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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Fraternal Order of Eagles, Juneau-Douglas Aerie 4200 v. City and Borough of Juneau (7/1/2011) sp-6574

Fraternal Order of Eagles, Juneau-Douglas Aerie 4200 v. City and Borough of Juneau (7/1/2011) sp-6574, 254 P3d 348

        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,   email 
        corrections@appellate.courts.state.ak.us. 

                 THE SUPREME COURT OF THE STATE OF ALASKA 

FRATERNAL ORDER OF EAGLES,                       ) 
JUNEAU-DOUGLAS AERIE 4200,                      )       Supreme Court No. S-13748 
MARK PAGE, BRIAN TURNER,                        ) 
R.D. TRUAX, and LARRY PAUL,                     )       Superior Court No. 1JU-08-00730 CI 
                                                ) 
                        Appellants,             )       O P I N I O N 
                                                ) 
        v.                                      )       No. 6574 - July 1, 2011 
                                                ) 
CITY AND BOROUGH OF                             )
 
JUNEAU,                                         )
 
                                                )
 
                        Appellee.               )
 
                                                )
 

                Appeal from the Superior Court of the State of Alaska, First 
                Judicial District, Juneau, Philip M. Pallenberg, Judge. 

                Appearances: Paul H. Grant, Law Office of Paul H. Grant, 
                Juneau,   for   Appellants.     John   W.   Hartle,   City   Attorney, 
                Juneau, for Appellee.  Peter J. Maassen, Ingaldson, Maassen 
                & Fitzgerald, P.C., Anchorage, for Amicus Curiae American 
                Cancer Society Cancer Action Network. 

                Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen, and 
                Stowers, Justices. 

                FABE, Justice. 

I.       INTRODUCTION 

                The City and Borough of Juneau has an ordinance that prohibits smoking 

in certain places.   In March 2008 the City Assembly amended that ordinance to prohibit 

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smoking in "private clubs" that offer food or alcoholic beverages for sale.  The Fraternal 

Order of Eagles, Juneau-Douglas Aerie 4200 and three of its members challenged the ban 

on smoking in private clubs both on its face and as applied to their Aerie facility.                The 

Eagles argued that the prohibition on smoking in private clubs violates both their First 

Amendment rights under the United States Constitution and their privacy rights under 

the Alaska Constitution.         We conclude that the ban on smoking in private clubs is a 

regulation of conduct that does not implicate the freedom of association under the First 

Amendment to the United States Constitution and that the ban on smoking in private 

clubs does not violate the Eagles' right to privacy under article I, section 22 of the Alaska 

Constitution.      We   therefore   affirm   the   superior   court's   order   granting   the   City   and 

Borough of Juneau's motion for summary judgment. 

II.     FACTS AND PROCEEDINGS 

                In October 2001 the City and Borough of Juneau (the City) adopted the first 

version of its "Smoking in Public Places Code," City and Borough of Juneau Code 

(CBJ) 36.60.      The City Assembly found that "in order to protect the public health it is 

necessary to control the amount of tobacco smoke in public places." The City Assembly 

also included in its findings the conclusions of a 1992 report published by the United 

States Environmental Protection Agency, titled  Respiratory Health Effects of Passive 

Smoking: Lung Cancer and Other Disorders, that outlined the dangers of second-hand 

smoke, including increased risks for lung cancer and coronary heart disease among 

nonsmokers,   increased   risk   of   death   from   lung   cancer   and   coronary   heart   disease, 

respiratory problems in children, and lower respiratory tract infections. 

                Since 2001 the City's anti-smoking ordinance has been amended several 

times.    Originally   it   exempted   "enclosed   areas   used   for   conferences   or   meetings   in 

restaurants,   service   clubs,   hotels,   or   motels   while   the   spaces   are   in   use   for   private 

                                                  -2-                                             6574
 

----------------------- Page 3-----------------------

functions" as well as "bars and bar restaurants." In 2004 it was amended to ban smoking 

in "bar restaurants" effective January 2, 2005, and to ban smoking in "bars" effective 

January 2, 2008.   In 2007 it was amended to prohibit smoking and the use of smokeless 

tobacco products at several public and private medical facilities, including the public 
streets and sidewalks adjacent to those facilities.1        Later that year it was also amended to 

prohibit smoking in bus passenger shelters. 

