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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Rollins v Ulmer (11/24/00) sp-5336

This has been WITHDRAWN - see Opinion # 5356

Rollins v Ulmer (11/24/00) sp-5336

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907)
264-0608, fax (907) 264-0878.


                              )    Supreme Court No. S-9197
               Appellant,     )
                              )    Superior Court No.
          v.                  )    4FA-98-982 CI
STATE OF ALASKA,              )
JIM KENTCH, and               )    [No. 5336 - November 24, 2000]
               Appellees.     )

          Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
                  Niesje J. Steinkruger, Judge.

          Appearances: Charles H. Rollins, Jr., pro se, 
North Pole.  Dean J. Guaneli, Chief Assistant Attorney General, and
Bruce M. Botelho, Attorney General, Juneau, for Appellees Fran
Ulmer and Sandra Stout.  Douglas Pope, Pope & Katcher, Anchorage,
for Appellees Jim Kentch and Alaskans for Medical Rights.

          Before: Matthews, Chief Justice, Eastaugh,
          Fabe, Bryner, and Carpeneti, Justices.

          BRYNER, Justice.

          Charles Rollins challenges Alaska's medical marijuana
law, contending that its registration requirements violate his
constitutional right to privacy.  Because the law bars public
access to the medical marijuana registry and limits state use to
legitimate purposes, we reject Rollins's privacy arguments and
affirm the superior court's decision declaring the law
           In 1998 Alaska voters approved a "medical marijuana"
initiative.  Sponsored by Alaskans for Medical Rights, the
initiative passed as Ballot Measure 8 and was codified as
AS 17.37.010.  The law allows Alaskans with debilitating conditions
to use marijuana for medical purposes upon a physician's
certification that the use might be beneficial. [Fn. 1]  To ensure
compliance with its provisions, the law requires medical marijuana
users to register with the Department of Health and Social
Services; the department then issues identification cards and
maintains a registry of authorized users. [Fn. 2]  
          Shortly after Alaskans for Medical Rights submitted
Ballot Measure 8 to the Division of Elections, Charles Rollins
filed a complaint in superior court raising procedural claims to
bar the division from certifying the measure and asserting that the
initiative violated constitutional privacy and equal protection
rights.  Rollins later amended his complaint to challenge the
initiative based on constitutional violations of article XI,
sections 1 and 7, which concern procedures for and restrictions on
the initiative and referendum process.  Alaskans for Medical Rights
intervened in support of the measure. 
          After the election, Rollins withdrew his procedural
claims, opting to pursue only his complaint that the measure
violated his privacy rights.  The state, joined by Alaskans for
Medical Rights, moved for summary judgment.  Rollins filed a cross-
motion for partial summary judgment.  The superior court granted
summary judgment to the state, declaring the medical marijuana law
constitutional.  Rollins appeals. 
          On appeal, Rollins renews his claim that the medical
marijuana law's registration requirements infringe his
constitutional right to privacy. [Fn. 3]  We find guidance on this
point  in Falcon v. Alaska Public Offices Commission, [Fn. 4] and
in a United States Supreme Court decision discussed by Falcon,
Whalen v. Roe. [Fn. 5]
          In Falcon, an Alaska physician challenged the
constitutionality of a newly adopted conflict of interest statute
that required him to disclose the names of his patients in order to
serve on the school board.  To determine whether Alaska's statute
violated his constitutional right to privacy, we turned to the
Supreme Court's decision in Whalen.   
          Whalen addressed the constitutionality of a statute
requiring New York physicians to submit to the state health
department the names and addresses of all persons receiving
prescriptions for certain "Schedule II" drugs -- including opium,
cocaine, methadone, amphetamines, and methaqualone -- for which
there are both lawful and unlawful markets. [Fn. 6]  The physicians
and patients challenging the statute argued that it violated
constitutionally protected privacy rights by requiring disclosure
of personal matters and by interfering with individual freedom to
make important treatment decisions. [Fn. 7]  They argued that
disclosure of information about the prescription and use of drugs
like cocaine and opium might make some patients "reluctant to use,
and some doctors reluctant to prescribe, such drugs even where
their use is medically indicated." [Fn. 8]  
          Rejecting this risk as insufficient to establish a
constitutional violation, the Court in Whalen emphasized that the
New York statute made information collected by the health
department confidential and prohibited from public disclosure. [Fn.
9]  Noting that involuntary public disclosure could occur only if
health department employees violated the law by failing to maintain
proper security or if a patient or doctor were formally accused in
a judicial proceeding, the Court concluded that neither outcome
invalidated the statute. [Fn. 10]  The Court found no evidence to
support the physicians' and patients' fears that department
employees might violate the statute's confidentiality provisions;
moreover, in the Court's view, "the remote possibility that
judicial supervision of the evidentiary use of particular items of
stored information will provide inadequate protection against
unwarranted disclosures is surely not a sufficient reason for
invalidating the entire patient-identification program." [Fn. 11]
          In Falcon, we read Whalen's privacy analysis "as a
recognition that where applicable rules or regulations insure that
[potentially stigmatizing personal] information will be available
only to authorized personnel in the context of a valid governmental
program, no constitutional violation has occurred." [Fn. 12] 
Applying this analysis, we observed that, although disclosing a
person's doctor visits ordinarily does not infringe a significant
privacy interest, the disclosure may reveal the nature of the
patient's ailment. [Fn. 13]  In these situations, we held, "the
individual's privacy interest in protecting sensitive personal
information from public disclosure" outweighs the government's
interest in compelling full public disclosure to prevent political
conflicts of interest. [Fn. 14]  Because Alaska's law made all
conflict of interest disclosures available to the public and
allowed no exemption for physicians or patients with sensitive
information, we concluded that the law posed a threat to protected
privacy rights. [Fn. 15]  To prevent invasion of these rights, we
enjoined the Alaska Public Offices Commission from applying the law
to physician-patient situations until it adopted appropriate
curative regulations. [Fn. 16]
          Whalen and Falcon frame our present analysis.  Falcon
acknowledges that "certain types of information communicated in the
context of the physician-patient relationship fall within a
constitutionally-protected zone of privacy." [Fn. 17]  And Whalen
specifically recognizes that a drug-use registry like the one at
issue here can threaten two facets of constitutional privacy: the
right to avoid public disclosure of personal matters and the right
to privacy in consulting a physician and making medical treatment
choices. [Fn. 18]  Rollins contends that the Alaska medical
marijuana law's registry infringes both privacy interests. [Fn. 19] 
But in fact it violates neither.  
          It can hardly be disputed that the medical marijuana
registry requires disclosure of sensitive information: mere
presence in the registry identifies a person as suffering from a
"debilitating medical condition" and as being a marijuana user.  We
agree with Rollins that the general publication of this information
could be stigmatizing and invasive of the right to privacy. [Fn.
20]  But the law's drafters anticipated this concern and fully
addressed it.            The medical marijuana law does not require
medical marijuana users to divulge any details about the
debilitating conditions they suffer. [Fn. 21]  And although it does
require them to register and to identify their approving
physicians, the law explicitly requires the department to keep the
registry confidential: the registry is closed to public access;
only authorized public officials may use it; and even they must
confine their use to narrowly specified purposes.  The statute
               (a) . . . The registry and the
information contained within it are not a public record under AS
09.25.100 -- 09.25.220.  Peace officers and authorized employees of
state or municipal law enforcement agencies shall be granted access
to the information contained within the department's confidential
registry only

