Alaska MMJ cases

PRIOR HISTORY: [**1] Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Niesje J. Steinkruger, Judge. Superior Court No. 4FA-98-982 CI.

This Opinion Substituted on Rehearing for Withdrawn Opinion of November 24, 2000, Previously Reported at: 2000 Alas. LEXIS 111.


DISPOSITION: AFFIRMED.


CASE SUMMARY

PROCEDURAL POSTURE: Plaintiff sought review of the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, decision granting summary judgment in defendants' favor, claiming a medical marijuana law, Alaska Stat. § 17.37.010, was unconstitutional because it violated privacy rights.

OVERVIEW: Alaska voters approved a medical marijuana initiative, which was codified as Alaska Stat. § 17.37.010. The law allowed Alaskans with debilitating conditions to use marijuana for medical purposes upon a physician's certification. To ensure compliance with its provisions, the law required users to register with the Department of Health and Social Services; the department then issued identification cards and maintained a registry of authorized users. Subsequently, plaintiff filed a complaint, claiming the measure violated privacy rights by requiring registration. The trial court granted defendants' motion for summary judgment, declaring the law constitutional. The court affirmed. The registry required disclosure of sensitive information and identified a person as suffering from a debilitating medical condition and as being a marijuana user. However, the law did not require users to divulge any details about their debilitating conditions. It explicitly required the department to keep the registry confidential. It was closed to public access. Only authorized public officials could use it and their use was confined to narrowly specified purposes.

OUTCOME: Judgment affirmed because the statute did not violate privacy rights where it required the department to keep the registry confidential, only authorized public officials could use it, and their use was confined to narrowly specified purposes.


CORE TERMS: marijuana, registry, patient, privacy, disclosure, confidential, right to privacy, debilitating, user, initiative, doctor, constitutional violations, public disclosure, prescription, privacy rights, medical condition, ballot measure, controlled substances, card, medical treatment, privacy interest, conflict of interest, confidentiality, registration, stigmatizing, declaring, personnel, discovery, infringe, invasion

LexisNexis® Headnotes Hide Headnotes


Constitutional Law > Substantive Due Process > Privacy > General Overview
HN1Go to the description of this Headnote. See Alaska Const. art. I, § 22.


Constitutional Law > Substantive Due Process > Privacy > General Overview
Environmental Law > Zoning & Land Use > Constitutional Limits
Healthcare Law > Business Administration & Organization > Patient Confidentiality > General Overview
HN2Go to the description of this Headnote. Certain types of information communicated in the context of the physician-patient relationship fall within a constitutionally-protected zone of privacy.


Constitutional Law > Substantive Due Process > Privacy > Personal Information
Healthcare Law > Treatment > General Overview
HN3Go to the description of this Headnote. A drug-use registry can threaten two facets of constitutional privacy: the right to avoid public disclosure of personal matters and the right to privacy in consulting a physician and making medical treatment choices.


Governments > Local Governments > Duties & Powers
Healthcare Law > Business Administration & Organization > Patient Confidentiality > General Overview
HN4Go to the description of this Headnote. See Alaska Stat. § 17.37.010.


Healthcare Law > Treatment > General Overview
HN5Go to the description of this Headnote. See Alaska Stat. § 17.37.070(4).


Healthcare Law > Business Administration & Organization > Patient Confidentiality > General Overview
HN6Go to the description of this Headnote. When applicable rules or regulations insure that potentially stigmatizing information will be available only to authorized personnel in the context of a valid governmental program, no constitutional violation has occurred.


Healthcare Law > Treatment > General Overview
HN7Go to the description of this Headnote. Alaska Stat. § 17.37.010 does not fix dosage limits, nor does it require that patients have a prescription. As long as a patient submits a letter from a physician certifying that the patient may benefit from marijuana, the decision to use marijuana as a medical treatment is left entirely to the individual.


COUNSEL: Charles H. Rollins, Jr., pro se, North Pole. Dean J. Guaneli, Chief Assistant Attorney General, and Bruce M. Botelho, Attorney General, Juneau, for Appellees.

Fran Ulmer and Sandra Stout. Douglas Pope, Pope & Katcher, Anchorage, for Appellees Jim Kentch and Alaskans for Medical Rights.

JUDGES: Before: Matthews, Chief Justice, Eastaugh, Fabe, Bryner, and Carpeneti, Justices.

OPINION BY: BRYNER

OPINION

[*750] BRYNER, Justice.
I. INTRODUCTION

Charles Rollins challenges Alaska's medical marijuana law, contending that its registration requirements violate the constitutional right to privacy. Because the law bars public access to the medical marijuana registry and limits state [**2] use to legitimate purposes, we reject Rollins's privacy arguments and affirm the superior court's decision declaring the law constitutional.
II. FACTS AND PROCEEDINGS

In 1998 Alaska voters approved a "medical marijuana" initiative. Sponsored by Alaskans for Medical Rights, the initiative passed as Ballot Measure 8 and was codified as AS 17.37.010. The law allows Alaskans with debilitating conditions to use marijuana for medical purposes upon a physician's certification that the use might be beneficial. 1 To ensure compliance with its provisions, the law requires medical marijuana users to register with the Department of Health and Social Services; the department then issues identification cards and maintains a registry of authorized users. 2

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1 AS 17.37.010.2 See id.

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Shortly after Alaskans for Medical Rights submitted Ballot Measure 8 to the Division of Elections, Charles Rollins filed a complaint in superior court raising procedural claims to [*751] bar the division from [**3] certifying the measure and asserting that the initiative violated constitutional privacy and equal protection rights. Rollins later amended his complaint to challenge the initiative based on constitutional violations of article XI, sections 1 and 7, which concern procedures for and restrictions on the initiative and referendum process. Alaskans for Medical Rights intervened in support of the measure.

After the election, Rollins withdrew his procedural claims, opting to pursue only his complaint that the measure violated privacy rights. The state, joined by Alaskans for Medical Rights, moved for summary judgment. Rollins filed a cross-motion for partial summary judgment. The superior court granted summary judgment to the state, declaring the medical marijuana law constitutional. Rollins appeals.
III. DISCUSSION

On appeal, Rollins renews his claim that the medical marijuana law's registration requirements infringe the constitutional right to privacy. 3 We find guidance on this point in Falcon v. Alaska Public Offices Commission, 4 and in a United States Supreme Court decision discussed by Falcon, Whalen v. Roe. 5

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3 HN1Go to this Headnote in the case.-

Alaska Constitution, article I, section 22, provides: "The right of the people to privacy is recognized and shall not be infringed. The legislature shall implement this section."
[**4] 4 570 P.2d 469 (Alaska 1977).5 429 U.S. 589, 97 S. Ct. 869, 51 L. Ed. 2d 64 (1977).

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In Falcon, an Alaska physician challenged the constitutionality of a newly adopted conflict of interest statute that required him to disclose the names of his patients in order to serve on the school board. To determine whether Alaska's statute violated his constitutional right to privacy, we turned to the Supreme Court's decision in Whalen.

Whalen addressed the constitutionality of a statute requiring New York physicians to submit to the state health department the names and addresses of all persons receiving prescriptions for certain "Schedule II" drugs -- including opium, cocaine, methadone, amphetamines, and methaqualone -- for which there are both lawful and unlawful markets. 6 The physicians and patients challenging the statute argued that it violated constitutionally protected privacy rights by requiring disclosure of personal matters and by interfering with individual freedom to make important treatment decisions. 7 They argued that disclosure of information about [**5] the prescription and use of drugs like cocaine and opium might make some patients "reluctant to use, and some doctors reluctant to prescribe, such drugs even where their use is medically indicated." 8

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6 See 429 U.S. 589 at 591-93 & n.8.7 See 429 U.S. 589 at 595, 598-600.8 Id. at 600.

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Rejecting this risk as insufficient to establish a constitutional violation, the Court in Whalen emphasized that the New York statute made information collected by the health department confidential and prohibited from public disclosure. 9 Noting that involuntary public disclosure could occur only if health department employees violated the law by failing to maintain proper security or if a patient or doctor were formally accused in a judicial proceeding, the Court concluded that neither outcome invalidated the statute. 10 The Court found no evidence to support the physicians' and patients' fears that department employees might violate the [**6] statute's confidentiality provisions; moreover, in the Court's view, "the remote possibility that judicial supervision of the evidentiary use of particular items of stored information will provide inadequate protection against unwarranted disclosures is surely not a sufficient reason for invalidating the entire patient-identification program." 11

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9 See 429 U.S. 589 at 593-94 & n.12.10 See 429 U.S. 589 at 600-01. The Court also noted that a doctor, pharmacist, or patient may voluntarily reveal the information on a prescription form. See id. at 600.11 429 U.S. at 601-02 & n.27.

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In Falcon, we read Whalen's privacy analysis "as a recognition that where applicable [*752] rules or regulations insure that [potentially stigmatizing personal] information will be available only to authorized personnel in the context of a valid governmental program, no constitutional violation has occurred." 12 Applying this analysis, we observed [**7] that, although disclosing a person's doctor visits ordinarily does not infringe a significant privacy interest, the disclosure may reveal the nature of the patient's ailment. 13 In these situations, we held, "the individual's privacy interest in protecting sensitive personal information from public disclosure" outweighs the government's interest in compelling full public disclosure to prevent political conflicts of interest. 14 Because Alaska's law made all conflict of interest disclosures available to the public and allowed no exemption for physicians or patients with sensitive information, we concluded that the law posed a threat to protected privacy rights. 15 To prevent invasion of these rights, we enjoined the Alaska Public Offices Commission from applying the law to physician-patient situations until it adopted appropriate curative regulations. 16

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12 Falcon, 570 P.2d 469 at 479.13 See 570 P.2d at 479-80.14 Id. at 480.15 See id.16 See id.

