to the parties
themselves, courts should not undertake the
role of helpful counselors, since refusal to
decide may itself be a healthy spur to
inventive private or public planning that
alters the course of possible conduct so as
to achieve the desired ends in less troubling
or more desirable fashion. Defendants,
moreover, should not be forced to bear the
burdens of litigation without substantial
justification, and in any event may find
themselves unable to litigate intelligently
if they are forced to grapple with
hypothetical possibilities rather than
immediate facts. Perhaps more important,
decisions involve lawmaking. Courts worry
that unnecessary lawmaking should be avoided,
both as a matter of defining the proper role
of the judiciary in society and as a matter
of reducing the risk that premature
litigation will lead to ill-advised
adjudication. These concerns translate into
an approach that balances the need for
decision against the risks of decision. The
need to decide is a function of the
probability and importance of the anticipated
injury. The risks of decision are measured
by the difficulty and sensitivity of the
issues presented, and by the need for further
factual development to aid decision.[40]
Several of these concerns are present in this case.
1. Concrete facts may aid in the decision.
When statutes are found by a court to be
unconstitutional, they may be found to be unconstitutional as
applied or unconstitutional on their face. A holding of facial
unconstitutionality generally means that there is no set of
circumstances under which the statute can be applied consistent
with the requirements of the constitution.41 A holding that a
statute is unconstitutional as applied simply means that under
the facts of the case application of the statute is
unconstitutional. Under other facts, however, the same statute
may be applied without violating the constitution.
We discussed these distinctions in State, Department of
Revenue, Child Support Enforcement Division v. Beans.42 At issue
was the constitutionality of a statute permitting the Child
Support Enforcement Division to suspend the drivers licenses of
people who are delinquent in child support payments. After
noting the definition of facial unconstitutionality, we observed
that if the statute
were applied so as to take away the license
of an obligor who was unable to pay child
support, it would be unconstitutional as
applied in that case. At that point there
would be no rational connection between the
deprivation of the license and the States
goal of collecting child support.[43]
But we explained that substantive due process norms requiring a
statute to have a reasonable relationship to a legitimate
governmental purpose would be satisfied if the statute were
applied to people who are capable of paying child support.44
Here the ACLU does not argue that AS 11.71.060 is
unconstitutional in all circumstances. The amended statute
applies to use or possession of marijuana anywhere, but the ACLU
argues that only home possession or use is constitutionally
protected. The statute applies to a person, but the ACLU argues
that only adult users and possessors are protected. The statute
applies to possession for any purpose, but the ACLU argues that
only possession for personal use is protected. We are thus not
being asked to declare the amended statute facially
unconstitutional, for it has many clearly constitutional
applications, but to define by pre-determined categories45 the
circumstances under which the statute may not operate.
But adjudication of an actual case, or several actual
cases, might cast these categories in a different light. There
may be cases where the conduct of a particular defendant is so
closely connected to one or more of the health and safety goals
underlying the amended statute that the statute could permissibly
be applied, even if Ravin retains general vitality.
Relatedly, when constitutional issues are raised, this
court has a duty to construe a statute, where reasonable, to
avoid dangers of unconstitutionality.46 Rather than strike a
statute down, we will employ a narrowing construction, if one is
reasonably possible.47 The amended statute may be a candidate for
narrowing constructions. A construction upholding the statute in
cases directly involving the health and safety goals on which the
statute is based might be developed. This case is necessarily
about a narrowing construction of some sort since the amended
statute is not unconstitutional in all its applications. The
question is what narrowing constructions are appropriate.
Allowing the normal processes of adjudication to take place may
be of assistance in providing the answer.
We have recent experience underlining the potential
problems with deciding the constitutionality of a statute in the
absence of actual facts. In Evans ex rel. Kutch v. State we
considered a broad facial challenge to many aspects of Alaskas
tort reform legislation.48 In part of our opinion in that case we
upheld a statute of limitations tolling provision for minors
against an equal protection challenge.49 A few years later in
Sands ex rel. Sands v. Green the same provision was challenged in
a concrete case.50 In Sands we struck down the statute on due
process grounds.51 In so ruling we observed:
That our Evans decision did not reach
this particular constitutional issue merely
reinforces the wisdom of the rule that courts
should generally avoid deciding abstract
cases. Evans involved a host of abstract
facial challenges divorced from any factual
context, and we warned at the time we decided
Evans that future cases might require us to
take a second look at the constitutionality
of the statutory scheme. . . . But, given
the abstract nature of Evans, it is not
surprising that a concrete case involving a
concrete factual scenario has uncovered a
previously unanswered question.[52]
In deciding here that our decision concerning the
constitutionality of the amended statute could be aided by one or
more concrete factual scenarios, we take counsel from Sands.
2. Other factors also counsel against an unnecessary
ruling.
Beyond the assistance that the facts of concrete cases
might lend to the ultimate resolution of the issue before us,
some of the other risk factors mentioned in Brause are also
present.53 The question before the court is, taken alone, a
difficult one with reasonable arguments available to both sides.
It is also a high-profile case in which the general public as
well as the executive and legislative branches of government are
interested. Further, sustaining the ACLUs position would
necessarily require that we declare the amended statute
unconstitutional in part. Due respect for the legislative branch
of government requires that we exercise our duty to declare a
statute unconstitutional only when squarely faced with the need
to do so.
IV. CONCLUSION
We conclude that the actual controversy requirement of
AS 22.10.020(g) has not been satisfied because this case is not
ripe for decision. In striking the balance required by the
ripeness doctrine, the risks of adjudicating the
constitutionality of AS 11.71.060 in a hypothetical setting
outweigh the negligible hardships that the plaintiffs will face
if we do not decide this issue. On the need for decision side of
the scale, plaintiffs need is slight because their conduct,
regardless of how this court might rule, would still be criminal
under federal statutes which impose much more severe penalties
than the amended state statute. On the risk side of the scale,
our concerns echo those that we expressed in Brause:
Without more immediate facts it will be
difficult to deal intelligently with the
legal issues presented. . . . In order to
grant relief . . . [this] court would have to
declare a statute unconstitutional. This is,
of course, a power that courts possess. But
it is not a power that should be exercised
unnecessarily, for doing so can undermine
public trust and confidence in the courts and
be interpreted as an indication of lack of
respect for the legislative and executive
branches of government. Further, ruling on
the constitutionality of a statute when the
issues are not concretely framed increases
the risk of erroneous decisions.[54]
In accordance with these views, the superior courts
judgment in favor of the ACLU, Jane Doe, and Jane Roe, is VACATED
and this appeal is DISMISSED.
