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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. American Civil Liberties Union of Alaska (04/03/2009) sp-6357

State v. American Civil Liberties Union of Alaska (04/03/2009) sp-6357, 204 P3d 364

     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,


MARQUEZ, Attorney General for) Supreme Court No. S- 12370
the State of Alaska, in his official )
capacity, ) Superior Court No. 1JU-06- 793 CI
Appellants, ) O P I N I O N
v. ) No. 6357 April 3, 2009
and JANE ROE, )
          Appeal  from the Superior Court of the  State
          of  Alaska, First Judicial District,  Juneau,
          Patricia A. Collins, Judge.

          Appearances:    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.

          MATTHEWS, Justice.
          CARPENETI, Justice, with whom WINFREE, Justice,  joins,
          Under the ripeness doctrine, the constitutionality of a
statute   generally  may  not  be  challenged  as   an   abstract
proposition.  The plaintiffs in the present case have  brought  a
pre-enforcement  challenge  to  a  newly  amended  statute   that
prohibits  the possession and use of marijuana.  They claim  that
because  the  statute criminalizes the use  by  adults  of  small
amounts  of  marijuana in their homes it violates  their  privacy
rights as interpreted in Ravin v. State.1  The question addressed
in   this   opinion  is  whether  the  general  bar  on  abstract
adjudication   should  apply.   The  plaintiffs  argue   for   an
exception, contending that it is unfair to put them to  a  choice
of  either continuing to use marijuana in their homes and risking
prosecution or giving up its use.  We conclude that the  need  to
make  this  choice  is  not a product of the  challenged  statute
because  the plaintiffs will remain subject to prosecution  under
federal  law  regardless of how we might rule.  For this  reason,
and because other factors that counsel against deciding cases  in
an  abstract  setting  are also present,  we  conclude  that  any
challenge to the statute must await an actual prosecution.
          In   June  2006  the  Alaska  Legislature  amended   AS
11.71.060(a) to prohibit the possession of less than one ounce of
marijuana.2  The American Civil Liberties Union of Alaska and two
anonymous individuals, Jane Doe and Jane Roe (collectively,  ACLU
or plaintiffs), sued for declaratory and injunctive relief.  They
argued  that  section .060 as amended conflicts with the  privacy
clause  of the Alaska Constitution,3 as interpreted in  Ravin  v.
State,4  to the extent that it criminalizes possession  of  small
amounts of marijuana in the home by adults for personal use.
          The  ACLU  moved for a temporary restraining order  and
preliminary  injunction pending resolution of  the  suit.   At  a
hearing before Superior Court Judge Patricia A. Collins the  ACLU
agreed  that  its  motion for a temporary restraining  order  and
preliminary  injunction could be treated as a motion for  summary
judgment.  Later the State moved to dismiss Jane Doe and the ACLU
on  standing grounds.  The State argued that Doe lacked  standing
because she could seek protection under Alaskas medical marijuana
law.5   It  further contended that the ACLU lacked organizational
or  associational  standing.  The State also  opposed  the  ACLUs
motion for preliminary relief or summary judgment and cross-moved
for  summary  judgment.  The superior court  concluded  that  the
plaintiffs  had  standing to challenge the law because  they  are
exposed to potential criminal prosecution for possession of small
amounts  of  marijuana in their homes.6  In the same  order,  the
court,   relying  on  our  decision  in  Ravin,  granted  summary
declaratory judgment in favor of the ACLU.
          The  State  appeals.  It argues that  Ravin  should  no
longer be considered controlling for several reasons.  The  State
contends that marijuana is much more intoxicating now than it was
in  1975  when  Ravin was decided.7  Further,  according  to  the
State, more people are using marijuana and starting to do  so  at
younger  ages than at the time Ravin was decided, and the adverse
consequences of using marijuana are better understood.  The State
points out that the legislature held hearings on marijuana  usage
          before enacting the 2006 amendments and made a number of
findings.   The  State  summarizes  the  findings,  in  part,  as
          (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
          (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
          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.
          The  State  and ACLU contend that we should review  the
superior  courts 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.
          Alaskas   declaratory  judgment  statute  provides   in
relevant part: In case of an actual controversy in the state, the
superior  court, upon the filing of an appropriate pleading,  may
declare  the  rights and legal relations of an  interested  party
seeking  the  declaration, whether or not further  relief  is  or
could  be sought.8  Though a superior court may issue declaratory
relief, the superior court may only exercise this discretion in a
case of . . . actual controversy.9  The statutes reference to  an
actual   controversy  encompasses  considerations  of   standing,
mootness,  and ripeness.10  As we have recently recognized,  this
court  is  the ultimate arbiter of such issues and we  review  de
novo  a  superior courts ripeness determination.11  To the extent
that  our prior decisions have suggested that abuse of discretion
review  applies to both a superior courts finding  of  an  actual
controversy  and  a ruling that declaratory relief  is  in  other
respects appropriate,12 we now clarify those cases in light of our
more recent decisions.

