State v. American Civil Liberties Union

OPINION

Under the ripeness doctrine, the constitutionality of a statute generally may not be challenged as an abstract proposition. The plaintiffs in the present case have brought a pre-enforeement challenge to a newly amended statute that prohibits the possession and use of marijuana. They claim that because the statute criminalizes the use by adults of small amounts of marijuana in their homes it violates their privacy rights as interpreted in Ravin v. State.1 The question addressed in this opinion is whether the general bar on abstract adjudication should apply. The plaintiffs argue for an exception, contending that it is unfair to put them to a choice of either continuing to use marijuana in their homes and risking prosecution or giving up its use. We conclude that the need to make this choice is not a product of the challenged statute because the plaintiffs will remain subject to prosecution under federal law regardless of how we might rule. For this reason, and because other factors that counsel against deciding cases in an abstract setting are also present, we conclude that any challenge to the statute must await an actual prosecution.

I. FACTS AND PROCEEDINGS

In June 2006 the Alaska Legislature amended AS 11.71.060(a) to prohibit the possession of less than one ounce of marijuana.2 The American Civil Liberties Union of Alaska and two anonymous individuals, Jane Doe and Jane Roe (collectively, "ACLU" or "plaintiffs"), sued for declaratory and injune-tive relief, They argued that section .060 as amended conflicts with the privacy clause of the Alaska Constitution,3 as interpreted in Ravin v. State,4 to the extent that it criminalizes possession of small amounts of marijuana in the home by adults for personal use.

The ACLU moved for a temporary restraining order and preliminary injunction pending resolution of the suit. At a hearing before Superior Court Judge Patricia A. Collins the ACLU agreed that its motion for a temporary restraining order and preliminary injunction could be treated as a motion for summary judgment. Later the State moved to dismiss Jane Doe and the ACLU on standing grounds. The State argued that Doe lacked standing because she could seek protection under Alaska's medical marijuana law'5 It further contended that the ACLU *367lacked organizational or associational standing. The State also opposed the ACLU's motion for preliminary relief or summary judgment and cross-moved for summary judgment. The superior court concluded that the plaintiffs had standing to challenge the law because "they are exposed to potential criminal prosecution for possession of small amounts of marijuana in their homes." 6 In the same order, the court, relying on our decision in Ravin, granted summary declaratory judgment in favor of the ACLU.

The State appeals. It argues that Ravin should no longer be considered controlling for several reasons. The State contends that marijuana is much more intoxicating now than it was in 1975 when Ravin was decided.7 Further, according to the State, more people are using marijuana and starting to do so at younger ages than at the time Ravin was decided, and the adverse consequences of using marijuana are better understood. The State points out that the legislature held hearings on marijuana usage before enacting the 2006 amendments and made a number of findings. The State summarizes the findings, in part, as follows:

(1) Marijuana potency has increased dramatically in the last 30 years, particularly in Alaska, and corresponds to an increase in rehabilitative and hospital treatment related to marijuana use.

(2) Hundreds of Alaskans are treated for marijuana abuse each year, more than half being children; pregnant women in Alaska use marijuana at a higher rate than the national average.

(3) Many users become psychologically dependent on marijuana under recognized clinical standards.

(4) Early exposure to marijuana increases the likelihood of health and social problems, including mental health problems.

(5) Many people treated for alcoholism also abuse marijuana, and alcoholism treatment is more difficult when marijuana is used.

(6) Marijuana affects many body and brain functions; it often contains bacteria and fungi harmful to humans.

(7) A higher percentage of adults and juveniles arrested in Alaska have marijuana in their systems at the time of arrest.

(8) If a parent uses marijuana, then their children are much more likely to become marijuana users; studies have shown that criminal penalties increase the perception among teenagers of the risks of using marijuana, thus reducing use.

