Source: The Honolulu Advertiser Author: Ken Kobayashi Advertiser Court Writer Contact: Tue, 23 Feb 1998 MARIJUANA BAN TO REMAIN IN FORCE A recent Supreme Court ruling did not legalize recreational smoking of marijuana. However, the high court left open the possibility of legalizing the drug for medicinal or religious purposes. Honolulu attorney Jack Schweigert boldly predicted two years ago that the Hawaii Supreme Court would strike down state marijuana laws. The basis for the action, he predicted, would be a 1972 landmark decision and Hawaii's 1978 constitutional amendment protecting rights of privacy. But after considering one of the Schweigert's former cases for more than four years, the court last month dashed the hopes of marijuana advocates. The case produced three separate opinions, but the court held that the privacy amendment does not protect smoking of marijuana for recreational purposes. The court left the door slightly ajar, however, for allowing marijuana for medical and religious uses. An analysis of the opinions indicates that Hawaii courts won't overturn state laws making marijuana smoking illegal in the foreseeable future. University of Hawaii constitutional law Professor Jon Van Dyke, said the privacy amendment had been the "best hope for the time being." The only other state to overturn marijuana laws on the basis of constitutional privacy provisions is Alaska, where the state Supreme Court ruled in 1975 that the state constitution protects the right to smoke marijuana in one's home. Schweigert was the trial lawyer for Lloyd Jeffrey Mallan, 54, of the Big Island, who in 1990 was fined $50 for smoking marijuana in a car at the Waikiki Shell parking lot. Mallan was a Libertarian candidate for Congress at the time. The Public Defender's Office handled the appeal, citing the privacy amendment and a "right to be left alone" in challenging the conviction. There appeared to be a basis for the argument. Defining Privacy The Hawaii Supreme Court traditionally has recognized and expanded the rights of native Hawaiians, members of the public and criminal defendants. The court flirted with the idea of striking down marijuana laws with the 1972 decision in which it upheld the statutes and affirmed the conviction of Paul Kantner, a guitarist with Jefferson Airplane, for marijuana possession during a visit. But the vote was 3-2. Two justices said they believed an implicit right of privacy established in the state constitution permits one to smoke marijuana. In 1978, voters ratified an amendment adopted by a constitutional convention in which that privacy right was made explicit: "The right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest." Since then, the high court has wrestled with defining the parameters of that amendment. Justices in 1988 cited the provision in striking down Hawaii's laws against pornography. Five years earlier, however, the court refused to recognize a right of privacy to allow a person to engage in prostitution at home. It also has refused to base its same-sex marriage decision on the amendment, ruling instead that state laws banning such marriages violate equal-protection provisions. When the court received the Mallan case in 1993, it got its first chance to address whether the amendment protects marijuana possession. A Lone Dissenter As months, then years, passed, city prosecutors worried the court would rule against them, while marijuana advocates speculated that the court would overturn state laws. On Jan. 30, however, the five justices voted 4-1 to affirm Mallan's conviction. Associate Justice Mario Ramil, who was joined by Chief Justice Ronald Moon, reasoned in a 36-page opinion that the amendment protects activity deemed fundamental to traditional concepts of liberty. Prostitution and smoking marijuana do not qualify, he wrote, though the First Amendment rights of free speech and free press put pornography in a different category. Ramil rejected the suggestion that the court follow the Alaska Supreme Court's reasoning, noting that the case is not binding on the Hawaii Supreme Court. Courts in Arizona, California, Florida, Washington and Michigan also have rejected the notion that marijuana smoking is protected under the rights to privacy. Criticizing previous decisions upholding marijuana convictions, Steven Levinson concluded that while the state's police powers are limited to regulating harmful conduct, the privacy amendment grants people a "right to be left alone." He saw Mallan's right to the privacy to smoke marijuana as conflicting with government's power to regulate drugs. Little Change Anticipated Ramil wrote that Levinson appears to be advocating "judicial legislation" while Klein wrote that he could not agree with Levinson's "unbridled interpretation" of the privacy amendment. Both contended that adopting Levinson's position would lead to legalizing nearly all contraband drugs in the home or any private place. With Levinson as a minority of one, it's doubtful that marijuana will be legalized for recreational use. The state House Health Committee killed a bill that would have permitted marijuana use for medical reasons - the only major piece of marijuana legislation pending this session. A POTENTIAL WINDOW Some marijuana advocates, however, see a glimmer of hope in Ramil's opinion. He stressed that the court's decision deals only with marijuana smoking for recreation, not for other purposes. "They left the door open for others to challenge the tyranny of the law," said Mallan, a writer and photographer, who, while disappointed that his conviction was upheld still considers the ruling to be a significant step forward for advocates of marijuana use. Schweigert currently is representing Big Island resident Dennis Shields of the Religion of Jesus Church in challenging a conviction of marijuana possession. According to Schweigert, Shields contends that using marijuana is an important part of the religion and enables the followers "to communicate with God." Schweigert, who ran as a 1992 Libertarian candidate for mayor, also said the Shields case involved marijuana found in the home rather than in a car in a parking lot. "It's so very important that they allow marijuana in the home," he said. "It stands for the benchmark of freedom. If they start taking away what a person can do in the privacy of the home, I guess with that same philosophy they can ban peanut butter."