State v. American Civil Liberties Union

364 turn оn our assessment of simply should not outsourcing, regarding silence

CBA's merits. its relative from the instant distinguishable importantly case out, points under the CBA's As the court .31 "can clause the arbitrator add arbitration strong presumption the Coupled with to, anything the nothing nor subtract from" accurately arbitrability, is set which favor of evaluating an arbitrator Accordingly, CBA.35 many cases opinion,32the forth in the court's outsourcing grievance would be limit CEA's delving into the merits admonishing against interpretation of the to examination ed its in order to determine claim of a union's not have the existing and would parties' CBA the court has cho- suggest arbitrability limited, an modify Thus power to the CBA. gen minority approach distinctly take a conclude, as court well the arbitrator has determi preliminary on a resting its decision concluded, interpretation that CEA's interpretation of the CBA nation that CEA's that "the CBA implausible is the CBA implausible. is outsourcing." subject speak to the simply does not determination would But that 36 decision attempts to bolster its The court arbitrator to make because one for the minority by pointing approach to take this interpretation or construction of the "the Employment: Relations the Public out that very thing is the [arbitrator] [CBA] (PERA)33 give employ does not CEA's Act bargained for." parties binding power compel interest ees CEA But this is irrelevant. arbitration. Therefore, respectfully I dissent. arbitration, which only grievance seeks for, nоt specifically have contracted CEA claims interest arbitration. outsourcing parties' ex

District's violates compel

isting not seek to arbi CBA-it does purpose renegotiating the for the

tration The court thinks that terms of CBA. interpretation implausi of the CBA is 'CEA's Alaska, Marquez, At- David W. STATE claim not and thus characterizes CEA's ble torney Alaska, for the State of General interpretation of the dispute as a about capacity, Appellants, in his official an effort "to amend & CBA but as collective by adding provision bargaining contract fairly to contain." that it cannot be said UNION AMERICAN CIVIL LIBERTIES grievance fact that involves a But the CEA's ALASKA, Doe, and Jane OF Jane potentially implausible interpretation of a Roe, Appellees. request does not mean that its CBA grievance arbi arbitration under CBA's No. S-12370. if it clause should be viewed as is tration Supreme Court of Alaska. request for interest under PERA. arbitration moreover, above, ques And discussed April interpretation tion or not CEA's whether plausible question for the the CBA is

arbitrator, not for the courts-our decision arbitrability

regarding the of CEA's: claim Lorp, Majority Op. at 357.

31. See 20 A. Wiuiston on Contracts (4th ed.2001) (discussing importance § 56:46 Id. history parties' specific bargaining ). court's in Local Union No. Majority Op. at 352-53. Ivory Indep. Union Port 37. Procter & Gamble , Mfg. Co., & 298 F.2d N.Y. v. Procter Gamble (2d Cir.1962). 33. AS 23.40.070. marijuana in continuing to use their

either risking prosecution giving up homes and that the need to make its use. We conclude product challenged choice is not a plaintiffs will remain statute because the sub- ject regard- under federal lаw reason, how we rule. For this less of Guaneli, Attor- Special Assistant Dean J. and because other factors that counsel General, Colberg, Attorney Gen- ney Talis J. against deciding setting in an abstract cases eral, Juneau, Appellants. for any present, are also we chal- conclude lenge to the statute must await an actual Brandeis, Founda- ACLU of Alaska Jason prosecution. Wolf, tion, B. M. Allen Anchorage, Adam Foundation, Cruz, Santa Cal- Hopper, ACLU

ifornia, Appellees. for AND I. FACTS PROCEEDINGS Clendaniel, Dorsey Whitney F. & Allen Legislature In June 2006 the Alaska LLP, Anchorage, for Amici Curiae Dr. Mela- 11.71.060(a) pos prohibit amended to AS Dreher, Ostrow, Craig Dr. David and Dr. nie marijuana.2 of less than one ounce of session Reinarman. American Civil Liberties Union of Alas The individuals, anonymous ka and two Jane Doe FABE, Justice, Chief Before: (collectively, Roe "ACLU" or Jane MATTHEWS, EASTAUGH, CARPENETI, declaratory injune- "plaintiffs"), sued for WINFREE, Justices. relief, They argued tive that section .060 as privacy conflicts with the clause of amended OPINION Constitution,3 interpreted in the Alaska as State,4 Ravin v. to the extent that it criminal MATTHEWS,Justice. possession marijua izes of small amounts of doctrine, the constitu Under the personal na in the for use. home adults tionality generally may of a statute not be temporary The ACLU moved for a re challenged proposition. as an abstract The preliminary injunction present brought straining in the case have order and challenge newly hearing At a pre-enforeement pending amend resolution the suit. prohibits Superior Judge A. ed statute and before Court Patricia Col marijuana. They agreed claim that for a use of because lins the ACLU its motion temporary preliminary restraining the statute criminalizes the use adults of order and marijuana injunction small amounts of in their homes it could be treated as a motion for summary judgment. Later the State moved privacy rights interpreted violates their on stand to dismiss Jane Doe and the ACLU question Ravin v. State.1 The addressed opinion general ing grounds. argued is whether The that Doe this bar on State adjudication apply. standing pro abstract should The lacked because she could seek plaintiffs argue exception, contending marijuana for an tection under Alaska's medical put it is unfair to them to a choice of law'5 It further contended that the ACLU infringed. legislature implement 1. 537 P.2d 494 The shall section."). 9, (criminalizing § pos- 2. Ch. SLA 2006 marijuana session of in amounts smaller than (holding 537 P.2d at that Alaskans ounce); 11.71.190(b) (defining one see also AS right privacy have fundamental in their marijuana as a schedule VIA controlled sub- protecting possession by homes and adults of stance). legislature also amended AS marijuana small amounts of in the home for 11.71.050(a)(2)(E), making it a class A misde- use). possess marijua- meanor to one ounce or more of validity § na. Ch. SLA 2006. The section .050 at in this as amended is not issue plaintiffs subsequently 5. AS 17.37.010-.080. The case. any challenge dropped based on medical use of marijuana. I, ("The right § 3. Alaska Const. art people privacy recognized and shall not be (6) Marijuana many body and brain or associational stand affects organizational lacked functions; opposed the ACLU's it often contains bacteria and also ing. The State summary fungi harmful to humans. relief or preliminary motion summary judgment and cross-moved (7) higher percentage ju- A of adults and superior concluded judgment. court arrested in Alaska have veniles standing challenge plaintiffs had systems in their the time of arrest. "they exposed poten the law because (8) parent marijuana, If a then uses their possession of criminal tial likely are much more to become children marijuana in their homes." amounts of small users; studies have shown that court, order, relying on our In the same penalties perception criminal increase the Ravin, summary granted declara among teenagers using of the risks of mar- tory judgment in favor of the ACLU. ijuana, reducing thus use. appeals. argues It that Ravin The State argues marijuana The ACLU that has not longer controlling no be considered should changed significantly since Ravin was decid- reasons. The State contends for several ed, substance, relatively it is a harmless intoxicating marijuana is much more now grounds for reconsidering and that no exist it in 1975 Ravin was decided.7 than was when argues if Ravin. The ACLU further Further, according peоple to the more the court were inclined to reconsider Ravin marijuana using starting and to do so hearing appropriate a remand for a would be younger ages than at the time Ravin was marijuana the assess nature of and the decided, consequences and the adverse of consequences of its use. marijuana The using are better understood. points legislature out that the held State After this case was submitted enacting hearings marijuana usage before on appeal, requested supplemental on we brief- and made a number of the 2006 amendments ing question ripeness. of In their findings. The summarizes the find State supplemental briefing, parties argued both ings, part, in as follows: appeal is fit for resolution because plaintiffs otherwise must risk eriminal

(1) Marijuana potency has increased dra- challenge in order to prosecution amend- matically years, particularly in the last 30 disagree ed statute. We and conclude that Alaska, corresponds and to an increase ripe it this case is not because does not arise hospital and treatment re- rehabilitative prosecution brought from an actual under the marijuana use. lated to approach The amended statute. relaxed (2) Hundreds of Alaskans are treated for ripeness ‍‌‌‌​​‌​‌‌‌‌​​‌​‌‌‌‌‌​‌​​‌‌​‌​‌​​‌‌‌‌​​‌​​​​‌‌​‌​‍respect taken with sometimes marijuana year, more than half abuse each challenges pre-enforcement to criminal laws children; being pregnant women Alaska appropriate is not here because marijuana higher than the at a rate use already of for home face risk average. national marijuana drug federal statutes. use under (3) psychologically Many users become de- marijuana recognized pendent on under II. OF REVIEW STANDARD clinical standards.