     A.   The Requirements of the Ripeness Doctrine.
          The    actual   controversy   limitation   in   Alaskas
declaratory judgment act13 reflects a general constraint  on  the
power  of  courts to resolve cases.  Courts should  decide  cases
only  when a plaintiff has standing to sue and the case  is  ripe
and  not moot.14  Because ripeness constrains the power of courts
to  act,  courts should not rely on an agreement by  the  parties
that  a  case is ripe for decision.15  In its recent decision  in
Alaska Right to Life Political Action Committee v. Feldman,16 the
Ninth Circuit Court of Appeals explained the basic requirement of
ripeness:  While pure legal questions that require little factual
development  are  more  likely to be ripe,  a  party  bringing  a
preenforcement  challenge  must nonetheless  present  a  concrete
factual situation. 17  We have similarly recognized that a case is
justiciable  only  if  it has matured to a  point  that  warrants
decision.18  [W]hile Alaskas standing rules are liberal this court
should  not issue advisory opinions or resolve abstract questions
of law.19
          The  concept  of  ripeness can  be  explained  in  both
abstract and practical formulations.  The abstract formulation is
that  ripeness  depends on whether . . . there is  a  substantial
controversy,  between parties having adverse legal interests,  of
sufficient  immediacy and reality to warrant the  issuance  of  a
declaratory judgment.20  On a more practical level, our  ripeness
          analysis fundamentally balances the need for decision against the
risks  of  decision.21  We examine the fitness of the issues  for
judicial  decision and the hardship to the parties of withholding
court consideration.22
          Under this formulation, varying degrees of concreteness
might  be  deemed acceptable depending on the need for a judicial
decision.  Thus, in the context of free speech, a court may adopt
[a]  somewhat relaxed approach to justiciability because  of  the
special  consideration  traditionally afforded  speech  rights.23
Where a statute criminalizes conduct, threats of enforcement will
support  a pre-enforcement challenge if the threats are real  and
actually  force  the  plaintiff to choose  between  forgoing  the
behavior and facing penalties.24
     B.   The  Parties Face Little Hardship If Their  Claims  Are
          Not Resolved in a Hypothetical Setting.
          Both  the  State  and ACLU argue that  the  ACLUs  pre-
enforcement challenge is ripe because the threat of enforcing  AS
11.71.060(a) forces plaintiffs to either change their behavior or
face  the  risk of criminal liability.  Neither party sets  forth
other hardships that might occur if we refrain from reaching  the
merits of this appeal.
          We   conclude  that  the  risk  of  criminal  liability
argument  rings hollow because the activities that the plaintiffs
wish  to engage in are already criminal under federal law.  Thus,
the  plaintiffs  do not have a strong claim of need  for  a  pre-
enforcement  decision  on the constitutionality  of  the  amended
statute  because  their current practices  are  and  will  remain
illegal  and  expose  them  to a risk  of  criminal  prosecution,
regardless of any ruling this court might make.
          1.   The Federal Controlled Substances Act criminalizes
               the  plaintiffs personal, residential  consumption
               of  marijuana  and imposes penalties  that  exceed
               state sanctions.
          As  part  of  President Nixons War on  Drugs,  Congress
passed the Comprehensive Drug Abuse Prevention and Control Act of
1970, also known as the Controlled Substances Act.25  Under  this
act, marijuana is classified as a Schedule I drug26  a drug with a
high  potential for abuse, lack of any accepted medical use,  and
lack of accepted safety for use under medical supervision.27  The
possession of marijuana in any quantity is a federal crime.28  By
comparison, current Alaska law classifies marijuana as a Schedule
VIA  drug   a  drug with the lowest degree of danger or  probable
danger to a person or the public.29
          Unsurprisingly,  the Controlled Substances  Act  treats
possession  and  use of marijuana as a much more serious  offense
than  Alaska law.  The federal sanction for a first-time offender
possessing any quantity of marijuana is a term of imprisonment of
not  more than one year and a fine of at least $1,000, or both.30
A  person who knowingly possesses marijuana for personal use also
faces  a  federal civil penalty of not more than  $10,000.31   By
comparison,  under the amended Alaska statute the penalty  for  a
first offense of possession in the home is, at most, a $500  fine
          with no jail time.32
          Regardless  of  the  outcome of  this  case,  there  is
nothing  that  this  court, or any other  branch  of  the  Alaska
government,  could do to affect the risk or severity  of  federal
enforcement.33  The United States Supreme Courts recent  decision
in  Gonzales  v.  Raich  shows the continuing  supremacy  of  the
federal  drug  laws.34   In Raich, the Court upheld  the  Federal
Controlled  Substances  Act even though it  criminalized  conduct
that  Californias medical marijuana law legalized.35 As the facts
of   Raich  demonstrate,  the  Federal  Drug  Enforcement  Agency
enforces the Controlled Substances Act without deference to state
law or policies.  Accordingly, both before and after our decision
in Ravin, the risk of federal prosecution has threatened Alaskans
use  of  marijuana.   And  the risk of  federal  prosecution  for
marijuana   possession   amplified  by  harsh  federal  penalties
remains   a   strong  reality  that  the  plaintiffs  will   face
irrespective of any ruling we might make in this appeal.
          2.   The  declarations of Jane Doe and Jane Roe neither
               suggest that the amended statute will affect their
               conduct  nor  that they will be  the  subjects  of
          The  ACLUs  complaint  for declaratory  and  injunctive
relief  suggests  that  fear  of enforcement  is  the  basis  for
ripeness.   To  support  this position, Jane  Doe  and  Jane  Roe
submitted  declarations regarding their use of marijuana.    Jane
Doe  declares  that  she uses marijuana for  medicinal  purposes,
though  she  did not register as a medical marijuana user.   Jane
Roe declares that she uses marijuana to relieve stress.
          Reading   the  declarations,  we  conclude   that   any
incremental deterrence associated with AS 11.71.060,  as  opposed
to the current federal drug laws, will not impact the plaintiffs.
Jane  Doe does not aver that AS 11.71.060 will affect her use  of
marijuana.   Rather  she states that [e]ven  if  the  legislature
makes marijuana illegal, I will continue to use and possess it in
my  home.   Jane Doe thus does not seem deterred by  the  amended
state  statute.  Jane Roe asserts her belief in a right  to  have
small amounts of marijuana in her home, but explains I dont  want
to go to jail.  But Jane Roes concern about incarceration is more
real  under  federal  law than under the amended  state  statute,
since the latter only imposes a small monetary fine on first-time
offenders.   Thus the hardships asserted by both named plaintiffs
do  not  require  that  we  address the constitutionality  of  AS
11.71.060 at this time.
          While  the ACLU claims associational standing,  it  too
did  not allege any facts distinguishing the hardship its members
faced  before  AS  11.71.060 was amended from  the  hardship  its
members   faced  after  the  statute  was  amended.    The   mere
criminalization of marijuana simply echoes extant federal law.
          We  also  note  that  the  plaintiffs  fears  of  state
criminal enforcement may be speculative and overstated.  In Ravin
we  recognized that prosecutors and police departments  generally
are  not  interested in pursuing individuals who  merely  possess
small  quantities of marijuana in their home for personal  use.36
          Thus, to face prosecution, persons violating the amended statute
would  need  to  be in a situation where police  have  reason  to
suddenly  enter their homes.  Such a scenario bears  similarities
to  City  of  Los  Angeles v. Lyons, in which the  United  States
Supreme  Court rejected as speculative and not ripe a claim  that
Lyons  would  be subject to a police choke hold in the  future.37
The Court noted that Lyons only faced this risk if he acted in  a
manner  leading to an encounter with police and that, during  the
encounter, he resisted detention or failed to comply with  police
orders.38  The Court thus concluded, as we do in this case,  that
there  would  be little hardship to the plaintiff if  the  appeal
were not decided in a hypothetical setting.
     C.   Decisional Risks Are Present
          As  we  have noted, in determining whether the ripeness
element  of the actual controversy requirement exists, we balance
the  asserted need for a decision against the risks of  making  a
decision  in  an  abstract context.  In the above  discussion  we
conclude that the need side of the scale has little or no weight.
It  follows  that  this case should be considered  not  ripe  for
decision   if   the   normal  risks  associated   with   deciding
hypothetical cases are present.  We conclude that they are.
          In  Brause  v.  State, Department of  Health  &  Social
Services,39 we outlined some of the considerations on  the  risks
side of the scale:
               The  central  perception is that  courts
          should  not render decisions absent a genuine
          need  to resolve a real dispute.  Unnecessary
          decisions dissipate judicial energies  better
          conserved for litigants who have a real  need
          for  official assistance.  As to the  parties
          themselves,  courts should not undertake  the
          role of helpful counselors, since refusal  to
          decide  may  itself  be  a  healthy  spur  to
          inventive  private  or public  planning  that
          alters the course of possible conduct  so  as
          to achieve the desired ends in less troubling
          or   more   desirable  fashion.   Defendants,
          moreover,  should not be forced to  bear  the
          burdens  of  litigation  without  substantial
          justification,  and  in any  event  may  find
          themselves  unable to litigate  intelligently
          if   they   are   forced  to   grapple   with
          hypothetical   possibilities   rather    than
          immediate  facts.   Perhaps  more  important,
          decisions  involve lawmaking.   Courts  worry
          that unnecessary lawmaking should be avoided,
          both  as a matter of defining the proper role
          of  the  judiciary in society and as a matter
          of   reducing   the   risk   that   premature
          litigation    will   lead   to    ill-advised
          adjudication.  These concerns translate  into
          an   approach  that  balances  the  need  for
          decision against the risks of decision.   The
          need   to  decide  is  a  function   of   the
               probability and importance of the anticipated
          injury.   The risks of decision are  measured
          by  the  difficulty  and sensitivity  of  the
          issues presented, and by the need for further
          factual development to aid decision.[40]
          Several of these concerns are present in this case.
          1.   Concrete facts may aid in the decision.
          When   statutes   are  found   by   a   court   to   be
unconstitutional,  they  may be found to be  unconstitutional  as
applied  or unconstitutional on their face.  A holding of  facial
unconstitutionality  generally means that  there  is  no  set  of
circumstances  under which the statute can be applied  consistent
with  the requirements of the constitution.41  A holding  that  a
statute  is  unconstitutional as applied simply means that  under
the   facts   of   the  case  application  of  the   statute   is
unconstitutional.  Under other facts, however, the  same  statute
may be applied without violating the constitution.
          We discussed these distinctions in State, Department of
Revenue, Child Support Enforcement Division v. Beans.42  At issue
was  the  constitutionality  of a statute  permitting  the  Child
Support  Enforcement Division to suspend the drivers licenses  of
people  who  are  delinquent in child  support  payments.   After
noting  the definition of facial unconstitutionality, we observed
that if the statute
          were  applied so as to take away the  license
          of  an  obligor who was unable to  pay  child
          support,  it  would  be  unconstitutional  as
          applied  in  that case.  At that point  there
          would  be no rational connection between  the
          deprivation  of  the license and  the  States
          goal of collecting child support.[43]
But we explained that substantive due process norms  requiring  a
statute  to  have  a  reasonable  relationship  to  a  legitimate
governmental  purpose  would be satisfied  if  the  statute  were
applied to people who are capable of paying child support.44
          Here  the  ACLU  does not argue that  AS  11.71.060  is
unconstitutional  in  all  circumstances.   The  amended  statute
applies to use or possession of marijuana anywhere, but the  ACLU
argues  that  only  home  possession or use  is  constitutionally
protected.  The statute applies to a person, but the ACLU  argues
that  only adult users and possessors are protected.  The statute
applies  to possession for any purpose, but the ACLU argues  that
only  possession for personal use is protected.  We are thus  not
being   asked   to   declare   the   amended   statute   facially
unconstitutional,   for   it  has  many  clearly   constitutional
applications,  but to define by pre-determined  categories45  the
circumstances under which the statute may not operate.
          But  adjudication of an actual case, or several  actual
cases,  might cast these categories in a different light.   There
may  be cases where the conduct of a particular defendant  is  so
closely  connected to one or more of the health and safety  goals
underlying the amended statute that the statute could permissibly
          be applied, even if Ravin retains general vitality.
          Relatedly, when constitutional issues are raised,  this
court  has  a  duty to construe a statute, where  reasonable,  to
