687 P.2d 332 (Alaska App. 1984), 7407, Harrison v. State

Docket Nº7407.
Citation687 P.2d 332
Opinion JudgeBRYNER, Chief Judge.
Party NameHugh HARRISON, Appellant, v. STATE of Alaska, Appellee.
AttorneyRandall Simpson and Gary C. Sleeper, Jermain, Dunnagan & Owens, Anchorage, for appellant. Peter A. Michalski, Asst. Atty. Gen., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee.
Judge PanelBefore BRYNER, C.J., and COATS and SINGLETON, JJ.
Case DateAugust 31, 1984
CourtCourt of Appeals of Alaska

Page 332

687 P.2d 332 (Alaska App. 1984)

Hugh HARRISON, Appellant,

v.

STATE of Alaska, Appellee.

No. 7407.

Alaska Court of Appeals

August 31, 1984

Page 333

[Copyrighted Material Omitted]

Page 334

[Copyrighted Material Omitted]

Page 335

Randall Simpson and Gary C. Sleeper, Jermain, Dunnagan & Owens, Anchorage, for appellant.

Peter A. Michalski, Asst. Atty. Gen., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee.

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

OPINION

BRYNER, Chief Judge.

Following a jury trial, Hugh Harrison was convicted of importing alcohol into the village of St. Mary's in violation of AS 04.11.496(b). On appeal, Harrison challenges the constitutionality of Alaska's local option law, arguing that it violates the equal protection and due process clauses of the United States and Alaska Constitutions and the privacy clause of the Alaska Constitution. Harrison also challenges his conviction on ex post facto grounds. After reviewing Harrison's claims, we conclude that his conviction must be affirmed.

In order to place Harrison's arguments in context, it is helpful to review the background of Alaska's local option law. Alcohol abuse has been and continues to be a problem in Alaska. A comprehensive study of this issue was released in 1977 by the Analysis of Alcohol Problems Project. Several of the study's conclusions illustrated the extent of alcohol problems in Alaska. For example, Alaska's rate of death due directly to alcoholism increased 153% from 1959 to 1975, and Alaska's alcoholism mortality rate in 1975 was 418% higher than the national average. Analysis of Alcohol Problems Project, Working Papers: Descriptive Analysis of the Impact of Alcoholism and Alcohol Abuse in Alaska, 1975, vol. V at 14 (1977). From 1958 to 1975, Alaska's rate of annual consumption increased at almost twice the rate of the national average. Id. at 42. The total economic cost of alcoholism and alcohol abuse to Alaska in 1975 was reported to be 131.2 million dollars. Id. at 32. The study noted that the impact of alcohol-related problems was greater in rural areas. Id. at 4.

In 1976, the Governor's Commission on the Administration of Justice concluded that crime in Alaska is significantly related to the excessive and unregulated consumption of alcohol. Governor's Commission on the Administration of Justice, Standards and Goals for Criminal Justice at 41 (1976). The Commission noted that, according to the National Council on Alcoholism, one out of every ten Alaskans is an alcoholic. Id. The Commission recommended that rural villages be allowed to control alcoholic beverages. Id. at 14.

In 1980, the Alaska Judicial Council published a report entitled Alaska Felony Sentences: 1976-1979. The report found a significant relationship between the use of alcohol and criminal behavior. This association was most significant in rural areas of the state where, according to the Council, 77.9% of violent crimes and 55.6% of property crimes were committed under the influence of alcohol. Alaska Judicial Council, Alaska Felony Sentences: 1976-1979 at 45-48, 65-67 (1980). 1

In response to the growing evidence of a strong relationship between alcohol abuse and crime, Alaska's local option law was enacted in 1980. Under the law, any municipal government that desires to regulate the importation or distribution of alcoholic beverages can conduct a referendum election. A community choosing to hold a referendum

Page 336

election is given several options. It may completely prohibit the sale of alcoholic beverages, AS 04.11.490. It may prohibit the sale except by specifically licensed establishments, AS 04.11.492, or by those holding selected types of licenses, AS 04.11.500. Or, it may completely prohibit both the sale and importation of alcoholic beverages, AS 04.11.496. Local referendum elections are conducted under state supervision, and when the results of a local election are certified by the state, violations of any restrictions adopted in the election are subject to criminal prosecution by the state. AS 04.11.502; AS 04.16.200.

