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Hawai'i Supreme Court Upholds Marijuana Prohibition


February 1998

On January 30, the Hawaii Supreme Court rejected in a 4-1 decision a constitutional challenge to the state's marijuana laws (People v. Mallan, 950 P. 2d 178, 1998 WL 34785 (1/30/98)) (Ken Kobayashi, "State Marijuana Law Upheld in Split Ruling," Honolulu Advertiser, January 31, 1998; Ken Kobayashi, "Marijuana Ban to Remain in Force," Honolulu Advertiser, February 23, 1998).

The court upheld the misdemeanor conviction of Lloyd Mallan, who was caught smoking marijuana in his car at a parking lot in 1990. Mallan was convicted of marijuana possession and fined $50 in the case. Mallan, a free-lance writer, was running for Congress as a Libertarian at the time of his arrest.

The decision is the first to analyze whether Hawai'i's 1978 privacy amendment to the state constitution allows people to possess marijuana. Marijuana advocates argue that the privacy amendment should allow marijuana use because it is an adult's private conduct and should be free from government interference.

The five justices wrote three separate opinions. The controlling opinion by Associate Justice Mario Ramil, who was joined by Chief Justice Ronald Moon, said that the right of privacy under the amendment does not include a right to possess and use marijuana. "Inasmuch as we are convinced that the (1978 Constitutional Convention) delegates who adopted the privacy provision did not intend to legalize contraband drugs, we also believe that the voters who later ratified the privacy provision did not intend such a result," he wrote. But their 36-page opinion contained a footnote that said their ruling only addresses the use of marijuana for recreational use, and that they were not deciding whether the amendment addresses marijuana smoking for other reasons.

In a concurring opinion, Associate Justices Robert Klein and Paula Nakayama agreed that the conviction should be upheld but did not agree entirely with the reasoning of Ramil's opinion.

In a 110-page dissent, Associate Justice Steven Levinson wrote that the marijuana possession law violates the constitutional right of privacy.

In 1975, the Alaska Supreme Court unanimously ruled that marijuana possession was protected by the privacy provisions of the Alaska Constitution (People v. Ravin, 537 P. 2d 494, Alaska 1975).

"It's not unexpected," said Deputy Public Defender Edward Harada. "To have a constitutional right to possess marijuana would seem against the weight of common sense for an appellate court. It's not something you see every day." However, Harada said the opinion leaves the door open for a challenge to permit the use of marijuana for medical purposes.

City Deputy Prosecutor Lori Nishimura said the decision will make it harder for other challenges based on the right of privacy. But she said the other challenges may be based on medical or religious use of marijuana.