avoid  dangers  of unconstitutionality.46  Rather than  strike  a
statute down, we will employ a narrowing construction, if one  is
reasonably possible.47  The amended statute may be a candidate for
narrowing constructions.  A construction upholding the statute in
cases directly involving the health and safety goals on which the
statute  is  based might be developed.  This case is  necessarily
about  a  narrowing construction of some sort since  the  amended
statute  is  not  unconstitutional in all its applications.   The
question   is   what  narrowing  constructions  are  appropriate.
Allowing  the normal processes of adjudication to take place  may
be of assistance in providing the answer.
          We  have  recent experience underlining  the  potential
problems with deciding the constitutionality of a statute in  the
absence  of  actual facts.  In Evans ex rel. Kutch  v.  State  we
considered  a broad facial challenge to many aspects  of  Alaskas
tort reform legislation.48  In part of our opinion in that case we
upheld  a  statute  of limitations tolling provision  for  minors
against  an equal protection challenge.49  A few years  later  in
Sands ex rel. Sands v. Green the same provision was challenged in
a  concrete  case.50 In Sands we struck down the statute  on  due
process grounds.51  In so ruling we observed:
               That  our  Evans decision did not  reach
          this  particular constitutional issue  merely
          reinforces the wisdom of the rule that courts
          should   generally  avoid  deciding  abstract
          cases.   Evans  involved a host  of  abstract
          facial  challenges divorced from any  factual
          context, and we warned at the time we decided
          Evans  that future cases might require us  to
          take  a  second look at the constitutionality
          of  the  statutory scheme. . . .  But,  given
          the  abstract  nature of  Evans,  it  is  not
          surprising  that a concrete case involving  a
          concrete  factual scenario  has  uncovered  a
          previously unanswered question.[52]
In    deciding   here   that   our   decision   concerning    the
constitutionality of the amended statute could be aided by one or
more concrete factual scenarios, we take counsel from Sands.
          2.    Other factors also counsel against an unnecessary
          Beyond the assistance that the facts of concrete  cases
might  lend  to the ultimate resolution of the issue  before  us,
some  of  the  other risk factors mentioned in  Brause  are  also
present.53   The  question before the court is,  taken  alone,  a
difficult one with reasonable arguments available to both  sides.
It  is  also a high-profile case in which the general  public  as
well as the executive and legislative branches of government  are
interested.    Further,  sustaining  the  ACLUs  position   would
necessarily   require  that  we  declare  the   amended   statute
unconstitutional in part.  Due respect for the legislative branch
          of government requires that we exercise our duty to declare a
statute  unconstitutional only when squarely faced with the  need
to do so.
          We  conclude that the actual controversy requirement of
AS  22.10.020(g) has not been satisfied because this case is  not
ripe  for  decision.   In striking the balance  required  by  the
ripeness    doctrine,    the   risks    of    adjudicating    the
constitutionality  of  AS  11.71.060 in  a  hypothetical  setting
outweigh  the negligible hardships that the plaintiffs will  face
if we do not decide this issue.  On the need for decision side of
the  scale,  plaintiffs  need is slight  because  their  conduct,
regardless of how this court might rule, would still be  criminal
under  federal  statutes which impose much more severe  penalties
than  the amended state statute.  On the risk side of the  scale,
our concerns echo those that we expressed in Brause:
          Without  more  immediate  facts  it  will  be
          difficult  to  deal  intelligently  with  the
          legal  issues presented. . . .  In  order  to
          grant relief . . . [this] court would have to
          declare a statute unconstitutional.  This is,
          of  course, a power that courts possess.  But
          it  is  not  a power that should be exercised
          unnecessarily,  for doing  so  can  undermine
          public trust and confidence in the courts and
          be  interpreted as an indication of  lack  of
          respect  for  the legislative  and  executive
          branches  of government.  Further, ruling  on
          the  constitutionality of a statute when  the
          issues  are  not concretely framed  increases
          the risk of erroneous decisions.[54]
          In  accordance  with these views, the  superior  courts
judgment in favor of the ACLU, Jane Doe, and Jane Roe, is VACATED
and this appeal is DISMISSED.
CARPENETI,   Justice,   with   whom  WINFREE,   Justice,   joins,
          Alaska  law  on  ripeness  historically  has  kept  the
barriers  to  the  courtroom low in order  to  favor  access  for
Alaskas  citizens to Alaska courts.  In this, we  have  pointedly
differed  from  our counterparts in the federal  courts.   Todays
opinion,  relying on federal law that we have previously declined
to  follow, retreats from that long-held stance.  While that fact
alone   is   troubling  enough,  todays  opinion  is  made   more
problematic by its devaluation of the protections that the Alaska
Constitution   offers  to  the  citizens  of  this   state,   its
overstatement of the decisional risks of considering  the  appeal
before us, and its rejection of the strong and united position of
the  parties  before the court that we should decide  this  case.
For these reasons, I believe that we should heed the requests  of
all  parties  the State of Alaska as well as the Alaska  citizens
who bring the action  and decide this case now.
I.   Todays Opinion Runs Counter to Long-Established Alaska Law.
          Todays  opinion begins by stating: Under  the  ripeness
doctrine, the constitutionality of a statute generally may not be
challenged  as an abstract proposition.  In Alaska,  however,  we
routinely  accept  and decide cases raising the constitutionality
of  statutes  as  an abstract proposition.  We have  done  so  in
virtually  every major constitutional case to come before  us  in
recent  years.    We  most recently did so in  State  v.  Planned
Parenthood  of  Alaska,1 a case challenging the constitutionality
of  a statute creating criminal penalties for doctors who perform
abortions   on  minors  without  parental  consent  or   judicial
authorization.  No plaintiff doctor had been prosecuted,  but  we
had  little difficulty reaching the merits.2  In Alaskans  for  a
Common Language, Inc. v. Kritz,3 we decided the constitutionality
of a statute requiring the government to use the English language
in  various circumstances.4  Plaintiffs, non-English speaking and
bi-lingual  Alaskans and government workers, had  not  been  sued
under the statute.5  That opinion  did not even discuss ripeness.
Indeed,  illustrative of Alaskas lenient ripeness  jurisprudence,
of  eighteen cases since 2001 that raised abstract constitutional
issues,  we  reached the merits in seventeen, often without  even
discussing  ripeness.6   In only one did  we  uphold  a  ripeness
          Why   has  this  court  consistently  declined  to  use
ripeness as a way to avoid deciding cases?  It is because of  our
deep-seated  commitment to the idea that  the  doors  of  Alaskas
courts  should  be  open to its citizens to the  greatest  extent
possible.   As  we  said  in  Thomas v.  Anchorage  Equal  Rights
Commission,8  a case where we found the dispute to be ripe  after
the  Ninth  Circuit had declined to hear it on  ripeness  grounds
[r]ipeness is an aspect of standing, and we have often noted that
Alaskas standing requirements are more lenient than their federal
counterpart, since they favor ready access to a judicial  forum.9
We  interpret  standing, and by extension ripeness, leniently  in
order to facilitate access to the courts:  The basic idea .  .  .
is  that  an identifiable trifle is enough for standing to  fight
          out a question of principle.10  Todays opinion relies on federal
law,11  forgetting our repeated statements that our  approach  to
ripeness differs from the federal approach:  We have consistently
found this difference [between the federal and Alaska approaches]
to  be  important, emphasizing the need to follow our own  unique
  .  .  .  jurisprudence if Alaska standing doctrine is to retain
its  quality  of relative  openness. 12 By ignoring Alaskas  more
open  ripeness jurisprudence, todays opinion changes our  law  on
standing dramatically and, in my view, for the worse.  The  court
closes its doors where previously they were open.
II.  In  Assessing  the Hardships the Parties Face if  the  Court
     Refuses To Decide this Case, Todays Opinion Devalues  Alaska
     Constitutional Protections and Incorrectly Assumes that  the
     Likelihood of Federal Prosecution Is Equal to the Likelihood
     of State Prosecution.
     A.   Devaluation of Alaska constitutional protections
          In  examining  the  first question under  the  ripeness
doctrine  the hardships that the parties face if the case is  not
decided  in  advance  of a criminal prosecution   todays  opinion
concludes  that  the  risk of criminal liability  argument  rings
hollow  because  marijuana possession is already  criminal  under
federal  law.  This  argument both devalues the  significance  of
Alaska   constitutional   protections   and   misapprehends   the
likelihood  of  federal  prosecution  of  violation  of   federal
marijuana laws in Alaska.
          The  risk  of  a possibly unconstitutional  prosecution
under   Alaska  law  is  independent  of  any  possible   federal
prosecution.  The state government and the federal government are
independent  sovereigns, and have the power to  punish  the  same
conduct independently of each other.13  Thus, even if the federal
government  prosecutes Jane Doe for her possession of  marijuana,
Alaska  may prosecute her as well under AS   If  the
state  prosecution  is  unconstitutional, her  injury  from  that
prosecution does not change even if she is also prosecuted by the
federal  government.  It is no answer to the shame, expense,  and
embarrassment  of  a possibly unconstitutional state  prosecution
that she also risks federal prosecution.
     B.   Incorrect   assumption  regarding   risk   of   federal
          In  addition,  and  perhaps even  more  important,  the
vastly  smaller danger of federal prosecution (compared to  state
prosecution) must be considered.  As a practical matter, the risk
of  federal  prosecution for simple possession  of  marijuana  in
Alaska   appears  to  be  virtually  nil.   In  terms  of  actual
prosecutions,  for  example,  the  United  States  brought   zero
misdemeanor drug possession cases in Alaska in fiscal year 200515
and  less than ten cases each year in fiscal year 2006 and fiscal
year  2007.16   During the three-year period ending December  31,
2008,  the  state  filed  approximately  3,166  cases17  alleging
violation  of  AS  11.71.060 (Misconduct Involving  a  Controlled
Substance  in the Sixth Degree  possession of marijuana).   These
differences  in  levels of prosecution are not surprising,  given
that enforcing Alaskas drug laws is a high priority of both state
and   local   law  enforcement  in  Alaska,18  while   the   FBIs
          Investigative Priorities for the Alaska Division does not even
list   drug   enforcement  among  ten  enumerated   priorities.19
Finally,  there  are  only  approximately  fifty  federal  agents
regularly assigned in Alaska in three locations,20 whereas  state
and   municipal  commissioned  officers   who  are  charged  with
enforcing  state drug laws  number approximately  1,20021  spread
over  the  entire state, in approximately ninety-six locations.22
In  pointing to the possibility of federal prosecution as a basis
for  discounting the difficult choice that both the state and the
plaintiffs  so eloquently elucidate, todays opinion ignores  this
reality:  The danger of federal prosecution for simple  marijuana
possession  in Alaska is vanishingly low, whereas the  danger  of
state prosecution for simple possession is real and substantially
          In  this  regard,  todays  opinion  misreads  Ravin  v.
State23 in stating that plaintiffs fears . . . may be speculative
and   overstated.24   (And,  indeed,  the  state  has   expressed
identical  fears.   See  infra at pages 37-39.)   Todays  opinion
notes   that  in  1975,  when  Ravin  was  decided,  most  police
departments generally were not interested in pursuing individuals
solely  for possession in the home of small amounts of  marijuana
for   personal  use.25   But  the  language  quoted  from   Ravin
[s]tatistics  indicate  that few arrests  for  simple  possession
occur  in  the  home except when other crimes are  simultaneously
being investigated26  illustrates why the presence of the statute
at  issue in this case poses such a difficult choice for  persons
such  as plaintiffs.  Consider the individual who comes home  one
evening to find a window broken in his home and the door slightly
ajar.   The  individual knows that he left a small  container  of
marijuana  in the open on his coffee table.  He must  now  decide
whether  he  should  call  the  police  and  expose  himself   to
prosecution for possession of less than one ounce of marijuana in
his home, or enter the house by himself and risk encountering  an
intruder.   Or consider a wife who has retreated to  her  bedroom
after  an altercation with her husband in which he hit her.   She
knows  that there is marijuana and paraphernalia in the  open  in
the  kitchen.   She must decide whether to call  the  police  and
report the domestic violence incident, and thereby expose herself
to  possible prosecution for possession of marijuana, or face her
abuser again by herself.
          In short, persons currently engaging in activities that
this  court  has previously declared protected under  the  Alaska
Constitution will be chilled in the exercise of those  activities
by  the  very  real  risk  of  a state  prosecution  without  the
opportunity  which all sides to this dispute say they should have
of  testing the statute in advance.  And, because state and local
law  enforcement  authorities are the  ones  that  Alaskans  have
