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Myers v. Municipality of Anchorage (4/7/2006) ap-2041

Myers v. Municipality of Anchorage (4/7/2006) ap-2041

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts:

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us

         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


DOUGLAS MYERS, )
) Court of Appeals No. A-8739
Appellant, ) Trial Court No. 3AN-02-10502 Cr
)
v. )
) O P I N I O N
MUNICIPALITY OF ANCHORAGE, )
)
Appellee. ) No. 2041 April 7, 2006
)
          Appeal  from the District Court,  Third  Judi
          cial  District,  Anchorage, Brian  K.  Clark,
          Judge.

          Appearances:  Rebecca J. Hozubin,  Wilkerson,
          Hozubin, & Burke, for the Appellant.  John E.
          McConnaughy    III,    Assistant    Municipal
          Prosecutor,   and   Frederick   H.    Boness,
          Municipal Attorney, Anchorage, for the  Appel
          lee.

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

          MANNHEIMER, Judge.
          STEWART, Judge, dissenting.

          This  appeal  involves a constitutional attack  on  the
Municipality of Anchorages drug paraphernalia ordinances  a  trio
of  laws that, read together, prohibit the possession and sale of
items connected with the manufacturing, dispensing, storing,  and
use of controlled substances.
          The  parties to this appeal describe the main issue  as
whether  these ordinances are too vague.  Vagueness  is,  indeed,
one  of  the problems with these laws.  As we discuss  in  detail
below,   the   definition  of  drug  paraphernalia  codified   in
AMC 08.35.010 can not easily be understood or applied.  But there
is   another  major  problem  with  the  ordinances:   under  the
ordinances, people may be convicted of a crime without any  proof
that they acted with a culpable mental state.
          There   is   yet   another  problem   with   the   drug
paraphernalia  ordinances:  as written, these  ordinances  outlaw
the   sale   or  possession  of  any  item  connected  with   the
manufacture, dispensing, storage, or use of controlled substances
regardless  of whether that manufacture, dispensing, storage,  or
use  is  lawful  or  unlawful.   On their  face,  the  ordinances
prohibit  conduct that drug manufacturers, pharmacists,  doctors,
and  patients  must  necessarily engage  in  when  they  lawfully
manufacture,   store,  prepare,  dispense,  and  use   controlled
substances.
          As we explain below, this third problem appears to be a
drafting error.  If this third problem were the only flaw in  the
ordinances,  we would probably resolve this case  by  adopting  a
limiting  construction of the ordinances.  But we can  not  solve
the  other  two  problems:  the fact that the definition  of  the
prohibited  conduct is so vague that it can not be understood  or
applied,  and  the  fact that the ordinances  authorize  criminal
convictions without proof of a culpable mental state.
          For  these  reasons, we conclude that the Municipalitys
drug paraphernalia ordinances are flawed beyond judicial salvage,
and that they must be declared unconstitutional.

Overview   of  the  Municipality  of  Anchorages   drug
paraphernalia ordinances

          As mentioned above, this case involves a trio
of ordinances found in the Anchorage Municipal Code.
          Section  08.35.010  defines  the  term   drug
paraphernalia.
          Section 08.35.020 prohibits the sale of  drug
paraphernalia  or the possession of drug  paraphernalia
with  intent to sell, except as specifically authorized
and permitted by Title 17 of the Alaska Statutes or  by
state  regulations adopted under the authority of Title
17.
          Section 08.35.025 prohibits the possession of
drug paraphernalia in public (even if the possessor has
no  intent  to sell it, and regardless of  whether  the
item ... is publicly displayed).
          To  understand the issues presented  in  this
case,   one   must   study  the  definition   of   drug
paraphernalia  codified  in  section  08.35.010.    One
difficulty in discussing section 08.35.010 is that  its
definition  of drug paraphernalia is divided  into  two
distinct  parts   two discrete definitional  paragraphs
and   neither  of  these  definitional  paragraphs   is
designated with a number or letter.  Moreover, each  of
these  two  definitional paragraphs is  followed  by  a
numbered list, and both lists begin with 1.
          To  make it easier for readers to follow  our
discussion of this ordinance, we will refer to the  two
definitional paragraphs as Paragraph A and Paragraph B.
          Paragraph  A  of the ordinance declares  that
drug paraphernalia means:
     
     any   items   [sic:  item]  whose   objective
     characteristics  or  objective  manufacturers
     design  indicate that it is intended for  use
     in  the  consumption, ingestion,  inhalation,
     injection or other method of introduction  of
     a controlled substance into the human body or
     to facilitate a violation of AS 11.71.
     
(Under   the  Anchorage  Municipal  Code,   a
controlled substance is any substance  listed
in  any of the six schedules codified  in  AS
11.71.140  190.  See AMC 08.35.010(A).)
          Because  the  definition  of   drug
paraphernalia codified in Paragraph A  hinges
on  an  items  objective  characteristics  or
design, we will refer to this portion of  the
definition  as  the objective characteristics
test.
          Paragraph   B   of  the   ordinance
supplements   the  objective  characteristics
test  codified in Paragraph A.   Paragraph  B
declares  that, in addition  to  all  of  the
items   covered   by   Paragraph   A,    drug
paraphernalia also means:

any   item   where  circumstances  reasonably
indicate that the subjective intent of  [its]
possessor  is to use it or sell  it  for  the
consumption, ingestion, inhalation, injection
or   other  method  of  introduction   of   a
controlled substance into the human  body  or
to facilitate a violation of AS 11.71.

