State v. American Civil Liberties Union , 2009 Alas. LEXIS 46 ( 2009 )

CARPENETI, Justice,

with whom WINFREE, Justice, joins, dissenting.

Alaska law on ripeness historically has kept the barriers to the courtroom low in order to favor access for Alaska's citizens to Alaska courts. In this, we have pointedly differed from our counterparts in the federal courts. Today's opinion, relying on federal law that we have previously declined to follow, retreats from that long-held stance. While that fact alone is troubling enough, today's opinion is made more problematic by its devaluation of the protections that the Alaska Constitution offers to the citizens of this state, its overstatement of the decisional risks of considering the appeal before us, and its rejection of the strong and united position of the parties before the court that we should decide this case. For these reasons, I believe that we should heed the requests of all parties-the State of Alaska as well as the Alaska citizens who bring the action-and decide this case now.

I. Today's Opinion Runs Counter to Long-Established Alaska Law.

Today's opinion begins by stating: "Under the ripeness doctrine, the constitutionality of a statute generally may not be challenged as an abstract proposition." In Alaska, however, we routinely accept and decide cases raising the constitutionality of statutes as an abstract proposition. We have done so in virtually every major constitutional case to come before us in recent years. We most recently did so in State v. Planned Parenthood of Alaska,¹ a case challenging the constitutionality of a statute creating eriminal penalties for doctors who perform abortions on minors without parental consent or judicial authorization. No plaintiff doctor had been prosecuted, but we had little difficulty reaching the merits.² In Alaskans for a Common Longuage, Inc. v. Krits,³ we decided the constitutionality of a statute requiring the government to use the English language in various cireumstances.⁴ - Plaintiffs, non-English speaking and bi-lingual Alaskans and government workers, had not been sued under the statute.⁵ That opinion did not even discuss ripeness. Indeed, illustrative of Alaska's lenient ripeness jurisprudence, of eighteen cases since 2001 that raised abstract constitutional issues, we reached the merits in seventeen, often without even discussing ripeness.⁶ In only one did we uphold a ripeness challenge.⁷

Why has this court consistently declined to use ripeness as a way to avoid deciding cases? - It is because of our deep-seated commitment to the idea that the doors of Alaska's courts should be open to its citizens to the greatest extent possible. As we said in Thomas v. Anchorage Equal Rights Commission,⁸-a case where we found the dispute to be ripe after the Ninth Cireuit had declined to hear it on ripeness grounds-"[r}ipeness is an aspect of standing, and we have often noted that Alaska's standing requirements are more lenient than their federal counterpart, since they favor ready access to a judicial forum."⁹ We interpret standing, and by extension ripeness, leniently in order to facilitate access to the courts:

"The basie idea ... is that an identifiable trifle is enough for standing to fight out a question of principle."¹⁰ Today's opinion relies on federal law,¹¹ forgetting our repeated statements that our approach to ripeness differs from the federal approach: "We have consistently found this difference [between the federal and Alaska approaches] to be important, emphasizing the need to follow our 'own unique ... jurisprudence if Alaska standing doctrine is to retain its quality of relative openness."¹² By ignoring Alaska's more open ripeness jurisprudence, today's opinion changes our law on standing dramatically and, in my view, for the worse. The court closes its doors where previously they were open.

II. In Assessing the Hardships the Parties Face if the Court Refuses To Decide this Case, Today's Opinion Devalues Alaska Constitutional Protections and Incorrectly Assumes that the Likelihood of Federal Pros- - ecution Is Equal to the Likelihood of State Prosecution.

A. Devaluation of Alaska constitutional protections

In examining the first question under the ripeness doctrine-the hardships that the parties face if the case is not decided in advance of a criminal prosecution-today's opinion concludes that "the risk of criminal liability argument rings hollow" because marijuana possession is already criminal under federal law. This argument both devalues the significance of Alaska constitutional protections and misapprehends the likelihood of federal prosecution of violation of federal marijuana laws in Alaska.

The risk of a possibly unconstitutional prosecution under Alaska law is independent of any possible federal prosecution. The state government and the federal govern- . ment are independent sovereigns, and have the power to punish the same conduct independently of each other.¹³ Thus, even if the federal government prosecutes Jane Doe for her possession of marijuana, Alaska may prosecute her as well under AS 11.71.060.¹⁴ If the state prosecution is unconstitutional, her injury from that prosecution does not change even if she is also prosecuted by the federal government. It is no answer to the shame, expense, and embarrassment of a possibly unconstitutional state prosecution that she also risks federal prosecution.

