A trial over a charge for marijuana possession took place in Alaska in 2003, where the defendant argued that he had a constitutional right to possess marijuana despite laws in place–Noy v. State.

David Noy was arrested for smoking marijuana at a barbecue at his North Pole home after police smelled marijuana and investigated. Noy’s home was found to contain several ounces of marijuana as well as 5 immature plants, but no scales or other evidence of commercial conduct. Noy was prosecuted and convicted of marijuana possession under a 1990 statute criminalizing any amount of marijuana.

Noy appealed the decision, and in Noy v. State (2003) Noy’s counsel argued that Noy’s actions were protected by the privacy provision of the Alaskan constitution. The court agreed: according to the state constitution, Alaskan citizens have a right to possess less than four ounces of marijuana in their home for personal use.

The court found that statue AS 11.71.060(a)(1), which made illegal using, displaying, or possessing any amount of marijuana, criminalized conduct that the Alaska Supreme Court had declared protected under article I, section 22 of the Alaska constitution. This finding was based in main upon an amendment to the state constitution made in 1972.

The amendment states, “The right of the people to privacy is recognized and shall not be infringed.   The legislature shall implement this section.” (Article I, section 22).

In Ravin v. State (1975), the constitution was found to protect possession and ingestion of marijuana for personal use in one’s home in a purely personal, non-commercial context. In Ravin, the privacy protection extended to marijuana could only be overturned if the state could show that the intrusion into people’s privacy bore “a close and substantial relationship to a legitimate government interest,” i.e. public health or welfare would suffer without prohibition of private possession of marijuana. The court found that in Ravin such an interest had been demonstrated in the case of drivers, youth, buyers and sellers, and use in public places, but not for adults in general.

In 1982, the Alaskan legislature changed the law dealing with marijuana from Title 17 to Title 11 and dropped the civil fine for possession for personal use in a non-public place, alligning the law with Ravin. In 1990, however, Alaskan voters approved a ballot (citing variously as 51 and 55% majority) that amended AS 11.71 subsections and made possession illegal. Noy was charged under this 1990 law.

To decide Noy, the court sought to answer if the law under which Noy was charged was unconstitutional, in which case it would be void.

Important to the courts decision was the process by which Statute 11.71 was enacted: the ballot. The court sought to answer whether Alaskans can enact legislation by ballot. The court found that Alaskans could, according to Article XII sec. 11 of the Alaska constitution, which reads that through the ballot Alaskans may exercise “the law-making powers assigned to the legislature” (subject to the limitations in Article XI), but, just like legislative action, the initiative process must not violate the constitution. Statute 11.71 did violate the constitution in part, and so, the court found, the statute must be limited to preserve its constitutionality. The statute was to return to its pre-1990 version in order to conform to the constitution.

Therefore, the court found that marijuana possession by adults in their home for personal use (as in Ravin) remained constitutional, entitling Noy to a new trial. The original conviction was reversed and Noy was granted a new trial, wherein he could possibly be re-convicted if he was found to possess more than four ounces of marijuana (the amount not protected by the constitution).

By Day Blakely Donaldson

Sources:

Findlaw

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A trial over a lawyer’s marijuana possession took place in Alaska in 1975–Ravin v. State.

Irwin Ravin moved to Fairbanks in 1967 where he passed the bar and began practicing law. Ravin and another Alaskan, Robert Wagstaff, the Alaskan representative of the National Organization for the Reform of Marijuana Laws (NORML), both of whom enjoyed smoking marijuana, decided to take on the state’s marijuana laws. Ravin set himself up to be arrested in Anchorage during a routine traffic stop for a broken taillight. Ravin refused to sign the citation and was arrested with marijuana in his pocket. Ravin became the subject of a trial whereby he and Wagstaff would overturn Alaskan marijuana laws. NORML payed for expert witnesses to serve at the trial.

This trial was heard by the same judge as Breese v. Smith, Justice Rabinowitz, who referred to Breese for the test by which the court would measure Ravin’s claim that state action had unfairly encroached upon Ravin’s constitutional rights.

Rabinowitz cited this test:

“Once a fundamental right under the constitution of Alaska has been shown to be involved and it has been further shown that this constitutionally protected right has been impaired by governmental action, then the government must come forward and meet its substantial burden of establishing that the abridgement in question was justified by a compelling governmental interest.”

Babinowitz further wrote that this standard was familiar with federal law as well.

“As stated by the United States Supreme Court: Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling.
The law must be shown ‘necessary, and not merely rationally related, to the accomplishment of a permissible state policy.’

Rabinowitz contrasted this test with the “rational basis” test–a less stringent test–which is to be applied when government action interferes with an individual’s freedom but not in an area characterized as fundamental. Under the “rational basis” test the government only needs to show that there is a rational basis that what they are doing would probably serve the public interest.

Ravin’s claim was to privacy rights violations–violations of a fundamental right. The court sought to find out whether any of Ravin’s rights had been infringed and, if so, find whether the infringements were justified.

The court looked to several precedent cases to inform its opinion: Griswold v. Connecticut, Stanley v. Georgia, Paris Adult Theatre I v. Slaton, and Gray v. State. In Gray v. State, Gray had asserted (correctly, Rabinowitz found) that where a law impinges upon the constitutionally guaranteed right of privacy, the statute may be upheld only if it is necassary to further a compelling state interest. Gray also referred to Breese and to a 1972 amendment to Alaska’s constitution expressly providing that, “The right of the people to privacy is recognized and shall not be infringed.” The court found that this amendment “clearly… shields the ingestion of food, beverages or other substances.” In Gray, however, this right was tempered by a provision whereby the government could subordinate fundamental rights by showing a compelling state interest, such as promoting and protecting public health and providing for the general welfare.

