On April 7, 2006, the Alaska State Court of Appeals struck down as unconstitutional a set of Anchorage ordinances which criminalized the possession or sale of drug paraphernalia. The two-to-one majority did reach the correct result. After all, it is hard to understand how it could be constitutional to criminalize the possession of roach clips and bongs when the possession of marijuana itself is constitutionally protected.

     But don't believe for a minute that the court has established a constitutional right to possess drug paraphernalia. That issue was not decided in this case.  Instead, the court has just ruled that the Anchorage Assembly did an atrocious job of writing the ordinances that were struck down.

     The decision of the court reads like an instruction manual for writing a new ordinance that will have a much greater chance of surviving judicial scrutiny. Unless the court's decision is appealed to the Alaska Supreme Court, it is highly probable that a replacement ordinance will be offered to the Anchorage Assembly in the near future.

     The challenged ordinances were a textbook example of poor drafting, over-reaching and lousy lawmaking. As written, they purported to criminalize the sale or possession of all items connected with the manufacture, dispensing, storage or use of any controlled substance, even when those activities were otherwise lawful.

     The sweeping scope of that law was breathtaking. All diabetics in Anchorage who possessed syringes for injecting insulin (a controlled substance) were violating the law. All pharmacists in Anchorage were breaking the law, because they possessed items used to store and dispense controlled substances. Arguably, even all homemakers who possessed plastic sandwich bags were violating the law, because such bags are connected with the storage and dispensing of marijuana. There are innumerable other examples of every day items which ran afoul of the plain language of these ordinances.

     The Court of Appeals considered whether it was possible to read limitations into the challenged ordinances so that it could survive constitutional scrutiny. Ultimately, it found that the ordinances were so confused and poorly written that no limiting interpretation could save them.

     In explaining exactly why this ordinance was so flawed, the Court of Appeals has provided a road map for drafting a replacement ordinance that will avoid the old problems. The ideological mindset of the existing majority on the Anchorage Assembly makes it likely that a replacement ordinance will be drafted in the near future. You can expect to see the headhunters on the war path.

     There is an important issue that the Court of Appeals did not address in its decision. That question is whether, under a properly drafted ordinance, it is constitutional for the government to criminalize the possession of drug paraphernalia. The Court of Appeals was correct to not decide that issue, because answering that issue was not necessary for the resolution of the case before it. The courts wisely refrain from deciding hypothetical questions.

     If a replacement ordinance is passed, however, it is likely that the issue identified in the preceding paragraph will eventually need to be decided. Until then, we can thank the Court of Appeals for getting rid of a really poorly written law, but we cannot give it credit for creating a constitutional right to possess drug paraphernalia. That issue has not yet been decided.

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