HomeMy WebLinkAboutCOM 0314.036 1996-1998 (G- l~~i
~1~ . ~L~~
Privacy and Cannabis in Hawaii
THE PRIVATE USE OF CANNABIS IS LEGAL IN HAWAII!!!
The State Constitution was amended in 1978 by the Constitutional Convention to include
Section I article 6 which was taken from the Right to Privacy language from the Alaska
State Constitution.
Article I section 6 reads as follows:
"The right of people to privacy is recognized and shall not be infringed without the
showing of a compelling state interest. The legislature shall take affirmative steps to
implement this right."
The reason this was selected as the language to describe our right to privacy is because it
was the intent of the framers of the Constitution to allow for the use of Cannabis in the
home as is demonstrated by testimony from the floor of the Convention.
Delegate Helene Hale, OPENLY said on the floor before the entire 102-member
Delegation:
"I introduced it [Art. I § 6] because the Alaska statute was held to say, in words like this,
that it was perfectly all right to smoke marijuana in the privacy of your own homes "
Even Delegate John Waihee saw the marijuana issue a foregone conclusion under Art. I
56, but added, "...this would not extend to manufacturing cocaine or heroin."
Hawaii adopted Alaska's Constitution not the States of Washington or
Arizona. As Delegate Hale expressly stated in front of all 102 delegates,
"The reason 1 put it in [the amendment on privacy] was that it is almost the EXACT
wording the Alaska Constitution has and it answers the question of Delegate Taketani
from Maui, the right of a person to smoke marijuana in his own home. THAT was my
reason for putting this proposal in."
All civil Servants must uphold the State Constitution, this includes all law enforcement
every lawyer and Judge as they are all officers of the court or Federal officers working in
Hawaii and especially every legislator whether at state or county level must place at the
highest order of priority on the protection of civil rights including the Constitutionally
protected right to consume Cannabis in the privacy of our homes.
Because the INTENT of the framers of the State Constitution was to recognize that the
right to smoke Cannabis, in the privacy of ones own home, is so important that the State
Constitution needed to be amended to provide language to specifically protect this right to
privately consume Cannabis, it then becomes imperative that all State officials of all ranks
(~ZD.Oi. 1~I0, ~_V
>n>e >ra.~SG
~resen}~ 1
Die JUL 0 2 199y
have a profound duty to adhere to the INTENT of the law and desist from invading the
private homes of individuals for the specific purpose of infringing on this right to privately
consume Cannabis.
If you are a Law Enforcement Officer a Judge a County or State worker reading this
material you have a sworn duty to protect the civil rights of the PEOPLE including the
right to consume Cannabis in private.
Any State or federal statute prohibiting the use of Cannabis in Hawaii can only apply to
the public sector and any infringement upon the rights of the people to privately use
Cannabis is forbidden by the Supreme State Law, the State Constitution
Rev. Dennis Shields
The Religion of Jesus Church
and the AdHemp council
for further information contact:
Rev. Dennis Shields 328-9794
Roger Christie 961-0488
Jerry Rothstein 329-1568
and Dwight Kondo or Glenn Robbinette
Chapter Five:
1~IIARIJUANA PROHIBITION
Anslingergot his mar$juana law...
"Should we believe self serving, ever-gr»tving drug enfor+ce~nent/drug treatment
bureaucrats, mhoae pay and advancement depends on )finding morn and more people
to arrest and `treat'?
"More Americana die in just one day in prisons, penitentiarsea, jails and stockades than
have ever died from marijuana throughout history. Who are they protectingY From whati'"
Fred Oerther, M.D., Portland Oregon, September, 198&
~ MOVIIITG TO CRUSH DISSENT Study of Marijuana," Newsweek, Jan. 15,1945.)
4 After the 1938-1944 New York City "LaGuardia T~ technique of biasing the outceme of a study is
Marijuana Report" refuted his argument, by report- researchers as "gutter saence."
~ ~ ins that marijuana caused no violence at all and st-
ing other positive results; Harry J. Analinger, in pub- P0'p ~ THE THREAT OF PEACE
lic tirade after tirade, denounced Mayor 1!
iorella
~ LaGuardia, the New York Academy of Medicine and However, from 1948 to 1950, Anslinger stopped
the doctors who researched the report. feeding the press the story that marijuana was vio-
i fence causing and began "Red Baiting," typical of the
yr Analinger proclaimed that these doctors would rev- McCarthy era
er again do marijuana experiments or research with- Now the frightened American public was told that
"s, out his personal permission, or be sent to jail!
~''l He then used the full power of the United 3tatea ~ was a much more dangerous drug than he origi-
! government, illegally, to halt virtually all research rally thought. Testifying before a strongly anti-
y,l into marijuana while he blackmailed the American Communist Congress in 1948~and thereafter con-
e,I Medical Association (AMA)* into denouncing the tinually in the press-Analinger proclaimed that
New York Academy of Medicine and its doctors for marijuana caused its users to become so
the research they had done. peaceful-and pacifistic!-that the Communists
* why, yon a.k, wa¦ the aMa now oa could and would use marijuana to weaken our
Analinger'. aide in 19atas American fighting men a will to fight.
t ~ after being ageinet the Mar(juana Ta: Act in 19ST1 Answer. since
~ Anelinger'c FBN was naponelble for proeecuRing doctor who pre- Thin was a 180-degree turnaround of the original
~ scribed narcotic drugs for what he, Analioger, deemed illegal pmpos- pretext On which `5riolence Causing" cannabis was
ee, they (the FBl~ hed proeecuwd more thm S,ooO AMA Baton for outlawed in 1937. Undaunted, however Con esa
~ ' illegal pnacriptione through 1939. In 1939, the AMA made epectllc .
peace with Anelinger on marjjuana The teeulta: Daly three dawn now voted to continue the marijuana law-based on
ware prosecuted for illegal drugs of any sort Sum 1939 w 1949. the exact opposite reasonixig they had used to outlaw
cannabis in the first place.
The 1938-1944 Near York City K.aGuardia It is interesting and even absurd to note that An-
i Mar~%uana Report" refuted the idea that clinger and his biggest supporters-Southern con-
; marijuana caused violence, and cited other greasmen and his beat senatorial friend, Senator
positive results. Joseph McCarthy* of Wisconsin-from 1948 on, con-
stantly received press coverage on the scare.
To refute the LaGuardia report, the AMA, at • Aomtding w Ane]inger's auwbiognphical book, 49ie Murderers,
Analinger's personal request, conducted a 1944-45 and bi' ~r~' sN aaanta. pneung~ar bas bean supplying
study showing that 34 Negro GI's (and one white GI O1D~~ w a us. eenawr~Toeeph Mecartgy-for yeah.
„ " The reason given by Anelinger in hie book? 3o the communists
for statistical control) who smoked marijuana be- would sot 6e able w blackmail this Gnat American Senawr for his
came disrespectful of white soldiers and officers in drug-dependency weakness. (Wean Latimer, FRouxra !n The stood;
the segregated military. (See Appendiz p.lll, °Army llarry Analinger, The Mu,aeren.)
-28-
The communists had the potential to sell marijuana A SECR~+',T PROGRAM TO CONTROL,
to American boys to sap then Il to fight-to make _~DS & CHOICES
us a nation of zombie pacifists. Of course, the com-
munists of Russia and China ridiculed this American Through a report released in 1983 under the
marijuana paranoia ev- Freedom of Information Act,
ery chance they got-in ~ Tom` $L1SIi/9UAYLE/LILLY it was discovered (after 40
the press and at the - , . . * years of secrecy) that Anslin-
United Nations. PI~~~Fi~1C+L~Ii SELL ~UT. ! gar was appointed in 1942 to
' atop-secret committee to
In"America,""manluanae m0$t outspoken„oppo" create a "truth serum" for
In 1943, marijuana nent is none other than, Preaident'George: Bush,,- the 03S, Office of Strata c
extracts were former.: Director: of. the CIA under. Gerald Ford:; Services, which evolved mto
discontinued by (1976-.1977) and past"'director`of President ' the CIA, the Central Intel-
Anslinger's group as Reagan'a 'ask Fes" (1881-1988)
America'sftrettruth _ r ligence Agency. (Rolling
serum because it Afterleavmg the CIA in; 1977, Bush waa made ` Stone, August 1983.)
didnY work all the director of ElizLiAy by some"'other than'Dan ~ Analinger and his spy
time. Peo le bei Quayle a fattier andfaaiily; who owned'conero '
p ng " group picked, as America's
interro ated would interest in • the • Lilly" company , and'`the
g • first truth serum, "honey oil,
open giggle or laugh Indianapolis Star, Dan Quayle. later acted, as go- a much purer, almost taste-
hyaterically at their between for drug kingpins, gunrunners and"gov; less form of hash oil, to be
captors, get erament officals ~ the Iraa-Contra scandals.;,~r, administered in food to:
's paranoid, or have The, entire Bush
family were large stockholders; spies, saboteurs, military
insatiable desires in Lilly, Abbott, Br>atol and Pfizer, etc: After" prisoners and the like, to
for food Buah's~discloiiure of ass~ta,u? 1878, ~t became ~ "spill .the truth," without
public that Bush's family still has alarge interest< their knowledge.
in Pfizer;and substantial amountsof stock in'the:
.d Unfortunately, the idea , ; ~ Fifteen months later, in
o. of pot and acifism of other aforementioned drugcompaniea ~ _
p g 1943, marijuana extracts
ze so much sensational In fact, Bush actively lobbiedi'llegallybothwith.. were discontinued by An-
world press for the next in and'without'the Adlniniseration_ae:vioe~ alinger's group as America's
at decade that eventually President m 1x8,1 to permit •dr~tg campaniesRto : first truth serum because it
ri- Russia, China, and the duri;<p:more unwanted, obsolete ~r ee ~ was noted that they didn't
work all the time:
ti- Eastern Bloc communist meatically banned substances on unsuspectmg~
n- countries (who grew Tlnrd~'{lorld countnes. ~ ~ " y~~ The people being interro-
at large amounts of canna- ~ Whxlat~ce President B ' h Cont~n•' ed;to ~ gated would often giggle or
bis) outlawed marl uana w ' ~ ~
so ~ ly act an behalf'of pharmaceutical companu~s bye; • laugh hysterically at their
for fear that America
its would sell or give it to Pe~~' gto ~ ~ for apeaal tae breaks`'` captors, get paranoid, or
ur for cartam drgg" compamea {e g Lilly) manufac- have insatiable desires for
their peoples to make ` food (the munchies?). Also,
turmg'%n Puerto ltico~ In1882, Pce President,,
their soldiers pacifists. Bush was there ort noted that Ameri-
tal Personally ordered t4 st9R,lpbb P
as This was strange be- IR.9 0~ ~°f ~ ~ eoppp~g b~,tb~U?S ; can OS3 agents and other ir-
on Europ B and China had Supseme Courttself (See Append~z; page 1~4~~ using the honey oil illegally
He d>zd-but~they {the pliarmaoantica]a}
sttll
3w been growing and ingest- g ~a5 themselves, and would not
ce>.ved "n 239o,additional tas break for their ccim give it to the spies. In Anslin-
ing cannabis as a medi- Ufi
cal drug, relaxant and pames iit Puerto R,tco who -make these American , gar's OSS getup's final report
work tonic for hundreds outlaw~drugsfws'saIef~aThirdWorldeo triea.~° on marijuana as a truth-
,a~
)n- and even thousands of OUTRAG&UU~II ~ 'y ~ serum, there was no mention
L~"•h H
for years, with no thought of '~~i+clww~statemanteBulile~eiu~mpn~'7~uah°`, of violence caused by the
on- marijuana laws Tried to i`~wayA°1'utBule Ghango But Then Withdrew"; I91C.:' ~g1 In fact, the opposite
Time6, 19, 1882; misc. corporate temrda; Christie IneI~CUd~"
(The J.V. Dialogue Soviet °LaPe4eq"afHda~t;I:illy1978Anpuai&epottJ ~1~~' was indicated. The OSS and
zro, ]>reaa Digest, OR., )sao repent- - " ~ - later the CIA continued the
tine ed a flourishing illegal hemp business, despite the frantic efforts by search and tried other drugs as a truth serum; psilo-
s• Soviet law enforcement agencies to stamp it out. `In ISirghizia alone be or amanita mushrooms and LSD to name a few.
Sate hemp plantations occupy some 3,000 hectares.' In soother area ~ >
• ~ Russians are traveling three dative into the 'one of the more sinister The CIA secretly tested these concoctions on
places in the Mo~yn•Kumy desert,' to harvest a special high grade, American agents for 20 years.
drought resistant variety of hemp or known locally ae anaeha)
-29-
Unsuspecting subjects jumped frt• buildings, or Quayle Administr,...on.
thought they~d gone insane. (L.A. Times, The ore ni
Our government finally admitted to doing all this to g° en. etc. editorials l9sa; The Oregonian,
Jmuary 21, 1986; Lee, Martin & Shlain, Bruce, Acid Dreams, Grove
its own people in the 1970s-after 25 years of de- tea' ~ 1~'1
vials: drugging innocent, non-consenting, unaware
citizens, soldiers and government agents-all in the CRIIVVIIIITAL MISCONDUCT
name of national security, of course. Before Annli
goer started the pacifist zombie-mari-
Theae American "security" agencies constantly .lug scare in 1948, he publicly used jazz music, vio-
threatened and even occasionally imprisoned individ- fence, and the "gore files" for five to seven more years
uals, families and organizations that suggested the (1943-60) in the press, at conventions, lectures, and
drugginga had ever occurred Congressional hearings.
_ We now know that on the subject of hemp, dis-
Anslingersupplied illegal morphine to U.S. guiaed as marijuana, Anslinger was a bureaucratic
Senator Joseph McCarthy for years. police liar.
For over 50 years now Americans have been grow-
It was three decades before the Freedom of ~ up with and accepting Anslinger's statements on
Information Act forced the CIA to admit their lies the herb-from violence to evil pacifism and finally to
through exposure on TV by CBS's 60 Minutes and the corrupting influence of music.
others. However, on Apri116,1985 the U.S. Supreme Whether this was economically or racially inspired,
Court ruled that the CIA did not have to reveal the or even because of up-beat music or some kind of syn-
identitiea of either the individuals or institutions in- ergistic (combined) hysteria; it is impossible to know
volved in this travesty. for sure. But we do know the U.S. Government, e.g.,
The court said, in effect, that the CIA could decide DEA, information disseminated on cannabis was
what was or was not to be released under the Free- then, and continues to be, a deliberate deception.
dom of Information Act, and that the courts wuld not Aa you will see in the following chapters, the weight
overrule the agenc}~s deasion. of empirical fact and large amounts of corroborating
As an aside, repealing this Freedom of Information evidence indicate that the Bush/Quayle administra-
Act is one of the prime goals of the fteagan/Bush/ tioa, along with their unique pharmaceutical connec-
tions (see `Bush/Quayle/Lilly Pharmaceutical Sell-
out" sidebar in this chapter), have probably conspired
at the highest levels to withhold information and to
disinform the public, resulting in the avoidable and
needless deaths of tens of thousands of Americans.
THE ASSASSIN OF YOUTH And they did it, it seems, intending to save their
own investment-and their friends'-in the pharma-
ceutical, energy and paper industries; and to give
these poisonous, synthetic industries an insane ad-
vantage over natural hemp and protect the billions of
dollars in annual profits that they stood to lose if the
hemp plant and marijuana were not prohibited!
:ti` w _ _ As a result, millions of years in jail time have been
wasted, and millions of lives have been and continue
to be ruined by what started out as Hearst's,
Y=='='w=?~ ~ ~ ~ _ Anslinger's and DuPont's shameful economic lies, vi-
~ ~ cious racial libels and bigoted musical taste.
_
_-z
= - ~ Footnotes:
~ zn ~ 1. Abel, Emeet, Marijuana, The FSret 12,000 Years, Plenum Press,
~
= ~ - NY, 1980. pg. 73 & 99.
~ 2. Sloman, Larry, Reefer Madness, Grove Press, Inc., New York
R B A OUME r.«. Y dw~ .ai.w. 1979, pg. 40. '
mss. i.. w.~.~. o+..~aw~.
- 9. II+id, pg. 196, 197.
4. Research of Dr. Michael Aldrich, Richard Aehleg Michael
• STAMP IT OUT Horowitz, et al.; The High Times Encyclopedia of Recreational
- Dry, Pg. 188.
-30-
Chapter Thirteen:
PREJUDICE:
~JUartA ~vD T~ ~ cROw ~ws
Since the abolition of alaver,~ ractam and bigotry hose generally had to manifest
themselves in less blatant forms in Meerica.