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[**8] Whalen and Falcon frame our present analysis. Falcon acknowledges that "HN2Go to this Headnote in the case.certain types of information communicated in the context of the physician-patient relationship fall within a constitutionally-protected zone of privacy." 17 And Whalen specifically recognizes that HN3Go to this Headnote in the case.a drug-use registry like the one at issue here can threaten two facets of constitutional privacy: the right to avoid public disclosure of personal matters and the right to privacy in consulting a physician and making medical treatment choices. 18 Rollins contends that the Alaska medical marijuana law's registry infringes both privacy interests. 19 But in fact it violates neither.

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17 Id. at 478 & nn. 36-37 (citing Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973); Doe v. Bolton, 410 U.S. 179, 35 L. Ed. 2d 201, 93 S. Ct. 739 (1973); Griswold v. Connecticut, 381 U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965); Ravin v. State, 537 P.2d 494, 515 (Alaska 1975) (Boochever, J. and Connor, J., concurring)). [**9] 18 Whalen, 429 U.S. 589 at 599-600, 51 L. Ed. 2d 64, 97 S. Ct. 869.19 Citing Ravin v. State, 537 P.2d 494 (Alaska 1975), Rollins also suggests that the medical marijuana law violates a third aspect of constitutional privacy: the right to personally possess and use marijuana. But Ravin ultimately established that although the privacy clause in the Alaska constitution guarantees Alaskans a basic right to privacy in their homes, the clause does not guarantee a right to use marijuana. Ravin, 537 P.2d at 504. See also Cleland v. State, 759 P.2d 553, 557 (Alaska App. 1998) (stating that "the sanctity of the home [is] protected by the privacy clause, not the use of marijuana"). Because the medical marijuana law regulates possession and use of marijuana outside the sanctity of the home, and because the state unquestionably has broad power to regulate the administration of drugs for medical purposes, Whalen, 429 U.S. 589 at 603 n.30, 51 L. Ed. 2d 64, 97 S. Ct. 869, Ravin is inapposite to the case at hand.

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It can hardly be disputed that the medical marijuana [**10] registry requires disclosure of sensitive information: mere presence in the registry identifies a person as suffering from a "debilitating medical condition" and as being a marijuana user. We agree with Rollins that the general publication of this information could be stigmatizing and invasive of the right to privacy. 20 But the law's drafters anticipated this concern and fully addressed it. The medical marijuana law does not require medical marijuana users to divulge any details about the debilitating conditions they suffer. 21 And although it does require them to register and to identify their approving physicians, the law explicitly requires the department to keep the registry confidential: [*753] the registry is closed to public access; only authorized public officials may use it; and even they must confine their use to narrowly specified purposes. The statute provides:

HN4Go to this Headnote in the case.(a) . . . The registry and the information contained within it are not a public record under AS 09.25.100 -- 09.25.220. Peace officers and authorized employees of state or municipal law enforcement agencies shall be granted access to the information contained within the department's confidential registry [**11] only

(1) for the purpose of verifying that an individual who has presented a registry identification card to a state or municipal law enforcement official is lawfully in possession of such card; or

(2) for the purpose of determining that an individual who claims to be lawfully engaged in the medical use of marijuana is registered or listed with the department or is considered to be registered or listed under (g) of this section.

(b) Except as provided in (a) of this section, a person, other than authorized employees of the department in the course of their official duties, may not be permitted to gain access to names of patients, physicians, primary or alternate caregivers, or any information related to such persons maintained in connection with the department's confidential registry. 22

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20 See 21 U.S.C. § 812 (providing schedules of controlled substances); AS 11.71.050 & .060 (describing the misdemeanor of misconduct involving controlled substances).HN5Go to this Headnote in the case.21 AS 17.37.070(4) defines "debilitating medical condition" to mean any of a number of serious ailments, including cancer, glaucoma, positive status for human immunodeficiency virus, or acquired immune deficiency syndrome, or any other chronic or debilitating disease that requires treatment for severe pain, severe nausea, seizures, muscle spasms, or any other medical condition approved by the department by regulation or petition. [**12] 22 AS 17.37.010.

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Falcon specifies that HN6Go to this Headnote in the case.when "applicable rules or regulations insure that [potentially stigmatizing] information will be available only to authorized personnel in the context of a valid governmental program, no constitutional violation has occurred." 23 The medical marijuana law's confidentiality provisions meet these specifications.

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23 Falcon, 570 P.2d 469 at 479.

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Rollins nonetheless complains that one has no guarantee that the government will comply with the law's confidentiality requirements. He offers hypothetical scenarios in which privacy rights might be violated -- the state's computer system might not be secure; or federal prosecutors might demand access to registry information in order to prosecute medical marijuana users under federal law. But like the appellants in Whalen, Rollins provides no evidence to substantiate his fear that the confidential registry [**13] might be mishandled. 24 We thus hold, as the Court held in Whalen, that these unsubstantiated fears provide no basis for declaring the law invalid.

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24 See Whalen, 429 U.S. 589 at 601-02 & n.27, 51 L. Ed. 2d 64, 97 S. Ct. 869.

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Rollins further suggests that, even if the registry is kept confidential, its mere existence burdens one's freedom to make medical treatment choices, because it causes fear of stigmatization. But again, Rollins's concerns lack constitutional grounding. In Whalen, the Supreme Court rejected a similar challenge to New York's Controlled Substances Act, noting that, "within dosage limits which appellees do not challenge, the decision to prescribe, or to use, is left entirely to the physician and the patient." 25 Alaska's medical marijuana law is even less restrictive than the New York statute upheld in Whalen. HN7Go to this Headnote in the case.The Alaska statute does not fix dosage limits, nor does it require that patients have a prescription. 26 As long as a patient submits a letter from a physician certifying [**14] that the patient may benefit from marijuana, the decision to use marijuana as a medical treatment is left entirely to the individual.

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25 Id. at 603.26 See generally AS 17.37.010-.080.

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While the confidential registry might deter some skeptical patients from pursuing medical marijuana treatment, this incidental deterrence, standing alone, cannot establish a constitutional violation. If our constitution permitted only a perfect system of regulating medical marijuana -- one that would overcome the fears of all potential medical marijuana users -- then, as a practical matter, no regulation would ever be possible. As the Court recognized in Whalen, there are a host of . . . unpleasant invasions of privacy that are associated with many facets of health care. Unquestionably, some individuals' concern for their own privacy may lead them to avoid or to postpone needed medical attention. Nevertheless, disclosures of private medical information to [*754] doctors, to hospital personnel, [**15] to insurance companies, and to public health agencies are often an essential part of modern medical practice even when the disclosure may reflect unfavorably on the character of the patient. Requiring such disclosures to representatives of the State having responsibility for the health of the community, does not automatically amount to an impermissible invasion of privacy. 27

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27 Whalen, 429 U.S. 589 at 602, 51 L. Ed. 2d 64, 97 S. Ct. 869 (footnote omitted).

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Here, we similarly conclude that Alaska's medical marijuana law leaves patients and their physicians broad freedom to choose marijuana for medical treatment of debilitating conditions. Accordingly, we hold that the law does not interfere with the constitutional right to make independent medical choices. 28

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28 Rollins raises two collateral points concerning the superior court's handling of discovery matters, arguing that the court erred in ordering Rollins's mother not to use the public records act to obtain information to support Rollins's litigation and in failing to compel the state to respond to his discovery requests. Both points address matters extraneous to this appeal. Rollins's mother sought information that had nothing to do with this case and that she did not intend to share with her son. Rollins's discovery request sought information regarding the state's handling of the ballot measure certification process -- a procedure that Rollins voluntarily abandoned below. Because these points have no conceivable bearing on the validity of the judgment at issue in this appeal, we do not address them.

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[**16] IV. CONCLUSION

Because the medical marijuana law's confidential registration process does not violate the constitutional right to privacy, we AFFIRM the superior court's judgment.

Third Judicial District, Anchorage, Morgan Christen, Judge. Superior Court No. 3AN-02-12732 CI.


CASE SUMMARY

PROCEDURAL POSTURE: Petitioners, a citizens' coalition, appealed the judgment of the Superior Court of the State of Alaska, Third Judicial District, Anchorage that granted summary judgment to respondents, a city and a city clerk, on the issue of whether the clerk properly denied the coalition's request to certify a medical marijuana initiative petition and submit a ballot proposition to municipal voters.

OVERVIEW: The coalition argued, inter alia, that the trial court erred by granting the respondents' motion for summary judgment because the petition's title was not confusing. The supreme court disagreed. The petition was entitled "An Initiative Allowing Those Items Used with Marijuana Legal as Medicine or a Right To Privacy." The trial court concluded that the title's literal meaning suggested that the proposition "would declare paraphernalia to be medicine (and therefore legal) and/or declare that paraphernalia was a right to privacy." That conclusion accurately reflected the title's grammatical difficulties. "Marijuana" was first used to describe the objects that were the subject of the initiative, and it also seemed to be used to refer to the substance marijuana itself, because it was modified by the phrase "legal as medicine or a right to privacy." That implied that the proposition would "allow" marijuana paraphernalia either when the marijuana with which the paraphernalia was associated was used in accordance with Alaska's medical marijuana statute or when its use was protected by the right to privacy. It was therefore not obvious from the words of the title exactly what was intended.

OUTCOME: The judgment was affirmed.


CORE TERMS: marijuana, right to privacy, initiative, misleading, municipal, paraphernalia, medicine, ballot, clerk, legally insufficient, municipality, voter, confusing, signature, ordinance, initiative petition, summary judgment, charter, superseded, correctly, grow, ballot proposition, right to buy, violent crime, possession of marijuana, terrorism, consume, grammatical, certify, right to possess

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Civil Procedure > Appeals > Standards of Review > De Novo Review
Evidence > Procedural Considerations > Burdens of Proof > Allocation
Governments > Legislation > Interpretation
Governments > Local Governments > Elections
HN1Go to the description of this Headnote. An appellate court reviews de novo a superior court's determination that a ballot initiative petition is legally insufficient. The burden is on the party challenging the petition's legal sufficiency, to demonstrate that it is biased or misleading. When reviewing initiative challenges, the appellate court liberally construes constitutional and statutory provisions that apply to the initiative process.


