State v. Kantner

PAUL LORIN HAWAII, OF Plaintiff-Appellee STATE KANTNER, Defendant-Appellant

No. 4995 ALLEN NOWELL and DAVID In re Application WINTER, CLAUDE ERNEST Petitioners-Appellants, Habeas etc. Writ of Corpus,

No. 20, 1972 January MARUMOTO, RICHARDSON, C.J., ABE, KOBAYASHI, LEVINSON JJ. RICHARDSON, J., MARUMOTO, OPINION OF C. IN WHICH

J., JOINS, ANNOUNCING THE THE OF COURT JUDGMENT The sole issue this consolidated presented appeal the control constitutionality the statutory scheme § of 329-5, the of marihuana. amended possession HRS as Act S.L.H. which served as the basis of parole revocation of Nowell and Winter and which petitioners upon convicted, defendant Kantner was follows: provides Additional acts No shall prohibited; penalty. person . . . . .. narcotic as defined knowingly possess any section 329-1 . . . except provided chapter. § Under HRS 329-1 the term defined as “narcotic drug” follows:

‘Narcotic mean of . the . . drugs’ any following Marihuana. Marihuana includes the

(5) following substances under whatever names they may designate: sativa, L., all whether grow- parts plant cannabis thereof, from not, resin extracted or the seeds ing manufac- of compound, plant, every any part of mixture, salt, derivative, ture, preparation include resin, but, shall seeds, or its plant, of is incapable plant seed sterilized germination. regulate may properly State concede Appellants The power. under the police marihuana

the possession unrea- has so is that argument thrust appellants’ its sonably irrationally exercised power police scheme present statutory prohibition possession marihuana violates the constitutional guarantees equal and due evidence Uncontroverted protection process law. showed that some marihuana was unlike respects and other within the scientific definition of the opiates drugs however, word evidence, “narcotic”. The tended to show narcotic, that marihuana of a has many properties defined.1 scientifically from the marihuana is not

Proceeding proposition defined, narcotic contend that scientifically appellants of the term narcotic include marihuana defining so as to and the inclusion of marihuana same as the within the class more harmful narcotic and arbi- so unreasonable drugs as to trary violate constitutional guarantees equal protection due of law. process broad legislature terms for define power particular courts, legislative as a purpose, general rule of construction, are bound to follow defini- legislative tions of terms than rather commonly accepted dictionary, or judicial scientific definitions. Bailey’s Ltd. v. Bakery, Borthwick, Lewis, 38 Haw. 16 37 374 Akai Haw. (1948); v. Borthwick, Hawaii Consolidated 34 269 (1946); v. Haw. Ry. We think due (1937). the of requirements process place some limitation on the in manner which legislature may use words. If we believed of that the use the word narcotic to include marihuana were so as to confuse misleading drugs property of 1The evidence tended to show that narcotic have the doses, pain produce relieving stupor sleep higher in small invoke in doses and by Except eventually respiratory paralysis. ability the to cause death for through paralysis, drugs respiratory properties death narcotic cause these of “tolerance”, properties phenomenon shared with marihuana. of where take, time, period increasingly larger by required user the is to over of phenomenon of doses in order to achieve the same initial and the effect nausea, salivation, whereby “physiological dependence,” symptoms the of pain accompany the convulsions and extreme withdrawal of the to the defined, user, narcotics, scientifically properties of but not were shown to be properties of marihuana. confuse their activities2 or to legislators law-making of common in their effort to deter- persons understanding mine of constitutes whether the marihuana possession crime, it would our the unconstitu- be to clearly duty declare of “narcotic” in bhe statute. Inasmuch as word tionality the marihuana, includes no violation of popular usage of due of law for guarantee process legislature such favored over more employ usage precise usage Tam, 32, the scientific Haw. community. Territory Cf., 37 (1942). think that contentions concerning leg-

We appellants’ of untenable. islative classification marihuana are Appellants has of contend the offenses legislature placed narcotics, marihuana and the possession possession defined, classifica- within the same scientifically legislative tion. We markedly disagree; legislature provided as different of marihuana penalties opposed possession narcotics, offenses involv- defined.3 Certain scientifically of- marihuana are as the ing corresponding treated same defined, for fense a narcotic example, involving scientifically misleading proposition legislation in a form not be enacted 2The III, Constitu legislators Hawaii Article section contained subject, tion, provides part: which “Each law shall but one embrace (1939), 203, Goddard, expressed in In re 35 Haw. shall the title.” subject Act, purpose Organic the “one under the indicated that the decided expressed in rule” was: title second, [F]irst, “logrolling” legislation; hodgepodge prevent . . or . provisions upon legislature prevent surprise means or fraud intimation, might gave there- no and which in the bills which the titles third, unintentionally adopted; carelessly fore be overlooked legislative pro- apprise through fairly people, publication such being made, subjects legislation ceedings usually that are being considered, opportunity they heard order thereon, otherwise, they by petition desire. if so shall provides 329-5, amended, § that for Act S.L.H. 3HRS offenses, subsequent guilty possession of mari who is found first and one year, subject imprisonment or for not “for not than one huana is more guilty year years.” of the Persons found less than one nor more than five 329-1, possession drugs drugs § mari than defined as narcotic in HRS other years huana, subject imprisonment for the first than of “not more five are years any subsequent offense.” for more than ten offense” “not cultivation, These or manufacture of the drug. production offenses, however, us and the doctrine are not before under Grahovac, 527, of State v. 52 Haw. 480 P.2d 148 (1971), we consider related Were we decline to these offenses. consider the constitutional involving supposed problem inclusion of marihuana offenses within the same classifica- defined, tion as offenses scientifically narcotics involving we would find the of Massachusetts language following Court most Supreme persuasive: Judicial . . . All of nar- these substances and the [marihuana cotics are “mind-altering” drugs. scientifically defined] The fact that some are more or more potent dangerous than others does not render the classification arbitrary. To some are all degree they capable producing psy- disorders, chotic states of intoxication and psychological dependency, some present danger consequently the health and do of the not think safety We community. the classification of marihuana with is the others Leis, Commonwealth arbitrary irrational. 898, N.E.2d Mass. (1969). main contention