          Because  the  definition  of   drug
paraphernalia codified in Paragraph B  hinges
on   whether  the  circumstances  furnish   a
reasonable   indication  of  the   possessors
intent, we will refer to this portion of  the
definition  as  the reasonable indication  of
intent test.

As written, the two definitions of drug paraphernalia
in  AMC  08.35.010 (Paragraphs A and B) cover  any
item connected with the preparation, distribution,
storage,   or   use  of  a  controlled   substance
regardless  of  whether the use of the  controlled
substance is legal or illegal

     Both  Paragraph  A  and Paragraph  B  of  the
ordinance   declare   that   an   item   is   drug
paraphernalia if it is intended for either of  two
purposes:   (1)  to  aid  the  introduction  of  a
controlled substance into a human body, or (2)  to
facilitate  a  violation of our states  Controlled
Substances Act, AS 11.71.
          The problem here is that the introduction  of
controlled substances into a human body is not  illegal
per  se.  Every day in this state, thousands of  people
lawfully  prepare, dispense, store, and use  controlled
substances.  The introduction of a controlled substance
into  a persons body is unlawful only if the controlled
substance has not been prescribed for a medical purpose
that  is,  only if the use of the controlled  substance
violates  our  states  Controlled  Substances  Act,  AS
11.71.1
          But  the second clause of Paragraphs A and  B
already   covers  all  items  intended  to   facilitate
violations  of AS 11.71.  Thus, using normal  rules  of
statutory construction  in particular, the rule that  a
statute  should not be construed so as to make  any  of
its  provisions  superfluous2   we  would  be  led   to
conclude that the first clause of Paragraphs  A  and  B
was   intended   to  apply  to  instances   where   the
introduction of a controlled substance into  a  persons
body  does  not  violate the Controlled Substances  Act
that  is,  instances  where  the  persons  use  of  the
controlled substance is lawful.
          At  first  blush, one might think  that  this
flaw is cured by a certain  provision of AMC 08.35.020,
the   ordinance  that  prohibits  the  sale   of   drug
paraphernalia  or the possession of drug  paraphernalia
with  intent to sell.  This ordinance declares that  it
is  a  crime to sell drug paraphernalia, or to  possess
drug  paraphernalia with intent to sell it,  except  as
specifically   authorized  and  permitted   under   the
provisions  of AS 17 and by such rules and  regulations
as are adopted there[under].
          One   might  assume  (indeed,  we  made  this
assumption when we first read this ordinance) that  the
language quoted in the last sentence refers to specific
statutes in Title 17, or to specific state regulations,
that   authorize  the  sale  and  possession  of   drug
paraphernalia   in   connection   with    the    lawful
manufacture,   dispensing,  and   use   of   controlled
substances.  But this assumption would be wrong.
          With  the exception of the statutes governing
the medical use of marijuana (AS 17.37.010  080), Title
17  of  the Alaska Statutes contains no provision  that
specifically authorizes the sale or possession of  drug
paraphernalia  for any purpose.  Nor  does  the  Alaska
Administrative Code contain any regulation  promulgated
under Title 17 that specifically authorizes the sale or
possession of drug paraphernalia.
          Thus,  although  AMC  08.35.020  contains   a
clause that purports to allow the sale or possession of
drug  paraphernalia  when that sale  or  possession  is
specifically  authorized and permitted  by  state  law,
this clause is essentially a nullity.
          This brings us back to our initial reading of
the drug paraphernalia ordinance:  the second clause of
Paragraphs  A and B covers all items that are  intended
to facilitate the unlawful use of controlled substances
(any  use  that  violates AS 11.71),  while  the  first
clause of Paragraphs A and B covers all items that  are
intended  to  facilitate the lawful use  of  controlled
substances.
          The  legislative history of the Municipalitys
drug   paraphernalia  ordinances  suggests  that   this
problem  arises from a drafting error committed twenty-
five  years ago  and that the language of Paragraphs  A
and  B  of the ordinance fails to reflect the intention
of  the  Municipal Attorneys Office (which drafted  the
ordinance)  and  the Municipal Assembly (which  adopted
the ordinance).
          The pertinent legislative history begins with
the  minutes  of  the  Municipal Assemblys  meeting  of
January  1982.   At this meeting, the Assembly  debated
whether   to   enact   Anchorages   predecessor    drug
paraphernalia  ordinance.  From  the  minutes  of  this
discussion,  it appears that the Assembly was  thinking
only of the unlawful use of controlled substances,  and
that  the  Assembly  did  not  intend  to  outlaw   the
possession  or sale of items connected with the  lawful
use of controlled substances.
          The   predecessor  ordinance   defined   drug
paraphernalia  as  any  item  intended   for   use   in
introducing  into a human body a controlled substance.3
This  language  suffered from  the  same  flaw  as  the
current  definition:  it outlawed all  items  connected
with the lawful use of controlled substances as well as
items  connected  with the unlawful use  of  controlled
substances.
          At  its  January 1982 meeting, the  Anchorage
Assembly  heard  comments from various members  of  the
public,  including  a representative  of  the  American
Diabetes  Association,  expressing  concern  that   the
proposed  ordinance  would impose penalties  on  lawful
users  of  controlled  substances.   In  response,  the
municipal attorney told the Assembly that the  proposed