B. Incorrect assumption regarding risk of federal prosecution

In addition, and perhaps even more important, the vastly smaller danger of federal prosecution (compared to state prosecution) must be considered. As a practical matter, the risk of federal prosecution for simple possession of marijuana in Alaska appears to be virtually nil. In terms of actual prosecutions, for example, the United States brought zero misdemeanor drug possession cases in Alaska in fiscal year 2005¹⁵ and less than ten cases each year in fiscal year 2006 and fiscal year 2007.¹⁶ During the three-year period ending December 81, 2008, the state filed approximately 3,166 cases ¹⁷ alleging violation of AS 11.71.060 (Misconduct Involving a Controlled Substance in the Sixth Degree-possession of marijuana). These differences in levels of prosecution are not surprising, given that enforcing Alaska's drug laws is a high priority of both state and local law enforcement in Alaska,¹⁸ while the FBI's "Investigative Priorities" for the Alaska Division does not even list drug enforcement among ten enumerated priorities.¹⁹ Finally, there are only approximately fifty federal agents regularly assigned in Alaska in three locations,²⁰ whereas state and municipal commissioned officers-who are charged with enforcing state drug laws-number - approximately 1,200 ²¹ spread over the entire state, in approximately ninety-six locations.²² In pointing to the possibility of federal prosecution as a basis for discounting the difficult choice that both the state and the plaintiffs so eloquently elucidate, today's opinion ignores this reality: The danger of federal prosecution for simple marijuana possession in Alaska is vanishingly low, whereas the danger of state prosecution for simple possession is real and substantially higher.

In this regard, today's opinion misreads Ravin v. State²³ in stating that "plaintiffs' fears may be speculative and overstated."²⁴ (And, indeed, the state has expressed identical fears. See infra at pages 381-82.) Today's opinion notes that in 1975, when Ravin was decided, most police departments generally were not interested in pursuing individuals solely for possession in the home of small amounts of marijuana for personal use.²⁵ But the language quoted from Ravin-"[sltatisties indicate that few arrests for simple possession occur in the home except when other crimes are simultaneously being investigated" ²⁶-illustrates why the presence of the statute at issue in this case poses such a difficult choice for persons such as plaintiffs. Consider the individual who comes home one evening to find a window broken in his home and the door slightly ajar. The individual knows that he left a small container of marijuana in the open on his coffee table. He must now decide whether he should call the police and expose himself to prosecution for possession of less than one ounce of marijuana in his home, or enter the house by himself and risk encountering an intruder. Or consider a wife who has retreated to her bedroom after an altercation with her husband in which he hit her. She knows that there is marijuana and paraphernalia in the open in the kitchen. She must decide whether to call the police and report the domestic violence incident, and thereby expose herself to possible prosecution for possession of marijuana, or face her abuser again by herself.

In short, persons currently engaging in activities that this court has previously declared protected under the Alaska Constitution will be chilled in the exercise of those activities by the very real risk of a state prosecution without the opportunity-which all sides to this dispute say they should have-of testing the statute in advance. And, because state and local law enforcement authorities are the ones that Alaskans have recourse to in the event of emergency, the risk of discovery of those possibly protected activities pertains to state, not federal, personnel.

III. Today's Opinion Overstates the Risks of Deciding.

After incorrectly concluding that there is little need for a decision in advance of enforcement of the statute, the court turns to the risks of decision.²⁷ It then concludes-contrary to the positions of all the parties in this case-that the "normal risks associated with deciding hypothetical cases are present." ²⁸ But the opinion greatly exaggerates this risk. Indeed, we have previously decided a case in virtually identical cireumstances raising identical issues: We noted in Ravin, "[the record does not disclose any facts as to the situs of Ravin's arrest and his alleged possession of marijuana."²⁹ Ravin is the case that the current legislation aims to overturn. It is difficult to understand how the current legislation cannot be properly analyzed in the absence of specific facts while, at the same time, the entire controversy before us arose in the absence of specific facts.