                But the ban on smoking in "bars" and "bar restaurants" did not include 

private clubs until 2008, when a concern was raised that private clubs selling food or 

alcohol had an unfair business advantage.  In response the City Assembly directed the 

City Attorney to prepare a new amendment to the ordinance that would "clearly prohibit 

smoking in all places where either alcoholic beverages or food are offered for sale."  In 

March 2008 the City Assembly adopted the amendment to the ordinance now at issue in 

this appeal. This amendment made several changes to the ordinance, including changing 

the   name   from   the   "Smoking   in   Public   Places   Code"   to   the   "Second-Hand   Smoke 

Control Code" and eliminating the exception for smoking in retail tobacco stores.                    The 

amended ordinance broadened the definition of a "bar"; eliminated the exception to the 

smoking ban for "private functions"; and specifically prohibited smoking in private clubs 
that offer food or alcoholic beverages for sale, regardless of the number of employees.2 

                The Fraternal Order of Eagles, Juneau-Douglas Aerie 4200 is a private non- 

profit charitable corporation organized under the laws of the State of Alaska. Aerie 4200 

is   a   local   chapter   of  the   international   organization   known   as   the   Fraternal   Order   of 

        1       The   prohibitions   on   smokeless   tobacco   appear   only   in   the   provisions 

regulating medical facilities and are not at issue in this appeal. CBJ 36.60.010(b) (2008). 

        2       For places of employment other than private clubs, the ordinance currently 

contains an exception to the smoking ban if there are four or fewer employees, unless the 
place of employment is an "enclosed public place." CBJ 36.60.030(a)(2) (2008). 

                                                   -3-                                             6574
 

----------------------- Page 4-----------------------

Eagles.    Aerie 4200 has 262 full members, including both men and women, and 134 

ladies auxiliary members.     Members pay a $15 initiation fee and $35 in annual dues. 

New members must be approved by a unanimous vote of the existing members.                 All 

members must subscribe to the club rules.       The club rules contain an expectation that 

members will treat the Aerie facility as "an extension of the members' homes" and that 

the members will have an expectation of privacy while in the facility. 

              Aerie 4200 holds a license to sell alcoholic beverages in the Aerie facility 

and is thus subject to Title 4 of the Alaska Statutes, titled "Alcoholic Beverages." Alaska 

Statute 04.16.010 requires that establishments licensed to sell alcohol, such as the Aerie 

facility, be closed between 5:00 a.m. and 8:00 a.m. every day.  Aerie 4200 employs four 

part-time bartenders, in addition to a business manager who also serves as a bartender. 
All five of these employees are members of Aerie 4200 and all five are smokers.3 

              Aerie 4200's activities are "intended to produce a financial base" from 

which contributions to worthy causes are made.  In 2007 Aerie 4200 contributed almost 

$25,000 to various charities.   Aerie 4200 has observed a decline in applications for new 

membership and estimate that revenues from their Aerie facility have declined 25% since 

the extension of the smoking ban to private clubs. 

               The Aerie facility is available only to members, auxiliary members, and 

their guests.   Guests must be signed into the guestbook and sponsored by a member who 

is present.   Each guest is permitted to visit three times before being expected to apply for 

membership.      These    requirements    are  occasionally  relaxed   in  situations  such  as 

"providing assistance to people in distress or allowing prospective members to evaluate 

the club."   The Aerie facility is also opened up to the general public four times each year 

       3      According to an affidavit from the Grand Worthy President of Aerie 4200, 

approximately 85% of Aerie 4200's members are smokers. 

                                             -4-                                          6574 

----------------------- Page 5-----------------------

for fundraising events, but no smoking is allowed in the facility during these events. 

Except   on   these   public   occasions,   smoking   is   allowed   by   a   "House   Rule"   adopted 

unanimously by Aerie 4200's membership in April 2008. 

                In July 2008 Aerie 4200 and three of its members (collectively, the Eagles) 

filed suit against the City, alleging that the portion of the Second-Hand Smoke Control 

Code that bans smoking in private clubs is unconstitutional both on its face and as 

applied to Aerie 4200.   Specifically, the Eagles claimed that the smoking ban infringed 

upon   their   freedom   of   association   under   the   First   Amendment   to   the   United   States 

Constitution      and   their  privacy    rights   under  article   I,  section   22   of  the   Alaska 

Constitution. 

                Both the Eagles and the City agreed that the case could be resolved as a 

matter of law on summary judgment.            The superior court considered memoranda from 
both parties as well as an amicus memorandum from the American Cancer Society.4                    The 

amicus memorandum addressed the legal issues presented but also provided more recent 

factual information about the dangers of second-hand smoke, including various studies 

detailing the positive public health effects of anti-smoking ordinances.  On October 14, 

2009, the superior court denied the Eagles' motion for summary judgment and granted 

summary judgment to the City on both the federal association claim and the state privacy 

        4       The superior court granted the American Cancer Society's motion for leave 

to participate as amicus curiae on December 22, 2008.              The American Cancer Society 
also submitted an amicus brief to this court. 

                                                  -5-                                               6574 

----------------------- Page 6-----------------------

claim.5   The superior court entered final judgment on December 11, 2009.                  The Eagles 

appeal. 