Civil Procedure > Summary Judgment > Appellate Review > Standards of Review
HN2Go to the description of this Headnote. An appellate court reviews grants of summary judgment de novo.


Governments > Local Governments > Elections
HN3Go to the description of this Headnote. The Anchorage Municipal Code required ballot initiative petition summaries to "describe" the law proposed by the petition. Anchorage, Ak., Mun. Code 2.50.030(A) (superseded 2002). The provision required the description to be "truthful, impartial, and comprehensible."


Governments > Local Governments > Elections
HN4Go to the description of this Headnote. In the context of a ballot initiative petition, confusing and misleading titles and summaries are valid grounds for refusing to certify a petition.


Civil Procedure > Appeals > Standards of Review > General Overview
Constitutional Law > State Constitutional Operation
Governments > Legislation > Interpretation
Governments > Local Governments > Elections
HN5Go to the description of this Headnote. Appellate courts relax procedural and technical requirements for citizen initiatives because they are often drafted by non-lawyers. Likewise, appellate courts liberally construe constitutional and statutory requirements so that the people are permitted to vote and express their will on the proposed legislation. But confusing or misleading ballot initiative petitions frustrate the ability of voters to express their will. Therefore, the appellate court is not required to interpret unclear language in a petition in a manner which does not render it invalid.


Governments > Local Governments > Ordinances & Regulations
HN6Go to the description of this Headnote. A description which is untruthful, misleading, or which is not complete enough to convey basic information as to what an ordinance does, cannot be regarded as a legally adequate or sufficient description within the meaning of the ordinance.


COUNSEL: Kenneth P. Jacobus and Karen Bretz, Anchorage, for Appellants.

Joseph D. O'Connell, Assistant Municipal Attorney, and Frederick H. Boness, Municipal Attorney, Anchorage, for Appellees.

JUDGES: Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and Carpeneti, Justices.

OPINION BY: EASTAUGH

OPINION

[*899] EASTAUGH, Justice.
I. INTRODUCTION

Citizens for Implementing Medical Marijuana (CIMM) sued the Municipality of Anchorage and Municipal Clerk Greg Moyer after Clerk Moyer refused to certify CIMM's citizen initiative petition and submit its ballot proposition to municipal voters. Because we conclude that the petition is confusing and misleading and therefore legally insufficient, we affirm the superior court's summary judgment that held that the clerk properly denied certification.
II. FACTS AND PROCEEDINGS

On April 10, 2002, Citizens for Implementing [**2] Medical Marijuana submitted an initiative petition to Greg Moyer, Municipal Clerk for the Municipality of Anchorage, seeking placement of CIMM's ballot proposition on the next citywide ballot. The petition proposed an initiative to legalize marijuana paraphernalia and referred to, among other things, the Alaska Statute allowing medical use of marijuana and the Alaska Constitution's guarantee of the right to privacy. The petition stated:

An Initiative Petition Allowing Those Items Used with Marijuana Legal as Medicine or a Right To Privacy

WHEREAS, in 1998, the Alaska voters overwhelmingly passed an initiative to allow the use of marijuana as medicine (Nov. [*900] 3, 1998 Bill allowing medical use of Marijuana [97PSDM], 131,586 voting yes versus 92,701 voting no);

WHEREAS, in 1975, the Alaska Supreme Court unanimously ruled that the Alaska constitutional right to privacy, Article I, Section 22, included the right to use marijuana in one's home, (Ravin v. State);

WHEREAS, in 1993, the Alaska Superior Court ruled that the Alaska Constitution cannot be amended by initiative and that the right to privacy still included the right to use marijuana (McNeil v. State);

WHEREAS [**3] it is in the best interests of the residents of the Municipality of Anchorage to use law-enforcement resources to pursue violent crime and to combat the growing threat of terrorism;

THEREFORE, We, the undersigned registered voters of the Municipality of Anchorage, direct the Municipal Assembly to put the following charter amendment before the voters at the next regular municipal election:

THE PROPOSITION: Shall Article II of the Municipal Charter be amended to add the following section:

(14) The right to buy, sell, or possess those items which could be used to consume, grow or process marijuana for medicine, or as is in accord with the right to privacy protected by Article I, Section 22 of the Alaska Constitution. 1


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1 The superior court's opinion substituted "possess" for "process" in the "Proposition" section of the petition. Both parties had used "process" in documents before the superior court, but use "possess" in their appellate briefs. Because the record reveals no reason for this change, we will use the original word, "process." We would reach the same result whether "process" or "possess" were the correct word.

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[**4] Clerk Moyer rejected the petition on May 13, 2002 after finding that it lacked the requisite number of valid signatures. After CIMM demonstrated that it had obtained the necessary number of signatures, Clerk Moyer asked the municipal attorney to review the petition's legal sufficiency. The municipal attorney concluded that it was legally insufficient, reasoning that the first whereas clause contained a false and misleading statement of law, 2 and that the proposition would violate federal and state law by authorizing the sale and purchase of marijuana seeds and plants. Clerk Moyer therefore refused to certify the petition and place the initiative on the ballot.

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2 The Anchorage Municipal Code (AMC) provision in effect at times relevant to this case required that the petition summary "describe" the proposed law. AMC 2.50.030(A) (superseded 2002). In Faipeas v. Municipality of Anchorage, 860 P.2d 1214, 1219 (Alaska 1993), we interpreted this provision to require that the petition be "truthful, impartial, and comprehensible."

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[**5] CIMM and Al Anders (collectively CIMM) sued the Municipality of Anchorage and Clerk Moyer, and asked the superior court to declare that the petition correctly stated the current law per Ravin v. State, 3 and to compel Clerk Moyer to certify the petition and place the initiative on the ballot. The parties cross-moved for summary judgment. The superior court held that the title of the petition, two of its whereas clauses, and the proposition were confusing and misleading, and therefore concluded that Clerk Moyer had properly rejected the petition as legally insufficient. The court consequently denied CIMM's motion for partial summary judgment, granted the municipality's cross-motion for summary judgment, and entered judgment for the defendants.

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3 Ravin v. State, 537 P.2d 494 (Alaska 1975). The Ravin court held that the right to privacy in article I, section 22 of the Alaska Constitution encompasses "the possession and ingestion of substances such as marijuana in a purely personal, non-commercial context in the home unless the state can meet its substantial burden and show that proscription of possession of marijuana in the home is supportable by achievement of a legitimate state interest." Id. at 504. The court concluded that "no adequate justification for the state's intrusion into the citizen's right to privacy by its prohibition of possession of marijuana by an adult for personal consumption in the home has been shown." Id. at 511. Therefore "possession of marijuana by adults at home for personal use is constitutionally protected," id., even though "there is not a fundamental constitutional right to possess or ingest marijuana in Alaska." Id. at 502 (emphasis added).

Because our disposition of this case does not require us to decide whether the second whereas clause accurately states Ravin's holding, we decline to express an opinion about it.

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[**6] CIMM appeals.

[*901] III. DISCUSSION
A. Standard of Review

HN1Go to this Headnote in the case.We review de novo the superior court's determination that the petition was legally insufficient. 4 The burden is on the municipality, as the party challenging the petition's legal sufficiency, "to demonstrate that it is biased or misleading." 5 "When reviewing initiative challenges, we liberally construe constitutional and statutory provisions that apply to the initiative process." 6

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4 See Cabana v. Kenai Peninsula Borough, 50 P.3d 798, 801 (Alaska 2002) (noting that HN2Go to this Headnote in the case.this court reviews grants of summary judgment de novo).5 See Faipeas v. Municipality of Anchorage, 860 P.2d 1214, 1219 (Alaska 1993) (interpreting AMC 2.50.030 (superseded 2002)) (quoting Burgess v. Alaska Lieutenant Governor Terry Miller, 654 P.2d 273, 276 (Alaska 1982) (affirming superior court's holding that Lieutenant Governor's summary of initiative petition was not misleading)).6 Kodiak Island Borough v. Mahoney, 71 P.3d 896, 898 (Alaska 2003).

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[**7] B. The Petition Is Confusing and Misleading.
1. Petitions must be comprehensible and truthful.

At times relevant to this appeal, HN3Go to this Headnote in the case.the Anchorage Municipal Code required petition summaries to "describe" the law proposed by the petition. 7 We have held that this provision requires the description to be "truthful, impartial, and comprehensible." 8 This requirement stems from the "public interest in informed lawmaking" 9 and guides our inquiry here. "Our main concern should be that all matters (legislative enactments, initiative petitions and even proposed resolutions) should be presented clearly and honestly to the people of Alaska." 10

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7 AMC 2.50.030(A) (superseded 2002). Eight months after CIMM submitted this petition, the Anchorage Assembly amended the Municipal Code to provide for review of applications for a petition before signatures may be gathered. Anchorage Ordinance No. 2002-162 (Dec. 17, 2002). Current version at AMC 2.50.010 et seq. The Anchorage Municipal Code currently does not require the petition to "describe" the ordinance or resolution sought by the petition, but requires that it "set out verbatim the ordinance or resolution sought to be enacted or repealed by the petition" and "meet constitutional, charter and other legal requirements or restrictions." AMC 2.50.020(B)(3)(a) and (c). [**8] 8 Faipeas, 860 P.2d at 1219 (interpreting AMC 2.50.030 (superseded 2002)).9 Id. at 1221.10 Id. (quoting Yute Air Alaska, Inc. v. McAlpine, 698 P.2d 1173, 1188 (Alaska 1985) (Moore, J., dissenting) (emphasis in original)).

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2. We review the legal sufficiency of the entire petition, not just the proposition.

CIMM argues that because the whereas clauses would not have been placed on the ballot if the petition had been certified, our review should be limited to whether the proposition itself would have confused or misled voters. 11 This argument ignores the important screening function that the signature requirement plays in the initiative process. 12

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11 If the petition had been certified and the proposition placed on the ballot, the ballot would have contained only (1) "an objectively stated, informative caption or title," (2) "the question posed by the proposition," and (3) the words "yes" and "no." AMC 28.40.010(D). The whereas clauses therefore would not have appeared on the ballot. [**9] 12 Faipeas, 860 P.2d at 1219 (noting the "signature-gathering requirement['s] . . . important screening purpose").