Today's opinion quotes extensively from Brause v. State, Department of Health & Social Services,³⁰ the only case since 2000 in which we declined on ripeness grounds to reach the merits of a constitutional dispute. The plaintiffs in Brause, a same-sex couple who were unable to marry, challenged AS 25.05.013(b), which provided that a "same-sex relationship may not be recognized by the state as being entitled to the benefits of marriage." Plaintiffs attacked this statute generally, but "lacking in [the plaintiffs'] brief is any assertion that they have been or ... will be denied rights that are available to married partners."³¹ Brause is distinguishable from today's case in many ways.

Unlike the present case, Brouse truly lacked a sufficient factual setting in which to frame the dispute. The plaintiffs in Brause challenged the constitutionality of a statute prohibiting marriage of same-sex partners. They claimed the statute denied them some 115 rights afforded to married couples, but never challenged the denial of any specific benefit to them. We noted: "[Llacking in Brause and Dugan's brief is any assertion that they have been or in their circumstances that they will be denied rights that are available to married partners."³² Unlike the Brause plaintiffs, the plaintiffs before us now identify a discreet right denied them by operation of the statute.

In the present case, the constitutional issue is sufficiently framed: (1) adult plaintiffs propose to use (2) small amounts of marijuana (3) in their homes. No further facts are needed: Waiting for an individual to be arrested and charged with possession of a small amount of marijuana in his or her home would not provide us with any necessary additional facts. And unlike the present case, the state in Brause argued that the case was not ripe. Today's opinion quotes Brause to the effect that "[djefendants ... should not be forced to bear the burdens of litigation without substantial justification"; ³³ but the defendant in this case seeks to "bear the burdens of litigation"-the state vigorously asserts that we should hear this case because it is ripe. In Brause, it was unclear even which constitutional right(s) the plaintiffs claimed had been violated,³⁴ whereas today the claim is clear: The new statute violates the right to privacy set out in Ravin. . And the language from Brause relied on in today's opinion is not applicable to our case:

Brause points out that courts should not render decisions absent a genuine need to resolve an actual dispute. As shown above, there is an actual dispute here about the constitutionality of AS 11.71.060 that is directly affecting the plaintiffs.

Finally, unlike Brouse, this is not a case of first impression. We first addressed this issue over thirty years ago, setting out the standard for constitutional challenges to drug possession laws. Since we decided Ravin, we and the court of appeals have applied the standard for constitutional challenges to drug and alcohol possession statutes at least a dozen times.³⁵ In Ravin, we even laid out the manner in which a subsequent legislature might take a second look at the issue in the event of changes in scientific or other information.³⁶ And here, the legislature and all of the parties have endeavored to follow the path we set out in Ravin. All of the parties now urge us to take the case.³⁷ In all of these ways, Brause is different from the present case. In sum, Browse offers little support for the proposition that this case is not ripe.

The court next turns to two specific reasons in support of its claim that the risks of decision outweigh the need for decision. Neither bears up under scrutiny. First, today's opinion argues that concrete facts may aid in making a decision. The opinion claims that because the plaintiffs do not maintain that the statute is unconstitutional in all circumstances-plaintiffs claim it is unconstitutional only insofar as it proscribes the possession of a small amount of marijuana for personal use by an adult in the adult's home³⁸ -we should not entertain the current challenge because adjudication of an actual case "might cast these categories in a different light.³⁹ That possibility does not justify the conclusion that the case is not ripe: It exists in every pre-enforeement challenge to the constitutionality of a statute. Here, the state needs to know whether the new statute is constitutional or whether, conversely, Ra-vin retains vitality.⁴⁰ The plaintiffs need to have the same question answered, or face the difficult and unfair choice of foregoing possibly constitutionally protected activity or risking criminal penalties. As the state makes clear in its briefing to this court:

Because the lack of factual development in this case has no bearing on the legal principles that control the constitutionality of the statutes, further factual development will not "significantly advance [the court's] ability to deal with the legal issues presented." No set of facts arising from future implementation of this statute will make the constitutional challenge any riper tham it is now.[⁴¹]