(4) marijuana Early exposure increases and ACLU contend that we State prob- social the likelihood of health and ripeness superior should review the court's lems, including problems. mental health conclusion for an abuse of discretion. We (5) disagree employ de review. The Many people treated for alcoholism and novo require- marijuana, and ACLU conflate the two and alcoholism treat- State also abuse declaratory judgment-standing marijuana ments ment is more difficult when prudential granting basis for declara- used. accompany legislative findings that the ACLU had stand- 7. The 6. The court concluded that average po- indicate that the 2006 amendment ing its members who use to sue on behalf of tency in Alaska in 2003 was used personal purposes in the home. stronger nearly that used in fourteen times than the 1960s 1970s. III. DISCUSSION tory different standards relieft-and requirement. attach to each review that Requirements Ripeness A. The declaratory judgment stat Alaska's Doctrine. part: "In case of an provides ute relevant statе, superior controversy in the actual controversy" The "actual limitation court, filing appropriate of an upon the declaratory judgment act13 re- Alaska's rights legal may pleading, declare general power fleets a constraint on the party seeking the of an interested relations courts to resolve cases. Courts should de declaration, further relief is whether or not plaintiff standing cide cases when a has Though superior sought."8 or could be ripe to sue and the case is and not moot.14 relief, declaratory "may" the su court issue ripeness power Because constrains may only perior court exercise this discretion act, rely courts to courts should not on an actual controversy."9 in a "case of agreement by ripe that a case is controversy" to an "actual reference statute's for decision.15 its recent decision Alos- standing, encompasses considerations Right ka Action Committee Life Political mootness, ripeness.10 As we have re Feldman,16 the Ninth Circuit Court of cently recognized, this court is the ultimate Appeals explained requirement the basic of such issues and we review de novo arbiter ripeness: 'pure legal questions "While superior court's determination.11 require development little factual are more prior To the extent that our decisions have likely ripe, party bringing preen- to be a a suggеsted that abuse of discretion review challenge pres forcement nonetheless must applies superior finding a court's of to both 17 ent a 'concrete factual situation." We controversy ruling a that an actual and de similarly recognized justi- have that a case is claratory respects appropriat relief is other e,12 clarify light we now those cases in of point ciable if it has matured to a our more recent decisions. warrants decision.18 Alaska's stand "[WJhile Comm'n, 937, 22.10.020(g); see also Alaska R. Civ. P. & 8. AS 102 P.3d 942-43 n. 31 57(a). 2004); Brause, 21 P.3d at 358. 995, Asplund,

9. v. 458 P.2d See 998-99 13., 22.10.020(g). AS Jefferson (Alaska 1969). Brause, 14. See 21 P.3d 358. State, Servs., Dep't 10. Brause v. Health & Soc. of 357, 21 P.3d 358 See, eg., City Sparks, Appx. Istrice v. 8 Fed. of (9th Cir.2001) ("[Blecause 841, 843 issues of State, Servs., Dep't v. & Jacob Health Soc. of involve, at least the existence of ripeness part, Servs., 1181, Children's 177 P.3d 1184 Office of Controversy," rely upon a live 'Case or we cannot (Alaska 2008) (reviewing superior court's dis- parties concessions of the and must determine "[mJoot- missal for mootness de novo because ripe (quot whether the issues are for decision." [sJtanding ness[,] ... and are ... ripeness ques- Cases, ing Regional Reorganization Rail Act 419 law, calling independent judgment tions of review."); 102, 138, 335, U.S. 95 S.Ct. 42 LEd.2d 320 Fisheries, Vanek v. Bd. 193 (1974))); Sisseton-Wahpeton Sioux Tribe v. Unit 283, (Alaska 2008) ("We apply P.3d 287 our States, 1199, (D.S.D. F.Supp. ed 804 1204-05 independent judgment determining mootness 1992) ("[In deciding whether the ... claim is law."). question because mootness is ripe, by allegations this Court is not bound in the Federal relеvant because Alaska's precedent, complaint by stipulations . entered into declaratory judgment act was modeled after the Waricut, parties."); 10B Aran Feperar Artaur Cmartss act, (2006), § federal 28 U.S.C. 2201 see Alaska Mary Kay anp Kang, R. Miter & Practice Dodge Airlines, Aviation, Inc. v. Red 475 Inc., 2757, (1998). § Proceoure at 507 (Alaska 1970), supports 232 also de See, eg., Right novo review. Politi- Life (Oth Cir.2007). 16. 504 F.3d 840 cal Action Comm. v. Feldman, 504 F.3d (9th Cir.2007) (reversing 848-49 a district court's (quoting Diego County Id. at 849 San Gun grant declaratory appeal relief because Reno, (9th Rights Comm. v. 98 F.3d controversy was not an actual case or as it was Cir.1996)). ripe). surveyed ripeness precedent (Alas- In Brause we our E.g., Lowell Hayes, - 2005); Anchorage Equal Rights explained: ka Thomas v. Hardship B. The this court should not Parties Face Little If ing rules are liberal Their Claims Are Not Resolved in a advisory opinions or resolve abstract issue Hypothetical Setting. law.19 questions of