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The signature-gathering requirement ensures that only propositions with significant public support are included on the ballot. 13 But when a petition, including its title and summary, is confusing or misleading, petition signers may not understand what they are signing. Signatures on a confusing or misleading petition therefore may or may not indicate support for the measure. Under such circumstances, it cannot be known [*902] whether the signature-gathering requirement has served its screening function. Moreover, the municipality correctly points out that a "biased and partisan" title 14 was a factor in our determination that the citizens challenging the petition in Faipeas v. Municipality of Anchorage had shown a likelihood of success on the merits of their contention that the petition was legally insufficient. 15 Similarly, HN4Go to this Headnote in the case.confusing and misleading titles and summaries are valid grounds for refusing to certify a petition.

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13 Id. ("The signature gathering requirement is important because it eliminates the initiation of an expensive campaign process when there is insufficient public support for an initiative.") (quoting Cynthia L. Fountiane, note, Lousy Lawmaking: Questioning The Desireabiliy and Constitutionality of Legislating by Initiative, 61 S. CAL. L. REV. 735, 746 (1988)). [**10] 14 See Faipeas, 860 P.2d at 1217 ("REFERENDUM PETITION TO REPEAL A 'SPECIAL HOMOSEXUAL ORDINANCE' ").15 Faipeas v. Municipality of Anchorage, 860 P.2d 1214, 1221 (Alaska 1993) (affirming preliminary injunction preventing proposition from appearing on ballot).

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3. The petition title is confusing.

The petition is entitled "An Initiative Allowing Those Items Used with Marijuana Legal as Medicine or a Right To Privacy." The superior court concluded that the title's literal meaning suggests that the proposition "would declare paraphernalia to be medicine (and therefore legal) and/or declare that paraphernalia is a right to privacy." (Emphasis in original.) This conclusion accurately reflects the title's grammatical difficulties. The superior court also noted, however, that the confusion engendered by the title, standing alone, might not render the petition legally insufficient.

CIMM correctly points out that HN5Go to this Headnote in the case.we relax procedural and technical requirements for citizen initiatives because they are often drafted by non-lawyers. 16 Likewise, courts [**11] liberally construe constitutional and statutory requirements "so that 'the people (are) permitted to vote and express their will on the proposed legislation.' " 17 But confusing or misleading petitions frustrate the ability of voters to express their will. Contrary to CIMM's contention, therefore, we are not required to interpret unclear language in the petition "in a manner which does not render it invalid."

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16 "Because petitions are often prepared by inexpert sponsors who nonetheless espouse worthy or popular causes, or both, courts are reluctant to invalidate them in cases of merely doubtful legality." Yute Air Alaska, Inc. v. McAlpine, 698 P.2d 1173, 1181 (Alaska 1985). "To that end all doubts as to all technical deficiencies or failure to comply with the exact letter of procedure will be resolved in favor of the accomplishment of that purpose." Id. (internal quotation marks omitted).17 Boucher v. Engstrom, 528 P.2d 456, 462 (Alaska 1974) (quoting Cope v. Toronto, 8 Utah 2d 255, 332 P.2d 977, 979 (Utah 1958)), overruled in part on other grounds by McAlpine v. Univ. of Alaska, 762 P.2d 81 (Alaska 1988).

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[**12] The title's grammatical difficulties stem from its use of the term "marijuana." It appears only once in the title but serves several functions. Ordinarily, a word is used as only one part of speech each time it appears in a sentence. Here, "marijuana" is first used in the clause ("those items used with marijuana") that describes the objects that are the subject of the initiative. The superior court correctly characterized these objects as "paraphernalia," even though that word does not appear in the petition. 18 "Marijuana" also seems to be used to refer to the substance marijuana itself, because it seems to be modified by the phrase "legal as medicine or a right to privacy." This implies that the proposition would "allow" marijuana paraphernalia either when the marijuana with which the paraphernalia is associated is used in accordance with Alaska's medical marijuana statute 19 or when its use is protected by the right to privacy. 20

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18 Cf. AMC 8.35.010A (defining "drug paraphernalia").19 See AS 17.37.010-.080.20 See supra note 3.

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[**13] It is therefore not obvious from the words of the title exactly what is intended. Persons considering whether to sign the petition could not reasonably be expected to engage in the grammatical analysis required to discover exactly what the title means. Nonetheless, we agree with the superior court that the title's puzzling grammatical deficiencies would not render the petition legally insufficient, absent any problems with the rest of the petition. The title at least conveys some sense of the initiative's purpose: to "allow" [*903] items whose use is somehow related to marijuana. But readers confused by the rest of the petition could derive little guidance by referring back to the title for clarification. Most importantly, the title does not assist in understanding what conduct the proposition would protect. The title does not help resolve deficiencies discussed in Parts III.B.4 and III.B.5.
4. The text of the proposition itself is deficient because it does not explain whether it creates or abolishes rights.

The text of the proposed initiative reads:

Shall Article II of the Municipal Charter be amended to add the following section:

(14) The right to buy, sell, or [**14] possess those items which could be used to consume, grow or process marijuana for medicine, or as is in accord with the right to privacy protected by Article I, Section 22 of the Alaska Constitution.

Because the petition does not explain the context and purpose of Article II of the Anchorage Municipal Charter, it is unclear from the face of the proposition even whether it would create or abolish rights respecting marijuana paraphernalia. A reader would have to infer the effect of the proposition from other sources, such as the name of the group promoting the petition or possibly from other parts of the petition.

The uncertainty created by this lack of context violates the principle of informed lawmaking that underlies all petition requirements. 21 Because potential petition signers could not know with sufficient certainty what they were endorsing, the petition is legally insufficient. 22

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21 Faipeas, 860 P.2d at 1221.22 Cf. In re Title, Ballot Title, and Submission Clause for Proposed Initiatives 2001-2002 # 21 and # 22 ("English Language Education"), 44 P.3d 213, 219 (Colo. 2002) (articulating policy that government drafter should "whenever practicable, avoid titles for which the general understanding of the effect of a 'yes' or 'no' vote will be unclear").

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[**15] Although we do not have to decide the issue here, we note in passing that the text of the proposition might also be misleading in regards to its scope. The text may be read narrowly, thus suggesting that it would protect the acquisition, sale, or possession of items only when circumstances would support a belief that the items would be used with marijuana actually used in accordance with Alaska's medical marijuana statute or the right to privacy. Or the text may be read broadly, suggesting that it would protect the acquisition, sale, or possession of those types of items that conceivably could be used in connection with marijuana potentially usable in accordance with Alaska's medical marijuana statute or the right to privacy. Because this ambiguity in the text of the initiative might cause voters to sign the petition who would not sign if they perceived the broader possible reading, the text itself is potentially problematic. But we do not have to decide if the text is actually problematic given the petition's other deficiencies.

5. If the ballot proposition is given the interpretation CIMM advocates, the petition is misleading as to what conduct the proposition would protect.

[**16] At oral argument before us, CIMM's counsel asserted that the ballot proposition would create a right to buy, sell, or possess any item that could be used in accordance with Alaska's medical marijuana statute or in accordance with Ravin's interpretation of the right to privacy, whether or not circumstances indicated that the marijuana would in fact be used in one of these legally protected contexts. CIMM's counsel likewise argued that it is "impossible to separate" people who use marijuana in accordance with the statute or the right to privacy from people whose association with marijuana is not protected by law, including people acting for commercial purposes. But CIMM's counsel also stated that the proposition would not protect purchases that were "clearly [for] commercial operations," such as "five hundred grow lights."

[*904] It is not obvious that these latter two contentions are completely consistent. We nonetheless assume without deciding that CIMM's interpretation of the proposition is correct. But this means that the petition, which must "describe the ordinance or resolution sought," 23 is legally insufficient because the title is misleading as to the proposition's scope. [**17] As noted above, the petition is entitled "An Initiative Petition Allowing Those Items Used with Marijuana Legal as Medicine or a Right To Privacy."

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23 AMC 2.50.030(A) (superseded 2002).

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CIMM argues that the title "states that the initiative proposes to legalize those items used with marijuana which is legal as medicine and those items used with marijuana which is legal under Alaskans' privacy rights." This is a fair reading of the title, but not the only fair reading. CIMM's interpretation of the title therefore suggests that to be protected, the paraphernalia would have to be used to grow, consume, or process marijuana only in instances in which the conduct is permitted by Alaska's medical marijuana statute or the right to privacy.

Given CIMM's own interpretation, therefore, the title does not accurately describe the conduct the proposition would protect. The title proposes legalization of marijuana paraphernalia in specific situations. But as we saw above, the proposition itself could be read to legalize [**18] possession and sale of marijuana paraphernalia in virtually all situations, even if it were not actually intended to be used, or is in fact not used, in accordance with Alaska's medical marijuana statute or the right to privacy. The title is therefore misleading and consequently legally insufficient. 24

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24 See Faipeas, 860 P.2d at 1219 HN6Go to this Headnote in the case.("A description which is untruthful, misleading, or which is not complete enough to convey basic information as to what the ordinance does, cannot be regarded as a legally adequate or sufficient description within the meaning of the ordinance.").

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The proposition's scope is further obscured by the whereas clauses. They basically assert that (1) Alaska voters legalized the use of marijuana for medical purposes in a statewide initiative; (2) since 1975 Alaska's state constitutional right to privacy has included the right to possess marijuana in one's home; (3) Alaska's state constitutional right to privacy continues to include the right to possess marijuana in [**19] one's home; and (4) law enforcement resources are best spent on combating violent crime and "the growing threat of terrorism." The first three whereas clauses therefore describe several circumstances in which marijuana possession and consumption are legal. But CIMM's interpretation of the proposition is not so limited, and would protect possession of marijuana paraphernalia even when the marijuana use is not protected by AS 17.37.010 - .080 or by the right to privacy. The first three whereas clauses therefore fail to describe the proposition's full scope under CIMM's interpretation. And to the extent the clauses imply that the proposition should be given the narrow reading discussed above, they could encourage petition signatures by persons who would oppose the proposition if they gave it the broader reading.

