State v. Kantner

493 P.2d 306, 53 Haw. 327, 1972 Haw. LEXIS 116

• Court: Hawaii Supreme Court
• Decided: January 20, 1972
• Docket: 4995, 5005
• Status: Published

Opinions

OPINION OF

RICHARDSON, C. J.,

IN WHICH MARUMOTO, J., JOINS, ANNOUNCING THE JUDGMENT OF THE COURT

The sole issue presented in this consolidated appeal is the constitutionality of the statutory scheme for the control of the possession of marihuana. HRS § 329-5, as amended by Act 161, S.L.H. 1969, which served as the basis of parole revocation of petitioners Nowell and Winter and upon which defendant Kantner was convicted, provides as follows:

Additional acts prohibited; penalty. No person shall knowingly . . . possess . . . any narcotic drug as defined by section 329-1 except as provided in this chapter. . . .

Under HRS § 329-1 the term “narcotic drug” is defined as follows:

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

(5) Marihuana. Marihuana includes the following substances under whatever names they may designate: all parts of the plant cannabis sativa, L., whether growing or not, the seeds thereof, the resin extracted from any part of the plant, and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin, but, shall not include the sterilized seed of the plant which is incapable of germination.

Appellants concede that the State may properly regulate the possession of marihuana under the police power. The thrust of appellants’ argument is that the State has so unreasonably and irrationally exercised its police power that the present statutory scheme for the prohibition of possession of marihuana violates the constitutional guarantees of equal protection and due process of law. Uncontroverted evidence showed that in some respects marihuana was unlike the opiates and other drugs within the scientific definition of the word “narcotic”. The evidence, however, tended to show that marihuana has many of the properties of a narcotic, scientifically defined.¹

Proceeding from the proposition that marihuana is not a narcotic scientifically defined, appellants contend that the defining of the term narcotic so as to include marihuana and the inclusion of marihuana within the same class as the more harmful narcotic drugs is so unreasonable and arbitrary as to violate the constitutional guarantees of equal protection and due process of law.

The legislature has a broad power to define terms for a particular legislative purpose, and the courts, as a general rule of construction, are bound to follow legislative definitions of terms rather than commonly accepted dictionary, judicial or scientific definitions. Bailey’s Bakery, Ltd. v. Borthwick, 38 Haw. 16 (1948); Akai v. Lewis, 37 Haw. 374 (1946); Hawaii Consolidated Ry. v. Borthwick, 34 Haw. 269 (1937). We think the requirements of due process place some limitation on the manner in which a legislature may use words. If we believed that the use of the word narcotic to include marihuana were so misleading as to confuse legislators in their law-making activities² or to confuse persons of common understanding in their effort to determine whether the possession of marihuana constitutes a crime, it would clearly be our duty to declare the unconstitutionality of bhe statute. Inasmuch as the word “narcotic” in popular usage includes marihuana, it is no violation of the guarantee of due process of law for the legislature to employ such usage over the more precise usage favored by the scientific community. Cf., Territory v. Tam, 36 Haw. 32, 37 (1942).

We think that appellants’ contentions concerning the legislative classification of marihuana are untenable. Appellants contend that the legislature has placed the offenses of possession of marihuana and the possession of narcotics, scientifically defined, within the same legislative classification. We disagree; the legislature has provided for markedly different penalties for possession of marihuana as opposed to narcotics, scientifically defined.³ Certain offenses involving marihuana are treated the same as the corresponding offense involving a narcotic scientifically defined, for example, the cultivation, production or manufacture of the drug. These offenses, however, are not before us and under the doctrine of State v. Grahovac, 52 Haw. 527, 480 P.2d 148 (1971), we decline to consider these related offenses. Were we to consider the supposed constitutional problem involving the inclusion of marihuana offenses within the same classification as offenses involving narcotics scientifically defined, we would find the following language of the Massachusetts Supreme Judicial Court most persuasive:

. . . All of these substances [marihuana and the narcotics scientifically defined] are “mind-altering” drugs. The fact that some are more potent or more dangerous than others does not render the classification arbitrary. To some degree they are all capable of producing psychotic disorders, states of intoxication and psychological dependency, and consequently present some danger to the health and safety of the community. We do not think that the classification of marihuana with the others is arbitrary or irrational. Commonwealth v. Leis, 355 Mass. 189, 197, 243 N.E.2d 898, 905 (1969).