                    (1) for the purpose of
verifying that an individual who has presented a registry
identification card to a state or municipal law enforcement
official is lawfully in possession of such card;  or

                    (2) for the purpose of
determining that an individual who claims to be lawfully engaged in
the medical use of marijuana is registered or listed with the
department or is considered to be registered or listed under (g) of
this section.

               (b) Except as provided in (a) of this
section, a person, other than authorized employees of the
department in the course of their official duties, may not be
permitted to gain access to names of patients, physicians, primary
or alternate caregivers, or any information related to such persons
maintained in connection with the department's confidential
registry.[ [Fn. 22]]
          Falcon specifies that when "applicable rules or
regulations insure that [potentially stigmatizing] information will
be available only to authorized personnel in the context of a valid
governmental program, no constitutional violation has occurred."
[Fn. 23]  The medical marijuana law's confidentiality provisions
meet these specifications.  
          Rollins nonetheless complains that he has no guarantee
that the government will comply with the law's confidentiality
requirements.  He offers hypothetical scenarios in which his
privacy rights might be violated -- the state's computer system
might not be secure; or federal prosecutors might demand access to
registry information in order to prosecute medical marijuana users
under federal law.  But like the appellants in Whalen, Rollins
provides no evidence to substantiate his fear that the confidential
registry might be mishandled. [Fn. 24]  We thus hold, as the Court
held in Whalen, that these unsubstantiated fears provide no basis
for declaring the law invalid. 
          Rollins further suggests that, even if the registry is
kept confidential, its mere existence burdens his freedom to make
medical treatment choices, because it causes fear of
stigmatization.  But again, Rollins's concerns lack constitutional
grounding.  In Whalen, the Supreme Court rejected a similar
challenge to New York's Controlled Substances Act, noting that,
"[w]ithin dosage limits which appellees do not challenge, the
decision to prescribe, or to use, is left entirely to the physician
and the patient." [Fn. 25]  Alaska's medical marijuana law is even
less restrictive than the New York statute upheld in Whalen.  The
Alaska statute does not fix dosage limits, nor does it require that
patients have a prescription. [Fn. 26]  As long as a patient
submits a letter from a physician certifying that the patient may
benefit from marijuana, the decision to use marijuana as a medical
treatment is left entirely to the individual.  
          While the confidential registry might deter some
skeptical patients from pursuing medical marijuana treatment, this
incidental deterrence, standing alone, cannot establish a
constitutional violation.  If our constitution permitted only a
perfect system of regulating medical marijuana -- one that would
overcome the fears of all potential medical marijuana users --
then, as a practical matter, no regulation would ever be possible. 
As the Court recognized in Whalen, there are 
          a host of . . . unpleasant invasions of
privacy that are associated with many facets of health care. 
Unquestionably, some individuals' concern for their own privacy may
lead them to avoid or to postpone needed medical attention. 
Nevertheless, disclosures of private medical information to
doctors, to hospital personnel, to insurance companies, and to
public health agencies are often an essential part of modern
medical practice even when the disclosure may reflect unfavorably
on the character of the patient.  Requiring such disclosures to
representatives of the State having responsibility for the health
of the community, does not automatically amount to an impermissible
invasion of privacy.[ [Fn. 27]]
          Here, we similarly conclude that Alaska's medical
marijuana law leaves patients and their physicians broad freedom to
choose marijuana for medical treatment of debilitating conditions. 
Accordingly, we hold that the law does not interfere with the
constitutional right to make independent medical choices. [Fn. 28]
          Because the medical marijuana law's confidential
registration process does not violate Rollins's constitutional
right to privacy, we AFFIRM the superior court's judgment.


