Pubdate: Sat, 15 Nov 2003
Source: Fairbanks Daily News-Miner (AK)
Copyright: 2003 Fairbanks Publishing Company, Inc.
Contact:  http://www.news-miner.com/
Details: http://www.mapinc.org/media/764
Author: Dan Rice
Bookmark: http://www.mapinc.org/pot.htm (Cannabis)

APPEALS COURT JUST SAYS NO TO POT CASE

The Alaska Court of Appeals will not reconsider its August decision allowing
adults to possess as much as a quarter-pound of marijuana in their home.

In an opinion released Friday, the court denied the Alaska attorney
general's petition to rehear the case, which invalidated a 1990 voter
initiative criminalizing all amounts of marijuana by calling the resulting
ban on personal pot use in the home unconstitutional.

The court rejected all the assertions the attorney general's office made in
arguing that the decision was flawed in the case of Noy v. State, which
resulted in Attorney General Gregg Renkes instructing all state law
enforcement agencies not to arrest or cite adults for personal marijuana use
in their home.

Renkes has vowed since the day of the Noy decision that the state would
appeal the case and try to restore its ability to prosecute citizens for
possessing small amounts of marijuana in their home.

The Court of Appeals spent nearly all of the nine-page denial detailing
reasons for rejecting the state's petition. The appeals court based the Noy
decision on the landmark 1975 Alaska Supreme Court case Ravin v. State,
which held that the government's interest in preventing possession of
marijuana for personal use in the home was not great enough to violate the
privacy clause contained in the state constitution.

The appeals court decision declared Ravin is still the law--and hence
personal possession in the home is legal--despite the 1990 criminalization
initiative. The appeals court judges determined that 4 ounces or less is the
personal-use standard.

"In its petition for rehearing, the state argues that this (Court of
Appeal's) initial opinion is flawed in some half-dozen ways, but most of the
state's arguments ultimately rest on one underlying assertion: that we
misunderstood the nature of the Alaska Supreme Court's decision in Ravin,"
wrote Judge David Mannheimer in Friday's opinion denying the rehearing.

Mannheimer then described the reasons the appeals court believes its
interpretation of the Ravin decision, that is as a legal authority
restricting the government from enacting laws prohibiting personal marijuana
use in the home, was not flawed.

At one point, he wrote that the "state's proposed interpretation of the
Ravin decision would seemingly put us on the road to legal chaos."

Despite what appeared to give all indications of a negative ruling for the
state, the attorney general's office issued a press release Friday
classifying the decision as at least a partial victory.

While the decision denied a rehearing, the release states, it did give the
state permission to challenge the Ravin decision.

Dean Guaneli, chief assistant attorney general, said the office based this
interpretation of the decision on the last sentence, which reads "the state
remains free in the future to challenge the continuing vitality of Ravin."

The original Noy decision was ambiguous as to whether the state could
challenge Ravin as an out-of-date legal authority, he said, and the last
sentence clarifies that it can challenge the 28-year-old opinion.

He said the challenge would come in the form of a prosecutor at the
trial-court level arguing to a judge that a defendant should not be able to
use Ravin as a defense for marijuana possession because the opinion does not
comply with today's standards and values.

A prosecutor would then likely have to present medical and scientific
evidence about marijuana to try to sway the judge into not abiding by the
Ravin decision, Guaneli said.

He added that the attorney general's office and Gov. Frank Murkowski
consider marijuana a far more dangerous and prevalent drug than it was at
the time of the Ravin opinion, which classified pot as "a relatively
innocuous substance, at least as compared with other less-restricted
substances."

However, Guaneli stopped short of saying that prosecutors and police would
start prosecuting people again for personal marijuana use in the home in an
effort to bring the debate into court.

"I don't believe that our instructions are going to be any different than
they have been," he said, explaining the state has never put significant
energy or resources into prosecuting small marijuana cases. "Neither we nor
the police are going to open a floodgate of prosecutions."

The last sentence of Friday's appeals court decision does give them that
option if the right case comes along, he said.

Bill Satterberg, the defense attorney who represented David Noy, said he was
baffled by the state's classification of Friday's opinion as a victory.

The Court of Appeals took nine pages to articulate why it rejected the
state's petition for a rehearing, a rarity for a court that usually issues a
document stating only "granted" or "denied" in petition for rehearing cases,
said Satterberg, who represented Noy after his 2001 arrest then took up the
case on appeal for free.

He added that the state has always had the right to challenge Ravin and the
last sentence of Friday's opinion did nothing to change that.

"What are they smoking down there in Juneau?" he said. "(Renkes) is the
first guy I know to pull victory from defeat. Well, let me be the first to
congratulate him on his resounding victory."
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