CARPENETI, Justice, with whom WINFREE, Justice, joins,
dissenting.
Alaska law on ripeness historically has kept the
barriers to the courtroom low in order to favor access for
Alaskas citizens to Alaska courts. In this, we have pointedly
differed from our counterparts in the federal courts. Todays
opinion, relying on federal law that we have previously declined
to follow, retreats from that long-held stance. While that fact
alone is troubling enough, todays opinion is made more
problematic by its devaluation of the protections that the Alaska
Constitution offers to the citizens of this state, its
overstatement of the decisional risks of considering the appeal
before us, and its rejection of the strong and united position of
the parties before the court that we should decide this case.
For these reasons, I believe that we should heed the requests of
all parties the State of Alaska as well as the Alaska citizens
who bring the action and decide this case now.
I. Todays Opinion Runs Counter to Long-Established Alaska Law.
Todays opinion begins by stating: Under the ripeness
doctrine, the constitutionality of a statute generally may not be
challenged as an abstract proposition. In Alaska, however, we
routinely accept and decide cases raising the constitutionality
of statutes as an abstract proposition. We have done so in
virtually every major constitutional case to come before us in
recent years. We most recently did so in State v. Planned
Parenthood of Alaska,1 a case challenging the constitutionality
of a statute creating criminal penalties for doctors who perform
abortions on minors without parental consent or judicial
authorization. No plaintiff doctor had been prosecuted, but we
had little difficulty reaching the merits.2 In Alaskans for a
Common Language, Inc. v. Kritz,3 we decided the constitutionality
of a statute requiring the government to use the English language
in various circumstances.4 Plaintiffs, non-English speaking and
bi-lingual Alaskans and government workers, had not been sued
under the statute.5 That opinion did not even discuss ripeness.
Indeed, illustrative of Alaskas lenient ripeness jurisprudence,
of eighteen cases since 2001 that raised abstract constitutional
issues, we reached the merits in seventeen, often without even
discussing ripeness.6 In only one did we uphold a ripeness
challenge.7
Why has this court consistently declined to use
ripeness as a way to avoid deciding cases? It is because of our
deep-seated commitment to the idea that the doors of Alaskas
courts should be open to its citizens to the greatest extent
possible. As we said in Thomas v. Anchorage Equal Rights
Commission,8 a case where we found the dispute to be ripe after
the Ninth Circuit had declined to hear it on ripeness grounds
[r]ipeness is an aspect of standing, and we have often noted that
Alaskas standing requirements are more lenient than their federal
counterpart, since they favor ready access to a judicial forum.9
We interpret standing, and by extension ripeness, leniently in
order to facilitate access to the courts: The basic idea . . .
is that an identifiable trifle is enough for standing to fight
out a question of principle.10 Todays opinion relies on federal
law,11 forgetting our repeated statements that our approach to
ripeness differs from the federal approach: We have consistently
found this difference [between the federal and Alaska approaches]
to be important, emphasizing the need to follow our own unique
. . . jurisprudence if Alaska standing doctrine is to retain
its quality of relative openness. 12 By ignoring Alaskas more
open ripeness jurisprudence, todays opinion changes our law on
standing dramatically and, in my view, for the worse. The court
closes its doors where previously they were open.
II. In Assessing the Hardships the Parties Face if the Court
Refuses To Decide this Case, Todays Opinion Devalues Alaska
Constitutional Protections and Incorrectly Assumes that the
Likelihood of Federal Prosecution Is Equal to the Likelihood
of State Prosecution.
A. Devaluation of Alaska constitutional protections
In examining the first question under the ripeness
doctrine the hardships that the parties face if the case is not
decided in advance of a criminal prosecution todays opinion
concludes that the risk of criminal liability argument rings
hollow because marijuana possession is already criminal under
federal law. This argument both devalues the significance of
Alaska constitutional protections and misapprehends the
likelihood of federal prosecution of violation of federal
marijuana laws in Alaska.
The risk of a possibly unconstitutional prosecution
under Alaska law is independent of any possible federal
prosecution. The state government and the federal government are
independent sovereigns, and have the power to punish the same
conduct independently of each other.13 Thus, even if the federal
government prosecutes Jane Doe for her possession of marijuana,
Alaska may prosecute her as well under AS 11.71.060.14 If the
state prosecution is unconstitutional, her injury from that
prosecution does not change even if she is also prosecuted by the
federal government. It is no answer to the shame, expense, and
embarrassment of a possibly unconstitutional state prosecution
that she also risks federal prosecution.
B. Incorrect assumption regarding risk of federal
prosecution
In addition, and perhaps even more important, the
vastly smaller danger of federal prosecution (compared to state
prosecution) must be considered. As a practical matter, the risk
of federal prosecution for simple possession of marijuana in
Alaska appears to be virtually nil. In terms of actual
prosecutions, for example, the United States brought zero
misdemeanor drug possession cases in Alaska in fiscal year 200515
and less than ten cases each year in fiscal year 2006 and fiscal
year 2007.16 During the three-year period ending December 31,
2008, the state filed approximately 3,166 cases17 alleging
violation of AS 11.71.060 (Misconduct Involving a Controlled
Substance in the Sixth Degree possession of marijuana). These
differences in levels of prosecution are not surprising, given
that enforcing Alaskas drug laws is a high priority of both state
and local law enforcement in Alaska,18 while the FBIs
Investigative Priorities for the Alaska Division does not even
list drug enforcement among ten enumerated priorities.19
Finally, there are only approximately fifty federal agents
regularly assigned in Alaska in three locations,20 whereas state
and municipal commissioned officers who are charged with
enforcing state drug laws number approximately 1,20021 spread
over the entire state, in approximately ninety-six locations.22
In pointing to the possibility of federal prosecution as a basis
for discounting the difficult choice that both the state and the
plaintiffs so eloquently elucidate, todays opinion ignores this
reality: The danger of federal prosecution for simple marijuana
possession in Alaska is vanishingly low, whereas the danger of
state prosecution for simple possession is real and substantially
higher.
In this regard, todays opinion misreads Ravin v.