On its face, the fourth whereas clause appears to justify the proposition's scope as it was interpreted by CIMM at oral argument before us. This clause invites a comparison between the value of using law enforcement resources to combat violent crime and terrorism and the value of other unspecified uses. The superior court correctly recognized that [**20] this clause is a statement of the drafters' political opinion "with which a voter may choose to agree or disagree." Read in the context of the title and other whereas clauses, the relevant comparison the fourth whereas clause invites is between (1) combating violent crime and terrorism, and (2) detecting and prosecuting protected users of marijuana for possessing paraphernalia. If this is not the comparison the drafters intended, the fourth whereas clause is meaningless in the context of the title and the other whereas clauses. Although this clause is not necessarily misleading, it does not cure the petition's other problems because it does not reveal whether the proposition is intended to protect the possession and sale of items that are not in fact used for purposes protected by AS 17.37.010 - .080 or the right to privacy. This clause therefore cannot support [*905] legalizing paraphernalia beyond circumstances where the marijuana use is protected by AS 17.37.010 - .080 or by Ravin's interpretation of the right to privacy.

Nor can we conclude that the use of "could be" in the text of the proposition is sufficient to signify the [**21] difference in scope between the title and the whereas clauses and the proposition itself. Under CIMM's reading of the proposition, the use of "could be" renders meaningless the limitations suggested by the title, the whereas clauses, and the second half of the proposition itself. 25

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25 The proposition reads:

Shall Article II of the Municipal Charter be amended to add the following section:

(14) The right to buy, sell, or possess those items which could be used to consume, grow or process marijuana for medicine, or as is in accord with the right to privacy protected by Article I, Section 22 of the Alaska Constitution.

(Emphasis added.)

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IV. CONCLUSION

For these reasons, the superior court's order granting summary judgment to the defendants is AFFIRMED.

PRIOR HISTORY: [**1]
Appeal from the Superior Court of the State of Alaska, First Judicial District, Juneau, Patricia A. Collins, Judge. Superior Court No. 1JU-06-793 CI.


CASE SUMMARY

PROCEDURAL POSTURE: The Superior Court of the First Judicial District, Juneau, Alaska, granted summary declaratory judgment in favor of appellees, civil liberties organization and individuals, concluding that appellees had standing to challenge Alaska Stat. § 11.71.060(a) because they were exposed to potential criminal prosecution for possession of small amounts of marijuana in their homes. Appellant State appealed.

OVERVIEW: The State and the organization argued that the supreme court should review the superior court's ripeness conclusion for an abuse of discretion. The supreme court disagreed and employed de novo review. Both the State and the organization argued that the organization's pre-enforcement challenge was ripe because the threat of enforcing Alaska Stat. § 11.71.060(a) forced plaintiffs to either change their behavior or face the risk of criminal liability. The supreme court found that appellees did not have a strong claim of need for a pre-enforcement decision on the constitutionality of the amended statute because their current practices were and would remain illegal and expose them to a risk of criminal prosecution, regardless of any ruling the supreme court might make. The Controlled Substances Act, 21 U.S.C.S. § 844, criminalized appellees' personal, residential consumption of marijuana and imposed penalties that exceeded state sanctions. The hardships asserted by both named individuals did not require that the supreme court address the constitutionality of Alaska Stat. § 11.71.060. The amended statute was not unconstitutional in all its applications.

OUTCOME: The judgment was vacated and the appeal was dismissed.


CORE TERMS: marijuana, alaska, ripeness, ripe, facial challenge, select, adult's, small amounts, declaratory, possession of marijuana, federal prosecution, personal use, pre-enforcement, concrete, hardship, constitutional challenge, http, misdemeanor, visited, ounce, federal law, actual controversy, controlled substance, supplemental, hypothetical, statistics, declare, arrest, user, fbi

LexisNexis® Headnotes Hide Headnotes


Civil Procedure > Justiciability > Case or Controversy Requirements > Adverse Legal Interests
Civil Procedure > Declaratory Judgment Actions > State Judgments > Discretion
Civil Procedure > Appeals > Standards of Review > De Novo Review
HN1Go to the description of this Headnote. Alaska's 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, Alaska Stat. § 22.10.020(g). Though a superior court "may" issue declaratory relief, the superior court may only exercise this discretion in a case of actual controversy. The statute's reference to an "actual controversy" encompasses considerations of standing, mootness, and ripeness. The Alaska Supreme Court is the ultimate arbiter of such issues and it reviews de novo a superior court's ripeness determination.


Civil Procedure > Justiciability > Case or Controversy Requirements > Adverse Legal Interests
Civil Procedure > Justiciability > Ripeness > Imminence
HN2Go to the description of this Headnote. The "actual controversy" limitation in Alaska's declaratory judgment act, Alaska Stat. § 22.10.020(g), 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. 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. While pure legal questions that require little factual development are more likely to be ripe, a party bringing a pre-enforcement challenge must nonetheless present a concrete factual situation. A case is justiciable only if it has matured to a point that warrants decision. While Alaska's standing rules are liberal the Alaska Supreme Court should not issue advisory opinions or resolve abstract questions of law.


Civil Procedure > Justiciability > Ripeness > Imminence
HN3Go to the description of this Headnote. The degree of immediacy of a prospective injury needed to satisfy the ripeness doctrine has not been systematically explored in the case law. Instead, Alaska cases contain statements such as advisory opinions are to be avoided, or the ripeness doctrine forbids judicial review of abstract disagreements, or courts should decide only a real, substantial controversy, not a mere hypothetical question.


Civil Procedure > Justiciability > Case or Controversy Requirements > Adverse Legal Interests
Civil Procedure > Justiciability > Ripeness > Imminence
HN4Go to the description of this Headnote. 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. On a more practical level, the Alaska Supreme Court's ripeness analysis fundamentally balances the need for decision against the risks of decision. The supreme court examines the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration. 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. 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.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > Simple Possession > Elements
HN5Go to the description of this Headnote. Under the Controlled Substances Act, marijuana is classified as a Schedule I drug, 21 U.S.C.S. § 812(c), a drug with a high potential for abuse, lack of any accepted medical use, and lack of accepted safety for use under medical supervision. The possession of marijuana in any quantity is a federal crime, 8 U.S.C.S. § 844(a). 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, Alaska Stat. § 11.71.190.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > Simple Possession > Penalties
HN6Go to the description of this Headnote. 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, 21 U.S.C.S. § 844(a). A person who knowingly possesses marijuana for personal use also faces a federal civil penalty of not more than $ 10,000. 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, Alaska Stat. § 12.55.135(j).


Constitutional Law > Supremacy Clause > Federal Preemption
HN7Go to the description of this Headnote. See U.S. Const. art. VI, cl. 2.


Civil Procedure > Justiciability > Case or Controversy Requirements > Actual Disputes
Civil Procedure > Justiciability > Case or Controversy Requirements > Threats of Prosecution
HN8Go to the description of this Headnote. 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. 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.


Constitutional Law > The Judiciary > Case or Controversy > Constitutionality of Legislation > General Overview
HN9Go to the description of this Headnote. 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. 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.


Governments > Legislation > Interpretation
Governments > Legislation > Severability
HN10Go to the description of this Headnote. When constitutional issues are raised, the Alaska Supreme Court has a duty to construe a statute, where reasonable, to avoid dangers of unconstitutionality. Rather than strike a statute down, the supreme court will employ a narrowing construction, if one is reasonably possible.


COUNSEL: 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.

JUDGES: Before: Fabe, Chief Justice, Matthews, Eastaugh, Carpeneti, and Winfree, Justices. CARPENETI, Justice, with whom WINFREE, Justice, joins, dissenting.

OPINION BY: MATTHEWS

OPINION

[*366] MATTHEWS, Justice.

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 [**2] 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.

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1 537 P.2d 494 (Alaska 1975).

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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 [**3] of small amounts of marijuana in the home by adults for personal use.

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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).

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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 [**4] grounds. The State argued that Doe lacked standing because she could seek protection under Alaska's medical marijuana law. 5 It further contended that the ACLU [*367] lacked organizational or associational standing. The State also opposed the ACLU's 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.

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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.

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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 [**5] 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 [**6] 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.


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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.

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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 [**7] 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 court's 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 [*368] relief - and the different standards of review that attach to each requirement.

HN1Go to this Headnote in the case.Alaska's 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 [**8] of . . . actual controversy." 9 The statute's 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 court's ripeness determination. 11 To the extent that our prior decisions have suggested that abuse of discretion review applies to both a superior court's 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.

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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, Dep't of Health & Soc. Servs., 21 P.3d 357, 358 (Alaska 2001).11 Jacob v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 177 P.3d 1181, 1184 (Alaska 2008) (reviewing the superior court's 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 [**9] mootness because mootness is a question of law.").

Federal precedent, relevant because Alaska's declaratory judgment act was modeled after the federal act, 28 U.S.C. § 2201 (2006), see Alaska Airlines, Inc. v. Red Dodge Aviation, Inc., 475 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 court's 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 Comm'n, 102 P.3d 937, 942-43 & n.31 (Alaska 2004); Brause, 21 P.3d at 358.

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III. DISCUSSION
A. The Requirements of the Ripeness Doctrine.

HN2Go to this Headnote in the case.The "actual controversy" limitation in Alaska's declaratory judgment act 13 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 [**10] 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 Alaska's standing [*369] rules are liberal this court should not issue advisory opinions or resolve abstract questions of law." 19

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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. App'x 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, 95 S. Ct. 335, 42 L. Ed. 2d 320 (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 [**11] 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:

HN3Go to this Headnote in the case.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. Ass'n, 798 P.2d 1258, 1261 (Alaska 1990) ("[S]tanding is not an illusory requirement in Alaska.").

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HN4Go to this Headnote in the case.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 [**12] 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

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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).

