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State v. American Civil Liberties Union of Alaska

Supreme Court of Alaska

April 3, 2009

STATE of Alaska, David W. Márquez, Attorney General for the State of Alaska, in his official capacity, Appellants,
v.
AMERICAN CIVIL LIBERTIES UNION OF ALASKA, Jane Doe, and Jane Roe, Appellees.

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[Copyrighted Material Omitted]

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Dean J. Guaneli, Special Assistant Attorney General, Talis J. Colberg, Attorney General, Juneau, for Appellants.

Jason Brandeis, ACLU of Alaska Foundation, Anchorage, Adam B. Wolf, M. Allen Hopper, ACLU Foundation, Santa Cruz, California, for Appellees.

Allen F. Clendaniel, Dorsey & Whitney LLP, Anchorage, for Amici Curiae Dr. Melanie Dreher, Dr. David Ostrow, and Dr. Craig Reinarman.

Before : FABE, Chief Justice, MATTHEWS, EASTAUGH, CARPENETI, and WINFREE, Justices.

OPINION

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 opinion is whether the general bar on abstract adjudication should apply. The plaintiffs argue for an exception, contending that it is unfair to put them to a choice of either continuing to use marijuana in their homes and risking prosecution or giving up its use. We conclude that the need to make this choice is not a product of the challenged statute because the plaintiffs will remain subject to prosecution under federal law regardless of how we might rule. For this reason, and because other factors that counsel against deciding cases in an abstract setting are also present, we conclude that any challenge to the statute must await an actual prosecution.

I. FACTS AND PROCEEDINGS

In June 2006 the Alaska Legislature amended AS 11.71.060(a) to prohibit the possession of less than one ounce of marijuana.[2] The American Civil Liberties Union of Alaska and two anonymous individuals, Jane Doe and Jane Roe (collectively, " ACLU" or " plaintiffs" ), sued for declaratory and injunctive relief. They argued that section .060 as amended conflicts with the privacy clause of the Alaska Constitution,[3] as interpreted in Ravin v. State, [4] to the extent that it criminalizes possession of small amounts of marijuana in the home by adults for personal use.

The ACLU moved for a temporary restraining order and preliminary injunction pending resolution of the suit. At a hearing Before Superior Court Judge Patricia A. Collins the ACLU agreed that its motion for a temporary restraining order and preliminary injunction could be treated as a motion for summary judgment. Later the State moved to dismiss Jane Doe and the ACLU on standing grounds. The State argued that Doe lacked standing because she could seek protection under Alaska's medical marijuana law.[5] It further contended that the ACLU

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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.

The State appeals. It argues that Ravin should no longer be considered controlling for several reasons. The State contends that marijuana is much more intoxicating now than it was in 1975 when Ravin was decided.[7] Further, according to the State, more people are using marijuana and starting to do so at younger ages than at the time Ravin was decided, and the adverse consequences of using marijuana are better understood. The State points out that the legislature held hearings on marijuana usage Before enacting the 2006 amendments and made a number of findings. The State summarizes the findings, in part, as follows:

(1) Marijuana potency has increased dramatically in the last 30 years, particularly in Alaska, and corresponds to an increase in rehabilitative and hospital treatment related to marijuana use.
(2) Hundreds of Alaskans are treated for marijuana abuse each year, more than half being children; pregnant women in Alaska use marijuana at a higher rate than the national average.
(3) Many users become psychologically dependent on marijuana under recognized clinical standards.
(4) Early exposure to marijuana increases the likelihood of health and social problems, including mental health problems.
(5) Many people treated for alcoholism also abuse marijuana, and alcoholism treatment is more difficult when marijuana is used.
(6) Marijuana affects many body and brain functions; it often contains bacteria and fungi harmful to humans.
(7) A higher percentage of adults and juveniles arrested in Alaska have marijuana in their systems at the time of arrest.
(8) If a parent uses marijuana, then their children are much more likely to become marijuana users; studies have shown that criminal penalties increase the perception among teenagers of the risks of using marijuana, thus reducing use.

