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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Fraternal Order of Eagles, Juneau-Douglas Aerie 4200 v. City and Borough of Juneau (7/1/2011) sp-6574
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, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
FRATERNAL ORDER OF EAGLES, )
JUNEAU-DOUGLAS AERIE 4200, ) Supreme Court No. S-13748
MARK PAGE, BRIAN TURNER, )
R.D. TRUAX, and LARRY PAUL, ) Superior Court No. 1JU-08-00730 CI
)
Appellants, ) O P I N I O N
)
v. ) No. 6574 - July 1, 2011
)
CITY AND BOROUGH OF )
JUNEAU, )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, First
Judicial District, Juneau, Philip M. Pallenberg, Judge.
Appearances: Paul H. Grant, Law Office of Paul H. Grant,
Juneau, for Appellants. John W. Hartle, City Attorney,
Juneau, for Appellee. Peter J. Maassen, Ingaldson, Maassen
& Fitzgerald, P.C., Anchorage, for Amicus Curiae American
Cancer Society Cancer Action Network.
Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen, and
Stowers, Justices.
FABE, Justice.
I. INTRODUCTION
The City and Borough of Juneau has an ordinance that prohibits smoking
in certain places. In March 2008 the City Assembly amended that ordinance to prohibit
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smoking in "private clubs" that offer food or alcoholic beverages for sale. The Fraternal
Order of Eagles, Juneau-Douglas Aerie 4200 and three of its members challenged the ban
on smoking in private clubs both on its face and as applied to their Aerie facility. The
Eagles argued that the prohibition on smoking in private clubs violates both their First
Amendment rights under the United States Constitution and their privacy rights under
the Alaska Constitution. We conclude that the ban on smoking in private clubs is a
regulation of conduct that does not implicate the freedom of association under the First
Amendment to the United States Constitution and that the ban on smoking in private
clubs does not violate the Eagles' right to privacy under article I, section 22 of the Alaska
Constitution. We therefore affirm the superior court's order granting the City and
Borough of Juneau's motion for summary judgment.
II. FACTS AND PROCEEDINGS
In October 2001 the City and Borough of Juneau (the City) adopted the first
version of its "Smoking in Public Places Code," City and Borough of Juneau Code
(CBJ) 36.60. The City Assembly found that "in order to protect the public health it is
necessary to control the amount of tobacco smoke in public places." The City Assembly
also included in its findings the conclusions of a 1992 report published by the United
States Environmental Protection Agency, titled Respiratory Health Effects of Passive
Smoking: Lung Cancer and Other Disorders, that outlined the dangers of second-hand
smoke, including increased risks for lung cancer and coronary heart disease among
nonsmokers, increased risk of death from lung cancer and coronary heart disease,
respiratory problems in children, and lower respiratory tract infections.
Since 2001 the City's anti-smoking ordinance has been amended several
times. Originally it exempted "enclosed areas used for conferences or meetings in
restaurants, service clubs, hotels, or motels while the spaces are in use for private
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functions" as well as "bars and bar restaurants." In 2004 it was amended to ban smoking
in "bar restaurants" effective January 2, 2005, and to ban smoking in "bars" effective
January 2, 2008. In 2007 it was amended to prohibit smoking and the use of smokeless
tobacco products at several public and private medical facilities, including the public
streets and sidewalks adjacent to those facilities.1 Later that year it was also amended to
prohibit smoking in bus passenger shelters.
But the ban on smoking in "bars" and "bar restaurants" did not include
private clubs until 2008, when a concern was raised that private clubs selling food or
alcohol had an unfair business advantage. In response the City Assembly directed the
City Attorney to prepare a new amendment to the ordinance that would "clearly prohibit
smoking in all places where either alcoholic beverages or food are offered for sale." In
March 2008 the City Assembly adopted the amendment to the ordinance now at issue in
this appeal. This amendment made several changes to the ordinance, including changing
the name from the "Smoking in Public Places Code" to the "Second-Hand Smoke
Control Code" and eliminating the exception for smoking in retail tobacco stores. The
amended ordinance broadened the definition of a "bar"; eliminated the exception to the
smoking ban for "private functions"; and specifically prohibited smoking in private clubs
that offer food or alcoholic beverages for sale, regardless of the number of employees.2
The Fraternal Order of Eagles, Juneau-Douglas Aerie 4200 is a private non-
profit charitable corporation organized under the laws of the State of Alaska. Aerie 4200
is a local chapter of the international organization known as the Fraternal Order of
1 The prohibitions on smokeless tobacco appear only in the provisions
regulating medical facilities and are not at issue in this appeal. CBJ 36.60.010(b) (2008).
