Pubdate: Fri, 27 Feb 2015
Source: Alaska Dispatch News (AK)
Copyright: 2015 Alaska Dispatch Publishing
Contact:  http://www.adn.com/
Details: http://www.mapinc.org/media/18
Note: Anchorage Daily News until July '14
Author: Scott Woodham

WHY DOES ALASKA COUNT 6 POT PLANTS PER HOUSEHOLD, NOT PER PERSON?

"Anonymoose" wonders about a seeming contradiction in the 
implementation of the cultivation portion of the new laws allowing 
Alaskans over 21 to possess, use and grow cannabis.

The ballot initiative that became AS17.38 seems to say that each 
individual can have up to six plants (three flowering) for home 
cultivation, but the state is interpreting it as per household, not 
per individual.

"It seems unfair and illogical -- going against the spirit of the 
law," Anonymoose says, "to limit an adult couple living together from 
combining their 'adult over 21 quota' of six plants to 12. The 
measure didn't say 'six plants per dwelling if shared by multiple 
over 21's,' but this is clearly how it's being seen by regulators."

Fairness or the spirit of the law both seem a separate question, and 
worthwhile to think about, but the answer to the reason for the 
interpretation is rather straightforward. And sorry, there's no way 
to put this to spare Anonymoose any heartache.

Folks who live together and want to combine plants for a wider canopy 
are apparently out of luck under the current statute. And as this 
transitional period keeps moving along, following statutes will be 
the best way to avoid a hassle. But there are lots of interesting 
things to think about here, and the system has only just begun to 
work on the issue.

Jointly possessing

Part of Anonymoose's confusion came from a brief reference to case 
precedent in the Alcoholic Beverage Control Board's online FAQ sheet. 
That case, Nelson v. State, seems to have little to do with 
marijuana. But it does stand as precedent when it comes to describing 
conditions for possession of anything within a home.

Cynthia Franklin, director of the ABC Board, the agency currently 
taking lead on rulemaking, explained the reasoning via email:

"According to AS 11.81.900(49) 'possess' means having physical 
possession or the exercise of dominion or control over property; the 
Nelson case stands for the proposition that one can constructively 
possess property by being in the same house with it. The 
interpretation of possession in case law over the years really means 
that if you have physical control over something you possess it. So 
you possess the six plants in your house, and the fact that someone 
else also possesses it does not mean that you do not possess it.

"From the ABC's perspective, if you have control over the area of the 
house where the marijuana is being grown, you possess those plants. 
If there are more than six plants there, each person who has actual 
control over the area where the plants are growing is possessing more 
than six plants."

Alaska Dispatch News legal columnist, defense attorney and former 
state prosecutor, Marcelle McDannel concurs.

"In order for me not to be legally in possession of property in my 
residence, it would have to be made inaccessible to me somehow," she 
wrote in an email. "For example, if I had a roommate who was growing 
weed in the room he rents independently from a third party and he 
locked that room, told me to stay out, and didn't give me a key, only 
then would I not be jointly in possession of that marijuana under the law."

Franklin said that a primary reason for sticking to the per-household 
interpretation is to keep from providing an excuse for people who may 
be intending to distribute without permission. Eventually, she said, 
a large number of plants could serve as evidence of intent to 
distribute. "In other words," she said, "growing 24 plants in one 
residence on the excuse that there are 4 adults living there starts 
to look like a small commercial grow operation."

It's significant to me that Franklin's example involves 24 plants 
because it brings up another massive issue here: the Ravin decision.

And before we start discussing it, it's important to note that we're 
heading into the middle of legal undiscovered country. All of this 
involves a large amount of speculation, and none of it will be 
settled anytime soon. True resolution will probably take a 
combination of legislation and court cases, and legislation is 
currently being hashed out.

A conundrum appears when we compare existing case law and the limits 
set on home cultivation by the initiative. But Alaska marijuana law 
has rested comfortably on conundrums for many years, so let's give 
this a shot. It'll be a hoot.

'The Ravin Doctrine'

Assistant Professor Jason Brandeis of the UAA Justice Center has 
written extensively about what he terms "the Ravin Doctrine." In 2012 
he published an article in the Duke Law Review titled, "The 
Continuing vitality of the Ravin Decision." In it he noted how 
durable Ravin has been as a precedent. After noting how statutes come 
and go with political winds, but Supreme Court interpretations tend 
to stand, Brandeis writes:

No subsequent Alaska Supreme Court decision has weakened (Ravin's) 
holding, nor indicated that the court would overrule itself. Rather, 
a number of trial courts, the Alaska Court of Appeals, and the Alaska 
Supreme Court have consistently affirmed Ravin's interpretation of 
the Alaska Constitution's right to privacy: that the interest of the 
State of Alaska in regulating the personal use of marijuana in the 
home by adults was not sufficient to overcome the fundamental right to privacy.

The Ravin decision didn't declare that Alaskans have a right to 
possess marijuana, or how much is allowed, and it didn't say anything 
at all about how they were supposed to get it. Through history, all 
of that has been up to the Legislature or the people of Alaska. And 
the courts have consistently accepted the legislature's attempts to 
set limits on the quantity of pot allowed in the privacy of Alaskans' homes.

Ravin also didn't mention cultivation or set an allowable number of 
plants. In a different case related to Ravin, courts decided that the 
legislature can make laws against home gardens for personal use 
greater than 25 plants. But it made no mention of gardens smaller 
than that. That case, and others related to Ravin, have left a lot of 
gray area over the years.