In an effort to bolster the argument that the risks of deciding are high, today's opinion notes our decision in Evans ex rel. Kutch v. State⁴² and the subsequent need to reverse a portion of the Evans decision in Sands ex rel. Sands v. Green.⁴³ But the experience of these cases lends no support to the argument against ripeness. The constitutional challenge in Evans was to an extremely wide-ranging set of legislative enactments under the broad rubric of "tort reform." ⁴⁴ The current case, in comparison, is much more limited: Plaintiffs seek to reaffirm this court's holding in Ravin that an adult in Alaska has the constitutional right to possess for personal use a small amount of marijuana in his or her home. The Evans/Sands experience does not suggest that a tightly-focused constitutional issue that all parties want and need to have resolved should remain undecided. And while today's opinion "take[s] counsel from Sands,"⁴⁵ it seems highly unlikely that today's court really believes that it should not have decided Evans, a decision which; for better or worse,⁴⁶ went a long way ⁴⁷ toward resolving challenges to a major overhaul of Alaska's tort system. ‘

Second, today's opinion concludes that the matter is not ripe partly. because the case is "a high-profile case in which the general public as well as the executive and legislative branches of government are interested." ⁴⁸ But these factors do not counsel dismissal on ripeness grounds. To the contrary, the high-profile nature of the case argues in favor of reaching and deciding the merits. As the Supreme Court of California has held, "the ripeness requirement does not prevent us from resolving a concrete dispute if the consequence of a deferred decision will be lingering uncertainty in the law, especially when there is widespread public interest in the answer to a particular legal question." ⁴⁹

A related concern strongly counsels in favor of finding that the case is ripe: In Ravin we noted that "[rlesearch is continuing extensively," ⁵⁰ suggesting the possibility that this constitutional issue might have to be reexamined if the scientific bases of the opinion were to be undereut by changes in science's understanding of the harmfulness of marijuana or by changes in the chemical makeup of the drug being sold or by a similar change. But we also noted that "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." ⁵¹ It is clear that the legislature, in holding the hearings it did in the course of adopting the current legislation, attempted to comply with the implied directive of this court. 'No less than the executive-which has argued strongly in favor of our deciding this case-it can be expected that the legislature would also favor a decigion rather than a ripeness dismissal.

IV. All Parties Have Asked Us To Decide this Case.

We have seen that, contrary to the suggestion in today's opinion, our normal practice is to decide even abstract challenges to statutes. , That is so even though, in many such "facial challenges," the party defending the statute will argue that the case is not ripe and that we should wait for a case applying the statute to a specific set of facts.⁵² But in today's case, both parties have asked-indeed, implored-us to decide this case now.

The state, which might have been expected to argue that the case is not ripe,⁵³ instead strongly argues that the case is ripe and should be decided now:

This case is ripe because the need for a decision is compelling and the risks are few. Without a decision, the individual plaintiffs who have challenged the constitutionality of AS 11.71.060 face the choice of changing their current conduct-previously authorized by a constitutional decision of this Court-or risk criminal liability if they fail to comply with the statute. Further, deciding the statute's constitutionality at this pre-enforeement stage poses little risk of an imprudent or unnecessary decision, because the statute's validity is governed by general principles rather than by circumstances particular to an individual's conduct,[⁵⁴]

As the state notes, requiring an actual prosecution before hearing a case "may place the hapless plaintiff between the Scylla of intentionally flouting state law and the Charybdis of foregoing what he believes to be constitutionally protected activity." ⁵⁵ Further:

When the prohibited act is a crime, conditioning judicial review on the existence of an actual prosecution burdens a specific individual with a challenge that could be prohibitively expensive.®"* 27! In addition, a criminal prosecution could be damaging to a person's job and personal relationships. A person in this situation should not be required to sacrifice his social standing in order to challenge a new criminal law as invalid. When the sanction is criminal penalties, a person should be allowed to choose early adjudication.[⁵⁶]

Inote 271 A practical consideration that should not be overlooked is that the plaintiffs'in this case have had the resources of the ACLU, including several attorneys from the ACLU's Drug Law Reform Pro-jeet, based in California, each of whom had significant experience litigating legal issues in drug cases. The five ACLU attorneys who worked on this case had experience ranging from three to nineteen years (average: nine years), and documented more than 520 hours of attorney time spent on the superior court case alone. Many additional hours of attorney work at the superi- or court level by the ACLU Drug Law Reform Project on this case were not accounted for.