III.    STANDARD OF REVIEW 

                We review a grant of summary judgment de novo while drawing "all factual 

inferences in favor of, and viewing the facts in the light most favorable to the non- 
prevailing party."6     A grant of summary judgment will be affirmed "when there are no 

genuine issues of material fact, and the prevailing party . . . was entitled to judgment as 
a matter of law."7     Here, the parties agreed that the case could be decided on summary 

judgment and do not contend that there are material facts in dispute.                   We apply our 
independent judgment to questions of constitutional law8 and will "adopt the rule of law 

that is most persuasive in light of precedent, reason, and policy."9 

                Article   X,   section   11   of   the   Alaska   Constitution   provides   home   rule 

municipalities   with   broad   powers:      "A   home  rule   borough   or   city   may   exercise   all 

        5       The Eagles also raised several other claims in their complaint, including that 

their   right   to   association   under   the   Alaska   Constitution   was   violated,   that   the   anti- 
smoking   ordinance   was   preempted   by   a   comprehensive   state   scheme   for   regulating 
alcohol and tobacco, and that the Juneau police have unlawfully intruded into the Aerie 
facility   when   seeking   to   enforce   the   ban  on   smoking.    In   its   decision   on   summary 
judgment, the superior court requested that the Eagles file a status report indicating 
whether they were choosing to proceed with these remaining claims.                   The Eagles filed 
a Notice Regarding Additional Claims on November 20, 2009, advising the court that 
they did not intend to pursue these claims. 

        6       Rockstad v. Erikson, 113 P.3d 1215, 1219 (Alaska 2005). 

        7       Id. 

        8       State, Dep't of Health & Soc. Servs. v. Planned Parenthood of Alaska, Inc., 

28 P.3d 904, 908 (Alaska 2001). 

        9       Alaskans for Efficient Gov't, Inc. v. State, 153 P.3d 296, 298 (Alaska 2007) 

(quoting Sonneman v. State, 969 P.2d 632, 636 (Alaska 1998)). 

                                                   -6-                                             6574
 

----------------------- Page 7-----------------------

legislative powers not prohibited by law or by charter."            The Alaska Constitution also 

requires that "[a] liberal construction shall be given to the powers of local government 
units."10  We have made clear that "[a] duly enacted law or rule, including a municipal 

ordinance,     is  presumed     to  be  constitutional"11    and  that  "[c]ourts    should   construe 

enactments to avoid a finding of unconstitutionality to the extent possible."12 

IV.     	DISCUSSION 

        A.	     The Ban On Smoking In Private Clubs Is A Regulation Of Conduct 
                That Does Not Implicate The Eagles' Freedom Of Association Under 
                The First Amendment To The United States Constitution. 

                "The   right   to   associate   is   a   fundamental   right   protected   by   the   First 
Amendment and the due process clause of the Fourteenth Amendment."13  The United 

States Supreme Court has recognized that individuals have a First Amendment right to 

associate in two situations:   (1) "intimate association," when individuals "enter into and 

maintain certain intimate human relationships," and (2) "expressive association," when 

individuals "associate for the purpose of engaging in those activities protected by the 

First Amendment - speech, assembly, petition for the redress of grievances, and the 
exercise of religion."14 

                For the Eagles to prevail on their challenge to the City's ban on smoking 

in private clubs they "must demonstrate that the ordinance infringes on one of these two 

        10      Alaska Const. art. X,  1. 

        11      Treacy v. Municipality of Anchorage, 91 P.3d 252, 260 (Alaska 2004). 

        12      Id. 

        13      In re Mendel, 897 P.2d 68, 76 (Alaska 1995) (citingNAACP v. Alabama ex 

rel. Patterson, 357 U.S. 449, 460 (1958)). 

        14      Roberts v. U.S. Jaycees, 468 U.S. 609, 617-18 (1984). 

                                                  -7-	                                           6574
 

----------------------- Page 8-----------------------

protected areas of association."15        The Eagles focus their arguments on the "intimate 

association" prong.16     The Eagles argue that (1) the "specific and unique characteristics" 

of their group and the Aerie facility, such as its small membership and restrictive policies 

for admitting guests and new members, make the relationships among their members the 

type   of   intimate   association   protected   under   the   First   Amendment;   and   (2)   because 

approximately 85% of their members are smokers, prohibiting smoking in the Aerie 

facility unduly interferes with those relationships by essentially "telling members to 'go 

elsewhere.' " 

                To support this argument the Eagles point to the United States Supreme 

Court decision in Roberts v. United States Jaycees, which held that state human rights 

legislation requiring the Jaycees to admit women did not abridge the male members' 
freedom of association.17       In Roberts, the Court noted that "choices to enter into and 

maintain certain intimate human relationships must be secured against undue intrusion 

by   the   State"   because   such   relationships   are   "a   fundamental   element   of   personal 
liberty."18   In order to enjoy this protection, however, a relationship must be "highly 

        15      Taverns For Tots, Inc. v. City of Toledo, 341 F. Supp. 2d 844, 849 (N.D. 

Ohio 2004). 

