Ravin v. State

BOOCHEVER, Justice

(concurring, with whom CONNOR, Justice, joins).

Because of the importance of the issues discussed in this case and the possibility that portions of the opinion may be construed as substantially circumscribing the Alaska Constitutional right to privacy, I find it necessary to file this concurrence. By its reliance on certain United States Supreme Court cases 1 and the manner in which some of the conclusions are set forth, the opinion may be read as limiting the right of privacy principally to protection of activities engaged in within the confines of the home. 2 The opinion relies chiefly on United States Supreme Court precedent, although there is no Federal Constitutional provision corresponding to art. 1, § 22 of the Alaska Constitution which specifies that “the right of the people to privacy is recognized and shall not be infringed”. While Federal cases defining the right of privacy derived from other provisions of the United States Constitution are of assistance in determining the perimeters of our constitutional right to privacy, we are certainly not bound by those cases in construing the separate Alaska provision. Even when Alaska Constitutional provisions are closely akin to those of the Federal Constitution, we have stated:

While we must enforce the minimum constitutional standards imposed upon us by the United States Supreme Court’s interpretation of the Fourteenth Amendment, we are free, and we are under a duty, to develop additional constitutional rights and privileges under our Alaska Constitution if we find such fundamental rights and privileges to be within the intention and spirit of our local constitutional language and to be necessary for the kind of civilized life and ordered liberty which is at the core of our constitutional heritage. We need not stand by idly and passively, waiting for constitutional direction from the highest court of the land. Instead, we should be moving concurrently to develop and expound the principles embedded in our constitutional law. 3

Although the majority opinion emphasizes the right of privacy in the home, it rec *514 ognizes that analysis of the Federal decisions does not indicate that the right of privacy is relegated to the home. It is true that Griswold v. Connecticut 4 invalidated a Connecticut statute prohibiting the distribution of contraceptives and the dissemination of birth control information to married adults by finding a right of privacy, emanating from other constitutional provisions, within which the marital relationship, arguably home related, was protected. But the later case of Eisenstadt v. Baird 5 held that a statute prohibiting the distribution of contraceptives to unmarried persons but allowing such distribution to married persons violated the equal protection clause of the fourteenth amendment. In so holding, the Court referred to Gris-wold and explained what the case stood for.

If under Griswold the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible. It is true that in Griswold the right of privacy in question inhered in the marital relationship. Yet the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each - with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. 6

The Court held that the right of privacy involved being free to decide for oneself whether to bear or beget a child, a right relating to the automony of the individual, not to a place.

Similarly, Roe v. Wade, 7 in upholding the right of a woman to decide whether she should terminate her pregnancy, stated :

This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. 8

Again, the right of privacy pertained to the freedom of the individual to decide as to her course of action and was unrelated to any situs.

On the other hand, there are the Stanley —Paris Adult Theatre I group of cases 9 holding that the “broad power to regulate obscenity does not extend to mere possession by the individual in the privacy of his own home” although obscenity is not otherwise constitutionally immune from state regulation.

Thus it appears that the United States Supreme Court has found a right of privacy to exist as to activities within the home or with reference to values associated with the home, and, additionally, as a right of personal autonomy, to make decisions that shape an individual’s personal life. 10

Since the citizens of Alaska, with their strong emphasis on individual liberty, enacted an amendment to the Alaska Constitution expressly providing for a right to *515 privacy not found in the United States Constitution, it can only be concluded that that right is broader in scope than that of the Federal Constitution. As such, it includes not only activities within the home and values associated with the home, but also the right to be left alone and to do as one pleases as long as the activity does not infringe on the rights of others. Thus, the decision whether to ingest food, beverages or other substances comes within the purview of that right to privacy. 11

The right to privacy, however, is not monolithic. For example, the right to decide whether to eat strawberry ice cream cannot be placed on the same level as that of deciding whether to bear a child. Moreover, the importance of the right may properly be related to the place where it is exercised, for example, at the home or in the market place. Other considerations would be the nature of relationships involved (marital, doctor-patient, attorney-client, etc.), the particular activity in question and the individual’s interest in it.

Having discussed generally the contours of what I perceive to be the right to privacy under the Alaska Constitution, I shall turn briefly to the test utilized by the court in determining infringements of that right. Particularly in equal protection cases, but also as to cases alleging infringement of other constitutional rights, the United States Supreme Court, 12 and this court 13 in the past, have followed a two-tiered test. If the right involved was deemed to be “fundamental”, a statute infringing upon it was required to be “necessary” to further a “compelling state interest”. Whereas if the right infringed upon was classified as non-fundamental, any rational basis that might be conceived to justify the legislation was held to be sufficient. 14 As a practical matter, the test was result oriented, since once a right was declared to be fundamental, the challenged regulation or legislative act would be stricken, 15 whereas otherwise some reason could usually be found to sustain it.

