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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Citizens for Implementing Medical Marijuana v. Municipality of Anchorage (02/24/2006) sp-5990

Citizens for Implementing Medical Marijuana v. Municipality of Anchorage (02/24/2006) sp-5990, 129 P3d 898

     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,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


CITIZENS FOR IMPLEMENTING )
MEDICAL MARIJUANA and ) Supreme Court No. S- 11345
AL ANDERS, )
) Superior Court No. 3AN-02-12732 CI
Appellants, )
) O P I N I O N
v. )
) No. 5990 - February 24, 2006
MUNICIPALITY OF ANCHORAGE, )
and GREG MOYER, CLERK, )
)
Appellees. )
)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Morgan Christen, Judge.

          Appearances:   Kenneth P. Jacobus  and  Karen
          Bretz, Anchorage, for Appellants.  Joseph  D.
          OConnell,  Assistant Municipal Attorney,  and
          Frederick   H.  Boness,  Municipal  Attorney,
          Anchorage, for Appellees.

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

          EASTAUGH, Justice.

I.   INTRODUCTION
          Citizens for Implementing Medical Marijuana (CIMM) sued
the  Municipality  of Anchorage and Municipal  Clerk  Greg  Moyer
after  Clerk  Moyer  refused to certify CIMMs citizen  initiative
petition  and submit its ballot proposition to municipal  voters.
Because we conclude that the petition is confusing and misleading
and therefore legally insufficient, we affirm the superior courts
summary  judgment  that  held  that  the  clerk  properly  denied
certification.
II.  FACTS AND PROCEEDINGS
          On  April  10, 2002, Citizens for Implementing  Medical
Marijuana  submitted  an  initiative  petition  to  Greg   Moyer,
Municipal  Clerk  for  the  Municipality  of  Anchorage,  seeking
placement  of  CIMMs  ballot proposition  on  the  next  citywide
ballot.    The  petition  proposed  an  initiative  to   legalize
marijuana paraphernalia and referred to, among other things,  the
Alaska  Statute allowing medical use of marijuana and the  Alaska
Constitutions  guarantee of the right to privacy.   The  petition
stated:
          An  Initiative Petition Allowing Those  Items
          Used  with Marijuana Legal as Medicine  or  a
          Right To Privacy
          
          WHEREAS,   in   1998,   the   Alaska   voters
          overwhelmingly passed an initiative to  allow
          the  use  of marijuana as medicine  (Nov.  3,
          1998   Bill allowing medical use of Marijuana
          [97PSDM],  131,586 voting yes  versus  92,701
          voting no);
          
          WHEREAS,  in  1975, the Alaska Supreme  Court
          unanimously    ruled    that    the    Alaska
          constitutional right to privacy,  Article  I,
          Section  22,  included  the  right   to   use
          marijuana in ones home, (Ravin v. State);
          
          WHEREAS,  in 1993, the Alaska Superior  Court
          ruled that the Alaska Constitution cannot  be
          amended  by initiative and that the right  to
          privacy  still  included  the  right  to  use
          marijuana (McNeil v. State);
          
          WHEREAS  it is in the best interests  of  the
          residents of the Municipality of Anchorage to
          use   law-enforcement  resources  to   pursue
          violent  crime  and  to  combat  the  growing
          threat of terrorism;
          
          THEREFORE,  We,  the  undersigned  registered
          voters  of  the  Municipality  of  Anchorage,
          direct  the  Municipal Assembly  to  put  the
          following charter amendment before the voters
          at the next regular municipal election:
          
          THE  PROPOSITION:  Shall Article  II  of  the
          Municipal  Charter  be  amended  to  add  the
          following section:
          
               (14)  The  right to buy,  sell,  or
               possess those items which could  be
               used  to  consume, grow or  process
               marijuana for medicine, or as is in
               accord  with the right  to  privacy
               protected by Article I, Section  22
               of the Alaska Constitution.[1]
               