        16      While the Eagles maintain that their exercise of expressive (as opposed to 

intimate) association rights has been "hampered by the ordinance because members have 
been made to feel unwelcome and have been discouraged from attendance," they admit 
that "all evidence on this point is anecdotal" and that "any attempt to conclusively link 
the ordinance with a chilling of [the Eagles'] expressive associational rights is difficult 
at best." 

        17      468 U.S. 609 (1984). 

        18      Id. at 617-18. 

                                                  -8-                                            6574
 

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personal."19    Noting that family bonds are the clearest example of such highly personal 

relationships, the Court explained that relationships "distinguished by such attributes as 

relative smallness, a high degree of selectivity in decisions to begin and maintain the 

affiliation, and seclusion from others in critical aspects of the relationship" will trigger 
the protections of the First Amendment.20             Therefore, "[d]etermining the limits of state 

authority   over   an   individual's   freedom   to   enter   into   a   particular   association   .   .   . 

unavoidably       entails    a  careful    assessment     of   where     that  relationship's     objective 

characteristics locate it on a spectrum from the most intimate to the most attenuated of 
personal   attachments."21        The   Eagles   argue   that   this   language   requires   us   to   first 

determine whether Aerie 4200 consists of the type of intimate relationships protected 

under the freedom to associate. 

                 The City counters that the ordinance does not implicate the freedom of 

association because it "does not regulate who may associate with whom" but instead only 

"regulates certain conduct in certain places." (Emphasis in original.) The superior court 

also emphasized the distinction between the cases cited by the Eagles, includingRoberts, 

which involve "the regulation of the membership of private clubs," and regulations that 

only pertain to "the conduct of members."  (Emphasis in original.)  As the superior court 

explained,   cases   involving   the   regulation   of   membership   have   a   direct   impact   on 

individuals' choice of whom to associate with, while this case concerns "what people can 

choose to do while associating."   Because of this conclusion, the superior court did not 

         19      Id. at 618. 

        20       Id. at 619-20. 

        21       Id. at 620. 

                                                     -9-                                                 6574 

----------------------- Page 10-----------------------

reach the question whether Aerie 4200 consists of intimate relationships possessing the 
"distinctive characteristics"22 that would afford heightened constitutional protection. 

                Numerous state and federal courts have reached similar conclusions when 

considering First Amendment challenges to ordinances that restrict smoking.                      As the 

Washington Supreme Court noted: "Other courts have universally rejected challenges to 
smoking bans on the grounds they interfere with freedom of association."23 

                The first group of these cases considered ordinances banning smoking in 

places of public accommodation such as restaurants or bars.  In NYC C.L.A.S.H., Inc. v. 

City of New York, the federal district court rejected the "expressive association" argument 

that state and city laws prohibiting smoking in bars and restaurants interfered with the 
rights   of   smokers   to   associate   while   exercising   their   First   Amendment   rights.24    In 

C.L.A.S.H., a smokers'-rights organization argued that "to bar the act of smoking in all 

privately owned places that are open to the public deprives smokers of a necessary venue 
for conducting their private social lives."25          The federal district court concluded that 

"[w]hile the Smoking Bans restrict where a person may smoke, it is a far cry to allege 

that   such   restrictions   unduly   interfere   with   smokers'   right   to   associate   freely   with 

whomever   they   choose"   and   that   "[n]othing   in   the   Constitution   engrafts   upon   First 

        22      See id. at 621. 

        23      Am. Legion Post #149 v. Washington State Dep't of Health, 192 P.3d 306, 

323 (Wash. 2008); see, e.g.,Players, Inc. v. City of New York, 371 F. Supp. 2d 522, 544- 
45 (S.D.N.Y. 2005); Taverns for Tots, Inc. v. City of Toledo, 341 F. Supp. 2d 844, 849-53 
(N.D. Ohio 2004); City of Tucson v. Grezaffi, 23 P.3d 675, 681 (Ariz. App. 2001); Am. 
Lithuanian Naturalization Club v. Board of Health of Athol, 844 N.E.2d 231, 242 (Mass. 
2006). 

        24      315 F. Supp. 2d 461, 472-76 (S.D.N.Y. 2004). 