The ACLU argues that marijuana has not changed significantly since Ravin was decided, that it is a relatively harmless substance, and that no grounds exist for reconsidering Ravin. The ACLU further argues that if the court were inclined to reconsider Ravin, a remand for a hearing would be appropriate to assess the nature of marijuana and the consequences of its use.

After this case was submitted for decision on appeal, we requested supplemental briefing on the question of ripeness. In their supplemental briefing, both parties argued that this appeal is fit for resolution because the plaintiffs otherwise must risk criminal prosecution in order to challenge the amended statute. We disagree and conclude that this case is not ripe because it does not arise from an actual prosecution brought under the amended statute. The relaxed approach to ripeness sometimes taken with respect to pre-enforcement challenges to criminal laws is not appropriate here because the plaintiffs already face a risk of prosecution for home use of marijuana under federal drug statutes.

II. STANDARD OF REVIEW

The State and ACLU contend that we should review the superior 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

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relief-and the different standards of review that attach to each requirement.

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 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.

III. DISCUSSION

A. The Requirements of the Ripeness Doctrine.

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 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

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rules are liberal this court should not issue advisory opinions or resolve abstract questions of law." [19]

The concept of ripeness can be explained in both abstract and practical formulations. The abstract formulation is that ripeness depends on " whether ... there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." [20] On a more practical level, our ripeness analysis fundamentally " balances the need for decision against the risks of decision." [21] We examine " the fitness of the issues for judicial decision" and " the hardship to the parties of withholding court consideration." [22]

Under this formulation, varying degrees of concreteness might be deemed acceptable depending on the need for a judicial decision. Thus, in the context of free speech, a " court may adopt [a] somewhat relaxed approach to justiciability" because of the special consideration traditionally afforded speech rights.[23] Where a statute criminalizes conduct, threats of enforcement will support a pre-enforcement challenge if the threats are real and actually force the plaintiff to choose between forgoing the behavior and facing penalties.[24]

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

Both the State and ACLU argue that the 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 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

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Act.[25]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] By comparison, current Alaska law classifies marijuana as a Schedule VIA drug-a drug with the lowest degree of danger or probable danger to a person or the public.[29]

Unsurprisingly, the Controlled Substances Act treats possession and use of marijuana as a much more serious offense than Alaska law. The federal sanction for a first-time offender possessing any quantity of marijuana is a term of imprisonment of not more than one year and a fine of at least $1,000, or both.[30] A person who knowingly possesses marijuana for personal use also faces a federal civil penalty of not more than $10,000.[31] By comparison, under the amended Alaska statute the penalty for a first offense of possession in the home is, at most, a $500 fine with no jail time.[32]

Regardless of the outcome of this case, there is nothing that this court, or any other branch of the Alaska government, could do to affect the risk or severity of federal enforcement.[33] The United States Supreme 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 the risk of federal prosecution for marijuana possession-amplified by harsh federal penalties-remains a strong reality that the plaintiffs will face irrespective of any ruling we might make in this appeal.

2. The declarations of Jane Doe and Jane Roe neither suggest that the amended statute will affect their conduct nor that they will be the subjects of enforcement.

The 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 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.

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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 the plaintiffs' fears of state criminal enforcement may be speculative and overstated. In Ravin we recognized that prosecutors and police departments generally are not interested in pursuing individuals who merely possess small quantities of marijuana in their home for personal use.[36] Thus, to face prosecution, persons violating the amended statute would need to be in a situation where police have reason to suddenly enter their homes. Such a scenario bears similarities to City of Los Angeles v. Lyons, in which the United States Supreme Court rejected as speculative and not ripe a claim that Lyons would be subject to a police choke hold in the future.[37] The Court noted that Lyons only faced this risk if he acted in a manner leading to an encounter with police and that, during the encounter, he resisted detention or failed to comply with police orders.[38] The Court thus concluded, as we do in this case, that there would be little hardship to the plaintiff if the appeal were not decided in a hypothetical setting.

