T
The420Guy
Guest
The Alaska Supreme Court ruled in Ravin [v. State] that the right of
privacy codified in article I, section 22 of [the Alaska] constitution
protects the right of adults to possess marijuana in their homes for
personal use. When a statute conflicts with a provision of our state
constitution, the statute must give way. See Falcon v. Alaska Public
Offices Comm=92n, 570 P.2d 469, 480 (Alaska 1977); Ravin, 537 P.2d at 511.
Thus, a statute which [sic] purports to attach criminal penalties to
constitutionally protected conduct is void.
On a deeper level, the question is whether the voters of Alaska can,
through the initiative process, abrogate a constitutional ruling of the
Alaska Supreme Court - in particular, the court=92s ruling in Ravin that
article I, section 22 of our state constitution protects an adult=92s right
to possess marijuana in the home for personal use. The answer to this
question is found in the Alaska Constitution itself. Article XII, section
11 states that the people of this state, through the ballot initiative
process, may exercise =93the lawmaking powers assigned to the legislature=94
(subject to the limitations codified in article XI of the constitution).
That is, the initiative process constitutes a method by which the people
of this state can directly enact legislation.
But just as the statutes enacted through the normal legislative process
must not violate the constitution, the statutes enacted by ballot
initiative must not violate the constitution. See Alaskans for
Legislative Reform v. State, 887 P.2d 960, 962, 966 (Alaska 1994);
Citizens Coalition for Tort Reform v. McAlpine, 810 P.2d 162 , 168
(Alaska 1991). Thus, even though the voters enacted AS 11.71.060(a)(1)
through the initiative process, the constitutionality of this statute
must be assessed in the same way as if it had been enacted through the
normal legislative process. And, as we have said, this statute
contravenes the constitutional right of privacy as interpreted by our
supreme court in Ravin =97 because it declares that any possession of
marijuana by adults in their homes for personal use is a crime.
State v. Noy, (Alaska Ct. of Apps.) [Slip Op. No. 1897, August 29, 2003]
at 6-7.
*************************************************************************
*******
Before the marijuana laws were amended by voter initiative in 1990, the
Alaska Legislature had (by statute) defined the amount of marijuana that
adults could lawfully possess in their home for personal use. Under the
pre-1990 statutes governing marijuana possession, an adult could be
prosecuted for possessing four ounces or more of marijuana in their home
for personal use. Possession of less than this amount was not a crime.
See former AS 11.71.060 and AS 11.71.070.
There are no appellate cases testing the constitutionality of the
legislature=92s four-ounce dividing line. However, Noy has not argued that
this four-ounce dividing line violates Ravin. We note, moreover, that
article I, section 22 entrusts the legislature with the duty of
implementing the constitutional right of privacy. Given the language of
article I, section 22, and given the deference that we should pay to the
decision of a co-equal branch of government, we conclude that the
legislature=92s four-ounce dividing line is presumptively constitutional
under Ravin.
* * *
The pre-1990 version of the statute contained a four[-]ounce ceiling on
marijuana possession in the home by adults for personal use - a ceiling
that is presumptively constitutional. The 1990 voter initiative expanded
the scope of AS 11.71.060(a) by eliminating this four-ounce ceiling and
declaring that all possession of marijuana by adults in their homes for
personal use was illegal. In this new version, the statute violates
article I, section 22 of the constitution. To make the statute conform to
the constitution again, we must return it to its pre-1990 version.
* * *
AS 11.71.060(a)(1) remains constitutional to the extent that it prohibits
possession of four[-]ounces or more of marijuana. Restricted in this
fashion, AS 11.71.060(a)(1) remains enforceable.
State v. Noy, (Alaska Ct. of Apps.) [Slip Op. No. 1897, August 29, 2003]
at 8-9.
***************
Judge Kauvar properly instructed the jury that =93[m]arijuana means the
seeds,
leaves, buds, and flowers of the plant[.]=94 See AS 11.71.900 (14). But
Judge Kauvar also instructed the jury that the aggregate weight of a live
marijuana plant was =93the weight of the marijuana when reduced to its
commonly used form.=94 Based on this instruction, Noy urged the jury to
consider only the aggregate weight of the =93buds=94 in determining how much
marijuana he had possessed. But the =93commonly used form=94 of marijuana is
only relevant when a person is charged with possessing live marijuana
plants. See Maness v. State, 49 P.3d 1128, 1134 (Alaska App. 2002)
(quoting Gibson v. State, 719 P.2d 687, 690 (Alaska App. 1986)) (the
=93commonly used form=94 language of AS 11.71.080 =93refers to the method of
calculating the aggregate weight of live marijuana plants=94). Noy was
only charged with possessing harvested marijuana. Therefore, in the event
of a retrial, assuming the State again charges Noy with possessing only
harvested marijuana, the district court should not instruct the jury on
how to determine the aggregate weight of live marijuana, or allow the
parties to argue about the definition of the =93commonly used form=94 of
marijuana.