ordinance  prohibit[ed] the sale of drug  paraphernalia
[only]  if the seller knows [that the item]  is  to  be
used to ingest illicit drugs.4
          Strictly  speaking,  there  are  no   illicit
drugs,  but only illicit uses of drugs.  The  municipal
attorney   assumedly  meant  that  the  ordinance   was
intended  to  apply  only to items connected  with  the
unlawful   use   of   controlled   substances.     This
interpretation  is  confirmed  by  the  fact  that  the
          municipal attorney also told the Assembly that the
proposed ordinance would have no effect on diabetics or
other  people  who  carried  syringes  or  other  items
connected  with  the  lawful  ingestion  of  controlled
substances.5
          Thus,  even  though the 1982 version  of  the
drug paraphernalia ordinance, as written, outlawed  all
items  connected  with any use  even  lawful  uses   of
controlled  substances, it appears that  the  Municipal
Assembly  voted  for this ordinance  only  after  being
assured  that  the  ordinance  applied  only  to  items
connected   with   the  unlawful  use   of   controlled
substances.
          Alaska does not follow the plain meaning rule
of statutory interpretation  the rule that bars a court
from considering legislative history as an interpretive
aid   if   a  statutes  meaning  is  facially   plain.6
Accordingly,  we  are  authorized  to  rely  upon   the
legislative  history from 1982 to narrow the  scope  of
the  drug  paraphernalia  ordinance  even  though,   as
written,   the  ordinance  plainly  covers  all   items
connected with any use  even lawful uses  of controlled
substances.
          The   situation   is,  however,   made   more
complicated  by  the Municipal Assemblys  enactment  of
amended drug paraphernalia ordinances in 2000.
          The  Anchorage drug paraphernalia  ordinances
were  substantially re-written in 2000.7  It was during
this revision that the definition of drug paraphernalia
assumed  its current form  covering all items  intended
for   either   of  two  purposes:   (1)  to   aid   the
introduction  of a controlled substance  into  a  human
body,  or  (2) to facilitate a violation of our  states
Controlled Substances Act, AS 11.71.
          Under  normal circumstances, this  change  in
the   wording  of  the  ordinance  would  be  a  strong
indication that the ordinance was, in fact, intended to
cover  items  connected  with  any  use  of  controlled
substances, whether that use was lawful or unlawful.
          The  ordinance now outlaws all items that are
intended  either  (1)  to aid  the  introduction  of  a
controlled  substance  into a human  body,  or  (2)  to
facilitate  a violation of the states drug  laws.   The
rules  of statutory construction direct us to interpret
the  first  clause of this definition as  supplementing
the  second  clause,  not simply restating  it.   Since
clause (2) covers all items connected with the unlawful
use of controlled substances, clause (1) must cover all
items  connected  with  any  other  use  of  controlled
substances  in other words, lawful uses.
          The  legislative  history of  this  2000  re-
writing of the ordinance is essentially silent on  this
point.  Even though the Municipal Attorneys Office  was
proposing  an extensive revision of the Anchorage  drug
paraphernalia  ordinances,  the  supporting  memorandum
          prepared by the municipal attorney devoted only two
sentences  to the proposed amendment, and only  one  of
those  sentences  is  pertinent to  the  issue  we  are
discussing.  That one sentence declared that  the  drug
paraphernalia  ordinances  were  being   amended   [to]
reflect  decisions on the constitutionality of  similar
ordinances  by  the United States Supreme  Court.   The
memorandum  did  not specify what court  decisions  the
municipal attorney was referring to.
          The   minutes  from  the  Anchorage  Assembly
meeting  of  July  2000 reflect that  no  one  appeared
before  the  Assembly to offer public  comment  on  the
proposed  revision.8  The minutes do  reflect  that  an
attorney  from the Municipal Attorneys Office responded
to   Assembly  questions  regarding  definitions,   the
difference  between subjective and objective  standards
of  state and municipal laws, and ... [the] outcomes of
[court] cases in other states.
          We  assume, from the context, that  at  least
some  of the assistant municipal attorneys remarks were
aimed  at clarifying the proposed revision of the  drug
paraphernalia ordinances.  The minutes do not, however,
give  any  details  of the Assemblys questions  or  the
attorneys responses.
          (We  note, moreover, that it is possible that
the  assistant municipal attorney was addressing  other
aspects  of the proposed ordinance  because  this  same
ordinance  also  proposed amendments to  several  other
unrelated   sections   of  the  Municipal   Code.    In
particular,  Anchorage Ordinance 2000-95  also  amended
the  sections of the Code relating to child abuse,  the
illegal  use  of  computers and  e-mail,  resisting  or
interfering   with   a   police   officer,   and    the
identification of criminal offenses that stem from acts
of domestic violence.)
          Given  this  history  (or,  rather,  lack  of
history)  from  2000,  it appears  that  the  Anchorage
Assembly  did  not give any particular thought  to  the
revised  definition  of  drug  paraphernalia  that   it
adopted  in 2000.  As a result of the Assemblys action,
both  Paragraph A and Paragraph B of the ordinance  now
define drug paraphernalia as any item connected with
     
     the   consumption,   ingestion,   inhalation,
     injection or other method of introduction  of
     a controlled substance into the human body or
     to facilitate a violation of AS 11.71.
     