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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 [**13] penalties. 24

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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 Comm'n, 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").

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B. The Parties Face Little Hardship If Their Claims Are Not Resolved in a Hypothetical Setting.

Both the State and ACLU argue that the ACLU's 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 [**14] 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 Nixon's "War on Drugs," Congress passed the Comprehensive Drug Abuse Prevention and Control Act of 1970, also known as the Controlled Substances [*370] Act. 25 HN5Go to this Headnote in the case.Under this act, marijuana is classified as a Schedule I drug 26 _ 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 [**15] 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

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25 Pub. L. No. 91-513, 84 Stat. 1236; see also Gonzales v. Raich, 545 U.S. 1, 10, 125 S. Ct. 2195, 162 L. Ed. 2d 1 (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.

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Unsurprisingly,HN6Go to this Headnote in the case. 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

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30 21 U.S.C. § 844(a). Because the statute challenged in this case criminalizes the possession of less than one [**16] 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.

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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 Court's 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 California's 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 [**17] 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.

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33 HN7Go to this Headnote in the case.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, 125 S. Ct. 2195, 162 L. Ed. 2d 1 (2005).35 Id. at 29-34.

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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 ACLU's 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 [**18] 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. [*371] 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 don't want to go to jail." But Jane Roe's 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 [**19] 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.

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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 [**20] 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, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (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).

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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 [**21] some of the considerations on the "risks" side of the scale:

HN8Go to this Headnote in the case.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 [*372] 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 [**22] 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.


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39 21 P.3d 357 (Alaska 2001).40 Id. at 359 (quoting WRIGHT, supra note 20 § 3532.1, at 114-15.

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1. Concrete facts may aid in the decision.

HN9Go to this Headnote in the case.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.

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41 State, Dep't of Revenue, Child Support Enforcement Div. v. Beans, 965 P.2d 725, 728 (Alaska 1998).

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We [**23] 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 driver's 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 State's 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


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42 965 P.2d 725.43 Id. at 728.44 Id. at 727-28.

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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 [**24] 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 categories 45 the circumstances under which the statute may not operate.

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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").

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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.

[*373] Relatedly, HN10Go to this Headnote in the case.when constitutional issues are raised, this court has a duty to construe a statute, where reasonable, [**25] 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.

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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 [**26] incorporate, in addition to the statutory requirements, the exigent circumstances requirements discussed in Schmerber.").

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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 Alaska's 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 [**27] 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.


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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.

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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 ACLU's 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 [**28] the need to do so.

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53 Brause v. State, Dep't of Health & Soc. Servs., 21 P.3d 357, 359 (Alaska 2001).

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IV. CONCLUSION

We conclude that the actual controversy requirement of AS 22.10.020(g) has not been [*374] 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 [**29] 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


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54 Id. at 360.

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In accordance with these views, the superior court's judgment in favor of the ACLU, Jane Doe, and Jane Roe, is VACATED and this appeal is DISMISSED.

NOTICE: [*1] MEMORANDUM DECISIONS OF THIS COURT DO NOT CREATE LEGAL PRECEDENT. SEE ALASKA APPELLATE GUIDELINES FOR PUBLICATION OF COURT OF APPEALS DECISIONS. ACCORDINGLY, THIS MEMORANDUM DECISION MAY NOT BE CITED FOR ANY PROPOSITION OF LAW, NOR AS AN EXAMPLE OF THE PROPER RESOLUTION OF ANY ISSUE.

PRIOR HISTORY: Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Jane F. Kauvar and Ralph R. Beistline, Judges. Trial Court No. 4FA-01-366 CR.

DISPOSITION: Superior court judgment affirmed.


CASE SUMMARY

PROCEDURAL POSTURE: Defendant was convicted in the Superior Court, Fourth Judicial District, Fairbanks, Alaska, for four counts of fourth-degree misconduct involving a controlled substance, in violation of Alaska Stat. §§ 11.71.040(a)(2), (a)(3)(F), (a)(3)(G), and (a)(5). Defendant appealed.

OVERVIEW: Police executed a search warrant at defendant's home and seized 270 marijuana plants and some harvested marijuana. Defendant claimed that the marijuana was medical marijuana for four patients. On appeal, defendant argued that the Alaska Legislature improperly repealed a medical marijuana initiative, that the legislature illegally modified the initiative regarding the return of any medical marijuana-related property seized, and improperly repealed the portion of the initiative that permitted a person to prove that more than an ounce of usable marijuana and six live plants were required to address a patient's debilitating medical condition. The appellate court held that defendant's first argument was not properly briefed and would not be considered on appeal. The appellate court also held that, after the trial court convicted defendant, any arguable claim he had for return of his property was moot, as he did not possess marijuana as permitted by the medical marijuana initiative. The appellate court concluded that defendant's remaining issue was moot, because defendant was not entitled to assert a medical marijuana affirmative defense.

OUTCOME: The judgment of the trial court was affirmed.


CORE TERMS: marijuana, initiative, patient, repealed, affirmative defense, caregiver, implied repeal, voter, search warrant, opening brief, plants, moot, dispositive, questions of law, controlled substance, stipulated facts, marijuana-related, misconduct, convicted, abandoned, prosecute, cursory, seized, wished, card

LexisNexis® Headnotes Hide Headnotes


Criminal Law & Procedure > Guilty Pleas > No Contest Pleas
HN1Go to the description of this Headnote. The Alaska Supreme Court established a procedure whereby a defendant, with the consent of the prosecution and the court, can plead no contest and still preserve an issue for appeal as long as the issue preserved was dispositive of the defendant's case.


Governments > Legislation > Expirations, Repeals & Suspensions
Governments > Legislation > Initiative & Referendum
HN2Go to the description of this Headnote. Under Alaska Const. art. XI, § 6, an initiative may not be repealed by the legislature within two years of its effective date but may be amended at any time. The legislature has broad authority to amend a voter initiative. But if an amendment of an act materially changes the original provisions of the act, or renders those provisions repugnant to the act, the amendment can be considered an implied repeal and can be limited to that which is necessary to carry out the intent of the legislature.


Civil Procedure > Appeals > Briefs
Criminal Law & Procedure > Appeals > Procedures > Briefs
HN3Go to the description of this Headnote. Appellate briefs should be crafted to serve their primary purpose which is to bring together the relevant facts and law in a clear and concise manner so that the court is fully informed. An issue given only cursory treatment in a brief will be treated as abandoned. The appellant's cursory briefing of a significant and potentially difficult issue leaves a reviewing court virtually no informed basis for meaningful appellate review.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > Simple Possession > General Overview
Criminal Law & Procedure > Defenses > General Overview
Evidence > Scientific Evidence > Blood & Bodily Fluids
HN4Go to the description of this Headnote. Under the medical marijuana statutory scheme, a person can be a caregiver for only one patient at a time unless the person is a caregiver for patients to whom he is related by at least the fourth-degree of kinship by blood or marriage, Alaska Stat. § 17.37.010(e).


COUNSEL: Appearances: Arthur Lyle Robson, Robson Law Office, Fairbanks, and Robert John, Law Office of Robert John, Fairbanks, for Appellant.

Kenneth J. Diemer, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellee.

JUDGES: Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.

OPINION BY: STEWART

OPINION

MEMORANDUM OPINIONAND JUDGMENT

STEWART, Judge.

The superior court convicted Harry B. Niehaus of four counts of fourth- degree misconduct involving a controlled substance 1 at a trial on stipulated facts. Niehaus argues that the superior court improperly resolved several claims that he raised by motion before the trial. We conclude that the superior court properly [*2] resolved the issues that Niehaus raised before finding him guilty. Accordingly, we affirm the superior court.

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1 AS 11.71.040(a)(2), (a)(3)(F), (a)(3)(G), and (a)(5).

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Background facts and proceedings

Police officers executing a search warrant seized 270 marijuana plants and some harvested marijuana during a search of Harry Niehaus's residence on September 26, 2000. Niehaus claimed that the marijuana was medical marijuana for four patients.

The grand jury indicted Niehaus on four counts of fourth-degree misconduct involving a controlled substance. 2 Niehaus filed a motion to dismiss the indictment, suppress evidence, schedule an evidentiary hearing, and rule upon certain questions of law. Niehaus supported the motion with his own affidavit, as well as affidavits from two other individuals. The affidavits addressed only the issue of whether the police were operating an audio tape recorder while the search warrant was executed at Niehaus's property. The State opposed the motion [*3] and attached a copy of the affidavit filed in support of the search warrant. The superior court denied Niehaus's motion in each of the first three respects but did not rule on the identified questions of law.

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2 Id.

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Niehaus argued he should be allowed to assert the medical marijuana affirmative defense 3 that was implemented after Alaska voters approved a medical marijuana initiative in the November 1998 general election. However, on the record provided by Niehaus, the superior court ruled that Niehaus could not assert a medical marijuana affirmative defense. Niehaus then filed a motion to reconsider this decision, and the superior court denied that motion as well. The superior court further denied Niehaus's "Motion to Return Medical Marijuana and Equipment Necessary for Growing Same."

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3 See AS 11.71.090 and AS 17.37.010 - .080.

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[*4] Niehaus indicated that he wished to enter a Cooksey plea 4 to appeal the court's pretrial rulings. But the court told Niehaus that the issues Niehaus wished to appeal were not dispositive. In lieu of calling witnesses at a trial, Niehaus stipulated to facts which Superior Court Judge Ralph R. Beistline found established his guilt on the charged offenses. Superior Court Judge pro tem Jane F. Kauvar sentenced Niehaus, and Niehaus now appeals.

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4 See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974). In Cooksey, HN1Go to this Headnote in the case.the Alaska Supreme Court established a procedure whereby a defendant, with the consent of the prosecution and the court, can plead no contest and still preserve an issue for appeal as long as the issue preserved was dispositive of the defendant's case.