C. Decisional Risks Are Present

As we have noted, in determining whether the ripeness element of the actual controversy requirement exists, we balance the asserted need for a decision against the risks of making a decision in an abstract context. In the above discussion we conclude that the " need" side of the scale has little or no weight. It follows that this case should be considered not ripe for decision if the normal risks associated with deciding hypothetical cases are present. We conclude that they are.

In Brause v. State, Department of Health & Social Services, [39] we outlined some of the considerations on the " risks" side of the scale:

The central perception is that courts should not render decisions absent a genuine need to resolve a real dispute. Unnecessary decisions dissipate judicial energies better conserved for litigants who have a real need for official assistance. As to the parties themselves, courts should not undertake the role of helpful counselors, since refusal to decide may itself be a healthy spur to inventive private or public planning that alters the course of possible conduct so as to achieve the desired ends in less troubling or more desirable fashion. Defendants, moreover, should not be forced to bear the burdens of litigation without substantial justification, and in any event may find themselves unable to litigate intelligently if they are forced to

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grapple with hypothetical possibilities rather than immediate facts. Perhaps more important, decisions involve lawmaking. Courts worry that unnecessary lawmaking should be avoided, both as a matter of defining the proper role of the judiciary in society and as a matter of reducing the risk that premature litigation will lead to ill-advised adjudication. These concerns translate into an approach that balances the need for decision against the risks of decision. The need to decide is a function of the probability and importance of the anticipated injury. The risks of decision are measured by the difficulty and sensitivity of the issues presented, and by the need for further factual development to aid decision.[[40]]

Several of these concerns are present in this case.

1. Concrete facts may aid in the decision.

When statutes are found by a court to be unconstitutional, they may be found to be unconstitutional as applied or unconstitutional on their face. A holding of facial unconstitutionality generally means that there is no set of circumstances under which the statute can be applied consistent with the requirements of the constitution.[41] A holding that a statute is unconstitutional as applied simply means that under the facts of the case application of the statute is unconstitutional. Under other facts, however, the same statute may be applied without violating the constitution.

We discussed these distinctions in State, Department of Revenue, Child Support Enforcement Division v. Beans. [42] At issue was the constitutionality of a statute permitting the Child Support Enforcement Division to suspend the 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]

Here the ACLU does not argue that AS 11.71.060 is unconstitutional in all circumstances. The amended statute applies to use or possession of marijuana anywhere, but the ACLU argues that only home possession or use is constitutionally protected. The statute applies to " a person," but the ACLU argues that only adult users and possessors are protected. The statute applies to possession for any purpose, but the ACLU argues that only possession for personal use is protected. We are thus not being asked to declare the amended statute facially unconstitutional, for it has many clearly constitutional applications, but to define by pre-determined categories [45] the circumstances under which the statute may not operate.

But adjudication of an actual case, or several actual cases, might cast these categories in a different light. There may be cases where the conduct of a particular defendant is so closely connected to one or more of the health and safety goals underlying the amended statute that the statute could permissibly be applied, even if Ravin retains general vitality.

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Relatedly, when constitutional issues are raised, this court has a duty to construe a statute, where reasonable, to avoid dangers of unconstitutionality.[46] Rather than strike a statute down, we will employ a narrowing construction, if one is reasonably possible.[47] The amended statute may be a candidate for narrowing constructions. A construction upholding the statute in cases directly involving the health and safety goals on which the statute is based might be developed. This case is necessarily about a narrowing construction of some sort since the amended statute is not unconstitutional in all its applications. The question is what narrowing constructions are appropriate. Allowing the normal processes of adjudication to take place may be of assistance in providing the answer.