2 For places of employment other than private clubs, the ordinance currently
contains an exception to the smoking ban if there are four or fewer employees, unless the
place of employment is an "enclosed public place." CBJ 36.60.030(a)(2) (2008).
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Eagles. Aerie 4200 has 262 full members, including both men and women, and 134
ladies auxiliary members. Members pay a $15 initiation fee and $35 in annual dues.
New members must be approved by a unanimous vote of the existing members. All
members must subscribe to the club rules. The club rules contain an expectation that
members will treat the Aerie facility as "an extension of the members' homes" and that
the members will have an expectation of privacy while in the facility.
Aerie 4200 holds a license to sell alcoholic beverages in the Aerie facility
and is thus subject to Title 4 of the Alaska Statutes, titled "Alcoholic Beverages." Alaska
Statute 04.16.010 requires that establishments licensed to sell alcohol, such as the Aerie
facility, be closed between 5:00 a.m. and 8:00 a.m. every day. Aerie 4200 employs four
part-time bartenders, in addition to a business manager who also serves as a bartender.
All five of these employees are members of Aerie 4200 and all five are smokers.3
Aerie 4200's activities are "intended to produce a financial base" from
which contributions to worthy causes are made. In 2007 Aerie 4200 contributed almost
$25,000 to various charities. Aerie 4200 has observed a decline in applications for new
membership and estimate that revenues from their Aerie facility have declined 25% since
the extension of the smoking ban to private clubs.
The Aerie facility is available only to members, auxiliary members, and
their guests. Guests must be signed into the guestbook and sponsored by a member who
is present. Each guest is permitted to visit three times before being expected to apply for
membership. These requirements are occasionally relaxed in situations such as
"providing assistance to people in distress or allowing prospective members to evaluate
the club." The Aerie facility is also opened up to the general public four times each year
3 According to an affidavit from the Grand Worthy President of Aerie 4200,
approximately 85% of Aerie 4200's members are smokers.
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for fundraising events, but no smoking is allowed in the facility during these events.
Except on these public occasions, smoking is allowed by a "House Rule" adopted
unanimously by Aerie 4200's membership in April 2008.
In July 2008 Aerie 4200 and three of its members (collectively, the Eagles)
filed suit against the City, alleging that the portion of the Second-Hand Smoke Control
Code that bans smoking in private clubs is unconstitutional both on its face and as
applied to Aerie 4200. Specifically, the Eagles claimed that the smoking ban infringed
upon their freedom of association under the First Amendment to the United States
Constitution and their privacy rights under article I, section 22 of the Alaska
Constitution.
Both the Eagles and the City agreed that the case could be resolved as a
matter of law on summary judgment. The superior court considered memoranda from
both parties as well as an amicus memorandum from the American Cancer Society.4 The
amicus memorandum addressed the legal issues presented but also provided more recent
factual information about the dangers of second-hand smoke, including various studies
detailing the positive public health effects of anti-smoking ordinances. On October 14,
2009, the superior court denied the Eagles' motion for summary judgment and granted
summary judgment to the City on both the federal association claim and the state privacy
4 The superior court granted the American Cancer Society's motion for leave
to participate as amicus curiae on December 22, 2008. The American Cancer Society
also submitted an amicus brief to this court.
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claim.5 The superior court entered final judgment on December 11, 2009. The Eagles
appeal.