This  revised wording  that is, the wording of  the  current
ordinance  that governs this case  clearly covers all  items
that  facilitate  any use of controlled substances,  whether
that use is lawful or unlawful.
          Nevertheless,  in  light  of  the  municipal  attorneys
explanation of the intended meaning of the corresponding language
from the predecessor ordinance of 1982, and in light of the scant
          attention paid to the new definitional language that appeared in
the  re-written ordinance in 2000, it appears that  the  Assembly
may  still have been relying on the municipal attorneys assurance
(from  January 1982) that the drug paraphernalia ordinances would
apply only to items connected with the unlawful use of controlled
substances.   Moreover, if we interpreted the drug  paraphernalia
ordinance  in  accordance with its language, this would  lead  to
results  that, without a doubt, the Anchorage Municipal  Assembly
would never have approved.
          Under  such  circumstances, we are  not  bound  by  the
wording  of  the  ordinance.  As our supreme court  explained  in
Federal Deposit Insurance Corp. v. Laidlaw Transit, Inc.:
          
          [E]ven when a statutes language [and] meaning
          seems  plain on its face, ambiguity may arise
          if   applying   that  meaning   would   yield
          anomalous  consequences.   ...  Thus,  [even]
          courts adhering to the plain meaning rule  of
          statutory interpretation commonly define  the
          rule  to  apply only [when both the] language
          of  a  statute is clear and construction  [of
          the  statute] according to its terms does not
          lead to absurd consequences.
          
          21  P.3d  344,  351  & n.  27  (Alaska  2001)
          (citations and internal quotes omitted).
                    For   these   reasons,   we   might
          conceivably cure the problem in Paragraphs  A
          and  B of the ordinance by striking the words
          or  to facilitate a, and then replacing those
          words  with  a single word, in.   After  this
          change,  the definitions in Paragraph  A  and
          Paragraph  B  would  apply  only   to   items
          connected  with  the consumption,  ingestion,
          inhalation,  injection  or  other  method  of
          introduction  of a controlled substance  into
          the  human body in violation of AS 11.71   in
          other words, items connected with a violation
          of   the  controlled  substances  chapter  of
          Alaskas criminal code.
                    But  as we explain in the remainder
          of  this  opinion, even if  we  adopted  this
          narrowing construction of Paragraphs A and B,
          each  of these definitional paragraphs  would
          still     suffer    from    an    intractable
          constitutional problem.
          
     The definition of drug paraphernalia  Paragraph A:  the
     objective characteristics test
     