Appellants’ classification is the concerning and mari- argument alcohol properties drugs huana are so similar that a for the penalty provision possession marihuana in a case where there none made of alcohol possession violates the constitutional guarantee then is not the laws. issue equal protection whether marihuana is more alcohol than heroin but like whether there are sufficient dissimilarities between alcohol and marihuana to different treatments. support legislative We think and marihuana alcohol dissimilar sufficiently Alcohol is dissimilar treatment. justify legislative drug about which much is known effect concerning long-term marihuana, on the human much On body; less known. alone, that basis treatment dissimilar to that alcohol given least until scientific research justified, conclusively establishes the effects of the long-term marihuana. constitutional, it is Since that statutes are presumed Bishop 332 Burns, 375, v. 381 P.2d 687

Trust 46 Co. Haw. (1963); Wilson, Arm- v. v. McKenzie 31 Haw. 216 Territory (1930); 28 the Haw. 88 and since the attacking strong, party (1924) must show with that the statute statute convincing clarity Co., unconstitutional, 52 Haw. v. Maui Hasegawa Pineapple 327, Supply, 475 P.2d 679 Koike v. Board Water (1970); of 44 100, Haw. sound the of P.2d absence (1960), scientific data marihuana effects concerning long-term renders burden insurmountable. appellants’ Hawaii’s narcotics legis- that original argue

Appellants American 1931, in period lation was enacted during was toward marihuana attitude which public history con- claims and unsubstantiated colored false largely of marihuana. Accordingly, appellants cerning dangers knowledge fall present the statute must light argue, evidence marihuana. While we concede that concerning than understanding tends to show a less public enlightened of marihuana during the nature of the concerning dangers conten- we cannot accept appellants’ period question, nation-wide has been no that general tion. There showing did in fact induce over the marihuana hysteria question a con- such to act.4 Assuming 1931 Territorial Legislature little.5 established, mean very it would could be nection basis did on the act that the legislature Assuming arguendo a statute attacking fear-induced hysteria, party showing burden of clearly would be relieved from the statute. factual basis exists to support that no rational use argument With appellants’ respect and, “fundamental liberty” involves an issue marihuana review be should hence, applied standard a different 1931, pre- 152, Act. S.L.H. original narcotic law was of a enactment 4The hysteria general marihuana alleged nation-wide height dating separately 1959, 228, marihuana treated was years. S.L.H. Act Until several legisla- defined, in the narcotics, scientifically included and was not from the drugs. narcotic tive definition thoroughly Legislature investi compels nothing know of 5“We enacting Com a law.” medical when evidence gate available scientific (1969). 898, 192, 189, 901-2 Leis, supra, 243 N.E.2d 355 Mass. v. monwealth established not think that statute, we do appellants and using individual interest of the possessing state the class of interests marihuana is within of pro degree and federal constitutions accord highest for the is limited authority We that there tection. recognize mind-altering another the use peyote, proposition valid as a in limited circumstance drug, may protected exercise of native American Indian religion. People 61 Cal. 2d 394 P.2d 40 Cal. Woody, Rptr. P. 219, 243 contra, 75 Mont. State v. (1964); Big Sheep, denied, 819, Udall, 1067 F.2d cert. Oliver v. 306 (1926); a however, that use of doubt, 372 We U.S. 908 (1962). a with connection an absent intimate mind-altering drug, freedom”, of review the standard requires “preferred Connecticut, of Griswold v. Our reading suggest. appellants in conclude, did court leads us to 381 U.S. 479 (1965) 171, 597, 65 Cal. Rptr. v. 257 Cal. Aguiar, App.2d People no funda there is denied, U.S. 970 cert. 393 (1968) of euphor and the use possession mental guarantee protecting Griswold, Court decline, as did the ic We Supreme drugs. of Lochner the invitation at 481-82 to 381 U.S. accept supra, York, super-legis 198 45 “sit v. New U.S. (1905) of laws wisdom, need and to determine the propriety lature affairs, social business touch economic problems, Griswold, of whether the test As we read supra, conditions.” to rest under the “penumbra” considered an bemay activity tnust activity freedom is that the question aof preferred of desirable, the exercise essential, not merely enumerated rights.6 specifically Griswold, by supra, reading laid down of the test 6We are led to this There methodology 481-83. 381 U.S. at of characterization its the Court’s Griswold, simply logical supra, ex suggests the result the Court (1925) Meyer Sisters, v. Ne Society v. U.S. tension of Pierce supra, Pierce, Meyer, (1923). supra, braska, The Court uses 262 U.S. 390 pattern penumbral freedom Amendment First and related cases show opinion, U.S. at According analysis. Griswold speech Court’s pattern following discernible: Society Sisters, supra, right children one’s By to educate Pierce v. Affirmed.