III. STANDARD OF REVIEW
We review a grant of summary judgment de novo while drawing "all factual
inferences in favor of, and viewing the facts in the light most favorable to the non-
prevailing party."6 A grant of summary judgment will be affirmed "when there are no
genuine issues of material fact, and the prevailing party . . . was entitled to judgment as
a matter of law."7 Here, the parties agreed that the case could be decided on summary
judgment and do not contend that there are material facts in dispute. We apply our
independent judgment to questions of constitutional law8 and will "adopt the rule of law
that is most persuasive in light of precedent, reason, and policy."9
Article X, section 11 of the Alaska Constitution provides home rule
municipalities with broad powers: "A home rule borough or city may exercise all
5 The Eagles also raised several other claims in their complaint, including that
their right to association under the Alaska Constitution was violated, that the anti-
smoking ordinance was preempted by a comprehensive state scheme for regulating
alcohol and tobacco, and that the Juneau police have unlawfully intruded into the Aerie
facility when seeking to enforce the ban on smoking. In its decision on summary
judgment, the superior court requested that the Eagles file a status report indicating
whether they were choosing to proceed with these remaining claims. The Eagles filed
a Notice Regarding Additional Claims on November 20, 2009, advising the court that
they did not intend to pursue these claims.
6 Rockstad v. Erikson, 113 P.3d 1215, 1219 (Alaska 2005).
7 Id.
8 State, Dep't of Health & Soc. Servs. v. Planned Parenthood of Alaska, Inc.,
28 P.3d 904, 908 (Alaska 2001).
9 Alaskans for Efficient Gov't, Inc. v. State, 153 P.3d 296, 298 (Alaska 2007)
(quoting Sonneman v. State, 969 P.2d 632, 636 (Alaska 1998)).
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legislative powers not prohibited by law or by charter." The Alaska Constitution also
requires that "[a] liberal construction shall be given to the powers of local government
units."10 We have made clear that "[a] duly enacted law or rule, including a municipal
ordinance, is presumed to be constitutional"11 and that "[c]ourts should construe
enactments to avoid a finding of unconstitutionality to the extent possible."12
IV. DISCUSSION
A. The Ban On Smoking In Private Clubs Is A Regulation Of Conduct
That Does Not Implicate The Eagles' Freedom Of Association Under
The First Amendment To The United States Constitution.
"The right to associate is a fundamental right protected by the First
Amendment and the due process clause of the Fourteenth Amendment."13 The United
States Supreme Court has recognized that individuals have a First Amendment right to
associate in two situations: (1) "intimate association," when individuals "enter into and
maintain certain intimate human relationships," and (2) "expressive association," when
individuals "associate for the purpose of engaging in those activities protected by the
First Amendment - speech, assembly, petition for the redress of grievances, and the
exercise of religion."14
For the Eagles to prevail on their challenge to the City's ban on smoking
in private clubs they "must demonstrate that the ordinance infringes on one of these two
10 Alaska Const. art. X, § 1.
11 Treacy v. Municipality of Anchorage, 91 P.3d 252, 260 (Alaska 2004).
12 Id.
13 In re Mendel, 897 P.2d 68, 76 (Alaska 1995) (citingNAACP v. Alabama ex
rel. Patterson, 357 U.S. 449, 460 (1958)).
14 Roberts v. U.S. Jaycees, 468 U.S. 609, 617-18 (1984).
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protected areas of association."15 The Eagles focus their arguments on the "intimate
association" prong.16 The Eagles argue that (1) the "specific and unique characteristics"
of their group and the Aerie facility, such as its small membership and restrictive policies
for admitting guests and new members, make the relationships among their members the
type of intimate association protected under the First Amendment; and (2) because
approximately 85% of their members are smokers, prohibiting smoking in the Aerie
facility unduly interferes with those relationships by essentially "telling members to 'go
elsewhere.' "
To support this argument the Eagles point to the United States Supreme
Court decision in Roberts v. United States Jaycees, which held that state human rights
legislation requiring the Jaycees to admit women did not abridge the male members'
freedom of association.17 In Roberts, the Court noted that "choices to enter into and
maintain certain intimate human relationships must be secured against undue intrusion
by the State" because such relationships are "a fundamental element of personal
liberty."18 In order to enjoy this protection, however, a relationship must be "highly
15 Taverns For Tots, Inc. v. City of Toledo, 341 F. Supp. 2d 844, 849 (N.D.
Ohio 2004).