State23 in stating that plaintiffs fears . . . may be speculative
and overstated.24 (And, indeed, the state has expressed
identical fears. See infra at pages 37-39.) Todays opinion
notes that in 1975, when Ravin was decided, most police
departments generally were not interested in pursuing individuals
solely for possession in the home of small amounts of marijuana
for personal use.25 But the language quoted from Ravin
[s]tatistics indicate that few arrests for simple possession
occur in the home except when other crimes are simultaneously
being investigated26 illustrates why the presence of the statute
at issue in this case poses such a difficult choice for persons
such as plaintiffs. Consider the individual who comes home one
evening to find a window broken in his home and the door slightly
ajar. The individual knows that he left a small container of
marijuana in the open on his coffee table. He must now decide
whether he should call the police and expose himself to
prosecution for possession of less than one ounce of marijuana in
his home, or enter the house by himself and risk encountering an
intruder. Or consider a wife who has retreated to her bedroom
after an altercation with her husband in which he hit her. She
knows that there is marijuana and paraphernalia in the open in
the kitchen. She must decide whether to call the police and
report the domestic violence incident, and thereby expose herself
to possible prosecution for possession of marijuana, or face her
abuser again by herself.
In short, persons currently engaging in activities that
this court has previously declared protected under the Alaska
Constitution will be chilled in the exercise of those activities
by the very real risk of a state prosecution without the
opportunity which all sides to this dispute say they should have
of testing the statute in advance. And, because state and local
law enforcement authorities are the ones that Alaskans have
recourse to in the event of emergency, the risk of discovery of
those possibly protected activities pertains to state, not
federal, personnel.
III. Todays Opinion Overstates the Risks of Deciding.
After incorrectly concluding that there is little need
for a decision in advance of enforcement of the statute, the
court turns to the risks of decision.27 It then concludes
contrary to the positions of all the parties in this case that
the normal risks associated with deciding hypothetical cases are
present.28 But the opinion greatly exaggerates this risk.
Indeed, we have previously decided a case in virtually identical
circumstances raising identical issues: We noted in Ravin, [t]he
record does not disclose any facts as to the situs of Ravins
arrest and his alleged possession of marijuana.29 Ravin is the
case that the current legislation aims to overturn. It is
difficult to understand how the current legislation cannot be
properly analyzed in the absence of specific facts while, at the
same time, the entire controversy before us arose in the absence
of specific facts.
Todays opinion quotes extensively from Brause v. State,
Department of Health & Social Services,30 the only case since
2000 in which we declined on ripeness grounds to reach the merits
of a constitutional dispute. The plaintiffs in Brause, a same-
sex couple who were unable to marry, challenged AS 25.05.013(b),
which provided that a same-sex relationship may not be recognized
by the state as being entitled to the benefits of marriage.
Plaintiffs attacked this statute generally, but lacking in [the
plaintiffs] brief is any assertion that they have been or . . .
will be denied rights that are available to married partners.31
Brause is distinguishable from todays case in many ways.
Unlike the present case, Brause truly lacked a
sufficient factual setting in which to frame the dispute. The
plaintiffs in Brause challenged the constitutionality of a
statute prohibiting marriage of same-sex partners. They claimed
the statute denied them some 115 rights afforded to married
couples, but never challenged the denial of any specific benefit
to them. We noted: [L]acking in Brause and Dugans brief is any
assertion that they have been or in their circumstances that they
will be denied rights that are available to married partners.32
Unlike the Brause plaintiffs, the plaintiffs before us now
identify a discreet right denied them by operation of the
statute.
In the present case, the constitutional issue is
sufficiently framed: (1) adult plaintiffs propose to use (2)
small amounts of marijuana (3) in their homes. No further facts
are needed: Waiting for an individual to be arrested and charged
with possession of a small amount of marijuana in his or her home
would not provide us with any necessary additional facts. And
unlike the present case, the state in Brause argued that the case
was not ripe. Todays opinion quotes Brause to the effect that
[d]efendants . . . should not be forced to bear the burdens of
litigation without substantial justification;33 but the defendant
in this case seeks to bear the burdens of litigation the state
vigorously asserts that we should hear this case because it is
ripe. In Brause, it was unclear even which constitutional
right(s) the plaintiffs claimed had been violated,34 whereas
today the claim is clear: The new statute violates the right to
privacy set out in Ravin. And the language from Brause relied on
in todays opinion is not applicable to our case: Brause points
out that courts should not render decisions absent a genuine need
to resolve an actual dispute. As shown above, there is an actual
dispute here about the constitutionality of AS 11.71.060 that is
directly affecting the plaintiffs.
Finally, unlike Brause, this is not a case of first
impression. We first addressed this issue over thirty years ago,
setting out the standard for constitutional challenges to drug
possession laws. Since we decided Ravin, we and the court of
appeals have applied the standard for constitutional challenges
to drug and alcohol possession statutes at least a dozen times.35
In Ravin, we even laid out the manner in which a subsequent
legislature might take a second look at the issue in the event of
changes in scientific or other information.36 And here, the
legislature and all of the parties have endeavored to follow the
path we set out in Ravin. All of the parties now urge us to take
the case.37 In all of these ways, Brause is different from the
present case. In sum, Brause offers little support for the
proposition that this case is not ripe.
The court next turns to two specific reasons in support
of its claim that the risks of decision outweigh the need for
decision. Neither bears up under scrutiny. First, todays
opinion argues that concrete facts may aid in making a decision.
The opinion claims that because the plaintiffs do not maintain
that the statute is unconstitutional in all circumstances
plaintiffs claim it is unconstitutional only insofar as it
proscribes the possession of a small amount of marijuana for
personal use by an adult in the adults home38 we should not
entertain the current challenge because adjudication of an actual
case might cast these categories in a different light.39 That
possibility does not justify the conclusion that the case is not
ripe: It exists in every pre-enforcement challenge to the
constitutionality of a statute. Here, the state needs to know
whether the new statute is constitutional or whether, conversely,
Ravin retains vitality.40 The plaintiffs need to have the same
question answered, or face the difficult and unfair choice of
foregoing possibly constitutionally protected activity or risking
criminal penalties. As the state makes clear in its briefing to
this court:
Because the lack of factual development in
this case has no bearing on the legal
principles that control the constitutionality
of the statutes, further factual development
will not significantly advance [the courts]
ability to deal with the legal issues
presented. No set of facts arising from
future implementation of this statute will
make the constitutional challenge any riper
than it is now.[41]
In an effort to bolster the argument that the risks of
deciding are high, todays opinion notes our decision in Evans ex
rel. Kutch v. State42 and the subsequent need to reverse a
portion of the Evans decision in Sands ex rel. Sands v. Green.43
But the experience of these cases lends no support to the
argument against ripeness. The constitutional challenge in Evans
was to an extremely wide-ranging set of legislative enactments
under the broad rubric of tort reform.44 The current case, in
comparison, is much more limited: Plaintiffs seek to reaffirm
this courts holding in Ravin that an adult in Alaska has the
constitutional right to possess for personal use a small amount
of marijuana in his or her home. The Evans/Sands experience does
not suggest that a tightly-focused constitutional issue that all
parties want and need to have resolved should remain undecided.
