86 Hawai'i 440, State v. Mallan

Decision Date30 January 1998
Docket NumberNo. 15608,15608
Citation950 P.2d 178,86 Hawaii 440
Parties86 Hawai'i 440 STATE of Hawai'i, Respondent-Appellee, v. Lloyd MALLAN, Petitioner-Appellant.
CourtHawaii Supreme Court

Lori S. Nishimura, Deputy Prosecuting Attorney, on the briefs, for respondent-appellee.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

RAMIL, Justice, with whom MOON, Chief Justice, joins.

We granted certiorari to review the memorandum opinion of the Intermediate Court of Appeals (ICA) filed on May 10, 1993. The central issue before us is whether the express right to privacy located in article I, section 6 of the Hawai'i Constitution 1 encompasses a right to possess and use marijuana 2 for recreational purposes. Because we believe that the right to privacy does not include such a right, we affirm the ICA's decision.

I. BACKGROUND

The facts of this case are not in dispute. On October 20, 1990, at approximately 10:15 p.m., Petitioner-Appellant Lloyd Mallan was arrested in the parking lot of the Waikiki Shell after Honolulu police officers, attracted by the odor of burning marijuana, found a partially burnt marijuana cigarette in Mallan's automobile. Mallan was charged with promoting a detrimental drug in the third degree, in violation of Hawai'i Revised Statutes (HRS) § 712-1249 (1993). 3

Mallan does not deny that he broke the law on the night in question:

[MALLAN:] I have a deep interest in music and I'd just seen the Honolulu Symphony concert and went back to my car and listened to the--turned on the radio and listened to a jazz tune that I hadn't heard for years, by Keith Jarrett....

And I had a little bit of, of marihuana with me. And I thought as commemoration of my listening to Keith Jarrett, I would smoke a joint or whatever I had left, which was minimal.

And I was pursuing my sense of happiness and that it would enhance my appreciation of the music....

... I thought I was in privacy. Nobody was around. It was after the concert and I had no place to go, really. And a voice [inside my head] said, "Don't do it," but I did it anyway.

Before trial, however, Mallan filed a motion to dismiss. In support of the motion, Mallan argued, inter alia, that the right to smoke marijuana is protected by the Hawai'i Constitution's right to privacy. At a subsequent hearing on the motion, the parties stipulated to the testimony of Mallan's expert witnesses. The witnesses would have testified that, in their opinion, marijuana is not addictive and that there is no proof that the use of marijuana is harmful to the user or to others. However, the witnesses would also have testified that the effects of marijuana have been the subject of debate. The experts would have further testified that, in their opinion, the studies concluding that marijuana has harmful effects are speculative and flawed. After oral argument on the motion, the trial court rejected Mallan's contentions. The trial court ruled that "possession and use of marihuana ... is not protected under our right of privacy." The trial court ruled that "the possession of marihuana ... does not rank as any kind of fundamental freedom" and that the statute need only be supported by a rational basis, not a compelling state interest. The trial court noted that the question whether marijuana has harmful effects is a controversial area. The trial court noted that, according to the stipulated evidence, some literature supports the conclusion that marijuana is harmful, while other literature supports the conclusion that it is harmless. Consequently, the trial court ruled that, in applying the rational basis test, the statute is constitutional.

The case then proceeded to trial, and the court found Mallan guilty. Mallan was sentenced to a fine of $50. Mallan filed a timely notice of appeal, and the case was assigned to the ICA. The ICA based its decision on our prior case law holding that the possession of marijuana for personal use is not protected by the right to privacy. See State v. Bachman, 61 Haw. 71, 595 P.2d 287 (1979); State v. Renfro, 56 Haw. 501, 542 P.2d 366 (1975); State v. Baker, 56 Haw. 271, 535 P.2d 1394 (1975). The ICA noted that Renfro and Baker were decided before article I, section 6 was added to the Hawai'i Constitution. The ICA further noted that, although Bachman was decided five months after article I, section 6 was ratified, the appellate briefs in Bachman were filed before ratification. Nevertheless, the ICA felt obligated to follow Bachman and, therefore, affirmed Mallan's conviction. Mallan subsequently applied to this court for a writ of certiorari, which we granted.