I agree with the majority’s departure from that test in areas where we have discretion to depart from standards established by the United States Supreme Court. With reference to laws challenged as invading the Alaskan right of privacy, 16 I would apply a single flexible test dependent first upon the importance of the right involved. Based on the nature of that right, a greater or lesser burden would be placed on the state to show the relationship of the intrusion to a legitimate governmental interest. I agree with the majority opinion that interference with rights of privacy within one’s home requires a very high level of justification. Similar considerations would apply to certain relationships, without reference to situs, i. e. attorney-client, doctor-patient, priest-parishioner, marital relationship, parent-child. In all cases involving a right of privacy, I believe that the relationship of the intrusion to a legitimate governmental interest must be carefully examined. The court should not abandon protection of the right of an individual to decide how to conduct his life because a rational basis may be “con *516 ceived” for the legislation in question. The importance of the governmental interest and the means utilized to accomplish this goal must be balanced against the nature of the particular right of privacy. 17

Applying this test to the facts in this case, assuming that the defendant was found in possession of marijuana in an automobile, I agree with the majority that a valid reason existed for the prohibition due to the proven effect of marijuana on driving, and the unavailability of practical tests for ascertaining whether one is under the influence of an hallucinogenic when balanced against the rather minor status of the right involved, to possess marijuana in public. Accordingly, I would affirm the order denying the motion to dismiss.

.Stanley v. Georgia, 394 U.S. 557 , 89 S.Ct. 1243 , 22 L.Ed.2d 542 (1969); Griswold v. Connecticut, 381 U.S. 479 , 85 S.Ct. 1678 , 14 L.Ed.2d 510 (1965).

. The court writes that art. I, § 22 of the Alaska Constitution “ . . . was intended to give recognition and protection to the home”.

. Baker v. City of Fairbanks, 471 P.2d 386, 401-02 (Alaska 1970) (footnotes omitted).

. 381 U.S. 479 , 85 S.Ct. 1678 , 14 L.Ed.2d 510 (1965).

. 405 U.S. 438 , 92 S.Ct. 1029 , 31 L.Ed.2d 349 (1972).

. Id. 405 U.S. at 453 , 92 S.Ct. at 1038 , 31 L.Ed.2d at 362 .

. 410 U.S. 113 , 93 S.Ct. 705 , 35 L.Ed.2d 147 (1973).

. Id. 410 U.S. at 153 , 93 S.Ct. at 727 , 35 L.Ed.2d at 177 .

. Stanley v. Georgia, 394 U.S. 557 , 89 S.Ct. 1243 , 22 L.Ed.2d 542 (1969); Paris Adult Theatre I v. Slaton, 413 U.S. 49 , 93 S.Ct. 2628 , 37 L.Ed.2d 446 (1973); United States v. Orito, 413 U.S. 139 , 93 S.Ct. 2674 , 37 L.Ed.2d 513 (1973); United States v. 12 200-Ft. Reels, 413 U.S. 123 , 93 S.Ct. 2665 , 37 L.Ed.2d 500 (1973).

. On Privacy: Constitutional Protection for Personal Liberty, 48 N.X.U.L.Rev. 670, 703 (1973).

. Gray v. State, 525 P.2d 524 (Alaska 1974).

. See Bates v. Little Rook, 361 U.S. 516 , 80 S.Ct. 412 , 4 L.Ed.2d 480 (1960); Roe v. Wade, 410 U.S. 113 , 93 S.Ct. 705 , 35 L.Ed. 2d 147 (1973).

. Lynden Transport, Inc. v. State, 532 P.2d 700 (Alaska 1975); Breese v. Smith, 501 P.2d 159 (Alaska 1972).

. Lynden Transport, Inc. v. State, 532 P.2d 700, 706 (Alaska 1975).

. Where a fundamental right has required use of the compelling state interest test, only one law has been found valid by the Supreme Court, Korematsu v. United States, 323 U.S. 214 , 65 S.Ct. 193 , 89 L.Ed. 194 (1944), but no state law has passed muster. Dunn v. Blumstein, 405 U.S. 330, 363-64 , 92 S.Ct. 995 , 31 L.Ed.2d 274, 296-97 (1972) (Burger, C. J., dissenting). See 48 N.Y.U.L.Rev. 670 at 702. See also Gilbert v. State, 526 P.2d 1131 (Alaska 1974).

.Of course, in any event where Federal Constitutional rights are involved, we must at least apply the minimum standards prescribed by the United States Supreme Court. Baker v. City of Fairbanks, 471 P.2d 386 . 401-02 (Alaska 1970).

. 48 N.Y.U.L.Rev. 670 at 705.