The plaintiffs echo the state's argument that this case is ripe for decision. They too highlight the unfair choice that they face-forego a previously recognized privacy right or risk prosecution under a law of questioned constitutionality: "[A] constitutional challenge to a criminal statute is ripe where plaintiffs must choose between risking arrest or suffering deprivations of their constitutional rights if they do not alter their conduct." ⁵⁷

V. Conclusion ,

Our case law strongly supports the proposition that this controversy is ripe for resolution. The legislature has done its part to bring this long-running dispute back to the courts to be resolved. The executive has weighed in, strongly requesting that we decide the dispute. The plaintiffs sued to get an answer. The issue is clear; Does the Alaska Constitution prohibit the current legislation to the extent that it eriminalizes possession of a small amount of marijuana in an adult's home for personal use? No other facts need be developed in order for the parties to brief the issue-which they have done exceedingly well-and for the courts to decide it. There is a pointed need-on the part of the state as well as the plaintiffs-for a decision,; and no harm would result from our rendering one. In these cireumstances, I must respectfully dissent from the court's refusal, on ripeness grounds, to decide this case.

1 . 171 P.3d 577 (Alaska 2007) (Planned Parent hood 11).

2 , Id. at 580; see also State v. Planned Parenthood of Alaska, 35 P.3d 30, 34 (Alaska 2001) (Planned Parenthood I ).

3 . 170 P.3d 183 (Alaska 2007).

4 . Id. at 187.

5 . Id. at 187-88.

6 . - In addition to Planned Parenthood II and Alaskans for a Common Language, see, eg., Alaska Pub. Interest Research Group v. State, 167 P.3d 27 (Alaska 2007) (deciding facial challenge by public interest group to constitutionality of statute creating Alaska Workers' Compensation Appeals Commission without even discussing ripeness); State, Dep't of Fish & Game v. Manning, 161 P.3d 1215 (Alaska 2007) (deciding facial challenge to constitutionality of statute establishing criteria for subsistence hunting permit; hunter had been denied permit but court addressed facial challenge even though he might have had "as-applied" challenge); State v. Native Village of Nunapitchuk, 156 P.3d 389 (Alaska 2007) (deciding facial challenge to constitutionality of statute awarding attorney's fees in public interest cases without even discussing ripeness); City of Skagway v. Robertson, 143 P.3d 965 (Alaska 2006) (deciding facial challenge, without discussing ripeness, to city ordinance limiting in-person solicitation by plaintiffs who owned businesses that used in-person solicitation, although they had not yet been prosecuted or threatened with prosecution); Interior Cabaret, Hotel, Rest. & Retailers Ass'n v. Fairbanks N. Star Borough, 135 P.3d 1000 (Alaska 2006) (deciding, without discussing ripeness, facial challenge to constitutionality of proposed alcohol tax by plaintiffs who sold alcohol but on whom tax had not yet been assessed); Grunert v. State, 109 P.3d 924 (Alaska 2005) (deciding, without discussing ripeness, facial challenge to constitutionality of regulation creating cooperative fishery and allocating salmon quota to fishery brought by fishers who chose not to join cooperative); Thomas v. Anchorage Equal Rights Comm'n, 102 P.3d 937 (Alaska 2004) (deciding constitutionality of statute prohibiting landlord discrimination against unmarried tenants brought by landlords who had not yet been prosecuted under the statute; holding landlords' claims ripe, although Ninth Circuit had previously held them unripe); Treacy v. Municipality of Anchorage, 91 P.3d 252 (Alaska 2004) (deciding facial challenge to constitutionality of municipal curfew on minors; even though minors had been arrested, court evaluated statute on its face without using specific facts of arrests); Myers v. Alaska Hous. Fin. Corp., 68 P.3d 386 (Alaska 2003) (deciding facial challenge to constitutionality of statute selling right to future income from tobacco settlements and using sale proceeds for rural schools); Evans ex rel. Kutch v. State, 56 P.3d 1046 (Alaska 2002) (deciding facial challenge to constitutionality - of , tort reform - legislation brought by "allegedly injured persons who have filed or plan to file tort actions" over state's objection that claims were unripe); State v. Planned Parenthood of Alaska (Planned Parenthood I), 35 P.3d 30 (Alaska 2001) (deciding facial constitutional challenge brought by doctors and abortion provider to statute criminalizing performance of abortion for minor unless parental consent or judicial authorization obtained); Sampson v. State, 31 P.3d4 88 (Alaska 2001) (deciding facial challenge to constitutionality of manslaughter statute prohibiting assisted suicide brought by terminally ill patients; no doctors had yet been prosecuted for assisting suicide); State v. Planned Parenthood, 28 P.3d 904 (Alaska 2001) (deciding facial challenge to constitutionality of regulation denying funding for medically necessary abortions brought by abortion provider, without discussing whether or not provider's patients had yet been denied funding under statute); Anchorage Police Dep't Employees Ass'n v. Municipality of Anchorage, 24 P.3d 547 (Alaska 2001) (deciding facial challenge to constitutionality of city policy subjecting public safety employees to random drug tests brought by municipal employees, none of whom had yet been tested).