16 While the Eagles maintain that their exercise of expressive (as opposed to
intimate) association rights has been "hampered by the ordinance because members have
been made to feel unwelcome and have been discouraged from attendance," they admit
that "all evidence on this point is anecdotal" and that "any attempt to conclusively link
the ordinance with a chilling of [the Eagles'] expressive associational rights is difficult
at best."
17 468 U.S. 609 (1984).
18 Id. at 617-18.
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personal."19 Noting that family bonds are the clearest example of such highly personal
relationships, the Court explained that relationships "distinguished by such attributes as
relative smallness, a high degree of selectivity in decisions to begin and maintain the
affiliation, and seclusion from others in critical aspects of the relationship" will trigger
the protections of the First Amendment.20 Therefore, "[d]etermining the limits of state
authority over an individual's freedom to enter into a particular association . . .
unavoidably entails a careful assessment of where that relationship's objective
characteristics locate it on a spectrum from the most intimate to the most attenuated of
personal attachments."21 The Eagles argue that this language requires us to first
determine whether Aerie 4200 consists of the type of intimate relationships protected
under the freedom to associate.
The City counters that the ordinance does not implicate the freedom of
association because it "does not regulate who may associate with whom" but instead only
"regulates certain conduct in certain places." (Emphasis in original.) The superior court
also emphasized the distinction between the cases cited by the Eagles, includingRoberts,
which involve "the regulation of the membership of private clubs," and regulations that
only pertain to "the conduct of members." (Emphasis in original.) As the superior court
explained, cases involving the regulation of membership have a direct impact on
individuals' choice of whom to associate with, while this case concerns "what people can
choose to do while associating." Because of this conclusion, the superior court did not
19 Id. at 618.
20 Id. at 619-20.
21 Id. at 620.
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reach the question whether Aerie 4200 consists of intimate relationships possessing the
"distinctive characteristics"22 that would afford heightened constitutional protection.
Numerous state and federal courts have reached similar conclusions when
considering First Amendment challenges to ordinances that restrict smoking. As the
Washington Supreme Court noted: "Other courts have universally rejected challenges to
smoking bans on the grounds they interfere with freedom of association."23
The first group of these cases considered ordinances banning smoking in
places of public accommodation such as restaurants or bars. In NYC C.L.A.S.H., Inc. v.
City of New York, the federal district court rejected the "expressive association" argument
that state and city laws prohibiting smoking in bars and restaurants interfered with the
rights of smokers to associate while exercising their First Amendment rights.24 In
C.L.A.S.H., a smokers'-rights organization argued that "to bar the act of smoking in all
privately owned places that are open to the public deprives smokers of a necessary venue
for conducting their private social lives."25 The federal district court concluded that
"[w]hile the Smoking Bans restrict where a person may smoke, it is a far cry to allege
that such restrictions unduly interfere with smokers' right to associate freely with
whomever they choose" and that "[n]othing in the Constitution engrafts upon First
22 See id. at 621.
23 Am. Legion Post #149 v. Washington State Dep't of Health, 192 P.3d 306,
323 (Wash. 2008); see, e.g.,Players, Inc. v. City of New York, 371 F. Supp. 2d 522, 544-
45 (S.D.N.Y. 2005); Taverns for Tots, Inc. v. City of Toledo, 341 F. Supp. 2d 844, 849-53
(N.D. Ohio 2004); City of Tucson v. Grezaffi, 23 P.3d 675, 681 (Ariz. App. 2001); Am.
Lithuanian Naturalization Club v. Board of Health of Athol, 844 N.E.2d 231, 242 (Mass.
2006).
24 315 F. Supp. 2d 461, 472-76 (S.D.N.Y. 2004).