And while todays opinion take[s] counsel from Sands,45 it seems
highly unlikely that todays court really believes that it should
not have decided Evans, a decision which, for better or worse,46
went a long way47 toward resolving challenges to a major overhaul
of Alaskas tort system.
Second, todays opinion concludes that the matter is not
ripe partly because the case is a high-profile case in which the
general public as well as the executive and legislative branches
of government are interested.48 But these factors do not counsel
dismissal on ripeness grounds. To the contrary, the high-profile
nature of the case argues in favor of reaching and deciding the
merits. As the Supreme Court of California has held, the
ripeness requirement does not prevent us from resolving a
concrete dispute if the consequence of a deferred decision will
be lingering uncertainty in the law, especially when there is
widespread public interest in the answer to a particular legal
question.49
A related concern strongly counsels in favor of finding
that the case is ripe: In Ravin we noted that [r]esearch is
continuing extensively,50 suggesting the possibility that this
constitutional issue might have to be reexamined if the
scientific bases of the opinion were to be undercut by changes in
sciences understanding of the harmfulness of marijuana or by
changes in the chemical makeup of the drug being sold or by a
similar change. But we also noted that mere scientific doubts
will not suffice. The state must demonstrate a need based on
proof that the public health or welfare will in fact suffer if
the controls are not applied.51 It is clear that the
legislature, in holding the hearings it did in the course of
adopting the current legislation, attempted to comply with the
implied directive of this court. No less than the executive
which has argued strongly in favor of our deciding this case it
can be expected that the legislature would also favor a decision
rather than a ripeness dismissal.
IV. All Parties Have Asked Us To Decide this Case.
We have seen that, contrary to the suggestion in todays
opinion, our normal practice is to decide even abstract
challenges to statutes. That is so even though, in many such
facial challenges, the party defending the statute will argue
that the case is not ripe and that we should wait for a case
applying the statute to a specific set of facts.52 But in todays
case, both parties have asked indeed, implored us to decide
this case now.
The state, which might have been expected to argue that
the case is not ripe,53 instead strongly argues that the case is
ripe and should be decided now:
This case is ripe because the need for a
decision is compelling and the risks are few.
Without a decision, the individual plaintiffs
who have challenged the constitutionality of
AS 11.71.060 face the choice of changing
their current conduct previously authorized
by a constitutional decision of this Court
or risk criminal liability if they fail to
comply with the statute. Further, deciding
the statutes constitutionality at this pre-
enforcement stage poses little risk of an
imprudent or unnecessary decision, because
the statutes validity is governed by general
principles rather than by circumstances
particular to an individuals conduct.[54]
As the state notes, requiring an actual prosecution before
hearing a case may place the hapless plaintiff between the Scylla
of intentionally flouting state law and the Charybdis of
foregoing what he believes to be constitutionally protected
activity.55 Further:
When the prohibited act is a crime,
conditioning judicial review on the existence
of an actual prosecution burdens a specific
individual with a challenge that could be
prohibitively expensive.[note 27] In
addition, a criminal prosecution could be
damaging to a persons job and personal
relationships. A person in this situation
should not be required to sacrifice his
social standing in order to challenge a new
criminal law as invalid. When the sanction
is criminal penalties, a person should be
allowed to choose early adjudication.[56]
_____________________________________________
___
[note 27] A practical consideration that
should not be overlooked is that the
plaintiffs in this case have had the
resources of the ACLU, including several
attorneys from the ACLUs Drug Law Reform
Project, based in California, each of whom
had significant experience litigating legal
issues in drug cases. The five ACLU
attorneys who worked on this case had
experience ranging from three to nineteen
years (average: nine years), and documented
more than 520 hours of attorney time spent on
the superior court case alone. Many
additional hours of attorney work at the
superior court level by the ACLU Drug Law
Reform Project on this case were not
accounted for.
The plaintiffs echo the states argument that this case
is ripe for decision. They too highlight the unfair choice that
they face forego a previously recognized privacy right or risk
prosecution under a law of questioned constitutionality: [A]
constitutional challenge to a criminal statute is ripe where
plaintiffs must choose between risking arrest or suffering
deprivations of their constitutional rights if they do not alter
their conduct.57
V. Conclusion
Our case law strongly supports the proposition that
this controversy is ripe for resolution. The legislature has
done its part to bring this long-running dispute back to the
courts to be resolved. The executive has weighed in, strongly
requesting that we decide the dispute. The plaintiffs sued to
get an answer. The issue is clear: Does the Alaska Constitution
prohibit the current legislation to the extent that it
criminalizes possession of a small amount of marijuana in an
adults home for personal use? No other facts need be developed
in order for the parties to brief the issue which they have done
exceedingly well and for the courts to decide it. There is a
pointed need on the part of the state as well as the plaintiffs
for a decision, and no harm would result from our rendering one.
In these circumstances, I must respectfully dissent from the
courts refusal, on ripeness grounds, to decide this case.
_______________________________
1 537 P.2d 494 (Alaska 1975).
2 Ch. 53, 9, SLA 2006 (criminalizing the possession of
marijuana in amounts smaller than one ounce); see also AS
11.71.190(b) (defining marijuana as a schedule VIA controlled
substance). The legislature also amended AS 11.71.050(a)(2)(E),
making it a class A misdemeanor to possess one ounce or more of
marijuana. Ch. 53, 8, SLA 2006. The validity of section .050
as amended is not at issue in this case.
3 Alaska Const. art I, 22 (The right of the people to
privacy is recognized and shall not be infringed. The
legislature shall implement this section.).
