State v. Kantner, s. 4995

• Decision Date: 20 January 1972
• Docket Number: 5005,Nos. 4995,s. 4995
• Citation: 53 Haw. 327,493 P.2d 306
• Parties: , 53 Haw. 371 STATE of Hawaii, Plaintiff-Appellee, v. Paul Lorin KANTNER, Defendant-Appellant. Application of David Allen NOWELL and Claude Ernest Winter, Petitioners-Appellants, For a Writ of Habeas Corpus Directed to Antone S. Olim, Superintendent ofHawaii State Prison, Respondent-Appellee.
• Court: Hawaii Supreme Court

Page 306

493 P.2d 306

53 Haw. 327, 53 Haw. 371

STATE of Hawaii, Plaintiff-Appellee, v. Paul Lorin KANTNER, Defendant-Appellant Application of David Allen NOWELL and Claude Ernest Winter Petitioners-Appellants For a Writ of Habeas Corpus Directed to Antone S. Olim Superintendent ofHawaii State Prison, Respondent-Appellee.

Nos. 4995, 5005.

Supreme Court of Hawai'i.

Jan. 20, 1972.

Rehearing Denied Feb. 25, 1972.

Syllabus by the Court

1. The legislature has a broad power to define terms for a particular legislative purpose and the courts, as a general rule, are bound to follow the legislative definitions of terms rather than commonly accepted dictionary, judicial or scientific definitions.

2. Although marihuana is not a narcotic, scientifically defined, inasmuch as the word 'narcotic' in popular usage includes marihuana, the inclusion of the drug marihuana within the legislative definition of the term narcotic is not unreasonable and arbitrary so as to violate the constitutional guarantee of due process of law.

3. An accused has standing to challenge only the offenses with which he has been charged.

4. A statute is presumed to be constitutional.

5. The party attacking the statute must show with convincing clarity that the statute is unconstitutional.

6. Assuming that it can be shown that the legislature has enacted legislation on the basis of fear induced hysteria, such proof does not relieve the party attacking the statute of the burden of clearly showing that no rational factual basis exists to support the statute.

7. Dissimilarity between the drugs marihuana and alcohol form a basis for dissimilar legislative treatment of the two drugs.

Hyman M. Greenstein, Honolulu, for appellants.

Michael Weight, Deputy Pros. Atty., Honolulu (Barry Chung, Pros. Atty. with him on the brief), and Thomas M. Pico, Jr., Deputy Atty. Gen. (Bertram T. Kanbara, Atty. Gen., and Morton King, Senior Deputy Atty. Gen., Honolulu, with him on the brief), for appellees.

Before RICHARDSON, C. J., and MARUMOTO, ABE, LEVINSON and KOBAYASHI, JJ.

RICHARDSON, Chief Justice, in which MARUMOTO, Justice, joins, announcing the judgment of the Court.

The sole issue presented in this consolidated appeal is the constitutionality of the statutory scheme for the control of the possession of marihuana. HRS § 329-5, as amended by Act 161, S.L.H.1969, which served as the basis of parole revocation of petitioners Nowell and Winter and upon which defendant Kantner was convicted, provides as follows:

Additional acts prohibited; penalty. No person shall knowingly . . . possess . . . any narcotic drug as defined by section 329-1 except as provided in this chapter. . . .

Under HRS § 329-1 the term 'narcotic drug' is defined as follows:

'Narcotic drugs' mean any of the following . . .

(5) Marihuana. Marihuana includes the following substances under whatever names they may designate: all parts of the plant cannabis sativa, L., whether growing or not, the seeds thereof, the resin extracted from any part of the plant, and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin, but, shall not include the sterilized seed of the plant which is incapable of germination.

Appellants concede that the State may properly regulate the possession of marihuana under the police power. The thrust of appellants' argument is that the State has so unreasonably and irrationally exercised its police power that the present statutory scheme for the prohibition of possession of marihuana violates the constitutional guarantees of equal protection and due process of law. Uncontroverted evidence showed that in some respect marihuana was unlike the opiates and other drugs within the scientific definition of the word 'narcotic'. The evidence, however, tended to show that marihuana has many of the properties of a narcotic, scientifically defined. ¹

Proceeding from the proposition that marihuana is not a narcotic scientifically defined, appellants contend that the defining of the term narcotic so as to include marihuana and the inclusion of marihuana within the same class as the more harmful narcotic drugs is so unreasonable and arbitrary as to violate the constitutional guarantees of equal protection and due process of law.