The cannabis prohibition iawa illustrate ogain this institutional intolerance of
racial minorities and show how prejudice is concealed behind rhetoric and laws
which seem to have an entirely diif
ferent purpose.
$MOHIIITG IN AFRICA BLACKFACE
The first known* smoking of female cannabis tops The Public Safety Commissioner of New Orleans
in the Western hemisphere was in the 1870a in the wrote that, `marijuana was the most frightening and
West Indies (Jamaica, Bahamas, Barbados, etc.); and vicious drug ever to hit New Orleana,° and in 1910
arrived with the immigration of thousands of Indian warned that regular users might number as high as
Hindus imported for cheaper labor. By 1886, 200 in 3toreyville alone.
Mexcans and Black sailors, who traded in those is- ~ the D.A and Public Safety Cornrn;aa;oners and
lands, picked up and spread its use throughout all New Orleans newspapers from 1910 through the
the Went Indies and Meuco. 1930x, marijuana's insidious evil influence apparent-
•There are other theortea about the i>r.t known •emoking• of ly manifested itself in making the °darkies" think
hemp flower tope, e.g, by American and Brasiliaa slaves, Shawnee they were a8 g00d 88 `White men.°
Indians, etc.. some fascinating-but mne veriSable.
Cannabis smoking was generally used in the West ~ fact, marijuana was being blamed for the first re-
Indies to ease the back-breaking work in the cane of black entertainers to wear blackface* and
fields, beat the heat, sad to relax in the evenings for hysterical laughter by Negroes under marijuana's
~ without the threat of an alcohol hangover in the influence when told to cross a street or go to the back
morning. of the trolley, etc.
• Thet9e right, your eyes have sot deceived yrou. Because of a ctvi-
ouequirk is Lhe •Jim Crete (segregation; apartheid type) laws, black
"Negroes, Mexicans and entertainera,'°-aced Americana were banned 5om eqy stage in the Deep south (and moat
theirjazz and awing music-were declared an other places in the North and West elso). Negroes had to wear
Oeetg/+OWth Of ma7'~eea7e4 a8e. (threvgh the 1920x) blackface--(like Al Jdeon wore when he sang
'awaoee•) a dye which white entertaiaere wore to resemble or mimic
black people. Actually, by •Jim Crew' law, blacks were not allowed on
Given its late 19th century area of usage-the er hnosugh b~arlcb
d~aobn
p~ on
bhiackfaoe
Land
prn~n~a
to
be
a w>vice
Caribbean West Indies and Meuco-it is not aurpris- person playing the part of a black person...
ing the first marijuana use recorded in the U.S. was
that of Meucana in Brownsville, 'llexas is 1903, and ••,~jD ALL THAT JAZZ
then in 1909 in the port of New Orleans, in the Black
dominated °Storeyville° section frequented by sailors. In New Orleans, whites were also concerned that
New Orleans' Storeyville was filled with cabarets, black mug'°ana, rumored to smoke marijuana, were
brothels, music, and all the other usual accouter- spreading (selling) a very powerful (popular) new
ments of aced light° districts the world over. Sailors `hoodoo" music that forced even decent white women
from the Islands took their shore leave and their ~ ~P their feet and was ultimately aimed at throw-
mar{juana there. ing off the yoke of the whites. Today we call that new
music... Jazz!
~5-
Blacks obviously played ui .the white New leavecalifornia aotretumfortwoyeare.
Orleans racists' fears of "voodoo" to try to keep American newspapers, politicians, and police, had
whites out of their lives. Jaz~s birthplace is generally virtually no idea, for 15 years (until the 1920x, and
recognized to be in Storeyville, New Orleans, and then only rarely), that the marijuana the "darkies"
home of the original innovators: Buddy Bohler, Buck and "Chicanos" were smoking in cigarettes or pipes
Johnson and others (1909-1917). Storeyville was also was just a weaker version of the many familiar con-
the birthplace of Louis Armstrong" (1900). centrated cannabis medicines they'd been taking
~ In 1930-one year after Louie Armstrong recorded "Haggles' since childhood, or that the same drug was smoked
(read: "marijuana"}-he was arrested for a mar{juana cigarette in at the lOCal `white man's" plush hashish parlors.
Los Angeles, California and put in jail for 10 days until he agreed to
;ANSLINGER'S HATRED ~JF BLAGK85A~T~?JAZZ
' After rgtu~ement, Harry Anslmger personally de- Typical of a ~tia jazz musrtaans' files ie the
livered lux pagers from hra 3 y ~ as the`world'~ ' followmg- "D a t~ a ce'lada In Camden,
top narc Lo Penn State Umv tyc y F ' ~ ~ `lbacas, born ;'~i`6'$"F~1,165~1ba, ~~ack- Gomplex-
From the Anslinger papers and the Washiigtan, black hair, blarl~syea.~ie bas acairs o:n left foxe-
D.C., DEA Library (containing the Old F B.N. papers head, and a tattoo pf a dagger sad the word on
and memos), we have this From 1948 to, 1848, ='his right forearm,. He lb a musxcrari and plays the
Analinger ordered all hiazagents :throughout the truinpet~ra s~al1'ho~I~(ls«' a yesy'large
country to watch and keep marijuana criminal files 'mouth and tluck,hps~w}uch earns lwm ,Iris came.
of "
« FIe is a mala~uAna mok~~ (?then files are
on virtually all. jazz and swing musicians, but not to ~ ~ ,
boat them until he could coordinate all the jazz ,just as ridiculous,
xacrst andntr Jazz
busts on the same night, y~', ~ The only reason tbeyllig; ust of.~ a musicians
Y ~~`didnt go dovs!n?.rlnalmger's'supenor at the Troasury
Anslinger kepC files on Thelonius Monk, Iquts department, Assistant St~crekary l'oley ~~ii;n in-
Armstrong, Lea Brown, CountBasie, Jimmy ~''fonned by Anslinger of the nationwe~azz iuuaieian
Dorsey, Duke Blltngton, Dizzy Gillespie, lionel round_up, wrote ba~ck~~1~r,~`ole~fdieap~provss!
Hampton, Andre%stelanetz,;Cab Calloiuay, Ansl!rrgers longtime &nc~ closest ~elrartmental as-
the
NBC Orchestra, the iKiGtori Berle show; the sociate and,prolaably hugest C mod, Dr ~:iames
Coca-Cola program, the Jackie Gleason show Munch*; ~ iatexnewed in 197~about An~uiger's
and even the Sate Smith program, ;,hatred for jazz musicians in. the~'$Os;'44s, and'SOs,
N ' by Larry 3lomaa
for a book pu6)lshe~ by`$obbs-
His goal and dream was to bust them all m tone gi- Merrill, KteeferMadness,"hi],879. ; ,
ant nationwide sweep! This would garner,`the firont ' Di: Hunch, a,~6ewiakt iar tbe;FBN, v~eaw(dely touted by-the
age of ever news a er'in:America, and :make ` aovernmgnt and p"ea~,ar A'"°'i`n'',foram°at °t'thority on the af-
P Y P P ` t~cte of martjuana during Lhe 1930' and 40'x.
Anslinger more well-known than his '20'year chief 3loman: WVhy did he CAnslinger] want to go after
rival, the F.B.L's famous J.Edgar` :Hoover. The jazz them [the jazz/swing muaiciansl so much?"'
and-swing musicians would be shown to the youth of a,. F;
America for what they really were dope fiends." - Dr, Muach: •`Because the chief effect as far as they
[Anslinger, FBN)were concerned w`as that itlength-
Anslinger ordered his agents to keep files and con=
atant surveillance on the following "low: life" ens the sense of"turie,.andtherefore they could get
Americans and their bands; su?gers and comedians: 'more grace beats into there music than they could if
Theloniua Monk, Louis Armstrong; Les Brows, they simply follovs!ed the written Cmusical] copy,: "
Count Basie~ Cab Calloway,.Jimmy Dorsey; Duke ^ Sloman "What's~wrongwiththat?"
Ellington,..Dizzy;Gilleapie,Lionel Hampton,'Andre Dr. Munch "In ether words, if ytiu'are a muxician,
Kostelanetz. Also'under surveillance `verethe NBC ,
you are going to, play the thing imusic] the way it is
.Orchestra, the Milton Berle ahow,,the Ooca-Cola !printed on a sheet. But; if you're using marijuana,
program, the Jaclrie Gleason program, and even the you are' going tti`work in about twice. as much music
"Kate Smith program. 1?eople we,think of today as in between the first note and the second note.'That's
wonderful Americans and musical innovators. what made jazz musicians: The idea that they crould
For five years.they were watohed and the files jazz things up, liven them up, you see:'
~n
grew `From 1943, to 1948-;the fed'e«ral agents waited Sloman: "Oh, Isee"
to make their move.
-ss -
(Left to right, upper row:) (Left to right, lower row:)
Jackie Gleason Cab Calbway
Dizry Gillespie r` ' .Y; lhebnbus Munk
Count Basis 4 ,t~ ~ L'anel Hampton
Louis Armstrong Kate Smith
Milian Berle Duke Ellington
-'Vi'a ti~;e
~~~~~~111111
4 f
~ fig!
s .'p~yi '
a ,I
p+ :a
yi~li"f
la
White racists wrote articles and passed city and
state laws without this knowledge for almost two MERICAN-AMERICANS
decades, chiefly because of Negro/Mexican vicious In 1915, California and Utah passed state laws out-
"insolence"* under the effect of marijuana. lawing marijuana for the same "Jim Crow" rea-
' Vicious Insolence: Between 1864 and 1900, s,soo documented sons-but directed through the Hearst papers at
deaths of black Americans were caused by ),ynchinga; between 1900 CihlcaI103.
and 1917, over 1,100 were tecerded. The real figures were mdoubN
wily higher It ie estimated that one-third of these Lynchings were for
"insolence," which might be anything from looking (or being aaveed Mexicans under marijuana's influence were
of looking) at a white woman twice, to stepping oa a white man§ demanding humane treatment, looking at
shadow, even to looking a white man directly in the eye for more
than three seconds, not going directly to the beck of the trolley, etc. white women, and asking that their children
It was obvious to whites, marpuana caused Negm and Mexioaa'bi- be educated while the parents harvested sugar
ciovenesa' or they wouldn't dare be "insolent'; etc... Ire¢ts; and other insolent" demands.
Hundreds of thousands of negroee and Chicanos were sentenced
from 10 days to 10 yeah mostly on local and state "chain gangs' for
such silly crimes as we have just listed. Colorado followed in 1917. Its legislators cited ex-
Thia was the nature of'Tim Cmw+' Laws until the 1950e and 60e;
the laws Martin Luther King, the NAACP, and general public outcry ceases of Pancho V'illa's rebel army, whose drug of
have finally begun remedying is America. choice was supposed to have been marijuana. Which,
We can only imagine the immediate effect the Black if true, means that marijuana helped to overthrow
entertainers' refusal to wear blackface had on the one of the most repressive and evil regimes Mexico
white establishment, but seven years later, 1917, ever suffered
Storeyville was completely shut-down. Apartheid had The Colorado Legislature felt the only way to pre-
its moment of triumph. vent an actual racial blood bath and the overthrow of
No longer did the upright, up-tight white atizen their (whites') ignorant and bigoted laws, attitudes
have to worry about white women going to and institutions was to stop marijuana.
Storeyville to listen to "voodoo" jazz or perhaps be Mexicans under marijuana's influence were de-
raped by its marijuana-crazed `Black adherents" who manding humane treatment, looking at white wom-
showed vicious disrespect (insolence) for whites and en, and asking that their children be educated while
their "Jim Crow Laws" by stepping on their (white the parents harvested sugar beets; and other "inso-
men's) shadows and the like when they were high on lent" demands. With the excuse of marijuana (Killer
marijuana. Weed) the whites could now use force and rationalize
Black musicians then took their music and marl- feu'violent acts of repression.
Juana up the Mississippi to Memphis, Kansas City, This `4~eefer raasm" continues into the present day.
St. Louis, Chicago, etc., where the (white) city fa- In 1937, Harry Anslinger told Congress that there
there, for the same racist reasons, soon passed local were between 50,000 to 100,000* total marijuana
marijuana laws to stop "evil" music and keep white smokers then in the U.S. and moat of them were
women from fall'nro prey to Blacks through jazz and "Negroes and Mexicans, and entertainers," and their
marijuana. music, jazz and awing were an outgrowth of this mar-
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62B BILL OF RIGI
}}{1.
i{I Secondly. one of the previous speakers mentioned that we have the federal Freedc
iii of Information Act, and we don't need this at the state level. The federal Freedom of Infc
lion Act only applies to federal agencies, it does not apply to state agencies at all. So it
we think this issue is important enough--access to state agencies, public information--
then I urge you to vote in support of this amendment. Again, on investigatory records,
because there is no federal law governing our state agencies now on investigatory recor<
our legislature can decide. By passing this amendment, we will tell them that we are
concerned about this investigatory problem and ask them to focus on that exemption,
because we are concerned about the problem that has been expressed with confidential
names being released of people involved in these invesfigations and retributions. So
again I urge the adoption.
V1 CHAIRMAN: Thank you, Delegate Barnes.
i~! DELEGATE STERLING: Mr. Chairman, point of information, please.
CHAIRMAN: State your point of information, Delegate Sterling.
DELEGATE STERLING: Just a few weeks ago, didn't we have e case like this in
4+ our community, where [he chief of police of Hawaii county refused to release some rec-
ords, and I believe he was upheld? I'm not too sure--perhaps one of the attorneys here
could answer my question. He refused to release some records he had because he might
be releasing information containing informants' names, and I believe he was upheld in
the court.
iii
CHAIRMAN: Delegate Sterling, I'll check with the movant or anyone else who may
have that information, Is there anyone here who has that information? Delegate Burgess?
i';. DELEGATE BURGESS: I believe that Chief Keala was directed by Judge Fukushima
to produce certain records and subsequently he prepared a sealed affidavit which was
submitted to the court in confidence. And according to the newspapers, the judge con-
sidered the affidavit and decided on that basis that it was not necessary to have the records
produced.
id
CHAIRMAN: Delegate Burgess, before you sit down, did [he matter before the
1;~~ court have a relationship to the language in this amendment?
~ DELEGATE BURGESS: I'm not sure.
CHAIRMAN: Thank you, Delegate Burgess. The question before the body is
the amendment entitled "Access to Public Records," that each person shall have the right
F' of access as written. All those in favor will raise their right hand. Al] opposed, by
like sign. The noes have it. The amendment is defeated.
We will now take up Amendment No. 3 offered by Delegate Tam. This has to do
with the right to privacy. Delegate Tam, you're recognized.
DELEGATE TAD1: Dlr. Chairman, before I do this, I would just like to preface
this by saying that is the beginning of several--
' CHAIRMAN: Delegate Tam, why don't you make a motion first, and then you can
say whatever you wish.
DELEGATE TAM: Mr. Chairman, I move to amend Committee Proposal No. 15 by
deleting paragraph 6 relating to the right to privacy, as contained in Amendment No.
3 as submitted, entitled "Right to Privacy." I won't read it.
DELEGATE SOUKI: Second.
4
CHAIRMAN: Okay. Please proceed.
DELEGATE TAM: Mr. Chairman, before I embark on this, 1'd just like to say that
this is the beginning of several amendments that I proposed, and I would ask the indulgence
. of this body. [.'ve tried to limit my comments, up till today, in response to a message that
~a~.
'i~~ ...._---'-------'r'~-
SEPTEMBER 9, 1976 629
I once received while eating with some friends at Wo Fat. And we were served some fortune
- cookies, as a Chinese restaurant is likely to do, and in my fortune cookie there was a
fortune, as there sometimes is, and this fortune said: "Open your mind before you open
your mouth." And so I've been trying to do that, up until today. However, today I feel ~'I~
very much compelled to open my mouth, having opened my mind up until today on several
matters. This is the first of several matters. ~
I will start off by declaring a bias, in a sense, because I do work in the prosecutor's
office in Maui county. However, I proposed these both from the viewpoint of my occupation
as well as a private citizen. And I do so because there has been a great concern expressed
about the growing crime rate, and it seems like every candidate nowadays is trying [o
espouse it. But for once we have a chance to do something about it instead of just giving
lip service,
Now in this particular amendment where I have proposed deleting the right to privacy ill
provision, I can understand that some people may feel--it's like speaking against mother- `
hood, to some extent. Why is it wrong to include the right to privacy? or what are my
objections to this? Let me first of all say that I am not against privacy, individual privacy;
we're no[ trying to get a state of Big Brotherism or 1984. My principle objections are
that this right is already in the Constitution. It's set out very clearly and it's delineated
very clearly, This provision does not add to it; in fact, this provision as I see it--and i
I might be wrong--will in fact hamper law enforcement.
