American Booksellers Foundation for Free Expression et al v. Sullivan

Filing 72

REPLY to Response to Motion re 60 MOTION Certify to State Court filed by John Burns. (Athens, Marika)

Marika R. Athens (AK Bar No. 0411096)
Assistant Attorney General
Department of Law
Office of Special Prosecutions and Appeals
310 K St., Suite 308
Anchorage, Alaska 99501
Telephone: [phone]
Facsimile: 907-269-7939
Email: [e-mail]
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

AMERICAN BOOKSELLERS
FOUNDATION FOR FREE EXPRESSION;
AMERICAN CIVIL LIBERTIES UNION OF
ALASKA; ASSOCIATION OF AMERICAN
PUBLISHERS, INC.; COMIC BOOK LEGAL
DEFENSE FUND; ENTERTAINMENT
MERCHANTS ASSOCIATION; FREEDOM
TO READ FOUNDATION; DAVID &
MELISSA LLC d/b/a Fireside Books; BOOK
BLIZZARD LLC d/b/a Title Wave Books;
BOSCO’S, INC.; DONALD R. DOUGLAS
d/b/a Don Douglas Photography; and
ALASKA LIBRARY ASSOCIATION,
Plaintiffs,
v.
JOHN J. BURNS, in his official capacity as
ATTORNEY GENERAL OF THE STATE OF
ALASKA
Defendant.

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CIVIL ACTION NO.:
3:10-cv-00193-RRB

REPLY IN FURTHER SUPPORT OF DEFENDANT’S MOTION FOR
CERTIFICATION

Certification is appropriate because AS 11.61.128 is an Alaska statute and the Alaska
courts have not yet addressed how broadly or narrowly it should be interpreted. Despite the
Plaintiffs attempts to cloud the issue, it really is that simple. Under Alaska Appellate Procedure
Rule 407, certification is appropriate if the proceeding involves “questions of law of this state
which may be determinative of the cause then pending in the certifying court and as to which it
appears to the certifying court there is no controlling precedent in the decisions of the supreme
court of this state.” Here, the question of how to interpret AS 11.61.128 is determinative of
whether it is constitutional and there is no controlling precedent. The Defendant concedes that
when the statute is interpreted at its broadest, the statute is unconstitutional. However, the broad
interpretation urged by the plaintiffs is not obvious from the face of the statute, despite the
plaintiffs’ claims. Nor does this broad interpretation comport with standard tenets of statutory
construction.
One example of a narrower constitutional reading of AS 11.61.128 is that it requires
knowledge of the material being distributed. See Opp. to Mot. for Prelim. Injunction at 15-17.
See also U.S. v. X-Citement Videos, Inc., 513 U.S. 64, 68-69 (1994)(holding that knowingly
applies to more than just the surrounding verbs, but also applies to subsections of the statute).1
In fact, Alaska precedent would support this reading of “knowingly” as well. See Strane v. State,
61 P.3d 1284 (Alaska 2003). As such, as already discussed in the Defendant’s filings, one
appropriate question to be certified to the Alaska Supreme Court is, “Whether the State of Alaska
is required to prove under AS 11.61.128 that the defendant’s distribution was knowing and that
the defendant knew what was being distributed.”
1

The statute at issue in X-Citement Videos concerned the distribution of child pornography, a crime where the age of
the people depicted in the material is a critical element. Here, the age of the performers in the material is not critical
– what matters is the age of the sender and the actual or believed age of the recipient. Thus, the plaintiffs’ reliance
on this case to say AS 11.61.128(a)(3) is unconstitutional is not well founded.
Reply in Further Support of Defendant’s Motion for Certification
American Booksellers Foundation for Free Expression et al v. Sullivan
U.S. District Court of Alaska No. 3:10-cv-00193-RRB
Page 2 of 5

