cannabisnews.com: Constitutional Argument Not a New One





Constitutional Argument Not a New One
Posted by CN Staff on July 20, 2003 at 14:23:51 PT
By Dan Rice, Staff Writer
Source: News-Miner 
When a Fairbanks judge last month dismissed a local man's conviction for marijuana possession based on a claim that he has a state constitutional right to possess small amounts of pot in his home, the man's argument was far from original. Ever since voters in 1990 passed an initiative to criminalize possession of any amount of marijuana in any location, attorneys, defendants and privacy advocates have asserted that the law is unconstitutional as determined by the 1975 state Supreme Court decision made in Ravin v. State. 
The initiative, which then-drug czar William Bennett traveled to Alaska to campaign for, passed by a 55 percent to 45 percent vote, striking down a 15-year-old right for adult Alaskans to possess pot for personal use in a private place, a policy that was widely regarded as the most liberal in the nation. However, marijuana users and privacy advocates immediately vowed to fight back, proclaiming that the initiative could not override the privacy guarantee contained in the Alaska Constitution. In Anchorage, a group calling itself Alaskans for Hemp Awareness scheduled an "Iditatok" marijuana smoking session in a hotel and invited police to make arrests to test the new law in court.Eventually, the debate came to light in cases in the state's two highest courts, the Alaska Court of Appeals and the Alaska Supreme Court. But both of those courts have thus far avoided directly addressing whether the marijuana laws enacted after the initiative conflict with the Ravin decision. In the 2000 Supreme Court case of Brown v. Ely, a defendant tried to use the Ravin decision to argue that federal Fish and Wildlife Service officers violated his constitutional rights when they searched his home for marijuana. The justices, however, ruled that because federal law prohibits marijuana use, the Ravin argument did not apply to the conduct of federal officers. They did acknowledge in the opinion that "we have yet to address any conflict between Ravin" and Alaska's marijuana laws. The Court of Appeals, which is one step lower than the Supreme Court, has also heard cases involving the Ravin argument, but has thus far never declared that there is a conflict between the state constitution and marijuana laws, ruling in one appeal that they could not consider the Ravin issue because the defendant possessed more than the personal use amount purportedly protected by the constitution. It will likely take the courts to sort out the matter, according to a 1991 opinion by Assistant Attorney General Kathleen Strasbough. The opinion offered then-Lt. Gov. John B. Coghill advice on whether to certify two voter initiatives so they could go to the ballot.Strasbough alluded to the Ravin decision in her letter to Coghill, writing that it was appropriate for the initiative to go to voters even though a possible conflict with the constitution existed. "(The lieutenant governor) may not deny certification because a law not yet enacted may be unconstitutional; the courts will make such a determination when the matter is ripe, that is, if and when the law passes," Strasbough wrote. Strasbough still works in the Attorney General's office but was not at work Friday and unavailable for comment. While the courts sort out legal battles, several activists in recent years have tried to get initiatives passed that would legalize all or some forms of marijuana possession. A group is trying to get an initiative on the November 2004 ballot that would decriminalize and regulate the use of cannabis products, including hemp and marijuana. The measure would make legal the possession, cultivation, distribution and consumption of marijuana and other hemp products for industrial, medicinal, nutritional or private personal use. It would also allow for the regulation of hemp products "in a manner similar to alcohol or tobacco." Lt. Gov. Loren Leman would have to certify the initiative before voters could decide on the measure. Source: Fairbanks Daily News-Miner (AK)Author: Dan Rice, Staff WriterPublished: Sunday, July 20, 2003Copyright: 2003 Fairbanks Publishing Company, Inc.Contact: letters newsminer.comWebsite: http://www.news-miner.com/ Related Article: Judge Dismisses Pot Convictionhttp://cannabisnews.com/news/thread16757.shtml
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Comment #1 posted by freedom fighter on July 20, 2003 at 14:43:41 PT
Alaska v. McNeil
"Ravin was founded in the Supreme Court's interpretation of the Alaska Constitution. The legislature - nor for that matter the people through the initiative - cannot "fix" what it disliked in an interpretation of that document by legislation. The only way to "fix" the Constitution is by the amendment process or a new convention. The initiative was inadequate to overrule Ravin and that case remains the law."Michael A. Thompson , Superior Court Judgehttp://www.druglibrary.org/olsen/DPF/ketchikan.htmlpazff
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