As [o my first point, that this right is already here, (would refer the delegates
to Section 5 of Article I--if you would please look a[ your Constitution. For those of you
who do not have rnpies of your Constitution with you, I will quote it: "Searches, Seizures
and Invasion of Privacy, The right of the people to be secure in their persons, houses, J
papers and effects against unreasonable searches, seizures, and invasions of privacy
shall not be violated...." This was put in by [he 1968 constitutional convention.
If I may, I would draw the attention of this body to Standing Committee Report
No. 55 from the 1968 convention, es to what this right of privacy involves. I'm referring i~
to the Proceedings of the Constitutional Convention. Volume 1, page 233. "Your Com- j!
mi[tee is of the opinion [hat inclusion of the term 'invasions of privacy' will effectively -
protect the individual's wishes for privacy as a legitimate social interest. The proposed
amendment is intended to include protection against indiscriminate wiretapping as well
as undue government inquiry into and regulation of those areas of a person's life which
are defined as necessary to insure 'man's individuality and human dignity.' Your Com-
mittee urges the adoption of this amendment."
Therefore, Mr. Chairman, in reading Standing Committee Report No. 69 on our
present Bill of Rights, I find nothing new that is being proposed. There is the same
language relating to man's individuality and human dignity as was contained in the f ~
standing committee report 10 years ago when rights against invasions of privacy was
put in the Constitution. So the point is that everything the committee report wants is 4,'
already there. Why then are we trying to modify the Constitution? I'm very leery when
anyone tries [o tamper with the Bill of Rights. They've stood with us since 1787, and these
are basically consistent with our U.S. Bill of Rights. Now, what alarms me is that by
putting in the language as it is right now--[hat the right to privacy "is recognized and
shall not be infringed without the showing oP a compelling state interest"--goes beyond
our present statutory law and would in fact hinder law enforcement.
T call the attention of this body to page 9 of Standing Committee Report No. 69,
where it indicates, near the top, that "it is expected that in certain situations the interest
of the State will rise to such an intensity that it will be deemed a compelling state interest,"
Now this is not the present understanding of our case law. We do not have to find a com- i
pelling state interest; for instance, to be able [o obtain a search warrant when there is
illegal activity going on, what has to be done is an affidavit has to be produced to a judge
showing probable cause that there is criminal conduct in a particular dwelling and that
this should therefore entitle law enforcement officers to enter and try to stop it. ~
i emphasize--probable cause must be shown to a judge. This language for "com-
pelling state interest," to me, would necessitate a much higher standard to execute a
search warrant. The result would then be that i[ would be virtually impossible, as I
can see it, to stop criminal activity conducted in what can be considered a dwelling.
~I
63D BILL OF RIGHTS
i
For instance, if a person were to manufacture cocaine, angel dust or what have you,
f~. if it's for the purpose of manufacturing for personal use, I don't see how anyone can
say--if that be [he will of this body--I don't see how anyone can say that there's a com-
pelling state interest to go in there. This language seems to say that it's all right for
' a person to do anything he wants as long as we cannot show that someone else will be
affected. So, in other words, again the manufacture of drugs--I don't even know....
li
i; CHAIRMAN: Why don't you finish up, Delegate Tam, as I understand your 10
minutes is almost up.
n
DELEGATE TAM: I'm near the end, Mr. Chairman. I don't even know if this
particular matter-- Let me stop with that and just say that almost any criminal conduct
will be virtually impossible to stop. I would like to know what particular matters are
being addressed by this amendment. The concept is nice; it's like a motherhood con-
cept--it's veiy nice. But what is this proposal seeking to remedy? What evil is it trying
[o correct? If it can correct an evil that the standing committee report of 10 years ago
does not cover--fine. But if it cannot, if it doesn't go beyond that and in fact will only
~j~ encourage criminal conduct, then I would speak against it,
CHAIRMAN: Thank you, Delegate Tam. Would you care to speak last, also?
DELEGATE TAM: Yes, Mr. Chairman.
°+i ~ CHAIRMAN: Is there further discussion on the amendment to delete this section
in the committee proposal? Delegate Hino is recognized.
{'i. DELEGATE HA'O: Mr, Chairman, I have been asked by my BORSE committee chairman
r,~; to speak against this amendment. First of all, I'd like to allay the fears of law enforcement
officials and people connected with law enforcement that this provision will make i[ a little
i'~ more difficult for the law to be enforced. This factor was recognized during our committee's
de]iberations. And in deference to concerns raised by Delegate Chong, we decided in the
committee that Article I, Section 5, which presently contains provisions for searches and
seizures, would not be changed at all. We left the two provisions that the 1968 convention
proposed as is.
Ii
Instead we proposed that this privacy provision be put in a separate section, of
and by itself, to show that it was not the intent of the committee to upset any kind of prec-
edents on criminal justice or law enforcement procedures; that this privacy provision
would refer to and protect the rights of noncriminals. This privacy proposal, IDIr.
Chairman, looks to the future, not to the injuries of the past. This is one of [he few pro-
posals in this Convention that recognizes that because of our limited resources in land
and water and because of the growth of our population, some time in the future all of us
are going to have to gave up some individual liberties and freedoms if we are to live har-
moniously in these Islands.
This proposa! then alerts the legislature to the fact that when we do have to give
up these freedoms, that when the legislature makes up certain rules and regulations for
us, that they not forget the right of privacy, individual dignity; that whenever they make
regulations so that we may live together harmoniously, they take the least intrusive
means to accomplish this task. The privacy proposal is more like an inoculation [o prevent
future undesirable events. It recognizes the inevitability of government encroachment
upon certain of our rights which we take for granted today. As our State becomes more
and more crowded, we know that some of the rights we take for granted are going to
have to be encroached upon. This is merely a request for the legislature that when they
-look at our rights of privacy, that they look at the rights of individuals and really take
the least intrusive means.
' Now, there are other reasons which were discussed in our committee as to why
privacy serves society, and I'd like [o bring up two of these. Privacy fosters [he growth
of autonomous, free-thinking individuals, which is necessary for self-government.
The controls on government, aside from law enforcement, prevent government from acquir-
~j ing powerful tools of repression. We have many more reasons why privacy is indeed
another good issue. Privacy is the kind of right that is not lost until you experience
it yourself. Most people in high places don't feel that they have a need for the right
i'~ :'vea
;i,..
SEPTEMBER 9, 1978 631
of privacy because no one bothers them. This is really a protection we are offering to III
ordinary people who don't know how to protest.
The delegate from Maui asks what it is designed to correct. Really, at this point
I don't know what it's designed to correct, but I know what it's designed to protect.
It's designed to protect our individual freedoms, those things which we hold dear. Every
one of us should be entitled to some kinds of secrets that we may want to keep. In our
behavior with other people, we should be allowed to act in a certain way, We should
be allowed to drop [he masks that we have to wear in public so that when we go home ~
there is no need to keep this mask on. i
I recall from my childhood days on Maui, when we went walking up to the Poot of it
the west Maui mountains and said--let's climb it--and we did, and afterwards deep in ~
Iao Valley we went skinny-dipping. I would hate [o think that we would no longer be ;I
able to do things like this. Bu[ I see [hat we have cases where a policeman would drive
all the way out to Kaena Point--and Kaena Point is as remote as you can get on this Island
of Oahu--and give a fiche[ to someone who was sunbathing out there. I would like to
think that our legislature would consider that there should be places where we would ~i
be allowed to do these things that give us a sense of freedom and relaxation. I remember
in Iao Valle where as a child I dreamed about what could ha
y, ppen, I wondered if this
was something like Walden Pond; and then, being brought back to Hawaii, thinking--
was it Kalaniopuu or Kahekili or Kamehameha, which of the rulers had come up and
fought in these valleys, so that part of Iao Stream is now called Kepaniwai. I think we
should have the right to have these opportunities, when we can go in solitude and think
about the world in general, about history, and just have a place where we can totally
relax, without fear of breaking laws, without fear of government intervention. For these
and many other reasons, I ask that the delegates vote down this amendment.
CHAIRMAN: Thank you, Delegate Hino. The Chair recognizes Delegate Takitani.
DELEGATE TAKITANI: Mr. Chairman, point of inquiry, I would like to ask a -
question of the chairman, or anyone else.
CHAIRMAN: State your question.
i
DELEGATE TAKITANI: Would the words "compelling state interest" allow an individ- it
ual to smoke marijuana in the privacy of his home without being harassed?
i'i
CHAIRMAN: The Chair will inquire of Delegate Weatherwax whether he wishes f~'
to yield to that question. II
~ DELEGATE WEATHERWAX: I'll try [o respond. First of all, any language in the ~i
~ Constitution, of course, is not going to prohibit anyone from doing what he intends to
do anyway. However, in response to your question as to whether or not--it's really an
~ unanswerable question; it would have [o go to the courts. I believe that in Alaska, how- i,
ever, based on the right to privacy, there was a law or case law which permitted the I~
smoking of marijuana in the privacy of one's home. That is an Alaska case.
But also--I believe the question was de to "compelling state interest"--I believe there
are federal case laws which deal with "compelling state interest" and define it--that would I
~ be the Griswold case. Also while I'm answering questions, I might point out to the delegate
from Maui that there has been a case here in Hawaii--I believe it's State v. Roy--which
answers his concerns as to--
CHAIRMAN: Delegate Weatherwax, which delegate's question are you--
DELEGATE WEATHERWAX: Well, I was answering Delegate Takitani--both are
from Maui.
CHAIRMAN: That's right. Does that answer your question to some extent, Delegate
Takitani?
DELEGATE TAKITANI: Yes.
CHAIRMAN: The Chair recognizes Delegate Sterling.
i
I
i 632 BILL OF RIGHTS
i
DELEGATE STERLING: Some polls, although they're not given very much publicity--
I'mspeaking against the amendment--very few, but they're very enlightening; [hey show
' that most of the people in our country are very good people--regardless of the headlines--
very good people. And on many occasions we react to law enforcement and to the criminal
and criminal activity. But I think that we have to give just as much thought to protecting
the rights of all of these good people, the quiet people who do not organize, who do not
wish to become involved, participate in meetings and so on. This right to privacy as
f it's stated in the committee report takes into consideration the privacy of all these good
~ people, the little people who do not choose to demonstrate or participate. I believe we
should honor this right to their privacy.
CHAIRMAN: Thank you, Delegate Sterling. The Chair recognizes Delegate Chung.
I
jj DELEGATE CHUNG: I speak in behalf of the amendment by the delegate from Maui.
As he mentioned, [his concern is already addressed in Article I, Section 5, which protects
people's rights in their property and home, i also Peel that if we reemphasize this with
1~;~ another section on the right to privacy, while it's well and good and well intended, I
{~i feel that the greatest benefit in the long run in Hawaii shall be Prom the criminal element.
n
Ui
In 1950 there were 5,987 reported index crimes. These are the serious felonies;
index crime simply means criminal homicide, forcible rape, robbery, aggravated assault,
t"~ burglary, larceny-theft, motor vehicle theft. In our first constitutional convention, the
V+I scorecard was 5,467 such offenses. In 1968, according to the police report, it was 31,044.
Las[ year, 1977. it jumped to 58, 549. This year from January to June--the past 6 months--
j~! [here were 28,565 high-fear crimes committed or reported [at this time] in Hawaii; and
I' out of these 28,565, only 7,229 cases were so-called cleared, with an average of about
4,000 high-fear crimes committed each month and about 1,000 clearances.
LI.
„,I 1 honestly feel from my experience that this right to privacy is a protective device
for these so-called professional criminals, who have become so sophisticated in their
' techniques and their planning. Unless we are very careful in these kinds of decisions,
~;i' we may be inadvertently contributing toward the easiness of the commission of crime,
particularly in Hawaii. Hawaii, being a seaport state, with the visitor industry as the
No. 1 industry, is a natural attraction for criminality--organized crime, white-collar
crime. And this type of right [o privacy, as good as it is for all of us, somehow will
have an insidious effect on a very serious concern in Hawaii today--the rising tide of
crime. Therefore, I strongly support the feeling of our fellow delegate from Maui.
i
CHAIRMAN: Thank you, Delegate Chung. The Chair recognizes Delegate Waihee.
DELEGATE WAIHEE: Mr. Chairman, I have to speak in opposition to the amendment.
If [he fears expressed by those who talked about crime were correct, then I too would
be fearful of this amendment. But I cannot see how these fears are in any sense justified.
First of all, the fighting of crime is a compelling state interest. Being a compelling state
interest, the laws now relating to crime, including [he test of probable cause for getting
a search warrant, would still be applied.
Now as an example of this, I might point out that the Alaska constitution has an
almost identical provision to this and the courts there have held that probable cause is
a standard to use for search warrants, that the usual crime-fighting mechanisms apply.
Indeed, the right to privacy was tested in the Alaska courts relating to marijuana, and
the courts there found that perhaps someone could smoke marijuana in their house and
that it would be a private act. But in the same decision the courts held against the com-
pelling state interest of the state in the manufacturing of cocaine or to have heroin or
any other dangerous drug or do anything like that in [he privacy of your home.
Now I think that, rather than running off on what--we have to look at what this
right to privacy is meant to protect. I am not as philosophical as the delegate who first
spoke in favor of it, so maybe I can bring it down to where 1 would understand it. Mr.
Chairman, we are entering an age of computerization: our names are found on all kinds
of financial material and all kinds of governmental records; we find ourselves on mailing
~ lists that we don't know how in the world we ever got on. And we find ourselves being
the objectives of intrusions by many forces in society. I think that what people need
to have in this urbanized time is some kind of protection against this; we need some way
7,,
11
~I
11'
al
SEPTEMBER 9, 1978 633
to know that ovr own private affairs will remain ours--unless [here is a compelling state
interest, unless we are participating in criminal activities or have relinquished our right
to remain and keep our affairs private. And for these reasons, Mr. Chairman, I would
speak against this amendment.
CHAIRMAN: Thank you, Delegate Waihee. Is [here further discussion on this
subject? Delegate Barnes is recognized. i ~
DELEGATE BARNES: Mr. Chairman, I rise to speak in favor of [his amendment,
although not strongly. I believe there should be balance in our constitutional provisions,
and obviously the right to know and the right to privacy stand opposed to each other,
i for one reason.
I
Since we have just taken a decision not to include a right to know provision, then
I think, before we include further language other than what's in the Constitution on the
right to privacy, we should careflIIly scrutinize this language. Will it help us? If you
look at page 7 of the standing committee report, third paragraph, we're given three ex-
amples of how this right might help. "For example, the right can be used to protect
an individual from invasion of his private affairs"; if a court, for example, were to find
out whether this was an invasion oP private affairs, they could also go to trespass laws--
the existing law preventing someone from coming on your propeity--or liable or slander ~
laws for the next two examples--"public disclosure of embarrassing facts, and publicity
placing the individual in a false light." In other words, if a newspaper reporter chooses
to print an article about one of us delegates here, we have chosen to place ourselves
in the public realm, so this isn't going to help--[his right to privacy--we can't go and
stop that article about us from being printed. But what we do have available are liable
and slander laws and the case law existing there. ~
So, in my analysis I don't see that this language is going to directly help us in
any way. We'll still have to turn back to the existing law, Not wanting to add extra words ~
to the Constitution, I would speak in favor of the amendment. j
CHAIRMAN: Thank you, Delegate Barnes. The Chair recognizes Delegate Souki.ll
DELEGATE SODKI: Mr. Chairman, I wish to speak for the amendment, and the
reason is that I believe in Section 5 oPArticle I there is sufficient language to protect I
the privacy of the citizens of the State. I believe this new amendment will be somewhat
redundant and might in fact cause some unanticipated problems, as [he "compelling state
interest" can be interpreted adversely.
Also I think the concept is very beautiful and I--by the former Mauian by his poetic
method in describing the rationale and need for such an amendment, I would be almost
tempted to vote for that and buy that particular concept. However, I believe that if we
are to pursue [hat--and I think we should--i[ would be better done by statute, simply ~I'i
following the existing language in the Constitution that the right to privacy shall not ;~I
be violated, and then through statute expand on this particular style [o provide us the
future privacy that we're going to need.
CHAIRMAN: Thank you, Delegate Souki. The Chair recognises Delegate Hale.
II
DELEGATE HALE: Mr. Chairman, I'd like [o speak against this amendment. The
1968 amendment wes dealing primarily in the area of wiretapping and eavesdropping it
and made it possible--as I understand it--for government to go [o court to get permission
to do this. And they had to get permission. My understanding of this right to privacy
is that it embraces other things, and I think [he committee report has a very full expla-
nation on page 8: "For example, it has been held that society has no legitimate interest
in the hairstyle of a person attending a public educational institution." But I can recall
the days when students were sent home--boys particularly--if their hair was below their
ears. I can also recall the days of the dress code, when you couldn't go to a public edu-
cational institution without wearing certain kinds of clothing.