Even removing the cases in which the challenged statute did not regulate conduct or grant or deny a benefit-Alaska Pub. Interest Research Group, Grunert, and Myers-it remains that in the vast majority of abstract constitutional challenges, this court has eschewed holding the case not ripe and has decided the case.

And in the cases that are most directly analogous to our case-pre-enforcement facial challenges to criminal statutes (Planned Parenthood I, Planned Parenthood II, City of Skagway, Thomas, and Sampson)-we have never dismissed on ripeness grounds, instead deciding every case on its merits.

7 . Brause v. State, Dep't of Health & Soc. Servs., 21 P.3d 357, 358-61 (Alaska 2001) (declining to address broad constitutional challenge to statute prohibiting same-sex marriage brought by same-sex couple).

8 . 102 P.3d 937.

9 . - Id. at 942.

10 . - Planned Parenthood I, 35 P.3d at 34 (quoting Wagstaff v. Superior Court, Family Court Div., 535 P.2d 1220, 1225 & n. 7 (Alaska 1975)).

11 . See Opinion at 368.

12 . Thomas, 102 P.3d at 942 (quoting Bowers Office Prods., Inc. v. Univ. of Alaska, 755 P.2d 1095, 1097 n. 5 (Alaska 1988)).

13 . See Booth v. State, 903 P.2d 1079, 1085 (Alaska App.1995) ("[Ilf a person commits a crime that is prohibited by both federal and state law, both the federal government and the state government can separately prosecute the person for that crime."). Previously AS 12.20.010 prevented the state from prosecuting conduct already prosecuted by the federal government, but the legislature repealed this law last session. See Ch. 75, § 40, SLA 2008.

14 . The state is clear that its position "poses a sufficient threat to the individual plaintiffs to render the dispute live." State's Supplemental Memorandum on Ripeness at 5, State of Alaska v. Am. Civil Liberties Union of Alaska, No. S-12370 (Alaska July 15, 2008). It notes that it "has never disclaimed a general intent to prosecute the possession of a small amount of marijuana in the home." (Fd.) (The state also notes that, "in the spirit of conforming to the rule of law, the Attorney General has advised all Alaska law enforcement agencies not to change their current marijuana enforcement policies until this case is resolved." (Id.)).

15 . Bureau of Justice Statistics, Federal Justice Statistics Resources Center, FY 2005, Defendants Charged in Criminal Cases, Alaska, hittp://fjsrc. urban.org (follow "Defendants charged in criminal cases" hyperlink, select year, select "filing offense," select "Drug possession-misdemean- or," select "Add Column," select "U.S. Federal Judicial District," select "Alaska," select "Display as: HIML") (last visited Feb. 25, 2009).

16 . Bureau of Justice Statistics, Federal Justice Statistics Resources Center, FY 2006 Defendants Charged in Criminal Cases, Alaska, FY 2007, Defendants Charged in Criminal Cases, Alaska, http://fjsre.urban.org {follow Defendants charged in criminal cases'" hyperlink, select year, select "filing offense," select "Drug possession-misdemeanor," select "Add Column," select "U.S. Federal Judicial District," select "Alaska," select "Display as: HTML") (last visited Feb. 25, 2009). An explanatory note for FY 2006 and FY 2007 states: "Cell contains at least one case but fewer than 10 cases. The exact value has been withheld to prevent to deductive disclosure of personal identities." Federal crime statistics that distinguish between misdemeanor marijuana possession (violation of 21 U.S.C. § 844(a) (possession of marijuana)) and misdemeanor possession of other drugs are not available. Thus, these numbers most likely overstate the number of federal misdemeanor marijuana cases.

17 . - Compilation from Alaska Court System Court-View data and Rural User Group courts (run Feb. 20, 2009).