recourse  to in the event of emergency, the risk of discovery  of
those  possibly  protected  activities  pertains  to  state,  not
federal, personnel.
III. Todays Opinion Overstates the Risks of Deciding.
          After incorrectly concluding that there is little  need
for  a  decision  in advance of enforcement of the  statute,  the
court  turns  to  the  risks of decision.27   It  then  concludes
          contrary to the positions of all the parties in this case  that
the  normal risks associated with deciding hypothetical cases are
present.28   But  the  opinion  greatly  exaggerates  this  risk.
Indeed,  we have previously decided a case in virtually identical
circumstances raising identical issues: We noted in Ravin,  [t]he
record  does  not  disclose any facts as to the situs  of  Ravins
arrest  and his alleged possession of marijuana.29  Ravin is  the
case  that  the  current legislation aims  to  overturn.   It  is
difficult  to  understand how the current legislation  cannot  be
properly analyzed in the absence of specific facts while, at  the
same  time, the entire controversy before us arose in the absence
of specific facts.
          Todays opinion quotes extensively from Brause v. State,
Department  of  Health & Social Services,30 the only  case  since
2000 in which we declined on ripeness grounds to reach the merits
of  a  constitutional dispute.  The plaintiffs in Brause, a same-
sex  couple who were unable to marry, challenged AS 25.05.013(b),
which provided that a same-sex relationship may not be recognized
by  the  state  as  being entitled to the benefits  of  marriage.
Plaintiffs attacked this statute generally, but lacking  in  [the
plaintiffs] brief is any assertion that they have been or .  .  .
will  be  denied rights that are available to married partners.31
Brause is distinguishable from todays case in many ways.
          Unlike   the  present  case,  Brause  truly  lacked   a
sufficient  factual setting in which to frame the  dispute.   The
plaintiffs  in  Brause  challenged  the  constitutionality  of  a
statute  prohibiting marriage of same-sex partners.  They claimed
the  statute  denied  them some 115 rights  afforded  to  married
couples, but never challenged the denial of any specific  benefit
to  them.  We noted: [L]acking in Brause and Dugans brief is  any
assertion that they have been or in their circumstances that they
will  be  denied rights that are available to married partners.32
Unlike  the  Brause  plaintiffs, the  plaintiffs  before  us  now
identify  a  discreet  right denied  them  by  operation  of  the
          In  the  present  case,  the  constitutional  issue  is
sufficiently  framed: (1) adult plaintiffs  propose  to  use  (2)
small  amounts of marijuana (3) in their homes.  No further facts
are  needed: Waiting for an individual to be arrested and charged
with possession of a small amount of marijuana in his or her home
would  not  provide us with any necessary additional facts.   And
unlike the present case, the state in Brause argued that the case
was  not  ripe.  Todays opinion quotes Brause to the effect  that
[d]efendants  . . . should not be forced to bear the  burdens  of
litigation without substantial justification;33 but the defendant
in  this case seeks to bear the burdens of litigation  the  state
vigorously  asserts that we should hear this case because  it  is
ripe.  In  Brause,  it  was  unclear  even  which  constitutional
right(s)  the  plaintiffs  claimed had been  violated,34  whereas
today  the claim is clear: The new statute violates the right  to
privacy set out in Ravin.  And the language from Brause relied on
in  todays  opinion is not applicable to our case: Brause  points
out that courts should not render decisions absent a genuine need
to resolve an actual dispute.  As shown above, there is an actual
          dispute here about the constitutionality of AS 11.71.060 that is
directly affecting the plaintiffs.
          Finally,  unlike Brause, this is not a  case  of  first
impression.  We first addressed this issue over thirty years ago,
setting  out the standard for constitutional challenges  to  drug
possession  laws.  Since we decided Ravin, we and  the  court  of
appeals  have applied the standard for constitutional  challenges
to drug and alcohol possession statutes at least a dozen times.35
In  Ravin,  we  even  laid out the manner in which  a  subsequent
legislature might take a second look at the issue in the event of
changes  in  scientific or other information.36   And  here,  the
legislature and all of the parties have endeavored to follow  the
path we set out in Ravin.  All of the parties now urge us to take
the  case.37  In all of these ways, Brause is different from  the
present  case.   In  sum, Brause offers little  support  for  the
proposition that this case is not ripe.
          The court next turns to two specific reasons in support
of  its  claim that the risks of decision outweigh the  need  for
decision.   Neither  bears  up  under  scrutiny.   First,  todays
opinion  argues that concrete facts may aid in making a decision.
The  opinion  claims that because the plaintiffs do not  maintain
that   the  statute  is  unconstitutional  in  all  circumstances
plaintiffs  claim  it  is unconstitutional  only  insofar  as  it
proscribes  the  possession of a small amount  of  marijuana  for
personal  use  by an adult in the adults home38   we  should  not
entertain the current challenge because adjudication of an actual
case  might  cast these categories in a different light.39   That
possibility does not justify the conclusion that the case is  not
ripe:  It  exists  in  every  pre-enforcement  challenge  to  the
constitutionality of a statute.  Here, the state  needs  to  know
whether the new statute is constitutional or whether, conversely,
Ravin  retains vitality.40  The plaintiffs need to have the  same
question  answered, or face the difficult and  unfair  choice  of
foregoing possibly constitutionally protected activity or risking
criminal penalties.  As the state makes clear in its briefing  to
this court:
          Because  the  lack of factual development  in
          this   case  has  no  bearing  on  the  legal
          principles that control the constitutionality
          of  the statutes, further factual development
          will  not significantly advance [the  courts]
          ability   to  deal  with  the  legal   issues
          presented.   No  set  of facts  arising  from
          future  implementation of this  statute  will
          make  the constitutional challenge any  riper
          than it is now.[41]
          In  an effort to bolster the argument that the risks of
deciding are high, todays opinion notes our decision in Evans  ex
rel.  Kutch  v.  State42 and the subsequent  need  to  reverse  a
portion  of the Evans decision in Sands ex rel. Sands v. Green.43
But  the  experience  of  these cases lends  no  support  to  the
argument against ripeness.  The constitutional challenge in Evans
was  to  an  extremely wide-ranging set of legislative enactments
          under the broad rubric of tort reform.44  The current case, in
comparison,  is  much more limited: Plaintiffs seek  to  reaffirm
this  courts  holding in Ravin that an adult in  Alaska  has  the
constitutional right to possess for personal use a  small  amount
of marijuana in his or her home.  The Evans/Sands experience does
not  suggest that a tightly-focused constitutional issue that all
parties  want and need to have resolved should remain  undecided.
And  while todays opinion take[s] counsel from Sands,45 it  seems
highly  unlikely that todays court really believes that it should
not  have decided Evans, a decision which, for better or worse,46
went a long way47 toward resolving challenges to a major overhaul
of Alaskas tort system.
          Second, todays opinion concludes that the matter is not
ripe partly because the case is a high-profile case in which  the
general  public as well as the executive and legislative branches
of government are interested.48  But these factors do not counsel
dismissal on ripeness grounds.  To the contrary, the high-profile
nature  of the case argues in favor of reaching and deciding  the
merits.   As  the  Supreme  Court of  California  has  held,  the
ripeness  requirement  does  not  prevent  us  from  resolving  a
concrete  dispute if the consequence of a deferred decision  will
be  lingering  uncertainty in the law, especially when  there  is
widespread  public interest in the answer to a  particular  legal
          A related concern strongly counsels in favor of finding
that  the  case  is  ripe: In Ravin we noted that  [r]esearch  is
continuing  extensively,50 suggesting the possibility  that  this
constitutional  issue  might  have  to  be  reexamined   if   the
scientific bases of the opinion were to be undercut by changes in
sciences  understanding of the harmfulness  of  marijuana  or  by
changes  in the chemical makeup of the drug being sold  or  by  a
similar  change.   But we also noted that mere scientific  doubts
will  not  suffice.  The state must demonstrate a need  based  on
proof  that the public health or welfare will in fact  suffer  if
the   controls  are  not  applied.51   It  is  clear   that   the
legislature,  in  holding the hearings it did in  the  course  of
adopting  the current legislation, attempted to comply  with  the
implied  directive  of this court.  No less  than  the  executive
which has argued strongly in favor of our deciding this case   it
can  be expected that the legislature would also favor a decision
rather than a ripeness dismissal.
IV.  All Parties Have Asked Us To Decide this Case.
          We have seen that, contrary to the suggestion in todays
opinion,   our  normal  practice  is  to  decide  even   abstract
challenges  to statutes.  That is so even though,  in  many  such
facial  challenges,  the party defending the statute  will  argue
that  the  case is not ripe and that we should wait  for  a  case
applying the statute to a specific set of facts.52  But in todays
case,  both  parties have asked  indeed, implored  us  to  decide
this case now.
          The state, which might have been expected to argue that
the case is not ripe,53 instead strongly argues that the case  is
ripe and should be decided now:
               This case is ripe because the need for a
               decision is compelling and the risks are few.
          Without a decision, the individual plaintiffs
          who have challenged the constitutionality  of
          AS  11.71.060  face  the choice  of  changing
          their  current conduct  previously authorized
          by  a  constitutional decision of this  Court
          or  risk  criminal liability if they fail  to
          comply  with the statute.  Further,  deciding
          the  statutes constitutionality at this  pre-
          enforcement  stage poses little  risk  of  an
          imprudent  or  unnecessary decision,  because
          the  statutes validity is governed by general
          principles   rather  than  by   circumstances
          particular to an individuals conduct.[54]
As  the  state  notes,  requiring an  actual  prosecution  before
hearing a case may place the hapless plaintiff between the Scylla
of   intentionally  flouting  state  law  and  the  Charybdis  of
foregoing  what  he  believes  to be  constitutionally  protected
activity.55  Further:
               When  the  prohibited act  is  a  crime,
          conditioning judicial review on the existence
          of  an  actual prosecution burdens a specific
          individual  with a challenge  that  could  be
          prohibitively   expensive.[note    27]     In
          addition,  a  criminal prosecution  could  be
          damaging   to  a  persons  job  and  personal
          relationships.   A person in  this  situation
          should  not  be  required  to  sacrifice  his
          social standing in order to challenge  a  new
          criminal  law as invalid.  When the  sanction
          is  criminal  penalties, a person  should  be
          allowed to choose early adjudication.[56]
               [note 27] A practical consideration that
          should   not  be  overlooked  is   that   the
          plaintiffs   in  this  case  have   had   the
          resources  of  the  ACLU,  including  several
          attorneys  from  the ACLUs  Drug  Law  Reform
          Project,  based in California, each  of  whom
          had  significant experience litigating  legal
          issues   in   drug  cases.   The  five   ACLU
          attorneys  who  worked  on  this   case   had
          experience  ranging from  three  to  nineteen
          years  (average: nine years), and  documented
          more than 520 hours of attorney time spent on
          the   superior   court  case   alone.    Many
          additional  hours  of attorney  work  at  the
          superior  court level by the  ACLU  Drug  Law
          Reform   Project  on  this  case   were   not
          accounted for.
          The  plaintiffs echo the states argument that this case
          is ripe for decision. They too highlight the unfair choice that
they  face  forego a previously recognized privacy right or  risk
prosecution  under  a  law of questioned  constitutionality:  [A]
constitutional  challenge to a criminal  statute  is  ripe  where
plaintiffs  must  choose  between  risking  arrest  or  suffering
deprivations of their constitutional rights if they do not  alter
their conduct.57
V.   Conclusion
          Our  case  law  strongly supports the proposition  that
this  controversy  is ripe for resolution.  The  legislature  has
done  its  part to bring this long-running dispute  back  to  the
courts  to  be resolved.  The executive has weighed in,  strongly
requesting  that we decide the dispute.  The plaintiffs  sued  to
get an answer.  The issue is clear:  Does the Alaska Constitution
prohibit   the  current  legislation  to  the  extent   that   it
criminalizes  possession of a small amount  of  marijuana  in  an
adults  home for personal use?  No other facts need be  developed
in order for the parties to brief the issue  which they have done
exceedingly well  and for the courts  to decide it.  There  is  a
pointed  need  on the part of the state as well as the plaintiffs
for  a decision, and no harm would result from our rendering one.
In  these  circumstances, I must respectfully  dissent  from  the
courts refusal, on ripeness grounds, to decide this case.
     1    537 P.2d 494 (Alaska 1975).

