Pubdate: 31 Jan 1998 Source: Honolulu Advertiser Author: Ken Kobayashi Contact: FAX: (808) 525-8037 Editors note: If someone would verify the contact info it would be appreciated. Does this, or any, Hawaii newspaper have a web STATE MARIJUANA LAW UPHELD IN SPLIT RULING The Hawaii Supreme Court yesterday rejected a key constitutional challenge to state marijuana laws and ruled that it is still illegal to smoke the drug. In a 4-1 decision, the court affirmed the petty misdemeanor conviction of Lloyd Mallan, who was caught smoking marijuana in his car at the Waikiki Shell parking lot in 1990. But the significance of the case goes beyond upholding Mallan's $50 fine. The decision is the first to analyze Hawaii's 1978 privacy amendment of the state constitution as to whether it should allow people to possess marijuana. Marijuana advocates had hoped the privacy amendment would pave the way for the legalization of the drug by protecting an individual's private conduct from government interference. In a case that splintered the high court's five justices into three separate opinions, four of the five justices upheld Mallan's marijuana conviction. The controlling opinion by Associate Justice Mario Ramil, who was joined by Chief Justice Ronald Moon, held that the right of privacy under the amendment does ot mean a person has a right to possess and use marijuana. But their 36-page opinion contained a footnote that said their ruling only addresses the use of marijuana for recreation, which was what Mallan was doing. They pointed out that they were not deciding whether the amendment covers marijuana smoking for other reasons. SEPARATE OPINION, DISSENT In a separate opinion, Associate Justices Robert Klein and Paula Nakayama agreed that the conviction should be upheld but did not entirely agree 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. He wrote he would have thrown out the conviction. "It's not unexpected," said Deputy Public Defender Edward Harada, who represented Mallan, a free-lance writer who was running for Congress as a Libertarian at the time of his arrest. "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." But he said the footnote leaves the door open for a future challenge permitting the use of marijuana for medical purposes. City Deputy Prosecutor Lori Nishimura said she was pleased. She said the decision will make it harder for other challenges based on the right of privacy. But she said the next challenge may be based on medical or religious uses of marijuana. The privacy amendment was cited in a 1988 Hawaii Supreme Court ruling that struck down sstate laws banning the possession and sale of pornographic materials. The court reasoned that a person has the right of privacy to purchase and review those materials in one's home. DIFFERENT FROM FREE SPEECH Ramil wrote that the right to use marijuana is not as fundamental as the right to review materials, which are protected by the First Amendment rights of free speech and press. "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 laater ratified the privacy provision did not intend such a result," he wrote. The high court had the Mallan case for more than four years, longer than any other pending appeal. The length of time and the three opinions, rare for the court, indicate that the justices had a difficult time dealing with the case. Possession of up to an ounce of marijuana is punishable by up to 30 days in jail and up to $1,000 in fines. Possession of more than that amount is a misdemeanor carrying up to a year in jail. Stiffer penalties apply to selling and growing marijuana.