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Discussion

Niehaus argues that the legislature improperly repealed the medical marijuana initiative in several ways. HN2Go to this Headnote in the case.Under article 11, section 6 of the Alaska Constitution, an initiative may not be repealed by the legislature [*5] within two years of its effective date but may be amended at any time. The legislature has broad authority to amend a voter initiative. 5 But if an amendment of an act materially changes the original provisions of the act, or renders those provisions repugnant to the act, the amendment can be considered an implied repeal and can be limited to that which is necessary to carry out the intent of the legislature. 6

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5 Warren v. Boucher, 543 P.2d 731, 737 (Alaska 1975).6 Warren v. Thomas, 568 P.2d 400, 402-403 (Alaska 1977).

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Niehaus specifically claims that the legislature improperly repealed the initiative by requiring caregiver registry identification cards. 7 But Niehaus's argument on this issue in his opening brief, other than quoting the constitution, does not cite to any specific authority or discuss why the legislature's act functioned as an implied repeal rather than an amendment of the initiative. In Legge v. Greig, the supreme court discussed the purpose of [*6] appellate briefs:

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7 See AS 17.37.010.

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HN3Go to this Headnote in the case."Appellate briefs should be crafted to serve their primary purpose 'which is to bring together the relevant facts and law in a clear and concise manner so that the court is fully informed.'" An issue given only cursory treatment in a brief will be treated as abandoned. [The appellant's] cursory briefing of a significant and potentially difficult â?¦ issue leaves this court virtually no informed basis for meaningful appellate review.[8]

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8 880 P.2d 606, 609 (Alaska 1994) (citations omitted).

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Niehaus's opening brief does not adequately brief the implied repeal issue. Accordingly, we conclude that he has abandoned this issue for purposes of appeal.

Niehaus also argues that the legislature illegally modified the initiative by repealing the section [*7] of the initiative that required the government to return any medical marijuana-related property seized by the police if the defendant was acquitted, the charges were dismissed, or the State elected not to prosecute. While the charges against him were pending, Niehaus filed a motion asking that the court require the police to return his medical marijuana-related property. Judge Beistline denied the motion.

Even under the initiative passed by the voters, Niehaus's motion lacked merit because the charges against him were still pending when he filed his motion. The repealed provision provided that medical marijuana would be returned "upon the determination that the patient or primary care-giver is entitled to the protection contained in this section as may be evidenced, for example, by a decision not to prosecute, the dismissal of charges, or acquittal." 9 In this case, after the superior court convicted Niehaus, any arguable claim Niehaus had for return of his property was moot because Niehaus's convictions established that he did not possess marijuana as permitted by the medical marijuana initiative.

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9 See former AS 17.37.030(e) (1999).

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[*8] Niehaus also argues that the legislature improperly repealed the portion of the initiative that permitted a person to prove by a preponderance of the evidence that more than an ounce of usable marijuana and six live plants were required to address a patient's debilitating medical condition. 10 But this claim is moot because Judge Beistline found that Niehaus had not shown that he was entitled to assert the medical marijuana affirmative defense. 11 As the State pointed out, Niehaus told the police that the 270 plants they found were medical marijuana for four individuals, one whose name he did not recall. HN4Go to this Headnote in the case.Under the medical marijuana statutory scheme, a person can be a caregiver for only one patient at a time unless the person is a caregiver for patients to whom he is related by at least the fourth degree of kinship by blood or marriage. 12 The evidence showed that Niehaus was not related to any of the individuals he identified. Additionally, Niehaus did not have possession of the statutorily required caregiver registration card for all the purported medical marijuana patients. Accordingly, because Judge Beistline found that Niehaus had not proven all the elements of the statutory [*9] affirmative defense that he raised, his argument that the legislature improperly repealed a portion of the initiative that would have allowed a patient to show a greater need for marijuana is moot. Furthermore, Niehaus's opening brief did not adequately address why the legislature's action was an impermissible repeal of the initiative rather than a permissible amendment.

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10 See former AS 17.37.020(b) (1999).11 See AS 11.71.090.12 AS 17.37.010(e).

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We address one more point that Niehaus raises. He complains that he should have been permitted to enter a Cooksey plea. But Niehaus has not shown any prejudice because he was unable to enter a Cooksey plea. Niehaus has been able to pursue an appeal after his trial on stipulated facts.
Conclusion

The judgment of the superior court is AFFIRMED.

SUBSEQUENT HISTORY: Related proceeding at State v. Fucci, 2008 Alas. App. LEXIS 123 (Alaska Ct. App., Nov. 26, 2008)

PRIOR HISTORY: [**1]
Appeal from the Superior Court, Third Judicial District, Kenai, Harold M. Brown, Judge. Trial Court No. 3KN-06-330 Cr.


CASE SUMMARY

PROCEDURAL POSTURE: The Superior Court, Third Judicial District, Kenai, Alaska, granted defendant's motion to suppress evidence and dismissed the indictment against defendant. The State appealed.

OVERVIEW: A law enforcement officer applied for a search warrant to search defendant's mobile home for a possible marijuana-growing operation. The officer supported the application with an affidavit. As the officers approached the home, they smelled an odor of marijuana. Defendant contended the search warrant that led to his indictment was issued without probable cause. Specifically, defendant maintained that the officer's factual allegations were less supportive of a finding of probable cause than that provided in caselaw. The central question was whether the affidavit in support of the search warrant application showed a fair probability that the mobile home contained evidence that defendant was conducting a commercial marijuana growing operation. The appellate court concluded that the affidavit supporting the search warrant application, on its face, provided probable cause for issuing the search warrant. Nevertheless, defendant raised a potential attack on the validity of the search warrant with respect to statistical information in the affidavit. That attack was not raised during the litigation of the motion, but defendant would be able to raise these claims on remand.

OUTCOME: The order of the superior court granting the motion to suppress and dismiss the indictment was reversed.


CORE TERMS: marijuana, grow, probable cause, mobile home, smell, odor, search warrant, indictment, cultivating, statistical, suppress, driveway, smelling, smelled, ounces, warrant application, marijuana plants, misstatement, footprints, omission, felony, seized, snow, air, inside, investigators, moderate, front, grown, door

LexisNexis® Headnotes Hide Headnotes


Criminal Law & Procedure > Search & Seizure > Search Warrants > Affirmations & Oaths > Sufficiency Challenges
Criminal Law & Procedure > Appeals > Standards of Review > Abuse of Discretion > General Overview
HN1Go to the description of this Headnote. An appellate court reviews a magistrate's determination of sufficiency of the allegations of facts in a search warrant application for an abuse of discretion. Only the information brought to the magistrate's attention may be considered by an appellate court, and it must be considered in a reasonable and common-sense manner.


Criminal Law & Procedure > Search & Seizure > Search Warrants > Probable Cause > General Overview
HN2Go to the description of this Headnote. Probable cause to issue a search warrant exists when reliable information is set forth in sufficient detail to warrant a reasonably prudent person in believing that a crime has been or was being committed.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > Simple Possession > General Overview
Criminal Law & Procedure > Search & Seizure > Search Warrants > General Overview
Criminal Law & Procedure > Search & Seizure > Search Warrants > Probable Cause > General Overview
Criminal Law & Procedure > Search & Seizure > Search Warrants > Scope
HN3Go to the description of this Headnote. Adults may possess, in their home and for personal use, less than four ounces of marijuana. A judicial officer should not issue a warrant to search a person's home for evidence of marijuana possession unless the State's warrant application establishes probable cause to believe that the person's possession of marijuana exceeds the scope of the possession that is constitutionally protected.


Criminal Law & Procedure > Search & Seizure > Search Warrants > Affirmations & Oaths > Sufficiency Challenges
Criminal Law & Procedure > Search & Seizure > Search Warrants > Probable Cause > General Overview
Evidence > Procedural Considerations > Burdens of Proof > General Overview
HN4Go to the description of this Headnote. Once a misstatement or omission in an affidavit to support a search warrant is established, the burden of proving that it was neither reckless nor intentional shifts to the state. A failure to meet this burden will vitiate the warrant if the misstatement or omission is material, that is, if deletion of the misstated information from or inclusion of the omitted information in the original affidavit would have precluded a finding of probable cause. A non--material omission or misstatement -- one on which probable cause does not hinge -- requires suppression only when the court finds a deliberate attempt to mislead the magistrate.


COUNSEL: Blair M. Christensen, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellant.

Peter F. Mysing, Kenai, for the Appellee.

JUDGES: Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.

OPINION BY: STEWART

OPINION

[*652] STEWART, Judge.

The superior court granted Nick L. Smith's motion to suppress evidence and dismiss his indictment. Smith's motion contended that the search warrant that led to his indictment was issued without probable cause. We conclude that the affidavit supporting the search warrant application, on its face, provided probable cause for issuing the search warrant. Accordingly, we reverse the superior court's order suppressing the evidence and dismissing the indictment. However, we conclude that Smith has raised a potential attack on the validity of the search warrant that was not raised during the litigation of Smith's motion. Smith can pursue that line of attack when the case returns to the superior court for further proceedings on the indictment.
Background facts and proceedings

On December [**2] 1, 2005, Investigator Kyle Young of the Alaska Bureau of Alcohol and Drug Enforcement applied for a search warrant to search Smith's mobile home at Canova Court in Nikiski for a possible marijuana grow operation. In support of his application, Young provided a thirteen-page affidavit.

The affidavit supplied the following information. Young drove by Smith's mobile home at Canova Court in Nikiski on November 28 and 29, 2005, and he noticed that there was a great deal of snow on the three vehicles parked at the residence. On December 1, 2005, Young and another trooper went to the mobile home. As the two investigators approached the mobile home, they smelled a "moderate odor" of growing marijuana coming from inside.

The investigators knocked, but no one answered. Young noticed that the front door of the mobile home was padlocked. There was only one set of tire tracks in the driveway and one set of footprints that led from the driveway to the door. There were no footprints in the snow around the mobile home, vehicles, or outbuildings. The windows that could be viewed from the front porch and driveway were "covered up."

Later that day, Young contacted a neighbor, Bill Erdahl, who identified [**3] Smith as the owner of the property. Erdahl told Young that he believed that Smith was in Mexico. He also said that, on most nights, someone would stop in at Smith's residence and then leave again.