Hyman Greenstein M. for appellants.

Michael Weight, Deputy Prosecuting Attorney (Barry Chung, with Prosecuting him Attorney brief) Jr., Pico,

Thomas M. General (Bertram Deputy Attorney T. Kanbara, General, and Morton King, Senior Attorney General, with Deputy Attorney him on the brief) appellees. ABE,

CONCURRING OPINION OF J. It is conceded appellants regulation use of is a marijuana reasonable and exercise legitimate police However, State. power this contend that they the inclusion statute, in the narcotic HRS Ch. is unreasonable and violates Due Process Clauses the United States Constitution Hawaii State Constitution. The presented appellants question as the sole issue on appeal.

I. contend that Appellants does not have applicable as one chooses is made First the States the force Meyer By Nebraska, supra, dig and Fourteenth Amendments. the same nity given study language private the German in a school. words, may not, consistently In spirit other the State with of the First the Amendment, spectrum knowledge. right contract the available speech press only right freedom of and to includes the to utter or print, right distribute, receive, right right but the to the read to. (Martin 143) Struthers, 141, v. inquiry, 319 U.S. and freedom of freedom (see thought, 183, Updegraff, and freedom to teach Wieman v. 344 U.S. — 195) university community. Sweezy indeed the freedom of v. the entire Hampshire, 249-50, 261-63; 234, States, New 354 U.S. v. Barenblatt United 112; Bullitt, Baggett 360 U.S. 377 U.S. 369. protection The reason that the above cited activities must fall under peripheral rights specific “[w]ithout of the First Amendment is that those rights light In would be less secure.” U.S. 482-83. warn- Court’s York, process approach ing to eschew due v. New the substantive of Lochner supra, penumbral we think test of a constitutional must restricted viability specifically that which is essential to the continued enu- law, rights. personal merated test not of Otherwise the becomes one but of , judge. predeliction of whim and common attributes and present narcotics does not come within “narcotics,” that, the scientific definition therefore, the classification of with narcotics is marijuana irrational and unreasonable and violates due process On the other guaranty. hand the contends that once the statute defines narcotic marijuana it is among drugs, immaterial definition is not identical statutory the scientific definition.

The two mari- witnesses who testified defined expert to be a and I juana no doubt that drug marijuana may be classified as a drug. from written articles on the

Judging by experts subject characteristics marijuana that it has certain appears Casarett, of narcotics. who called Dr. was appellants as well cocaine, as the mor- testified appellee, opium, all can be classified as phine, marijuana euphotic, as stimulants and He also testified that “a nar- intoxicants. * * * is, cotic definition, in its strictest compound one the central nervous stupefies, depresses tends system, produce these are often taken as sleep, en- synonymous In stated, tities.” his he testimony contrary appel- contention, lants’ that the definition of a narcotic did not in- a capacity clude tolerance or addic- produce physical However, tion. also he stated that in his tolerance opinion can be and that developed is marijuana opinion sup- ported the current and medical pharmacological writers. This tolerance he stated is more defined properly as a “drug dependence,” is a de- basically psychic then pendence. He concluded that de- physiology is more or less pendence irrelevant, and that an in an addicting over-all sense.

However, whether or not technically “narcotic” irrelevant. with Chief agree Justice Richardson’s statement that:

“The broad to define terms legislature power for a courts, end particular legislative purpose, construction, rule are bound general to follow legis- 336 than ac- commonly definitions of terms rather

lative * ** definitions. or scientific judicial cepted dictionary, in- ‘narcotic’ in Inasmuch as word usage popular marihuana, cludes it is no violation the guarantee due of law for the such process employ legislature over the more favored the scien- usage precise usage by * * *” tific community. I believe that the issue more interesting pertinent raised the Due Process and Protection Clauses by Equal “narcotic,” not whether mari- is a but whether is, narcotics, like harmful juana sufficiently general welfare that marijuana may prohibited possession same narcotics way possession prohibited. However, made only argument by appellants “narcotic,” is not and cannot be in- technically Thus, cluded in a scheme with narcotics. it is statutory true Pro- to reach other issues raised unnecessary Equal However, tection Clause the Due Process Clause. inas- much as reached other some of those justices today issues, I will outline my briefly thoughts.