4 537 P.2d at 504, 511 (holding that Alaskans have a
fundamental right to privacy in their homes and protecting the
possession by adults of small amounts of marijuana in the home
for personal use).
5 AS 17.37.010-.080. The plaintiffs subsequently dropped
any challenge based on medical use of marijuana.
6 The court concluded that the ACLU had standing to sue
on behalf of its members who use marijuana for personal purposes
in the home.
7 The legislative findings that accompany the 2006
amendment indicate that the average potency of marijuana used in
Alaska in 2003 was nearly fourteen times stronger than that used
in the 1960s and 1970s.
8 AS 22.10.020(g); see also Alaska R. Civ. P. 57(a).
9 See Jefferson v. Asplund, 458 P.2d 995, 998-99 (Alaska
1969).
10 Brause v. State, Dept of Health & Soc. Servs., 21 P.3d
357, 358 (Alaska 2001).
11 Jacob v. State, Dept of Health & Soc. Servs., Office of
Childrens Servs., 177 P.3d 1181, 1184 (Alaska 2008) (reviewing
the superior courts dismissal for mootness de novo because
[m]ootness[,] . . . [s]tanding and ripeness are . . . questions
of law, calling for independent judgment review.); Vanek v.
State, Bd. of Fisheries, 193 P.3d 283, 287 (Alaska 2008) (We
apply our independent judgment in determining mootness because
mootness is a question of law.).
Federal precedent, relevant because Alaskas declaratory
judgment act was modeled after the federal act, 28 U.S.C. 2201
(2006), see Alaska Airlines, Inc. v. Red Dodge Aviation, Inc.,
457 P.2d 229, 232 (Alaska 1970), also supports de novo review.
See, e.g., Alaska Right to Life Political Action Comm. v.
Feldman, 504 F.3d 840, 848-49 (9th Cir. 2007) (reversing a
district courts grant of declaratory relief because the appeal
was not an actual case or controversy as it was not ripe).
12 E.g., Lowell v. Hayes, 117 P.3d 745, 750 (Alaska 2005);
Thomas v. Anchorage Equal Rights Commn, 102 P.3d 937, 942-43 &
n.31 (Alaska 2004); Brause, 21 P.3d at 358.
13 AS 22.10.020(g).
14 See Brause, 21 P.3d at 358.
15 See, e.g., Istrice v. City of Sparks, 8 F. Appx 841,
843 (9th Cir. 2001) ([B]ecause issues of ripeness involve, at
least in part, the existence of a live Case or Controversy, we
cannot rely upon concessions of the parties and must determine
whether the issues are ripe for decision. (quoting Regional Rail
Reorganization Acts Cases, 419 U.S. 102, 138 (1974))); Sisseton-
Wahpeton Sioux Tribe v. United States, 804 F. Supp. 1199, 1204-05
(D.S.D. 1992) ([I]n deciding whether the . . . claim is ripe,
this Court is not bound by allegations in the . . . complaint or
by stipulations entered into by the parties.); 10B Charles Alan
Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and
Procedure 2757, at 507 (1998).
16 504 F.3d 840 (9th Cir. 2007).
17 Id. at 849 (quoting San Diego County Gun Rights Comm.
v. Reno, 98 F.3d 1121, 1132 (9th Cir. 1996)).
18 In Brause we surveyed our ripeness precedent and
explained:
The degree of immediacy of a prospective
injury needed to satisfy the ripeness
doctrine has not been systematically explored
in our case law. Instead, our cases contain
statements such as [a]dvisory opinions are
to be avoided, or [t]he ripeness doctrine
forbids judicial review of abstract
disagreements, or courts should decide only
a real, substantial controversy, not a mere
hypothetical question.
21 P.3d at 359 (internal footnotes omitted).
19 Bowers Office Products, Inc. v. Univ. of Alaska, 755
P.2d 1095, 1097-98 (Alaska 1988); see also Zoerb v. Chugach Elec.
Assn, 798 P.2d 1258, 1261 (Alaska 1990) ([S]tanding is not an
illusory requirement in Alaska.).
20 Brause, 21 P.3d at 359 (quoting 13A Wright, et al.,
Federal Practice and Procedure 3532, at 112 (2d ed. 1984)).
21 Id. (quoting Wright, supra note 20, 3532.1, at 114-
15).
22 Id. (quoting Wright, supra note 20, 3532 at 112)
(internal quotation marks omitted).
23 Alaska Right to Life Political Action Comm. v. Feldman,
504 F.3d 840, 851 (9th Cir. 2007).
24 Lowell v. Hayes, 117 P.3d 745, 757-58 (Alaska 2005)
(concluding that a disputed threat of prosecution was
insufficient for ripeness); Thomas v. Anchorage Equal Rights
Commn, 102 P.3d 937, 942-43 (Alaska 2004) (holding that risk of
enforcement of a law was sufficient for ripeness where the law
allegedly interfered with appellant landlords First Amendment
free exercise of religion rights by requiring them to rent
housing to unmarried couples); State v. Planned Parenthood of
Alaska, 35 P.3d 30, 34 (Alaska 2001) (allowing doctors to
maintain pre-enforcement challenge to law requiring parental
consent to abortions for girls under age seventeen, as law would
require doctor-appellants to change their current practices and
expose them to civil and criminal liability if they failed to
comply).
25 Pub. L. No. 91-513, 84 Stat. 1236; see also Gonzales v.
Raich, 545 U.S. 1, 10 (2005).
26 21 U.S.C. 812(c) (1999); see also Raich, 545 U.S. at
14-15.
27 21 U.S.C. 812(b)(1).
28 Id. 844(a). There are limited exceptions for
activities such as government-approved marijuana research. See,
e.g., id. 822-23, 844(a).
29 AS 11.71.190.
30 21 U.S.C. 844(a). Because the statute challenged in
this case criminalizes the possession of less than one ounce of
marijuana, we limit our examination of criminal penalties to this
offense.
31 21 U.S.C. 844(a).
32 AS 12.55.135(j). A person possessing less than one
ounce of marijuana in the home for personal use only faces
potential incarceration if compounding conditions are met, such
as a previous conviction or being on probation or parole.
Neither Jane Doe nor Jane Roe have suggested that greater
penalties might apply to their situation.