The village of St. Mary's held a referendum election under the local option law on September 22, 1981, and voted to prohibit the sale and importation of alcoholic beverages. The prohibition became effective October 1, 1981. During the latter part of 1981, Harrison, a state trooper, was transferred to St. Mary's. On April 16, 1982, Harrison flew an airplane from St. Mary's to Nome, where he purchased vodka and several cases of beer. He returned to St. Mary's with the liquor. The police searched Harrison's residence on April 18th and found over sixty-two liters of beer and 1.75 liters of vodka. Harrison was indicted for the importation of alcohol, in violation of AS 04.11.496(b). 2 AS 04.11.496 provides, in relevant part:

(a) The following question, appearing alone, may be placed before the voters of a municipality or an established village in accordance with AS 04.11.502: "Shall the sale and importation of alcoholic beverages be prohibited in ... (name of municipality or village)? (yes or no)".

(b) If a majority of the voters vote "yes" on the question set out in (a) of this section, a person, beginning on the first day of the month following certification of the results of the election, may not knowingly send, transport, or bring alcoholic beverages into the municipality or established village.

Prior to trial, Harrison moved to dismiss his indictment on constitutional grounds. He argued that the St. Mary's local option law violated his right to privacy and equal protection and that the distinction between the misdemeanor and felony classifications in the statute violated his right to due process. Harrison also contended that the application of the local option law to his conduct violated the constitutional prohibition against ex post facto laws. At the pretrial hearing before Superior Court Judge James R. Blair, Harrison expressly acknowledged the evidence presented by the state indicating a correlation between alcohol abuse and serious health and social problems. Harrison did, however, present expert testimony that the incidence of coronary disease was lower among moderate drinkers than non-drinkers. Harrison's expert also testified that an increased availability of alcohol results in a proportional increase in moderate drinkers and a proportional decrease in heavy users and abstainers. Judge Blair denied Harrison's motions to dismiss. Harrison was subsequently convicted, and now appeals the denial of his motions.

PRIVACY

Harrison claims that the prohibition against importation of alcohol into St. Mary's violates his right to privacy under the Alaska Constitution. 3 In Ravin v. State, 537 P.2d 494 (Alaska 1975), the defendant argued that the prohibition of the possession of marijuana violated his right to privacy. The court in Ravin noted the traditional standard that applied to a claimed infringement of a fundamental constitutional right:

Once a fundamental right under the constitution of Alaska has been shown to be involved and it has been further shown that this constitutionally protected right

Page 337

has been impaired by governmental action, then the government must come forward and meet its substantial burden of establishing that the abridgement in question was justified by a compelling government interest.

Ravin, 537 P.2d at 497 (footnote omitted) (quoting Breese v. Smith, 501 P.2d 159, 171 (Alaska 1972)). However, the court expressed considerable dissatisfaction with the traditional fundamental right/compelling state interest test. Ravin, 537 P.2d at 498. The court went on to determine Ravin's privacy claims in the following manner:

It is appropriate in this case to resolve Ravin's privacy claims by determining whether there is a proper governmental interest in imposing restrictions on marijuana use and whether the means chosen bear a substantial relationship to the legislative purpose. If governmental restrictions interfere with the individual's right to privacy, we will require that the relationship between means and ends be not merely reasonable but close and substantial.

Thus, our undertaking is two-fold: we must first determine the nature of Ravin's right, if any, abridged by [the statute prohibiting possession of marijuana], and, if any rights have been infringed upon, then resolve the further question as to whether the statutory impingement is justified.

Ravin, 537 P.2d at 498.

The court in Ravin held that even if it were to use the fundamental right/compelling state interest test, there was no fundamental right, either under the Alaska or federal constitutions, to possess or ingest marijuana. Ravin, 537 P.2d at 502. However, because the right of privacy under the Alaska Constitution clearly shielded the ingestion of food, beverages and other substances, subject to overriding public health considerations, the court also concluded that its analysis would not be complete without a closer examination of the right to privacy and the "relevancy of where the right is exercised." Id. The court "recognized the distinctive nature of the home as a place where the individual's privacy receives special protection." Ravin, 537 P.2d at 503. It concluded:

This right to privacy would encompass the possession and ingestion of substances such as marijuana in a purely personal, non-commercial context in the home unless the state can meet its substantial burden and show that proscription of possession of marijuana in the home is supportable by achievement of a legitimate state interest.

Ravin, 537 P.2d at 504. The court reviewed the evidence presented at the omnibus hearing and concluded that the use of marijuana does not constitute a significant public health problem, with the exception of...