        25      Id. at 473 (citation omitted). 

                                                  -10-                                             6574
 

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Amendment protections any other collateral social interaction, whether eating, drinking, 
dancing, gambling, fighting, or smoking."26            As the C.L.A.S.H. court noted, the effect of 

this " 'association PLUS' theory would be to embellish the First Amendment with extra- 

constitutional protection for any ancillary practice adherents may seek to entwine around 

fundamental freedoms, as a consequence of which the government's power to regulate 
socially or physically harmful activities may be unduly curtailed."27 

                 In  Taverns   for   Tots   v.   City   of   Toledo,   a   federal   district   court   in   Ohio 

similarly found that an ordinance prohibiting smoking in bars and restaurants, "no matter 
how applied, cannot infringe on the right of expressive association."28  That court quoted 

the opinion in NYC C.L.A.S.H. and further explained that the ordinance "do[es] not 

interfere with the ability of members [of Taverns for Tots] to get together for any lawful 

purpose, including the exercise of expressive activity . . . .  The ordinance only prevents 
smoking in public places."29 

                  Several other decisions, both at the federal and state level, have addressed 

the    direct   question    whether     an   ordinance     prohibiting    smoking      in  private    clubs 

unconstitutionally interferes with intimate associational rights.              In Players, Inc. v. City 

of New York, the federal district court for the Southern District of New York again ruled 

that New York City's smoking ban was constitutional, even when it banned smoking in 

        26      Id. at 473-74. 

        27      Id. at 474. 

        28       341 F. Supp. 2d at 852. 

        29      Id. at 851.     The federal district court in Taverns for Tots also rejected the 

plaintiff's intimate association claim, but on the basis that the purpose of Taverns for 
Tots was to evade the anti-smoking ordinance and that such an organization "is not the 
kind of intimate associational activity that either enjoys or deserves protection under the 
First Amendment." Id. at 850. 

                                                   -11-                                              6574
 

----------------------- Page 12-----------------------

a private club   "with a long and storied past."30          The court rejected the club's argument 

under the intimate association prong, writing: 

                 [E]ven if Players had not waived the opportunity to present 
                 facts    in  support     of  its  claim    to  the   right   of  intimate 
                 association   .   .   .   the   Court   finds   that   the   Club   could   not 
                 demonstrate that any such right was infringed by the Smoking 
                 Bans.     Players does not cite to, and the Court cannot locate, 
                 any    provision     of  the  Smoking      Bans    or  their   regulatory 
                 schemes   that   purports   to   regulate   members,   or   interaction 
                 among      members,      in  any   clubs    covered    by   the   statutes. 
                 Smokers' ability to join Players is completely unaffected by 
                 the   Smoking   Bans.   At   worst,   interaction   among   members 
                 could be affected by the laws only incidentally.[31] 

With regard to Players' expressive associational rights, the court cited NYC C.L.A.S.H. 
to again reject the club's First Amendment argument.32 

                 State courts have also upheld anti-smoking ordinances, even when applied 

to private clubs.       In American Lithuanian Naturalization Club v. Board of Health of 

Athol, the Supreme Judicial Court of Massachusetts upheld a challenge to a smoking ban 
that prohibited smoking in all enclosed areas of local private clubs.33  The court rejected 

the intimate association argument advanced by three private clubs that their members 

would no longer socialize at their facilities if smoking was banned, holding that there was 

        30       371 F. Supp. 2d 522, 525 (S.D.N.Y. 2005). 

        31       Id. at 545. 

        32       Id. at 545-46. 

        33       844 N.E.2d 231 (Mass. 2006). 

                                                    -12-                                              6574
 

----------------------- Page 13-----------------------

"no showing that enforcement of the town regulation will infringe the members' right to 
maintain relationships with each other."34 

                In the closest factual analogy to this case, American Legion Post #149 v. 

Washington State Department of Health, the Washington Supreme Court considered a 
challenge to a statute and ordinance prohibiting smoking in any place of employment.35 

Although the Washington Supreme Court considered the relevant factors and determined 

that American Legion Post #149 was not an intimate association because of its large 

membership, the court indicated that there would be no violation of the group's rights 

even if it had been deemed an intimate association:            "Even if the Post were deemed to 

facilitate intimate human relationships, the ban does not directly interfere with such 

relationships or a person's ability to join the Post.  Instead, it merely prohibits smoking 
in the Post's building when employees are present."36 

                We agree with these other courts that an ordinance banning smoking in 

private   clubs   does   not   implicate   the   right   to   intimate   association   under   the   First 

Amendment.       Even assuming the Eagles' relationships are of the highly personal type 

that receive heightened constitutional protection, the ordinance does not regulate or 
interfere with the members' "choices to enter into and maintain"37 those relationships. 

The ordinance does not regulate the membership of Aerie 4200 or who may associate 

with whom; it only regulates the conduct of members in certain places. 

        34      Id. at 242. 

        35      192 P.3d 306 (Wash. 2008). 