II. I do not with Chief that one Richardson agree Justice does the fundamental constitutional enjoy right Lee, I in the dissent in State smoke stated marijuana. Haw. P.2d 573 that believed that under (1970), I, 2 of Art. Sec. Hawaii State Constitution1 one fundamental to make a himself as fool of liberty others, his act does not and that the state long endanger conduct of a under regulate person pain criminal when affect the his actions punishment gen- only I, 1Art. Seel Hawaii State Constitution reads: equal persons and inalien- “All are free nature and are in their inherent rights enjoyment life, liberty rights. Among and the able these are the happiness, possessing property. pursuit acquiring These recognize obliga- rights people corresponding cannot endure their unless responsibilities.” tions and harmed or is, likely where others eral welfare —that to Thus, “enjoyment I that right be harmed. believe smok- includes life, and the of happiness” liberty pursuit may smoke and one’s marijuana of marijuana, ing such affects or curtailed unless smoking not be prohibited welfare. general I I read numerous on have articles marijuana how- I believe that some gained subject, knowledge ever, I an consider far from expert. myself being cannot whether those who claim Truthfully,- say take use of who is harmful correct those marijuana are correct. view are opposite It Professor Kaplan adopted would that appear John an view when he says: objective “ are that long-term oday, allegations [T] it but that illness rather use causes mental marijuana deterioration —brain of mental

causes another type foreign reliance is upon damage. Primary placed again dif- studies, but these suffer from methodological great and, use of fact, that moderate ficulties seem to agree study, is not harmful. The most reliable foreign the drug Commission, well as of the Indian as that Hemp Drugs States, long- indicate the recent studies in the United serious. effects of most use are not marijuana range use of are great effects heavy long-term A that not known. reason this is part major difficulties in the studies methodological purport find are so that one simply serious damage significant addition, cannot In of determining tell. problem harm an mental ex- due substance long-range any difficult one. tremely de- hand, the other medical groups

“On not com- are drug nounced marijuana dangerous extent, course, drug To some wrong. pletely Prohibition, The New Marijuana, Kaplan, dangerous.” 193-94. pp.

He then 314-15: says, pages “In the case of as in the marijuana, just case tobacco, alcohol or no matter what means of control will there be those who will use the attempted, their own and to detriment. The society’s dangers have been but as grossly exaggerated, V, shown in far from Chapter they negligible espe-— And cially total number very young. although affected still not com- seriously may be very' impressive pared of other magnitude public-health problems, there is no reason we should not why strive keep low as practicable.

“It clear, would seem therefore, should we treat marijuana considerably moie than dowe respectfully * * *” sugar candy. from the multitude of Judging is consid- there writings, erable on the issue controversy whether is or is marijuana not harmful. it Also was testified that the using analogy an 5 is known about iceberg only and its percent marijuana effects and therefore can be water, considered above is unknown or under percent hand, On other the water. the of alcohol and tobacco and subject their effects 90 per- cent is known or above water. course,

Of in the my opinion, finding marijuana harmful user does not the the under its authorize State its police use under threat of power prohibit punishment. I Lee, Under the doctrine stated in dissent State v. Haw. 465 P.2d 573 must State (1970), prove use is not harmful to the user but also to only general However, before can its use. public prohibit have conceded both in the appellants trial court and on appeal un- may use regulate Thus, der its under the record of this police power. case State was not this It would required prove point. unreasonable for this court that, therefore to hold spite this concession in the State should have met proceedings,' its burden of on this proof point.

Therefore, under case, I record am compelled to affirm the trial court. judgment LEVINSON,

DISSENTING OPINION OF J.

I dissent.

The crucial issue in this case is whether person to induce in him- constitutionally protected right purposely self, a mild mental condition private, hallucinatory I use believe that there is such through marihuana. and that it is founded the constitutional upon rights I, personal autonomy article privacy, guaranteed by sections 5 of the Hawaii Constitution as well Fed- due clause of the fourteenth amendment process § eral I Constitution. believe that HRS 329-5 1971) (Supp. violates both constitutions because it unreasonably infringes and, therefore, these upon would reverse. rights I. THE RIGHT TO BE LET ALONE AND ITS RELATION PRIVATE,

TO THE PERSONAL USE OF MARIHUANA. In our of law the system personal autonomy privacy individuals afforded the consideration. highest evinces a desire to free limited very concept government State, from the unbounded control of in order persons most their own life they productively pursue the best articulation of the values inherent goals. Perhaps in American constitutional law was Mr. given by Justice Brandeis in his Olmstead now famous dissenting opinion States, v. 438, United 277 478 with quoted U.S. (1928), 557, 394 564 Stanley v. U.S. approval Georgia, (1969): The makers of our Constitution undertook to secure of They conditions favorable the pursuit happiness. nature, of of recognized man’s significance spiritual his of his intellect. knew that They only feelings life are and satisfactions of part pain, pleasure, 340

be found in material things. They sought protect Americans in their their their emotions beliefs, thoughts, conferred, and their sensations. They against Government, the to be most right alon'e—the compre- let hensive of and the most valued civilized rights right by men. (emphasis added)

This of our lies at the heart right personal autonomy ideas find ex- its system government. Some component in the constitutional pression free speech, guarantees from unreasonable freedom press, assembly, religion1 searches seizures.2 These the digni- guarantees uphold of the individual and his in accor- ty protect right develop with the him a dance inward forces which make unique are, human As enumerated as these being. important rights however, it would hold exhaust error to grave they the limits on indi- to invade the power government vidual’s to freedom action. right thought framers the United States Constitution recognized individual freedom is not to full definition susceptible verbal enunciation and thus warned ninth amendment: Constitution,