25 Id. at 473 (citation omitted).
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Amendment protections any other collateral social interaction, whether eating, drinking,
dancing, gambling, fighting, or smoking."26 As the C.L.A.S.H. court noted, the effect of
this " 'association PLUS' theory would be to embellish the First Amendment with extra-
constitutional protection for any ancillary practice adherents may seek to entwine around
fundamental freedoms, as a consequence of which the government's power to regulate
socially or physically harmful activities may be unduly curtailed."27
In Taverns for Tots v. City of Toledo, a federal district court in Ohio
similarly found that an ordinance prohibiting smoking in bars and restaurants, "no matter
how applied, cannot infringe on the right of expressive association."28 That court quoted
the opinion in NYC C.L.A.S.H. and further explained that the ordinance "do[es] not
interfere with the ability of members [of Taverns for Tots] to get together for any lawful
purpose, including the exercise of expressive activity . . . . The ordinance only prevents
smoking in public places."29
Several other decisions, both at the federal and state level, have addressed
the direct question whether an ordinance prohibiting smoking in private clubs
unconstitutionally interferes with intimate associational rights. In Players, Inc. v. City
of New York, the federal district court for the Southern District of New York again ruled
that New York City's smoking ban was constitutional, even when it banned smoking in
26 Id. at 473-74.
27 Id. at 474.
28 341 F. Supp. 2d at 852.
29 Id. at 851. The federal district court in Taverns for Tots also rejected the
plaintiff's intimate association claim, but on the basis that the purpose of Taverns for
Tots was to evade the anti-smoking ordinance and that such an organization "is not the
kind of intimate associational activity that either enjoys or deserves protection under the
First Amendment." Id. at 850.
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a private club "with a long and storied past."30 The court rejected the club's argument
under the intimate association prong, writing:
[E]ven if Players had not waived the opportunity to present
facts in support of its claim to the right of intimate
association . . . the Court finds that the Club could not
demonstrate that any such right was infringed by the Smoking
Bans. Players does not cite to, and the Court cannot locate,
any provision of the Smoking Bans or their regulatory
schemes that purports to regulate members, or interaction
among members, in any clubs covered by the statutes.
Smokers' ability to join Players is completely unaffected by
the Smoking Bans. At worst, interaction among members
could be affected by the laws only incidentally.[31]
With regard to Players' expressive associational rights, the court cited NYC C.L.A.S.H.
to again reject the club's First Amendment argument.32
State courts have also upheld anti-smoking ordinances, even when applied
to private clubs. In American Lithuanian Naturalization Club v. Board of Health of
Athol, the Supreme Judicial Court of Massachusetts upheld a challenge to a smoking ban
that prohibited smoking in all enclosed areas of local private clubs.33 The court rejected
the intimate association argument advanced by three private clubs that their members
would no longer socialize at their facilities if smoking was banned, holding that there was
30 371 F. Supp. 2d 522, 525 (S.D.N.Y. 2005).
31 Id. at 545.
32 Id. at 545-46.
33 844 N.E.2d 231 (Mass. 2006).
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"no showing that enforcement of the town regulation will infringe the members' right to
maintain relationships with each other."34
In the closest factual analogy to this case, American Legion Post #149 v.
Washington State Department of Health, the Washington Supreme Court considered a
challenge to a statute and ordinance prohibiting smoking in any place of employment.35
Although the Washington Supreme Court considered the relevant factors and determined
that American Legion Post #149 was not an intimate association because of its large
membership, the court indicated that there would be no violation of the group's rights
even if it had been deemed an intimate association: "Even if the Post were deemed to
facilitate intimate human relationships, the ban does not directly interfere with such
relationships or a person's ability to join the Post. Instead, it merely prohibits smoking
in the Post's building when employees are present."36
We agree with these other courts that an ordinance banning smoking in
private clubs does not implicate the right to intimate association under the First
Amendment. Even assuming the Eagles' relationships are of the highly personal type
that receive heightened constitutional protection, the ordinance does not regulate or
interfere with the members' "choices to enter into and maintain"37 those relationships.
The ordinance does not regulate the membership of Aerie 4200 or who may associate
with whom; it only regulates the conduct of members in certain places.
34 Id. at 242.
35 192 P.3d 306 (Wash. 2008).