Both argue the State and ACLU concept pre-enforeement can be ex challenge ACLU's ripe enforcing because the threat of AS practical abstract and formu plained both 11.71.060(a) plaintiffs change forces to either The abstract formulation is lations. their behavior or face the risk of criminal ripeness depends on "whether there is liability. party Neither sets forth other controversy, parties hav substantial between hardships might if occur we refrain from interests, legal of sufficient im ing adversе reaching appeal. the merits of this mediacy reality warrant the issuance conclude that the We risk eriminal Habil- declaratory judgment."20 a more On ity argument rings hollow because the activi- level, ripeness analysis practical our funda plaintiffs engage ties wish to in are mentally "balances the need for decision already Thus, criminal under federal law. against the risks of decision." We examine strong do not have a claim of judicial fitness of the issues for decision" "the pre-enforeement need for a decision on the hardship of withhold and "the constitutionality of the amended statute be- ing consideration." court practices cause their current are and will illegal expose remain them to a risk of formulation, varying de Under prosecution, regardless criminal any ruling might ac grees of concreteness be deemed this court make. judicial on the need for a ceptable depending Thus, speech, in the context of free decision. 1. The Federal - Controlled Sub- may adopt a "court somewhat [a] stances Act relaxed - - criminalizes - the justiciability" spe approach plaintiffs' because residential personal, - traditionally consumption cial consideration afforded - imposes penalties speech rights.23 a Where statute criminal exceed conduct, state sanctions. sup izes threats of enforcement will challenge if port pre-enforeement a part As of President Nixon's "War on actually plain are real and force Drugs," Congress passed Comprehensive threats the behavior Drug Abuse Prevention and Control Act of forgoing tiff to choose between facing penalties.24 1970, also known as the Controlled Sub- Waicet, 20, degree immediacy prospective inju- (quoting supra § of a Id. note 3532 at ry satisfy ripeness 112) (internal needed to doctrine has omitted). marks , quotation systematically explored not been in our case Instead, law. our cases contain statements Right 23. Alaska to Political Action Comm. v. Life " '[aldvisory opinions' such as (9th to avoid- Cir.2007). Feldman, 840, 504 F.3d ed," ripeness judicial "[the or doctrine forbids " 745, disagreements,' Hayes, review of 'abstract "courts or 24. Lowell v. 117 P.3d 757-58 real, 2005) (concluding 'a disputed pros- should decide substantial contro- that a threat of versy,' hypothetical question." ripeness); not a mere ecution was for v. insufficient Thomas (internal omitted). Comm'n, 937, Anchorage Equal Rights 21 P.3d at 359 footnotes 102 P.3d (Alaska 2004) (holding 942-43 that risk of en- Products, Alaska, Bowers Inc. Univ. a - Office forcement of law was sufficient for (Alaska 1988); 755 P.2d 1097-98 see also allegedly appellant where the law with. interfered Chugach Ass'n, Zoerb v. Elec. 798 P.2d landlords' First Amendment free exercise of reli- (Alaska 1990) ("[S]tanding illusory is not an gion rights by requiring housing them to rent to Alaska."). requirement couples); unmarried State v. Planned Parenthood Alaska, (Alaska 2001) (allowing Waicet, Brause, (quoting 21 P.3d at 359 13A er pre-enforcement challenge doctors maintain - Feperar anp requiring parental AL, § 3532, law consent to abortions for Practice Proceoure at 112 (2d ed.1984)). seventeen, girls age require under as law would ' doctor-appellants "change prac- their current Waicut, 3532.1, (quoting expose § supra note tices and them to civil and criminal liabil- 114-15). at ity they comply"). if failed act, martjuana Act.25Under this is stances it criminalized conduct that California's medi drug drug marijuana legalized.35 I 26-a cal classified as a Schedule law As the facts of abuse, demonstrate, any high potential Drug for lack of Raich with Federal En use, accepted accepted Agency and lack of forcement medical enforces the Controlled safety supervision.27 under medical Act for use Substances without deference to state marijuana any quantity possession policies. law or Accordingly, both before and By comparison, is a federal crime.28 current Ravin, after our the risk of feder al has threatened Alaskans' use marijuana as a Alaska law classifies Schedule marijuana. drug-a drug degree VIA the lowest of of And prose- with the risk of federal danger probable danger person marijuana to a or possession-amplified or ecution for public.29 by harsh penalties-remains strong federal reality irrespec will face Unsurprisingly, the Controlled Substances any ruling tive of we make in this pоssession marijuana Act treats and use of as appeal. a much more serious offense than Alaska law. The federal sanction for a first-time 2. The declarations Jane Doe any possessing quantity marijua offender suggest Jane Roe neither imprisonment a term of of not more na amended statute will affect their year $1,000, than one and a fine of at least or conduct nor that will be the person knowingly possesses both.30 A who subjects of enforcement. marijuana use also faces a feder $10,000.31 penalty al civil of not more than complaint The ACLU's declaratory injunctive By comparison, suggests relief under the amended Alaska fear of en- penalty statute the for a first offense of forcement is the ripeness. sup- basis for To port position, Jane Doe and Jane Roe is, most, in the home $500 jail fine with no time.32 submitted regarding declarations their use marijuana. Jane Doe declares that she uses Regardless case, of the outcome of this marijuana purposes, though medicinal she court, nothing any there is that this other did register not as a medical user. government, branch of the Alaska could do to Jane Roe declares that she uses severity affect the risk or of federal enforceme relieve stress. nt.33 Supreme The United States Court's declarations, recent 'decision Gonzales v. Reading Raich shows we conclude that continuing supremacy drug any of the federal incremental deterrence associated with Raich, upheld laws.34 In the Court the Fed 11.71.060, opposed AS to the current fed- laws, eral Controlled though drug Substances Act even eral impact will plaintiffs. 12.55.135(). person possessing 32. AS A less 91-513, 25. Pub.L. No. 84 Stat. 1236; see also than one ounce of in the home for Raich, v. 1, 10, 545 U.S. 125 S.Ct. Gonzales personal potential (2005). use faces incarceration if 2195, 162 L.Ed.2d 1 met, compounding pre- conditions are such aas being probation parole. vious conviction or on or 812(c) (1999); Raich, § 26. 21 U.S.C. see also suggested Neither Jane Doe nor Jane Roe have 14-15, U.S. at 125 S.Ct. 2195. greater penalties might apply that to their situa- tion. 812(b)(1). U.S.C.§ 27. 21 Supremacy 33. The Clause of the United States 844(a). § exceptions There are limited Constitution, provides: Constitution "This government-approved marijua- activities such as the Laws of the United States which shall be See, 822-23, 844(a). eg., §§ na research. id. made in Pursuance thereof shall be the su- Land; preme Judges every Law of the and the 29. AS11.71.190. thereby, any Thing State shall be bound in the any Contrary Constitution or Laws of State to the VL, notwithstanding." U.S. Consz. art. cl. 844(a). § U.SR.C. Because statute chal- lenged in this case criminalizes the 1, 7-9, marijuana, 34. 545 U.S. less than one ounce of 125 S.Ct. 162 LEd.2d we limit our penalties (2005). examination of criminal to this offense. 844(a). 29-34, § 31. 21 U.S.C. Id. at 125 S.Ct. - that, encounter, during the that AS 11.71.060 and he does not aver Doe Jane resisted comply police failed marijuana. Rather she detention or with ord hеr use of affect will "(elven concluded, Court legislature if the makes ers.38 The thus as we do states case, that there continue to use and would be little hard marijuana illegal, I will my Doe thus does it in home." possess ship appeal to the if the plaintiff were not Jane hypothetical setting. decided in a by the amended state seem deterred not in a asserts her belief Jane Roe statute. . Are C. Decisional Risks Present marijuana in amounts of right to have small home, go explains "I don't want her but noted, determining As we have whether incar- concern about jail." But Jane Roe's actual element of the controver- than under federal law ceration is more real exists, sy requirement we balance the assert- statute, since the the amended state under against need for a decision ed risks monetary fine on only imposes a small latter making a decision in an abstract context. In hardships Thus the as- offenders. first-time the above discussion we conclude that plaintiffs do not re- by both named serted "need" of the scale has little or no side constitutionality of quire we address the weight. It follows that this case should be 11.71.060at this time. AS ripe considered not if the normal deciding hypothetical with risks associated claims associational the ACLU While present. cases are We conclude that any allege facts dis- standing, it too did are. hardship its members faced tinguishing the amended from the AS was before 11.71.060 Dеpartment In Brause v. Health faced after the statute hardship its Services,39 members & Social we outlined some of the mere criminalization of

was amended. The considerations the "risks" side of the marijuana simply ‍‌‌‌​​‌​‌‌‌‌​​‌​‌‌‌‌‌​‌​​‌‌​‌​‌​​‌‌‌‌​​‌​​​​‌‌​‌​‍echoes extant federal law. scale: plaintiffs' note that the fears of