The enumeration of certain rights, shall, re- not be othérs construed deny disparage tained people.3 Gris in his

Mr. opinion Goldberg concurring Justice Connecticut, wold v. 381 U.S. 494 expressed (1965), belief that due that this amendment afforded process proof of law a fundamental of pri encompasses right personal 384, 386, 441 P.2d Abellano, Accord 50 Haw. vacy. Levinson, In (concurring opinion J.). (1968) Hawaii there can now be no doubt that the of privacy I, amendment Hawaii Constitution and the first 1Article section States of the United Constitution. I, Hawaii fourth amendment section Constitution and the 2ArticIe States of the United Constitution. I, rule of Hawaii Constitution similar 3Article section contains construction. as a exists basic of individual safeguard it has since liberty been substantive given I, in article section 5 of expression the State Constitution.4 I, provides: 4Article section 5 houses, papers right people persons, The of in the to be secure their searches, seizures, against privacy and effects unreasonable and invasions of added). violated; (emphasis not . . shall be . privacy” term of The “invasions was added in the 1968 Constitutional Standing Report explaining it and Convention whose Committee No. in urging adoption effectively protect its that it said “will individual’s wishes privacy legitimate proposed a in- as social interest. The amendment is protection against wire-tapping tended to well as include indiscriminate as person’s government inquiry regulation into and a undue of those areas of necessary individuality life which is human defined to insure ‘man’s ” dignity.’ Septem- in the Convention’s on debates Committee Whole 10, 1968, relating following explanation by ber to the amendment include the Delegate Larson: Chairman, right many ways. privacy Mr. of been defined in has alone, right Mr. Clark called it the life as Justice be let to live one’s chooses, assault, except they one free from intrusion or can be invasion justified by community living, government the clear needs of under of a Privacy alone, right right law. has also been a of defined as let personality individuality dignity. or man’s and human I ... feel that each of definition us his own of so-termed “right privacy” is'meaningful Personally, of . . . himself. there why right several main I privacy feel an reasons such addition of the of this section would be our worthwhile for inclusion in Constitution. Another area which is has been under consideration modern times privacy. government of marital into To what extent is to be allowed intimacy contraceptive relationship, regulating of such whether in, by specifying engaged devices or what in the can and what cannot be intimacies of bedroom. one’s right privacy ... feel the inclusion of such of would be reflective concept changing right evolving constantly of our of times. The idea an delegates Convention, important with the times. To the it was disqualify juror against that we would not or because of sex discriminate persons military guarantees . enlistment. some . . obsolete become As archaic, only Rights important. or others become A Bill should ages past recognize up upon mirror rationality human but should also to date demands society. . . . right privacy ... I feel that one mark of indeed freedom

democracy great in our times. One countries differences between which are called totalitarian or dictatorial called and those which are swingy respect individual, appreciation democratic or is that of right possible undue the individual’s insofar as his without live life part government. interference of the state or of the more This constitutional privacy encompasses surveillance. It than from guaran- freedom just government his full over tees individual control to the measure himself own consistent with security personality of life others. This freedom to choose one’s own plan enjoyment essential pursuit happiness I, section life and thus finds additional article protection 52 2 of the Hawaii Constitution.5 See State v. Shigematsu, 604, 610, 997, In Haw. 483 P.2d 1000 the instant (1971). case, State’s of au- infringement the upon personal right of becomes when understands the nature one tonomy apparent and marihuana the reasons its use.

It is now modern authorities universally recognized by addiction; the subject marihuana is not is, unlike narcotic marihuana does not drugs, produce in the user its con- physical dependence which compells Grinspoon, M.D., tinued use. L. Marihuana Reconsidered 233 so The individual marihuana does who uses (1971).6 choice, from may the of various pursuit goals tension, include the relief from the heightening percep- L. tions, and desire for spiritual insights. the personal M.D., 176; at Marijuana— supra J. Grinspoon, Kaplan, Town, “Privacy M. 73-74 (1970); The New Prohibition in The and the Laws” reprinted Marijuana New Social Ex- Watts, and Religious Psychedelics 129-30 (1970); Drug ma- short, In Rev. 76-79 56 Calif. L. (1968). perience, emo- the thoughts, rihuana produces affecting experiences being the user. These experiences tions and sensations of and pri- most are thus personal mental nature among 5 I, provides: 2 Article section in- equal persons by in their inherent and are All are free nature life, liberty enjoyment rights. Among rights these are the alienable property. possessing These acquiring pursuit happiness, and the obliga- corresponding rights people recognize their cannot endure unless responsibilities. tions and Psychiatry at Grinspoon Clinical Professor of 6Dr. Lester is Associate (Research) Psychiatry Mas and Director Harvard Medical School sachusetts Mental Health Center. reason believe that For this vate experiences possible. con- let individual private to be alone protects these areas his affect per- duct which designed detrimen- not as such conduct does so sonality, long produce tal results. to restrain private

This State’s principle power show social was injury conduct is limited need to Lee, 516, 521, this court State v. Haw. recognized P.2d (1970): conduct, an of indi- individual’s or a class [Wjhere conduct, not harm viduals’ does others the directly pub- lic interest affected and is not the sub- properly ject police legislature. power case, In Lee the court went on to announce a narrow above rule. also act exception general class from harm to them- protect individuals large selves, but where such harm been only dem- compellingly Lee, onstrated to the satisfaction of court. State v. supra. Because the State has failed to establish private, use of marihuana personal harms either the user society, § I would hold that of HRS 329-5 prohibition (Supp. 1971) unreasonably infringes upon appellants’ rights personal autonomy.