Secondly, while the plaintiffs’ claim that the definition of “harmful to minors” is vague,
there is also precedent that this definition is constitutional. As such, it would be appropriate to
certify the question, “Whether “harmful to minors” as used in AS 11.61.128 encompasses any of
the material referenced in the plaintiffs’ affidavits, and what general standard should be used to
determine the statute’s reach in light of juveniles’ differing ages and levels of maturity.” The
Defendant submits that the material referenced by the plaintiffs would not be encompassed by
11.61.128 because that material is not harmful to minors. In the plaintiffs’ motion for
preliminary injunction, they seemed to cite with approval court decisions upholding statutes
regulating the dissemination of material deemed “harmful to minors” by construing them to
prohibit only material that would lack serious value for older minors. See Mot. for Prelim.
Injunction at 14-15 (citing Am. Booksellers Ass’n v. Webb, 919 F.2d 1493 (11th Cir. 1990) and
Am. Booksellers Ass’n v. Virginia, 882 F.2d 125 (4th Cir. 1989)). However, in their most recent
Opposition, the plaintiffs’ now state that the court should not follow these cases because there is
no Alaska case on point. See Plaintiffs’ Combined Memorandum at 16. However, rather than
picking and choosing which non-Ninth Circuit cases this court should follow, certification of the
question will provide an Alaska decision that is precisely on point with how to interpret this
statute.
It is well-settled that statutes should be construed in a manner to avoid constitutional
problems. Hooper v. California, 155 U.S. 648, 657 (1895). Here, the narrow interpretations
urged by the Defendant comports with this principle. It should be left to the Alaska Supreme
Court to determine whether this principle should be followed with this statute or whether to
abandon that principle of statutory construction. The Defendant’s interpretation of AS 11.61.128
does not alter, change, or depart from the language of the statute. See Alaskans for a Common
Reply in Further Support of Defendant’s Motion for Certification
American Booksellers Foundation for Free Expression et al v. Sullivan
U.S. District Court of Alaska No. 3:10-cv-00193-RRB
Page 3 of 5

Language, Inc. v. Kritz, 170 P.3d 183, 192 (Alaska 2007). Rather, the State’s interpretation
relies on the plain wording of the statute and standard tenets of statutory construction.
Because there is no controlling precedent and because this statute may be read broadly
rendering it unconstitutional or narrowly rendering it constitutional, certification to the Alaska
Supreme Court is necessary. Should this court accept the broad reading of the statute urged by
the plaintiffs’, it will be rejecting tenets of statutory construction and doing so without the benefit
of how the state court would interpret its own statute. In conclusion, this court should certify
these questions to the Alaska Supreme Court:
1.

Whether the State of Alaska is required to prove under AS 11.61.128 that
the defendant’s distribution was knowing and that the defendant knew
what was being distributed.

2.

Whether “harmful to minors” as used in AS 11.61.128 encompasses any
of the material referenced in the plaintiffs’ affidavits, and what general
standard should be used to determine the statute’s reach in light of
juveniles’ differing ages and levels of maturity.

Reply in Further Support of Defendant’s Motion for Certification
American Booksellers Foundation for Free Expression et al v. Sullivan
U.S. District Court of Alaska No. 3:10-cv-00193-RRB
Page 4 of 5

DATED this 7th day of April, 2011.

JOHN J. BURNS
ATTORNEY GENERAL
By: s/Marika R. Athens
Assistant Attorney General
Department of Law
Office of Special Prosecutions and Appeals
310 K St., Suite 308
Anchorage, Alaska 99501
Telephone: [phone]
Facsimile: 907-269-7939
Email: [e-mail]
CERTIFICATE OF SERVICE
I hereby certify that on the 7th day of April, 2011, a
copy of the foregoing document was served electronically on:
Michael Bamberger
D. John McKay
Thomas W. Stenson
Devereux Chatillon
s/Marika R. Athens
Marika R. Athens

Reply in Further Support of Defendant’s Motion for Certification
American Booksellers Foundation for Free Expression et al v. Sullivan
U.S. District Court of Alaska No. 3:10-cv-00193-RRB
Page 5 of 5