Rabinowitz opined that there was no fundamental right either to possess or ingest marijuana in either the Alaska or U.S. Constitution, because, Rabinowitz reasoned, “few would believe they have been deprived of something of critical importance if deprived of marijuana, though they would if stripped of control over their personal appearance.”  Rabinowitz proceeded from an express right to possess or ingest marijuana to a privacy right that would protect possession and ingestion.

In Rabinowitz’s opinion, he referred to several important special areas of constitutional protection: the home, marriage, procreation, motherhood, child rearing, and education, and found within the “zones of protection” created by various Constitutional Amendments protection also for possessing and ingesting marijuana.  Such protected possession and ingestion, however, had important limitations, for which the court referred to Stanley: a strictly limited guarantee to possession for purely private, noncommercial use at home was protected, but not where possession interferes with the health, safety, rights and privileges of others or with the public welfare. Rabinowitz wrote,

No one has an absolute right to do things in the privacy of his own home which will affect himself or others adversely. Indeed, one aspect of a private matter is that it is private, that is, that it does not adversely affect persons beyond the actor, and hence is none of their business. When a matter does affect the public, directly or indirectly, it loses its wholly private character, and can be made to yield when an appropriate public need is demonstrated.

So, Alaskans’ right to ingest could be infringed if the state demonstrates that the ingestion interferes with the achievement of a legitimate state interest.  The court concluded,

…Citizens of the State of Alaska have a basic right to privacy in their homes under Alaska’s constitution. This right to privacy would encompass the possession and ingestion of substances such as marijuana in a purely personal, non-commercial context in the home unless the state can meet its substantial burden and show that proscription of possession of marijuana in the home is supportable by achievement of a legitimate state interest.

The court reviewed the scientific research and testimony of experts heard on marijuana in order to find if there was evidence of a legitimate state interest to prohibit ingestion of the drug. The court found that marijuana does not constitute a public health problem of any significant dimensions and found that marijuana was more innocuous than alcohol or tobacco.

Thus we conclude that no adequate justification for the state’s intrusion into the citizen’s right to privacy by its prohibition of possession of marijuana by an adult for personal consumption in the home has been shown. The privacy of the individual’s home cannot be breached absent a persuasive showing of a close and substantial relationship of the intrusion to a legitimate governmental interest. Here, 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.

The court reserved three areas of marijuana-related activity that would remain criminal: adolescents could not partake because they may not be mature enough “to handle the experience prudently;” driving while under the influence because marijuana was found to impair psycho-motor control; and possession of amounts indicative of intent to sell would remain illegal because buying and selling had no protection under the Alaskan constitution. Rabinowitz noted that the court did not condone the use of marijuana and, in fact, unanimously opposed the use of any psychoactive drugs, but left the decision to use marijuana to individual Alaskan adults.

The court ruled that the matter be remanded to the district court, who must consider the opinion of the court and Ravin’s motion to dismiss after investigating the particular circumstances of Ravin’s arrest and possession of marijuana. The court left unanswered the question of how far Alaskans’ privacy rights extend outside the home, which, in the words of concurring judge Justice Connor, remained to be defined as later cases were brought forth. Conner noted, however, that the right to privacy “does not vanish when one leaves the home,” though the claim to privacy diminishes “in proportion to the extent one’s person and one’s activities impinge upon other persons.”

Ravin, which was referred to in many drug-related cases, was cited famously in Noy v. State (1990).  Noy occurred after Alaskan voters approved a ballot initiative to re-criminalize marijuana. In this trial the court found that the ballot was unconstitutional, just as a legistlative enactment to the same affect would be unconstitutional.

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Ravin v. State points out an area of constitutional protection missing in the U.S. Constitution: protection of privacy.

Justice Boochever felt it necassary to file a concurrence in order to point out that even though the court based its findings in large part upon U.S. Supreme Court precedent, the U.S. Constitution had no provision corresponding to the Alaskan constitution’s protection of privacy, and Boochever did not want the Alaskan constitution construed. Boochever asserted that Alaskans should proceed on the basis of their own, separate state Constitution and agreed with the majority’s departure from the U.S. Supreme Court’s established standards in areas where Alaskans had discretion to do so:

Since the citizens of Alaska, with their strong emphasis on individual liberty, enacted an amendment to the Alaska Constitution expressly providing for a right to privacy not found in the United States Constitution, it can only be concluded that that right is broader in scope than that of the Federal Constitution. As such, it includes not only activities within the home and values associated with the home, but also the right to be left alone and to do as one pleases as long as the activity does not infringe on the rights of others. Thus, the decision whether to ingest food, beverages or other substances comes within the purview of that right to privacy.

What Boochever was referring to when he wrote of the court’s reference to U.S. Supreme Court precedents was Rabinwitz’s reference to the special importance of the home as given protection by the U.S. Consitution under various Amendments. Rabinowitz described penumbras created by these explicit rights and the existence of “zones of privacy” that had been located within these penumbra. For example, the First Amendment protects “privacy and freedom of association in the home,” the Third Amendment guarantees against the quartering of troops in private houses in peacetime, the Fourth against unreasonable searches and seizures, the Fifth provides protection against all government invasions “of the sanctity of a man’s home and the privacies of life.” These rights together form a penumbra of limited home-related rights understood by the U.S. Supreme Court, which in the area of privacy, Rabinowitz noted, arises only in connection with other fundamental rights (such as rights dealing with the home) and exists only when the private activity will not endanger or harm the general public.

By Day Blakely Donaldson

Sources:

UMKC Law
Justia

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