36 Id. at 323.
37 Roberts v. U.S. Jaycees, 468 U.S. 609, 617 (1984).
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The Eagles argue that the ordinance unduly interferes with "how, when, and
where club members choose to partake of their intimate associations." The Eagles
essentially urge us (1) to adopt the "association plus" theory in spite of the uniform
decisions of other courts and (2) to hold that "the right of intimate association includes
a right to engage in any lawful activities the participants may choose." But the First
Amendment protects the ability to choose one's intimate associates freely, not the ability
to engage in any conduct in any place so long as one is interacting with his or her
intimate associates. As Judge Pallenberg persuasively explained:
One could not seriously argue that application of other
penal laws, such as the laws against drug possession, theft,
sexual contact with minors, or prostitution, to the conduct of
members within the confines of a private club infringes upon
the members' freedom of association. All such laws regulate
the actions of the members, not their choice of the people
with whom they associate. In terms of its impact on freedom
of association, regulation of smoking as an activity is not
different in kind from regulation of these other activities. . . .
People are free to join the Eagles or not; they are just
prohibited from smoking inside the club.
Because the smoking ban regulates only conduct, we hold that it does not implicate the
freedom of association protected by the First Amendment to the United States
Constitution. We do not reach the question whether Aerie 4200 consists of the highly
personal relationships that receive heightened protection under the right to intimate
association.
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B. The Ban On Smoking In Private Clubs Does Not Violate The Eagles'
Right To Privacy Under Article I, Section 22 Of The Alaska
Constitution.
Article I, section 22 of the Alaska Constitution states that "the right of the
people to privacy is recognized and shall not be infringed." We have held that this
explicit guarantee of privacy provides Alaskan citizens with greater protection than the
federal constitution.38 But although we have recognized a strong right to personal
autonomy and privacy under the Alaska Constitution, we have also clearly stated that
"the rights to privacy and liberty are neither absolute nor comprehensive . . . their limits
depend on a balance of interests" that will vary depending on the importance of the rights
infringed.39 When the state interferes with a fundamental aspect of the right to privacy,
the government must demonstrate a "compelling governmental interest and the absence
of a less restrictive means to advance that interest."40 For interference with a non-
fundamental aspect of privacy, "the state must show a legitimate interest and a close and
substantial relationship between its interest and its chosen means of advancing that
interest."41 Thus, to determine whether the Eagles' right to privacy has been violated, we
must first evaluate the nature of the Eagles' rights, if any, that are abridged by the ban
on smoking in private clubs, and then consider whether that abridgement is justified.42
38 Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138, 150 (Alaska
1977).
39 Sampson v. State, 31 P.3d 88, 91 (Alaska 2001).
40 Id.; see State v. Erikson, 574 P.2d 1, 11-12 (Alaska 1978); Ravin v. State,
537 P.2d 494, 497-98 (Alaska 1975).
41 Sampson, 31 P.3d at 91.
42 See Harrison v. State, 687 P.2d 332, 337 (Alaska App. 1984).
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We have held that two categories of privacy rights are fundamental: those
concerning personal autonomy and those protecting a distinctive situs - the home.43 We
have recognized that there is some overlap between these two areas because "the right
to privacy in the home is directly linked to a notion of individual autonomy."44 In this
case, the Eagles ask us to hold that there is a fundamental privacy right "to ingest a legal
substance - tobacco - in a private club facility." The Eagles argue that the Aerie
facility serves as an extension of the members' homes and that the ingestion of tobacco
within the Aerie facility should be protected under our decision in Ravin v. State, which
held that the right to privacy protects the possession by adults of small quantities of
marijuana in the home for personal use.45 The City counters that smoking is not a
fundamental right of personal autonomy and that the Aerie facility should not receive the
same special protection as the home. The superior court found that the regulation of
smoking does not "implicate the fundamental right of personal autonomy" and that the
Aerie facility is not the equivalent of a home.
1. Smoking tobacco is not a fundamental right of personal
autonomy.