We have recent experience underlining the potential problems with deciding the constitutionality of a statute in the absence of actual facts. In Evans ex rel. Kutch v. State we considered a broad facial challenge to many aspects of 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 that a concrete case involving a concrete factual scenario has uncovered a previously unanswered question.[[[52]]

In deciding here that our decision concerning the constitutionality of the amended statute could be aided by one or more concrete factual scenarios, we take counsel from Sands .

2. Other factors also counsel against an unnecessary ruling.

Beyond the assistance that the facts of concrete cases might lend to the ultimate resolution of the issue Before us, some of the other risk factors mentioned in Brause are also present.[53] The question Before the court is, taken alone, a difficult one with reasonable arguments available to both sides. It is also a high-profile case in which the general public as well as the executive and legislative branches of government are interested. Further, sustaining the 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 the need to do so.

IV. CONCLUSION

We conclude that the actual controversy requirement of AS 22.10.020(g) has not been

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satisfied because this case is not ripe for decision. In striking the balance required by the ripeness doctrine, the risks of adjudicating the constitutionality of AS 11.71.060 in a hypothetical setting outweigh the negligible hardships that the plaintiffs will face if we do not decide this issue. On the " need for decision" side of the scale, plaintiffs' need is slight because their conduct, regardless of how this court might rule, would still be criminal under federal statutes which impose much more severe penalties than the amended state statute. On the risk side of the scale, our concerns echo those that we expressed in Brause:

Without more immediate facts it will be difficult to deal intelligently with the legal issues presented.... In order to grant relief ... [this] court would have to declare a statute unconstitutional. This is, of course, a power that courts possess. But it is not a power that should be exercised unnecessarily, for doing so can undermine public trust and confidence in the courts and be interpreted as an indication of lack of respect for the legislative and executive branches of government. Further, ruling on the constitutionality of a statute when the issues are not concretely framed increases the risk of erroneous decisions.[[54]]

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

CARPENETI, Justice, with whom WINFREE, Justice, joins, dissenting.

Alaska law on ripeness historically has kept the barriers to the courtroom low in order to favor access for Alaska's citizens to Alaska courts. In this, we have pointedly differed from our counterparts in the federal courts. Today's opinion, relying on federal law that we have previously declined to follow, retreats from that long-held stance. While that fact alone is troubling enough, today's opinion is made more problematic by its devaluation of the protections that the Alaska Constitution offers to the citizens of this state, its overstatement of the decisional risks of considering the appeal Before us, and its rejection of the strong and united position of the parties Before the court that we should decide this case. For these reasons, I believe that we should heed the requests of all parties-the State of Alaska as well as the Alaska citizens who bring the action-and decide this case now.

I. Today's Opinion Runs Counter to Long-Established Alaska Law.

Today's opinion begins by stating: " Under the ripeness doctrine, the constitutionality of a statute generally may not be challenged as an abstract proposition." In Alaska, however, we routinely accept and decide cases raising the constitutionality of statutes as an abstract proposition. We have done so in virtually every major constitutional case to come Before us in recent years. We most recently did so in State v. Planned Parenthood of Alaska, [1] a case challenging the constitutionality of a statute creating criminal penalties for doctors who perform abortions on minors without parental consent or judicial authorization. No plaintiff doctor had been prosecuted, but we had little difficulty reaching the merits.[2] In Alaskans for a Common Language, Inc. v. Kritz, [3] we decided the constitutionality of a statute requiring the government to use the English language in various circumstances.[4] Plaintiffs, non-English speaking and bi-lingual Alaskans and government workers, had not been sued under the statute.[5]That opinion did not even discuss ripeness. Indeed, illustrative of Alaska's lenient ripeness jurisprudence, of eighteen cases since 2001 that raised abstract

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constitutional issues, we reached the merits in seventeen, often without even discussing ripeness.[6] In only one did we uphold a ripeness challenge.[7]