        36      Id. at 323. 

        37      Roberts v. U.S. Jaycees, 468 U.S. 609, 617 (1984). 

                                                 -13-                                            6574
 

----------------------- Page 14-----------------------

                 The Eagles argue that the ordinance unduly interferes with "how, when, and 

where   club   members   choose   to   partake   of  their   intimate   associations."       The   Eagles 

essentially urge us (1) to adopt the "association plus" theory in spite of the uniform 

decisions of other courts and (2) to hold that "the right of intimate association includes 

a right to engage in any lawful activities the participants may choose."                   But the First 

Amendment protects the ability to choose one's intimate associates freely, not the ability 

to engage in any conduct in any place so long  as one is interacting with his or her 

intimate associates.  As Judge Pallenberg persuasively explained: 

                         One could not seriously argue that application of other 
                penal laws, such as the laws against drug possession, theft, 
                 sexual contact with minors, or prostitution, to the conduct of 
                 members within the confines of a private club infringes upon 
                 the members' freedom of association.  All such laws regulate 
                 the actions of the members, not their choice of the people 
                 with whom they associate.  In terms of its impact on freedom 
                 of association, regulation of smoking as an activity is not 
                 different in kind from regulation of these other activities. . . . 
                 People   are   free   to   join   the   Eagles   or   not;   they   are   just 
                prohibited from smoking inside the club. 

Because the smoking ban regulates only conduct, we hold that it does not implicate the 

freedom      of  association     protected    by   the   First  Amendment        to  the   United    States 

Constitution.      We do not reach the question whether Aerie 4200 consists of the highly 

personal   relationships   that   receive   heightened   protection   under   the   right   to   intimate 

association. 

                                                   -14-                                              6574
 

----------------------- Page 15-----------------------

        B.	     The Ban On Smoking In Private Clubs Does Not Violate The Eagles' 
                Right     To    Privacy    Under      Article  I,   Section    22   Of    The   Alaska 
                Constitution. 

                Article I, section 22 of the Alaska Constitution states that "the right of the 

people to privacy is recognized and shall not be infringed."                We have held that this 

explicit guarantee of privacy provides Alaskan citizens with greater protection than the 
federal  constitution.38     But   although   we   have   recognized   a   strong   right   to   personal 

autonomy and privacy under the Alaska Constitution, we have also clearly stated that 

"the rights to privacy and liberty are neither absolute nor comprehensive . . . their limits 

depend on a balance of interests" that will vary depending on the importance of the rights 
infringed.39   When the state interferes with a fundamental aspect of the right to privacy, 

the government must demonstrate a "compelling governmental interest and the absence 
of a less restrictive means to advance that interest."40             For interference with a non- 

fundamental aspect of privacy, "the state must show a legitimate interest and a close and 

substantial   relationship   between   its   interest and   its   chosen   means   of   advancing   that 
interest."41  Thus, to determine whether the Eagles' right to privacy has been violated, we 

must first evaluate the nature of the Eagles' rights, if any, that are abridged by the ban 
on smoking in private clubs, and then consider whether that abridgement is justified.42 

        38      Woods & Rohde, Inc. v. State, Dep't of Labor, 565 P.2d 138, 150 (Alaska 

1977). 

        39	     Sampson v. State, 31 P.3d 88, 91 (Alaska 2001). 

        40      Id.; see State v. Erikson, 574 P.2d 1, 11-12 (Alaska 1978); Ravin v. State, 

537 P.2d 494, 497-98 (Alaska 1975). 

        41      Sampson, 31 P.3d at 91. 

        42      See Harrison v. State, 687 P.2d 332, 337 (Alaska App. 1984). 

                                                  -15-	                                           6574
 

----------------------- Page 16-----------------------

              We have held that two categories of privacy rights are fundamental: those 
concerning personal autonomy and those protecting a distinctive situs - the home.43  We 

have recognized that there is some overlap between these two areas because "the right 
to privacy in the home is directly linked to a notion of individual autonomy."44   In this 

case, the Eagles ask us to hold that there is a fundamental privacy right "to ingest a legal 

substance - tobacco - in a private club facility."        The Eagles argue that the Aerie 

facility serves as an extension of the members' homes and that the ingestion of tobacco 

within the Aerie facility should be protected under our decision in Ravin v. State, which 

held that the right to privacy protects the possession by adults of small quantities of 
marijuana in the home for personal use.45       The City counters that smoking is not a 

fundamental right of personal autonomy and that the Aerie facility should not receive the 

same special protection as the home.      The superior court found that the regulation of 

smoking does not "implicate the fundamental right of personal autonomy" and that the 

Aerie facility is not the equivalent of a home. 