II. THE EVIDENCE OF SOCIAL HARM IS INSUFFICIENT

TO JUSTIFY MAKING THE MERE PRIVATE POSSES- SION OF A MARIHUANA CRIME.

The State forth two puts main arguments justification prohibiting personal possession marihuana. Primary reliance on placed contentions that marihuana is psychologically harmful to the physically These user. contentions, however, are by the State’s own disputed ex- witnesses, who pert were called to in trial testify below on the toxic nature of marihuana.

When asked on direct examination whether the course of his he had observed parctice personally adverse ef- any Weaver, marihuana, Fred Chief from the use of Dr. fects Hawaii State Unit of the for the Adolescent Psychiatrist Kaneohe, I “No, haven’t, could that answered: Hospital, testify Dr. did attribute to use of marihuana.” Weaver so- that some users exhibited the large development as a called “amotivational which he described syndrome,” state individual loses interest where the affected passive to the “older things important genera- traditionally a basis Nevertheless, tion.” cannot valid this effect serve A individual which cherishes legislation. society freedom the need solely justify regulations moral, maintain and social order of economic existing values. to substan-

The State’s other also failed witness expert Dr. user. tiate harmful the claim that marihuana is Univer- Casarett, at Louis Professor of Pharmacology J. whether Hawaii, when asked on cross-examination sity answered considered marihuana to be a drug he dangerous and, that he stated on further negative7 questioning, due to did not know of a of death documented case single did contrast, Dr. Casarett By marihuana. smoking drug, that he considered be a testify dangerous aspirin a its caused certain number of fatalities among users. of other

This substantiates testimony opinion user that harm the scholars the field marihuana use risk at fact, or a slight but speculative is not conclusive standard Under best. L. supra 347. Grinspoon, Lee, cannot mere laid down in speculation supra, of its police form a valid basis for use .government’s Therefore, actions. from his own power protect person testify in active Dr. did one examination Casarett 7On direct (THC) marihuana, tetrahydrocannabinol be considered could gredients in might produce a fraction behavior in dangerous aberrant material because stating testimony by Subsequently, Dr. clarified this Casarett of its users. THC, than opinion rather related to the use was smoking marihuana as such. into intrusion State’s is insufficient justify this ground the privacy appellants. may of marihuana that the use also

The State argues therefore, that, commission of crimes contribute is lawfully prohibited. possession personal specu- area to be highly evidence appears Again India, conducted The relies studies lative. upon trans- Greece, which not be readily Latin America may of the differing to the United States because ferable hand, studies and social conditions.8 On the other economic States, as the been conducted in United such a deter- La Guardia conclude marihuana is not Study, factor in commission of crimes. L. mining Grinspoon, 308-11. Given this present knowledge, supra degree would concur in United principle expressed by States Court in 394 U.S. Supreme Stanley Georgia, 566-67 which held that the mere (1969), private possession crime: obscene materials cannot made a constitutionally filmed about the State concerned printed only [I]f conduct, believe materials antisocial we inducing informa- of ideas and the context private consumption free tion we view that should adhere “[ajmong men, the deterrents to be ordinarily applied prevent crime education and for violations are punishment . law . . .”

Thus, I demonstrate would hold that State has failed to sufficient intrusion into for its justification privacy of mari- the individual with use personal respect huana. The State cannot under the test prevail except described in his opinion Goldberg concurring Mr. Justice Connecticut, Griswold v. U.S. (1965): held

In a series of cases this Court has long involved, fundamental they where liberties personal on a showing not be the States simply abridged by — (1970) Kaplan, Marijuana New Prohibition 98-136 8See J. linking critique reliability use marihuana and other studies these and antisocial behavior. rational relationship has some that a statute regulatory “Where a state purpose. to the effectuation proper liber- a encroachment upon personal there significant subordinat- a showing only upon the State ty, may prevail Rock, v. Little Bates which is interest ing compelling,’'’ shown “necessary, The law must 524. U.S. related, accomplish- to the and not merely rationally v. policy.” McLaughlin ment of a state permissible Irvington, v. Florida, See Schneider U.S. 196. 147, 161. 308 U.S. Brother Abe recognizes

In his concurring my opinion, burden of that bear the proving the State would ordinarily that marihuana is harmful to general public the use of exercise in its order to use justify through prohibiting however, since the appel- He police power. argues, of mari- lants conceded that the State the use may regulate huana, to prove the State was relieved its obligation social he issue believes harm. Apparently, controverted, that, and State’s was not prohibit power had to therefore, was notice put State social as of its harm case. prove part record, however, The appel- belies this argument. lants in brief between their distinguished specifically in the State’s of marihuana the use regulate (as power and its as alcohol and case such substances tobacco) power prohibit Regulation prohibition altogether. in Furthermore, not coextensive. the State’s presentation court a nexus circuit was with attempts prove replete well between the and harm to use marihuana user com- as a and the toward anti-social behavior propensity mission of The circuit court refused to crime. repeatedly limit to the reasonableness the classifica- controversy tion of marihuana as narcotic. The suggestion State was harm relieved its social establish obligation is unrealistic.