          Clerk Moyer rejected the petition on May 13, 2002 after
finding  that it lacked the requisite number of valid signatures.
After CIMM demonstrated that it had obtained the necessary number
of signatures, Clerk Moyer asked the municipal attorney to review
the   petitions   legal  sufficiency.   The  municipal   attorney
concluded  that it was legally insufficient, reasoning  that  the
first  whereas clause contained a false and misleading  statement
of law,2 and that the proposition would violate federal and state
law  by authorizing the sale and purchase of marijuana seeds  and
plants.   Clerk Moyer therefore refused to certify  the  petition
and place the initiative on the ballot.
          CIMM  and  Al  Anders  (collectively  CIMM)  sued   the
Municipality of Anchorage and Clerk Moyer, and asked the superior
court   to declare that the petition correctly stated the current
law per Ravin v. State,3 and to compel Clerk Moyer to certify the
petition  and  place the initiative on the ballot.   The  parties
cross-moved for summary judgment.  The superior court  held  that
the  title of the petition, two of its whereas clauses,  and  the
proposition   were  confusing  and  misleading,   and   therefore
concluded that Clerk Moyer had properly rejected the petition  as
legally insufficient.  The court consequently denied CIMMs motion
for  partial  summary judgment, granted the municipalitys  cross-
motion  for  summary  judgment,  and  entered  judgment  for  the
defendants.
          CIMM appeals.
III. DISCUSSION
     A.   Standard of Review
          We  review  de  novo the superior courts  determination
that  the petition was legally insufficient.4  The burden  is  on
the  municipality, as the party challenging the  petitions  legal
sufficiency,  to  demonstrate that it is biased  or  misleading.5
[W]hen  reviewing  initiative challenges, we  liberally  construe
constitutional  and  statutory  provisions  that  apply  to   the
initiative process.6
     B.   The Petition Is Confusing and Misleading.
          1.   Petitions must be comprehensible and truthful.
          At   times  relevant  to  this  appeal,  the  Anchorage
Municipal  Code required petition summaries to describe  the  law
proposed  by  the petition.7  We have held that   this  provision
requires   the   description  to  be  truthful,  impartial,   and
comprehensible.8  This requirement stems from the public interest
in  informed lawmaking9 and guides our inquiry here.  [O]ur  main
concern  should  be  that  all matters  (legislative  enactments,
initiative  petitions  and even proposed resolutions)  should  be
presented clearly and honestly to the people of Alaska.10
          2.    We  review  the legal sufficiency of  the  entire
petition, not just            the proposition.