33 The Supremacy Clause of the United States Constitution
provides: This Constitution, and the Laws of the United States
which shall be made in Pursuance thereof . . . shall be the
supreme Law of the Land; and the Judges in every State shall be
bound thereby, any Thing in the Constitution or Laws of any State
to the Contrary notwithstanding. U.S. Const. art. VI, cl. 2.
34 545 U.S. 1, 7-9 (2005).
35 Id. at 29-34.
36 Ravin v. State, 537 P.2d 494, 511 n.70 (Alaska 1975)
(Statistics indicate that few arrests for simple possession occur
in the home except when other crimes are simultaneously being
investigated. The trend in general in law enforcement seems to
be toward minimal effort against simple users of marijuana, and
concentration of efforts against dealers and users of more
dangerous substances. Moreover, statistics indicate that most
arrests for possession of marijuana in Alaska result in
dismissals before trial.).
37 461 U.S. 95, 97-98, 111-12 (1983).
38 Id. at 105-06; see also Alaska Right to Life Political
Action Comm. v. Feldman, 504 F.3d 840, 851-52 (9th Cir. 2007)
(noting that there was a lack of any credible threat of
enforcement of the challenged provision of the Alaska Judicial
Code).
39 21 P.3d 357 (Alaska 2001).
40 Id. at 359 (quoting Wright, supra note 20 3532.1, at
114-15.
41 State, Dept of Revenue, Child Support Enforcement Div.
v. Beans, 965 P.2d 725, 728 (Alaska 1998).
42 965 P.2d 725.
43 Id. at 728.
44 Id. at 727-28.
45 The ACLU, of course, did not originate these
categories. They were established in Ravin. See Ravin v. State,
537 P.2d 494, 511 (Alaska 1975) (holding that possession of
marijuana by adults at home for personal use is constitutionally
protected).
46 Alaskans for a Common Language, Inc. v. Kritz, 170 P.3d
183, 192 (Alaska 2007).
47 We recently employed this canon in Alaskans for a
Common Language, in which we construed the Official English
Initiative as only applying to official acts of government. Id.
Likewise, in State v. Blank, 90 P.3d 156 (Alaska 2004), we
construed a statute to include constitutional requirements that
we set forth in an earlier case. Id. at 162 (In the context of
the facts presented in this case, we choose to construe
subsection .031(g) to incorporate, in addition to the statutory
requirements, the exigent circumstances requirements discussed in
Schmerber.).
48 56 P.3d 1046, 1048 (Alaska 2002) (plurality opinion).
49 Id. at 1064-66.
50 156 P.3d 1130, 1132 (Alaska 2007).
51 Id. at 1133-34.
52 Id.
53 Brause v. State, Dept of Health & Soc. Servs., 21 P.3d
357, 359 (Alaska 2001).
54 Id. at 360.
1 171 P.3d 577 (Alaska 2007) (Planned Parenthood II).
2 Id. at 580; see also State v. Planned Parenthood of
Alaska, 35 P.3d 30, 34 (Alaska 2001) (Planned Parenthood I).
3 170 P.3d 183 (Alaska 2007).
4 Id. at 187.
5 Id. at 187-88.
6 In addition to Planned Parenthood II and Alaskans for a
Common Language, see, e.g., Alaska Pub. Interest Research Group
v. State, 167 P.3d 27 (Alaska 2007) (deciding facial challenge by
public interest group to constitutionality of statute creating
Alaska Workers Compensation Appeals Commission without even
discussing ripeness); State, Dept of Fish & Game v. Manning, 161
P.3d 1215 (Alaska 2007) (deciding facial challenge to
constitutionality of statute establishing criteria for
subsistence hunting permit; hunter had been denied permit but
court addressed facial challenge even though he might have had as-
applied challenge); State v. Native Village of Nunapitchuk, 156
P.3d 389 (Alaska 2007) (deciding facial challenge to
constitutionality of statute awarding attorneys fees in public
interest cases without even discussing ripeness); City of Skagway
v. Robertson, 143 P.3d 965 (Alaska 2006) (deciding facial
challenge, without discussing ripeness, to city ordinance
limiting in-person solicitation by plaintiffs who owned
businesses that used in-person solicitation, although they had
not yet been prosecuted or threatened with prosecution); Interior
Cabaret, Hotel, Rest. & Retailers Assn v. Fairbanks N. Star
Borough, 135 P.3d 1000 (Alaska 2006) (deciding, without
discussing ripeness, facial challenge to constitutionality of
proposed alcohol tax by plaintiffs who sold alcohol but on whom
tax had not yet been assessed); Grunert v. State, 109 P.3d 924
(Alaska 2005) (deciding, without discussing ripeness, facial
challenge to constitutionality of regulation creating cooperative
fishery and allocating salmon quota to fishery brought by fishers
who chose not to join cooperative); Thomas v. Anchorage Equal
Rights Commn, 102 P.3d 937 (Alaska 2004) (deciding
constitutionality of statute prohibiting landlord discrimination
against unmarried tenants brought by landlords who had not yet
been prosecuted under the statute; holding landlords claims ripe,
although Ninth Circuit had previously held them unripe); Treacy
v. Municipality of Anchorage, 91 P.3d 252 (Alaska 2004) (deciding
facial challenge to constitutionality of municipal curfew on
minors; even though minors had been arrested, court evaluated
statute on its face without using specific facts of arrests);
Myers v. Alaska Hous. Fin. Corp., 68 P.3d 386 (Alaska 2003)
(deciding facial challenge to constitutionality of statute
selling right to future income from tobacco settlements and using
sale proceeds for rural schools); Evans ex rel. Kutch v. State,
56 P.3d 1046 (Alaska 2002) (deciding facial challenge to
constitutionality of tort reform legislation brought by allegedly
injured persons who have filed or plan to file tort actions over
states objection that claims were unripe); State v. Planned
Parenthood of Alaska (Planned Parenthood I), 35 P.3d 30 (Alaska
2001) (deciding facial constitutional challenge brought by
doctors and abortion provider to statute criminalizing
performance of abortion for minor unless parental consent or
judicial authorization obtained); Sampson v. State, 31 P.3d 88
(Alaska 2001) (deciding facial challenge to constitutionality of
manslaughter statute prohibiting assisted suicide brought by
terminally ill patients; no doctors had yet been prosecuted for
assisting suicide); State v. Planned Parenthood, 28 P.3d 904
(Alaska 2001) (deciding facial challenge to constitutionality of
regulation denying funding for medically necessary abortions
brought by abortion provider, without discussing whether or not
providers patients had yet been denied funding under statute);
Anchorage Police Dept Employees Assn v. Municipality of
Anchorage, 24 P.3d 547 (Alaska 2001) (deciding facial challenge
to constitutionality of city policy subjecting public safety
employees to random drug tests brought by municipal employees,
none of whom had yet been tested).