I to make it clear that the views wish expressed to the conduct of individuals. The only private opinion apply vice of the from license it gives statute present springs the State to violate a reasonable person’s expectation nature, however, socie- Where conduct is privacy. public ty has claim to the of control greater right need not show an interest its prohibition. compelling Moreover, this is not meant to analysis imply use of other such as personal heroin prohibited drugs, narcotics, other which are not involved this case. it should Finally, be stressed that the analysis does not seek to adopted establish this court aas super- veto legislature, over the wisdom exercising power Connecticut, value legislative See Griswold policies. at 512 supra Black’s crit- (Justice Any dissenting opinion). icism which attempts courts from into deter inquiring of laws must constitutionality between distinguish legis- lation which seeks economic and social relation- regulate and that which ships intrudes into the purely private sphere of human life. In the former instance courts grant rightfully wide legislature latitude experimentation promotion But, general en- good. where the State deavors intrude into the individual’s life and private conduct no regulate du- having public significance, is the of the courts ty to offer a haven of indi- refuge where the vidual secure his vindication to be let alone. KOBAYASHI, DISSENTING OPINION OF J. as it is a valid Hawaii’s exercise of the State of

Just sale, use, police-power regulate possession tobacco, such axiomatic commodities as alcohol and it is that a valid activ- also state regulation marijuana feel, however, I that our method of ity. present regulating within the classifica- marijuana marijuana —inclusion tion of unreasonable narcotics —is proscribed criminally unconstitutional violation of the due process clauses of the Fourteenth Amendment. equal protection have in the We classifica- past reviewing statutory this court to see tions that “it is the duty recognized uncon- does not seek to achieve noble ends by the legislature v. Maui means”. arbitrary Pineapple stitutionally Hasegawa I 327, if Co., 331, 679, Even Haw. P.2d (1970). felt that treatment marijuana legislature’s present § 329-5, which end, not, HRS achieved noble do the use of narcotics and classifies proscribes arbi- narcotic, an unconstitutionally must be regarded an declaration tantamount abuse of trary legislative state’s police-power. has been construed by clause

The equal protection statutory so as to criminal Court Supreme U.S. require all related classification schemes cover or things persons where each scientifically other reasonably, logically to effec- their inclusion in the classification necessary v. tuate the McLaughlin legislative purposes statute. Oklahoma, 316 Florida, 379 U.S. 184 v. Skinner (1964); U.S. 535 citing Court Washington, Supreme (1942). statute, said narcotic Skinner construing Washington’s con- is doubtful whether a declaration legislative “[i]t constitutional, can to all evidence be sustained as trary under the if its effect is to a defendant treatment deny equal Zornes, 109, 116 475 P.2d law.” 78 Wash.2d in- basis for shown no valid rational There been (1970). Nor are within the statute. narcotic cluding for such there or scientific reasonably logical grounds rationale for not including classification. On the contrary, § traditional within HRS far 329-5 marijuana outweighs its inclusion. continued arguments support to be at- the statutory sought purpose Presumptively classification of tained within the marijuana including the following from narcotic stems proscribed drugs harmful to se is reasons: use marijuana’s per 1) user, is stepping-stone that the use 2) mari- the effects of consuming more drugs, 3) serious of consuming effects related are sufficiently juana ac- to criminal narcotics, leads that the use marijuana 4) been out. borne These simply tivity. postulations indicate that none from evidence adduced The findings in- relation of the above rationale bears reasonable clusion of within the narcotic classification. Zornes, cites an article court supra, Washington in an federal courts official appearing publication the effects of marijuana: describing Acute include conjunc- physical symptoms frequently and tival vascular the mouth injection, dryness throat, irritation of increased pharynx, sensitivity sound, touch, stimuli, and such light, pain changes in the autonomic nervous as increase system pulse, blood Ataxia, im- tendon reflexes. pressure, move- paired ability coordinate muscular voluntary ments, also occur. often stimulated. may Appetite There is no that marihuana evidence increases sexual There are as no potency. ill yet effects recognized lasting directly attributed to the brief use of nor has marihuana a death been in this due to reported country over-dosage.

The mental marihuana use are changes following variable and depend part upon expectations prior drug experience the user and the social setting use; thus, time of meaning experience largely socially Marihuana is classi- acquired. primarily as a in- hallucinogen intoxication may even though fied clude both stimulant and early later depressant effects. A decreased sense of relaxation, and fatigue, increased self-confidence has been There be may described. distortion of affect toward and a omnipotency perception shared “insight” in- rarely unintoxicated. The dividual is often garrulous, and talk discon- giggly, nected. Associated with a or well- period euphoria, there be being, time, color, distortions space, other sensory with perception increased dosage.