We also perception The central is that courts genu should not render decisionsabsent a may specula state criminal enforcement recognized tive and overstated. Ravin we dispute. ine need to resolve a real Unnee- essary judicial departments gen dissipate energies decisions prosecutors police litigants who have a erally pursuing individu better conserved are not interested merely possess quantities small real need for official assistance. As to the als who home for use.36 themselves, their courts should not un counselors, Thus, helpful prosecution, persons violating dertake the role of to face may need to be in a since refusal to decide itself be a the amended statute would healthy private police spur public reason to sudden to inventive situation where have planning possible ly their homes. a scenario bears alters the course enter Such . Lyons, City Angeles conduct so as achieve the desired ends similarities Los troubling Supreme in less or more desirable fashion. in which the United States Court Defendants, moreover, rejected speculative ripe a claim should not be аnd not litigation forced to bear the burdens of Lyons subject police to a choke would be hold in the future.37 The Court noted that justification, any without substantial may event find themselves unable to liti Lyons only risk acted in a faced this if he police manner to an encounter with gate intelligently if are to forced leading State, 95, 97-98, 111-12, (Alaska n. 70 37. 461 U.S. 103 S.Ct. 36. Ravinv. (1983). 1975) ("Statistics L.Ed.2d 675 for indicate that few arrests simple possession except occur in the home 105-06, 1660; simultaneously being when other crimes are in- Id. at 103 S.Ct. see also Alaska vestigated. general in law enforce- The trend in Right Feldman, Political Action Comm. v. Life (9th Cir.2007) (noting against that 504 F.3d 851-52 seems to be toward minimal effort ment any a "lack credible threat of en- there was simple marijuana, users of and concentration of challenged provision of the of the forcement" against danger- dealers users of more efforts and Code). Alaska Judicial Moreover, ous substances. statistics indicate possession for that most arrests 2001). (Alaska trial."). 39. 21 P.3d 357 in dismissals before Alaska result hypothetical possibilities delinquent support payments. with rath are in child grapple Perhaps noting than immediate facts. more After the definition of facial er unconsti lawmaking. tutionality, important, decisions involve we observed that if the statute worry unnecessary lawmaking that Courts applied were away so as to take the license avoided, be both as a. matter of should obligor of an who to рay was child unable judiciary role of the defining proper support, if would be unconstitutional as society reducing as a matter of applied point At case. that there that litigation premature risk that will lead to would be no rational connection between adjudication. These concerns ill-advised deprivation of the license and the approach an that translate into balances goal collecting support.[43] State's child against the risks of the need for decision explained But we pro substantive due The need decide is function decision. cess importance norms-requiring probability of the of the statute to have a relationship legitimate reasonable injury. gov anticipated risks purpose-would ernmental by difficulty be satisfied if are measured and sensi applied people statute were capa who are tivity presented, issues paying support.44 ble of development child need for further factual to aid decision.[40] Here argue the ACLU does not that AS present Several of these concerns are 11.71.060 is unconstitutional in all cireum- | this case. stances. The applies amended statute to use possession marijuana anywhere, or but the may facts aid in Concrete the deci- argues only possession ACLU home sion. constitutionally use is protected. The statute applies person," to "a argues but the ACLU statutes arе found a court When to be possessors adult users and unconstitutional, they may be found to be protected. applies The statute applied unconstitutional as or unconstitution any purpose, argues but the ACLU holding al A on their face. of facial unconsti only possession protected. use is tutionality generally means that there is no being We are thus not asked to declare the set of cireumstances under which the statute unconstitutional, facially amended statute applied can be require consistent with the many clearly it has applica constitutional ments of the A holding constitution.41 that a categories tions, by pre-determined but to define applied statute is unconstitutional simply the cireumstances under which the 45 means that under the facts of the appli case may statute operate. cation of the statute is unconstitutional. Un however, facts, der other the same statute adjudication case, But of an actual or sev- may applied be violating without the consti cases, eral actual categories cast these tution. light. in a may different There be cases State, We these distinctions where the conduct particular discussed of a defendant Department Revenue, Support Child En- closely is so to one or more of the connected Division v. Beans.42 At issue was safety health goals underlying foreement constitutionality permitting a statute amended per- statute the statute could of. Support Child missibly applied, Enforcement Division to even if Ravin retains suspend people general the driver's licenses of vitality. who Wricut, (quoting Id. supra at 359 note 20 at 727-28. 3532.1, 114-15). § originate 45. The ACLU, course, did not these Revenue, Dep't Support Child - Enforce- categories. They were established in Ravin. See Beans, ment Div. v. (Alaska 1975) State, Ravin v. 511 494, 1998). (holding "possession marijuana by of adults constitutionally pro- home for use is 965 P.2d 725. tected"). Id. at 728.

373 context, Relatedly, any when constitutional is factual and we warned at the raised, duty a this court has to . time we decided Evans that sues are future cases might require reasonable, us to take a statute, second look at to a where construe unconstitutionality.46 dangers of Rath avoid constitutionality statutory the down, employ But, will a statute we given er than strike scheme.... abstract nature construction, reasonably narrowing Evans, if one is a surprising it is not that a con may amended statute be a possible.47 The involving crete case a concrete factual see- constructions, narrowing A previously nario has a candidate unanswered uncovered quest upholding statute in cases construction ion.[52] safety goals directly involving the health and deciding In concerning here that our decision might is based devel on which statute constitutionality of the amended statute necessarily oped. case is nar a about This could be aided onе or more concrete rowing sort construction of some since scenarios, factual we take counsel from in amended statute is not unconstitutional all Sands. applications. question is what nar its against 2. Other factors also counsel rowing appropriate. Al constructions are unnecessary ruling. an processes adjudication lowing the normal Beyond the assistance facts place may provid take be of assistance in ing answer. concrete cases lend to the ultimate us, resolution of before some of the issue underlining experience have recent We other risk factors in mentioned Brause problems deciding potential with the consti present.53 question also before the tutionality a in the absence of statute is, court taken difficult one with alone, In Evans rel. Kutch v. actual facts. ex State arguments reasonable availabletobothsides. challenge a broad facial we considered high-profile It is also a case which the many aspects legislati tort reform Alaska's general public as well as the executive and part opinion In of our in that case we on.48 legislative government branches of are inter tolling provi of limitations upheld statute Further, sustaining posi the ACLU's against equal protection an sion for minors ested. necessarily require tion would that we de challenge.49 years A few later Sands ex clare the amended statute unconstitutional provision rel. Sands v. Green the same was part. respect legislative Due for the branch In challenged in a concrete case.50 Sands we government that we our exercise process struck down the statute on due requires duty declare statute grounds.51 ruling we observed: so unconstitutional squarely when faced with the to do That our Evans did not reach need so. particular merely this constitutional issue wisdom of the rule that reinforces IV. CONCLUSION generally deciding courts should avoid ab controversy cases. Evans involved a host of We conclude that the actual stract challenges requirement 22.10.020(g) abstract facial divorced from of AS has not been 1046, (Alaska2002) (plurality Inc. v. 48. 56 1048 P.3d Language, 46. Alaskans a Common Kritz, 183, (Alaska 2007). P.3d 192 opinion). 170 recently employed 47. We this canon Alaskans Id. at 1064-66. Language, a Common in which we construed English only applying the Official Initiative as (Alaska 2007). 50. 156 P.3d government. Likewise, acts of Id. "official" (Alaska 2004), Blank, 90 P.3d 156 we State construed a statute to include constitutional re- Id. at 1133-34. quirements that we set forth in an earlier case. ("In presented Id. at 162 the context of the facts case, we construe choose to subsection .031(g) in addition to the statuto- incorporate, Servs., 53. Brause v. Health & Soc. ry requirements, exigent Dep't re- circumstances [v. State, discussed in Schmerber quirements U.S. 86 S.Ct. 16 LEd.2d (1966) ]."). to fol- previously that we have declined ripe for law case is not this because satisfied required striking the balance low, long-held In from that stance. retreats decision. enough, doctrine, adjudicat- troubling fact alone is the risks of While ripeness the problematic today's opinion is made more in a constitutionality 11.71.060 AS ing the outweigh negligible protections the of the the setting its devaluation hypothetical will face if we do citizens of offers to the hardships that the Alaska Constitution the "need for issue. On this state, not decide decisional its overstatement of the this scale, us, plaintiffs' need is considering appeal before side of risks of decision" conduct, regardless. of position rejection strong their and united slight because its of the rule, would still be the court that we should of the before this court how impose which reasons, statutes under federal I criminal case. For these be- decide this than the amend- penalties requests much more severe heed the of all lieve that we should the risk side statute. On ed state of Alaska as well as the parties-the State that we ex- scale, echo those our concerns bring action-and citizens who in Brouse: pressed decide this case now. facts it will be immediate