Even removing the cases in which the challenged statute
did not regulate conduct or grant or deny a benefit Alaska Pub.
Interest Research Group, Grunert, and Meyers it remains that in
the vast majority of abstract constitutional challenges, this
court has eschewed holding the case not ripe and has decided the
case.
And in the cases that are most directly analagous to
our case pre-enforcement facial challenges to criminal statutes
(Planned Parenthood I, Planned Parenthood II, City of Skagway,
Thomas, and Sampson) we have never dismissed on ripeness
grounds, instead deciding every case on its merits.
7 Brause v. State, Dept of Health & Soc. Servs., 21 P.3d
357, 358-61 (Alaska 2001) (declining to address broad
constitutional challenge to statute prohibiting same-sex marriage
brought by same-sex couple).
8 102 P.3d 937.
9 Id. at 942.
10 Planned Parenthood I, 35 P.3d at 34 (quoting Wagstaff
v. Superior Court, Family Court Div., 535 P.2d 1220, 1225 & n.7
(Alaska 1975)).
11 See Opinion at 7.
12 Thomas, 102 P.3d at 942 (quoting Bowers Office Prods.,
Inc. v. Univ. of Alaska, 775 P.2d 1095, 1097 n.5 (Alaska 1988)).
13 See Booth v. State, 903 P.2d 1079, 1085 (Alaska App.
1995) ([I]f a person commits a crime that is prohibited by both
federal and state law, both the federal government and the state
government can separately prosecute the person for that crime.).
Previously AS 12.20.010 prevented the state from prosecuting
conduct already prosecuted by the federal government, but the
legislature repealed this law last session. See Ch. 75, 40, SLA
2008.
14 The state is clear that its position poses a sufficient
threat to the individual plaintiffs to render the dispute live.
States Supplemental Memorandum on Ripeness at 5, State of Alaska
v. Am. Civil Liberties Union of Alaska, No. S-12370 (Alaska July
15, 2008). It notes that it has never disclaimed a general
intent to prosecute the possession of a small amount of marijuana
in the home. (Id.) (The state also notes that, in the spirit of
conforming to the rule of law, the Attorney General has advised
all Alaska law enforcement agencies not to change their current
marijuana enforcement policies until this case is resolved.
(Id.)).
15 Bureau of Justice Statistics, Federal Justice
Statistics Resources Center, FY 2005, Defendants Charged in
Criminal Cases, Alaska, http://fjsrc.urban.org (follow Defendants
charged in criminal cases hyperlink, select year, select filing
offense, select Drug possessionmisdemeanor, select Add Column,
select U.S. Federal Judicial District, select Alaska, select
Display as: HTML) (last visited Feb. 25, 2009).
16 Bureau of Justice Statistics, Federal Justice
Statistics Resources Center, FY 2006 Defendants Charged in
Criminal Cases, Alaska, FY 2007, Defendants Charged in Criminal
Cases, Alaska, http://fjsrc.urban.org (follow Defendants charged
in criminal cases hyperlink, select year, select filing offense,
select Drug possessionmisdemeanor, select Add Column, select U.S.
Federal Judicial District, select Alaska, select Display as:
HTML) (last visited Feb. 25, 2009). An explanatory note for FY
2006 and FY 2007 states: Cell contains at least one case but
fewer than 10 cases. The exact value has been withheld to
prevent to deductive disclosure of personal identities. Federal
crime statistics that distinguish between misdemeanor marijuana
possession (violation of 21 U.S.C. 844(a) (possession of
marijuana)) and misdemeanor possession of other drugs are not
available. Thus, these numbers most likely overstate the number
of federal misdemeanor marijuana cases.
17 Compilation from Alaska Court System CourtView data and
Rural User Group courts (run Feb. 20, 2009).
18 See, e.g., Alaska State Troopers, Alaska Bureau of
Alcohol and Drug Enforcement Mission Statement,
http://www.dps.state.ak.us/ast/abade (last visited Feb. 25,
2009); Municipality of Anchorage, Alaska, Anchorage Police
Department, Drug Information (drug tip hotline),
http://www.muni.org/apd2/drugs.cfm (last visited Feb. 25, 2009);
Fairbanks Police Department, About the Department (drug
investigator and detective positions),
http://ci.fairbanks.ak.us/departments/police/about.html (last
visited Feb. 22, 2009).
19 These priorities are, in order: (1) protecting the
United States from terrorist attack; (2) protecting this country
from foreign intelligence operations and espionage; (3)
protecting this country from cyber-based attacks and high-
technology crimes; (4) combating public corruption; (5)
protecting civil rights; (6) combating transnational and national
criminal organizations and enterprises; (7) combating major white-
collar crime; (8) combating significant violent crime; (9)
supporting federal, state, local, and international partners; and
(10) upgrading technology to succeed in the FBI mission. FBI
Alaska, Investigative Priorities of the Alaska Division,
http://anchorage.fbi.gov/investigative.html (last visited Feb.
22, 2009). The investigative priorities of the FBI appear to
mirror the prosecutorial priorities of the United States
Attorneys Office for the District of Alaska. The homepage of the
Criminal Division of that office notes: The Criminal Division
prosecutes mainly felony offenses. An active misdemeanor docket
does exist, however, and consists of the prosecution of minor
offenses occurring in federal parks or other federal enclaves.
The United States Attorneys Office, District of Alaska, Criminal
Division, http://www.usdoj.gov/usao/ak/criminal/index.html (last
visited Feb. 26, 2009) (emphasis added). Prosecutions of persons
in their homes for misdemeanor marijuana possession would appear
not to fall within the described activities.
20 FBI Alaska, Message from the Special Agent in Charge,
http://anchorage.fbi.gov/sac.html (last visited Feb. 26, 2009).
21 COPS Funds in Alaska, 21 Alaska Justice Forum 3(2005),
available at
http://justice.uaa.alaska.edu/forum/21/4winter2005/214winter05.pd
f. (COPS is an acronym for the federal Office of Community
Oriented Policing Services.) (According to the Alaska Police
Standards [Council], at the end of February 2005, there were 1190
certified sworn officers in Alaska.).
