State v. Mueller

• Decision Date: 03 November 1983
• Docket Number: No. 8732,8732
• Citation: 671 P.2d 1351,66 Haw. 616
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Lauren MUELLER, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 1351

671 P.2d 1351

66 Haw. 616

STATE of Hawaii, Plaintiff-Appellee, v. Lauren MUELLER, Defendant-Appellant.

No. 8732.

Supreme Court of Hawai'i.

Nov. 3, 1983.

Syllabus by the Court

1. Although the United States Constitution contains no express provisions guaranteeing to persons the right to carry on their lives protected by a zone of privacy, the Supreme Court has ruled that the penumbras of specific guarantees in the Bill of Rights create zones of privacy.

2. The marriage relationship is one lying within the zone of privacy created by several fundamental constitutional guarantees.

3. The right of an individual, married or unmarried, to be free from unwarranted governmental intrusions into matters so fundamentally affecting a person as the decision whether to bear or beget a child is a right protected by the Constitution.

4. Only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty" are included in the personal privacy protected by the Constitution.

5. The right of privacy guaranteed by the Constitution is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. But this right is not unqualified and must be considered against important state interests in regulation.

6. Although the states retain broad power to regulate obscenity, the power does not extend to mere possession by the individual in the privacy of his own home.

7. The summary affirmance of a lower court decision by the Supreme Court is a decision on the merits of the case and is therefore controlling precedent, unless and until reexamined by the Supreme Court.

8. A summary affirmance without opinion by the Supreme Court is not of the same precedential value as a Supreme Court opinion treating the question on the merits.

9. Every enactment of the Hawaii legislature is presumptively constitutional, and a party challenging a statute has the burden of showing unconstitutionality beyond a reasonable doubt.

10. The Supreme Court has made it clear that among the decisions that an individual may make without unjustified government interference are personal decisions relating to marriage, procreation, contraception, family relationships, and child rearing and education. State laws that burden an individual's right to decide in these areas may be justified only by a compelling state interest.

11. State regulation does not necessarily have to meet the compelling state interest test whenever it implicates sexual freedom or affects adult sexual relations. This standard is applicable only when the personal rights involved can be deemed fundamental or implicit in the concept of ordered liberty.

12. The Supreme Court has displayed no inclination to exalt sexual freedom per se or to promote an anomic society.

13. The decisions of the Supreme Court indicate there is a social interest in order and morality that enables a state legislature to act in the area.

14. Where the state statute does not infringe a constitutional right, the statute is valid if there is a rational basis for its enactment. Nothing in the federal constitution prohibits a state from acting where there is no conclusive evidence or empirical data supporting the legislation.

15. The duty of the Hawaii Supreme Court in construing the Hawaii Constitution is to give effect to the intention of the framers and the people who adopted the provision in question.

16. The privacy right adopted by the Constitutional Convention of Hawaii of 1978 is similar to the privacy right discussed in the Supreme Court decisions in Griswold v. Connecticut, Eisenstadt v. Baird, and Roe v. Wade.

17. A freedom that is protected by the right to privacy in Article I, Section 6 of the Hawaii Constitution must be one ranked as fundamental in the concept of liberty that underlies our society.

18. Where the trial court reaches a correct decision it must be affirmed, even though the court gave a wrong reason for the action.

James D. Comack, Honolulu (Karl K. Sakamoto, Honolulu, on opening brief; Alvin T. Sasaki with law clerk Keith Tanaka, Honolulu, on reply brief), Deputy Public Defenders, for defendant-appellant.

Arthur E. Ross, Deputy Pros. Atty., Honolulu, for plaintiff-appellee.

Before LUM, C.J., and NAKAMURA, PADGETT, HAYASHI and WAKATSUKI, JJ.

NAKAMURA, Justice.

