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With days before vote, local option laws are sticking point for marijuana campaigns

  • Author: Suzanna Caldwell
  • Updated: September 28, 2016
  • Published October 29, 2014

Last week, the Alaska Federation of Natives, the state's largest Native organization, passed a resolution opposing Ballot Measure 2, which would legalize and tax recreational marijuana. AFN cited numerous concerns in passing the resolution, including the issue of local control, a contentious point in the debate over whether to legalize pot, and one not unique to Alaska, though it plays perhaps a more significant role here than elsewhere.

The opposition wasn't a surprise. Native organizations -- including numerous Alaska Native corporations, tribes, and corporation CEOs -- have consistently opposed the measure.

In the resolution, passed Saturday, one of the 14 reasons for opposing the initiative includes issues related to local option -- the laws that currently limit alcohol in some communities around the state. The resolution says Ballot Measure 2, "regardless of community or village preferences," precludes the "local option ability of communities and villages to decide to be 'dry' on marijuana, marijuana concentrates, or marijuana infused edibles."

But problems inherently arise when it comes to creating "dry" marijuana communities. The Alaska Supreme Court found in 1975 the personal possession of small amounts of marijuana in the home was protected under Alaskans' right to privacy. Under the current interpretation of the law, "dry" marijuana communities are not possible, but that doesn't mean it couldn't be changed in future court proceedings.

The campaign opposing legalization -- Big Marijuana. Big Mistake. Vote No on 2 -- has drilled down the lack of a local option in the ballot measure language, expressing concerns rural communities already hampered by substance-abuse issues will have an even harder time regulating marijuana if the initiative passes.

"This (initiative) really takes it so much farther," said No campaign spokeswoman Kristina Woolston. "That's why this is such a big challenge with the way this is written, because you would have to make so many changes for them to have any semblance of local control like they do currently with alcohol."

The initiative has addressed part of the local option provisions. Currently, Ballot Measure 2 does allow some local control, including that communities can outlaw commercial grow or retail operations if they choose, impose additional fees, and limit the number of dispensaries.

But the provisions in Ballot Measure 2 do not align directly with Alaska's local option laws related to alcohol. Under state statutes, communities can elect to ban outright the sale, importation or possession of alcohol.

Reconciling Ravin

A contingency to ban marijuana in individual communities was not built into the initiative. Proponents of the measure say that was intentional, since any attempt to limit personal possession would be struck down as unconstitutional.

That's because of the Ravin decision, a 1975 Alaska Supreme Court ruling that protects the possession of a small amount of marijuana in the home. Part of the reasoning for that decision was the court found marijuana to be a safer substance than alcohol.

"It is, for instance, far more innocuous in terms of physiological and social damage than alcohol or tobacco," the court wrote in its decision.

In contrast, when Alaska's local option laws were challenged in 1984, the Alaska Court of Appeals found there was a compelling interest to limit personal possession of alcohol, since "(t)he threat posed to society by widespread alcohol use is enormous," the court wrote in its Harrison v. State ruling.

The Ravin ruling was narrow, according to UAA Justice Center professor Jason Brandeis. That decision did not extend to other issues related to marijuana -- including transportation or purchase of the substance, or possessing it outside of the home.

"Ravin was based on the science surrounding the public health and social effects of marijuana at the time, and the court left the door open to reconsider the matter in the future," Brandeis wrote in an email.

Dean Guaneli, retired chief assistant attorney general in the criminal division for the Alaska Department of Law, agreed with that assessment. In 2006 he represented the state in a challenge to the Ravin decision brought by the ACLU in response to a new marijuana criminalization effort led by then-Gov. Frank Murkowski. That challenge made its way to the state Supreme Court, but the court declined to rule on it.

Guaneli, who is not associated with No campaign but has advocated on its behalf, thinks the court would rule differently on the Ravin decision now, given changes in marijuana potency. He said he was disappointed the court has not reconciled the issue in recent years, calling the current decision a "completely open question."

"Ravin is a 40-year-old case," he said Tuesday. "The facts before the court have no applicability to the facts now."

Other rural issues

At a debate last week, the No campaign pointed out geographically 50 percent of the state -- the unincorporated borough -- would have no abilities to limit regulation, since under the definition of the initiative, they would not have any local control. That's because the initiative notes that only "local government" can limit cultivation and retail facilities. Under the definition of the measure, "local government" is defined as "both home rule and general law municipalities, including boroughs and cities of all classes and unified municipalities."

Though communities without true control are limited -- only a handful of communities would not fall under the definition in the initiative -- that only represents a small portion of the population. Guaneli also expressed concerns about how marijuana dispensaries could pop up on the outskirts of towns with no ability to ban those.

Campaign to Regulate Marijuana Like Alcohol in Alaska spokesman Taylor Bickford understood that concern, but thought it unlikely dispensaries would open in the "middle of the woods."

"If you're going to open a dispensary, it needs some infrastructure, such as roads," he said. "You have to be realistic in thinking about where a dispensary is likely to open."

Bickford said from his perspective, dispensaries are a good thing, since they will bring safety and regulation to marijuana sales currently conducted in an unregulated black market.

"A dispensary opening is not an inherently bad thing," Bickford said. "It means we're making progress. We decided decades ago that alcohol should be sold in a regulated environment, rather than out of Johnny's bathtub, and it's time we make that same realization when it comes to marijuana."