The ACLU argues that marijuana has not changed significantly since Ravin was decided, that it is a relatively harmless substance, and that no grounds exist for reconsidering Ravin. The ACLU further argues that if the court were inclined to reconsider Ravin a remand for a hearing would be appropriate to assess the nature of marijuana and the consequences of its use.

After this case was submitted for decision on appeal, we requested supplemental briefing on the question of ripeness. In their supplemental briefing, both parties argued that this appeal is fit for resolution because the plaintiffs otherwise must risk eriminal prosecution in order to challenge the amended statute. We disagree and conclude that this case is not ripe because it does not arise from an actual prosecution brought under the amended statute. The relaxed approach to ripeness sometimes taken with respect to pre-enforcement challenges to criminal laws is not appropriate here because the plaintiffs already face a risk of prosecution for home use of marijuana under federal drug statutes.

II. STANDARD OF REVIEW

The State and ACLU contend that we should review the superior court's ripeness conclusion for an abuse of discretion. We disagree and employ de novo review. The State and ACLU conflate the two requirements for declaratory judgment-standing and the prudential basis for granting declara*368tory relieft-and the different standards of review that attach to each requirement.

Alaska's declaratory judgment statute provides in relevant part: "In case of an actual controversy in the state, the superior court, upon the filing of an appropriate pleading, may declare the rights and legal relations of an interested party seeking the declaration, whether or not further relief is or could be sought."8 Though a superior court "may" issue declaratory relief, the superior court may only exercise this discretion in a "case of ... actual controversy."9 The statute's reference to an "actual controversy" encompasses considerations of standing, mootness, and ripeness.10 As we have recently recognized, this court is the ultimate arbiter of such issues and we review de novo a superior court's ripeness determination.11 To the extent that our prior decisions have suggested that abuse of discretion review applies to both a superior court's finding of an actual controversy and a ruling that declaratory relief is in other respects appropriate,12 we now clarify those cases in light of our more recent decisions.

III. DISCUSSION

A. The Requirements of the Ripeness Doctrine.

The "actual controversy" limitation in Alaska's declaratory judgment act13 re-fleets a general constraint on the power of courts to resolve cases. Courts should decide cases only when a plaintiff has standing to sue and the case is ripe and not moot.14 Because ripeness constrains the power of courts to act, courts should not rely on an agreement by the parties that a case is ripe for decision.15 In its recent decision in Alos-ka Right to Life Political Action Committee v. Feldman,16 the Ninth Circuit Court of Appeals explained the basic requirement of ripeness: "While 'pure legal questions that require little factual development are more likely to be ripe, a party bringing a preen-forcement challenge must nonetheless present a 'concrete factual situation." 17 We have similarly recognized that a case is justi-ciable only if it has matured to a point that warrants decision.18 "[WJhile Alaska's stand*369ing rules are liberal this court should not issue advisory opinions or resolve abstract questions of law.19

The concept of ripeness can be explained in both abstract and practical formulations. The abstract formulation is that ripeness depends on "whether ... there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment."20 On a more practical level, our ripeness analysis fundamentally "balances the need for decision against the risks of decision." 21 We examine "the fitness of the issues for judicial decision" and "the hardship to the parties of withholding court consideration." 22

Under this formulation, varying degrees of concreteness might be deemed acceptable depending on the need for a judicial decision. Thus, in the context of free speech, a "court may adopt [a] somewhat relaxed approach to justiciability" because of the special consideration traditionally - afforded speech rights.23 Where a statute criminal izes conduct, threats of enforcement will support a pre-enforeement challenge if the threats are real and actually force the plaintiff to choose between forgoing the behavior and facing penalties.24

B. The Parties Face Little Hardship If Their Claims Are Not Resolved in a Hypothetical Setting.

Both the State and ACLU argue that the ACLU's pre-enforeement challenge is ripe because the threat of enforcing AS 11.71.060(a) forces plaintiffs to either change their behavior or face the risk of criminal liability. Neither party sets forth other hardships that might occur if we refrain from reaching the merits of this appeal.