     2     Ch. 53,  9, SLA 2006 (criminalizing the possession  of
marijuana  in  amounts  smaller than  one  ounce);  see  also  AS
11.71.190(b)  (defining  marijuana as a schedule  VIA  controlled
substance).   The legislature also amended AS 11.71.050(a)(2)(E),
making  it a class A misdemeanor to possess one ounce or more  of
marijuana.   Ch. 53,  8, SLA 2006.  The validity of section  .050
as amended is not at issue in this case.

     3     Alaska  Const. art I,  22 (The right of the people  to
privacy   is   recognized  and  shall  not  be  infringed.    The
legislature shall implement this section.).

     4     537  P.2d  at 504, 511 (holding that Alaskans  have  a
fundamental  right to privacy in their homes and  protecting  the
possession  by adults of small amounts of marijuana in  the  home
for personal use).

     5    AS 17.37.010-.080.  The plaintiffs subsequently dropped
any challenge based on medical use of marijuana.

     6     The court concluded that the ACLU had standing to  sue
on  behalf of its members who use marijuana for personal purposes
in the home.

     7     The  legislative  findings  that  accompany  the  2006
amendment indicate that the average potency of marijuana used  in
Alaska in 2003 was nearly fourteen times stronger than that  used
in the 1960s and 1970s.