Without more legal intelligently with to deal difficult Today's Opinion I. Runs Counter grant In order presented.... issues Long-Established Alaska Law. court would have to de [this] relief Today's begins by stating: opinion "Under is, unconstitutional. This clare a statute doctrine, constitutionality of ripenеss course, But power possess. that courts challenged generally may not be as a statute power that should be exercised it is not Alaska, In howev proposition." an abstract unnecessarily, doing so can undermine er, rais routinely accept and decide cases we and confidence in the courts public trust ing constitutionality of statutes as an interpreted an of lack indication proposition. We have done so abstract legislative and executive respect for the major virtually every constitutional case to Further, government. ruling branches years. us in most come before recent We constitutionality of a statute when on the recently did in State v. Planned Parent so concretely framed in issues are not ] Alaska,1 challenging a case the con hood decisions.[54 risk of erroneous creases the creating stitutionality of a statute eriminal superi- these In accordancewith views, penalties perform for doctors who abortions ACLU, in favor of the judgment court's judi parental on minors without consent or Doe, Roe, and Jane is VACATED Jane plaintiff doctor had cial authorization. No appeal DISMISSED. difficulty prosecuted, but we had little been reaching the merits.2 In Alaskans CARPENETI, Justice, with whom Krits,3 Longuage, Inc. v. we decid Common Justice, WINFREE, joins, dissenting. constitutionality requiring of a statute ed the Justice, with whom CARPENETI, government English language use Justice, WINFREE, joins, dissenting. Plaintiffs, non- in various cirеumstances.4 - historically ripeness has Alaska law English speaking bi-lingual Alaskans and workers, un government had not been sued kept barriers to the courtroom low opinion not even der the statute.5 That did order to favor access for Alaska's citizens Indeed, this, ripeness. illustrative pointedly discuss Alaska courts. we have jurisprudence, lenient counterparts from our in the federal Alaska's differed Today's relying eighteen cases since 2001 that raised abstract opinion, courts. on federal 3. 170 P.3d 183 Id. at 360. (Planned (Alaska 2007) 1. 171 P.3d 577 Parent Id. at 187. 11). hood 580; State Planned Parenthood at see also Id. 187-88. Alaska, (Alaska 2001) (Planned ). Parenthood I

375 Anchorage Equal Rights Comm Thomas v. issues, the merits we reached constitutional ission,8-a case where we found the dis seventeen, discussing without even often pute ripe after the Ninth Cireuit had to be uphold did we one ripeness.6 ripeness grounds- hear it on declined to llenge.7 cha aspect standing, an of and we "[r}ipeness is consistently to declined Why has this court standing re have often noted that Alaska's deciding way to avoid ripeness as a more lenient than their fed use quirements are deep-seated com of our It is because ready cases? ac counterpart, eral since favor - doors of Alas the idea that the mitment to judicial interpret forum."9 cess to a We leniently open standing, ripeness, to its citizens to and extension courts should be ka's to the courts: in order to facilitate access possible. As we said greatest extent 2002) (Alaska (deciding challenge facial to 1046 Parenthood II Alas In addition to Planned 6. - , see, constitutionality legislation Language, eg., Alaska of tort reform a Common kans - - for State, Group v. 167P.3d 27 InterestResearch brought by "allegedly persons Pub. who have injured (Alaska 2007) pub (deciding challenge by plan facial tort actions" over state's filed or to file constitutionality group objection unripe); of statute to that claims were State v. lic interest (Planned Compensation Appeals creating Alaska Workers' Planned Parenthood Parent of discussing ripeness); I), (Alaska 2001) (deciding without even Commission 30 hood 35 P.3d d State, Manning, Dep't 161 P.3 challenge brought by Fish & Game v. facial constitutional doctors of (Alaska 2007) (deciding challenge to facial provider criminalizing 1215 to statute and abortion establishing constitutionality criteria of statute paren performance of abortion for minor unless hunting permit; been hunter had for subsistence obtained); judicial authorization tal consent or permit State, (Alaska 2001) addressed facial chal (de but court denied Sampson v. 31 P.3d488 "as-ap lenge though have had even he challenge constitutionality ciding to of facial Village challenge); plied" State v. Native Nu manslaughter prohibiting statute assisted suicide of (Alaska 2007) (deciding napitchuk, 156 P.3d 389 brought by terminally patients; ill no doctors constitutionality challenge of statute to suiсide); facial assisting yet prosecuted had been public awarding attorney's interest cases fees in Parenthood, (Alaska 28 State v. Planned P.3d 904 City Skag discussing ripeness); even without 2001) (deciding challenge of to constitutional facial Robertson, (Alaska 2006) way 143 P.3d 965 v. ity regulation denying funding medically of challenge, discussing (deciding without facial necessary brought provid abortions abortion limiting in-person city ordinance so ripeness, to er, discussing provider's whether or not without by plaintiffs businesses that who owned licitation yet funding patients denied under stat had been solicitation, although they in-person had not used ute); Anchorage Dep't Employees Police Ass'n v. prosecu prosecuted yet or threatened with been Anchorage, Municipality 24 P.3d 547 of Cabaret, Hotel, tion); Rest. & Retailers Interior 2001) (deciding challenge to constitutional facial Borough, v. Fairbanks N. Star Ass'n 135 public safety employ ity city policy subjecting of (Alaska 2006) discussing (deciding, without drug brought by municipal tests ees to random challenge constitutionality ripeness, facial to tested). yet employees, none of whom had been by plaintiffs proposed tax who sold alco alcohol removing Even the cases in which the chal- assessed); yet on whom tax had not been hol but regulate grant lenged or statute did not conduct State, (Alaska ‍‌‌‌​​‌​‌‌‌‌​​‌​‌‌‌‌‌​‌​​‌‌​‌​‌​​‌‌‌‌​​‌​​​​‌‌​‌​‍2005) v. 109 P.3d Grunert deny Research a benefit-Alaska Pub. Interest discussing ripeness, (deciding, facial without Grunert, Myers-it Group, remains constitutionality regulation challenge creat majority of abstract constitutional chal- the vast allocating ing cooperative fishery and salmon holding lenges, has eschewed the case this court fishery brought by quota fishers who chose not ripe and has decided the case. not Anchorage Equal join cooperative); Thomas v. directly analo- And in the cases that are most Comm'n, (Alaska 2004) (de Rights 102 P.3d 937 case-pre-enforcement gous facial chal- to our constitutionality prohibiting ciding of statute I, (Planned lenges to criminal statutes Parenthood against unmarried ten landlord discrimination Thomas, II, City Skagway, Planned Parenthood yet brought by who been ants landlords had Sampson)-we have never dismissed statute; holding prosecuted landlords' under deciding every ripeness grounds, case on instead previous ripe, although claims Ninth Circuit had merits. its Treacy Municipality ly unripe); them held (Alaska 2004) (deciding Anchorage, P.3d 252 Servs., Health & Soc. State, 7. Brause v. Dep't of constitutionality municipal challenge to facial (Alaska 2001) (declining to 21 P.3d 358-61 minors; though had even minors been curfew on challenge statute constitutional address broad arrested, on its face with court evaluated statute marriage brought by prohibiting same- same-sex arrests); Myers using specific v. Alas out facts of couple). sex (Alaska 2003) Corp., Hous. Fin. 68 P.3d 386 ka constitutionality (deciding challenge to facial P.3d 937. selling right tobac to future income from statute using proceeds for rural co sеttlements and sale schools); 9. - Id. at 942. Kutch v. Evans ex rel. is that an identifiable "The idea argument basie federal This law. both devalues standing fight significance out a enough pro- Alaska constitutional trifle is 0 Today's opinion re question principle."1 misapprehends tections likelihood of law,11 repeated forgetting our on federal lies prosecution federal of violation of federal approach ripeness marijuana in that our laws Alaska. statements approach: the federal "We have differs from possibly of a The risk unconstitutional consistently this difference [between found prosecution independent under Alaska law is approaches] and Alaska to be the federal any possible prosecution. of federal important, emphasizing the need to follow government govern- state and the federal . jurisprudence if unique our 'own Alaska independent sovereigns, ment are and have quality standing doctrine is to retain its power punish the the same conduct inde 2 By ignoring openness."1 Alaska's relative Thus, pendently of each other.13 even if the jurisprudence, today's open ripeness more government prosecutes federal Jane Doe for standing opinion changes our law on dramati marijuana, possession may her view, and, my cally in for worse. The the prosecute her as well under AS 11.71.060.14 previously they court closes its doors where unconstitutional, prosecution If the state is open.