Why has this court consistently declined to use ripeness as a way to avoid deciding cases? It is because of our deep-seated commitment to the idea that the doors of Alaska's courts should be open to its citizens to the greatest extent possible. As we said in Thomas v. Anchorage Equal Rights Commission, [8]-a case where we found the dispute to be ripe after the Ninth Circuit had declined to hear it on ripeness grounds-" [r]ipeness is an aspect of standing, and we have often noted that Alaska's standing requirements are more lenient than their federal counterpart, since they favor ready access to a judicial forum." [9] We interpret standing, and by extension ripeness, leniently in order to facilitate access to the courts:

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" The basic idea ... is that an identifiable trifle is enough for standing to fight out a question of principle." [10] Today's opinion relies on federal law,[11] forgetting our repeated statements that our approach to ripeness differs from the federal approach: " We have consistently found this difference [between the federal and Alaska approaches] to be important, emphasizing the need to follow our ‘ own unique ... jurisprudence if Alaska standing doctrine is to retain its quality of relative openness.’ " [12] By ignoring Alaska's more open ripeness jurisprudence, today's opinion changes our law on standing dramatically and, in my view, for the worse. The court closes its doors where previously they were open.

II. In Assessing the Hardships the Parties Face if the Court Refuses To Decide this Case, Today's Opinion Devalues Alaska Constitutional Protections and Incorrectly Assumes that the Likelihood of Federal Prosecution Is Equal to the Likelihood of State Prosecution.

A. Devaluation of Alaska constitutional protections

In examining the first question under the ripeness doctrine-the hardships that the parties face if the case is not decided in advance of a criminal prosecution-today's opinion concludes that " the risk of criminal liability argument rings hollow" because marijuana possession is already criminal under federal law. This argument both devalues the significance of Alaska constitutional protections and misapprehends the likelihood of federal prosecution of violation of federal marijuana laws in Alaska.

The risk of a possibly unconstitutional prosecution under Alaska law is independent of any possible federal prosecution. The state government and the federal government are independent sovereigns, and have the power to punish the same conduct independently of each other.[13] Thus, even if the federal government prosecutes Jane Doe for her possession of marijuana, Alaska may prosecute her as well under AS 11.71.060.[14] If the state prosecution is unconstitutional, her injury from that prosecution does not change even if she is also prosecuted by the federal government. It is no answer to the shame, expense, and embarrassment of a possibly unconstitutional state prosecution that she also risks federal prosecution.

B. Incorrect assumption regarding risk of federal prosecution

In addition, and perhaps even more important, the vastly smaller danger of federal prosecution (compared to state prosecution) must be considered. As a practical matter, the risk of federal prosecution for simple possession of marijuana in Alaska appears to be virtually nil. In terms of actual prosecutions, for example, the United States brought zero misdemeanor drug possession cases in Alaska in fiscal year 2005 [15] and less than ten

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cases each year in fiscal year 2006 and fiscal year 2007.[16] During the three-year period ending December 31, 2008, the state filed approximately 3,166 cases [17] alleging violation of AS 11.71.060 (Misconduct Involving a Controlled Substance in the Sixth Degree-possession of marijuana). These differences in levels of prosecution are not surprising, given that enforcing Alaska's drug laws is a high priority of both state and local law enforcement in Alaska,[18] while the FBI's " Investigative Priorities" for the Alaska Division does not even list drug enforcement among ten enumerated priorities.[19] Finally, there are only approximately fifty federal agents regularly assigned in Alaska in three locations,[20] whereas state and municipal commissioned officers-who are charged with enforcing state drug laws-number approximately 1,200 [21] spread over the entire state, in approximately ninety-six locations.[22] In pointing to the possibility of federal prosecution as a basis for discounting the difficult choice that both the state and the plaintiffs so eloquently elucidate, today's opinion ignores this reality: The danger of federal prosecution for simple marijuana possession in Alaska is vanishingly low, whereas the danger of state prosecution for simple possession is real and substantially higher.