          CIMM argues that because the whereas clauses would  not
have  been  placed  on  the  ballot  if  the  petition  had  been
certified,   our  review  should  be  limited  to   whether   the
proposition itself would have confused or misled voters.11   This
argument  ignores  the  important  screening  function  that  the
signature requirement plays in the initiative process.12
          The  signature-gathering requirement ensures that  only
propositions with significant public support are included on  the
ballot.13  But when a petition, including its title and  summary,
is  confusing or misleading, petition signers may not  understand
what  they  are signing.  Signatures on a confusing or misleading
petition  therefore  may  or may not  indicate  support  for  the
measure.   Under such circumstances, it cannot be  known  whether
the  signature-gathering  requirement has  served  its  screening
function.  Moreover, the municipality correctly points out that a
biased and partisan title14 was a factor in our determination that
the  citizens challenging the petition in Faipeas v. Municipality
of  Anchorage had shown a likelihood of success on the merits  of
their  contention  that the petition was legally  insufficient.15
Similarly,  confusing  and misleading titles  and  summaries  are
valid grounds for refusing to certify a petition.
          3.   The petition title is confusing.
          The  petition is entitled An Initiative Allowing  Those
Items  Used  with  Marijuana Legal as  Medicine  or  a  Right  To
Privacy.   The  superior court concluded that the titles  literal
meaning suggests that the proposition would declare paraphernalia
to   be  medicine  (and  therefore  legal)  and/or  declare  that
paraphernalia  is  a right to privacy.  (Emphasis  in  original.)
This   conclusion  accurately  reflects  the  titles  grammatical
difficulties.  The superior court also noted, however,  that  the
confusion  engendered  by the title, standing  alone,  might  not
          render the petition legally insufficient.
          CIMM correctly points out that we relax procedural  and
technical requirements for citizen initiatives because  they  are
often  drafted  by  non-lawyers.16   Likewise,  courts  liberally
construe  constitutional and statutory requirements so  that  the
people  (are)  permitted to vote and express their  will  on  the
proposed  legislation. 17  But confusing or misleading  petitions
frustrate the ability of voters to express their will.   Contrary
to  CIMMs contention, therefore, we are not required to interpret
unclear  language  in  the petition in a manner  which  does  not
render it invalid.
          The  titles grammatical difficulties stem from its  use
of  the  term marijuana.  It appears only once in the  title  but
serves several functions.  Ordinarily, a word is used as only one
part  of  speech  each  time it appears  in  a  sentence.   Here,
marijuana  is  first used in the clause (those  items  used  with
marijuana) that describes the objects that are the subject of the
initiative.   The  superior court correctly  characterized  these
objects  as paraphernalia, even though that word does not  appear
in  the petition.18  Marijuana also seems to be used to refer  to
the  substance marijuana itself, because it seems to be  modified
by  the  phrase  legal as medicine or a right to  privacy.   This
implies  that the proposition would allow marijuana paraphernalia
either  when  the  marijuana  with  which  the  paraphernalia  is
associated  is used in accordance with Alaskas medical  marijuana
statute19 or when its use is protected by the right to privacy.20
          It is therefore not obvious from the words of the title
exactly  what is intended.   Persons considering whether to  sign
the  petition could not reasonably be expected to engage  in  the
grammatical analysis required to discover exactly what the  title
means.   Nonetheless, we agree with the superior court  that  the
titles  puzzling grammatical deficiencies would  not  render  the
petition legally insufficient, absent any problems with the  rest
of  the  petition.  The title at least conveys some sense of  the
initiatives purpose: to allow items whose use is somehow  related
to  marijuana.  But readers confused by the rest of the  petition
could  derive little guidance by referring back to the title  for
clarification.  Most importantly, the title does  not  assist  in
understanding  what conduct the proposition would  protect.   The
title  does  not  help resolve deficiencies  discussed  in  Parts
III.B.4 and III.B.5.
          4.   The  text  of the proposition itself is  deficient
               because it does not explain whether it creates  or
               abolishes rights.
               
          The text of the proposed initiative reads:

          Shall Article II of the Municipal Charter  be
          amended to add the following section:
          
               (14)  The  right to buy,  sell,  or
               possess those items which could  be
               used  to  consume, grow or  process
               marijuana for medicine, or as is in
               accord  with the right  to  privacy
               protected by Article I, Section  22
               of the Alaska Constitution.
               
          Because  the petition does not explain the context  and
purpose of Article II of the Anchorage Municipal Charter,  it  is
unclear  from the face of the proposition even whether  it  would
create  or abolish rights respecting marijuana paraphernalia.   A
reader  would  have to infer the effect of the  proposition  from
other  sources,  such  as  the name of the  group  promoting  the
petition or possibly from other parts of the petition.
          The   uncertainty  created  by  this  lack  of  context
violates  the principle of informed lawmaking that underlies  all
petition requirements.21  Because potential petition signers could
not  know with sufficient certainty what they were endorsing, the
petition is legally insufficient.22
          Although  we do not have to decide the issue  here,  we
note  in  passing that the text of the proposition might also  be
misleading  in  regards  to its scope.   The  text  may  be  read
narrowly,  thus suggesting that it would protect the acquisition,
sale,  or  possession  of  items only  when  circumstances  would
support  a  belief  that the items would be used  with  marijuana
actually  used  in  accordance  with  Alaskas  medical  marijuana
statute  or  the  right  to privacy.  Or the  text  may  be  read
broadly, suggesting that it would protect the acquisition,  sale,
or  possession of those types of items that conceivably could  be
used   in   connection  with  marijuana  potentially  usable   in
accordance with Alaskas medical marijuana statute or the right to
privacy.   Because this ambiguity in the text of  the  initiative
might  cause  voters to sign the petition who would not  sign  if
they  perceived the broader possible reading, the text itself  is
potentially  problematic.  But we do not have to  decide  if  the
text   is   actually  problematic  given  the   petitions   other
deficiencies.
          5.   If   the   ballot   proposition   is   given   the
               interpretation  CIMM advocates,  the  petition  is
               misleading  as  to  what conduct  the  proposition
               would protect.
               