          As  we  mentioned  above,  each  of  the  two
definitional paragraphs in AMC 08.35.010 is followed by
a  numbered list.  In the case of Paragraph A, the list
is   introduced   by   the   following   words:    Drug
paraphernalia [as defined in Paragraph A] includes  but
is not limited to ....  The ordinance then lists twelve
categories  of  items  that are  declared  to  be  drug
paraphernalia.
          Among  the twelve listed categories  of  drug
paraphernalia, we see items that are commonly  sold  at
groceries,   greenhouses,  and  hardware  stores    for
example,  [any  kit]  used  or  intended  for  use   in
planting,   propagating,   cultivating,   growing,   or
harvesting ... any species of plant which [either] is a
controlled   substance  or  from  which  a   controlled
substance can be derived (Item A.1).  We also see items
that  are found in any pharmacy  for example, [any kit]
used or intended for use in manufacturing, compounding,
converting,   producing,   processing,   or   preparing
controlled substances (Item A.2).
          We  see  items  that are sold  at  department
stores  and cookware stores  for example, [s]cales  and
balances  used  or  intended for  use  in  weighing  or
measuring controlled substances (Item A.5), as well  as
[b]lenders,  bowls,  containers,  spoons,  and   mixing
devices   used  or  intended  for  use  in  compounding
controlled substances (Item A.8).
          We  see items that can be found in stationery
stores   envelopes (Item A.9), and items  that  can  be
found in party supply stores  balloons (Item A.9).
          We  see  items  that  can  be  found  in  the
residences of people who rely on certain forms of daily
medication    hypodermic syringes, needles,  and  other
objects  used  or  intended for  use  in  parenterally9
injecting  controlled substances into  the  body  (Item
A.11).  We see items that can be found in tobacco shops
wooden,  ...  plastic, or ceramic pipes (Item  A.12.a),
and  in  the  homes of people who come from the  Middle
East  or  who  have visited that region  [w]ater  pipes
(Item A.12.b).
          Finally,  we  see items that could  be  found
almost  anywhere:  [c]ontainers and other objects  used
or   intended   for  use  in  storing  ...   controlled
substances.  (Item A.10)
          Admittedly,   this  list  of  categories   is
preceded  by the objective characteristics language  in
Paragraph A.  For this reason, it would make  sense  to
interpret these twelve listed categories of items as if
each  category were implicitly limited by the objective
characteristics test.  Thus, even though an item  might
be  included  among the twelve listed  categories,  the
item  would qualify as drug paraphernalia only  if  its
objective  characteristics showed that it was  intended
for  some  use connected with the unlawful introduction
of a controlled substance into a human body.
          But,  as  District  Court  Judge  Gregory  J.
Motyka  discovered when he tried to apply the objective
characteristics test during an earlier  stage  of  this
case,  it  is  often  all but impossible  to  determine
whether an items objective characteristics show that it
          is intended for a use connected with the unlawful
introduction  of  controlled substances  into  a  human
body.
          For  instance,  what objective characteristic
of a scale or a spoon shows that it is intended for the
weighing or measuring of controlled substances  instead
of other things?  Or what objective characteristic of a
pipe (of normal size and construction) shows that it is
intended  for  the smoking of marijuana as  opposed  to
tobacco  or other herbs?  Does the characterization  of
these items as drug paraphernalia hinge on the type  of
decoration found on them?  Would an illustration  of  a
marijuana  leaf  render the scales  or  the  pipe  drug
paraphernalia?  What about a paisley pattern  or  other
brightly colored design?
          The task becomes even harder when we consider
such  listed  items as syringes, balloons,  and  bowls.
What  objective characteristics of a syringe would lead
to  the conclusion that it was intended for use in  the
unlawful injection of controlled substances, as opposed
to   the  lawful  injection  of  controlled  substances
prescribed     as     medicines?     What     objective
characteristics  of  a  balloon  would  lead   to   the
conclusion  that  it was intended to be  used  for  the
unlawful   transporting   or  storing   of   controlled
substances  as  opposed  to  being  used  as  a   party
decoration?  What objective characteristics of  a  bowl
would  lead  to the conclusion that it is intended  for
use  in sifting marijuana as opposed to flour, or  what
objective  characteristics of a mortar  would  indicate
that  it  was  intended for the grinding of  controlled
substances as opposed to spices?
          Hardest  of  all  is  Item A.10,  containers.
What  objective  characteristics of a  box,  a  plastic
storage container, a bottle, or a spice jar would  lead
to  the conclusion that it was intended for the storage
of  controlled  substances as opposed to other  things?
Moreover,   pill   bottles  and  pill  dispensers   are
containers  that  are  commonly  used  by  pharmacists,
doctors, and patients in connection with the lawful use
of  controlled substances  i.e., the use of  controlled
substances    by    prescription.     What    objective
characteristics  of  such an item  would  lead  to  the
conclusion  that  it was intended for  the  storage  of
controlled   substances  that  are   to   be   ingested
unlawfully,  as  opposed  to  the  storage  of   lawful
medicines?
          The  text of the Anchorage drug paraphernalia
ordinance  does  not  supply  the  answers   to   these
questions.
          A  potential  way  to  solve  this  statutory
problem  is  suggested  by the  United  States  Supreme
Courts  decision  in  Village  of  Hoffman  Estates  v.
Flipside,  Hoffman  Estates, Inc., 455  U.S.  489,  102
S.Ct. 1186, 71 L.Ed.2d 362 (1982).
          In Hoffman Estates, the United States Supreme
Court  addressed a constitutional challenge to  a  city
ordinance that prohibited the sale of any item designed
or  marketed  for  use with illegal ...  drugs.10   The
Supreme  Court  dealt with the potential  vagueness  of
this  definition in two ways.  First, the Court limited
the designed for use clause by interpreting it to cover
only  items  which,  by  virtue  of  [their]  objective
features,    i.e.   features   designed   by    [their]
manufacturer,   are  principally  used   with   illegal
drugs.11   Second, the Court limited the  marketed  for
use clause by interpreting it to require proof that the
defendant intentionally displayed the item in a  manner
that  appeal[ed] to or encourag[ed] illegal drug use.12
In  other  words, the government had to prove that  the
defendant intend[ed] that [illegal] use of the item.13
          The  Supreme  Court acknowledged  that,  even
after  the  ordinance was limited in this fashion,  the
ordinance   still   posed   a   significant   risk   of
discriminatory enforcement.  The Court noted  that  the
record   of   the  lower  court  proceedings   revealed
confusion concerning the scope of items covered by  the
ordinance.14   The Court further noted that,  according
to the record, city officials relied extensively on the
judgment  of  [individual]  police  officers  to   give
meaning  to  the ordinance and to enforce it  fairly.15