It seems to me that we have so much regulation of our lives, that we have to look
to the future as we get more and more regulation of our lives, that there certainly have I
to be some basic freedomsthat we as individuals are going to have to protect. And
634 81LL OF RIGHTS
I
li
those freedoms are basically a right to live our lives [he way we want to as long as we
don`t hurt anybody else. This is the way that 1 hope eventually the courts would interpret
such a right to privacy provision and it properly belongs in our Consritution because
we're talking about basic rights. I am against this amendment.
CHAIRMAN: Thank you, Delegate Hale. The Chair will ask first, before recogniz-
ing Delegate Hino, if there are any delegates wishing to speak for the first time. I recog-
nize Delegate DiBianco. -
i
DELEGATE DiBIANCO: Mr. Chairman, I rise to speak against this amendment
and in favor of the privacy provision as presented by the committee. The subject
matter covered by this particular provision is not covered by Article Section 5, of
the present Constitution. Section 5 of our present Constitution speaks primarily to
state action. What this particular provision is trying to do is not to protect us against
y~~ the State of Hawaii--lt seeks to protect us from each other.
1~
The laws which we have had on the books for the past 200 years--[he constitutional
~1 provisions that~our founding fathers gave to us, many of which have been incorporated
~~i into our own State Constitution--are not only excellent but they are timeless. But when
they were written, the people who wrote them, who drafted them, did not know about
,1. computers. It's primarily computers that we're concerned about, I think, and the in-
formational services they provide to people we do not necessarily want to give our in-
formation to, that has spurred this kind of constitutional provision.
9~
I don't know if all of you realize it, but anybody in this room who has ever sent
,.I in a life insurance application or an application of any kind in which his medical records
or information regarding his medical treatment were requested--those medical records
~ are now in a medical data bank in New Jersey. Every single one of us has our medical
records in that bank, and i[ is available to any other insurance company--automobile,
' or any kind that wishes to check into it. That's true also of many of our credit ratings--
information that we not only don't have access to, but unfortunately we cannot even cor-
reef because we don't even know it exists. We don't know it's been compiled, but it's
there. And it's that kind of thing that I think our State has to try to protect us from.
We're not seeking protection from the State of Hawaii; we're seeking protection
from the people with the computers who are gathering information on us without con-
sulting us first and without giving us an opportunity to correct errors.
As far as criminal law is concerned, i would concur with the previous remarks
of Delegate Waihee, that since the provision proposed by the bill of rights committee
states that [he "right of the people to privacy...shall not be infringed without the show-
ing of a compelling state interest," there's no problem with the criminal law aspect be-
cause the search warrant--the right to ferret out crime upon an affidavit and search war-
rant issued from a court of competent jurisdiction--has always been a compelling state
interest; I don't see any conflict between the two provisions. I urge you to vote this
amendment down.
CHAIRMAN: Thank you, Delegate DiBianco. 7 recognize Delegate Anae.
DELEGATE ANAE: Mr. Chairman, I believe that the right to privacy provision
in the committee proposal merely addresses itself to the problems [hat we do have today.
I don't think that the right to privacy provision in the Constitution has the same stature
as the Bill of Rights has today. For [his reason, this amendment in the committee pro-
posal merely brings the stature of the right to privacy up to the level of the Bill of Rights. '
And I think this is necessary because of things that are happening in our society today;
some of these things have been voiced by the previous delegate--that we are being in-
vaded in our homes with mail we don't desire.
I for one had my right to privacy invaded when I received a Playboy magazine
in my home from an anonymous person who contributed to this. Now if you understand
my background, you can understand the trauma that my wife and I felt when this mail
. was addressed to me. Our privacy is being invaded; people are sending material into
our home that wo have not asked for. We are being programmed, whether we recognize
it or not. I feel very strongly with due respect to people who are concerned about crim-
inal elements that the rights of a majority of our people are being violated.
'a; i
sr.
~I
al:
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SEPTEMBER 9, 1978 635
,.:x.
Our Constitution has addressed itself to many reforms--reforms that give the State
jurisdiction over many of the private things we have enjoyed in the past. And somehow
I feel that the right to privacy is going to be neglected if we do not address ourselves
to it now .
CHAIRMAN: Thank you, Delegate Anae. The Chair recognizes Delegate Burgess.
DELEGATE BURGESS: Mr. Chairman, I speak in favor of this amendment. I am
completely in accord with the idea expressed, of protecting everyone's right to privacy.
Bu[ I see a red flag when I think about [he consequences of this provision as it's appar-
ently intended. I see it as potentially being used for suppression of information rather
than protection of privacy. I see it as giving a new tool to government to be used for i
the detriment of the people's right to know. '
i n
I've heard the comments and listened carefully to those who spoke against the
amendment. I've also just read the standing committee report, and the thing [hat con-
cerns me is the argument that this new provision is supposed to cover some tort privacy.
It's supposed to protect one citizen against other citizens. This is not like all other pro- ~
visions in the Bill of Ri gh[s, which are designed to protect individuals against government,
This is some new feature; it's designed to be something in the nature of legislation which
is designed to protect one individual against another individual, in their search to determine
their private rights as between each other. I'm very concerned about it.
I'm particularly concerned about this reference relating [o privacy in the informs-
tional sense. For example, would this mean that you cannot gather information about e
any other individual, any other person? Is that a violation of [he Constitution? Would
this type of provision, for example, have prevented Woodward and Bernstein from gath-
ering information that would be embarrassing to Richard Nixon? Would this type of a
provision in the Constitution, if it goes beyond what's already in the Constitution which ~Y.
protects people against unreasonable invasions of privacy--if we're doing something ;
beyond that, could it be used, for example, if in alawsuit--one private party to a lawsuit
is seeking information about another private party and asking to compel disclosure of
his medical records? That's an ordinary part of every litigation where persona] injury I i
is involved. Would this type of provision prohibit gathering that type of information? - I
I get very nervous when we start tampering with the right to gather information.
I'm very worried that if we're looking to cure one evil--and I agree that computer infor-
mation, if it's used in a bad way, can be an evil--in trying to cure that evil, we may i _
be creating a monster. Would i[ mean, for example, if one of the delegates here wants
to write a book about this Convention and what i[ did, would he be prohibited from gath-
ering information about what each of us said in our campaign speeches and how we acted
when we actually were here during these deliberations of the Convention? Apparently
some of that would be embarrassing to some of us. Is that the type of information--the
type of right to privacy which is to be protected?
I would agree with the movant of this motion that [he Constitution as worded, which
has stood the test of time for at least 10 years in Hawaii, adequately and completely protects
the right to privacy. This additional provision is one which could be used for suppression--
and it's dangerous. I urge you to support this amendment.
CHAIRMAN: Thank you, Delegate Burgess. Is there further discussion? Delegate ,
Lee is recognized.
DELEGATE MARION LEE: Mr. Chairman, I rise to speak against this amendment.
I feel that this is the essence of our entire way of American life. In my own persona]
life, I would consider this the most important thing which ivalue--my privacy, I feel `
that I should be able to do anything and act in any way that I want within the confines
of my home, as long as it does not hurt anyone else.
I definitely feel that no one has any business whatsoever in stopping me from doing
whatever 1 wish within my home. Therefore, I would urge you to vote against this amend-
ment. '
CHAIRMAN: Thank you, Delegate Lee. The Chair recognizes Delegate Pulham.
ff
I
,~~.r~
l~ 636 BILL OF RIGHTS
I~
i' DE_ ..;ATE PULHAM: Mr. Chairman, I probably value privacy as much as or more
than anyone in this room. That may be why I'm the southernmost delegate to this Con-
vention. However, I have not been convinced by the arguments that inclusion of this
provision in the Constitution in a separate and new section does one thing for me that
is not already covered. We've heard a lot of arguments, but I would doubt very seriously
that inclusion of this here would have much effect on the data bank in New Jersey, which
has been alluded to. That doesn't make sense to me.
Also, if these are the areas we wish to address, [hen under the present Constitution,
by legislation, these areas can be fully explored and addressed. I, like the delegate
~i who spoke originally, have valued those quiet moments, and I too have skinny-dipped
in [he pools he speaks of. But 1 want to tell you something: I did it because of the time
if and because of the place, and it was a very private and a very personal thing; I do not,
therefore, feel that, by constitutional amendment, somebody is going to set aside a place
1j up at Kaena Point or somewhere else where I can now do this, because once i[ is not just
me and me alone, it has no value. Do you really think that you can constitutionalize privacy
lid in that sense? No, those things probably come once in a lifetime, and there's no way we're
going to bring them back by constitutional amendment.
lei
jf Al] the rhetoric that has gone on has not shown me that this inclusion would have
tk~; any value or make any addition to [he Constitution. There's nothing being done here
lij, that can't be done across the street. We're not increasing the Bill of Rights. We're not
11Y11 II doing anything in this area except cluttering up the Constitution and possibly opening
yi~ up a bucket of worms, as somebody mentioned about the Alaska situation. Maybe someone
}~f, has a motive for wanting this in the Constitution--I don't know. But it certainly has not
' been shown [hat there would be any value to the society of the State of Hawaii, which we
all represent, by including this new and separate paragraph. So, I would ask you to
y~ vote in lavor of this amendment.
i,
CHAIRMAN: Thank ou, Dele ate Pulham. I will reco ize Dele ate Cam bell.
i;l, Y g 6T' g P
~.I~ DELEGATE CAMPBELL: Mr. Chairman, I rise to amend the amendment in the
following fashion: on line 2 after "infringed" insert the words "by the State."
li
' DELEGATE WAIHEE: Point of order, Mr. Chairman.
CHAIRMAN: Delegate Waihee, would you state your point of order, please.
DELEGATE WAIHEE: We can't amend an amendment which is to delete.
CHAIRMAN: The point of order was that you cannot amend an amendment whose
purpose was to delete. So, Delegate Campbell, the point is well taken.
DELEGATE CAMPBELL: I guess you got me.
' CHAIRMAN: The Chair would like to recognize Delegate De Soto.
DELEGATE DE SOTO: Mr. Chairman, I speak in opposition to this amendment.
I hadn't planned to speak; however, 1 feel that I would be remiss if I did not address
this at least briefly. The right to privacy is a real and important thing for those people
I hope f represent, on the Waianae Coast. A classic example--I think my sister delegate
from the Big Island will admit to--is the helicopters. The police, in their exuberance.
come down on our homes looking for ae kalolo, oftentimes frightening my grandchildren
to the point that they wet their pants. I think this is an invasion of the privacy of my
home that has long and lasting effects on my grandchildren and my home.
~ The right to privacy is what a constitution is all about. I think that this clause
is needed to protect the little people. I think that the increase in the crime rate has been
because of [he increase in our population. We appear to be headed toward the eventuality
of ? police state because of this increase in crime. And I hate to see the people who are
law-abiding have their rights infringed upon. So consequently, I speak against this
amendment.
CHAIRMAN: Thank you, Delegate De Soto. The Chair recognizes Delegate Barr.
i',
i
&EPTEMBER 9, 1978 637
DELEGATE BARB: Mr. Chairman, I rise to speak in favor of this amendment, and i `j%"
I would suggest that the comments you just heard represented to be against this amendme,t
are exactly why we need to pass this amendment. Exactly what [he purpose of this amend-
ment is has no[ been made clear; even [hough the description in the committee report
is rather long, it is no[ precise as to what the problem is that we're trying to solve or
what it is we intend to do. The delegate who just spoke talked about those helicopters;
but those helicopters, using the police power of the State, will probably continue be-
cause the State will argue that there is a compelling state interest.
It has been claimed several times that the whole idea of [his amendment is to protect
us from each other and not from the government. It is my experience, as a matter of
fact, that that agency which is most infringing upon my privacy is the government, or
governments on various levels, or--if not the governments directly--institutions, fi-
nancial and otherwise, that are regulated rather much by the government.
So the infringers of the privacy are not touched by this emotional claim that we
want to have privacy. In fact, I call your attention to the second sentence, which I am
rather distressed has not been discussed at any length. It says: "The legislature shall
take affirmative steps to implement this right." In fact, the very source of [he infringement
on our privacy is being mandated to do something more to us. Now I'm not sure exactly
what legislation we will get out of this, but I take i[ if they're worried about me infringing
upon your privacy, they're going to have to watch me more, which will be an infringement
on my privacy, or vice versa es the case may be. Maybe you're watching me. It seems
[o me [hat [hat is a contradiction of the very intent of this supposed right to privacy pro-
vision.
I'd like to go a step further if I might. I am especially distressed in the committee
report--and [his is on page 7, the third full paragraph--with [hat part that says: "Another
area of concern that may be alleviated by this right is the issue of informational privacy
or the ability of a person [o control the privacy of information about himself." And we
heard from the delegate on my left an eloquent defense of this because of computer infor-
mation and so on, all of which doesn't seem to me relevant to the words there. But I'd ~
like to tell you very briefly about some experiences that I have had related to inform~-
tion about government employees, and I note for you that I am a government employee.
In the early 1970s I was the founder and president of an organization called the r
Maui Justice Foundation. Our purpose was to reveal corruption in government, and we
did, as a matter of fact, save the taxpayers on Maui some considerable money by stopping
various illegal usages. We eventually went out of business, however, because we could
not get the information that was necessary to find out how government money was spent.
Now, one of the reasons for that is a lot of the corruption that takes place--or was taking
place at that time, I cannot attest it's still happening since I don't have the information--
but slot of the corruption that was taking place was the illegal hiring of people for county
jobs. I would get word of this from people who knew of the operation of my foundation,
but obviously that hearsay information couldn't be used for anything. So I would have
to go look at the government records and seek to find out the qualifications of the person
who got the job, whether he took the appropriate tests and followed the appropriate pro-
cedures, whether he was placed in the appropriate categories under civil service regula-
tions and so on. And I was systematically denied this information on the basis of the
right to privacy.
Now note--we didn't have this constitutional amendment yet, and already the infor-
mation was being denied on [he basis of a presumed right to privacy. I submit to you
that the significance of [his is that about half--or actually a little more in some of the 'i
budgets at various levels of government--of the money that is spent, more than half
is spent on the salaries and benefits of individual people who are working for the govern-
ment. If there is corruption in the way that money is being given out and if we are denied c
access to that information on some presumed right to privacy, we have provided one of
the most phenomenal shields for corruption that could possibly be offered, and we do
it in the name of something which emotionally has such great appeal--the right to privacy.
Now I submit to you, my friends, that our problem is not each other, it is too much
government; and [his provision, if we leave it in, increases the problem. So we must
support this amendment, and I applaud my fellow delegate from the valley below my moun-
tain for introducing this revision.
gT
636
BILL OF RIGHTS
CHAIR,'l1AN: Thank you, Delegate Barr. The Chair recognizes Delegate Shon.
t~'~~~
~3'1 DE LEGA'PE SHON: Just one note against the amendment to delete, and that is that
government helicopters are not the onl helico [ers infrin n r u o
- ,+i Y p gi 6 p n our privacy. For
those of you who are unaware of a new operation in the Waikiki area, there are helicopters
carrying tourists that fly very low over the homes, truly invading the privacy of residents
tzs well as perhaps endangering their health and welfare. Th y as-e even landing on the
' pillboxes of Diamond Head. So I would just like to note that government helicopters are
r' not the only helicopters.
i.
'ri CHA1R11AN: Thank you, Delegate Shon. Delegate DiB izmco is recognized for
the second time.
DELEGATE DiBIA.NCO: I defer to Delegate Campbell.
DELEGATE CAMPBELL: 1 wouldn't want anyone to miss Dcle~ate DiBianco. Mr.
Chairman, yesterday we voted down a shield law. Today we vomd~down a measure which
would have insured the citizen's right to know. Now there is a yucsLion before us as
i to whether we should further infringe the right to know. I've sat here and thought as
seriously us I could about the amendment and I speak in favor of it at this time, perhaps
because as I thought about it more and more deeply, I realized that, as one in the field
s, of law who is constantly required to discover information to protect my clients, I could
~i~' be very seriously handicapped by a provision like this. At first I thought it would be
good to protect in this fashion but, on second and more serious thought, I realized that
it could be that this mcasu re would very, very seriously h:uldicap professional people
~.i~l; in the field of law who are seeking important information in order to establish their case.
I'll give you an example. In seeking information to establish support for a child,
for example, when a parent absolutely refuses to divulge information as to his financial
r ability, I am able to subpoena--if I want to pay for the micro6lrning cost--the checking
account reoords of cm individual. I assume that certainly involves some kind of right
of privacy that I'm invading; am I to be curtailed from doing this as s result of this measure?