The statutes established by Ballot Measure 2 explicitly declare their 
own intent regarding Ravin, and implicitly, the doctrine: "The people 
of Alaska further declare that the provisions of this Act are not 
intended to diminish the right to privacy as interpreted by the State 
of Alaska Supreme Court in Ravin v. State of Alaska." (AS 17.38.010c)

Hypothetically, say a couple has 12 plants in their own home. Say 
three are flowering, three are progressing toward the flowering 
stage, two are serving as mother plants for clones and four are just 
wee sprouts. According to the new statutes, that's clearly over the 
line. And that couple would certainly be running a risk. But here's 
where everything starts to turn a hazy shade of winter.

Let's say there's no reason for authorities to think they were 
selling any of their produce. Let's say most their cured product was 
found in a garage freezer, vacuum-packed like salmon steaks. Maybe 
the parcels had been weighed casually, dated and labeled with strain 
information and some nerdy gardening notes about soil nutrients and 
terpenes. No scales, no tiny baggies and bundles of cash. Not a 
single shrine to a Sinaloan bandit saint.

Yes, technically, that couple would be violating the ABC board's 
interpretation of new home cultivation statute in light of the 
state's established definition for possession. But if the couple were 
hauled into court, parts of the Ravin doctrine would offer them 
options for defense at trial. This is an interesting, and very far 
from settled, area of law in Alaska.

And whether or not that couple even lands in court would depend on 
many factors, not the least of which is the human element. Because of 
Alaska's messy legal history with pot, law enforcement officers have 
been allowed to use their own discretion in cases like that for years.

A key argument for the initiative during the campaign was that 
legalizing and regulating cannabis like alcohol would eventually end 
the black market, and that goal remains a key part of many public 
policy discussions. As a commercial market begins to take shape, I 
expect regulators to be keen on squashing unlicensed commercial 
sales, and as Franklin notes above, a 24-plant grow may look at first 
glance like commercial intent. But appearances often depend on who's 
looking, and just by simple fact of geography, not everyone in Alaska 
will have good access to legally produced cannabis. Many of us around 
the state don't even have good access to fresh fruit and vegetables, 
let alone cannabis.

What if, for instance, that hypothetical couple lived in a place 
where they couldn't, or didn't want to, grow indoors? Electricity is 
very expensive in large parts of Alaska, after all. What if they have 
to grow an entire year's personal supply in one summer? What if they 
don't want to have an indoor garden around their house all the time 
and want to grow a personal stash all at once? What then?

Well, for now it looks like they'll have to work the best they can 
within the limits, or run risks of being perceived as an illicit 
commercial operation and dealt with accordingly.

Context cues

So, on the surface, the initiative didn't change the Ravin Doctrine. 
But I think it might have changed the context. Maybe the new statutes 
and the Ravin Doctrine may end up being more compatible than people 
may think at first. There are other questions to ask here that won't 
be answered until the boundaries finish being defined, and maybe 
until a court case provides further clarity.

Does simply the amount of cannabis someone has indicate commercial 
intent? It has in the past, but should it still? And to what degree? 
Four ounces (the current in-home possession limit as defined by case 
law) is a great deal of cannabis. But so what? It does keep well when 
stored properly. More than a few basement cellars in Alaska contain 
enough wine to kill an adult if it were consumed all at once. The 
state doesn't restrict personal possession of alcohol based on sheer 
numbers, but it does for marijuana. The past is an important reason 
that's the case, I think. And past understandings are generally slow 
in changing.

In the past, legislative restrictions on in-home marijuana possession 
have been upheld as constitutional in Alaska. But the context for all 
those previous decisions, including Ravin, was different.

Voters have only just now approved an initiative to legalize, tax and 
regulate. The legislature hasn't removed cannabis from the state's 
list of controlled substances yet, but it appears close to doing that 
now. Maybe context changes things. Maybe not. Only time will tell. 
The initiative didn't change the Ravin doctrine. But it has altered 
its contemporary context, and that difference may end up being significant.

'The more folks want to push'

Unless something changes, personal growers who don't go buckwild 
selling from or flaunting out-of-compliance home gardens probably run 
comparatively little risk if they're a few plants over the limits set 
in statute. But they do indeed run a risk. Regardless of any chances 
people decide to take on their own, Franklin's email included a 
sentence I believe Alaskans would do well to keep in mind.

"In Colorado, some cities have clarified that six plants means six 
per household," she wrote. "The more folks want to push to grow 
beyond six plants in any one residence, the more likely they will 
inspire these types of ordinances clarifying and restricting personal grows."

Aside from what may happen during Alaska's rulemaking process over 
the next nine months, Colorado doesn't have case law derived from a 
Ravin decision, or an explicit constitutional right to privacy as 
Alaska does. Interestingly, the only place that the word "privacy" 
occurs in Colorado's constitution is in Section 16, the portion 
providing for the state's medical marijuana system.

Maybe people agitating for state statutes that better reflect the 
will of Alaska's people as enacted through Ballot Measure 2, or 
better reflect previous details of Ravin Doctrine cases for that 
matter, would spur regulators to enact tighter restrictions on home 
cultivation, and maybe not. Maybe eventually there will be an attempt 
to legislatively restrict personal-use home gardens at a reasonable 
point below 24 plants. And maybe not.

I expect such restrictions would be challenged in court. But, silver 
lining, maybe then Alaskans will closer to knowing how to follow 
their own laws, and regulators will have enough clarity to 
confidently and consistently enforce them.

Have a question about marijuana news or culture in Alaska? Send it to  with "Highly Informed" in the subject line.
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MAP posted-by: Jay Bergstrom