Haw. Sup. Ct. finds little trouble in rejecting pot smoking in the name of religion, splits on privacy and plain error.

State v. Sunderland (HSC Sept. 21, 2007)

Background. A Big-Island police officer looking for a missing child went to Sunderland's home, a known hang-out spot of the child. The officer saw in plain view a pipe used to smoke marijuana, and inquired about it. Sunderland told the officer that the pipe was his and that he smokes marijuana for religious purposes. Sunderland even produced his "Cannabis Ministry" identification card to the officer. Sunderland was arrested on the spot. In the district court Sunderland was charged with Promoting a Dangerous Drug in the Third Degree (HRS § 712-1243). Sunderland filed a motion to dismiss on the grounds that smoking marijuana as a member of the Cannabis Ministry was a constitutionally-protected activity related to the First Amendment. The motion was denied and the district court found him guilty as charged, and fined $150.

On appeal, Sunderland argued that the prosecution for possessing drugs in his own home for religious purposes violated his right to the free exercise of religion under the First Amendment and his right to privacy under Art. I, section 6 of the Hawai'i Constitution. There was no mention of plain error.

A Court Divided. The Hawai'i Supreme Court affirmed Sunderland's conviction, but was sharply divided (2-1-1-1). Justice Nakayama wrote the plurality opinion in which Justice Duffy joined. Justice Acoba and Chief Justice Moon filed separate concurring opinions. Justice Levinson dissented.

The Plurality.
The plurality first concluded that Sunderland failed to preserve the argument that the prosecution of his case violated his constitutional right to privacy because he failed to raise that specific argument before the district court. The plurality noted that even though Sunderland cited State v. Ravin, 534 P.2d 494 (Alaska 1975), which held that personal marijuana use in the home is constitutionally protected, before the district court, it was not cited to advance the argument that his marijuana use was protected by his right to privacy. Rather, the citation was used to argue that the State failed to show a compelling state interest presumably under the Sherbert/Yoder analysis. What clinched it for the plurality was that at the hearing for the motion to dismiss the case, Sunderland "expressly disavowed any right to privacy argument[]" and argued only the right to the free exercise of religion. Here's part what Sunderland's attorney said:

"The next question is: Has the state shown a compelling interest? . . . This case is only about the use of marijuana in the home. And the Supreme Court of Alaska, finally, in not addressing the same issue, addressing a slightly different issue, basically said that the privacy rights, okay -- and it's not an issue here. They have done that case in Hawaii. And on a privacy level you're not allowed to have marijuana. They have raised that."

As to the other issue, the plurality held that, pursuant to Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), a generally applicable law (i.e. a law applying to conduct regardless of whether it was conduct religiously motivated or not) is not subject to First Am. Attack unless (1) it interferes with the Free Exercise Clause in conjunction with other constitutional protections or (2) it creates a mechanism that calls for individualized governmental assessment of the reasons for the relevant conduct.

The plurality concluded that the criminal statute is a generally applicable one and that neither exception had been met. With regard to the first exception it noted that the plurality justices held no opinion on what effect "a properly preserved privacy argument may have had on the analysis [because] a privacy argument may present the type of hybrid rights scenario that . . . would merit a strict scrutiny analysis[]" under Sherbert, 374 U.S. 398 (1963) (cited by the Hawai'i Supreme Court in Korean Buddhist Dae Won Sa Temple v. Sullivan, 87 Hawai'i 217, 274 (1998)). The judgment, therefore, was affirmed.

Chief Justice Moon's Concurrence. CJ Moon agreed with the plurality's free-exercise analysis. CJ Moon, however, concluded that Sunderland adequately preserved his privacy argument, and that on the merits of the privacy issue, he would affirm the judgment. State v. Mallan, 86 Hawai'i 440 (1998), disposes of Sunderland's privacy arguments. In that case, a divided Hawai'i Supreme Court affirmed a conviction for promoting drugs in the 3d degree stemming from the recreational use of marijuana in a car parked at the Waikiki Shell. CJ Moon agreed with Sunderland that Mallan left open the question of recreational use of marijuana in the home but ultimately concluded that because possession and use of marijuana is not a fundamental right, Mallan extends to Sunderland's case.

Justice Acoba's Concurrence. Justice Acoba, like CJ Moon, also felt that the privacy argument should have been heard on appeal. According to Justice Acoba, Sunderland's counsel, without naming it, referred to the Mallan case at the hearing on the motion to dismiss. Mallan does not foreclose the question of whether smoking marijuana at home is constitutionally protected, as Sunderland's counsel believed at the time. This allusion does not preclude the appellate court's ability to recognize plain error, an analysis the plurality should have underwent. Justice Acoba, however, concurred with the plurality's result in affirming the conviction.

Justice Levinson's Dissent. Justice Levinson, like CJ Moon and Justice Acoba, believed the Court should have heard the privacy argument. According to Justice Levinson, despite Sunderland's failure to raise the issue on appeal in terms of plain error, the issue was nevertheless raised and argued as an error. This amounts to an adequate assertion on appeal that the district court committed plain error. Justice Levinson is the lone dissenter who believes that the conviction should be vacated based on the privacy issue based on his dissenting opinion in Mallan.

Summary. Much of the differences in opinion center around the issue of whether Sunderland adequately raised the privacy argument. The plurality concluded that Sunderland failed to raise the issue before the district court and the argument on appeal was not advanced below. It did not discuss plain error at all.

Justices Acoba and Levinson, and the Chief Justice felt otherwise. It seems that Justices Acoba and Levinson agree that appellate counsel was asserting plain error without calling it "plain error." This should be enough for appellate counsel. Because plain error is recognized at the option of the appellate court and can recognize it sua sponte, counsel's assertion of an argument not raised before the lower court is essentially an assertion of plain error. The Chief Justice offered no explanation why he would have heard the privacy argument. Of course, because the plurality did not mention plain error at all, it is quite possible that the plurality, at its option, declined the invitation to hear the issue as plain error.

Even the three-justices who would have heard the privacy argument are further splintered when they arrive to the merits of the privacy argument. Justice Acoba and CJ Moon would have affirmed the conviction on the privacy rights argument (but for different reasons), while Justice Levinson believed that Sunderland's right to privacy had been violated.

So what's salvageable? For starters, it appears that, at the very least, two justices (Acoba and Levinson) agree that plain error need not be expressly asserted by appellate counsel in order for it to be heard as plain error, and that any other result would be pure semantics. As for the CJ, who gives no reason why he would have heard the issue, or the plurality, which do not mention plain error at all, we cannot be so certain what they would do in the future. Moreover, because CJ Moon expressly agreed with the plurality on the free exercise analysis and result, its First Amendment analysis is supported with a majority. Finally, the divided court leaves the question of whether Hawai'i's constitutional right to privacy protects persons from using drugs in their homes to be answered for yet another day.

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