"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.
Read more Highly Informed: Seeking answers to Alaska's cannabis questions
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 of 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 cannabis-north@alaskadispatch.com with "Highly Informed" in the subject line.