If so, there are a lot of children in this community who are going to be denied the support
they desorve because I wasn't able to get the kind of information [hat would give the judge
~~f the right to establish support.
j
CHAIRhL4N: Thank you, Delegate Campbell. The Chair recognizes Delegate DiBianco.
, t DELEGATE DiBIANCO: 11r. Chairman, I'd like to try to answer some of the points
raised by previous speakers--in particular, my worthy friend to the right from 67aui,
who constantly reminds us he's from the edge of the forest. I ~.vould submit that in this
<<
particul nr case he can't see the forest for the trees. Anybody +v ho offers himself to the
~~r^ State for state employment I think, to some extent can mandate to waive his right to privacy
,~ai'~ regarding some of his employment information.
t
r The point was raised by Delegate Burgess that--what will this do to our discovery
' ~ rights in court cases if somebody in a personal injury case claiming to have been hurt--
x+`,y," that the defense attorney has [he right to look at that person's meth c;il records so he can
determine whether or not that person had the injury pre-existing; in other words, he
already hnd a sore neck, he didn't get it from the accident. An..i I think Delegate Burgess
a
.,ii was concerned, and rightfully so--are we going to have trouble now getting these records
•'a"- if we constitutionally mandate the right to privacy? But I would remind all my fellow attor-
Heys in this room, and advise all of you who are not attorneys, th?t we all have a right
~jY
q; to privney right now in our medical records anyway, but we arc held to waive that right
' to privacy as soon as we file suit.
C
? I think a person would be held to waive his right to privy y for certain information
' when he makes his application for state employment, or he cociJ be made to waive his
application. Nobody is required [o be a state employee, and 1 C',ink reasonable regula-
{ Lion and reasonable disseminafion of information could be mxn~aued with anybody who
• is in fact applying for state employment. I would say, however, that I don't think the
'E :;t~~ more fact that somc6ody applies for state employment means that he give up all rights
n to privney--l l][ink the legislature can regulate this in a reasonable fashion.
;r~l
:\s fur as child support, child custody cases are concerned, the same holds true.
lr
r.
f n
If
L'...
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SEPTEMBER 9, 1978 ~y
There's a compelling state interest in [his State to see to it that our children are supported,
whether the family they are living with has become a fractured family or not. That being
the case, I think there is no problem with family court ordering the divulgence of information
regarding a parent's ability to support his or her children after adivorce.
Finally, in answer to remarks by Delegate Pulham, I can only say that it is true
the legislature can make laws regarding the right to privacy, but I fear that unless we °u_
p,
have a constitutional basis for those laws, those laws will be subject to a certain amount
of litigation and will be of questionable legality and propriety. We need this kind of
provision in [he Constitution [o give us the foundation upon which we can build those
reasonable regulations that are contemplated by this provision, which is pert of [he bill
of rights committee proposal. So I would again speak against the amendment and urge
you to vote it down.
CHAIRMAN: Thank you, Delegate DiBianco. The Chair recognizes Delegate Hino.
DELEGATE HIND: I rise for the second time to speak against the amendment.
I would like to remind the delegates that we are here to write a constitution, not to pass ~
laws. And this is why this proposal on the right to privacy is worded in such a manner.
Let us take a few minutes to dissect and analyze this proposal. "The right of the
people to privacy is recognized...." Ask yourselves, do you or do you no[ recognize
that such a right exists? If you don't, vote against the privacy proposal. But if you think
that the right of people to privacy is recognized and you agree that there is such a right,
please vote at least one third of the way. And now let's go to the next third: ~"...and
shall not be infringed without the showing of a compelling state interest." That merely
says that because we recognize this right, because we feel [hat privacy is so basic and
fundamental to us, nobody should take this right away without a very good reason; that
this right should not be taken away for mere convenience because it will provide shortcuts F
to bureaucrats or others in doing their jobs. It should not be infringed without a very
good reason. Now the third part: "The legislature shall take affirmative steps to implement
this right." We in the bill of rights committee could have gone through the process of list-
ing all the different ways in which [he right to privacy should be protected, but we felt
that this was no[ our job as constitutional delegates, that we should merely state broad
principles and then let the legislature balance all the different kinds of rights--the Freedom
of Information Act, the right of the people to know (though not put in our Constitution, it
still exists), the right of attorneys to discover information, the freedom of the press. The
legislature should balance all these different competing rights and then have something
which would implement the right of privacy.
Now within the last 5years, Ibelieve--[hough I cannot vouch for it--I believe
the legislature has passed only one bill proposing to protect privacy. And this was not
done with the intent of protecting your privacy; it was done with the intent of getting
more information. This bill was passed in the 1978 legislature, I believe, and was for
the purpose of obtaining federal income tax information. The request came from our state
tax office, to please pass this proposal, that our state tax information is private and should
be revealed only under compelling state reasons or only for official reasons. The reason
our state tax department had to ask for it is that we have a federal privacy act, and unless
the State had such s provision, the internal revenue service would not share their infor-
mation with our state tax office. And that is the only kind of affirmative action or positive
step that our legislature has taken to prevent something that might infringe on privacy
from happening. So this provision, this last sentence--"The legislature shall take affir- ~
motive steps to implement this right"--is asking the legislature to pay some attention
to privacy.
Now we've had a chance to dissect this proposal in three parts. If you disagree ~
with any one part, then by all means you should vote against the right to privacy and
for the amendment. But please examine your hearts [o see whether you really do oppose
any of those three parts of the proposal.
CHAIRMAN: Thank you, Delegate Hino. The Chair recognizes Delegate Hale.
DELEGATE HALE: I speak against this amendment to delete the right to privacy
from the committee proposal, and I'd like to call your attention to Standing Committee
t•.
f ~ ~ 640 BILL OF RIGHTS
r
Report No. 69. There have been concerns voiced by some members here whose opinions
~ I respect very highly, that have made me think and reread [his committee proposal report
again. And I think these concerns have been laid to rest.
In the first paragraph [on page 9] it reads: "It is not [he intent of your Committee
'~i, to grant a license to individuals to violate the right of others but rather to grant the indi-
vidual full control over his life absent the showing of a crompelling state interest to protect
his security and that of others.... For example," i[ points out, "in the case of dissemi-
q~~ nation of information about individuals, law enforcement officials would not be restricted
in sharing information about suspected wrongdoers, or the press may be justified in writ-
ing about certain personal matters of public figures." It goes on to say that "your Com-
mittee does not envision closing off access to court records or public records already sub-
Y~ jest to 'sunshine' laws but feels that this amendment would be useful in prohibiting abuse,
misuse or unwarranted revelations of highly personal information."
lj
I recall, [or instance, that somebody in an election campaign on the mainland is
ti ~ being accused of being a homosexual. This is a very private, personal thing; it has
nothing to do with whether the person is qualified to be governor. This is the kind of
information that I consider would be protected by a right to privacy. I also feel--as in
the following paragraph, i[ says: "[T]here will always be a dynamic tension between
majority rule, which is the basis of a democratic society, and the rights of individuals
to do as they choose, which is the basis of freedom, and your Committee believes that
this amendment recognizes the high value [hat individuality has in society."
t
" Our lives are becoming more and more regulated by government. Every step we
~~t. take, every place we turn, there's a regulation. Even the air we breath is now going
to be regulated by certain environmental concerns, some of which are good and some
of which are perhaps not so good. But I maintain that somewhere down [he line we have
to reassert that we are individuals, that we do have a right to do things that don't hurt
other people. And I originally submitted this proposal too, and I was very happy that--
maybe that will turn some of you off and turn you against it--but I would like to say that
' the reason I put it in--and I'm not a lawyer and I don't know all the legal ramifications,
.^i~ and [wish we had had more discussion on the kinds of legal ramifications that have come
' up here--the reason I put it in, very frankly, was that this is almost the exact wording
''I. ~ the Alaska constitution has and it answers [he question of Delegate Takitani from Maui--
i the right of a person to smoke marijuana in his own home. That was my reason for put-
ting this proposal in.
I'd also like to point out on page 10: "For example, the Federal Privacy Act of 1974
is one example of legislative action supportive of this right." I would tike to remind the
i delegates that one delegate here reminded us of the Federal Privacy Act when we passed
a rule saying that we were going to have to disclose the financial affairs of our spouses
and members of our families. And this was a violation of privacy, and this was the sort
of thing [hat I think would not have taken place if we had had this in the Constitution.
CHAIRMAN: Thank you, Delegate Hale. The Chair recognizes Delegate Barnes
to speak for the trst time, and then Delegate Cabral.
DELEGATE BARNES: Mr. Chairman, I rise to speak for my last time on this, noting
that this is the first time I've spoken against the delegate from the home of the Portuguese
man-of-war--an appropriate choice of words, I think. I'd just like to say that, again, we
live in a modern age where we can no longer, I believe, throw a constitutional privacy
blanket over all of our problems and our concerns. I too, like the delegate from Kalihi,
would like to be sble to have complete privacy in my home, to be able to pursue anything
that I like. ,
But let's look at the intrusions on the privacy of our homes [hat have been mentioned
that would concern me the most, such as credit rating problems, computers and bulls mail
problems. I suggest that these three problems, as all the other privacy problems that have
come up, should be addressed individually by statute. 5o therefore I think that many of
the problems of privacy should be addressed by specific statutes, because we live in such
a complex age. Again, if you read the whole committee report, you'll see that whenever
a privacy problem has come up, the lawyers and the supreme court have gone to another
~ area of the law to~find their answers. I suggest to you that this system may be the best
way to continue. So, again, I speak in favor of the amendment.
1
SEPTEMBER 9, 1978 647
CHAIRMAN: Thank you, Delegate Barnes--it was your second time. Delegate
Cabral, I apologize, you're recognized to speak far your first time.
DELEGATE CABRAL: Mr. Chairman, I rise to speak in favor of the amendment
to delete from the committee proposal this additional section to the Constitution. I thought '
I was convinced from listening to some of the debate that I would take a position on opposing j
the amendment in favor of the committee proposal. However, after listening to the astute '
delegate to my right and his words of wisdom, I started perusing again the words of the
committee proposal. If it were not Por certain words contained in [hat proposal, I would
wholeheartedly support the committee proposal.
If it were a[ this point appropriate [o make a motion to delete, I would delete from
the proposal as it reads now the words "without the showing of a compelling state interest."
And my reason for that is--as a rose is a rose, a ruse is a ruse. And by that [mean it
appears [o me that that particular language provides the government additional powers
with which to invade our individual privacy. It is not, as I had imagined, the kind of
proposal that would support the rights of individual privacy. I view it now as an entitle-
ment to government to have additional powers [o invade individual privacy if they can
show a compelling state interest. For this reason, I speak in favor of the amendment to
delete the language as proposed in the committee proposal.
CHAIRMAN: Thank you, Delegate Cabral. Delegate Kojima.
DELEGATE KOJIMA: Mr. Chairman, if, es the previous delegate has said, smoking
marijuana was one of the main reasons this has been proposed, then I am in favor of delet-
ing the committee report--that portion of that. I'm not alawyer--we've heard many law-
, yers--I'm just an educator. But if I were to grow akp alolo in my backyard, or if I were
to smoke akalolo in my house, how could I explain this to my students when they know
~ this is contrary to state laws.
i
The cops are having a hard enough time enforcing [he state laws. Why make it
harder for them and put more restrictions upon them, especially when crime today is
the number 1 concern of the citizens of this State. I feel the present language in the
Constitution is adequate to protect the rights of the individual. Let's not make it any
more difficult for law enforcement people to do [heir job. Thank you. -
CHAIRMAN: Thank you, Delegate Kojima. The Chair recognizes Delegate Wurdeman.
DELEGATE WURDEMAN: Thank you. I would like to speak in favor of the amendment
to delete. I did look at this by section and the last sentence, which states: "The legislature ~I
shall take affirmative steps to implement this right," scares me. Because I have seen what
the legislature has done in the application of general law. I also believe that Article I,
Section 5, of our Constitution protects our right to privacy. Please review it.
CHAIRMAN: Thank you, Delegate Wurdeman.
DELEGATE HALE: Mr. Chairman, may we have an administrative recess?
CHAIRMAN: The Chair will consider that. We're running very close to a logical
termination point; would it be possible to hear from the movant now, and perhaps we
can take the vote.
DELEGATE HALE: --before the vote?
CHAIRMAN: I'll take that under advisement. Delegate Tam, you're recognized.
DELEGATE TAM: Thank you, Mr. Chairman. Again I speak in favor of the motion
to delete; and I would say [hat--of one speaker who has characterized it that a vote to
delete this right to privacy as now put forth in the committee proposal is against the right
to privacy--[ think that is a very unfair charaete rization oP what this motion is. I think
it's very unfair. I am not against the right to privacy. I enjoy my privacy just as much
as anybody else; in fact, I feel the loss of it just as much as anybody. To give an example:
before being elected to this Con Con, I dould go to the store--I could go in a dirty shirt, j
my dirty pants, pair of slippers--and didn't have to worry, nobody knew who the heck j
I was. Now I can't do [hat. I have to dress up because people will say--I know you, and
s.
e
642 BILL OF RIGHTS
so forth. I lost my right to privacy, and I feel i[. I like anonymity--and I mean [hat. INs
very unfair to characterize this amendment as a means to destroy the right to privacy.
What I'm really getting et is that this proposal is very deceptively worded. As you
heard, one speaker already indicated that the chief reason for introducing an amendment
j,, ~ like this was so that marijuana could be grown, could be used, whatever else. The lan-
guage is deceptive; it doesn't really speak to what is intended. We hear talk about being
able to go skinny-dipping; this is already covered in the statutes. We talk about mailing
lists, hairstyles.... I would point out that this report already refers to a Federal privacy
Act of 1974, and there s no reason why the legislature couldn't implement something in
this regard, if there are in fact concerns about mailing lists.
x,l In terms of what [his particular provision will do, I will restate: it will not help
the law-abiding citizen any more than he is being helped today. I ask how many of you
have read Standing Committee Report No. 55 from 1968, wherein it indicates that the rea-
son for putting in the phrase "invasions of privacy," in Section 5 was "to insure 'man's
individuality and human dignity."' It's a very simple phrase that was put in in 1968,
and yet it is a very powerful one. It is there; it is there now. And the legislature can
' act on that now. So what is the reason for this particular proposal as it is right now?
,~j I'm glad that you heard the responses oP some delegates as to some of the reasons they
°1 are for this, because they are precisely the reasons that I'm concerned about it. It will
make law enforcement a lot harder.
I', For example, I wonder how many of you are aware of the amount of drug traffic that
;i goes through the State of Hawaii. Hawaii is the drug center of [he Pacific. Honolulu,
iii, Lahaina, Kona, Hilo--there is a tremendous amount of drug traffic--and I don'[ mean small
drugs. I mean hard drugs. ]'m getting a reaction somewhere so maybe somebody knows
~yI about this.
rl~ CHAIRMAN: Delegate Tam, the Chair just wants to remind you that you have one
~ more minute.
I,ii
DELEGATE TAM: In any case, this proposal as it is put forth will not increase
j anybody's right to privacy as far es the law-abiding. It will help the nonlaw-abiding;
all and one area especially is the area of drugs--hard drugs. It is tremendously difficult
to enforce the laws now. Many cases are being thrown out by [he judges because of in-
vasions of privacy, unreasonable searches and seizures. If it's tough now, it's going
[o be tougher with the language of this particular provision. So, Mr. Chairman, as
you've indicated that my time has run out, I'll just ask this: I'll not ask for aroll-call
vote, I don`t want a division of the house; all I'm asking is that you just vote your con-
science. But if you do have any doubts about this provision, then please vote to delete
it and leave it the way it is. I might be wrong, but I think it's going to open a bucket
of worms.
CHAIRMAN: Thank you, Delegate Tam. Yes, Delegate Hale, do you have a point
of information?
DELEGATE HALE: I have a point of personal privilege.
CHAIRMAN: State your point.
DELEGATE HALE: The last delegate referred to the fact that one delegate had said
that it was introduced to legalize marijuana. That is not what I said. What I said was that
' I introduced it because the Alaska statute was held to say, in words like this, that it was
perfectly all right to smoke marijuana in the privacy of your own home.
CHAIRMAN: Thank you, Delegate Hale. The Chair recognizes Delegate Anae.
DELEGATE ANAE; Mr. Chairman, I rise for a point of privilege.
CHAIRMAN: You may state your point.
DELEGATE ANAE: NIy reasons for being against the amendment are more far-reach-
~ ing than marijuana. I want the record [o show that. If I may, Mr. Chairman, I'd like to
I~..
