State Appeals Juneau Superior Court Ruling on Marijuana Legislation
July 28, 2006
(Anchorage) - Attorney General David Márquez announced today that the State of Alaska has filed a notice of appeal with the Alaska Supreme Court last week asking the court to overrule a recent decision by Juneau Superior Court Judge Patricia Collins upholding a challenge to the marijuana provisions of the HB 149 – the drug bill that was passed this past legislative session.
"The majority of Alaskans recognize that marijuana is dangerous and needs to be kept out of the hands of our children and other vulnerable people who are victimized by the dealers involved in this huge illegal industry," said Governor Frank H. Murkowski. "I commend the legislature for passing this law and it is my sincere hope that the Alaska Supreme Court will uphold this law in the coming judicial debate."
The July 10th decision in American Civil Liberties Union of Alaska v. State of Alaska focused on only one provision of the legislation that would make possession of one or less ounce of marijuana a class B misdemeanor. Under this narrow focus, Judge Collins ruled that she was bound by the Supreme Court's previous determination in Ravin regarding an adult's right to possess a small amount of marijuana for personal use at home.
"I expected that this debate would require review by the state's highest court and I appreciate Judge Collins expediting this process, paving the way for a decision by the Supreme Court," said Márquez. "Unfortunately this ruling still impedes law enforcement from obtaining search warrants for individuals engaged in the production, sale and distribution of commercial amounts of marijuana that are illegal under state law. Possession of any amount of marijuana is illegal under federal law."
The state's statement of points on appeal also notes that the court failed to consider the findings made by the Alaska Legislature in support of modifying the penalties for possession of marijuana and failed to recognize and appreciate the government's interests in regulating marijuana use.
"Under the principle of separation of powers it is well established under Supreme Court case authority that the court must consider and defer to findings of fact made by the legislature that support the legislative intent and purpose behind passing this law," said Márquez. "These findings reflect a significantly advanced understanding of the dangers of marijuana use, particularly in Alaska, that were not recognized 30 years ago. For example, the average age of children starting smoking pot having a 14-percent THC content is 13 years old and one-in-seven or eight children born in the northern region of this state is prenatally exposed to marijuana."
In Ravin, the court contemplated that the availability of more potent forms of cannabis other than marijuana are commonly available in other countries and that if such a shift were to occur here, "then marijuana use could be characterized as a serious health problem." Ravin at FN 64. In 2003 the Alaska Court of Appeals in Noy v. State reversed the conviction of a Fairbanks' man for possession of less than eight ounces of marijuana, and in the process invalidated a 1990 voter initiative making possession of marijuana illegal. The court of appeals specifically held that their "decision in this case merely implements the supreme court's constitutional ruling in Ravin. The State remains free in the future to challenge the continuing vitality of Ravin."
"Based on this recognition that shifts in the potency of marijuana could pose a significant health threat, it is clear that our courts contemplated that a new case might be made in the future that would justify further criminalization of marijuana, said Márquez. "That time and that shift are now and warrant review before the state's highest court."
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