The legislature has a broad power to define terms for a particular legislative purpose, and the courts, as a general rule of construction, are bound to follow legislative definitions of terms rather than commonly accepted dictionary, judicial or scientific definitions. Bailey's Bakery, Ltd. v. Borthwick, 38 Haw. 16 (1948); Akai v. Lewis, 37 Haw. 374 (1946); Hawaii Consolidated Ry. v. Borthwick, 34 Haw. 269 (1937). We think the requirements of due process place some limitation on the manner in which a legislature may use words. If we believe that the use of the word narcotic to include marihuana were so misleading as to confuse legislators in their law-making activities ² or to confuse persons of common understanding in their effort to determine whether the possession of marihuana constitutes a crime, it would clearly be our duty to declare the unconstitutionality of the statute. Inasmuch as the word 'narcotic' in popular usage includes marihuana, it is no violation of the guarantee of due process of law for the legislature to employ such usage over the more precise usage favored by the scientific community. Cf., Territory v. Tam, 36 Haw. 32, 37 (1942).

We think that appellants' contentions concerning the legislative classification of marihuana are untenable. Appellants contend that the legislature has placed the offenses of possession of marihuana and the possession of narcotic, scientifically defined, within the same legislative classification. We disagree; the legislature has provided for markedly different penalties for possession of marihuana as opposed to narcotics, scientifically defined. ³ Certain offenses involving marihuana are treated the same as the corresponding offense involving a narcotic scientifically defined, for example, the cultivation, production or manufacture of the drug. These offenses, however, are not before us and under the doctrine of State v. Grahovac, 52 Haw. 527, 480 P.2d 148 (1971), we decline to consider these related offenses. Were we to consider the supposed constitutional problem involving the inclusion of marihuana offenses within the same classification as offenses involving narcotics scientifically defined, we would find the following language of the Massachusetts Supreme Judicial Court most persuasive:

. . . All of these substances (marihuana and the narcotics scientifically defined) are 'mind-altering' drugs. The fact that some are more potent or more dangerous than others does not render the classification arbitrary. To some degree they are all capable of producing psychotic disorders, states of intoxication and psychological dependency, and consequently present some danger to the health and safety of the community. We do not think that the classification of marihuana with the others is arbitrary or irrational. Commonwealth v. Leis, 355 Mass. 189, 197, 243 N.E.2d 898, 905 (1969).

Appellants' main contention concerning classification is the argument that the properties of the drugs alcohol and marihuana are so similar that a provision for a penalty for the possession of marihuana in a case where there is none made for possession of alcohol violates the constitutional guarantee of the equal protection of the laws. The issue then is not whether marihuana is more like alcohol than heroin but whether there are sufficient dissimilarities between alcohol and marihuana to support different legislative treatments. We think alcohol and marihuana are sufficiently dissimilar to justify dissimilar legislative treatment. Alcohol is a drug about which much is known concerning the long-term effect on the human body; of marihuana, much less is known. On that basis alone, treatment dissimilar to that given alcohol is justified, at least until scientific research conclusively establishes the long-term effects of the drug marihuana. Since it is presumed that statutes are constitutional, Bishop Trust Co. v. Burns, 46 Haw. 375, 474, 381 P.2d 687 (1963); McKenzie v. Wilson, 31 Haw. 216 (1930); Territory v. Armstrong, 28 Haw. 88 (1924) and since the party attacking the statute must show with convincing clarity that the statute is unconstitutional, Hasegawa v. Maui Pineapple Co., 52 Haw. 327, 475 P.2d 679 (1970); Koike v. Board of Water Supply, 44 Haw. 100, 352 P.2d 835 (1960), the absence of sound scientific data concerning the long-term effects of marihuana renders appellants' burden insurmountable.

Appellants argue that Hawaii's original narcotics legislation was enacted in 1931, during a period of American history in which public attitude toward marihuana was largely colored by false and unsubstantiated claims concerning the dangers of marihuana. Accordingly, appellants argue, the statute must fall in light of present knowledge concerning marihuana. While we concede that evidence tends to show a less than enlightened public understanding concerning the nature of the dangers of marihuana during the period in question, we cannot accept appellants' contention. There has been no showing that a general nation-wide hysteria over the marihuana question did in fact induce the 1931 Territorial Legislature to act. ⁴ Assuming such a connection could be established, it would mean very little. ⁵ Assuming arguendo that the legislature did act on the basis of fear-induced hysteria, the party attacking a statute would not be relieved from the burden of clearly showing that no rational factual basis exists to support the statute.

With respect to appellants' argument that the use of marihuana involves an issue of 'fundamental liberty' and hence, a different standard of review should be applied to the statute, we do not think that appellants have established that the interest of the...