II. STANDARD OF REVIEW

The scope of the right to privacy under article I, section 6 of the Hawai'i Constitution is a question of constitutional law. "We answer questions of constitutional law by exercising our own independent constitutional judgment based on the facts of the case. Thus, we review questions of constitutional law under the right/wrong standard." State v. Arceo, 84 Hawai'i 1, 11, 928 P.2d 843, 853 (1996) (internal quotation marks and citations omitted).

III. DISCUSSION

Initially, we note that although our prior cases addressing the constitutionality of our marijuana possession statutes did address the right to privacy, see Bachman, supra; Renfro, supra; Baker, supra, those cases did not directly address article I, section 6. Thus, the specific question whether article I, section 6 encompasses a constitutional right to possess and use marijuana has yet to be answered by this court.

A. Our Prior Privacy Case Law: Mueller, Kam, and Baehr
1. Two Approaches

To date, our case law interpreting article I, section 6 has apparently established two distinct approaches to the right to privacy. 4 The first approach was applied by this court in State v. Mueller, 66 Haw. 616, 671 P.2d 1351 (1983), and later by the plurality in Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44, reconsideration granted in part, 74 Haw. 650, 875 P.2d 225 (1993). Under this approach, "only personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty' are included in this guarantee of personal privacy." Mueller, 66 Haw. at 628, 671 P.2d at 1355 (quoting Roe v. Wade, 410 U.S. 113, 152, 93 S.Ct. 705, 726, 35 L.Ed.2d 147 (1973)) (citations omitted). In determining which rights are fundamental, we must look

to the "traditions and [collective] conscience of our people" to determine whether a principle is "so rooted [there] ... as to be ranked as fundamental." ... The inquiry is whether a right involved "is of such a character that it cannot be denied without violating those 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions'...."

Baehr, 74 Haw. at 556, 852 P.2d at 57 (quoting Griswold v. Connecticut, 381 U.S. 479, 493, 85 S.Ct. 1678, 1686, 14 L.Ed.2d 510 (1965) (Goldberg, J., concurring)) (alterations in original). If a right is determined to be fundamental, it is "subject to interference only when a compelling state interest is demonstrated." Comm. Whole Rep. No. 15, in 1 Proceedings of the Constitutional Convention of Hawai'i of 1978, at 1024 (1980). See also Mueller, 66 Haw. at 627, 671 P.2d at 1359. In the absence of a fundamental right, however, a statute need only satisfy the minimum rationality requirements of due process, i.e., it must have a "rational basis." Id. at 628, 671 P.2d at 1359.

In the past, we have applied the Mueller /Baehr approach in rejecting claims that certain acts are protected by the right to privacy. In Mueller, our first case directly addressing the scope of article I, section 6, we held that prostitution is not protected by the right to privacy because the decision "to engage in sex for hire at home" is not a fundamental right nor is basic to ordered liberty. Id. at 628, 630, 671 P.2d at 1359, 1360. Similarly, in Baehr, the plurality held, in an opinion written by Justice Levinson [W]e do not believe that a right to same-sex marriage is so rooted in the traditions and collective conscience of our people that failure to recognize it would violate the fundamental principles of liberty and justice that lie at the base of all our civil and political institutions. Neither do we believe that a right to same-sex marriage is implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if it were sacrificed. Accordingly, we hold that the [plaintiffs] do not have a fundamental constitutional right to same-sex marriage arising out of the right to privacy or otherwise.

Baehr, 74 Haw. at 556-57, 852 P.2d at 57.

It should be noted that, in applying the Mueller /Baehr approach, we have tended to focus on "personal decisions relating to marriage, procreation, contraception, family relationships, and child rearing and education." Mueller, 66 Haw. at 627, 671 P.2d at 1359 (quoting Carey v. Population Servs. Int'l, 431 U.S. 678, 685, 97 S.Ct. 2010, 2016, 52 L.Ed.2d 675 (1977)) (internal quotation marks and ellipses omitted). A report from the 1978 Constitutional Convention's Committee of the Whole, "reflecting the consensus of the assembly," id. at 625, 671 P.2d at 1357, stated that the right to privacy "is similar to the privacy right discussed in [federal] cases such as Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), etc." Comm. Whole Rep. No. 15, 1 Proceedings, at 1024. Griswold and Eisenstadt both involved contraception and Roe dealt with abortion. See Griswold, supra; Eisenstadt, supra; Roe, supra. Accepting the reasoning in Mueller, Justice Levinson wrote in Baehr: "We ultimately concluded in Mueller that the federal cases cited by the Convention's committee of the whole should guide our construction of the...

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