We conclude that the risk of eriminal Hability argument rings hollow because the activities that the plaintiffs wish to engage in are already criminal under federal law. Thus, the plaintiffs do not have a strong claim of need for a pre-enforeement decision on the constitutionality of the amended statute because their current practices are and will remain illegal and expose them to a risk of criminal prosecution, regardless of any ruling this court might make.

1. The Federal - Controlled Substances - Act - criminalizes - the plaintiffs' personal, - residential consumption of marijuana and imposes penalties that exceed state sanctions.

As part of President Nixon's "War on Drugs," Congress passed the Comprehensive Drug Abuse Prevention and Control Act of 1970, also known as the Controlled Sub*370stances Act.25 Under this act, martjuana is classified as a Schedule I drug 26-a drug with a high potential for abuse, lack of any accepted medical use, and lack of accepted safety for use under medical supervision.27 The possession of marijuana in any quantity is a federal crime.28 By comparison, current Alaska law classifies marijuana as a Schedule VIA drug-a drug with the lowest degree of danger or probable danger to a person or the public.29

Unsurprisingly, the Controlled Substances Act treats possession and use of marijuana as a much more serious offense than Alaska law. The federal sanction for a first-time offender possessing any quantity of marijuana is a term of imprisonment of not more than one year and a fine of at least $1,000, or both.30 A person who knowingly possesses marijuana for personal use also faces a federal civil penalty of not more than $10,000.31 By comparison, under the amended Alaska statute the penalty for a first offense of possession in the home is, at most, a $500 fine with no jail time.32

Regardless of the outcome of this case, there is nothing that this court, or any other branch of the Alaska government, could do to affect the risk or severity of federal enforcement.33 The United States Supreme Court's recent 'decision in Gonzales v. Raich shows the continuing supremacy of the federal drug laws.34 In Raich, the Court upheld the Federal Controlled Substances Act even though it criminalized conduct that California's medical marijuana law legalized.35 As the facts of Raich demonstrate, the Federal Drug Enforcement Agency enforces the Controlled Substances Act without deference to state law or policies. Accordingly, both before and after our decision in Ravin, the risk of federal prosecution has threatened Alaskans' use of marijuana. And the risk of federal prose-ecution for marijuana possession-amplified by harsh federal penalties-remains a strong reality that the plaintiffs will face irrespective of any ruling we might make in this appeal.

2. The declarations of Jane Doe and Jane Roe neither suggest that the amended statute will affect their conduct nor that they will be the subjects of enforcement.

The ACLU's complaint for declaratory and injunctive relief suggests that fear of enforcement is the basis for ripeness. To support this position, Jane Doe and Jane Roe submitted declarations regarding their use of marijuana. Jane Doe declares that she uses marijuana for medicinal purposes, though she did not register as a medical marijuana user. Jane Roe declares that she uses marijuana to relieve stress.

Reading the declarations, we conclude that any incremental deterrence associated with AS 11.71.060, as opposed to the current federal drug laws, will not impact the plaintiffs.

*371Jane Doe does not aver that AS 11.71.060 will affect her use of marijuana. Rather she states that "(elven if the legislature makes marijuana illegal, I will continue to use and possess it in my home." Jane Doe thus does not seem deterred by the amended state statute. Jane Roe asserts her belief in a right to have small amounts of marijuana in her home, but explains "I don't want to go to jail." But Jane Roe's concern about incarceration is more real under federal law than under the amended state statute, since the latter only imposes a small monetary fine on first-time offenders. Thus the hardships asserted by both named plaintiffs do not require that we address the constitutionality of AS 11.71.060 at this time.

While the ACLU claims associational standing, it too did not allege any facts distinguishing the hardship its members faced before AS 11.71.060 was amended from the hardship its members faced after the statute was amended. The mere criminalization of marijuana simply echoes extant federal law.