Depersonalization, perception the physical self, as not body has been described with use. While distortion might expected increase the likelihood of no this know of documentation to confirm we self-injury, expectation. and decreased

Increased suggestibility, judgment, of affect be followed may by change depression hallucinations, delusions, be suspi- There also sleep. may ciousness, and fear Violent or of death. aggressive panic, be behavior is unusual. While occasional persons doses, with result to even small sensitive especially that a recent state is there is psychotic-like produced, with evidence almost all so affected are persons A sufficient is that many observance dosage. puzzling had in their who persons episodes frightening marihuana wish it. experience repeat smoking

In acute of marihuana effects summary, a state include commonly euphoric accompanied reactions These motor excitation and confusion. mental dreaminess, often a followed by period depression, individual reactions ap- The wide sleep. variety differ- more related to pears closely personality ences and emotional arousal) (including expectations and the cultural than to any use setting specific prop- one this erty variability, itself. Recognizing he user dream remarked that has the “every person Pet, deserves.” D. (Italics ours.) (Footnotes omitted.) M.D., Ball, Ph.D., Marihuana Smoking J. States, United 32 Federal Probation (No. 1968), pub- lished States the Administrative of the United Office Courts with the Bureau of Prisons of Cooperation Justice, C.; A. D. also see Department Washington, Lindesmith, Law, The Addict and the Indiana University Press 222-242. (1965),

The consensus is cannabis is not [marijuana] is a mild and that hallucinogenic narcotic but rather central has effect stimulating depressant nervous system. (Emphasis added.) Zornes, 475 P.2d at 114-15. supra, shows states the evidence case plurality narcotic, “that many properties in which the defined”. The manner plurality scientifically untenable. on this issue is the evidence construes presented of “tolerance” is conceded that the (over It phenomenon same to achieve the time doses increasingly larger required initial and dependence” (symptoms effect) “physiological accom- salivation, nausea, and of convulsions extreme pain ability withdrawal of the and the the pany user) death “are to cause proper- through respiratory paralysis defined, but are not narcotics, scientifically properties ties of for the that can found The marijuana.” only support of a-nar- that has any properties marijuana position small relieve cotic is the contention it may pain doses, as and invoke doses produce stupor, sleep higher do when the and Surely narcotics. comparing properties as hard such characteristics attributable to narcotics solely heroin, held by or with those morphine, jointly cocaine and narcotics a distinction becomes marijuana apparent The between the causal effects. severity respective abusive indicates that the harms the evidence by produced are of the same nature use of marijuana essentially alcohol. As use of those abusive by quality produced such, criminally to include within the failure alcohol consid- could classification itself be statutory proscribed protection. ered violative equal ef- is evident that much term It research into long fects As marijuana yet, is needed. consuming presently however, mari- has been shown that consumption is harmful than a juana any consumption more comparable effects known of alcohol and it is doubtful that presently Until adverse of alcohol. legiti- are as as those marijuana otherwise, harm created research indicates mate sanction on of a activity significant criminal placing lawbe would otherwise who our percentage population to be benefit far any present citizens outweighs abiding a nar- from effects classifying marijuana derived reason or rational no otherwise There is logical cotic. no merit law that little of a basis on the our society, out of criminals to make to continue in its application, of today. alienate the youth consequently ills the social not cause does of marijuana The use is the It against. guard has attempted the legislature nar- aas law classifying status of the present is responsi- a narcotic that its use as cotic proscribing crime greatly created. Organized social harm ble and trafficking using, fact that possessing, benefitted by illegality Marijuana’s been made illegal. under- to the armory another adds merely weapon as do prostitution, of society, just world for the exploitation difference activity. and other prohibited gambling while proscribed latter activities justifiably is far outweighed benefit if marijuana illegal any making con- It is a popular social detriment. consequential of marijuana tention that the marketing supplying This prob- individual basis. position done a low-key con- It is of Hawaii. now ably applicable of con- practice tended that underworld adopted can withdraw so trolling marijuana supply area, en- simultaneously marijuana given completely codeine to switch to pills the users of marijuana couraging heroin, monetary gain substantial then resulting use it has shown crime.1 While been organized not necessarily does itself is not addictive addition of criminal lead to the use of narcotic drugs, switch user to elements on the marijuana bearing pressure of increasing to narcotics creates a substantial danger number of narcotic users. and rational ap- that a more reasonable

It is suggested in a be to in this area would regulate proach In this way manner to that of alcohol tobacco. similar use, would not its reasonable use of abusive marijuana, A, Advertiser, 25, 1971, 1Hunter, July § at But Sunday 1. & Star-Bulletin A, 26, 1971, Advertiser, § July 1. see Honolulu law a change Such sanctions. criminal be given is needed society the respect instill would this area and prospectively justice of criminal preservation generation. our younger criminalization decrease v. SIDA OF LII, Appellant, Plaintiff- LAWRENCE INC., al., Defendants-Appellees HAWAII, et

No. 5106 February MARUMOTO, ABE, J., RICHARDSON, C. KOBAYASHI, AND LEVINSON JJ. untimely made an in this case Appellant

Per Curiam. provides rule applicable trial in that jury demand for days appellant be made within ten the demand to days had nearly thirty demand until make such did not jury appellant was heard without The case elapsed.

Case Details

Case Name: State v. Kantner

Court Name: Hawaii Supreme Court

Date Published: Jan 20, 1972

Citation: 493 P.2d 306

Docket Number: 4995, 5005

Court Abbreviation: Haw.