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."