In this regard, today's opinion misreads Ravin v. State [23] in stating that " plaintiffs'

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fears ... may be speculative and overstated." [24] (And, indeed, the state has expressed identical fears. See infra at pages 381-82.) Today's opinion notes that in 1975, when Ravin was decided, most police departments generally were not interested in pursuing individuals solely for possession in the home of small amounts of marijuana for personal use.[25] But the language quoted from Ravin -" [s]tatistics indicate that few arrests for simple possession occur in the home except when other crimes are simultaneously being investigated " [26]-illustrates why the presence of the statute at issue in this case poses such a difficult choice for persons such as plaintiffs. Consider the individual who comes home one evening to find a window broken in his home and the door slightly ajar. The individual knows that he left a small container of marijuana in the open on his coffee table. He must now decide whether he should call the police and expose himself to prosecution for possession of less than one ounce of marijuana in his home, or enter the house by himself and risk encountering an intruder. Or consider a wife who has retreated to her bedroom after an altercation with her husband in which he hit her. She knows that there is marijuana and paraphernalia in the open in the kitchen. She must decide whether to call the police and report the domestic violence incident, and thereby expose herself to possible prosecution for possession of marijuana, or face her abuser again by herself.

In short, persons currently engaging in activities that this court has previously declared protected under the Alaska Constitution will be chilled in the exercise of those activities by the very real risk of a state prosecution without the opportunity-which all sides to this dispute say they should have-of testing the statute in advance. And, because state and local law enforcement authorities are the ones that Alaskans have recourse to in the event of emergency, the risk of discovery of those possibly protected activities pertains to state, not federal, personnel.

III. Today's Opinion Overstates the Risks of Deciding.

After incorrectly concluding that there is little need for a decision in advance of enforcement of the statute, the court turns to the risks of decision.[27] It then concludes-contrary to the positions of all the parties in this case-that the " normal risks associated with deciding hypothetical cases are present." [28] But the opinion greatly exaggerates this risk. Indeed, we have previously decided a case in virtually identical circumstances raising identical issues: We noted in Ravin, " [t]he record does not disclose any facts as to the situs of Ravin's arrest and his alleged possession of marijuana." [29] Ravin is the case that the current legislation aims to overturn. It is difficult to understand how the current legislation cannot be properly analyzed in the absence of specific facts while, at the same time, the entire controversy Before us arose in the absence of specific facts.

Today's opinion quotes extensively from Brause v. State, Department of Health & Social Services, [30] the only case since 2000 in which we declined on ripeness grounds to reach the merits of a constitutional dispute. The plaintiffs in Brause, a same-sex couple who were unable to marry, challenged AS 25.05.013(b), which provided that a " same-sex relationship may not be recognized by the state as being entitled to the benefits of marriage." Plaintiffs attacked this statute generally, but " lacking in [the plaintiffs'] brief is any assertion that they have been or ... will be denied rights that are available to married partners." [31] Brause is distinguishable from today's case in many ways.

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Unlike the present case, Brause truly lacked a sufficient factual setting in which to frame the dispute. The plaintiffs in Brause challenged the constitutionality of a statute prohibiting marriage of same-sex partners. They claimed the statute denied them some 115 rights afforded to married couples, but never challenged the denial of any specific benefit to them. We noted: " [L]acking in Brause and Dugan's brief is any assertion that they have been or in their circumstances that they will be denied rights that are available to married partners." [32] Unlike the Brause plaintiffs, the plaintiffs Before us now identify a discreet right denied them by operation of the statute.

In the present case, the constitutional issue is sufficiently framed: (1) adult plaintiffs propose to use (2) small amounts of marijuana (3) in their homes. No further facts are needed: Waiting for an individual to be arrested and charged with possession of a small amount of marijuana in his or her home would not provide us with any necessary additional facts. And unlike the present case, the state in Brause argued that the case was not ripe. Today's opinion quotes Brause to the effect that " [d]efendants ... should not be forced to bear the burdens of litigation without substantial justification" ; [33] but the defendant in this case seeks to " bear the burdens of litigation" -the state vigorously asserts that we should hear this case because it is ripe. In Brause, it was unclear even which constitutional right(s) the plaintiffs claimed had been violated,[34] whereas today the claim is clear: The new statute violates the right to privacy set out in Ravin. And the language from Brause relied on in today's opinion is not applicable to our case: Brause points out that courts should not render decisions absent a genuine need to resolve an actual dispute. As shown above, there is an actual dispute here about the constitutionality of AS 11.71.060 that is directly affecting the plaintiffs.