18 . See, eg., Alaska State Troopers, Alaska Bureau of Alcohol and Drug Enforcement Mission Statement, - http://www.dps.state.ak.us/ast/abade (last visited Feb. 25, 2009); Municipality of Anchorage, Alaska, Anchorage Police Department, Drug Information (drug tip hotline), http://www. muni.org/apd2/drugs.cfm (last visited Feb. 25, 2009); Fairbanks Police Department, About the Department (drug investigator and detective positions), http://ci.fairbanks.ak.us/departments/ police/about.html (last visited Feb. 22, 2009).

19 . These priorities are, in order: (1) protecting the United States from terrorist attack; (2) protecting this country from foreign intelligence operations and espionage; (3) protecting this country from cyber-based attacks and high-technology crimes; (4) combating public corruption; (5) protecting civil rights; (6) combating transnational and national criminal organizations and enterprises; (7) combating major white-collar crime; (8) combating significant violent crime; (9) supporting federal, state, local, and international partners; and (10) upgrading technology to succeed in the FBI mission. FBI Alaska, Investigative Priorities of the Alaska Division, http://anchorage.{bi.gov/investigative.htral _ (last visited Feb. 22, 2009). The investigative priorities of the FBI appear to mirror the prosecutorial priorities of the United States Attorney's Office for the District of Alaska. The homepage of the Criminal Division of that office notes: "The Criminal Division prosecutes mainly felony offenses. An active misdemeanor docket does exist, however, and consists of the prosecution of minor offenses occurring in federal parks or other federal enclaves." The United States Attorney's Office, District of Alaska, Criminal Division, http://www.usdoj.gov/usao/ak/criminal/index. html (last visited Feb. 26, 2009) (emphasis added). Prosecutions of persons in their homes for misdemeanor marijuana possession would appear not to fall within the described activities.

20 . FBI Alaska, Message from the Special Agent in Charge, http://anchorage.fbi.gov/sac.html (last visited Feb. 26, 2009).

21 . - COPS Funds in Alaska, 21 Araska Justice Forum 3(2005), available at http://justice.uaa.alaska.edu/ forum/21/4winter2005/214winter05.pdf. (COPS is an acronym for the federal Office of Community Oriented Policing Services.) ("According to the Alaska Police Standards [Council], at the end of February 2005, there were 1190 certified sworn officers in Alaska.").

22 . See id. at 366.

23 . 537 P.2d 494 (Alaska 1975).

24 . Opinion at 371.

25 . Id.

26 . Id. n. 36 (quoting Ravin, 537 P.2d at 511 n. 70) (emphasis added).

27 . Opinion at 371.

28 . Id.

29 . 537 P.2d at 513 (emphasis added).

30 . 21 P.3d 357 (Alaska 2001).

31 . Id. at 360.

32 . Id.

33 . Opinion at 371.

34 . 21 P.3d at 360 (noting that plaintiffs claimed that challenged statute denied them "at least 115 separate rights" and concluding that, "[gliven the level of abstraction of this case as presented," dismissal for lack of ripeness was appropriate {internal quotation marks omitted)).

35 . See, eg., State v. Erickson, 574 P.2d 1, 12 (Alaska 1978); Brown v. State, 565 P.2d 179, 180 (Alaska 1977); Belgarde v. State, 543 P.2d 206 (Alaska 1975); Garhart v. State, 147 P.3d 746, 750-51 (Alaska App.2006), Hotrum v. State, 130 P.3d 965, 967, 969-70 (Alaska App.2006); Noy v. State, 83 P.3d 545 (Alaska App.2003); Westbrook v. State, 2003 WL 1732398 (Alaska App.2003); Noy v. State, 83 P.3d 538 (Alaska App.2003); Sorenson v. State, 2001 WL 830709 at *1 (Alaska App.2001); Walker v. State, 991 P.2d 799, 801-03 (Alaska App.1999); Cleland v. State, 759 P.2d 553, 556-58 (Alaska App.1988); Harrison v. State, 687 P.2d 332, 336-39 (Alaska App.1984).

36 . See infra at notes 50-51 and accompanying text.

37 . See infra at pp. 381-82.

38 . These circumstances are those set out in Ra-vin, 537 P.2d 494, 498-500 (Alaska 1975).

39 . Opinion at 381-82.

40 . Indeed, today's opinion may put enforcement of the new laws on hold indefinitely. Following enactment of the current law, the attorney general issued a law enforcement bulletin that contained the following:

HB 149 contains several key findings by the Legislature about problems caused by today's potent Alaska marijuana.... [Wle believe [these findings] will convince the Alaska Supreme Court that marijuana has changed dramatically since the landmark 1975 decision in Ravin v. State.