were injury prosecution her from that does not change prosecuted by even if she is also Hardships Assessing In II. Par- government. federal It is no answer to the Face if the ties Court Refuses To shame, expense, and embarrassment of a Case, Today's Opinion Decide this possibly prosecution unconstitutional state Devalues Alaska Constitutional Pro- prosecution. that she also risks federal Incorrectly tections Assumes the Likelihood of Federal Pros- assumption regarding B. Incorrect risk Equal ecution Is to the Likelihood - prosecution of federal Prosecution. State addition, In perhaps impor even more A. Devaluation of Alaska constitution- tant, vastly danger smaller of federal protections al prosecution (compared prosecution) to state examining question matter, practical first under the must be a considered. As hardships doctrine-the prosecution the risk of simple federal marijuana if the case possession appears face is not decided in Alaska prosecution-today's virtually advance of a criminal prosecu nil. In terms of actual tions, opinion example, concludes "the risk of criminal brought the United States liability argument rings hollow" because mar- drug possession zero misdemeanor cases year criminal under Alaska in fiscal ijuana possession 200515and less than ten already is position "poses 14. The state is clear that its (quoting I, 10. Planned Parenthood 35 P.3d at 34 - Court, Div., Wagstaff Superior Family plaintiffs Court sufficient threat to the individual 1220, (Alaska 1975)). 1225 & n. 7 dispute Supplemental render live." State's 5, Ripeness Memorandum on State Alaska v. Alaska, Am. Civil Liberties Union No. S-12370 Opinion 11. See at 368. 15, 2008). July It notes that it "has general prosecute never intent to Thomas, disclaimed (quoting 102 P.3d at 942 Bowers of a small amount of Prods., Alaska, Inc. v. Univ. 755 P.2d Office (Fd.) (The that, the home." state also notes "in (Alaska 1988)). 1095, 1097 n. 5 law, spirit conforming to the rule of Attorney General has advised all Alaska law en- (Alas- 13. See Booth v. agencies change forcement their current ("[Ilf App.1995) ka commits a crime person policies enforcement until this case is law, prohibited by that both federal and state (Id.)). resolved." government gov- both the federal and the state separately prosecute person ernment can crime."). Previously prevent- AS 12.20.010 15. Bureau of Justice Statistics, Federal Justice prosecuting already ed the state from conduct Center, Statistics Resources FY Defendants prosecuted by government, the federal but Charged hittp://fjsrc. Cases, Alaska, in Criminal (follow legislature repealed urban.org charged this law last session. See Ch. "Defendants in crimi- § hyperlink, year, "filing SLA 2008. nal cases" select select municipal year year 2006 and fiscal whereas state and commissioned each fiscal cases three-year period During the year 2007.16 chаrged enforcing officers-who with drug approximately laws-number state 81, 2008, the state filed ending December - state, 1,200 spread ap over the entire 3,166 alleging violation cases approximately ninety-six proximately point locations.22 In (Misconduct Involving a Con of AS 11.71.060 ing possibility prosecution to the of federal Degree-pos in the Sixth trolled Substance discounting a basis for the difficult choice marijuana). These differences session of that both the state and the so elo surprising, given prosecution are not levels of elucidate, today's opinion ignores quently high enforcing drug Alaska's laws is a reality: danger of federal and local law enforce priority of both state simple marijuana possession in for Alaska is Alaska,18 "Investiga ment in while the FBI's low, vanishingly danger whereas the of state for the Alaska Division does tive Priorities" simple possession prosecution for is real and among drug enforcement ten not even list substantially higher. priorities.19 Finally, there are enumerated fifty agents regu only approximately regard, today's opinion federal In this misreads stating in "plaintiffs' Ravin v. State23 locations,20 larly assigned in three Alaska offense," (3) "Drug possession-misdemean- espionage; protecting erations and this coun- select Column," or," "Add select "U.S. Federal try cyber-based high-technology select from attacks and District," "Alaska," crimes; select select "Dis- (4) (5) Judicial combating public corruрtion; 25, (last 2009). HIML") play visited Feb. as: (6) protecting rights; combating civil transna- organizations tional national criminal Statistics, Justice Federal Justice 16. Bureau of (7) enterprises; combating major white-collar 2006 Defendants Center, Statistics Resources FY crime; (8) crime; combating significant violent Cases, Alaska, 2007, Charged FY in Criminal (9) supporting federal, state, local, and interna- Cases, Alaska, Charged in Criminal Defendants (10) partners; upgrading technology tional http://fjsre.urban.org Defendants {follow Alaska, succeed in the FBI mission. FBI hyperlink, year, charged in criminal cases'" select Division, offense," Investigative Priorities of the Alaska possession- "filing "Drug select select misdemeanor," (last Column," http://anchorage.{bi.gov/investigative.htral _ "Add select select District," "Alaska," 22, 2009). investigative priori- Judicial select "U.S. Federal visited Feb. HTML") (last "Display as: visited Feb. select 2009). appear prosecutorial ties of the FBI mirror explanatory and FY An note for FY 2006 priorities Attorney's of the United States Office case but states: "Cell contains at least one homepage for the District of Alaska. The exact value has been fewer than 10 cases. The Criminal Division of that office notes: "The prevent of withheld to to deductive disclosure prosecutes mainly felony Criminal Division of- personal Federal crime identities." statistics fenses. An active misdemeanor docket does ex- distinguish marijua- between misdemeanor ist, however, and cоnsists of the of (violation 844(a) § possession of 21 U.S.C. na occurring parks minor offenses or other federal (possession marijuana)) and misdemeanor of Attorney's enclaves." The United States federal drugs possession available. of other are not Office, Alaska, Division, District of Criminal Thus, likely these numbers most overstate http://www.usdoj.gov/usao/ak/criminal/index. number federal misdemeanor (last 26, 2009) (emphasis add- html visited Feb. cases. ed). persons in their homes for Prosecutions System marijuana possession Compilation ap- misdemeanor would from Alaska Court Court- - (run Group pear courts View data Rural User not to fall within the described activities. 20, 2009). Feb. Alaska, Message Special Agent 20. FBI from the eg., State Alaska Bu- See, Troopers, (last Charge, http://anchorage.fbi.gov/sac.html Drug reau of Alcohol and Enforcement Mission 26, 2009). visited Feb. Statement, http://www.dps.state.ak.us/ast/abade - 25, 2009); (last Municipality of An- visited Feb. Alaska, chorage, Anchorage Department, Alaska, Police 21. COPS Funds in 21 Araska Justice Forum - hotline), (drug tip http://www. Drug 3(2005), Information http://justice.uaa.alaska.edu/ at available (last muni.org/apd2/drugs.cfm visited Feb. (COPS forum/21/4winter2005/214winter05.pdf. 2009); Department, Fairbanks Police About acronym for the federal Office of Communi- is an po- Department (drug investigator and detective Services.) ("According ty Policing Oriented sitions), http://ci.fairbanks.ak.us/departments/ [Council], at the end the Alaska Police Standards 22, 2009). (last police/about.html visited Feb. therе were 1190 certified February Alaska."). officers in sworn are, (1) protecting priorities in order: 19. These attack; (2) pro- terrorist the United States from country foreign intelligence op- tecting 22. See id. at 366. from may speculative and overs authorities are the fears ones Alaskans have (And, indeed, the state ex emergency, tated."2 has recourse to the event of pressed pages discovery possibly fears. risk of protected identical See those infra 381-82.) state, federal, pertains Today's opinion per- that in activities Indeed, this risk. previously we have decid slightly broken in his and home the door virtually ed a case in identical cireumstances ajar. The individual knows that he left a Ravin, raising identical issues: in We noted marijuana small container in open the any "[the record does not disclose facts as his coffeetable. He must now decide wheth to the alleged situs Ravin's arrest and his police expose er he should call the and him possession marijuana."29 Ravin is the prosecution possession self to of less than case that the legislation current aims to over marijuana home, one ounce of in his or enter turn. It is difficult to understand how the encountering the house himself and risk legislation current properly cannot be ana an intruder. Or consider a wife who has lyzed while, specific the absence of facts at retreated to her bedroom after an altercation time, the same controversy the entire before with her husband in which hit he her. She us arose in the specific absence of facts. knows that there is parapher and Today's opinion quotes extensively from open nalia in the in the kitchen. She must State, Department Brause v. Health & police report decide whether to call the and Services,30 Social the case since incident, the domestic violence thereby which we ripeness grounds declined on expose possible herself reach the of a dispute. merits constitutional possession marijuana, or face her abuser Brause, plaintiffs couple same-sex again by herself. marry, who challenged were unable to AS short, In persons currently 25.05.013(b), engaging in provided which that a "same-sex activities that this court previously has de- relationship may recognized by not be the protected clared under the Alaska being Constitu- state as entitled to the benefits of tion will be marriage." chilled the exercise of those Plaintiffs attacked this statute very activities the real risk generally, "lacking of a state plaintiffs'] but in [the prosecution without opportunity-which any they brief is assertion that have been or all dispute say they sides to this should ... will rights be denied that are available to testing have-of partners."31 statute advance. distinguish married Brause is And, because state and local law today's many ways. enforcement able from case (Alaska 1975). 23. 537 P.2d Opinion 27. at 371. 28. Id. Opinion at 371. added). (emphasis 29. 537 P.2d at 513 Id. 30. 21 P.3d 357 Ravin, (quoting Id. n. 36 537 P.2d at 511 n. 70) added). (emphasis at that courts should not points out case, truly Brause Brouse present Unlike genuine need to setting in which to decisions absent render factual a sufficient