Appellants’ main contention concerning classification is the argument that the properties of the drugs alcohol and marihuana are so similar that a provision for a penalty for the possession of marihuana in a case where there is none made for possession of alcohol violates the constitutional guarantee of the equal protection of the laws. The issue then is not whether marihuana is more like alcohol than heroin but whether there are sufficient dissimilarities between alcohol and marihuana to support different legislative treatments. We think alcohol and marihuana are sufficiently dissimilar to justify dissimilar legislative treatment. Alcohol is a drug about which much is known concerning the long-term effect on the human body; of marihuana, much less is known. On that basis alone, treatment dissimilar to that given alcohol is justified, at least until scientific research conclusively establishes the long-term effects of the drug marihuana. Since it is presumed that statutes are constitutional, Bishop Trust Co. v. Burns, 46 Haw. 375, 381 P.2d 687 (1963); McKenzie v. Wilson, 31 Haw. 216 (1930); Territory v. Armstrong, 28 Haw. 88 (1924) and since the party attacking the statute must show with convincing clarity that the statute is unconstitutional, Hasegawa v. Maui Pineapple Co., 52 Haw. 327, 475 P.2d 679 (1970); Koike v. Board of Water Supply, 44 Haw. 100, 352 P.2d 835 (1960), the absence of sound scientific data concerning the long-term effects of marihuana renders appellants’ burden insurmountable.

Appellants argue that Hawaii’s original narcotics legislation was enacted in 1931, during a period of American history in which public attitude toward marihuana was largely colored by false and unsubstantiated claims concerning the dangers of marihuana. Accordingly, appellants argue, the statute must fall in light of present knowledge concerning marihuana. While we concede that evidence tends to show a less than enlightened public understanding concerning the nature of the dangers of marihuana during the period in question, we cannot accept appellants’ contention. There has been no showing that a general nation-wide hysteria over the marihuana question did in fact induce the 1931 Territorial Legislature to act.⁴ Assuming such a connection could be established, it would mean very little.⁵ Assuming arguendo that the legislature did act on the basis of fear-induced hysteria, the party attacking a statute would not be relieved from the burden of clearly showing that no rational factual basis exists to support the statute.

With respect to appellants’ argument that the use of marihuana involves an issue of “fundamental liberty” and, hence, a different standard of review should be applied to the statute, we do not think that appellants have established that the interest of the individual in possessing and using marihuana is within the class of interests to which the state and federal constitutions accord the highest degree of protection. We recognize that there is limited authority for the proposition that the use of peyote, another mind-altering drug, may be protected in limited circumstance as a valid exercise of native American Indian religion. People v. Woody, 61 Cal. 2d 716, 394 P.2d 813, 40 Cal. Rptr. 69 (1964); contra, State v. Big Sheep, 75 Mont. 219, 243 P. 1067 (1926); Oliver v. Udall, 306 F.2d 819, cert. denied, 372 U.S. 908 (1962). We doubt, however, that use of a mind-altering drug, absent an intimate connection with a “preferred freedom”, requires the standard of review which appellants suggest. Our reading of Griswold v. Connecticut, 381 U.S. 479 (1965) leads us to conclude, as did the court in People v. Aguiar, 257 Cal. App.2d 597, 65 Cal. Rptr. 171, cert. denied, 393 U.S. 970 (1968) that there is no fundamental guarantee protecting the use and possession of euphoric drugs. We decline, as did the Supreme Court in Griswold, supra, 381 U.S. at 481-82 to accept the invitation of Lochner v. New York, 198 U.S. 45 (1905) to “sit as a super-legislature to determine the wisdom, need and propriety of laws that touch economic problems, business affairs, or social conditions.” As we read Griswold, supra, the test of whether an activity may be considered to rest under the “penumbra” of a preferred freedom is that the activity in question tnust be essential, not merely desirable, for the exercise of the specifically enumerated rights.⁶

Hyman M. Greenstein for appellants. Michael Weight, Deputy Prosecuting Attorney (Barry Chung, Prosecuting Attorney with him on the brief) and Thomas M. Pico, Jr., Deputy Attorney General (Bertram T. Kanbara, Attorney General, and Morton King, Senior Deputy Attorney General, with him on the brief) for appellees.

