Feature: ACLU Files Suit to Block Alaska Marijuana Recriminalization, State Says It Will Wait on Litigation's Results 6/9/06

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Last week, it was legal for Alaskans to possess up to a quarter-pound of marijuana in the privacy of their homes. This week, after Gov. Frank Murkowski signed into law the bill he pushed recriminalizing the weed, it's not. Next week, who knows? The Alaska chapter of the American Civil Liberties Union (ACLU) filed suit Monday seeking to block the law from going into effect.

Meanwhile, according to the Alaska Department of Law, police aren't even enforcing the new law -- at least its sections dealing with the possession of small amounts of marijuana in the home. The department has warned, however, that the provision making possession of more than four ounces a felony is now in effect.

propaganda show by Gov. Murkowski and drug czar Walters
The skirmishing in the past week is only the latest installment in a 30-year-old drama that began when the Alaska Supreme Court held in Ravin v. Alaska that the home use and possession of marijuana was sufficiently harmless to be protected under the state constitution's privacy provisions. Alaska drug warriors organized and won a popular referendum recriminalizing marijuana in 1991, and despite two initiative efforts to legalize weed in Alaska, that remained the law until the Ravin decision was revisited and upheld by the Alaska courts in 2003 and 2004.

Ever since, Gov. Murkowski has worked tirelessly to recriminalize marijuana. Last year, reformers and other concerned Alaskans managed to block his effort in the legislature, but his allies did manage to insert into the bill a series of "findings" about the harms of present-day marijuana designed to form the basis for a challenge to Ravin. This year, Murkowski attached his marijuana bill to a popular methamphetamine bill and, avoiding any hearings in the House, managed to push the combined bill through.

"Murkowski really wanted this and twisted arms to get it," said Bruce Mirken, communications director for the Marijuana Policy Project (MPP), which has been working with local groups and individuals to move the state's marijuana laws in the other direction. "The combined efforts of all these groups managed to hold him for a year, and we can be proud of that fact. And, of course, we're not going to give up, either," he told DRCNet.

Last Friday, Murkowski signed the bill into law in a ceremony at an Anchorage Boys & Girls Club. "We are signing these bills at the Boys and Girls Club because they will have a direct and lasting beneficial impact on the youths of Alaska," Murkowski said. "The growing use of marijuana among teenagers and even younger kids cannot be ignored. There is always a great temptation to do what other kids are doing, and that includes using marijuana. When the courts have said personal use of this drug is okay in Alaska, that sends the wrong message to young people. We believe House Bill 149 will allow the state to successfully defend the outlawing of today's stronger and more dangerous marijuana in the courts."

The Alaska ACLU begs to differ -- and it was ready. "We weren't waiting for a test case. We filed suit Monday," said Alaska ACLU executive director Michael Macleod-Ball. "We are seeking both preliminary and permanent injunctions to block the enforcement of this law. We have two anonymous plaintiffs, Jane Doe and Jane Roe, who submitted statements saying they are small time users fearful of prosecution," he told DRCNet.

"Ravin said the state must have sufficient justification to restrict people's right to privacy and that marijuana was not a sufficient health danger to give the state the right to come into your home," said Macleod-Ball. "Clearly, the strategy of the state is to substitute the sham legislative 'findings' for the very detailed findings in Ravin, but we think the court will see right through that -- if it even gets that far," he predicted. "We don't file suits to lose them. We pick our spots and we're pretty confident that the constitutional right to privacy in Alaska is strong enough to justify barring enforcement of this law. Unlike the federal Constitution, where the right to privacy is implicit, in Alaska, it's written right into the constitution."

The Alaska Department of law is ready for the challenge, said department spokesman Mark Morones. "We were served with their complaint earlier in the week and it is under review by the department," he said. "The legal challenge brought by the ACLU was expected. We realize that this is a matter that would likely need to be resolved by the courts," he told DRCNet. "We feel comfortable, based on the new legislation and the findings included in that legislation, that the state can successfully defend the issues raised in this lawsuit."

The Alaska ACLU isn't the only critic of the state's legal basis to challenge Alaska Supreme Court precedent. "Those findings are totally bogus," said MPP's Mirken. "They are trying to justify overriding the constitution with a statute based on the totally preposterous argument that marijuana is not the same drug it was in the 1970s. The polite word for this is baloney. This law deserves to be laughed out of court," he said.

The case should move quickly, said Macleod-Ball. "We have filed for immediate injunctive relief and we have a scheduling hearing set for later this week. After that, we'll be arguing for the preliminary injunction."

In the meantime, Alaskans who possess less than a quarter-pound inside their own homes apparently have nothing to fear -- despite what the law says. When queried about how the law was being enforced, the Department of Law's Morones simply referred DRCNet to a May 12 attorney general's law enforcement bulletin on the new marijuana laws.

The new law "will make no immediate change in police authority regarding personal possession of under four ounces by adults in their homes," the bulletin said. In fact, the attorney general conceded, "the new laws do not alter the decisions by the Alaska appellate courts that noncommercial possession of small amounts by adults in homes is constitutionally protected (Ravin v. State, 1975), that the amount of marijuana covered by Ravin is up to four ounces (Noy v. State, 2003), and that search warrants to investigate marijuana growing require probable cause that the cultivation was for commercial purposes or that there is more than four ounces on the premises (Crocker v. State, 2004)."

While the bulletin promised that the state "will vigorously litigate all these legal issues because it's important that the courts overrule these prior decisions," the new law "sets the stage for that to happen, but it doesn't do it automatically." Thus, the bulletin told law enforcement, "for time being, and until you are advised differently by the District Attorney in your region, there is no basis for changing law enforcement policies for investigation of nonpublic possession of less than four ounces of marijuana by adults."

Thanks to the energetic meddling of Gov. Frank Murkowski, Alaska marijuana law has now entered the Twilight Zone. It is to be hoped that the court doesn't take too long to reaffirm the freedoms Murkowski and his legislative allies are so hell-bent on eroding.

-- END --
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Issue #439 -- 6/9/06

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