lacked above, dispute. in Brause As shown plaintiffs actual dispute. The an resolve frame constitutionality a statute dispute here about challenged the an actual there is partners. marriage of same-sex di- prohibiting constitutionality 11.71.060 is of AS some them denied the statute They claimed affecting plaintiffs. rectly couples, but to married rights afforded Brouse, a case of Finally, this is not unlike any specific the denial challenged never addressed this impression. first first We "[Llacking in noted: them. We benefit setting years ago, out the thirty issue over any assertion brief is Dugan's Brause and drug challenges to for constitutional standard circumstances in their they have been or Ravin, we decided are avail laws. Since rights possession be denied will Unlike partners."32 married appeals applied able to have the court of we and drug challenges for constitutional before us now plaintiffs standard plaintiffs, Brause by op right them denied identify a discreet least a possession alcohol statutes the statute. Ravin, eration of we even laid out times.35 dozen subsequent legislature in which a the manner case, is the constitutional present In the in the look at issue might takе a second (1) adult sufficiently framed: sue inform changes in scientific or other event of (2) marijua amounts of small propose to use here, all of legislature And ation.36 (3) further facts No in their homes. na to follow the parties have endeavored be ar an individual to Waiting for needed: All of the of a out in Ravin. path we set charged with rested In all of in his or her take the case.37 urge now us to amount of small any neces us with different from the provide ways, Brause is would these home present sum, unlike the And offers little sary additional facts. case. In Browse present case, argued that in Brause is proposition the state that this case support for the opinion quotes Today's ripe. ripe. not not case was "[djefendants that to the effect Brause specific two rea- next turns to The court the burdens of to bear not be forced should 33 claim that the risks support in of its sons justification"; substantial litigation without for decision. outweigh the need "bear in this case seeks to but the defendant First, scrutiny. to- up under Neither bears vigor litigation"-the state the burdens may facts argues that concrete day's opinion hear this case that we should ously asserts opinion claims The making in a decision. aid Brause, it was unclear ripe. is because it not maintain plaintiffs do that because the right(s) plain constitutional even which in all cir- is unconstitutional violated,34 whereas the statute that had been tiffs claimed it is unconstitu- cumstances-plaintiffs claim The new statute today claim is clear: pos- proscribes the as it tional insofar . set out Ravin. right privacy violates the marijuana for amount of of a small session relied on language from Brause And the adult in the adult's use an personal case: applicable to our today's opinion is not State, (Alaska App.2006), Hotrum v. 130 750-51 32. 965, 967, (Alaska Noy App.2006); v. 969-70 P.3d (Alaska App.2003); Westbrook State, 83 P.3d 545 Opinion at 371. 33. (Alaska App.2003); State, 2003 WL 1732398 v. (Alaska App.2003); 538 State, v. 83 ‍‌‌‌​​‌​‌‌‌‌​​‌​‌‌‌‌‌​‌​​‌‌​‌​‌​​‌‌‌‌​​‌​​​​‌‌​‌​‍P.3d Noy plaintiffs (noting claimed 21 P.3d at 360 (Alaska State, at *1 v. 2001 WL 830709 Sorenson "at least 115 challenged denied them statute 801-03 App.2001); State, 799, v. 991 P.2d Walker that, "[gliven concluding rights" separate State, (Alaska 759 P.2d App.1999); Cleland v. presented," of this case the level of abstraction (Alaska 553, App.1988); v. Harrison 556-58 appropriate ripeness was for lack of dismissal (Alaska App.1984). 332, P.2d 336-39 State, 687 omitted)). quotation marks {internal accompanying at notes 50-51 36. See infra 1, 12 eg., Erickson, State v. See, text. State, 1978); (Alaska 565 P.2d Brown v. State, 1977); (Alaska Belgarde 543 P.2d 206 v. pp. 381-82. See 1975); 147 P.3d infra Garhart home38 -we should not entertain the current In an effort argument to bolster the adjudication challenge because of an actual deciding the risks of high, today's are opinion categories "might case cast these in a different notes our decision in Evans ex rel. Kutch v. ght.39 possibility justify li That does not subsequent State42 need to reverse a ripe: the conclusion that the case is not It portion of the Evans decision in Sands ex rel. every pre-enforeement exists in challenge to Sands v. Green.43 experience But constitutionality Here, of a statute. these support cases lends no argument to the state needs to know whether the new statute against ripeness. The constitutional chal whether, conversely, constitutional or Ra- lenge in Evans was to an extremely wide- vitality.40 vin retains need to ranging legislative set of enactments under answered, question have the same or face the the broad rubric of "tort reform." difficult and unfair foregoing possi choice of case, comparison, current is much more bly constitutionally protected activity or risk limited: Plaintiffs seek to reaffirm this ing penalties. criminal As the state makes holding court's in Ravin that an adult briefing clear in its to this court: Alaska has the right possess constitutional Because the lack of development factual use a small amount of bearing this case has no legal prin in his or her home. expe The Evans/Sands ciples that control the constitutionality of suggest rience does not tightly-focused statutes, further factual development constitutional issue that all want and will "significantly advance [the court's] need to have resolved should remain undecid ability to deal with legal pre issues ed. today's And while opinion sented." No coun arising "take[s] set of facts from fu Sands,"4 implementation ture sel from it highly unlikely this statute seems will make the challenge constitutional any rip today's really court believes that it now.[41] erthamit is Evans, should not have decided a decision you 38. These circumstances until differently by are advised those set out in Ra- the District vin, 498-500 Attorney your region, there is no basis for changing policies law the inves- enforcement Opinion at 381-82. tigation non-public possession less than marijuana by ounces Attorney adults. four Indeed, today's opinion may put enforcement Bulletin, General's Dep't Enforcement indefinitely. of the new laws on Following hold Law, Marijuana 2006) New (May Laws law, enactment of the attorney gener- current the (emphasis original). in al issued a law enforcement bulletin that con- following: tained the Supplemental 41. State's Ripe- Memorandum on key HB 149 findings by contains several the ness, n. (quoting at 12-13 supra Nat'l Park Legislature Hospitality Interior, problems Dep't by about Ass'n v. today's caused 538 U.S. of potent marijuana.... Alaska [Wle believe 803, 812, 123 S.Ct. 155 LEd.2d 1017 (2003) added)). (emphasis findings] [these will convince the Alaska Su- preme marijuana Court that changed has dra- matically since the landmark 1975 decision in (Alaska 2002). 56 P.3d 1046 Ravin v. State. press reports But misleading are somewhat in 43. 156 P.3d 1130 saying that the pos- new laws "re-criminalize" marijuana session of smaller by amounts of "many provisions" The new tort law in the private. adults in entirely That's not accurate. new act included: The new by laws do not alter the decisions the appellate courts that of on damages, noneconomic and caps a punitive small amounts adults in homes is requirement constitu- punitive that half damage of all tionally (Ravin), protected that the amount paid treasury, awards be into the state a ten- marijuana up covered Ravin is year four repose," "statute of tolling a modified ). (Noy procedure for the ounces ap- statute of limitations as vigorously litigate state will legal all these to minors, plied allocation of fault comparative important issues because it's the courts non-parties, between and a revised of- prior overrule Legisla- these decisions. The judgment procedure, fer of partial immu- findings ture's about stage set the nity hospitals for liability from vicarious happen, for that to but don't do it physicians' auto- some actions. We live under the rule of matically. law, and Evans, 56 P.3d at 1048. implementation full of the laws is ultimately up Therefore, to the Opinion courts. at 372-73.