Affirmed.

1 The evidence tended to show that narcotic drugs have the property of relieving pain in small doses, produce stupor and invoke sleep in higher doses and eventually cause death by respiratory paralysis. Except for the ability to cause death through respiratory paralysis, these properties of narcotic drugs are properties shared with marihuana. The phenomenon of “tolerance”, whereby the user is required to take, over a period of time, increasingly larger doses in order to achieve the same initial effect and the phenomenon of “physiological dependence,” whereby the symptoms of salivation, nausea, convulsions and extreme pain accompany the withdrawal of the drug to the user, were shown to be properties of narcotics, scientifically defined, but not properties of marihuana.

2 The proposition that legislation be enacted in a form not misleading to the legislators is contained in Article III, section 15 of the Hawaii Constitution, which provides in part: “Each law shall embrace but one subject, which shall be expressed in the title.” In re Goddard, 35 Haw. 203, 207 (1939), decided under the Organic Act, indicated that the purpose of the “one subject expressed in the title rule” was:

. . . [F]irst, to prevent hodgepodge or “logrolling” legislation; second, to prevent surprise or fraud upon the legislature by means of provisions in the bills of which the titles gave no intimation, and which might therefore be overlooked and carelessly and unintentionally adopted; and third, to fairly apprise the people, through such publication of legislative proceedings as is usually made, of the subjects of legislation that are being considered, in order that they may have the opportunity of being heard thereon, by petition or otherwise, if they shall so desire.

3 HRS § 329-5, as amended, Act 161, S.L.H. 1969, provides that for the first and subsequent offenses, one who is found guilty of possession of marihuana is subject to imprisonment “for not more than one year, or for not less than one year nor more than five years.” Persons found guilty of the possession of drugs defined as narcotic drugs in HRS § 329-1, other than marihuana, are subject to imprisonment of “not more than five years for the first offense” and “not more than ten years for any subsequent offense.”

4 The original enactment of a narcotic law was Act. 152, S.L.H. 1931, predating the height of the alleged general nation-wide marihuana hysteria by several years. Until Act 228, S.L.H. 1959, marihuana was treated separately from the narcotics, scientifically defined, and was not included in the legislative definition of narcotic drugs.

5 “We know of nothing that compels the Legislature to thoroughly investigate the available scientific and medical evidence when enacting a law.” Commonwealth v. Leis, supra, 355 Mass. 189, 192, 243 N.E.2d 898, 901-2 (1969).

6 We are led to this reading of the test laid down in Griswold, supra, by the Court’s characterization of its methodology at 381 U.S. at 481-83. There the Court suggests that the result in Griswold, supra, is simply a logical extension of Pierce v. Society of Sisters, 268 U.S. 510 (1925) and Meyer v. Nebraska, 262 U.S. 390 (1923). The Court uses Pierce, supra, and Meyer, supra, and related cases to show a pattern of penumbral First Amendment freedom of speech analysis. According to the Court’s Griswold opinion, 381 U.S. at 482, the following pattern is discernible:

By Pierce v. Society of Sisters, supra, the right to educate one’s children as one chooses is made applicable to the States by the force of the First and Fourteenth Amendments. By Meyer v. Nebraska, supra, the same dignity is given the right to study the German language in a private school. In other words, the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge. The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to. read (Martin v. Struthers, 319 U.S. 141, 143) and freedom of inquiry, freedom of thought, and freedom to teach (see Wieman v. Updegraff, 344 U.S. 183, 195)—indeed the freedom of the entire university community. Sweezy v. New Hampshire, 354 U.S. 234, 249-50, 261-63; Barenblatt v. United States, 360 U.S. 109, 112; Baggett v. Bullitt, 377 U.S. 360, 369.

The reason that the above cited activities must fall under the protection of the First Amendment is that “[w]ithout those peripheral rights the specific rights would be less secure.” 381 U.S. at 482-83. In light of the Court’s warning to eschew the substantive due process approach of Lochner v. New York, supra, we think the test of a penumbral constitutional right must be restricted to that which is essential to the continued viability of the specifically enumerated rights. Otherwise the test becomes one not of law, but of the personal whim , and predeliction of the judge.