Finally, unlike Brause, this is not a case of first impression. We first addressed this issue over thirty years ago, setting out the standard for constitutional challenges to drug possession laws. Since we decided Ravin, we and the court of appeals have applied the standard for constitutional challenges to drug and alcohol possession statutes at least a dozen times.[35] In Ravin, we even laid out the manner in which a subsequent legislature might take a second look at the issue in the event of changes in scientific or other information.[36] And here, the legislature and all of the parties have endeavored to follow the path we set out in Ravin. All of the parties now urge us to take the case.[37] In all of these ways, Brause is different from the present case. In sum, Brause offers little support for the proposition that this case is not ripe.

The court next turns to two specific reasons in support of its claim that the risks of decision outweigh the need for decision. Neither bears up under scrutiny. First, today's opinion argues that concrete facts may aid in making a decision. The opinion claims that because the plaintiffs do not maintain that the statute is unconstitutional in all circumstances-plaintiffs claim it is unconstitutional only insofar as it proscribes the possession of a small amount of marijuana for personal use by an adult in the adult's

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home [38] -we should not entertain the current challenge because adjudication of an actual case " might cast these categories in a different light." [39] That possibility does not justify the conclusion that the case is not ripe: It exists in every pre-enforcement challenge to the constitutionality of a statute. Here, the state needs to know whether the new statute is constitutional or whether, conversely, Ravin retains vitality.[40] The plaintiffs need to have the same question answered, or face the difficult and unfair choice of foregoing possibly constitutionally protected activity or risking criminal penalties. As the state makes clear in its briefing to this court:

Because the lack of factual development in this case has no bearing on the legal principles that control the constitutionality of the statutes, further factual development will not " significantly advance [the court's] ability to deal with the legal issues presented." No set of facts arising from future implementation of this statute will make the constitutional challenge any riper than it is now. [[41]]

In an effort to bolster the argument that the risks of deciding are high, today's opinion notes our decision in Evans ex rel. Kutch v. State [42] and the subsequent need to reverse a portion of the Evans decision in Sands ex rel. Sands v. Green. [43] But the experience of these cases lends no support to the argument against ripeness. The constitutional challenge in Evans was to an extremely wide-ranging set of legislative enactments under the broad rubric of " tort reform." [44] The current case, in comparison, is much more limited: Plaintiffs seek to reaffirm this court's holding in Ravin that an adult in Alaska has the constitutional right to possess for personal use a small amount of marijuana in his or her home. The Evans / Sands experience does not suggest that a tightly-focused constitutional issue that all parties want and need to have resolved should remain undecided. And while today's opinion " take[s] counsel from Sands ," [45] it seems highly unlikely that today's court really believes that it should not have decided Evans, a decision

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which, for better or worse,[46] went a long way [47] toward resolving challenges to a major overhaul of Alaska's tort system.

Second, today's opinion concludes that the matter is not ripe partly because the case is " a high-profile case in which the general public as well as the executive and legislative branches of government are interested." [48] But these factors do not counsel dismissal on ripeness grounds. To the contrary, the high-profile nature of the case argues in favor of reaching and deciding the merits. As the Supreme Court of California has held, " the ripeness requirement does not prevent us from resolving a concrete dispute if the consequence of a deferred decision will be lingering uncertainty in the law, especially when there is widespread public interest in the answer to a particular legal question. " [49]