     8    AS 22.10.020(g); see also Alaska R. Civ. P. 57(a).

     9     See Jefferson v. Asplund, 458 P.2d 995, 998-99 (Alaska

     10    Brause v. State, Dept of Health & Soc. Servs., 21 P.3d
357, 358 (Alaska 2001).

     11    Jacob v. State, Dept of Health & Soc. Servs., Office of
Childrens  Servs., 177 P.3d 1181, 1184 (Alaska  2008)  (reviewing
the  superior  courts  dismissal for  mootness  de  novo  because
[m]ootness[,] . . . [s]tanding and ripeness are . .  .  questions
of  law,  calling  for independent judgment  review.);  Vanek  v.
State,  Bd.  of  Fisheries, 193 P.3d 283, 287 (Alaska  2008)  (We
apply  our  independent judgment in determining mootness  because
mootness is a question of law.).

          Federal precedent, relevant because Alaskas declaratory
judgment  act was modeled after the federal act, 28 U.S.C.   2201
(2006),  see  Alaska Airlines, Inc. v. Red Dodge Aviation,  Inc.,
457  P.2d  229, 232 (Alaska 1970), also supports de novo  review.
See,  e.g.,  Alaska  Right  to Life  Political  Action  Comm.  v.
Feldman,  504  F.3d  840,  848-49 (9th Cir.  2007)  (reversing  a
district  courts grant of declaratory relief because  the  appeal
was not an actual case or controversy as it was not ripe).

     12    E.g., Lowell v. Hayes, 117 P.3d 745, 750 (Alaska 2005);
Thomas  v. Anchorage Equal Rights Commn, 102 P.3d 937,  942-43  &
n.31 (Alaska 2004); Brause, 21 P.3d at 358.

     13    AS 22.10.020(g).

     14    See Brause, 21 P.3d at 358.

     15     See, e.g., Istrice v. City of Sparks, 8 F. Appx  841,
843  (9th  Cir. 2001) ([B]ecause issues of ripeness  involve,  at
least  in  part, the existence of a live Case or Controversy,  we
cannot  rely  upon concessions of the parties and must  determine
whether the issues are ripe for decision. (quoting Regional  Rail
Reorganization Acts Cases, 419 U.S. 102, 138 (1974)));  Sisseton-
Wahpeton Sioux Tribe v. United States, 804 F. Supp. 1199, 1204-05
(D.S.D.  1992)  ([I]n deciding whether the . . . claim  is  ripe,
this Court is not bound by allegations in the . . . complaint  or
by  stipulations entered into by the parties.); 10B Charles  Alan
Wright,  Arthur R. Miller & Mary Kay Kane, Federal  Practice  and
Procedure  2757, at 507 (1998).

     16    504 F.3d 840 (9th Cir. 2007).

     17     Id. at 849 (quoting San Diego County Gun Rights Comm.
v. Reno, 98 F.3d 1121, 1132 (9th Cir. 1996)).

     18     In  Brause  we  surveyed our ripeness  precedent  and

          The  degree  of  immediacy of  a  prospective
          injury   needed  to  satisfy   the   ripeness
          doctrine has not been systematically explored
          in  our case law.  Instead, our cases contain
          statements  such as  [a]dvisory opinions  are
          to  be  avoided,  or [t]he ripeness  doctrine
          forbids    judicial   review   of    abstract
          disagreements,  or courts should decide  only
          a  real, substantial controversy, not a  mere
          hypothetical question.
21 P.3d at 359 (internal footnotes omitted).

     19     Bowers Office Products, Inc. v. Univ. of Alaska,  755
P.2d 1095, 1097-98 (Alaska 1988); see also Zoerb v. Chugach Elec.
Assn,  798  P.2d 1258, 1261 (Alaska 1990) ([S]tanding is  not  an
illusory requirement in Alaska.).

     20     Brause, 21 P.3d at 359 (quoting 13A Wright,  et  al.,
Federal Practice and Procedure  3532, at 112 (2d ed. 1984)).

     21     Id. (quoting Wright, supra note 20,  3532.1, at  114-

     22     Id.  (quoting Wright, supra note 20,   3532  at  112)
(internal quotation marks omitted).

     23    Alaska Right to Life Political Action Comm. v. Feldman,
504 F.3d 840, 851 (9th Cir. 2007).

     24     Lowell  v. Hayes, 117 P.3d 745, 757-58 (Alaska  2005)
(concluding   that   a   disputed  threat  of   prosecution   was
insufficient  for  ripeness); Thomas v.  Anchorage  Equal  Rights
Commn,  102 P.3d 937, 942-43 (Alaska 2004) (holding that risk  of
enforcement  of a law was sufficient for ripeness where  the  law
allegedly  interfered  with appellant landlords  First  Amendment
free  exercise  of  religion rights by  requiring  them  to  rent
housing  to  unmarried couples);  State v. Planned Parenthood  of
Alaska,  35  P.3d  30,  34  (Alaska 2001)  (allowing  doctors  to
maintain  pre-enforcement  challenge to  law  requiring  parental
consent to abortions for girls under age seventeen, as law  would
require  doctor-appellants to change their current practices  and
expose  them  to civil and criminal liability if they  failed  to

     25    Pub. L. No. 91-513, 84 Stat. 1236; see also Gonzales v.
Raich, 545 U.S. 1, 10 (2005).

     26     21 U.S.C.  812(c) (1999); see also Raich, 545 U.S. at

     27    21 U.S.C.  812(b)(1).

     28      Id.   844(a).   There  are  limited  exceptions  for
activities such as government-approved marijuana research.   See,
e.g., id.  822-23, 844(a).

     29    AS 11.71.190.

     30     21 U.S.C.  844(a).  Because the statute challenged in
this  case criminalizes the possession of less than one ounce  of
marijuana, we limit our examination of criminal penalties to this

     31    21 U.S.C.  844(a).

     32     AS  12.55.135(j).  A person possessing less than  one
ounce  of  marijuana  in  the home for personal  use  only  faces
potential  incarceration if compounding conditions are met,  such
as  a  previous  conviction  or being  on  probation  or  parole.
Neither  Jane  Doe  nor  Jane  Roe have  suggested  that  greater
penalties might apply to their situation.

     33    The Supremacy Clause of the United States Constitution
provides:  This Constitution, and the Laws of the  United  States
which  shall  be  made in Pursuance thereof . . .  shall  be  the
supreme  Law of the Land; and the Judges in every State shall  be
bound thereby, any Thing in the Constitution or Laws of any State
to the Contrary notwithstanding.  U.S. Const. art. VI, cl. 2.

     34    545 U.S. 1, 7-9 (2005).

     35    Id. at 29-34.

     36     Ravin v. State, 537 P.2d 494, 511 n.70 (Alaska  1975)
(Statistics indicate that few arrests for simple possession occur
in  the  home  except when other crimes are simultaneously  being
investigated.  The trend in general in law enforcement  seems  to
be  toward minimal effort against simple users of marijuana,  and
concentration  of  efforts  against dealers  and  users  of  more
dangerous  substances.  Moreover, statistics indicate  that  most
arrests   for  possession  of  marijuana  in  Alaska  result   in
dismissals before trial.).

     37    461 U.S. 95, 97-98, 111-12 (1983).

     38    Id. at 105-06; see also Alaska Right to Life Political
Action  Comm.  v. Feldman, 504 F.3d 840, 851-52 (9th  Cir.  2007)
(noting  that  there  was  a  lack  of  any  credible  threat  of
enforcement  of  the challenged provision of the Alaska  Judicial

     39    21 P.3d 357 (Alaska 2001).

     40     Id. at 359 (quoting Wright, supra note 20  3532.1, at

     41    State, Dept of Revenue, Child Support Enforcement Div.
v. Beans, 965 P.2d 725, 728 (Alaska 1998).

     42    965 P.2d 725.

     43    Id. at 728.

     44    Id. at 727-28.

     45      The  ACLU,  of  course,  did  not  originate   these
categories.  They were established in Ravin.  See Ravin v. State,
537  P.2d  494,  511  (Alaska 1975) (holding that  possession  of
marijuana  by adults at home for personal use is constitutionally

     46    Alaskans for a Common Language, Inc. v. Kritz, 170 P.3d
183, 192 (Alaska 2007).

     47     We  recently  employed this canon in Alaskans  for  a
Common  Language,  in  which we construed  the  Official  English
Initiative as only applying to official acts of government.   Id.
Likewise,  in  State  v.  Blank, 90 P.3d 156  (Alaska  2004),  we
construed  a statute to include constitutional requirements  that
we  set forth in an earlier case.  Id. at 162 (In the context  of
the   facts  presented  in  this  case,  we  choose  to  construe
subsection  .031(g) to incorporate, in addition to the  statutory
requirements, the exigent circumstances requirements discussed in

     48    56 P.3d 1046, 1048 (Alaska 2002) (plurality opinion).

     49    Id. at 1064-66.

     50    156 P.3d 1130, 1132 (Alaska 2007).

     51    Id. at 1133-34.

     52    Id.

     53    Brause v. State, Dept of Health & Soc. Servs., 21 P.3d
357, 359 (Alaska 2001).

     54    Id. at 360.

1    171 P.3d 577 (Alaska 2007) (Planned Parenthood II).