          At oral argument before us, CIMMs counsel asserted that
the  ballot  proposition would create a right to  buy,  sell,  or
possess  any  item that could be used in accordance with  Alaskas
medical   marijuana   statute  or  in  accordance   with   Ravins
interpretation   of  the  right  to  privacy,  whether   or   not
circumstances indicated that the marijuana would in fact be  used
in  one  of  these  legally  protected contexts.   CIMMs  counsel
likewise argued that it is impossible to separate people who  use
marijuana in accordance with the statute or the right to  privacy
from people whose association with marijuana is not protected  by
law,  including people acting for commercial purposes.  But CIMMs
counsel  also  stated  that  the proposition  would  not  protect
purchases  that were clearly [for] commercial operation[s],  such
as five hundred grow lights.
          It is not obvious that these latter two contentions are
completely  consistent.  We nonetheless assume  without  deciding
          that CIMMs interpretation of the proposition is correct.  But
this means that the petition, which must [d]escribe the ordinance
or resolution sought,23 is legally insufficient because the title
is  misleading as to the propositions scope.  As noted above, the
petition is entitled An Initiative Petition Allowing Those  Items
Used with Marijuana Legal as Medicine or a Right To Privacy.
          CIMM  argues that the title states that the  initiative
proposes  to  legalize those items used with marijuana  which  is
legal  as  medicine and those items used with marijuana which  is
legal  under Alaskans privacy rights.  This is a fair reading  of
the  title, but not the only fair reading.   CIMMs interpretation
of  the  title  therefore  suggests that  to  be  protected,  the
paraphernalia would have to be used to grow, consume, or  process
marijuana only in instances in which the conduct is permitted  by
Alaskas medical marijuana statute or the right to privacy.
          Given  CIMMs own interpretation, therefore,  the  title
does  not  accurately describe the conduct the proposition  would
protect.    The   title   proposes  legalization   of   marijuana
paraphernalia in specific situations.  But as we saw  above,  the
proposition itself could be read to legalize possession and  sale
of  marijuana paraphernalia in virtually all situations, even  if
it were not actually intended to be used, or is in fact not used,
in accordance with Alaskas medical marijuana statute or the right
to  privacy.   The title is therefore misleading and consequently
legally insufficient.24
          The  propositions  scope  is further  obscured  by  the
whereas  clauses.  They basically assert that (1)  Alaska  voters
legalized  the  use  of  marijuana  for  medical  purposes  in  a
statewide initiative; (2) since 1975 Alaskas state constitutional
right  to privacy has included the right to possess marijuana  in
ones  home;  (3)  Alaskas state constitutional right  to  privacy
continues to include the right to possess marijuana in ones home;
and  (4)  law  enforcement resources are best spent on  combating
violent  crime  and the growing threat of terrorism.   The  first
three whereas clauses therefore describe several circumstances in
which  marijuana possession and consumption are legal.  But CIMMs
interpretation  of the proposition is not so limited,  and  would
protect  possession  of  marijuana paraphernalia  even  when  the
marijuana  use is not protected by AS 17.37.010  .080 or  by  the
right to privacy.  The first three whereas clauses therefore fail
to   describe   the   propositions   full   scope   under   CIMMs
interpretation.   And to the extent the clauses  imply  that  the
proposition  should be given the narrow reading discussed  above,
they  could  encourage petition signatures by persons  who  would
oppose the proposition if they gave it the broader reading.
          On  its  face,  the  fourth whereas clause  appears  to
justify  the propositions scope as it was interpreted by CIMM  at
oral  argument  before  us.   This clause  invites  a  comparison
between  the value of using law enforcement resources  to  combat
violent  crime  and terrorism and the value of other  unspecified
uses.   The superior court correctly recognized that this  clause
is  a  statement of the drafters political opinion with  which  a
voter  may  choose to agree or disagree.  Read in the context  of
the  title and other whereas clauses, the relevant comparison the
          fourth whereas clause invites is between (1) combating violent
crime  and terrorism, and (2) detecting and prosecuting protected
users of marijuana for possessing paraphernalia.  If this is  not
the  comparison the drafters intended, the fourth whereas  clause
is  meaningless in the context of the title and the other whereas
clauses.  Although this clause is not necessarily misleading,  it
does  not  cure the petitions other problems because it does  not
reveal  whether  the  proposition  is  intended  to  protect  the
possession  and  sale  of items that are not  in  fact  used  for
purposes protected by AS 17.37.010  .080 or the right to privacy.
This  clause  therefore  cannot support legalizing  paraphernalia
beyond circumstances where the marijuana use is protected  by  AS
17.37.010   .080  or by Ravins interpretation  of  the  right  to
privacy.
          Nor  can  we conclude that the use of could be  in  the
text  of  the proposition is sufficient to signify the difference
in  scope  between  the  title and the whereas  clauses  and  the
proposition itself.  Under CIMMs reading of the proposition,  the
use of could be renders meaningless the limitations suggested  by
the  title,  the  whereas clauses, and the  second  half  of  the
proposition itself.25
IV.  CONCLUSION
          For  these reasons, the superior courts order  granting
summary judgment to the defendants is AFFIRMED.
_______________________________
     1     The  superior courts opinion substituted  possess  for
process in the Proposition section of the petition.  Both parties
had  used process in documents before the superior court, but use
possess in their appellate briefs.  Because the record reveals no
reason  for this change, we will use the original word,  process.
We  would  reach the same result whether process or possess  were
the correct word.

