Opinion
Court of Appeals No. A-11328 No. 6225
08-12-2015
ALLEN E. HUNTER, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Josie Garton, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 4CH-10-310 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Fourth Judicial District, Bethel, Leonard R. Devaney III, Judge. Appearances: Josie Garton, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Allen E. Hunter was charged by indictment with one count of illegally manufacturing homebrew in his home in Scammon Bay, a local option community that has banned the sale, importation, and possession of alcoholic beverages. Hunter moved to dismiss the indictment, arguing that Alaska's constitutional right to privacy entitled him to manufacture a small amount of homebrew for personal use in his house. The superior court denied the motion to dismiss, finding that Hunter's constitutional argument was controlled by this Court's decision in Harrison v. State.
Under Alaska law, municipalities and villages can vote to outlaw the sale, importation, and possession of alcohol. See AS 04.11.491(a)-(b).
Harrison v. State, 687 P.2d 332 (Alaska App. 1984).
Hunter appeals, raising the same constitutional argument. We agree with the superior court that Hunter's constitutional claim is without merit and is controlled by our prior precedent.
Factual background and prior proceedings
An Alaska state trooper received a tip that Hunter was making homebrew in his house in Scammon Bay, a local option community, where the sale, possession for sale, and manufacturing of alcohol are prohibited. The trooper went to Hunter's house to investigate, and Hunter let him in. Inside the house, he found actively brewing homebrew, a half-gallon jug of homebrew, and a five gallon bucket of homebrew sludge. Hunter admitted that he made the homebrew.
See AS 04.11.010(a); AS 04.16.200(b); AS 04.11.491.
Hunter was subsequently indicted on one count of manufacturing an alcoholic beverage without a license or permit in an area that had adopted a local option under AS 04.11.491. Hunter moved to dismiss the indictment, asserting that Alaska's constitutional right to privacy, as recognized in Ravin v. State, protected his conduct. The State opposed the motion to dismiss, arguing that this Court had already upheld the constitutionality of local option restrictions against similar challenges in Harrison v. State. The State also submitted several articles that supported its position that the consumption of alcoholic beverages has a significant adverse impact on public health and safety that justifies State regulation of alcohol in private homes in communities that have chosen to adopt a local option under AS 04.11.491.
Ravin v. State, 537 P.2d 494 (Alaska 1975).
Harrison, 687 P.2d at 339, 346 (upholding the constitutionality of Alaska's local option statutory scheme).
Following an evidentiary hearing and oral argument, Superior Court Judge Leonard Devaney denied Hunter's motion to dismiss the indictment, ruling that Harrison was directly controlling on this issue and that "local option laws prohibiting manufacture of alcohol in the privacy of one's home are justified as a legitimate health and welfare measure to restrict consumption of alcohol in communities that decide to adopt local option laws."
The parties agreed to a Cooksey plea, and Hunter pleaded guilty to one count of violating AS 04.11.010(a). Per the plea agreement, the parties certified the following issue for appeal:
See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974) (authorizing a procedure whereby a defendant pleads guilty while reserving the right to raise a non-jurisdictional but dispositive issue on appeal).
"Homebrew" is the name of an alcoholic beverage that is made by mixing yeast, sugar, and warm water in a bucket. The Defendant made enough homebrew for him and a friend to become intoxicated. He made and drank the homebrew inside his home. When he made the homebrew, however, he had no license to manufacture alcoholic beverages. As a
result, he was indicted and later pled guilty to one count of illegal manufacturing of alcohol under AS 04.11.010 and AS 04.16.200(b) in a dry area. Under the Alaska Constitution, does the right to privacy protect the unlicensed manufacture of alcoholic beverages?
Why we affirm the superior court's ruling
Article I, Section 22 of the Alaska Constitution provides that "[t]he right of the people to privacy is recognized and shall not be infringed." Our supreme court has held that "this explicit guarantee of privacy provides Alaskan citizens with greater protection than the federal constitution."
Fraternal Order of Eagles v. City and Borough of Juneau, 254 P.3d 348, 356 (Alaska 2011).
In the 1975 decision Ravin v. State, the Alaska Supreme Court held that the heightened right to privacy under the Alaska Constitution protected the possession by adults of small quantities of marijuana in the home for personal use. Specifically, the court concluded that given the evidence of the relative harmlessness of marijuana when used by adults, an individual's privacy interest in the home outweighed the government's interest in regulating the possession of small quantities of marijuana by adults in their home for personal use.
Ravin, 537 P.2d at 511.
Id.
The Ravin court was careful to note the limitations of its holding. The court emphasized that the decision was based on a person's fundamental right to privacy, not a fundamental right to possess or ingest marijuana. The court was also careful to note that the right to privacy in the home under the Alaska Constitution was not absolute and that it "must yield when it interferes in a serious manner with the health, safety, rights and privileges of others or with the public welfare." As the court stated, "[n]o one has an absolute right to do things in the privacy of his own home which will affect himself or others adversely."
Id. at 502.
Id. at 504.
This principle was reflected in the supreme court's later decision in State v. Erickson, which came to the opposite conclusion from Ravin with regard to personal use and possession of cocaine in a person's home. In Erickson, the Alaska Supreme Court held that Alaska's heightened privacy protections do not protect personal use and possession of cocaine in the home because, unlike marijuana, there was a "sufficiently close and substantial relationship" between the prohibition of any possession of cocaine and the legislative purpose of protecting the general health and welfare.
State v. Erickson, 574 P.2d 1, 22-23 (Alaska 1978).
Id. at 22.
This Court came to a similar conclusion with regard to Alaska's local option laws, which were enacted in the 1980s in response to growing evidence of the damage caused by alcohol in Alaska. In Harrison v. State, the defendant challenged the constitutionality of a local option law, raising essentially the same general constitutional arguments under Ravin that are being raised in this case.
Harrison v. State, 687 P.2d 332, 339 (Alaska App. 1984).
Id. at 335-36; see also Burnor v. State, 829 P.2d 837, 840 (Alaska App. 1992) (reemphasizing alcohol's social ills and reaffirming Harrison's conclusion that local option laws do not violate the equal protection clause of the Alaska Constitution).
This Court rejected the defendant's constitutional challenge to the local option statutory scheme, finding the scheme constitutional. The Court concluded that the evidence "unmistakably established a correlation between alcohol consumption and poor health, death, family violence, child abuse, and crime," and that there was therefore a sufficiently close and substantial relationship between the local option law and the legislative purpose of protecting public health and welfare.
Harrison, 687 P.2d at 338.
Id. at 338-39.
On appeal, Hunter argues that Harrison is not controlling in his case because Harrison involved importation of alcohol, rather than manufacturing in one's home. But the holding in Harrison is broader than Hunter acknowledges. Harrison was not limited to simply upholding a narrow prohibition against importation; rather the Court upheld the local option statutory scheme as a whole, primarily focusing on the undisputed harmful effects and societal costs of alcohol consumption whether it occurred inside or outside of the home.
Id. at 338 ("We believe that enactment of Alaska's local option law bears a close and substantial relationship to the legitimate legislative goal of protecting the public health and welfare by curbing the level of alcohol abuse in our state."). --------
Hunter also attempts to distinguish Harrison on the ground that his case involves homebrew, which has a lower alcohol content than the hard alcohol at issue in Harrison. Hunter contends that the State has less of an interest in restricting manufacture of homebrew because of its lower alcohol content and that therefore the "close and substantial relationship" between the local option law and the legislative purpose of protecting health and public safety is not present in his case. This argument was not raised below; nor do we find it persuasive.
Conclusion
We AFFIRM the judgment of the superior court.