Pubdate: Thu, 30 Oct 2014
Source: Alaska Dispatch News (AK)
Copyright: 2014 Alaska Dispatch Publishing
Note: Anchorage Daily News until July '14
Author: Suzanna Caldwell


Last week, the Alaska Federation of Natives, the state's largest 
Native organization, passed a resolution opposing Ballot Measure 2, 
which would legalize and tax recreational marijuana. AFN cited 
numerous concerns in passing the resolution, including the issue of 
local control, a contentious point in the debate over whether to 
legalize pot, and one not unique to Alaska, though it plays perhaps a 
more significant role here than elsewhere.

The opposition wasn't a surprise. Native organizations -- including 
numerous Alaska Native corporations, tribes, and corporation CEOs -- 
have consistently opposed the measure.

In the resolution, passed Saturday, one of the 14 reasons for 
opposing the initiative includes issues related to local option -- 
the laws that currently limit alcohol in some communities around the 
state. The resolution says Ballot Measure 2, "regardless of community 
or village preferences," precludes the "local option ability of 
communities and villages to decide to be 'dry' on marijuana, 
marijuana concentrates, or marijuana infused edibles."

But problems inherently arise when it comes to creating "dry" 
marijuana communities. The Alaska Supreme Court found in 1975 the 
personal possession of small amounts of marijuana in the home was 
protected under Alaskans' right to privacy. Under the current 
interpretation of the law, "dry" marijuana communities are not 
possible, but that doesn't mean it couldn't be changed in future 
court proceedings.

The campaign opposing legalization -- Big Marijuana. Big Mistake. 
Vote No on 2 -- has drilled down the lack of a local option in the 
ballot measure language, expressing concerns rural communities 
already hampered by substance-abuse issues will have an even harder 
time regulating marijuana if the initiative passes.

"This (initiative) really takes it so much farther," said No campaign 
spokeswoman Kristina Woolston. "That's why this is such a big 
challenge with the way this is written, because you would have to 
make so many changes for them to have any semblance of local control 
like they do currently with alcohol."

The initiative has addressed part of the local option provisions. 
Currently, Ballot Measure 2 does allow some local control, including 
that communities can outlaw commercial grow or retail operations if 
they choose, impose additional fees, and limit the number of dispensaries.

But the provisions in Ballot Measure 2 do not align directly with 
Alaska's local option laws related to alcohol. Under state statutes, 
communities can elect to ban outright the sale, importation or 
possession of alcohol.

Reconciling Ravin

A contingency to ban marijuana in individual communities was not 
built into the initiative. Proponents of the measure say that was 
intentional, since any attempt to limit personal possession would be 
struck down as unconstitutional.

That's because of the Ravin decision, a 1975 Alaska Supreme Court 
ruling that protects the possession of a small amount of marijuana in 
the home. Part of the reasoning for that decision was the court found 
marijuana to be a safer substance than alcohol.

"It is, for instance, far more innocuous in terms of physiological 
and social damage than alcohol or tobacco," the court wrote in its decision.

In contrast, when Alaska's local option laws were challenged in 1984, 
the Alaska Court of Appeals found there was a compelling interest to 
limit personal possession of alcohol, since "(t)he threat posed to 
society by widespread alcohol use is enormous," the court wrote in 
its Harrison v. State ruling.

The Ravin ruling was narrow, according to UAA Justice Center 
professor Jason Brandeis. That decision did not extend to other 
issues related to marijuana -- including transportation or purchase 
of the substance, or possessing it outside of the home.

"Ravin was based on the science surrounding the public health and 
social effects of marijuana at the time, and the court left the door 
open to reconsider the matter in the future," Brandeis wrote in an email.

Dean Guaneli, retired chief assistant attorney general in the 
criminal division for the Alaska Department of Law, agreed with that 
assessment. In 2006 he represented the state in a challenge to the 
Ravin decision brought by the ACLU in response to a new marijuana 
criminalization effort led by then-Gov. Frank Murkowski. That 
challenge made its way to the state Supreme Court, but the court 
declined to rule on it.

Guaneli, who is not associated with No campaign but has advocated on 
its behalf, thinks the court would rule differently on the Ravin 
decision now, given changes in marijuana potency. He said he was 
disappointed the court has not reconciled the issue in recent years, 
calling the current decision a "completely open question."

"Ravin is a 40-year-old case," he said Tuesday. "The facts before the 
court have no applicability to the facts now."

Other rural issues

At a debate last week, the No campaign pointed out geographically 50 
percent of the state -- the unincorporated borough -- would have no 
abilities to limit regulation, since under the definition of the 
initiative, they would not have any local control. That's because the 
initiative notes that only "local government" can limit cultivation 
and retail facilities. Under the definition of the measure, "local 
government" is defined as "both home rule and general law 
municipalities, including boroughs and cities of all classes and 
unified municipalities."

Though communities without true control are limited -- only a handful 
of communities would not fall under the definition in the initiative 
- -- that only represents a small portion of the population. Guaneli 
also expressed concerns about how marijuana dispensaries could pop up 
on the outskirts of towns with no ability to ban those.

Campaign to Regulate Marijuana Like Alcohol in Alaska spokesman 
Taylor Bickford understood that concern, but thought it unlikely 
dispensaries would open in the "middle of the woods."

"If you're going to open a dispensary, it needs some infrastructure, 
such as roads," he said. "You have to be realistic in thinking about 
where a dispensary is likely to open."

Bickford said from his perspective, dispensaries are a good thing, 
since they will bring safety and regulation to marijuana sales 
currently conducted in an unregulated black market.

"A dispensary opening is not an inherently bad thing," Bickford said. 
"It means we're making progress. We decided decades ago that alcohol 
should be sold in a regulated environment, rather than out of 
Johnny's bathtub, and it's time we make that same realization when it 
comes to marijuana."
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MAP posted-by: Jay Bergstrom