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Court Hears Pot-vs.-Privacy Pitches
RECRIMINALIZATION: ACLU seeks injunction; state backs recently enacted law.
Matt Volz | Anchorage Daily News | 07/06/2006

JUNEAU -- Attorneys for a civil liberties group argued Wednesday that a new state law recriminalizing marijuana usurps 30 years of Alaska Supreme Court right-to-privacy decisions and should be struck down.

Chief assistant attorney general Dean Guaneli countered that the law includes findings by the Legislature on the dangers of marijuana that were not considered when the court legalized possession of small amounts of the drug for personal use in the home.

Guaneli and the American Civil Liberties Union of Alaska presented their arguments to Juneau Superior Court Judge Patricia Collins, whose courtroom is the first stop in the constitutional challenge to the new law tightening Alaska's liberal marijuana policy.

Both sides are asking Collins for a summary judgment ruling in their favor. In addition, the ACLU wants Collins to issue an injunction blocking the new law while the case is being decided, and the attorney general's office has asked the judge to dismiss the case.

Collins said she expects to issue a written order on those motions by Monday.

The law, which took effect June 3, makes marijuana possession of 4 ounces or more a felony. Possession of 1 to 4 ounces is a misdemeanor punishable by up to a year in jail; less than 1 ounce is a misdemeanor punishable by up to 90 days in jail.

The new law does not affect medical marijuana patients who are on the state's registry.

The law goes against state Supreme Court rulings that date back to 1975, when the court decided that the right to privacy in the home took precedence over possession of small amounts of marijuana. Later court decisions set the legal limit a person can possess in the home at 4 ounces.

Guaneli said much has changed in the last 30 years, including the potency of marijuana, which the legislative findings document. As an example, he said the findings show marijuana consumption by pregnant women in Alaska exceeds the national average -- 2.9 percent of women in the nation smoke marijuana while pregnant, but 5.1 percent do in Alaska. The numbers are even higher for pregnant teens and women in rural areas, he said.

"The facts have changed. The facts involving marijuana are different now," Guaneli said.

The ACLU has argued that many of the findings included in the bill are disputed and the Legislature did not consider other evidence to include in its findings.

"The state has certainly made a lot of assertions, and the assertions they have made are not backed up by credible scientific evidence," said ACLU attorney Jason Brandeis.

But disputing the Legislature's findings is not the issue here, he said.

Attorney Alyse Bertenthal of the ACLU's National Drug Law Reform Project in Santa Cruz, Calif., focused her argument to the judge on the importance the Alaska Supreme Court placed on the constitutional right to privacy in its past decisions.

She said allowing this law to stand would set a precedent allowing the state to pass unconstitutional laws whenever the Legislature claims the facts surrounding a disputed issue have changed.

"Our constitutional rights would essentially exist in a twilight zone," Bertenthal said.

Bertenthal also said a Superior Court judge cannot overturn the decision of the Supreme Court, and if Collins does not grant summary judgment in favor of the ACLU, the judge should issue an injunction blocking the law until the Supreme Court can decide the case.

Guaneli said the Legislature determined the facts through its findings, and the court's role is to determine whether those facts establish legitimate state concerns and address those concerns in a "close and substantial way."

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