          The  Supreme Court emphasized that it was not
deciding  whether  these  potential  flaws  might   bar
enforcement  of  the ordinance in the future.   Rather,
the Court was deciding only that these problems did not
render  the  ordinance facially unconstitutional,  once
the  ordinance was limited in the fashion described  in
its opinion.16
          The   Supreme  Courts  decision  in   Hoffman
Estates  suggests  a  potential narrowing   and  saving
interpretation of the definition of drug  paraphernalia
codified  in  Paragraph A of AMC 08.35.010.   We  could
construe   the   objective  characteristics   test   in
Paragraph A as covering only those items which,  judged
by   their  objective  characteristics,  have  but  one
principal use:  the consumption, ingestion, inhalation,
injection  or  other  method  of  introduction   of   a
controlled  substance into the human body in  violation
of AS 11.71.
          This  narrowing construction would not answer
all  of the potential constitutional objections to this
ordinance.   For  example,  even  construed   in   this
fashion,  the ordinance would still seemingly forbid  a
museum  curator from assembling an exhibit  of  certain
artifacts from the 1960s.
          But  more  importantly,  as  we  pointed  out
above, many people  e.g., drug company representatives,
pharmacists, doctors, and patients  routinely sell  and
possess objects which are specifically designed for use
          in the preparation, distribution, storage, and personal
use   of  controlled  substances.   It  is  often  very
difficult, if not impossible, to identify any objective
characteristics  of  these  items  that  would   reveal
whether  the  item  is  primarily  connected  with  the
unlawful use of controlled substances as opposed to the
lawful use of controlled substances.
          For  this  reason, we might further interpret
the  ordinance  to  require proof that  the  seller  or
possessor of the item intends that the item be used for
an unlawful purpose, or that the seller or possessor at
least  knows that the item will be used for an unlawful
purpose.  But at this point, we would be engaged  in  a
re-drafting of Paragraph A of the ordinance that  would
exceed our proper judicial role.
          Moreover, as explained in the next section of
our  opinion,  Paragraph B of the  definition  of  drug
paraphernalia  suffers  from a discrete  constitutional
difficulty.

The definition of drug paraphernalia  Paragraph B:  the
reasonable indication of intent test

          Paragraph  B  of  the ordinance  contains  an
alternative    definition   of   drug    paraphernalia.
Paragraphs A and B are worded in the disjunctive;  that
is,   even  if  an  item  does  not  qualify  as   drug
paraphernalia  under  Paragraph As objective  character
istics  test,  that  item may  still  qualify  as  drug
paraphernalia under Paragraph Bs reasonable  indication
of intent test.
          Paragraph B declares that, in addition to the
items  covered by Paragraph A, drug paraphernalia  also
means:
     
     any   item   where  circumstances  reasonably
     indicate that the subjective intent of  [its]
     possessor  is to use it or sell  it  for  the
     consumption, ingestion, inhalation, injection
     or   other  method  of  introduction   of   a
     controlled substance into the human  body  or
     to facilitate a violation of AS 11.71.
     
          The    definition    codified    in
Paragraph  B suffers from the same underlying
problem   as   the  definition  codified   in
Paragraph  A:   the  definition  covers  both
lawful   and   unlawful  uses  of  controlled
substances.  As explained above, this problem
could  conceivably be cured by  striking  the
words  or to facilitate a and replacing those
words  with  the single word in.  After  this
change,   Paragraph  B  would   define   drug
paraphernalia as any item where circumstances
reasonably   indicate  that  the   subjective
intent  of  [its] possessor is to use  it  or
sell   it  for  the  consumption,  ingestion,
inhalation,  injection  or  other  method  of
introduction  of a controlled substance  into
the human body in violation of AS 11.71.
          This  curative  change  would  not,
however,  eliminate all of the constitutional
problems in Paragraph B.
          It   is  important  to  note   that
Paragraph  B  does not define  drug  parapher
nalia  in  terms  of  the  possessors  actual
subjective  intent.   Paragraph  B  does  not
require proof that the possessor of the  item
subjectively intended to use or sell the item
to   accomplish  or  further   the   unlawful
introduction  of a controlled substance  into
the  human  body. Rather, under Paragraph  B,
the  government  must prove merely  that  the
circumstances  reasonably indicate  that  the
possessor  intended that the item be  put  to
this unlawful purpose.
          In  other words, Paragraph B allows
a  defendant to be convicted of the  sale  or
possession of drug paraphernalia when,  given
the  circumstances, a reasonable person would
believe,   or  think  it  likely,  that   the
defendant intended to use or sell the item to
accomplish    or   further    the    unlawful
introduction  of a controlled substance  into
the  human  body  regardless of  whether  the
defendant actually intended this.
          The constitutional dangers inherent
in   this  formulation  of  the  offense  are
exacerbated by the provisions of the numbered
list that follows Paragraph B.
          Paragraph B is followed by  a  list
of  fourteen [c]ircumstances to be considered
in  assessing  the subjective intent  of  the
possessor of the object.  These circumstances
include many things that the possessor of the
item   may   not  know  about  or   may   not
understand.
          For    example,   the    list    of
circumstances  that the  trier  of  fact  may
consider includes [s]tatements [made] by  the
manufacturer [of the item] (Item  B.1).   The
list   also  includes  [n]ational  and  local
advertising concerning [the items] use  (Item
B.9).
          The  list of circumstances  further
includes  [d]irect or circumstantial evidence
of  [the  possessors] intent ...  to  deliver
[the item] to persons who [the possessor] ...
should  reasonably [know] intend to  use  the
object  to  facilitate a  violation  of  [the
state drug laws] (Item B.6) (emphasis added).
In other words, the trier of fact is directed
to   consider   the   defendants   negligence
concerning  the  ultimate purchasers  purpose
for  buying  the  object, as opposed  to  the
defendants actual awareness of the purchasers
purpose.
          Finally,  the list of circumstances
includes  [e]xpert testimony concerning  [the
items]  use  (Item B.14).  As  the  defendant
points  out in his brief to this Court,  this
provision  allows the Municipality  to  offer
the  testimony  of drug enforcement  officers
that  a particular object is frequently  used
in  connection with the illegal ingestion  of
controlled  substances.  As explained  above,
the  ordinance does not require the trier  of
fact  to determine whether the defendant  was
actually  aware of the items use  within  the
drug  culture, or that the defendant actually
intended  that  the  item  be  used  in  that
fashion.  Rather, the ordinance declares that
the trier of fact need only determine whether
the  circumstances reasonably  indicate  that
the  defendant intended to put the object  to
this   use    and  that,  in  assessing   the
circumstances, the trier of fact can consider
expert testimony about the use of the item by
drug   users,   regardless  of  whether   the
defendant  was  personally aware  that  other
people  were putting the item to that illegal
use.
          The  underlying  problem  with  the
definition of drug paraphernalia codified  in
Paragraph B is that it allows a person to  be
convicted  based on appearances  rather  than
actual criminal intent.  Paragraph B requires
the  Municipality  to  prove  only  that  the
circumstances  reasonably indicate  that  the
seller or possessor of the item intended  for
the  item  to  be used in connection  with  a
violation  of  the drug laws.   We  emphasize
that,  under  the ordinance as written,  this
reasonable  indication is not being  used  as
circumstantial  evidence  of  the  defendants
true     intention.     Rather,    reasonable
indication is all that must be proved.
          Under Alaska law, the guarantee  of
due process demands that, before a person  is
subjected   to   criminal   penalties,    the
government  must show that the  person  acted
with  some  awareness of wrongdoing.17   This
demand  would presumably be met if  the  drug
paraphernalia ordinance were written so as to
require proof that the seller or possessor of
          an item actually intended that the item be
used   for   unlawful  purposes.    But   the
challenged ordinance is not written that way.
Instead,    the   ordinance   requires    the
Municipality   to   prove   only   that   the
circumstances  reasonably indicate  that  the
seller or possessor intended the item  to  be
put to an illegal use.
          It  may be that the drafters of the
ordinance  really intended to  dispense  with
any   inquiry  into  the  defendants   actual
intent, and to punish defendants based solely
on  appearances.  Alternatively, the drafters
of  the ordinance may have intended to punish
defendants  for  their  actual  intent,   but
substituted reasonable indication  for  proof
beyond  a reasonable doubt.  In either event,
the reasonably indicate language of Paragraph
B violates the due process clause.