A related concern strongly counsels in favor of finding that the case is ripe: In Ravin we noted that " [r]esearch is continuing extensively," [50] suggesting the possibility that this constitutional issue might have to be reexamined if the scientific bases of the opinion were to be undercut by changes in science's understanding of the harmfulness of marijuana or by changes in the chemical makeup of the drug being sold or by a similar change. But we also noted that " mere scientific doubts will not suffice. The state must demonstrate a need based on proof that the public health or welfare will in fact suffer if the controls are not applied." [51] It is clear that the legislature, in holding the hearings it did in the course of adopting the current legislation, attempted to comply with the implied directive of this court. No less than the executive-which has argued strongly in favor of our deciding this case-it can be expected that the legislature would also favor a decision rather than a ripeness dismissal.

IV. All Parties Have Asked Us To Decide this Case.

We have seen that, contrary to the suggestion in today's opinion, our normal practice is to decide even abstract challenges to statutes. That is so even though, in many such " facial challenges," the party defending the statute will argue that the case is not ripe and that we should wait for a case applying the statute to a specific set of facts.[52] But in today's case, both parties have asked-indeed, implored-us to decide this case now.

The state, which might have been expected to argue that the case is not ripe, [53] instead strongly argues that the case is ripe and should be decided now:

This case is ripe because the need for a decision is compelling and the risks are few. Without a decision, the individual plaintiffs who have challenged the constitutionality of AS 11.71.060 face the choice of changing their current conduct-previously

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authorized by a constitutional decision of this Court-or risk criminal liability if they fail to comply with the statute. Further, deciding the statute's constitutionality at this pre-enforcement stage poses little risk of an imprudent or unnecessary decision, because the statute's validity is governed by general principles rather than by circumstances particular to an individual's conduct.[[54]]

As the state notes, requiring an actual prosecution Before hearing a case " may place the hapless plaintiff between the Scylla of intentionally flouting state law and the Charybdis of foregoing what he believes to be constitutionally protected activity." [55] Further:

When the prohibited act is a crime, conditioning judicial review on the existence of an actual prosecution burdens a specific individual with a challenge that could be prohibitively expensive. [note 27] In addition, a criminal prosecution could be damaging to a person's job and personal relationships. A person in this situation should not be required to sacrifice his social standing in order to challenge a new criminal law as invalid. When the sanction is criminal penalties, a person should be allowed to choose early adjudication.[[56]]
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[note 27] A practical consideration that should not be overlooked is that the plaintiffs in this case have had the resources of the ACLU, including several attorneys from the ACLU's Drug Law Reform Project, based in California, each of whom had significant experience litigating legal issues in drug cases. The five ACLU attorneys who worked on this case had experience ranging from three to nineteen years (average: nine years), and documented more than 520 hours of attorney time spent on the superior court case alone. Many additional hours of attorney work at the superior court level by the ACLU Drug Law Reform Project on this case were not accounted for.

The plaintiffs echo the state's argument that this case is ripe for decision. They too highlight the unfair choice that they face-forego a previously recognized privacy right or risk prosecution under a law of questioned constitutionality: " [A] constitutional challenge to a criminal statute is ripe where plaintiffs must choose between risking arrest or suffering deprivations of their constitutional rights if they do not alter their conduct." [57]

V. Conclusion

Our case law strongly supports the proposition that this controversy is ripe for resolution. The legislature has done its part to bring this long-running dispute back to the courts to be resolved. The executive has weighed in, strongly requesting that we decide the dispute. The plaintiffs sued to get an answer. The issue is clear: Does the Alaska Constitution prohibit the current legislation to the extent that it criminalizes possession of a small amount of marijuana in an adult's home for personal use? No other facts need be developed in order for the parties to brief the issue-which they have done exceedingly well-and for the courts to decide it. There is a pointed need-on the part of the state as well as the plaintiffs-for a decision, and no harm would result from our rendering one. In these circumstances, I must respectfully dissent from the court's refusal, on ripeness grounds, to decide this case.


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