1
SEPTEMBER 9, 1978 549
1jji.
~
state those reasons. Brigham Young University was ordered by the federal government
to desegregate their dormitories. And they could not use the right to privacy permitted
in the Constitution to stand up in court. And this is the reason why I am for the right '
to privacy.
CHAIRMAN: Thank you, Delegate Anae. Delegate DiBianco is recognized.
DELEGATE DiBIANCO: I just wanted to state a point of information for the delegation,
which is that in the first circuit of this State it has already been held without--
t
CHAIRMAN: Delegate DiBianco, in a point of information, you should ask a question. ~
Why don't you rephrase that in the form of a question so that--
DELEGATE DiB[ANCO: I'm sorry, I have no question. I have information to--
DELEGATE BLEAN: Point of information.
CHAIRMAN: Delegate Blean is recognized on a point of information.
DELEGATE BLEAN: I would like to ask if there is any delegate who can give infor-
mation as [o whether the firs[ circuit court of this State has ruled on this .
CHAIRMAN: Thank you very much. Your point of information has been made.
DELEGATE SOUKI: Point of order, Mr. Chairman,
CHAIRMAN: The Chair recognizes Delegate Souki on a point of order. State
your point.
DELEGATE SOUKI: I'd just like to make mention, Mr. Chairman, that Delegate
Tam was given the right [o make the last speech.
CHAIRMAN: Delegate Souki, your point is not correct in that, although the priv- ~
ilege is accorded, the rules do not provide that it is binding. So any delegate who wishes ~ 1
to speak afterwards upon hearing the last speaker still has the right to do so if he so -
wishes. So the Chair now recognizes Delegate DiBianco to give the information requested
by Delegate Blean.
DELEGATE DiBIANCO: Mr. Chairman, I simply wanted to point out that at least i
two circuit court judges have already held, without even this constitutional provision
to help them, that smoking or possessing marijuana in your own home is a protected act
and cannot be made illegal.
CHAIRMAN: Thank you. Delegate Chu, you are recognized.
DELEGATE CHU: Mr. Chairman, I have not had a chance to speak, but-- '
CHAIRMAN: You're recognized to speak.
DELEGATE CHU: Thank you. Hearing the concerns of the other delegates with
regard to criminal law is a matter of great concern to me, because I do not feel that this
particular-- ~
DELEGATE LES IHARA: Mr. Chairman.
CHAIRMAN: The Chair recognizes Delegate Ihara.
DELEGATE LES IHARA: Point of parliamentary inquiry. I believe the rules do
state that if the movant requests [o speak last, [hat he has a right to speak last. I don't
really mind Delegate Chu speaking, but I just don't want to set a bad precedent.
CHAIRMAN: The Chair would take that under advisement. The Chair had checked
with the parliamentarian earlier on this because it had come up previously and was in-
' formed by him that, while a delegate may wish to be accorded the privilege of speaking
FIFTY-EIGHTH DAY
Friday, September 15, 1978
The Constitutional Convention of Hawaii of 1978 was called to order at 9:00 a.m.
The President presided.
The Divine Blessing was invoked by the Honornb le Marcelliano K. Villaverde, dele-
gate from the Third District to the Constitutional Convention of Hawaii of 1978.
The President declared a quorum and directed the Clerk to check the attendance,
which showed that all delegates were present with the exception of Delegates DiBianco,
Fernandes Selling and Ishikawa who were absent. ~I
I
The President announced that the Journal of the Fifty-Seventh Day had been signed I'i
by the Secretary and approved by the President.
STANDING COMMITTEE REPORT it
Delegate Ledward, for the Committee on Budget, Accounts and Printing, presented ii
a report (Stand. Com. Rep. No, 91) informing the Convention that Com. Whole Rep. No.
18 and Com. P. No. 17, RD, 1, had been printed and distributed.
i
On motion by Delegate Crozier, seconded by Delegate Hayashida and carried, Stand.
Com. Rep. No. 91 was adopted. ~i
ORDER OF THE DAY
SECOND READING
Com. SVhole Rep. No. 15, Com. P. No. 15, RD. 1--RELATING TO THE BILL OF RIGIiTS: {
Delegate Kaapu, for the Committee of the Whole, and Delegate Weatherwax, for the tt'
Committee on Bill of Rights, Suffrage and Elections, presented a report (Com. Whale Rep, t
No. 15) recommending [hat Com. Whole Rep. NO. 15 be adopted and Com. P. No. 15, as
amended in RD. 1, pass Second Reading. '
At 9: 23 a. m. , the Convention stood in recess subject to the call of the Chair.
The Convention reconvened at 9:25 a.m.
Discussion then being in order, the President, noting [hat Amendment No. 1 had
been deferred to the end of the discussion, recognized Delegate Ledward, who moved for
the adoption of Amendment No. 2, seconded by Delegate Kaapu, which amended section
5 of Com, P. No. 15, RD. 1, to read:
- Whenever a grand j•ary is lempanelled] impaneled, there shall be
an independent counsel appointed (in accordance
with]
as provided by
t~ law to advise the members of the grand jury regarding [theJ matters
brought before it. Independent counsel shall be selected from among
those persons (admitted to practice before] Heensed to practice law by
the supreme court of the [s[ate] State and s11a11 not be a public employee.
[Term] The term and compensation for independent counsel shall be
[establishedl as provided by law.
353
k. reI-
"mr.~q,~...r ~ .
i 354 CONVENTION JOURNAL
J~! ~
i~ ~
i
I, Delegate Ledward explained that [his was a housekeeping amendment, changing the
` phrase "admitted to practice before the supreme court" to "licensed to practice law by the
supreme court," and making a Cew other grammatical changes.
s~2i'.
~~Ri ~ Delegate Sterling rose to inquire i1'the amendment was actually from the style commit-
l;.I' tee, which Delegate Ledward affirmed, adding that it also had the approval of the committee
t"{ chairman and that legal counsel had recommended its passage on the floor instead of in
1{ committee.
Pf
`~i Delegate Weatherwax then voiced his approval of the amendment, adding that the
1 changes would qualify things.
~
~r:
There being' no further discussion, the question to amend Com. P. No. 15, RD. 1,
by Amendmc nt No. 2 was put by the Chair and tho motion carried.
Delegate Halc then moved for the adoption of Amendment No. 3, seconded by Dele-
gate Kanpu, which amended section 6 of Com. P. No. 15, RD. 1, to read:
i ;
;i; With due concern for the interests of free speech and press.
l~~i the [The] right of the people to privacy is recognized and shall not be
infringed without the showing of a compelling state interest. The legis-
lature shall take affirmative steps to implement this right.
Delegate Flale, speaking for the amendment, explained that she was submitting it
f't at the request of members of the press and that she had a statement of intent from their
i legal counsel, which she wished to have entered into the record. She then read the
i~~ ~i following statement:
f I
i~I ~ "By equating the right to privacy with First Amendment rights
ij{ ~ and thus insuring its status as a fundamental right for purposes of con-
~ I stitutional analysis, it is not the intent of your Committee to interfere
f~# ~ in any manner whatsoever or otherwise infringe upon the equally funda-
~ mental guarantees of freedom of speech and press. As the majority opin-
ion of Justice William J. Brennan, Jr. makes perfectly clear in Time v.
Hill, 385 U.S. 374 (1967):
'The guarantees of speech and press are not the
preserve of political expression or comment upon pub-
lic affairs, essential as those are to healthy govern-
ment. One need only pick up any newspaper or maga-
- zine to comprehend the vast range of published matter
which exposes persons to public view, both private
citizens and public officials. Exposure of the self to
others in varying degrees is a concomitant of life in a
civilized community. The risk of this exposure is an
essential incident of life in a society which places a
primary value on freedom of speech and of press.'
"In this context, your Committee fully supports [he sentiment of
Chief Justice Warren E. Burger that:
'POC better or worse, editing is what editors
are for: and editing is the selection and choice of
material. That editors--newspaper or broadcast--
can and do abuse the power is beyond doubt, but...
calculated risks of abuse are taken in order to pre-
' serve higher values.'
"It is the express intention of your Committee that the State Consti-
tution should afford significant privacy protection against umvarranted
• and unreasonable governmental intrusion and abuse. As Justice Louis
Brandeis concluded in Olmstead v. U.S., 277 U.S. 438 (1928); the most
comprehensive right conferred by our founding fathers in the U.S. Con-
stitution, and tho right most valued by Americans. is the right to be left
alone by the government. Thus, the Ct.S. Constitution has been in[er-
'~.wu
i
58TH DAY
355
pre[ed to afford privacy from governmen[alintrusions into a wide spec-
trum of deeply personal decisions. These privacy rights have included
the right to marry regardless of the race of one's spouse; the right to
obtain contraceptives; the right to an abortion; and other personal de- '
cisions relating to family relationships and child rearing.
"To [he extent that the right to privacy embodied in the proposed ~~i
amendment relates to [he protection of each individual from the govern-
ment, in the words of Justice Brandeis, '...every unjustifiable in~r~-
Sion by the government upon the privacy of the individual, whatever i
the means employed, must be deemed a violation of the [Constitution]
Delegate Hale then added that some members of the press had feared that, since the
Convention had not confirmed their right of access to government records, [hey could be
denied access. This, she explained, was the reason for [hc amendment--to assure that,
in the interpretation of the right to privacy, the rights of free speech and a free press
' were not cut off.
Delegate Hino, on a point of information, inquired if, in those states that had aeon-
stitutional provision on the right to privacy, there was any information that the media had j
been harassed or injured in its function of informing the public, because of the provision. I
Delegate Hale responded that she had no information. Delegate Hino then rose to speak
against [he amendment, stating:
"The privacy proposal was purposely worded in general terms
I to stand [he test of time and to give the courts [he necessary flexibility i
to apply the provision to situations we may not foresee today.
"I respect the concerns raised by the delegate from the volcanic j
Island of Hawaii that the privacy provision could be abused as a cause
of action against the press. But any provision in the Constitution is
subject to abuse. We have seen the freedom of speech and even the
freedom oC religion provisions used as excuses or defenses for some
shameful actions by people. Yet [would not have it any other way. I
remind [he delegates [hat freedom of the press too has been misused in
irresponsible fashion on the local scene. I believe it is up to the courts
to balance the various competing interests to achieve a sound decision
in any dispute between the press and segments of the public it purports
to inform.
"Just a few days ago, we debated at great length the concern
that law enforcement would be hampered by the privacy provision,
notwithstanding the fact that Article I, Section 5, relating to search
and seizure, was left intact. If we were to accommodate the press and
approve this amendment, we should, in fairness to the prosecutor
delegntc from Uaui, add a clause exempting police officers. 1Ve should
add to the list doctors and nurses, schoolteachers, aspiring political
candidates, salespersons, telephone companies and so on, and on.
"Fellow delegates, I remind you again [hat this is a constitution
we are amending, not a comprehensive code or statute. iVhere pos-
sible, we should only state broad principles and goals, and let details
develop through statute and case law. For this reason we added, 'The
legislature shall take affirmative steps to implement this right.'
"In the judicial arena [he press is abundantly protected by basic
First Amendment rights relating to freedom of speech and freedom of
the press. The newspapers are presumed to meet the test of compelling
state interest when they inform the public of daily events. The press
is given greater protection than police officers and businesses in the
performance of its function to inform the public and keep government
honest.' By the decision in New York Times v. Sullivan, the press is
immune from suits for misin ormation printed about public officials or
newsworthy people and topics unless the aggrieved person can show
that malice--not mistake or mere sloppiness--was the reason for the
~i ;
i, i
I% 356 CONVENTION JOURNAL
~ij, i
~ damaging statement. The rationale was that out of all [he utterances in
the media, the public would finally perceive the truth. I would certain-
~ ~ ly not want the protection afforded the press to be expanded beyond
this limit by approving the proposed amendment.
-?f "If the press is truly concerned that the privacy proposal would
75 require closer review of the news they print about ordinary people, I
y' 1 am elated, because the desired effect is taking place even before Third
Reading. 1 hope the bureaucracy of the legislature, the executive and
l,~ : the judiciary would respond in like manner so that the rights of the
poor, nonconformists and free-thinking people are given some consider-
ation before restrictive rules are implemented. For these reasons, I
'jz would urge the delegation to turn down this amendment."
Delegate 4Yeatherwax then spoke against the amendment, pointing out that as he saw
it the amendment was unnecessary, being in an earlier section of the Constitution.
'i Delegate Sutton, speaking against the amendment, noted that the prefixed phrase
referred to "concern for the interests of free speech and press" but the right to privacy
was not limited to those two areas. The intent, he added, would seem to be only that of
ttt free speech and press, as [he amendment was worded.
~ Delegate NcCall rose to speak in favor of the amendment, observing that it would
tt eliminate a possible conflict between two sections of the Constitution. The amendment,
F ~ he noted, clarified that the right to privacy section was conditioned on the present Sec-
t<.+ lion 3 that guaranteed a certain amount of freedom of the press.
~f
, On n point of information, Delegate Burgess asked if the eight states with similar
privacy provisions in their constitutions had two such provisions. Delegate Hino, in re-
~r,.; i spouse, referred to Alaska's constitution which had a provision relating to invasions of
j~ I privacy, pointing out that it had not been incorporated into the Fourth Amendment which
' ~ ~ they substantially adopted.
~t
Delegate Burgess then rose to speak in favor of the amendment, explaining:
r
"Currently none of the other states--except perhaps Alaska, and
C'm not sure what Alaska says--but no other state has two privacy pro-
visions, and for that reason I believe this amendment is necessary to
clarify the intent of that section.
~ "Our Section 5, which has been in effect since 1968, says: 'The
right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches, seizures, and invasions of pri-
vacy shall not be violated....' That protects the people of Hawaii from in-
vasions of privacy by the government and that's what Justice Brandeis
was referring to, the very impm•tant right to be left alone by the govern-
ment. And that's what we're trying to protect. Now the intent in add-
ing this new section, which refers to the right of [he people to privacy,
is currently something above and beyond--and something more--than
that time-honored and tested provision which protects all of us against
invasions of privacy by the government And because it's not clear
what that means it could easily be construed to mean and to give the
legislature specific authority to suppress information about govern-
ment officials. It can be used, not as a means oC protecting [he people
and protecting their rights, but as a means of suppression, and for that
reason, if we have it at all, 1 think we should add this clnri~ying lan-
gunge that shows it is not intended to in any way abridge the rights of
' free speech and Crec press."
Delegate }sale then rose and stated:
• "I sad become a little disturbed during the debate that took place
in the Committee of the LYhole, as to the intent of the right to privacy sec-
tion, and 1 put in a proposal, the right to privacy, that was token di-
roctly from the Alaska right to privacy , and the reason I put it in was
1s•
-..~.v
58TH DAY
357
based upon the LRB report on this particular section; i[ pointed out that
Alnska's right to privacy would seem to be stronger than ours, and
their supreme court had ruled that it was permissible to smoke marijuana
in the sanctity of [he home, and I think to cultivate it. And that was my
concern. Now in committee the concerns got broadened, and in the Com-
mittee of [he Whole I think even more broadened, to computer data and
unwanted mail and PlflyboY magazine and all kinds of things, which was
not my intent and which I had no inkling would be covered under the
right to privacy. So I did agree to put in this amendment to make sure
that the clarification was there.
"I think if we agree with the delegate who said [hat we have been I
redundant because we have the right to privacy now twice in the same
article--Article I--and I'm possibly of [he opinion now that if we are not
willing to put freedom of the press in to make sure that this is not what
we are aiming at--that we are no[ for a dictatorial government in which
we don't know what's going on--[hen perhaps we should not put the
right to privacy amendment in at all, because we already have it as far
as searches and seizures, and perhaps a more liberal supreme court
would interpret that searches and seizures could protect the person
smoking marijuana in his own home. And to be honest, people have
told me that when 1 said this, it would kill the amendment and that's
too bad, but I want the record to show this is the reason I put it in.
And if the rest of you don't agree, then perhaps we should take it out.
But I think this amendment shows that we are concerned. Since we
have right to privacy twice and it might be confusing, perhaps we
should indicate the free press twice so there will be something for
which the courts can take our intent in making an interpretation, if
and when it goes to litigation.
"So I would hope that you vote for this amendment, but if you
don'[ perhaps we should reconsider putting the right to privacy in at
all, and vote [he whole section down. I urge your adoption of this II
amendment."
There being no further discussion, the question to amend Com. P. No. 15, RD. 1,
by Amendment No. 3 was put by the Chair and [he motion failed.