The Supreme Court teaches us "that a right to personal privacy, or a guarantee of certain areas or zones of privacy," is implicit in the United States Constitution, Roe v. Wade, 410 U.S. 113, 152, 93 S.Ct. 705, 726, 35 L.Ed.2d 147 (1973); Article I, Section 6 of the Hawaii Constitution explicitly declares that "[t]he right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest." Defendant-appellant Lauren Mueller (the defendant) claims the State invaded a constitutionally protected area of privacy when it prosecuted her for prostitution on the basis of sexual conduct involving two consenting adults and occurring in her home. But we are not convinced a decision to engage in sex for hire is a fundamental right in our scheme of ordered liberty, and we affirm her conviction.

I.

The defendant was charged in the District Court of the First Circuit that she "did engage in, or agree to engage in, sexual conduct with another person, in return for a fee, in violation of Section 712-1200 of the Hawaii Revised Statutes." She moved to dismiss the charge, asserting a "constitutional right to privacy for activities that were conducted in the privacy of her own home." At the hearing on the motion the parties entered into a stipulation of facts, agreeing that the activity in question took place in Lauren Mueller's apartment, the participants were willing adults, and there were "no signs of advertising" anywhere in the apartment building.

The defendant's argument to the court was that the activity's private setting and the absence of public solicitation set her case apart "from every other prostitution case." And she maintained a decision to engage in sex with "a voluntary adult companion" was "well within her constitutional right to privacy." The district court, however, found her argument unpersuasive, ruled the State had a "compelling interest in controlling prostitution in private residences as well as on the streets," and denied the motion.

The case proceeded to trial, and the State offered the testimony of several police officers, including that of the officer responsible for arranging the assignation leading to her arrest. The defendant elected not to rebut this evidence; but she renewed her constitutional objection to the prosecution. The motion was denied again, and a judgment of conviction was entered by the district court.

II.

The sole issue posed on appeal is whether the proscriptions of Hawaii Revised Statutes (HRS) § 712-1200 ¹ may be applied to an act of sex for a fee that took place in a private apartment. With Roe v. Wade, supra, as the point of departure, the defendant argues the privacy guaranteed by the federal and state constitutions prevented a valid application of the statute to the act in question. We begin our analysis by examining the sources and scope of the federally established right to personal privacy.

A.

The United States Constitution contains "no express provisions guaranteeing to persons the right to carry on their lives protected from the 'vicissitudes of the political process' by a zone of privacy or a right of personhood." L. Tribe, American Constitutional Law 893 (1978). But in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), the Supreme Court found "that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance," 381 U.S. at 484, 85 S.Ct. at 1681, and concluded "[v]arious guarantees create zones of privacy." ² Id. The marriage relationship, it held, was one "lying within the zone of privacy created by several fundamental constitutional guarantees." 381 U.S. at 485, 85 S.Ct. at 1682. And the Connecticut statute forbidding the use of contraceptives was struck down as being "repulsive to the notions of privacy surrounding the ... relationship." 381 U.S. at 486, 85 S.Ct. at 1682.

Thus the privacy accorded constitutional protection by Griswold inhered in the marital relationship. But when the Court subsequently invalidated a Massachusetts law regulating the distribution of contraceptives in Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), it recognized that this right also existed apart from marriage. For as the Court explained, "[i]f the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusions into matters so fundamentally affecting a person as the decision whether to bear or beget a child." 405 U.S. at 453, 92 S.Ct. at 1038 (emphasis in original).

Whether the right is broad enough to accommodate a woman's decision to seek an abortion was the question in Roe v. Wade, supra. The Court observed that earlier decisions made "it clear that only personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty,' Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937), are included in this guarantee of personal privacy." Roe v. Wade, 410 U.S. at 152, 93 S.Ct. at 726. That the guarantee had been extended to activities relating to marriage, procreation, contraception, family relationships, and child rearing and education was also noted. Id. at 152-53, 93 S.Ct. at 726-27. And the Court concluded "[t]his right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action ... or ... 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." Id. at 153, 93...