     2     The Anchorage Municipal Code (AMC) provision in effect
at times relevant to this case required that the petition summary
describe  the  proposed law.  AMC 2.50.030(A) (superseded  2002).
In  Faipeas  v.  Municipality of Anchorage, 860 P.2d  1214,  1219
(Alaska 1993), we interpreted this provision to require that  the
petition be truthful, impartial, and comprehensible.

     3     Ravin v. State, 537 P.2d 494 (Alaska 1975).  The Ravin
court held that the right to privacy in article I, section 22  of
the  Alaska Constitution encompasses the possession and ingestion
of  substances  such  as  marijuana in a  purely  personal,  non-
commercial  context  in the home unless the state  can  meet  its
substantial  burden and show that proscription of  possession  of
marijuana  in  the  home  is  supportable  by  achievement  of  a
legitimate state interest.  Id. at 504.  The court concluded that
no  adequate  justification  for the states  intrusion  into  the
citizens  right  to privacy by its prohibition of  possession  of
marijuana  by an adult for personal consumption in the  home  has
been  shown.   Id. at 511.  Therefore possession of marijuana  by
adults  at  home for personal use is constitutionally  protected,
id.,  even though there is not a fundamental constitutional right
to  possess or ingest marijuana in Alaska.  Id. at 502  (emphasis
added).

          Because  our disposition of this case does not  require
us  to decide whether the second whereas clause accurately states
Ravins holding, we decline to express an opinion about it.

     4    See Cabana v. Kenai Peninsula Borough, 50 P.3d 798, 801
(Alaska  2002) (noting that this court reviews grants of  summary
judgment de novo).

     5     See  Faipeas  v. Municipality of Anchorage,  860  P.2d
1214,  1219  (Alaska 1993) (interpreting AMC 2.50.030 (superseded
2002))  (quoting  Burgess  v. Alaska  Lieutenant  Governor  Terry
Miller,  654  P.2d  273,  276 (Alaska 1982)  (affirming  superior
courts  holding that Lieutenant Governors summary  of  initiative
petition was not misleading)).

     6     Kodiak  Island Borough v. Mahoney, 71  P.3d  896,  898
(Alaska 2003).

     7     AMC 2.50.030(A) (superseded 2002).  Eight months after
CIMM submitted this petition, the Anchorage Assembly amended  the
Municipal  Code  to  provide for review  of  applications  for  a
petition  before signatures may be gathered.  Anchorage Ordinance
No. 2002-162 (Dec. 17, 2002).  Current version at AMC 2.50.010 et
seq.  The Anchorage Municipal Code currently does not require the
petition  to describe the ordinance or resolution sought  by  the
petition, but requires that it set out verbatim the ordinance  or
resolution  sought to be enacted or repealed by the petition  and
meet  constitutional,  charter and other  legal  requirements  or
restrictions.  AMC 2.50.020(B)(3)(a) and (c).