              1.	    Smoking      tobacco    is  not  a  fundamental     right  of  personal 
                     autonomy. 

              We agree with the superior court that, standing alone, smoking tobacco is 

not a fundamental right of personal autonomy.     This conclusion flows directly from our 

previous cases.   Our decision in Ravin was firmly rooted in the constitutional protection 

for privacy in the home, and specifically held that "there is no fundamental right, either 

       43     See Sampson, 31 P.3d at 93-94 (describing the holdings in several personal 

autonomy cases and in Ravin). 

       44     Id. at 94 (citing Ravin, 537 P.2d at 503-04). 

       45     537 P.2d at 504. 

                                            -16-	                                      6574
 

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under   the   Alaska   or   federal   constitutions,   either   to   possess   or   ingest   marijuana."46 

Similarly,   in State   v.   Erickson,   we   rejected   the   argument   that   the   right   to   privacy 

protected the use of cocaine within the home and held that "the defendants' particular 

rights to privacy and autonomy involved cannot be read so as to make the ingestion, sale 
or possession of cocaine a fundamental right."47 

                 Aerie    4200    argues    that   these   holdings     in Ravin     and  Erickson      are 

distinguishable because tobacco, unlike marijuana or cocaine, is a legal substance.  The 

court of appeals addressed a similar argument in Harrison v. State, which upheld the 

constitutionality      of  Alaska's     local   option    law,   and   concluded      that  "there   is  no 
fundamental right to possess or consume alcohol."48   We agree with this conclusion of 

the court of appeals in Harrison and conclude that it applies here as well.  There is not 

a   fundamental   right   of   personal   autonomy   under   the   Alaska   Constitution   to   ingest 

tobacco. 

                 2.	     The     ban   on   smoking      in  private    clubs    does   not   violate   the 
                         fundamental right to privacy in the home. 

                 In Ravin, however, we recognized that we could not dispose of Ravin's 

privacy claims simply by holding that there was no constitutional right to possess or 
smoke marijuana.49        We thus conducted "a more detailed examination of the right to 

privacy and the relevancy of where the right is exercised."50              This examination led us to 

        46      Id. at 502. 

        47       574 P.2d 1, 12 (Alaska 1978). 

        48       687 P.2d 332, 338 (Alaska App. 1984). 

        49      Ravin, 537 P.2d at 502. 

        50      Id. 

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conclude that because of the distinctive nature and importance of the home, Alaskans 
have   a   fundamental   "right   to   privacy   in   their   homes."51       We   concluded   that   this 

fundamental right to privacy in the home encompassed "the possession and ingestion of 

substances such as marijuana," subject to two important limitations:                    First, the use or 

possession must be limited to "a purely personal, non-commercial context in the home"; 

and second, the right "must yield when it interferes in a serious manner with the health, 
safety, rights and privileges of others or with the public welfare."52 

                 The Eagles urge us to extend this reasoning to the ingestion of tobacco 

within their Aerie facility.  We decline to do so because the Aerie facility is not a home 

and   because   smoking   tobacco   within   the   Aerie   facility   does   not   occur   in   "a   purely 

personal, non-commercial context." 

                 Our   decision   in Ravin   does   not   invalidate   the   ordinance   at   issue   here 

because a private club is not a home.            The Eagles argue that "Ravin does not set up a 

dichotomy between 'homes' and 'everywhere else' " but instead recognizes a spectrum 

of location-based privacy rights, with possession or ingestion within a private home at 
one end.53   Our conclusion in Ravin, however, made clear that the right to possess and 

ingest certain substances encompassed by the right to privacy was strictly limited to a 

        51       Id. at 504. 

        52       Id. 

        53       See Ravin, 537 P.2d at 502-03. 

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"purely personal, non-commercial context in the home."54  It is the "distinctive nature" 

of an individual's home that we have recognized as deserving of special protection.55 

                 For   this   reason,   the   Eagles'   arguments   that   the   Aerie   facility   is   "an 

extension"   of   the   members'   homes   and   "has   many   attributes   of   a   home"   are   not 

persuasive. A home is a private residence. Private clubs, including the Aerie facility, are 

not homes.  The Aerie facility is owned by a non-profit corporation organized under the 

laws of Alaska; it sells liquor and holds a liquor license that subjects it to the State of 

Alaska's comprehensive regulations for the sale of alcohol; and it employs five people, 

including a designated business manager. 

                 Furthermore, when members of Aerie 4200 smoke tobacco in the Aerie 

facility, they are not ingesting that substance in a "purely personal, non-commercial 
context."56     Aerie   4200   could   choose  not   to   sell   alcohol   in   the   Aerie   facility. But 

Aerie 4200 functions as both a social club and a commercial enterprise that conducts 

activities "intended to produce a financial base."                The fact that Aerie 4200 uses its 

revenue to support charitable causes does not change the commercial nature of its Aerie 

facility.  Because the Aerie facility is not a home and operates in a commercial context, 

it does not fall under the privacy protections established in Ravin. 