To continue reading

Request your trial
16 practice notes
  • Kevin Sampson v. State of Alaska.
    • United States
    • Issues in Law & Medicine Vol. 15 Nbr. 2, September 1999
    • September 22, 1999
    ...Id. at 169. (31) Id. at 170. (32) Id. at 171. (33) Ravin v. State, 537 P.2d 494 (Alaska 1975). (34) Id. at 496. (35) Harrison v. State, 687 P.2d 332 (Alaska App. 1984). (36) Valley Hosp. Ass'n v. Mat-su Coalition, 948 P.2d 963 (Alaska 1997). (37) Breese, 501 P.2d at 169. (38) Valley Hosp., ......
  • 832 P.2d 181 (Alaska App. 1992), A-3516, Shetters v. State
    • United States
    • Alaska Court of Appeals of Alaska
    • May 15, 1992
    ...statute is not vague and clearly prohibits the importation of alcoholic beverages for personal consumption. See also Harrison v. State, 687 P.2d 332, 342 (Alaska App.1984). Shetters next argues that a potential defendant "would be unable to find any published law banning the importatio......
  • Egoak v. State, 072711 AKCA, A-10939
    • United States
    • Alaska Court of Appeals of Alaska
    • July 27, 2011
    ...[10] Saganna v. State, 594 P.2d 69, 70-71 (Alaska 1979); Waters v. State, 483 P.2d 199, 201-02 (Alaska 1971). [11] See Harrison v. State, 687 P.2d 332, 339 (Alaska App. 1984) ("The threat posed to society by widespread alcohol abuse is enormous. We believe that enactment of Alaska's lo......
  • 927 P.2d 1289 (Alaska App. 1996), A-5812, Kinney v. State
    • United States
    • Alaska Court of Appeals of Alaska
    • November 29, 1996
    ...attack fails. Concerned Citizens of South Kenai Peninsula v. Kenai Peninsula Borough, 527 P.2d 447, 452 (Alaska 1974); Harrison v. State, 687 P.2d 332, 343-44 (Alaska App.1984). Conclusion The judgement of the superior court is AFFIRMED. Notes: [1] Wilson was wearing electronic monitoring e......
  • Request a trial to view additional results
15 cases
  • 832 P.2d 181 (Alaska App. 1992), A-3516, Shetters v. State
    • United States
    • Alaska Court of Appeals of Alaska
    • May 15, 1992
    ...statute is not vague and clearly prohibits the importation of alcoholic beverages for personal consumption. See also Harrison v. State, 687 P.2d 332, 342 (Alaska App.1984). Shetters next argues that a potential defendant "would be unable to find any published law banning the importatio......
  • Egoak v. State, 072711 AKCA, A-10939
    • United States
    • Alaska Court of Appeals of Alaska
    • July 27, 2011
    ...[10] Saganna v. State, 594 P.2d 69, 70-71 (Alaska 1979); Waters v. State, 483 P.2d 199, 201-02 (Alaska 1971). [11] See Harrison v. State, 687 P.2d 332, 339 (Alaska App. 1984) ("The threat posed to society by widespread alcohol abuse is enormous. We believe that enactment of Alaska's lo......
  • 927 P.2d 1289 (Alaska App. 1996), A-5812, Kinney v. State
    • United States
    • Alaska Court of Appeals of Alaska
    • November 29, 1996
    ...attack fails. Concerned Citizens of South Kenai Peninsula v. Kenai Peninsula Borough, 527 P.2d 447, 452 (Alaska 1974); Harrison v. State, 687 P.2d 332, 343-44 (Alaska App.1984). Conclusion The judgement of the superior court is AFFIRMED. Notes: [1] Wilson was wearing electronic monitoring e......
  • 703 P.2d 1182 (Alaska App. 1985), 7050, Azzarella v. State
    • United States
    • Alaska Court of Appeals of Alaska
    • July 19, 1985
    ...ex post facto clauses of the Alaska and United States Constitutions. We decided this claim adversely to Azzarella in Harrison v. State, 687 P.2d 332 (Alaska App.1984). [2] Azzarella raises for the first time in his reply brief the argument that his prior convictions were for violations of A......
  • Request a trial to view additional results
1 books & journal articles
  • Kevin Sampson v. State of Alaska.
    • United States
    • Issues in Law & Medicine Vol. 15 Nbr. 2, September 1999
    • September 22, 1999
    ...Id. at 169. (31) Id. at 170. (32) Id. at 171. (33) Ravin v. State, 537 P.2d 494 (Alaska 1975). (34) Id. at 496. (35) Harrison v. State, 687 P.2d 332 (Alaska App. 1984). (36) Valley Hosp. Ass'n v. Mat-su Coalition, 948 P.2d 963 (Alaska 1997). (37) Breese, 501 P.2d at 169. (38) Valley Hosp., ......