CONCURRING OPINION BY KLEIN, J. WITH
WHOM NAKAYAMA, J., JOINS
I concur in the result reached by the plurality, but disagree with its suggestion that Mallan's privacy claim or any future right to privacy claim in article I, section 6 of the Hawai`i State Constitution must be analyzed under the "Mueller/Baehr" approach and the "Stanley/Kam" approach as "an initial step in the analysis." I also disagree that "the question remains whether we should adopt another, completely new approach not based on federal case law." Plurality opinion at p. 20.
This state's constitution was amended after the 1978 Constitutional Convention by adding the specific right to privacy provision set forth in article I, section 6. There is no question that the right of privacy embodied in article I, section 6 is a fundamental right in and of itself. Any infringement of the right to privacy must be subjected to the compelling state interest test. Thus, the only analysis this court need utilize when testing a right to privacy claim such as Mallan's is whether the conduct prohibited by law is entitled to protection under article I, section 6. A law prohibiting protected conduct must pass muster under the compelling state interest test to survive constitutional challenge. There is no issue in this case about a "completely new approach not based on federal case law" because federal case law interpreting the federal constitution represents a search for protected, fundamental privacy rights not explicitly found in the federal constitution. Federal privacy rights emanate from "penumbras" created by specific guarantees in the Bill of Rights according to the United States Supreme Court in Griswold v. Connecticut, 381 U.S. 479, 484 (1965).
Once the citizens of this state approved article I, section 6, our courts were relieved of the responsibility of casting about blindly in the "penumbras" of our constitution to find rights protected as private. We should not revisit those days past by adopting a constitutional calculus for testing privacy claims under article I, section 6 requiring the use of both Mueller and Kam. Neither case is particularly instructional anymore and both should be dispatched as interesting historic footnotes. Federal case law is not apt either, except that where a new fundamental right is discovered in the shadowy universe of the Bill of Rights by the United States Supreme Court, this court must protect it.
The issue is not whether we should adopt a new approach divorced from federal case law, but rather what new approach must we utilize in order to give voice to the fundamental right to privacy our citizens have incorporated as one of their explicit constitutional protections. The only approach that makes sense is to analyze the conduct itself and the circumstances under which it is prohibited to determine whether it is reasonable to give the conduct constitutional protection.
Although I disagree with the plurality's analysis, I cannot agree with the dissent that Hawai`i's right to privacy is so broad that it protects the use and possession of marijuana for recreational purposes. In effect, the dissent's reasoning decriminalizes the use and possession of virtually all contraband drugs used within the home or wherever a person senses being "in private." To this extent I agree with the cogent reasoning of the plurality in Part III. B of its opinion citing statements from the delegates to the Constitutional Convention.
In light of that debate, I am not convinced that it was the intent of the framers of article I, section 6 that the right of privacy envisioned by them would protect an individual from criminal prosecution for the possession and use of marijuana, or any contraband drug bought, sold, or used privately.
Therefore, I cannot agree with the dissent's unbridled interpretation of Hawai`i's constitutional right of privacy. In my opinion, this right is not so broad that it protects the use and possession of marijuana (and virtually all presently contraband substances) for recreational purposes. In my view, the dissent's apologia for the protection of contraband drugs (as well as other private activity including, presumably, in-house prostitution) from the ambit of law enforcement, cannot be justified as constitutionally protected under the right of privacy.
For the foregoing reasons, I concur in the result of the plurality but do not join the dissent.