                 3.	     The     ban    on    smoking      in  private     clubs    bears    a   close   and 
                         substantial       relationship      to  the   legitimate      state   purpose     of 
                         protecting the public health. 

                 Because      the  ban    on   smoking     in  private    clubs   does   not   implicate     a 

fundamental   aspect   of   the  right   to   privacy,   we   do   not   evaluate   the   ban   under   strict 

        54       Id. at 504 (emphasis added). 

        55       Id. at 503. 

        56       Id. at 504. 

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scrutiny.   Instead, we apply the less stringent test of whether the City has demonstrated 

a   legitimate   interest   in   protecting   the   public   health   and   welfare   and   a   close   and 
substantial relationship between that interest and the ban on smoking in private clubs.57 

                 The superior court found that "[t]he toll of death and injury caused by 

consumption of tobacco is not subject to serious dispute," and the amicus brief filed by 

the American Cancer Society discusses in detail the "harmful effects of exposure to 

second-hand smoke and the beneficial impact of smoke-free legislation." The Eagles do 

not dispute these health claims and concede that there is a legitimate state interest in 

enacting "a broad smoking ban in places where the public may be found, such as bars and 

restaurants." 

                 The   Eagles   argue,   however,   that   there   is   not   a   close   and   substantial 

relationship between protecting the public from the harmful effects of tobacco smoke and 

banning   smoking   in   their   private   club.     The   Eagles   emphasize   that   their   club   rule 

allowing smoking was adopted by a unanimous vote; that 85% of Aerie 4200's members, 

including all five of its employees, are smokers; and that the Aerie facility does not allow 

smoking when it opens to the general public a few times each year. From the perspective 

of   the   Eagles,   this   demonstrates   that   the   ban   on   smoking   in   private   clubs   has   no 

relationship to the welfare of the "general public," let alone a close and substantial one, 

but instead applies only to "private and consenting adults." The Eagles essentially claim 

that they have the right to engage in conduct which harms only themselves. 

                 We rejected a similar argument in Sampson v. State, which held that the 
right to privacy does not include a right to physician-assisted suicide.58              In Sampson, we 

        57       See Sampson v. State, 31 P.3d 88, 91 (Alaska 2001). 

        58       31 P.3d 88. 

                                                   -20-                                                 6574 

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explained that our cases do not support the argument "that the government may not 

abridge any aspect of personal privacy unless it involves conduct posing a threat of harm 
to another."59  Our decision in Sampson also rejected the argument that the state cannot 

regulate conduct that poses a threat of harm to others if the potential victims consent to 
the harm.60    The Supreme Judicial Court of Massachusetts rejected a similar argument 

in American Lithuanian Naturalization Club v. Board of Health of Athol, holding that 

there was a rational connection between the state's interest in public health and the ban 

on   smoking   in   private   clubs,   particularly   given   the   exposure   of   non-smoking   club 
members to second-hand smoke.61 

                All of Aerie 4200's members, including the smokers and the non-smokers, 

are harmed by exposure to second-hand smoke in the enclosed space of the Aerie facility. 

Their consent does not change the analysis of the City's interest in protecting their health. 

As the superior court observed: 

                        It   is   not   enough   to   say   that   the   persons   exposed   to 
                second-hand smoke have chosen to be in the Eagles Aerie 
                Home.      If it were, then no anti-smoking ordinance could be 
                upheld      as  long    as   other   persons     present    were    there 
                voluntarily.   If a workplace, or a bar, or a restaurant is posted 
                as a smoking zone, then everyone present has chosen to be 
                there knowing there is smoke. 

                The City has a legitimate interest in protecting the public, non-smokers and 

smokers   alike,   from   the   well-established   dangers   of   second-hand   tobacco   smoke. 

        59      Id. at 95; see also State v. Erickson, 574 P.2d 1, 21 (1978) ("No one has an 

absolute right to do things in the privacy of his own home which will affect himself or 
others adversely.") (emphasis added). 

        60      Sampson, 31 P.3d at 95 (finding that "a physician who assists in a suicide 

undeniably causes harm to others" even with the patient's consent). 

        61      See 844 N.E.2d 231, 238-39 (Mass. 2006). 

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Aerie   4200   has   elected   to   obtain   a   state-regulated   liquor   license   and   sell   alcoholic 

beverages in its Aerie facility.  Establishments that offer alcoholic beverages for sale are 

likely to be places where members of the public frequently gather.  Therefore, the City's 

decision   to   ban   smoking   in   any   enclosed   place   that   offers   food   or   alcohol   for   sale, 

including private clubs, bears a close and substantial relationship to the public health. 

V.      CONCLUSION 

                For the foregoing reasons, we AFFIRM the superior court's order granting 

summary judgment to the City and Borough of Juneau. 

                                                  -22-                                            6574
 
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