Footnote 1:

     AS 17.37.010.

Footnote 2:

     See id.

Footnote 3:

     Alaska Constitution, article I, section 22, provides: "The
right of the people to privacy is recognized and shall not be
infringed.  The legislature shall implement this section."

Footnote 4:

     570 P.2d 469 (Alaska 1977).

Footnote 5:

     429 U.S. 589 (1977).

Footnote 6:

     See id. at 591-93 & n.8.

Footnote 7:

     See id. at 595, 598-600.

Footnote 8:

     Id. at 600.

Footnote 9:

     See id. at 593-94 & n.12.

Footnote 10:

     See id. at 600-01.  The Court also noted that a doctor,
pharmacist, or patient may voluntarily reveal the information on a
prescription form.  See id. at 600.

Footnote 11:

     Id. at 601-02 & n.27.

Footnote 12:

     Falcon, 570 P.2d at 479.

Footnote 13:

     See id. at 479-80.

Footnote 14:

     Id. at 480.

Footnote 15:

     See id.

Footnote 16:

     See id.

Footnote 17:

     Id. at 478 & nn. 36-37 (citing Roe v. Wade, 410 U.S. 113
(1973); Doe v. Bolton, 410 U.S. 179 (1973); Griswold v.
Connecticut, 381 U.S. 479 (1965); Ravin v. State, 537 P.2d 494, 515
(Alaska 1975) (Boochever, J. and Connor, J., concurring)).

Footnote 18:

     Whalen, 429 U.S. at 599-600.

Footnote 19:

     Citing Ravin v. State, 537 P.2d 494 (Alaska 1975), Rollins
also suggests that the medical marijuana law violates a third
aspect of constitutional privacy: the right to personally possess
and use marijuana.  But Ravin ultimately established that although
the privacy clause in the Alaska constitution guarantees Alaskans
a basic right to privacy in their homes, the clause does not
guarantee a right to use marijuana.  Ravin, 537 P.2d at 504.  See
also Cleland v. State, 759 P.2d 553, 557 (Alaska App. 1998)
(stating that "the sanctity of the home [is] protected by the
privacy clause, not the use of marijuana").  Because the medical
marijuana law regulates possession and use of marijuana outside the
sanctity of the home, and because the state unquestionably has
broad power to regulate the administration of drugs for medical
purposes, Whalen, 429 U.S. at 603 n.30, Ravin is inapposite to the
case at hand.  

Footnote 20:

     See 21 U.S.C. sec. 812 (providing schedules of controlled
substances); AS 11.71.050 & .060 (describing the misdemeanor of
misconduct involving controlled substances).

Footnote 21:

     AS 17.37.070(4) defines "debilitating medical condition" to
mean any of a number of serious ailments, including cancer,
glaucoma, positive status for human immunodeficiency virus, or
acquired immune deficiency syndrome, or any other chronic or
debilitating disease that requires treatment for severe pain,
severe nausea, seizures, muscle spasms, or any other medical
condition approved by the department by regulation or petition.

Footnote 22:

     AS 17.37.010.

Footnote 23:

     Falcon, 570 P.2d at 479.

Footnote 24:

     See Whalen, 429 U.S. at 601-02 & n.27.

Footnote 25:

          Id. at 603.

Footnote 26:

     See generally AS 17.37.010-.080.

Footnote 27:

     Whalen, 429 U.S. at 602 (footnote omitted).

Footnote 28:

     Rollins raises two collateral points concerning the superior
court's handling of discovery matters, arguing that the court erred
in ordering Rollins's mother not to use the public records act to
obtain information to support Rollins's litigation and in failing
to compel the state to respond to his discovery requests.  Both
points address matters extraneous to this appeal.  Rollins's mother
sought information that had nothing to do with this case and that
she did not intend to share with her son.  Rollins's discovery
request sought information regarding the state's handling of the
ballot measure certification process -- a procedure that Rollins
voluntarily abandoned below.  Because these points have no
conceivable bearing on the validity of the judgment at issue in
this appeal, we do not address them.