We also note that the plaintiffs' fears of state criminal enforcement may be speculative and overstated. In Ravin we recognized that prosecutors and police departments generally are not interested in pursuing individuals who merely possess small quantities of marijuana in their home for personal use.36 Thus, to face prosecution, persons violating the amended statute would need to be in a situation where police have reason to suddenly enter their homes. Such a scenario bears similarities to City of Los Angeles v. Lyons, in which the United States Supreme Court rejected as speculative and not ripe a claim that Lyons would be subject to a police choke hold in the future.37 The Court noted that Lyons only faced this risk if he acted in a manner leading to an encounter with police and that, during the encounter, he resisted detention or failed to comply with police orders.38 The Court thus concluded, as we do in this case, that there would be little hardship to the plaintiff if the appeal were not decided in a hypothetical setting.

C. Decisional Risks Are Present .

As we have noted, in determining whether the ripeness element of the actual controversy requirement exists, we balance the asserted need for a decision against the risks of making a decision in an abstract context. In the above discussion we conclude that the "need" side of the scale has little or no weight. It follows that this case should be considered not ripe for decision if the normal risks associated with deciding hypothetical cases are present. We conclude that they are.

In Brause v. State, Department of Health & Social Services,39 we outlined some of the considerations on the "risks" side of the scale:

The central perception is that courts should not render decisions absent a genuine need to resolve a real dispute. Unnee-essary decisions dissipate judicial energies better conserved for litigants who have a real need for official assistance. As to the parties themselves, courts should not undertake the role of helpful counselors, since refusal to decide may itself be a healthy spur to inventive private or public . planning that alters the course of possible conduct so as to achieve the desired ends in less troubling or more desirable fashion. Defendants, moreover, should not be forced to bear the burdens of litigation without substantial justification, and in any event may find themselves unable to litigate intelligently if they are forced to *372grapple with hypothetical possibilities rather than immediate facts. Perhaps more important, decisions involve lawmaking. Courts worry that unnecessary lawmaking should be avoided, both as a. matter of defining the proper role of the judiciary in society and as a matter of reducing the risk that premature litigation will lead to ill-advised adjudication. These concerns translate into an approach that balances the need for decision against the risks of decision. The need to decide is a function of the probability and importance of the anticipated injury. The risks of decision are measured by the difficulty and sensitivity of the issues presented, and by the need for further factual development to aid decision.[40]

Several of these concerns are present in this case. |

1. Concrete facts may aid in the decision.

When statutes are found by a court to be unconstitutional, they may be found to be unconstitutional as applied or unconstitutional on their face. A holding of facial unconstitutionality generally means that there is no set of cireumstances under which the statute can be applied consistent with the requirements of the constitution.41 A holding that a statute is unconstitutional as applied simply means that under the facts of the case application of the statute is unconstitutional. Under other facts, however, the same statute may be applied without violating the constitution.

We discussed these distinctions in State, Department of Revenue, Child Support En-foreement Division v. Beans.42 At issue was the constitutionality of. a statute permitting the Child Support Enforcement Division to suspend the driver's licenses of people who are delinquent in child support payments. After noting the definition of facial unconstitutionality, we observed that if the statute

were applied so as to take away the license of an obligor who was unable to pay child support, if would be unconstitutional as applied in that case. At that point there would be no rational connection between the deprivation of the license and the State's goal of collecting child support.[43]

But we explained that substantive due process norms-requiring a statute to have a reasonable relationship to a legitimate governmental purpose-would be satisfied if the statute were applied to people who are capable of paying child support.44

Here the ACLU does not argue that AS 11.71.060 is unconstitutional in all cireum-stances. The amended statute applies to use or possession of marijuana anywhere, but the ACLU argues that only home possession or use is constitutionally protected. The statute applies to "a person," but the ACLU argues that only adult users and possessors are protected. The statute applies to possession for any purpose, but the ACLU argues that only possession for personal use is protected. We are thus not being asked to declare the amended statute facially unconstitutional, for it has many clearly constitutional applications, but to define by pre-determined categories 45 the cireumstances under which the statute may not operate.