381 51 It is clear applied." are not if the controls worse,46 long a went which; or better hearings it holding in legislature, major challenges to a resolving way toward ‘ adopting the current in the course did system. tort of Alaska's overhaul im comply with the attempted legislation, concludes Second, today's opinion 'No less than this court. plied directive is the case partly. because ripe not is matter in argued strongly has the executive-which general case which high-profile "a can be deciding this case-it favor of our legislative the executive wеll as public also favor legislature would expected that interested." government branches decigion ripeness dismissal. than a rather a on dismissal not counsel do factors But these high- contrary, the To grounds. ripeness To Decide Have Asked Us All IV. Parties in favor of argues case nature profile Case. this As the merits. deciding the reaching held, "the has California Supreme Court that, sugges contrary have seen We us prevent does requirement practice is opinion, our normal today's tion if the con dispute resolving a concrete from challenges to stat even abstract to decide be lin will decision a deferred sequence of , many such though, That is so even utes. law, especially uncertainty in the gering defending the party challenges," "facial public widespread is there when interest ripe is not argue that the case will statute legal question." particular to a the answer applying for a case we should wait and that But in specificset of facts.52 to a the statute in fa counsels strongly concern A related case, parties have asked-in today's both Ravin ripe: In case is finding that the vor extensively," now. deed, this case implored-us to decide continuing is that "[rlesearch we noted possibility suggesting 50 state, expected have been which to be might have issue constitutional ripe,53instead the case is not argue that opin bases of if the scientific reexаmined ripe and the case is strongly argues that in sci by changes undereut to be ion were decided now: shouldbe the harmfulness understanding of ence's ripe the need is because This case in the chemical by changes marijuana or risks are compelling and the by a simi being drug sold makeup of the decision, individual "mere noted that But we also Without change. lar few. constitu challenged the state . The who have not suffice. doubts will scientific face the choice 11.71.060 tionality of AS proof based need must demonstrate conduct-previous changing their current fact suffer will in or welfare public health 158, CalRptr. 655P.2d Cal.3d equally divided an was The decision from added). (Cal.1982)) (emphasis court, 313-14 separate prompted dissents. J., dissenting part); id. at 1079 (Bryner, 494, 510 J., dissenting part). Ravin v. (Carpeneti, 537© 1975). evenly- product of an was the Because Evans 47. at 511. court, necessary the court to it was divided Bering Fishermen's Sea v. Cent. decide Anderson See, Anchorage Equal Rights eg., Thomas v. 2003), (Alaska Ass'n, which resulted P.3d 710 78 2004); (Alaska Ev- P.3d 942 Comm'n, 102 and Reust v. court, another evenly-divided 1080 n. 6 P.3d State, Kutch v. 56 ans ex rel. Contractors, Inc., 807 Petroleum 2002); (Alaska Dep't Health & Brause v. decision, 2005), the consti- before a 3-2 360 Servs., 21 Soc. legislature's tort reform tutionality of most of case finally But each later resolved. was efforts Indeed, Supplemental Memo- the State's Evans, holdings in upon court's built acknowledged Ripeness, the state on randum inquiry. each advanced advocate for "generally ... is an ardent that it consider Court should not position Opinionat372-73. facts," challenges concrete without constitutional challenge present say that "the went on to but pre-enforce- uniquely suited Court, is AS 11.71.060 21 CalAth Superior 49. Hunt Mem- adjudication." Supplemental ment (1999) (citing State's 705, 716 236, 987 P.2d Cal.Rptr.2d 12, supra Comm'n, Ripeness n. at on orandum Coastal Legal Found. v. Cal. Pac. ly by a authorized constitutional decision of plaintiffs argument echo the state's liability they this risk criminal if Court-or ripe that this case is They for decision. too Further, comply fail to with the statute. highlight they the unfair choice that face- deciding constitutionality the statute's forego previously a recognized privacy right stage pre-enforeement poses this little risk prosecution or risk questioned under a law of decision, imprudent unnecessary of an or constitutionality: constitutional "[A] chal validity governed because the statute's is lenge to a criminal ripe statute is where by general principles rather than cir plaintiffs must risking choose between arrest particular to an cumstances individual's suffering or deprivations of their constitu conduct,[54] rights tional if they do not alter their con duct." notes, requiring prose As the state an actual hearing cution "may place before a case hapless plaintiff Scylla between the of inten , V. Conclusion

tionally flouting Charybdis state law and the foregoing what he believes to be constitu strongly supрorts Our case law propo- tionally protected activity." Further: sition controversy that this ripe is for resolu- legislature tion. The part has done its prohibited crime, When the act is a con bring long-running dispute

ditioning judicial back to the review on the existence of courts to be resolved. The prosecution an actual executive has specific burdens a in, weighed strongly requesting challenge a individual with we de- could be 27! prohibitively expensive.®"* addition, dispute. cide the get sued to clear; an answer. a criminal The issue could be is Does damaging person's job prohibit to a Alaska Constitution personal leg- relation current ships. person A in this islation to the situation should extent that it pos- eriminalizes required not be to sacrifice his social session of a small amount of in an standing in challenge order to adult's crimi home for new use? No other nal law as invalid. facts When the need be developed in order for the sanction penalties, person criminal should be al brief the issue-which have early adjudication.[56] lowedto exceedingly choose done well-and for the courts to decide it. pointed There is a need-on

Inote271 part of the plaintiffs-for state as well as the A practical consideration that decision,; and no harm would result from our should not be plain- overlooked is that the rendering cireumstances, one. In these I tiffs'in this case have had the resources of respectfully must dissent from the court's ACLU, including attorneys several refusal, on to decide this grounds, from the Drug ACLU's Reform Pro- Law case. jeet, California, based in each of whom had significant experience litigating legal issues

in drug cases. The five attorneys ACLU

who worked on experience this case had (av-

ranging from years three to nineteen

erage: years), nine and documented more

than attorney 520 hours of spent time superior court case Many alone. addi-

tional attorney hours of work superi- at the court level Drug the ACLU Law Project

Reform on this case were not ac-

counted for. added). (emphasis Id. at 2 Appellees' Supplemental Memorandum Re- garding Ripeness at State Alaska v. Am. ‍‌‌‌​​‌​‌‌‌‌​​‌​‌‌‌‌‌​‌​​‌‌​‌​‌​​‌‌‌‌​​‌​​​​‌‌​‌​‍(quoting Id. at Thompson, 415 U.S. Steffel Alaska, Civil Liberties Union No. S-12370 452, 462, (1974)). 94 S.Ct. 39 L.Ed.2d 505 15, 2008). July (citations omitted). Id. at 8-9 notes decided, sonnel. police depart when Ravin was most pur generally ments were not interested suing solely in the individuals Today's Opinion III. Overstates Risks home of small amounts of Deciding. language quoted use. 25 But the from incorrectly concluding After there is indicate that few arrests Ravin-"[sltatisties little need for a decision in advance of en simple possession occur in the home ex statute, forcement the court turns to cept simultaneously when other crimes are risks decision.27 It then concludes- being why investigated" 26-illustrates contrary positions to the all presence of the statute at issue in this case this case-that the "normal risks associated poses persons such a difficult choice for such deciding hypothetical present." with cases are plaintiffs. Consider the individual who opinion 2 But greatly exaggerates evening comes home one to find a window

Case Details

Case Name: State v. American Civil Liberties Union

Court Name: Alaska Supreme Court

Date Published: Apr 3, 2009

Citation: 204 P.3d 364

Docket Number: S-12370

Court Abbreviation: Alaska