The district courts construction of the ordinances

     When the defendant in this case presented his
constitutional  attacks  on  the  Anchorage   drug
paraphernalia  ordinances,  District  Court  Judge
Bryan  K.  Clark adopted a narrow construction  of
the  ordinances  in  an  effort  to  answer  these
constitutional attacks.
          With  respect  to Paragraph A  the  objective
characteristics  test  for  drug  paraphernalia   Judge
Clark ruled that even if the ordinances reference to an
items  objective characteristics was not clear  enough,
standing alone, to clarify the scope of the prohibition
codified  in  Paragraph  A,  the  list  of  the  twelve
categories  of items that follows Paragraph A  provides
rather  detailed guidance as to what an officer  should
be   looking  for,  and  [does]  not  permit  unbridled
discretion   in  seizing  property  and  charging   the
possessors of that property.
          For   the   reasons   explained   above,   we
respectfully disagree with that conclusion.  The twelve
categories  of items that are listed after Paragraph  A
are  so  broadly  worded as to potentially  criminalize
every homemaker, gardener, and hobbyist in Anchorage.
          With  respect to Paragraph B  the  reasonable
indication of intent test for drug paraphernalia  Judge
Clark  ruled  that this Paragraphs definition  of  drug
paraphernalia  required  proof  that  the   seller   or
possessor  of the item subjectively intended  that  the
item   be   used  for  the  unlawful  introduction   of
controlled   substances  into  a  human   body.    This
interpretation of Paragraph B would indeed  solve  some
of  the  constitutional problems discussed  here.   But
that is not what Paragraph B says.

Our conclusion

          The  current Anchorage ordinances that define
and   punish   the   sale  and   possession   of   drug
paraphernalia  are  flawed by constitutional  problems.
Paragraph  A  of  the definition is  unlawfully  vague,
while Paragraph B of the definition allows a person  to
be  convicted  without  proof of  mens  rea,  or  on  a
standard of proof less than beyond a reasonable doubt.
          Theoretically, it would be possible for  this
Court  to re-write the definition of drug paraphernalia
to  answer these concerns.  But the re-write  would  be
drastic  so drastic that we believe it falls outside  a
courts  proper sphere of action.  For this  reason,  we
conclude  that we should not attempt to construe  these
ordinances  to  eliminate their  constitutional  flaws.
Rather,  we  simply  declare that  the  ordinances,  as
written, are unconstitutional.
          The  judgement  of  the  district  court   is
REVERSED.
STEWART, Judge, dissenting.

