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.