We agree with the superior court that, standing alone, smoking tobacco is
not a fundamental right of personal autonomy. This conclusion flows directly from our
previous cases. Our decision in Ravin was firmly rooted in the constitutional protection
for privacy in the home, and specifically held that "there is no fundamental right, either
43 See Sampson, 31 P.3d at 93-94 (describing the holdings in several personal
autonomy cases and in Ravin).
44 Id. at 94 (citing Ravin, 537 P.2d at 503-04).
45 537 P.2d at 504.
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under the Alaska or federal constitutions, either to possess or ingest marijuana."46
Similarly, in State v. Erickson, we rejected the argument that the right to privacy
protected the use of cocaine within the home and held that "the defendants' particular
rights to privacy and autonomy involved cannot be read so as to make the ingestion, sale
or possession of cocaine a fundamental right."47
Aerie 4200 argues that these holdings in Ravin and Erickson are
distinguishable because tobacco, unlike marijuana or cocaine, is a legal substance. The
court of appeals addressed a similar argument in Harrison v. State, which upheld the
constitutionality of Alaska's local option law, and concluded that "there is no
fundamental right to possess or consume alcohol."48 We agree with this conclusion of
the court of appeals in Harrison and conclude that it applies here as well. There is not
a fundamental right of personal autonomy under the Alaska Constitution to ingest
tobacco.
2. The ban on smoking in private clubs does not violate the
fundamental right to privacy in the home.
In Ravin, however, we recognized that we could not dispose of Ravin's
privacy claims simply by holding that there was no constitutional right to possess or
smoke marijuana.49 We thus conducted "a more detailed examination of the right to
privacy and the relevancy of where the right is exercised."50 This examination led us to
46 Id. at 502.
47 574 P.2d 1, 12 (Alaska 1978).
48 687 P.2d 332, 338 (Alaska App. 1984).
49 Ravin, 537 P.2d at 502.
50 Id.
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conclude that because of the distinctive nature and importance of the home, Alaskans
have a fundamental "right to privacy in their homes."51 We concluded that this
fundamental right to privacy in the home encompassed "the possession and ingestion of
substances such as marijuana," subject to two important limitations: First, the use or
possession must be limited to "a purely personal, non-commercial context in the home";
and second, the right "must yield when it interferes in a serious manner with the health,
safety, rights and privileges of others or with the public welfare."52
The Eagles urge us to extend this reasoning to the ingestion of tobacco
within their Aerie facility. We decline to do so because the Aerie facility is not a home
and because smoking tobacco within the Aerie facility does not occur in "a purely
personal, non-commercial context."
Our decision in Ravin does not invalidate the ordinance at issue here
because a private club is not a home. The Eagles argue that "Ravin does not set up a
dichotomy between 'homes' and 'everywhere else' " but instead recognizes a spectrum
of location-based privacy rights, with possession or ingestion within a private home at
one end.53 Our conclusion in Ravin, however, made clear that the right to possess and
ingest certain substances encompassed by the right to privacy was strictly limited to a
51 Id. at 504.
52 Id.
53 See Ravin, 537 P.2d at 502-03.
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"purely personal, non-commercial context in the home."54 It is the "distinctive nature"
of an individual's home that we have recognized as deserving of special protection.55
For this reason, the Eagles' arguments that the Aerie facility is "an
extension" of the members' homes and "has many attributes of a home" are not
persuasive. A home is a private residence. Private clubs, including the Aerie facility, are
not homes. The Aerie facility is owned by a non-profit corporation organized under the
laws of Alaska; it sells liquor and holds a liquor license that subjects it to the State of
Alaska's comprehensive regulations for the sale of alcohol; and it employs five people,
including a designated business manager.
Furthermore, when members of Aerie 4200 smoke tobacco in the Aerie
facility, they are not ingesting that substance in a "purely personal, non-commercial
context."56 Aerie 4200 could choose not to sell alcohol in the Aerie facility. But
Aerie 4200 functions as both a social club and a commercial enterprise that conducts
activities "intended to produce a financial base." The fact that Aerie 4200 uses its
revenue to support charitable causes does not change the commercial nature of its Aerie
facility. Because the Aerie facility is not a home and operates in a commercial context,
it does not fall under the privacy protections established in Ravin.