          Relying primarily on a reason that has  never
been  litigated  by the parties, or  addressed  by  the
trial   court,   the  Court  today   holds   that   the
Municipalitys   drug   paraphernalia   ordinances   are
unconstitutional because they are vague.
          But a properly enacted law is presumed to  be
constitutional,  and courts should construe  enactments
to avoid a finding of unconstitutionality to the extent
possible.1   In  addition, the party claiming  that  an
enactment   is  unconstitutional  has  the  burden   of
rebutting  the  presumption of constitutionality.2   In
this case, Myers owned a head shop and was charged with
and    convicted    of   knowingly   possessing    drug
paraphernalia with the intent to sell it.
          In  his pre-trial motions, Myers argued  that
the   challenged   ordinances   definitions   of   drug
paraphernalia did not provide him with adequate  notice
of  the prohibited conduct.  But our supreme court  has
recognized   that  the  possibility  of  difficult   or
borderline cases will not invalidate an enactment where
there  is  a  hard core of cases to which the  ordinary
person    would    doubtlessly   know    the    statute
unquestionably applies.3
          I  conclude that Myerss conduct as the  owner
of  a head shop does not present a borderline case.  To
the contrary, his conduct fell within the hard core  of
cases.  The factual record supports the conclusion that
items   in   Myerss   inventory   had   the   objective
characteristics or design that indicated that the items
were  intended to facilitate a violation of  a  statute
under AS 11.71 (controlled substances).
          Myers  also  argued that the ordinances  have
the  potential  for  arbitrary  enforcement.   But   an
appellate  court  will not invalidate an  enactment  on
this  ground unless there is some history of  arbitrary
or selective enforcement.4  As Judge Clark found, Myers
made no such showing.
          I    would    not    find   the    ordinances
unconstitutional based on reasons not raised or  argued
by  the  appellant, nor briefed in any meaningful  way.
Based   on  Judge  Clarks  narrow  interpretation   and
application  of  the ordinances in this  case,  and  in
light   of  Myerss  conduct,  I  would  affirm   Myerss
convictions.
          Accordingly,  I  dissent  from   the   Courts
holding.
_______________________________
1Each  provision of AS 11.71 that prohibits the manufacture,
delivery,    or   possession   of   controlled    substances
(AS  11.71.010   060)  begins with  the  phrase,  Except  as
authorized  in  AS  17.30.  The pertinent provisions  of  AS
17.30   (AS   17.30.020    080)  declare   that   preparing,
distributing,   storing,   and  conducting   research   with
controlled  substances is lawful if it is done in conformity
with  federal  registration requirements or by  prescription
for a medical purpose.

2See Mechanical Contractors of Alaska, Inc. v. Department of
Public  Safety,  91  P.3d 240, 248 (Alaska  2004)  (When  we
engage in statutory construction[,] we will presume that the
legislature intended every word, sentence, or provision of a
statute to have some purpose, force, and effect, and that no
words  or  provisions are superfluous.); Ault v.  State,  73
P.3d 1248, 1251 n. 18 (Alaska App. 2003).

3Anchorage   Ordinance  81-219,  Section  2,  proposed   AMC
08.20.010(B).

4Minutes  of  the  Anchorage  Assembly,  January  12,  1982:
discussion of Anchorage Ordinance 81-219.

5Id.

6 University of Alaska v. Tumeo, 933 P.2d 1147, 1152 (Alaska
1997); Lagos v. City and Borough of Sitka, 823 P.2d 641, 643
(Alaska  1991); Gilley v. State, 955 P.2d 927,  930  (Alaska
App. 1998).

7Anchorage Ordinance 2000-95.

8Minutes of the Anchorage Assembly, July 18, 2000, page 14.

9The  parenteral introduction of a substance into the  human
body  refers to introducing the substance in a manner  other
than  through  the  gastro-intestinal tract.   Websters  New
World College Dictionary (Fourth Edition, 2004), p. 1047.

10Hoffman Estates, 455 U.S. at 500, 102 S.Ct. at 1194.

11Id., 455 U.S. at 501, 102 S.Ct. at 1195.

12Id., 455 U.S. at 502, 102 S.Ct. at 1195.

13Id.

14Id., 455 U.S. at 503, 102 S.Ct. at 1196.

15Id.

16Id., 455 U.S. at 503-04, 102 S.Ct. at 1196.

17See  Hentzner  v. State, 613 P.2d 821 (Alaska  1980);
Kimoktoak v. State, 584 P.2d 25 (Alaska 1978);  Alex v.
State,  484 P.2d 677 (Alaska 1971); Speidel  v.  State,
460 P.2d 77 (Alaska 1969).

1Treacy  v.  Anchorage, 91 P.3d 252, 260 (Alaska 2004);  see
also State v. Morgan, 111 P.3d 360, 361 (Alaska App. 2005).

2See Nason v. State, 102 P.3d 962, 964 (Alaska App. 2004).

3Stock  v.  State,  526 P.2d 3, 9 (Alaska  1974);  see  also
Turney v. State, 936 P.2d 533, 544 (Alaska 1997).

4Holton v. State, 602 P.2d 1228, 1237 (Alaska 1979).

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