But press reports are somewhat misleading in saying that the new laws "re-criminalize" possession of smaller amounts of marijuana by adults in private. That's not entirely accurate. The new laws do not alter the decisions by the Alaska appellate courts that possession of small amounts by adults in homes is constitutionally protected (Ravin), that the amount of marijuana covered by Ravin is up to four ounces (Noy ).

The state will vigorously litigate all these legal issues because it's important that the courts overrule these prior decisions. The Legislature's findings about marijuana set the stage for that to happen, but they don't do it automatically. We live under the rule of law, and full implementation of the marijuana laws is ultimately up to the courts. Therefore, ... until you are advised differently by the District Attorney in your region, there is no basis for changing law enforcement policies for the investigation of non-public possession of less than four ounces of marijuana by adults. Attorney General's Enforcement Bulletin, Alaska Dep't of Law, New Marijuana Laws (May 12, 2006) (emphasis in original).

41 . State's Supplemental Memorandum on Ripeness, supra n. 14, at 12-13 (quoting Nat'l Park Hospitality Ass'n v. Dep't of Interior, 538 U.S. 803, 812, 123 S.Ct. 2026, 155 LEd.2d 1017 (2003) (emphasis added)).

42 . 56 P.3d 1046 (Alaska 2002).

43 . 156 P.3d 1130 (Alaska 2007).

44 . The "many new tort law provisions" in the new act included:

caps on noneconomic and punitive damages, a requirement that half of all punitive damage awards be paid into the state treasury, a ten-year "statute of repose," a modified tolling procedure for the statute of limitations as applied to minors, comparative allocation of fault between parties and non-parties, a revised offer of judgment procedure, and partial immunity for hospitals from vicarious liability for some physicians' actions. Evans, 56 P.3d at 1048.

45 . Opinion at 372-73.

46 . The decision was from an equally divided court, and prompted separate dissents. Id. at 1070 (Bryner, J., dissenting in part); id. at 1079 (Carpeneti, J., dissenting in part).

47 . Because Evans was the product of an evenly-divided court, it was necessary for the court to decide Anderson v. Cent. Bering Sea Fishermen's Ass'n, 78 P.3d 710 (Alaska 2003), which resulted in another evenly-divided court, and Reust v. Alaska Petroleum Contractors, Inc., 127 P.3d 807 (Alaska 2005), a 3-2 decision, before the constitutionality of most of the legislature's tort reform efforts was finally resolved. But each later case built upon the court's holdings in Evans, and each advanced the inquiry.

48 . Opinion at 372-73.

49 . Hunt v. Superior Court, 21 CalAth 984, 90 Cal.Rptr.2d 236, 987 P.2d 705, 716 (1999) (citing Pac. Legal Found. v. Cal. Coastal Comm'n, 33 Cal.3d 158, 188 CalRptr. 104, 655 P.2d 306, 313-14 (Cal.1982)) (emphasis added).

50 . Ravin v. State, 537 P.2d 494, 510 (Alaska 1975). ©

51 . Id. at 511.

52 . See, eg., Thomas v. Anchorage Equal Rights Comm'n, 102 P.3d 937, 942 (Alaska 2004); Evans ex rel. Kutch v. State, 56 P.3d 1046, 1080 n. 6 (Alaska 2002); Brause v. State, Dep't of Health & Soc. Servs., 21 P.3d 357, 360 (Alaska 2001).

53 . Indeed, in the State's Supplemental Memorandum on Ripeness, the state acknowledged that it "generally ... is an ardent advocate for the position that the Court should not consider constitutional challenges without concrete facts," but went on to say that "the present challenge to AS 11.71.060 is uniquely suited to pre-enforcement adjudication." State's Supplemental Memorandum on Ripeness at 12, supra n. 14.

54 . Id. at 2 (emphasis added).

55 . Id. at 6 (quoting Steffel v. Thompson, 415 U.S. 452, 462, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974)).

56 . Id. at 8-9 (citations omitted).

57 . Appellees' Supplemental Memorandum Regarding Ripeness at 1, State of Alaska v. Am. Civil Liberties Union of Alaska, No. S-12370 (Alaska July 15, 2008).