     2     Id.  at  580; see also State v. Planned Parenthood  of
Alaska, 35 P.3d 30, 34 (Alaska 2001) (Planned Parenthood I).

     3    170 P.3d 183 (Alaska 2007).

     4    Id. at 187.

     5    Id. at 187-88.

     6    In addition to Planned Parenthood II and Alaskans for a
Common  Language, see, e.g., Alaska Pub. Interest Research  Group
v. State, 167 P.3d 27 (Alaska 2007) (deciding facial challenge by
public  interest  group to constitutionality of statute  creating
Alaska  Workers  Compensation  Appeals  Commission  without  even
discussing ripeness); State, Dept of Fish & Game v. Manning,  161
P.3d   1215   (Alaska   2007)  (deciding  facial   challenge   to
constitutionality   of   statute   establishing   criteria    for
subsistence  hunting permit; hunter had been  denied  permit  but
court addressed facial challenge even though he might have had as-
applied  challenge); State v. Native Village of Nunapitchuk,  156
P.3d   389   (Alaska   2007)  (deciding   facial   challenge   to
constitutionality of statute awarding attorneys fees   in  public
interest cases without even discussing ripeness); City of Skagway
v.  Robertson,  143  P.3d  965  (Alaska  2006)  (deciding  facial
challenge,   without  discussing  ripeness,  to  city   ordinance
limiting   in-person   solicitation  by  plaintiffs   who   owned
businesses  that used in-person solicitation, although  they  had
not yet been prosecuted or threatened with prosecution); Interior
Cabaret,  Hotel,  Rest. & Retailers Assn  v.  Fairbanks  N.  Star
Borough,   135   P.3d  1000  (Alaska  2006)  (deciding,   without
discussing  ripeness,  facial challenge to  constitutionality  of
proposed alcohol tax by plaintiffs who sold alcohol but  on  whom
tax  had  not yet been assessed); Grunert v. State, 109 P.3d  924
(Alaska  2005)  (deciding,  without discussing  ripeness,  facial
challenge to constitutionality of regulation creating cooperative
fishery and allocating salmon quota to fishery brought by fishers
who  chose  not  to join cooperative); Thomas v. Anchorage  Equal
Rights    Commn,   102   P.3d   937   (Alaska   2004)   (deciding
constitutionality of statute prohibiting landlord  discrimination
against  unmarried tenants brought by landlords who had  not  yet
been prosecuted under the statute; holding landlords claims ripe,
although  Ninth Circuit had previously held them unripe);  Treacy
v. Municipality of Anchorage, 91 P.3d 252 (Alaska 2004) (deciding
facial  challenge  to  constitutionality of municipal  curfew  on
minors;  even  though minors had been arrested,  court  evaluated
statute  on  its face without using specific facts  of  arrests);
Myers  v.  Alaska  Hous. Fin. Corp., 68 P.3d  386  (Alaska  2003)
(deciding  facial  challenge  to  constitutionality  of   statute
selling right to future income from tobacco settlements and using
sale  proceeds for rural schools); Evans ex rel. Kutch v.  State,
56  P.3d  1046  (Alaska  2002)  (deciding  facial   challenge  to
constitutionality of tort reform legislation brought by allegedly
injured persons who have filed or plan to file tort actions  over
states  objection  that  claims were unripe);  State  v.  Planned
Parenthood  of Alaska (Planned Parenthood I), 35 P.3d 30  (Alaska
2001)  (deciding  facial  constitutional  challenge  brought   by
doctors   and   abortion   provider  to   statute   criminalizing
performance  of  abortion for minor unless  parental  consent  or
judicial  authorization obtained); Sampson v. State, 31  P.3d  88
(Alaska 2001) (deciding facial challenge to  constitutionality of
manslaughter  statute  prohibiting assisted  suicide  brought  by
terminally  ill patients; no doctors had yet been prosecuted  for
assisting  suicide);  State v. Planned Parenthood,  28  P.3d  904
(Alaska 2001) (deciding facial challenge to constitutionality  of
regulation  denying  funding  for medically  necessary  abortions
brought by abortion provider, without discussing whether  or  not
providers  patients had yet been denied funding  under  statute);
Anchorage   Police  Dept  Employees  Assn  v.   Municipality   of
Anchorage,  24 P.3d 547 (Alaska 2001) (deciding facial  challenge
to  constitutionality  of  city policy subjecting  public  safety
employees  to  random drug tests brought by municipal  employees,
none of whom had yet been tested).

          Even removing the cases in which the challenged statute
did  not regulate conduct or grant or deny a benefit  Alaska Pub.
Interest Research Group, Grunert, and Meyers  it remains that  in
the  vast  majority of abstract constitutional  challenges,  this
court has eschewed holding the case not ripe and has decided  the

          And  in  the cases that are most directly analagous  to
our  case  pre-enforcement facial challenges to criminal statutes
(Planned  Parenthood I, Planned Parenthood II, City  of  Skagway,
Thomas,  and  Sampson)   we  have  never  dismissed  on  ripeness
grounds, instead deciding every case on its merits.

     7     Brause v. State, Dept of Health & Soc. Servs., 21 P.3d
357,   358-61   (Alaska  2001)  (declining   to   address   broad
constitutional challenge to statute prohibiting same-sex marriage
brought by same-sex couple).

     8    102 P.3d 937.

     9    Id. at 942.

10    Planned  Parenthood  I, 35 P.3d  at  34  (quoting  Wagstaff
v.  Superior Court, Family Court Div., 535 P.2d 1220, 1225 &  n.7
(Alaska 1975)).

     11   See Opinion at 7.

     12    Thomas, 102 P.3d at 942 (quoting Bowers Office Prods.,
Inc. v. Univ. of Alaska, 775 P.2d 1095, 1097 n.5 (Alaska 1988)).

     13    See  Booth v. State, 903 P.2d 1079, 1085 (Alaska  App.
1995)  ([I]f a person commits a crime that is prohibited by  both
federal and state law, both the federal government and the  state
government can separately prosecute the person for that  crime.).
Previously  AS  12.20.010 prevented the  state  from  prosecuting
conduct  already  prosecuted by the federal government,  but  the
legislature repealed this law last session. See Ch. 75,  40,  SLA

     14   The state is clear that its position poses a sufficient
threat  to the individual plaintiffs to render the dispute  live.
States  Supplemental Memorandum on Ripeness at 5, State of Alaska
v.  Am. Civil Liberties Union of Alaska, No. S-12370 (Alaska July
15,  2008).   It  notes  that it has never disclaimed  a  general
intent to prosecute the possession of a small amount of marijuana
in  the home.  (Id.) (The state also notes that, in the spirit of
conforming  to the rule of law, the Attorney General has  advised
all  Alaska law enforcement agencies not to change their  current
marijuana  enforcement  policies until  this  case  is  resolved.

     15     Bureau   of   Justice  Statistics,  Federal   Justice
Statistics  Resources  Center, FY  2005,  Defendants  Charged  in
Criminal Cases, Alaska, (follow Defendants
charged  in criminal cases hyperlink, select year, select  filing
offense,  select Drug possessionmisdemeanor, select  Add  Column,
select  U.S.  Federal  Judicial District, select  Alaska,  select
Display as: HTML) (last visited Feb. 25, 2009).

     16     Bureau   of   Justice  Statistics,  Federal   Justice
Statistics  Resources  Center,  FY  2006  Defendants  Charged  in
Criminal  Cases, Alaska, FY 2007, Defendants Charged in  Criminal
Cases,  Alaska, (follow Defendants charged
in  criminal cases hyperlink, select year, select filing offense,
select Drug possessionmisdemeanor, select Add Column, select U.S.
Federal  Judicial  District, select Alaska,  select  Display  as:
HTML)  (last visited Feb. 25, 2009).  An explanatory note for  FY
2006  and  FY  2007 states: Cell contains at least one  case  but
fewer  than  10  cases.   The exact value has  been  withheld  to
prevent to deductive disclosure of personal identities.   Federal
crime  statistics that distinguish between misdemeanor  marijuana
possession  (violation  of  21  U.S.C.   844(a)  (possession   of
marijuana))  and misdemeanor possession of other  drugs  are  not
available.  Thus, these numbers most likely overstate the  number
of federal misdemeanor marijuana cases.

     17   Compilation from Alaska Court System CourtView data and
Rural User Group courts (run Feb. 20, 2009).

     18    See,  e.g.,  Alaska State Troopers, Alaska  Bureau  of
Alcohol     and     Drug    Enforcement    Mission     Statement,  (last  visited   Feb.   25,
2009);   Municipality  of  Anchorage,  Alaska,  Anchorage  Police
Department,     Drug    Information    (drug    tip     hotline), (last visited Feb. 25,  2009);
Fairbanks   Police   Department,  About  the   Department   (drug
investigator          and          detective          positions),     (last
visited Feb. 22, 2009).