3. The ban on smoking in private clubs bears a close and
substantial relationship to the legitimate state purpose of
protecting the public health.
Because the ban on smoking in private clubs does not implicate a
fundamental aspect of the right to privacy, we do not evaluate the ban under strict
54 Id. at 504 (emphasis added).
55 Id. at 503.
56 Id. at 504.
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scrutiny. Instead, we apply the less stringent test of whether the City has demonstrated
a legitimate interest in protecting the public health and welfare and a close and
substantial relationship between that interest and the ban on smoking in private clubs.57
The superior court found that "[t]he toll of death and injury caused by
consumption of tobacco is not subject to serious dispute," and the amicus brief filed by
the American Cancer Society discusses in detail the "harmful effects of exposure to
second-hand smoke and the beneficial impact of smoke-free legislation." The Eagles do
not dispute these health claims and concede that there is a legitimate state interest in
enacting "a broad smoking ban in places where the public may be found, such as bars and
restaurants."
The Eagles argue, however, that there is not a close and substantial
relationship between protecting the public from the harmful effects of tobacco smoke and
banning smoking in their private club. The Eagles emphasize that their club rule
allowing smoking was adopted by a unanimous vote; that 85% of Aerie 4200's members,
including all five of its employees, are smokers; and that the Aerie facility does not allow
smoking when it opens to the general public a few times each year. From the perspective
of the Eagles, this demonstrates that the ban on smoking in private clubs has no
relationship to the welfare of the "general public," let alone a close and substantial one,
but instead applies only to "private and consenting adults." The Eagles essentially claim
that they have the right to engage in conduct which harms only themselves.
We rejected a similar argument in Sampson v. State, which held that the
right to privacy does not include a right to physician-assisted suicide.58 In Sampson, we
57 See Sampson v. State, 31 P.3d 88, 91 (Alaska 2001).
58 31 P.3d 88.
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explained that our cases do not support the argument "that the government may not
abridge any aspect of personal privacy unless it involves conduct posing a threat of harm
to another."59 Our decision in Sampson also rejected the argument that the state cannot
regulate conduct that poses a threat of harm to others if the potential victims consent to
the harm.60 The Supreme Judicial Court of Massachusetts rejected a similar argument
in American Lithuanian Naturalization Club v. Board of Health of Athol, holding that
there was a rational connection between the state's interest in public health and the ban
on smoking in private clubs, particularly given the exposure of non-smoking club
members to second-hand smoke.61
All of Aerie 4200's members, including the smokers and the non-smokers,
are harmed by exposure to second-hand smoke in the enclosed space of the Aerie facility.
Their consent does not change the analysis of the City's interest in protecting their health.
As the superior court observed:
It is not enough to say that the persons exposed to
second-hand smoke have chosen to be in the Eagles Aerie
Home. If it were, then no anti-smoking ordinance could be
upheld as long as other persons present were there
voluntarily. If a workplace, or a bar, or a restaurant is posted
as a smoking zone, then everyone present has chosen to be
there knowing there is smoke.
The City has a legitimate interest in protecting the public, non-smokers and
smokers alike, from the well-established dangers of second-hand tobacco smoke.
59 Id. at 95; see also State v. Erickson, 574 P.2d 1, 21 (1978) ("No one has an
absolute right to do things in the privacy of his own home which will affect himself or
others adversely.") (emphasis added).
60 Sampson, 31 P.3d at 95 (finding that "a physician who assists in a suicide
undeniably causes harm to others" even with the patient's consent).
61 See 844 N.E.2d 231, 238-39 (Mass. 2006).
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Aerie 4200 has elected to obtain a state-regulated liquor license and sell alcoholic
beverages in its Aerie facility. Establishments that offer alcoholic beverages for sale are
likely to be places where members of the public frequently gather. Therefore, the City's
decision to ban smoking in any enclosed place that offers food or alcohol for sale,
including private clubs, bears a close and substantial relationship to the public health.
V. CONCLUSION
For the foregoing reasons, we AFFIRM the superior court's order granting
summary judgment to the City and Borough of Juneau.
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