POT RULING

No surprise: 1990 ban is invalid Surprise: APD will ignore ruling

The state Court of Appeals made headlines last week with its ruling in a
marijuana case. The justices said the right of privacy in Alaska's
Constitution gives adult Alaskans the right to possess a small amount of
marijuana for personal use in their own homes.

The ruling shouldn't be a surprise. The Alaska Supreme Court has never
reversed its ruling in Ravin v. State, a 1975 case that established a
constitutional right to possess up to four ounces of marijuana in the
privacy of one's own home.

What is surprising is the very different way state troopers and Anchorage
police reacted to the ruling. Troopers will obey it and stop pursuing cases
under the four-ounce threshold. APD plans to overlook the ruling. It will
try to develop other theories that allow it to pursue these small-scale
possession cases, even though the "crime" being prosecuted contradicts the
privacy rights enshrined in the Alaska Constitution.

APD's reaction is ill-advised, even reckless. The department may not like
what the appeals court did, but until a higher court says otherwise, the
appeals court ruling is the law that governs Alaska courts and Alaska law
enforcement.

It's true, as APD might point out, that all marijuana possession violates
federal law. If they are so inclined, the feds can prosecute marijuana
possession cases that do not violate Alaska law.

But that is a decision for the feds. If they want to devote law enforcement
agents, prosecutors, public defenders, courts and prisons to small-time
marijuana possession cases, that's their prerogative. Alaska courts cannot
stop them. But APD is a law enforcement agency governed by Alaska law, and
the courts have ruled Alaska law says adults possessing less than four
ounces of pot in their own home are not committing a crime. It is courts,
not cops, who are empowered to interpret the law.

The issue here goes far beyond what may happen to an adult who has less than
four ounces of pot in his home. No one's rights are safe if a law
enforcement agency refuses to respect a court ruling protecting citizens'
constitutional rights.

The 1990 voter initiative to recriminalize marijuana possession used to give
APD's approach to pot cases some legitimacy, but no more. As the appeals
court noted, a voter initiative cannot eliminate a right that is grounded in
the Alaska Constitution.

It matters not whether the outright ban on marijuana was passed by voters or
the Legislature. Either way, a statute cannot change the state's
constitution as interpreted by the state Supreme Court. It's more difficult
than that to revoke a constitutional right -- as it should be.

There are two ways marijuana prohibitionists could have their way at the
state level and revoke this particular constitutional right. One is to pass
an amendment to the Alaska Constitution. That requires a two-thirds vote in
both the state House and the state Senate, and approval by a majority of
Alaska voters. The other way is to appeal this case, as the state plans to
do, and hope the Alaska Supreme Court overturns its 1975 ruling.

Getting the court to do that might be difficult. In the 1975 case, the state
was unable to show that the harm of home marijuana use by adults justified
the invasion of privacy needed to enforce prohibition. Marijuana opponents
say that conclusion ought to be revisited. They point to information showing
that, these days, the drug is more potent and therefore more harmful than it
was in the 1970s.

The appeals court ruling, meanwhile, shapes Alaska law on the subject.
Unless and until the Supreme Court reverses itself or the Alaska
Constitution is amended, law enforcement agencies should follow it.

BOTTOM LINE: Neither a voter initiative, nor a law passed by the
Legislature, nor a recalcitrant local police force can repeal the
constitutional right of privacy.