State v. Noy, (Alaska Ct. of Apps.) [Slip Op. No. 1897, August 29, 2003]
at 11-12.
privacy codified in article I, section 22 of [the Alaska] constitution
protects the right of adults to possess marijuana in their homes for
personal use. When a statute conflicts with a provision of our state
constitution, the statute must give way. See Falcon v. Alaska Public
Offices Comm=92n, 570 P.2d 469, 480 (Alaska 1977); Ravin, 537 P.2d at 511.
Thus, a statute which [sic] purports to attach criminal penalties to
constitutionally protected conduct is void.
On a deeper level, the question is whether the voters of Alaska can,
through the initiative process, abrogate a constitutional ruling of the
Alaska Supreme Court - in particular, the court=92s ruling in Ravin that
article I, section 22 of our state constitution protects an adult=92s right
to possess marijuana in the home for personal use. The answer to this
question is found in the Alaska Constitution itself. Article XII, section
11 states that the people of this state, through the ballot initiative
process, may exercise =93the lawmaking powers assigned to the legislature=94
(subject to the limitations codified in article XI of the constitution).
That is, the initiative process constitutes a method by which the people
of this state can directly enact legislation.
But just as the statutes enacted through the normal legislative process
must not violate the constitution, the statutes enacted by ballot
initiative must not violate the constitution. See Alaskans for
Legislative Reform v. State, 887 P.2d 960, 962, 966 (Alaska 1994);
Citizens Coalition for Tort Reform v. McAlpine, 810 P.2d 162 , 168
(Alaska 1991). Thus, even though the voters enacted AS 11.71.060(a)(1)
through the initiative process, the constitutionality of this statute
must be assessed in the same way as if it had been enacted through the
normal legislative process. And, as we have said, this statute
contravenes the constitutional right of privacy as interpreted by our
supreme court in Ravin =97 because it declares that any possession of
marijuana by adults in their homes for personal use is a crime.
State v. Noy, (Alaska Ct. of Apps.) [Slip Op. No. 1897, August 29, 2003]
at 6-7.
*************************************************************************
*******
Before the marijuana laws were amended by voter initiative in 1990, the
Alaska Legislature had (by statute) defined the amount of marijuana that
adults could lawfully possess in their home for personal use. Under the
pre-1990 statutes governing marijuana possession, an adult could be
prosecuted for possessing four ounces or more of marijuana in their home
for personal use. Possession of less than this amount was not a crime.
See former AS 11.71.060 and AS 11.71.070.
There are no appellate cases testing the constitutionality of the
legislature=92s four-ounce dividing line. However, Noy has not argued that
this four-ounce dividing line violates Ravin. We note, moreover, that
article I, section 22 entrusts the legislature with the duty of
implementing the constitutional right of privacy. Given the language of
article I, section 22, and given the deference that we should pay to the
decision of a co-equal branch of government, we conclude that the
legislature=92s four-ounce dividing line is presumptively constitutional
under Ravin.
* * *
The pre-1990 version of the statute contained a four[-]ounce ceiling on
marijuana possession in the home by adults for personal use - a ceiling
that is presumptively constitutional. The 1990 voter initiative expanded
the scope of AS 11.71.060(a) by eliminating this four-ounce ceiling and
declaring that all possession of marijuana by adults in their homes for
personal use was illegal. In this new version, the statute violates
article I, section 22 of the constitution. To make the statute conform to
the constitution again, we must return it to its pre-1990 version.
* * *
AS 11.71.060(a)(1) remains constitutional to the extent that it prohibits
possession of four[-]ounces or more of marijuana. Restricted in this
fashion, AS 11.71.060(a)(1) remains enforceable.
State v. Noy, (Alaska Ct. of Apps.) [Slip Op. No. 1897, August 29, 2003]
at 8-9.
***************
Judge Kauvar properly instructed the jury that =93[m]arijuana means the
seeds,
leaves, buds, and flowers of the plant[.]=94 See AS 11.71.900 (14). But
Judge Kauvar also instructed the jury that the aggregate weight of a live
marijuana plant was =93the weight of the marijuana when reduced to its
commonly used form.=94 Based on this instruction, Noy urged the jury to
consider only the aggregate weight of the =93buds=94 in determining how much
marijuana he had possessed. But the =93commonly used form=94 of marijuana is
only relevant when a person is charged with possessing live marijuana
plants. See Maness v. State, 49 P.3d 1128, 1134 (Alaska App. 2002)
(quoting Gibson v. State, 719 P.2d 687, 690 (Alaska App. 1986)) (the
=93commonly used form=94 language of AS 11.71.080 =93refers to the method of
calculating the aggregate weight of live marijuana plants=94). Noy was
only charged with possessing harvested marijuana. Therefore, in the event
of a retrial, assuming the State again charges Noy with possessing only
harvested marijuana, the district court should not instruct the jury on
how to determine the aggregate weight of live marijuana, or allow the
parties to argue about the definition of the =93commonly used form=94 of
marijuana.
State v. Noy, (Alaska Ct. of Apps.) [Slip Op. No. 1897, August 29, 2003]
at 11-12.