But adjudication of an actual case, or several actual cases, might cast these categories in a different light. There may be cases where the conduct of a particular defendant is so closely connected to one or more of the health and safety goals underlying the amended statute that the statute could permissibly be applied, even if Ravin retains general vitality.

*373 Relatedly, when constitutional issues are raised, this court has a duty to . construe a statute, where reasonable, to avoid dangers of unconstitutionality.46 Rather than strike a statute down, we will employ a narrowing construction, if one is reasonably possible.47 The amended statute may be a candidate for narrowing constructions, A construction upholding the statute in cases directly involving the health and safety goals on which the statute is based might be developed. This case is necessarily about a narrowing construction of some sort since the amended statute is not unconstitutional in all its applications. The question is what narrowing constructions are appropriate. Allowing the normal processes of adjudication to take place may be of assistance in providing the answer.

We have recent experience underlining the potential problems with deciding the constitutionality of a statute in the absence of actual facts. In Evans ex rel. Kutch v. State we considered a broad facial challenge to many aspects of Alaska's tort reform legislation.48 In part of our opinion in that case we upheld a statute of limitations tolling provision for minors against an equal protection challenge.49 A few years later in Sands ex rel. Sands v. Green the same provision was challenged in a concrete case.50 In Sands we struck down the statute on due process grounds.51 In so ruling we observed:

That our Evans decision did not reach this particular constitutional issue merely reinforces the wisdom of the rule that courts should generally avoid deciding abstract cases. Evans involved a host of abstract facial challenges divorced from any factual context, and we warned at the time we decided Evans that future cases might require us to take a second look at the constitutionality of the statutory scheme.... But, given the abstract nature of Evans, it is not surprising that a concrete case involving a concrete factual see-nario has uncovered a previously unanswered question.[52]

In deciding here that our decision concerning the constitutionality of the amended statute could be aided by one or more concrete factual scenarios, we take counsel from Sands.

2. Other factors also counsel against an unnecessary ruling.

Beyond the assistance that the facts of concrete cases might lend to the ultimate resolution of the issue before us, some of the other risk factors mentioned in Brause are also present.53 The question before the court is, taken alone, a difficult one with reasonable arguments available to both sides. It is also a high-profile case in which the general public as well as the executive and legislative branches of government are interested. Further, sustaining the ACLU's position would necessarily require that we declare the amended statute unconstitutional in part. Due respect for the legislative branch of government requires that we exercise our duty to declare a statute unconstitutional only when squarely faced with the need to do so.

IV. CONCLUSION

We conclude that the actual controversy requirement of AS 22.10.020(g) has not been *374satisfied because this case is not ripe for decision. In striking the balance required by the ripeness doctrine, the risks of adjudicating the constitutionality of AS 11.71.060 in a hypothetical setting outweigh the negligible hardships that the plaintiffs will face if we do not decide this issue. On the "need for decision" side of the scale, plaintiffs' need is slight because their conduct, regardless. of how this court might rule, would still be criminal under federal statutes which impose much more severe penalties than the amended state statute. On the risk side of the scale, our concerns echo those that we expressed in Brouse:

Without more immediate facts it will be difficult to deal intelligently with the legal issues presented.... In order to grant relief ... [this] court would have to declare a statute unconstitutional. This is, of course, a power that courts possess. But it is not a power that should be exercised unnecessarily, for doing so can undermine public trust and confidence in the courts and be interpreted as an indication of lack of respect for the legislative and executive branches of government. Further, ruling on the constitutionality of a statute when the issues are not concretely framed increases the risk of erroneous decisions.[54]

In accordance with these views, the superi- or court's judgment in favor of the ACLU, Jane Doe, and Jane Roe, is VACATED and this appeal is DISMISSED.

CARPENETI, Justice, with whom WINFREE, Justice, joins, dissenting.