Delegate Hale then asked if a motion would be in order to reconsider the previous
action on [he right to privacy section. The President responded that it would have been
in order within 48 hours if Delegate Hale had voted on the winning side. Affirming that
her vote had been with the majority, Delegate Hale inquired as to reconsideration or if
the proper motion would be to delete the section. The President explained that since the
action had been taken in the Committee of the Whole, reconsideration would not then be
in order and a written amendment for deletion was necessary. Delegate Hale further in-
quired as to reconsideration on a proposal after it had passed Second Reading. The
President responded that he did not think it was in order and called for a short admin-
istrative recess to check.
At 9: 51 a. m. ,the Convention stood in recess subject to the call of the Chair.
The Convention reconvened at 9:57 a.m.
The President at this time announced that Delegate Hale's amendment would be ac-
cepted although counter to the evritten form requirement. Delegate Hale thereupon rose
and moved to amend Com. P.'No. 15, RD. 1, by deleting section 6 in its entirety, sec-
onded by Delegate Wurdeman.
Delegate Sutton, on a point of order, questioned whether a motion to suspend the
rules would be in order, to which the President responded [hat the amendment would be
accepted as stated, in the interests of accommodating the delegate.
Delegate Sterling then rose, on a point of information, to state that the matter should
be submitted to legal counsel beeuuse of the possible con Rict in sections reluting to freedom
of the press and invnsions of privacy.
f:
358 CONVENTION JOURNAL
J!
Delegate Les [hara then questioned whether the amendment was out of order. If the
~ amendment had been officially submitted, the President responded, it would have been
in order and since an exception had been made, discussion would proceed.
~'t - Delegate Kojima, on a point of information, questioned the movant's change of mind,
i, f to which Delegate Hale explained:
iJ
}~1 "Yesterday George Chaplin of The Honolulu Advertiser phoned
and said he had consulted with his legal counsel and, as a member of
the press and as a publisher, was concerned; and his legal counsel
had requested it. I think he called members of the committee, called
the President, and called me. I seem to be the only one willing to sub-
, mil an amendment on that basis. And, to the delegate from Kauai, my
reasoning--I though[Iexplained very clearly--and [think you voted
against the right [o privacy because (told you my original intent was
to protect the smoking of marijuana in the home. You said that as a
school principal you couldn't and still have the respect of your chil-
dren, and I respected your right [o vote against it. 4Ve11, [ am still
for the right to smoke marijuana in the privacy of the home, but [ am
not for the right-- I submitted proposals to that effect--making
marijuana legal, or putting it on the ballot--and those proposals were
r,'. i all filed, so this was a nice way of getting around it and I was told
that this might accomplish it."
. Then speaking in support of her amendment, Delegate Hale observed:
r-.{
y' "I'm not sure that my original intent is going to be accomplished
by this without the guarantee that we are not labeling this as an anti-
press and free speech amendment which was requested. This concern
was brought out in the Committee of [he Whole and I almost voted against
this proposal there because of this concern, but at that time I had no-
, body [o give me any real legal advice on any concerns. But because 1
had fought for this in committee and because I still believed that it would
protect these rights I was concerned about, I went along with the pro- _
posal as it was presented. But when it was pointed out that now, bo-
cause we have two sections on privacy and only one section on freedom
of speech, maybe this is going to do something to freedom of speech.
"My concern with freedom of speech and the press is far more
than the concern to smoke marijuana. I don't smoke marijuana, you
know--1 had trouble with a teenage son who smoked it but [don't--
but Idon't think people should be put in jail for smoking it. But this
is not really the question; the question before us is freedom of the
press and speech, and I certainly would not like to do anything that
would leave any doubt that 1 was somehow curtailing freedom of speech
and press-, and therefore, without that amendment to protect that right,
I'm going to have to vote against the whole right to privacy."
Delegate Campbell then rose and asked if counsel for the bill of rights committee
could state whether the right to privacy provision as written would jeopardize free speech
' as such. The President responded that that would not be in order, adding that pre-
sumably this had already been discussed.
On a point of information, Delegate Shon asked if this ruling was based on a dif-
ference in rules behveen this Convention and the 1968 one, in which they had recessed
to consult counsel, whose opinion was then read to the delegates, or if this was an area
they would just not be getting into.
The President responded that he had no objection to the procedure if it was felt
necessary, repeating that the committee had presumably examined this area.
Delegate Weatherw ax then rose to speak against the amendment to delete, explainin g~
"We went through this in committee and in the Committee of the
Whole, and at [hat time--at least in committee--legal counsel was avail-
l~
i
58TH OAY 359
;I
able and the intent was made quite clear by legal counsel as to the re-
lationship of the right to privacy, and to the press. The good delegate
from Hilo perhaps should go back and recall the reference to [ha[. The
right to privacy was made clear and I would ask your support now at
I, this time; here it is, the very last hour before consideration of Com. P.
No. IS on this particular issue--and this is one of its major planks--and
now there's a change of mind by what [believe to be an unfounded fear,
and that in fact the language should be left to the courts and I believe at ~I~
that time there should be no problem. If there is a conflict, I think the ~a
First Amendment rights already in the Constitution have weight against
the right to privacy and would be valid, but i[ would be for the courts I~
to determine."I
Delegate Hale, on a point of information, questioned where the committee report '
stated that this did not infringe upon the rights of the press. Delegate Weatherwax re-
sponded that his reference had been to legal counsel who had been available in the com-
~mittee and [hat the question had been answered, although perhaps not included in the I~
committee report. '~i
Delegate Sterling [hen rose and requested an administrative recess in order to ~+i
consult with counsel, because of the sufficient substance of the subject.
~i At 10: 10 a.m. , [he Convention stood in recess subject to the call of the Chair.
The Convention reconvened at 10: 22 a.m.
i r
At this time Delegate Burgess rose and made the following statement:
y'
"Mr. President, we have spent the recess in discussion with ~~i
counsel. I don't think we have, however, resolved any of the ques-
tions. I would like [o speak in favor of the amendment and point out
1 some of the considerations that we did discuss. The concern is that
by putting in [his new and second section relating to the right to pri-
+ vacy, that that would not only insure the right to privacy, which is
already insured, but would go beyond that and might in fact be used 9V
as an infringement on the rights of speech and the press. And already
under the United States Constitution, as interpreted by the U.S. su-
preme court, we are all protected against invasions of our privacy.
The U.S. Constitution does not have language relating to right to
privacy--even in the Fourth Amendment it does not--and yet in spite
of that the U.S. supreme court has held in many specific instances
that there is a right to privacy which may not be invaded. For ex-
ample--I'll just mention some of the cases [hat counsel pointed out to
me--in Griswold v. Connecticut, the state of Connecticut had a statute
prohibiting the dissemination o information nbout contraception. It i
was held that this was a violation of privacy and that the person's right ~
to gather information as to contraception was protected under the U. S.
Constitution. In Stanley v. Georgia, the right of a person to have
obscene materials in the privacy of the home was protected. Roe
v. Wade was the abortion case where a woman's right to make her own
decision as to whether or not to have an abortion was protected by her
right [o personal privacy. In Loving v. Virginia, which prohibited
interracial marriages, that was felt to be unconstitutional because it
was an invasion of the right to privacy. All of these protections were
by the U.S. supreme court under the U.S. Constitution, which has no i
language such as this at all. And all of those protections are presently
in effect and do protect each of us in the Stale of Hawaii against inva-
Sion of our privacy.
"And in addition, in 1968--as if we didn't have enough protec-
lion--in 1968 the words protecting us specifically against invasions of i,
privacy were added to Hawaii's Constitution. So we do now enjoy sub- 6
stantial protection against invasions of our personal privacy. And the
thing which disturbs many of us--and counsel for the newspapers indi- ~
cared during the recess that he had spoken last night to Mr. Arthm•
~i~
:iP' -i('
i
-+~'.rt~,.,
!i. i
1; ~ 360 CONVENTION JOURNAL
j
~I Miller who is a constitutional expert in Washington, A.C.--that the lan-
d gunge of [his section can be construed as a means and n method of ha-
I rassment of not only newspaper reporters but anybody in the exercise
f ; ' of their free speech. So [he risk, therefore, is that by trying to do a
~i good thing, which is [o insure thnt we are protected in our right to pri-
Jt vac we arc oin too far the other wa and that is, seriousl
y• g g y y infring-
~ ing on those other fundamental rights which are so important in a de-
j i mocracy. So I would urge that this amendment be supported and this
{ ~ section be deleted. Failing that, I would respectfully ask that the re-
a' port of the Committee of the Whole, or a committee report, should
' be worded so as to make it clear that adoption of this section--if this
}#i amendment is not voted upon favorably--does not intend in any way to
f; infringe on the other fundamental rights of speech and press."
;gj Delegate Sterling rose to voice his agreement and urged [hat the section be deleted.
eii
'i! Delegate Hanaike then spoke against the amendment, observing that it had been their
i intention only to make a simple statement recognizing the fact that they had always had
the right to privacy. The problem, she pointed out, had been with case law in different
states. which law had been appiied inequally by the courts. As far as the Bill of Rights.
she continued, all rights were equal, and mentioning a word twice didn't make it any
,~9 t more so. She then explained that privacy had not been included in the Bil] of Rights
t originally because it had not been a problem 200 years ago, but in recognition of its con-
~ sideration today it should be added.
' I~' Delegate Anae, speaking in opposition to the amendment, referred to a case at
i ~ Brigham Young University, in which the federal government had mandated that the dorms
tf{ ~ be integrated. 6righam Young, he pointed out, had based its case on the right to privacy,
I but it was not upheld. He then concluded:
t
"I am a concerned citizen, and I feel that in the State of Hawaii
d~ s ; ~
~ i the same practice may occur with some of our private institutions be-
cause the right to privacy statute in our Constitution is not up to the
~ I level of the First Amendment rights. And this is the reason I am ip fa-
~~;f ' vor of the original proposal and against the amendment to delete."
f'
Delegate Crozier rose to speak for the amendment, explaining that he had thought
the right to privacy provision would replace the other statement in the Constitution, and
that if there were nvw to be two sections dealing with the same subject, he would support
the amendment to delete.
Delegate Campbell then spoke in favor of the motion, stating:
do not recall of my own knowledge--and perhaps my memoay
fails me--that we ever discussed the rights of freedom of speech and
freedom of the press juxtaposed with the right to privacy. I am very
much in favor of the right to privacy and I do feel [hat the interpreta-
tions of the Ninth and Tenth Amendments to the federal Constitution
have construed the right to privacy to protect the many areas which
the maker of this original proposal had in mind. But if in any way the
rights of freedom of speech and freedom of the press would be jeopar-
dized, then to me that jeopardizes all of us.
have said before on this floor, and [ am still very much con-
- cerned, that [here are a number of areas which need to be explored
by the press and which the public needs to know about in the area of
~I crime. And if [he press, for example, were to seek out and try to get
information about organized or syndicate crime, and if this could be
used as a weapon against a free press, then I believe that all of us
. would be in jeopardy. And for this reason I would urge my fellow
delegates to vote in favor of this amendment Mahalo."
Delegate Barnes, speaking in favor of the amendment, voiced agreement that in [he
privacy law area decisions had been on a case-by-case basis, mid issues coming up would
still be based on U.S. supreme court cases. This language, he pointed out, did not add
anything thut would be of help to a court in the future.
l,~
1'l +
56TH DAY 361
Delegate Chang then spoke against the amendment, stating:
"I can't really believe what I'm hearing this morning. It seems
to me that this amendment came about because we did no[ allow any
more privilege to the press , so now what you're doing is taking away
my right [o privacy by offering this amendment to cover the press. I
resent that. I believe that I, as a private citizen, have a right [o pri-
vacy. And I believe that if I make a statement I should be accountable
for it, whether it's right or whether it's wrong. And I believe that the
press should also be accountable for what they print, which many peo-
ple pay to read. Nobody pays [o read what [say, but they certainly
pay to read what the press says, so they'd better be a little more care-
ful of what they print.
"Now, I voted against giving legislators the same type of
privileges that [he press has, and I use [he same argument--what
makes the legislators on any higher a level than we are--what makes
the press on a level any higher than we are as private citizens? Now
I just ask for your fair consideration of this amendment--and really
think of what you're doing; by now allowing the press the freedom,
are you going to take it away from me?"
Delegate Weatherwax, speaking against the motion, observed:,
"There was some mention that I previously discussed acase-by-
case method, as filling out and giving meat to the language of the com- i
mittee proposal. The several cases to some extent would give our su-
preme court some direction, no doubt about that, and I must also con-
cur [hat in the federal Constitution [here is no express language that
details the right [o privacy. Le[ us all realize we generally have a
feel for the concept, with specific application in every case, and we've
heard some examples here, with respect to dormitories, with respect to
[he smoking of marijuana, with respect to many things. However, I
think it's necessary to have the language as broad as it is, and in the
Constitution. And not, in contrast to the present three words in the
Constitution--right now there are only three words that deal with inva-
sion of privacy, and I believe that comes tied in with Article 1V . There
was some confusion in 1968, and subsequently because of the confusion
the right to privacy was restricted more [o wiretap situations or in the
criminal area.
"So it was the committee's intent to broaden [his, broaden it by
not laying out specifics; we have to leave that to the courts, I believe,
end also to the legislature because I think the proposal says that the
legislature shall look at i[ and begin the filling-in process. And each
of us individually may at some time require this. Although it's broad,
we may find the particular circumstances where we would want the
right to privacy, and it'll be there in the Constitution in a separate
section, not tied in or colored by the criminal procedure side, but a
separate section that deals with civil rights. And you'll go into court
and hopefully give meat to this provision. Therefore I speak against
the motion and ask that you support the committee proposal."
Speaking for the amendment, Delegate Tam reiterated that [he right to privacy was
already in the Constitution, in Section 5 of Article I, which the 1968 committee report had
delineated ns a very broad right to individual privacy. The new provision, he added,
more than just being redundant, could stifle the exposure of political corruption and
organized crime.
Delegate Burgess, on a point of information, asked if the committee chairman could
reassure the delegates by acknowledging in the Committee of the Whole report that the sec-
tion was not intended to stifle freedom of speech or freedom of the press. In response,
Delegate Weatherwax explained:
"I concur with the delegate's concerns but in fact, as to whether
sj~:
~~i
362 CONVENTION JOURNAL
tti or na[ I can at this point amend the committee report--no, I could not
~ j ~ do that, but I do recognize his concern. [too have that very same con-
; j; cern, but I believe it's unfounded because I think [hat under case law,
g,F as well as interpretations not only of our Constitution but also the
federal Constitution, that freedom of the press will still be maintained.
,';j And I believe at this time there is a concern because of where the U.S.
~41 i, supreme court is going, that there have been some recent cases with
~ ~ respect [o the rights of the press, and that's where I believe the con-
ei cern is coming from. But the right to privacy here is not intended in
any way to delete or to diminish the rights of [he press."
;yi;'
Delegate O'Toole, on a point of information, then asked if it were true that the dis-
~ ~ cussions on [he floor, in Committee of the Whole or a[ Second Reading, were quite often
;ji amore significant factor in court cases in determining the Convention's intent than [he
committee reports.
~31 Delegate Pulham, on being recognized, responded:
"I would say to the question that was just raised--how then if
l~ ' this discussion is what i[ is based on, whose side do they go on, the
C' i pro or the con--depending on which they lean? There are no facts
i i other than those being brought out here, so I hope that that is not the
j total basis for deciding what we finally mean when we pass something.
"I'm going to speak in favor of the amendment to delete, for a
~k4. number of reasons. First of all, i[ has been acknowledged by both
i'., sides that this is a duplication, and I cannot seem to find a reason, if
we're going to take something out of the Bill of Rights and make a
separate section and leave it in there, why we are singling out pri-
vacy [o be included in a new section, plus leaving it in the other one.
In that same area, if we simply intend to ask the legislature--and in
addition the courts--to look at this and expand upon it, I have no rea-
' r " son to believe that they could not have already looked at [hose words
in [he Constitution and either legislatively or judicially expanded up-
on it, so there's no reason to believe that we are doing anything in
this area. The fact that it's mentioned twice in that particular article
1 don't think gives it any more weigh[. I would certainly hope that
poor verbiage does not make something more important than something
else.
"There was also reference to this as a simple little statement;
1 think that the amount of discussion here indicates that it certainly is
not a simple little statement. It is a simple little very complex state-
ment with a lot of ramifications that apparently we can't all agree on,
and therefore I don't really see why we need [o leave it in there. I'm
very much concerned because of admitted Facts that, maybe not this
amendment but similar or identical ones were submitted for a specific
purpose, which is promoting the drug culture. And then that this--
we're saying, in other words, publicly here that we are using this
without saying so as a method or a route to get this more firmly en-
trenched in our society.