Young searched Erdahl's residence with his consent to eliminate it as a possible source of the marijuana odor. Young also noted that the only other residence nearby was unoccupied; the driveway had not been cleared of snow and there were no footprints going to or from the residence.

Young summarized his observations of Smith's property and noted that

[b]ased upon [his] observations of the lack of activity, no footprints in the snow around the structure, vehicles or outbuildings, no vehicles recently parked overnight at the residence, the padlock on the front door and the information provided by the neighbor, [he] believe[d] that the residence [was] not currently occupied and [was] perhaps not being used as a dwelling, but only for the purpose of cultivating marijuana.

Young indicated that a records check showed that Smith had no drug convictions and did not have a medical marijuana certificate.

Young described his qualifications and training in drug investigations, the characteristics of a typical [**4] commercial marijuana grow, and his personal experience with grows. He also included statistical information. The information included what Young described as his unit's success rate and his personal success rate in smelling commercial amounts of growing marijuana. Young noted that, based on his experience in smelling felony level marijuana grow operations, he believed that there was sufficient marijuana growing at Smith's mobile home to support a felony charge.

Magistrate Jerry D. Anderson approved Young's application for a search warrant. When the police executed the search warrant at Smith's mobile home, they seized ninety-four marijuana plants that, when processed, amounted to 9.22 pounds of marijuana. They [*653] also seized growing equipment and one-sixth of a pound of processed marijuana.

On March 3, 2006, the grand jury indicted Smith on four counts of fourth-degree misconduct involving a controlled substance. 1 Smith moved to suppress evidence and dismiss the indictment on the basis that the search warrant was issued without probable cause. Relying on State v. Crocker, 2 Smith argued that there was no probable cause supporting the search warrant because Young had "observed no specific [**5] facts that would justify a conclusion that the smell of marijuana that [he] perceiv[ed] was in excess of the constitutionally protected amount." Smith argued that Young's assertions in the affidavit were reduced to his observation of a "moderate smell" of cultivating marijuana coming from a residence whose owner was on vacation in Mexico.

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1 AS 11.71.040(a)(2); AS 11.71.040(a)(3)(F); AS 11.71.040(a)(3)(G); and AS 11.71.040(a)(5).2 97 P.3d 93 (Alaska App. 2004).

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Smith contended that Young's factual allegations were less supportive of a finding of probable cause than the evidence provided to the magistrate in Crocker because in that case, the police smelled a "strong" odor of marijuana and found that Crocker's electricity usage was higher than normal. Smith pointed out that, in his case, the police made no effort to check the electrical consumption for his mobile home and relied on a "moderate" smell of marijuana to establish probable cause. Smith concluded that, if the information in the officer's affidavit in Crocker was not sufficient to establish probable cause, then the affidavit in his case was insufficient.

The State pointed out that Young's affidavit showed that he was well-trained [**6] and experienced in smelling commercial amounts of growing marijuana. Young swore in his affidavit that smelling cultivating marijuana in the air outside a building is indicative of a commercial grow. The affidavit stated that, if an officer can smell cultivating marijuana on the outside air, the amount being cultivated is likely in excess of four ounces because marijuana plants must be present in a sufficient number or mass for the odor to be detectable outside of a residence. Young's affidavit further explained that a personal-use grow does not typically involve a venting system, which is normally responsible for conducting the smell to the outside air. The State also pointed out that Young stated in his affidavit that, in all of his experience, he has never smelled packaged or personal-use marijuana stored in someone's house, and that one marijuana plant grown indoors in Alaska yields approximately two to three ounces on average.

The State further pointed out that Young's affidavit included an analysis of statistical information from his unit that showed that, when an officer smells the odor of cultivating marijuana outside a building, ninety-six percent of the time it is a felony [**7] commercial grow operation. Judge Brown rejected the State's arguments and granted Smith's motion "for the reasons stated by Defendant in his memorandum and reply in support of his motion to suppress."
Discussion

HN1Go to this Headnote in the case.This court reviews a magistrate's determination of sufficiency of the allegations of facts in a search warrant application for an abuse of discretion. 3 Only the information brought to the magistrate's attention may be considered by this court, 4 and it must be considered in a reasonable and common-sense manner. 5

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3 State v. Bianchi, 761 P.2d 127, 130 (Alaska App. 1988).4 State v. Jones, 706 P.2d 317, 326 (Alaska 1985).5 State v. Chapman, 783 P.2d 771, 772 (Alaska App. 1989).

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HN2Go to this Headnote in the case."Probable cause to issue a search warrant exists when' reliable information is set forth in sufficient detail to warrant a reasonably prudent [person] in believing that a crime has been or was being committed.'" 6 In Noy v. State, 7 this court relied on Ravin v. State 8 and held that HN3Go to this Headnote in the case.adults may possess, in their [*654] home and for personal use, less than four ounces of marijuana. In State v. Crocker, 9 this court held "that a judicial officer should not issue a warrant to search a person's home for evidence of marijuana [**8] possession unless the State's warrant application establishes probable cause to believe that the person's possession of marijuana exceeds the scope of the possession that is constitutionally protected under Ravin." 10

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6 Van Buren v. State, 823 P.2d 1258, 1261 (Alaska App. 1992) (quoting Harrelson v. State, 516 P.2d 390, 396 (Alaska 1973)).7 83 P.3d 538 (Alaska App. 2003), on rehearing, 83 P.3d 545 (Alaska App. 2003).8 537 P.2d 494 (Alaska 1975).9 97 P.3d 93 (Alaska App. 2004).10 Id. at 94 (citing Ravin v. State, 537 P.2d at 494).

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The State argues that Young's affidavit established probable cause to believe that Smith' s mobile home contained more than four ounces of marijuana, and that Smith was growing marijuana for commercial use. The State points to specific sections in Young's affidavit which asserted that: eighty-one of the marijuana grows seized by Young's unit from 2000 to 2004 were discovered by officers smelling growing marijuana, and in ninety-six percent of those seizures, a felony level grow operation was discovered; a budding marijuana plant produces the strongest odor and, usually, the larger the buds, the stronger the smell; the ability to smell the odor of cultivating marijuana [**9] outside a building is, by itself, indicative of a commercial grow operation because it typically indicates the use of an installed air venting system; and Young's unit rarely found personal use grow operations.

Smith argues that Crocker stands for the proposition that "the assertion of an odor of marijuana without more evidence indicating criminality cannot provide sufficient probable cause to uphold issuance of the search warrant," and that the allegations of illegality in this case fall below those allegations held to be insufficient in Crocker. In addition, Smith now argues that the statistics in Young's affidavit are unreliable because the data consists only of those instances in which the police ultimately seized the marijuana they smelled. Smith points out that the affidavit does not specify whether and how many times Young's unit smelled cultivating marijuana but did not seize it because the grows were not commercial grows.

In Crocker, this court ruled that the search warrant application in that case demonstrated probable cause that marijuana was being grown in the defendant's home, but the application did not provide any information that the defendant was cultivating more than [**10] four ounces. 11 Although the application asserted that the smell of growing marijuana was "strong," this court noted that the application contained no assertion that the strength of the smell gave the officers any indication of the amount of marijuana that might be growing inside, or that a correlation could be drawn between the strength of the odor of growing marijuana and the amount of marijuana being grown. 12 Without more information than a strong smell, this court held that there was nothing to indicate that the defendant's possession of marijuana violated Ravin and Noy. 13

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11 Id. at 97-98.12 Id. at 97.13 Id.

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The central question here is whether the affidavit in support of the search warrant application shows a fair probability that Young's mobile home contained evidence that Young was conducting a commercial marijuana growing operation. 14

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14 Id. at 98.

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Young's affidavit provided information that linked his ability to smell marijuana from the driveway of Smith's property to a probability that the mobile home contained evidence of a commercial grow of marijuana. As the affidavit stated, Young was able to smell the odor associated with growing marijuana outside Smith's mobile home. Young's [**11] experience, corroborated by the statistical analysis of previous cases with his unit, was that, in all likelihood, there was a commercial quantity of marijuana inside Smith's mobile home because of the obvious odor outside. This information remedied the deficiency found in Crocker. Thus, we conclude that Young's affidavit established probable cause to believe that evidence of commercial marijuana cultivation would be found in Smith's trailer. Accordingly, we reverse the superior court's order granting the motion to suppress and dismissing the indictment.

[*655] We now address Smith's argument regarding the potential flaw in the statistical analysis included in Young's affidavit. Smith argues that additional information could undermine the persuasive force of the assertions in Young's affidavit. But this issue was not litigated in the superior court. Perhaps there is additional information about Young's unit's discovery of marijuana grows that would undercut probable cause. This possibility presents a situation similar to that addressed by our supreme court in State v. Malkin. 15 If Young's summary of the statistical information about his unit's experience with marijuana grows contained material [**12] misstatements of fact or material omissions of fact, Malkin provides the framework for evaluating that claim. 16

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15 722 P.2d 943 (Alaska 1986).16 Id. at 946.

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HN4Go to this Headnote in the case.[O]nce a misstatement or omission is established, the burden of proving that it was neither reckless nor intentional shifts to the state. A failure to meet this burden will vitiate the warrant if the misstatement or omission is material, that is, if deletion of the misstated information from or inclusion of the omitted information in the original affidavit would have precluded a finding of probable cause. A non--material omission or misstatement -- one on which probable cause does not hinge -- requires suppression only when the court finds "a deliberate attempt to mislead [the magistrate]." 17


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17 Lewis v. State, 862 P.2d 181, 186 (Alaska App. 1993) (quoting Malkin, 722 P.2d at 946 n.6) (footnotes omitted).

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However, Smith has not litigated this issue because the superior court granted his motion without considering these potential issues. Accordingly, Smith will be entitled to litigate these claims when the case returns to the superior court for further proceedings on the indictment.
Conclusion

The order of the superior court granting [**13] the motion to suppress and dismiss the indictment is REVERSED.