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 On appeal, defendant argued that the Alaska Legislature improperly repealed a medical marijuana initiative, that the legislature illegally modified the initiative regarding the return of any medical marijuana-related property seized, and improperly repealed the portion of the initiative that permitted a person to prove that more than an ounce of usable marijuana and six live plants were required to address a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CORE TERMS: marijuana, initiative, patient, repealed, affirmative defense, caregiver, implied repeal, voter, search warrant, opening brief, plants, moot, dispositive, questions of law, controlled substance,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.