19     These  priorities  are,  in  order:  (1)  protecting   the
United  States from terrorist attack; (2) protecting this country
from   foreign   intelligence  operations  and   espionage;   (3)
protecting  this  country  from  cyber-based  attacks  and  high-
technology   crimes;   (4)  combating  public   corruption;   (5)
protecting civil rights; (6) combating transnational and national
criminal organizations and enterprises; (7) combating major white-
collar  crime;  (8)  combating  significant  violent  crime;  (9)
supporting federal, state, local, and international partners; and
(10)  upgrading  technology to succeed in the FBI  mission.   FBI
Alaska,   Investigative  Priorities  of  the   Alaska   Division,  (last  visited  Feb.
22,  2009).   The investigative priorities of the FBI  appear  to
mirror   the  prosecutorial  priorities  of  the  United   States
Attorneys Office for the District of Alaska.  The homepage of the
Criminal  Division  of that office notes: The  Criminal  Division
prosecutes  mainly felony offenses. An active misdemeanor  docket
does  exist,  however, and consists of the prosecution  of  minor
offenses  occurring in federal parks or other  federal  enclaves.
The  United States Attorneys Office, District of Alaska, Criminal
Division,  (last
visited Feb. 26, 2009) (emphasis added).  Prosecutions of persons
in  their homes for misdemeanor marijuana possession would appear
not to fall within the described activities.

     20    FBI  Alaska, Message from the Special Agent in Charge, (last visited Feb. 26, 2009).

     21    COPS Funds in Alaska, 21 Alaska Justice Forum 3(2005),
available                                                      at
f.   (COPS  is  an  acronym for the federal Office  of  Community
Oriented  Policing  Services.) (According to  the  Alaska  Police
Standards [Council], at the end of February 2005, there were 1190
certified sworn officers in Alaska.).

     22   See id. at 2.

     23   537 P.2d 494 (Alaska 1975).

     24   Opinion at 14.

     25   Id.

     26    Id.  n.36  (quoting  Ravin,  537  P.2d  at  511  n.70)
(emphasis added).

     27   Opinion at 13.

28   Id.

     29   537 P.2d at 513 (emphasis added).

     30   21 P.3d 357 (Alaska 2001).

     31   Id. at 360.

     32   Id.

     33   Opinion at 14.

     34    21  P.3d  at 360 (noting that plaintiffs claimed  that
challenged  statute denied them at least 115 separate rights  and
concluding that, [g]iven the level of abstraction of this case as
presented,   dismissal  for  lack  of  ripeness  was  appropriate
(internal quotation marks omitted)).

35    See,  e.g.,  State  v. Erickson, 574  P.2d  1,  12  (Alaska
1978);  Brown v. State, 565 P.2d 179, 180 (Alaska 1977); Belgarde
v.  State, 543 P.2d 206 (Alaska 1975); Garhart v. State, 147 P.3d
746,  750-51 (Alaska App. 2006), Hotrum v. State, 130  P.3d  965,
967, 969-70 (Alaska App. 2006); Noy v. State, 83 P.3d 545 (Alaska
App.  2003);  Westbrook v. State, 2003 WL 1732398,  (Alaska  App.
2003); Noy v. State, 83 P.3d 538 (Alaska App.  2003); Sorenson v.
State,  2001 WL 830709 at *1 (Alaska App. 2001); Walker v. State,
991  P.2d  799, 801-03 (Alaska App. 1999); Cleland v. State,  759
P.2d  553, 556-58 (Alaska App. 1988); Harrison v. State, 687 P.2d
332, 336-39 (Alaska App. 1984).

     36   See infra at notes 50-51and accompanying text.

     37   See infra at pp. 37-39.

     38    These  circumstances are those set out in  Ravin,  537
P.2d 494, 498-500 (Alaska 1975).

     39   Opinion at 16.

     40    Indeed, todays opinion may put enforcement of the  new
laws  on  hold indefinitely.  Following enactment of the  current
law,  the attorney general issued a law enforcement bulletin that
contained the following:

          HB  149 contains several key findings by  the
          Legislature about problems caused  by  todays
          potent  Alaska marijuana . . . . [W]e believe
          [these  findings]  will convince  the  Alaska
          Supreme  Court  that  marijuana  has  changed
          dramatically since the landmark 1975 decision
          in Ravin v. State.
          But press reports are somewhat misleading  in
          saying   that  the  new  laws  re-criminalize
          possession of smaller amounts of marijuana by
          adults   in  private.   Thats  not   entirely

          The  new  laws do not alter the decisions  by
          the  Alaska  appellate courts that possession
          of  small  amounts  by  adults  in  homes  is
          constitutionally protected (Ravin), that  the
          amount of marijuana covered by Ravin is up to
          four ounces (Noy).

          The  state will vigorously litigate all these
          legal  issues because its important that  the
          courts  overrule these prior decisions.   The
          Legislatures findings about marijuana set the
          stage for that to happen, but they dont do it
          automatically.   We live under  the  rule  of
          law, and full implementation of the marijuana
          laws   is   ultimately  up  to  the   courts.
          Therefore,  .  .  .  until  you  are  advised
          differently by the District Attorney in  your
          region,  there is no basis for  changing  law
          enforcement policies for the investigation of
          non-public  possession  of  less  than   four
          ounces   of  marijuana  by  adults.  Attorney
          Generals Enforcement Bulletin, Alaska Dept of
          Law,   New  Marijuana  Laws  (May  12,  2006)
          (emphasis in original).
     41   States Supplemental Memorandum on Ripeness, supra n.14,
at 12-13 (quoting Natl Park Hospitality Assn v. Dept of Interior,
538 U.S. 803, 812 (2003) (emphasis added)).

     42   56 P.3d 1046 (Alaska 2002).

     43   156 P.3d 1130 (Alaska 2007).

44     The   many  new  tort  law  provisions  in  the  new   act

          caps  on noneconomic and punitive damages,  a
          requirement that half of all punitive  damage
          awards be paid into the state treasury, a ten-
          year  statute  of repose, a modified  tolling
          procedure  for the statute of limitations  as
          applied to minors, comparative allocation  of
          fault  between  parties  and  non-parties,  a
          revised  offer  of  judgment  procedure,  and
          partial immunity for hospitals from vicarious
          liability for some physicians actions.

 Evans, 56 P.3d at 1048.

     45   Opinion at 18.

     46    The  decision was from an equally divided  court,  and
prompted  separate dissents.  Id. at1070 (Bryner, J.,  dissenting
in part); id. at 1079 (Carpeneti, J., dissenting in part).

     47    Because  Evans  was the product of  an  evenly-divided
court, it was necessary for the court to decide Anderson v. Cent.
Bering  Sea  Fishermens Assn, 78 P.3d 710  (Alaska  2003),  which
resulted  in  another evenly-divided court, and Reust  v.  Alaska
Petroleum  Contractors, Inc., 127 P.3d 807 (Alaska 2005),  a  3-2
decision,   before  the  constitutionality   of   most   of   the
legislatures tort reform efforts was finally resolved.  But  each
later  case  built upon the courts holdings in  Evans,  and  each
advanced the inquiry.

     48   Opinion at 19.

     49    Hunt v. Superior Court, 987 P.2d 705, 716 (Cal.  1999)
(citing  Pac. Legal Found. v. Cal. Coastal Commn, 655  P.2d  306,
313-14 (Cal. 1982)) (emphasis added).

     50   Ravin v. State, 537 P.2d 494, 510 (Alaska 1975).

     51   Id. at 511.

     52    See, e.g., Thomas v. Anchorage Equal Rights Commn, 102
P.3d  937,  942 (Alaska 2004); Evans ex rel. Kutch v.  State,  56
P.3d  1046,  1080  n.6 (Alaska 2002); Brause v.  State,  Dept  of
Health & Soc. Servs., 21 P.3d 357, 360 (Alaska 2001).

     53    Indeed,  in  the  States  Supplemental  Memorandum  on
Ripeness, the state acknowledged that it  generally . . .  is  an
ardent  advocate  for  the position that  the  Court  should  not
consider  constitutional challenges without concrete  facts,  but
went  on  to  say that the present challenge to AS  11.71.060  is
uniquely   suited   to   pre-enforcement  adjudication.    States
Supplemental Memorandum on Ripeness at 12,  supra n.14.

54   Id. at 2 (emphasis added).

     55    Id.  at 6 (quoting Steffel v. Thompson, 415 U.S.  452,
462 (1974)).

     56   Id. at 8-9 (citations omitted).

     57   Appellees Supplemental Memorandum Regarding Ripeness at
1, State of Alaska v. Am. Civil Liberties Union of Alaska, No. S-
12370 (Alaska July 15, 2008).

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