22 See id. at 2.
23 537 P.2d 494 (Alaska 1975).
24 Opinion at 14.
25 Id.
26 Id. n.36 (quoting Ravin, 537 P.2d at 511 n.70)
(emphasis added).
27 Opinion at 13.
28 Id.
29 537 P.2d at 513 (emphasis added).
30 21 P.3d 357 (Alaska 2001).
31 Id. at 360.
32 Id.
33 Opinion at 14.
34 21 P.3d at 360 (noting that plaintiffs claimed that
challenged statute denied them at least 115 separate rights and
concluding that, [g]iven the level of abstraction of this case as
presented, dismissal for lack of ripeness was appropriate
(internal quotation marks omitted)).
35 See, e.g., State v. Erickson, 574 P.2d 1, 12 (Alaska
1978); Brown v. State, 565 P.2d 179, 180 (Alaska 1977); Belgarde
v. State, 543 P.2d 206 (Alaska 1975); Garhart v. State, 147 P.3d
746, 750-51 (Alaska App. 2006), Hotrum v. State, 130 P.3d 965,
967, 969-70 (Alaska App. 2006); Noy v. State, 83 P.3d 545 (Alaska
App. 2003); Westbrook v. State, 2003 WL 1732398, (Alaska App.
2003); Noy v. State, 83 P.3d 538 (Alaska App. 2003); Sorenson v.
State, 2001 WL 830709 at *1 (Alaska App. 2001); Walker v. State,
991 P.2d 799, 801-03 (Alaska App. 1999); Cleland v. State, 759
P.2d 553, 556-58 (Alaska App. 1988); Harrison v. State, 687 P.2d
332, 336-39 (Alaska App. 1984).
36 See infra at notes 50-51and accompanying text.
37 See infra at pp. 37-39.
38 These circumstances are those set out in Ravin, 537
P.2d 494, 498-500 (Alaska 1975).
39 Opinion at 16.
40 Indeed, todays opinion may put enforcement of the new
laws on hold indefinitely. Following enactment of the current
law, the attorney general issued a law enforcement bulletin that
contained the following:
HB 149 contains several key findings by the
Legislature about problems caused by todays
potent Alaska marijuana . . . . [W]e believe
[these findings] will convince the Alaska
Supreme Court that marijuana has changed
dramatically since the landmark 1975 decision
in Ravin v. State.
But press reports are somewhat misleading in
saying that the new laws re-criminalize
possession of smaller amounts of marijuana by
adults in private. Thats not entirely
accurate.
The new laws do not alter the decisions by
the Alaska appellate courts that possession
of small amounts by adults in homes is
constitutionally protected (Ravin), that the
amount of marijuana covered by Ravin is up to
four ounces (Noy).
The state will vigorously litigate all these
legal issues because its important that the
courts overrule these prior decisions. The
Legislatures findings about marijuana set the
stage for that to happen, but they dont do it
automatically. We live under the rule of
law, and full implementation of the marijuana
laws is ultimately up to the courts.
Therefore, . . . until you are advised
differently by the District Attorney in your
region, there is no basis for changing law
enforcement policies for the investigation of
non-public possession of less than four
ounces of marijuana by adults. Attorney
Generals Enforcement Bulletin, Alaska Dept of
Law, New Marijuana Laws (May 12, 2006)
(emphasis in original).
41 States Supplemental Memorandum on Ripeness, supra n.14,
at 12-13 (quoting Natl Park Hospitality Assn v. Dept of Interior,
538 U.S. 803, 812 (2003) (emphasis added)).
42 56 P.3d 1046 (Alaska 2002).
43 156 P.3d 1130 (Alaska 2007).
44 The many new tort law provisions in the new act
included:
caps on noneconomic and punitive damages, a
requirement that half of all punitive damage
awards be paid into the state treasury, a ten-
year statute of repose, a modified tolling
procedure for the statute of limitations as
applied to minors, comparative allocation of
fault between parties and non-parties, a
revised offer of judgment procedure, and
partial immunity for hospitals from vicarious
liability for some physicians actions.
Evans, 56 P.3d at 1048.
45 Opinion at 18.
46 The decision was from an equally divided court, and
prompted separate dissents. Id. at1070 (Bryner, J., dissenting
in part); id. at 1079 (Carpeneti, J., dissenting in part).
47 Because Evans was the product of an evenly-divided
court, it was necessary for the court to decide Anderson v. Cent.
Bering Sea Fishermens Assn, 78 P.3d 710 (Alaska 2003), which
resulted in another evenly-divided court, and Reust v. Alaska
Petroleum Contractors, Inc., 127 P.3d 807 (Alaska 2005), a 3-2
decision, before the constitutionality of most of the
legislatures tort reform efforts was finally resolved. But each
later case built upon the courts holdings in Evans, and each
advanced the inquiry.
48 Opinion at 19.
49 Hunt v. Superior Court, 987 P.2d 705, 716 (Cal. 1999)
(citing Pac. Legal Found. v. Cal. Coastal Commn, 655 P.2d 306,
313-14 (Cal. 1982)) (emphasis added).
50 Ravin v. State, 537 P.2d 494, 510 (Alaska 1975).
51 Id. at 511.
52 See, e.g., Thomas v. Anchorage Equal Rights Commn, 102
P.3d 937, 942 (Alaska 2004); Evans ex rel. Kutch v. State, 56
P.3d 1046, 1080 n.6 (Alaska 2002); Brause v. State, Dept of
Health & Soc. Servs., 21 P.3d 357, 360 (Alaska 2001).
53 Indeed, in the States Supplemental Memorandum on
Ripeness, the state acknowledged that it generally . . . is an
ardent advocate for the position that the Court should not
consider constitutional challenges without concrete facts, but
went on to say that the present challenge to AS 11.71.060 is
uniquely suited to pre-enforcement adjudication. States
Supplemental Memorandum on Ripeness at 12, supra n.14.
54 Id. at 2 (emphasis added).
55 Id. at 6 (quoting Steffel v. Thompson, 415 U.S. 452,
462 (1974)).
56 Id. at 8-9 (citations omitted).
57 Appellees Supplemental Memorandum Regarding Ripeness at
1, State of Alaska v. Am. Civil Liberties Union of Alaska, No. S-
12370 (Alaska July 15, 2008).
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