     8     Faipeas,  860 P.2d at 1219 (interpreting AMC  2.50.030
(superseded 2002)).

     9    Id. at 1221.

     10     Id.  (quoting Yute Air Alaska, Inc. v. McAlpine,  698
P.2d  1173, 1188 (Alaska 1985) (Moore, J., dissenting)  (emphasis
in original)).

     11    If the petition had been certified and the proposition
placed on the ballot, the ballot would have contained only (1) an
objectively  stated,  informative  caption  or  title,  (2)   the
question posed by the proposition, and (3) the words yes and  no.
AMC  28.40.010(D).  The whereas clauses therefore would not  have
appeared on the ballot.

     12     Faipeas,  860  P.2d  at 1219 (noting  the  signature-
gathering requirement[s] . . . important screening purpose).

     13     Id. (The signature gathering requirement is important
because  it  eliminates the initiation of an  expensive  campaign
process  when  there  is  insufficient  public  support  for   an
initiative.)   (quoting   Cynthia  L.  Fountiane,   note,   Lousy
Lawmaking: Questioning The Desireabiliy and Constitutionality  of
Legislating by Initiative, 61 S. Cal. L. Rev. 735, 746 (1988)).

     14     See Faipeas, 860 P.2d at 1217 (REFERENDUM PETITION TO
REPEAL A SPECIAL HOMOSEXUAL ORDINANCE ).

     15     Faipeas v. Municipality of Anchorage, 860 P.2d  1214,
1221  (Alaska  1993) (affirming preliminary injunction preventing
proposition from appearing on ballot).

     16     Because  petitions  are often  prepared  by  inexpert
sponsors  who  nonetheless espouse worthy or popular  causes,  or
both,  courts are reluctant to invalidate them in cases of merely
doubtful  legality.  Yute Air Alaska, Inc. v. McAlpine, 698  P.2d
1173,  1181  (Alaska 1985).  To that end all  doubts  as  to  all
technical deficiencies or failure to comply with the exact letter
of  procedure will be resolved in favor of the accomplishment  of
that purpose.  Id. (internal quotation marks omitted).

     17     Boucher v. Engstrom, 528 P.2d 456, 462 (Alaska  1974)
(quoting  Cope  v.  Toronto,  332 P.2d  977,  979  (Utah  1958)),
overruled  in  part  on  other grounds by McAlpine  v.  Univ.  of
Alaska, 762 P.2d 81 (Alaska 1988).

     18    Cf.  AMC 8.35.010A (defining drug paraphernalia).

     19    See AS 17.37.010-.080.

     20    See supra note 3.

     21    Faipeas, 860 P.2d at 1221.

     22     Cf.  In re Title, Ballot Title, and Submission Clause
for  Proposed Initiatives 2001-2002 #21 and #22 (English Language
Education),  44  P.3d 213, 219 (Colo. 2002) (articulating  policy
that government drafter should whenever practicable, avoid titles
for which the general understanding of the effect of a yes or  no
vote will be unclear).

     23    AMC 2.50.030(A) (superseded 2002).

     24     See Faipeas, 860 P.2d at 1219 (A description which is
untruthful, misleading, or which is not complete enough to convey
basic  information  as  to  what the ordinance  does,  cannot  be
regarded  as a legally adequate or sufficient description  within
the meaning of the ordinance.).

     25    The proposition reads:

          Shall Article II of the Municipal Charter  be
          amended to add the following section:
          
               (14)  The  right to buy,  sell,  or
               possess those items which could  be
               used  to  consume, grow or  process
               marijuana for medicine, or as is in
               accord  with the right  to  privacy
               protected by Article I, Section  22
               of the Alaska Constitution.
               
 (Emphasis added.)

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