STATE of Alaska, David W. Márquez, Attorney General for the State of Alaska, in his official capacity, Appellants,
AMERICAN CIVIL LIBERTIES UNION OF ALASKA, Jane Doe, and Jane Roe, Appellees.
[Copyrighted Material Omitted]
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.
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.  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. 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, as interpreted in Ravin v. State,  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. It further contended that the ACLU
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."  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. 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
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."  Though a superior court " may" issue declaratory relief, the superior court may only exercise this discretion in a " case of ... actual controversy."  The statute's reference to an " actual controversy" encompasses considerations of standing, mootness, and ripeness. 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. 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, we now clarify those cases in light of our more recent decisions.
A. The Requirements of the Ripeness Doctrine.
The " actual controversy" limitation in Alaska's declaratory judgment act  reflects a general constraint on the power of courts to resolve cases. Courts should decide cases only when a plaintiff has standing to sue and the case is ripe and not moot. Because ripeness constrains the power of courts to act, courts should not rely on an agreement by the parties that a case is ripe for decision. In its recent decision in Alaska Right to Life Political Action Committee v. Feldman,  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.’ "  We have similarly recognized that a case is justiciable only if it has matured to a point that warrants decision. " [W]hile Alaska's standing
rules are liberal this court should not issue advisory opinions or resolve abstract questions of law." 
The concept of ripeness can be explained in both abstract and practical formulations. The abstract formulation is that ripeness depends on " whether ... there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment."  On a more practical level, our ripeness analysis fundamentally " balances the need for decision against the risks of decision."  We examine " the fitness of the issues for judicial decision" and " the hardship to the parties of withholding court consideration." 
Under this formulation, varying degrees of concreteness might be deemed acceptable depending on the need for a judicial decision. Thus, in the context of free speech, a " court may adopt [a] somewhat relaxed approach to justiciability" because of the special consideration traditionally afforded speech rights. Where a statute criminalizes conduct, threats of enforcement will support a pre-enforcement challenge if the ...