"Now if you believe as I do [hat we need to take a tougher stand
on drugs, if you believe that we need to take a tougher stand on orga-
nized crime, if you believe the youth of our society need the facts on
these, not some sort of tacit approval by saying nothing, I don't see
how, with this in mind, and the fact that privacy is already protected--
and in deference to some oC my colleagues who see this as helping them
in some specific instance, particularly as we are talking about what the
' federal government does--we should bear in mind that this body cannot
tell the federal government, the supreme court of the United Slates, to
do anything. So we are deluding ourselves if we think that our small
kuleana is going to be increased by passing a second privacy section in
our Constitution. R'ha[ we are doing is furthering the ends and the aims i
~~;~k....,,
°+r tap. "
1
'i.
58TH DAY 363
of organized crime and the drug culture, who are going to be ecstat-
ically happy to see us leave this provision in the Constitution. .
"Now, if you can leave here today with that on your conscience,
if you can go home and face your children and your friends and neigh-
bors and their children--why that's fine, you do that. There is no way
that I in good conscience can. I urge you to support this amendment."
Delegate O'Toole then rose to speak against the amendment, noting:
"I share some of the feelings of the previous speaker but [don't
think this amendment will have that much to do with promoting orga-
nized crime or drugs. I voted in t'avor of the privacy amendment pre-
viously, and not for [he reasons that Delegate Hale evidently introduced
it. 61y feeling is that if we're going to help fight organized crime or the
crime situation, the things that are going to help are merit selection of
judges, mandatory minimum sentences, and trying to get statutory
methods whereby judges will be harder on criminals. I really don't
see the previous discussion applying in this situation as far as crime
is concerned."
Delegate Sterling, speaking in favor of the amendment, reminded the delegates that
the question was freedom of the press and that Section 5 on invasion of privacy was not
being deleted. The vital issue, he pointed out, was whether the right to privacy provi-
sion would jeopardize or infringe upon the freedom of the press.
Delegate Alcoa, on a point of inquiry, requested a definition of "compelling state
interest" in the provision. Delegate Weatherwax, in response, explained that [his re-
ferred to a constitutional test used by both U.S. and state supreme courts in determin-
ing to what degree a particular right must be, or the value that the government sought
to protect or promote, in contrast with the particular individual rights held. There must,
he added, be an overwhelming or compelling state interest in the balance before the right
could be diminished or removed.
Delegate Hino further clarified:
"In layman's language, 'compelling state interest' means that the
government must have a damn good reason before they can interfere in
your privacy. And secondly--it's atwo-step situation--once they deter-
mine that there is a good reason to infringe on your privacy, then they
must take the least intrusive means--not the kind where they would
use a very large net with fine mesh. In other words, the net has to
be big enough so that those people who are not affected would not be
infringed upon."
Delegate Barnard then spoke against the amendment. It was her understanding,
she explained, that the right fo privacy provision was never intended in any way to in-
fringe on the U.S. Constitution's First Amendment rights to the Stale Constitution Sec-
tion 3 rights, which, she added, were absolutely necessary if this was to remain a free
country.
Delegate Taira, speaking against the amendment, emphasized that he saw nothing
in the privacy provision that would stimulate or encourage the growth of organized crime
or the use of drugs, as had been alluded. [f that were so, he added, he would be very
strongly against the provision.
Delegate Kimball made the following statement against the motion:
"Looking at Section 5 of Article I, the title of that section is
'Searches, Seizures and Invasion of Privacy.' The title is not 'Privacy
Rights.' Also, the section says: 'The right of the people to be secure
in their persons, houses, papers and effects against unreasonable
searches, seizures, and invasions'--and to me those have limited ap-
plication to judicial or legal proceedings, particularly in terms of the
words 'searches' and 'seizures.' Those are the two compelling words '
hl
364 CONVENTION JOURNAL
I~ I in that section, and therefore I think the present section has limited ap-
I plication. What we're doing in the committee proposal is making an af-
l' firmutive statement in support of each and every individual privacy right.
And there is a qualification for that, [hut if the State can show [hat some-
~ thing on the basis of society ns a whole will affect the society, it has the
~I, right to override an individual's privacy rights. Therefore, since we
~i are making a positive, affirmative assertion of our privacy rights, I speak
t i;~ i against the motion to delete."
Delegate Tam then rose, in response to the previous speaker, to voice his disagree-
' meat with the interpretation that the right to privacy was limited. Speaking for [he amend-
meat, he pointed out that Stand. Com. Rep. No. 55 from [he 1968 convention gave an ex-
i i pansive interpretation of the phrase "invasion of privacy," in terms of individual dignity
and [he right to privacy, and that it was not in any way limited.
1f ~
Delegate Wurdeman, speaking in favor of the amendment, mentioned a previous
'1 i allusion to the rights of citizens. Referring to Section 6 of Article I, she pointed out that
in deleting the privacy provision they would be deleting redundancy. Clear language,
she explained, but not clear constitutional analysis, was what they were striving for, and
she concluded, believe that our societal values change. If we are concise in our constitu-
3 j ~ tional analysis now, we'll need more flexibility for growth."
i
Delegate Campbell, speaking for the amendment to delete, stated:
II~ ~ "Mr. President, from listening to the various delegates speak,
~g ~ I it appears that there still needs [o be some clarification here. There
is a need perhaps to disagree with certain delegates who feel their
",1 ! rights to privacy would somehow be invaded or lost if this amend-
; ~ meat were to pass. There has been a distinction made by [he court
in the right to privacy as it is set forth in Section 5 of Article I, and
I
~ ~ - ~ that distinction is that it has been made to apply [o such things as
{ ~ criminal searches and seizures, wiretaps and so forth; and Por this
a~ reason it was assumed there was a need to set forth a specific civil
`1'' ~I right to privacy, which was to cover certain specific areas.
"However, 1 think it is very clear also that the U.S. supreme
court has interpreted the Ninth and Tenth Amendments to [he Consti-
tution--and it surprised us as well--in such a way that the civil rights
we are seeking to protect are being protected, and I believe [he delegate
to my left set forth a number of very important cases covering [hose
areas. So it should be made clear to everyone that if [his right to
privacy section were deleted, it would not in any way derogate from
the civil right to privacy, which each of us has, as the U.S. supreme
court has interpreted, under the Ninth and Tenth Amendments."
Delegate Anae then rose to speak against the amendment, explaining that this was
n basic right that everyone deserved, not just a small select group, and that it should not
be deleted because it inconvenienced or placed some hardship on a few.
Delegate Stegmaier, speaking against the amendment, stated that the privacy provi-
sion reflected a genuine concern regarding technological advances in society at that time.
He was in favor, he stated, oC reaffirming and reemphasizing the basic, fundamental right
to be free of potential technological abuse.
Delegate Hironaka, also speaking against the amendment, indicated his belief that
the last sentence in the provision, mandating the legislature to "take affirmative steps to
implement this right," cleared up some of the concerns expressed.
Delegate Kojima [hen spoke in favor of the motion, explaining [hat his concern was
with the drug issue, that the provision seemed [o provide license because of possible in-
terpretations and its broad implications. He reminded the delegates of the interpretation
• by the courts in, Alaska and pointed out that it could be similarly interpreted in Hawaii.
If the rationale for the deletion, Delegate Ilirata then asked, was to prevent people
from smoking marijuana in their homes, would the deletion also allow the police to break
a
~ v. Le.~~
58TH DAY 365
into anyone's home on the grounds thut they suspected it? Delegate Kojima responded
that this was already provided for in the Constitution, that there were provisions that
protected the privacy of individuals.
Delegate Goodenow, on a point of inquiry, asked if, according to the current laws
regarding marijuana, the provision was contradictory to or would be brenking the law.
Delegate Weat he rwax responded by explaining [hat the state supreme court had made a
determination on this, that it did not at this time fall under the right to privacy provi-
sion. That, he added, did not mean that supreme courts never changed their minds.
Delegate Alcon, also on a point of inquiry, asked whether the term "compelling
state interest" did not in fact include the right of [he State or law enforcement officers to
go into a home to stop an illegal action. In response to this and a previous question, Dele-
gate Tam pointed out that Com. Whole Rep. No. 15 gave an interpretation on page 3 indi-
cating [hat "this privacy concept encompasses the notion that in certain highly personal
and intimate matters, the individual should be afforded freedom of choice absent a com-
pelling state interest" It could be interpreted, he observed, that "if you go behind closed
doors in the privacy of your own home, you can do whatever you want."
Delegate Ontai spoke in favor of the amendment, reiterating that there was already
a constitutional provision on privacy and a second provision would be redundant. He then
pointed out that [here would be a great many proposals on the ballot in November and with
the public already confused, this provision would only add unnecessarily to the confusion.
Delegate De Soto then rose to speak against [he amendment, stating:
"I've heard a lot of talk about what this amendment could do,
what i[ cannot do, its redundancy, etc. I am a lay person, never hav-
ing graduated from college. I live with my people, of all ethnic groups,
we live together. And this is easier [o see, that the right of the people
to privacy shall be recognized. It doesn't say that we encourage under-
world activity, it doesn't say anything about smoking akp alolo in your
bedroom, it just says that the 'right of the people to privacy is recog-
nized....' I spoke a little the other day about our rights in the Con-
stitution, as was pointed out by many speakers, but these rights have
been infringed on, by helicopters flying over my house--maybe they
think I'm growing pakalolo--and scaring us, all hours, police officers
charging through my yard for whatever reason, which frightens us--
all under one cloud called 'probable cause.' You see, with probable
cause they can do almost anything, because you have [o disprove that
there is any probable cause. You can be stopped on the highway at
night, yanked out of your car, searched, your entire vehicle stripped
because the police officer had probab]e cause--an ambiguous statement,
I feel.
"With respect to pakalolo, we have in our society the free choice
of drinking beer, smoking cigarettes that the surgeon general says may
be hazardous [o your health. I think we've become a little paranoid--
and that's for myself, I'm not-calling anybody names--when we talk
about rights. I think that this right to privacy is something we can give
back to the people. If they don't want it they can vote it down--and I'd
like fo use the argument that at least we should put it on the ballot and
give the people a chance to vote for it."
Delegate Souki, speaking for the amendment, pointed out that their nation with its
rights and protections in Article I was envied throughout the world in having these in-
herent freedoms. To add this provision, he continued, with language like "compelling
state interest" which could be misinterpreted or interpreted differently, could cause prob-
lems that none of them had anticipated.
Delegnte Hale then rose to speak last for her amendment, stating:
"I would like to answer some of the concerns stated. I think as
far as the delegate to my left here, his concerns about Brigham Yottng
University and the dorm integration, it's been nnswered that that was
r.~.., ~
.Y~.
~
il~ ~
~I 368 CONVENTION JOURNAL
I i'~. it under the federal Constitution, and no matter what we do in the State
II of Hawaii it isn't going to affect that decision. .
f ' ~ ~ "AS far as taking away anyone's rights, these rights are in the
}j federal Constitution and we aren't taking away anything. Furthermore,
~l we already have the rights in our own Constitution and what would pro-
'~I I : feet my good friend, the delegate from Waianae, would be Article I, Sec-
ii tion 5, where the 'right of the people to be secure in their persons...'
against invasions of privacy is already outlined, and even with that we
still have helicopters--and [agree [hey shouldn't be used, but not only
for that reason but because they cost taxpayers too much money to run.
"But at any rate, the problem seems to be that the right we are
adding here is so broad and it's such a big umbrella [hat everybody
can find comfort in it, and 1 wonder if that's what we really want. 1'd
like to say that 1 don't smoke marijuana--I don't smoke cigarettes
,A~ either--but I do feel that people should be protected in their homes in
i~~ doing anything they want. But I'm not sure this is the right way to
i , do that It should have been a much more straightforward and honest
s ~ i approach, as some of my proposals were. And though I am for the
f ~ ~ right [o smoke in your own home, 1 am not for the drug culture or pro-
j' moting the sale of drugs. As it's been pointed out, this might be used
k ii to hinder prosecution of organized crime.
i II
1 I "On the other hand, I was concerned when [he committee report
~ ~ came out, because four pages are devoted to this committee proposal
and there's really nothing in there that says freedom of speech and
iyi;. freedom of the press are still guaranteed, as opposed to the right to
;A~.: privacy.
es~i
~ ' "As a lay person I was very much taken by this amendment, and
't:' I will admit that [was wrong and that there are areas in which I respect
my lawyer friends and I probably should defer to their judgment, par-
' ~ ocularly when we're writing a constitution, which is going to give the
law profession the basis for earning a living for many years to come. I
think as lay persons we're reading into this amendment many things
which may or may not be there, and we don't really know. And in
answer to the question of putting it on the ballot, I'd say that if we don't
really know or if we disagree--and almost everybody who has gotten up
has given a different reason for being for or against--and if [here are
that many things that are sheltered by this umbrella, then how can we
just say--right [o privacy, yes or no. It is not that simple, and I think
we already gave them [he chance in 1968, when they voted for the right
to privacy amendment, and to do it again in the confused state we are in,
I think, is very unwise. And as my namesake always says, if you don'[
know, don't do anything. So I would suggest that we support the amend-
ment to delete this, because maybe we really don't know and therefore
we really shouldn't do anything."
There being no further discussion, the question to amend Com. P. No. 15, RD. 1,
by the amendment deleting section 6 was put by the Chair. At this time Delegate Hale re-
quested aroll-call vote and the Chair, on determining ten seconds, so ordered.
Roll call being in order, the motion failed to carry by a vote of 30 ayes, 60 noes end
I 12 excused; with Delegates Andrews, Barnes, Barr, Burgess, Cabral, Campbell, Crozier,
i, Eastvold, Goodenow, Hale, Hamilton, Harris, Kojima, Kono, Lacy, Rachel Lee, Liu,
Marumoto, McCall, Miller, Peterson, Pulliam, Souki, Sterling, Takehara, Tam, Wurdeman,
Yamashita, Yoshimura and President Paty voting aye; Delegates Alcoa, Anae, Barnard,
Blake, Calvin Ching, Donald Ching, Laura Ching, Haunani Ching, Chong, Chun, de Costa,
De Soto, Dyer, Fukunaga, Funakoshi, Fushikoshi, Hagino, Hanaike, Hashimoto, Hayashida,
Nino, Hirata, Hironaka, Hoe, liokama, Hornick, Dennis Ihara, Les Ihara, Teruo Ihara,
Ikeda, Iwamoto, Izu, Kaito, Kimball, Ledward, Marion Lee, Lewis, Nakamura, Nishimoto,
Nozaki, Odanaka. Okamura, O'Toole, Penebacker, Sakimo, Sasaki, Shinno, Shon, Silva,
Stegmaier, Stone, Sutton, Taira, Takahashi, Takemoto, Tamayori, Uyehara, Villaverde,
':;i
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1,' ~ 674 CONVENTION DOCUMENTS
~I. "RIGHT TO PRIVACY
,
"Section The right of the people to privac is recognized and shall not be in-
fringed wttliout the showing of a compelling state interest The legislat m•e shall take af-
firmatwe steps to implement this right."
III In 1968 the Constitution was amended to include the prohibition agninst unreasonable
~ invasions of privacy, but its inclusion within a section patterned after the Foaa•th Amend-
me nt right against unreasonable senrches and seizures and the debate during the 1968 con-
sti[utional convention have engendered some confusion as to the extent and scope of the
right. Although it appears clear that the proponents of the concept saw the right as broader
i ~ than one limited to protection against invasions of privacy in criminal cases, the convention
devoted most of the debate to the relationship between the proposed amendment and concern
over wiretapping. This has led the Hawaii supreme court to state that the privacy right
~i emanated from a concern over extensive use of electronic surveillance, thus limiting the
right to privacy by implying that it did not encompass the concept of a right to personal
autonomy. State v. Roy, 54 H. 513, 510 P2d 1066 (1973). Thus it may be unclear whether
the present privacy provision extends beyond the criminal area. Therefore, your Com-
mittee believes that it would be appropriate [o retain the privacy provision in Article I,
Section 5, but limit its application to criminal cases, and create a new section as it relates
to privacy in the informational and personal autonomy sense.
Your Committee is aware that the right oC privacy has meaning varying in degree
and nature, and case law may not be clear as to the extent and scope of the rights. There-
fore, your Committee wishes to explicitly state the intent of your Committee as to the scope
and nature of the right.
Your Committee believes that the right of privacy encompasses the common law right
I of privacy oi• tort privacy. This is a recognition [hat the dissemination of private and
personal matters, be it true, embarrassing or not, can cause mental pain and distress far
~li greater than bodily injury. For example, the right can be used to protect an individual
~ I from invasion of his private affairs, public disclosure of embarrassing facts, and publicity
placing the individual in a false light. In short, this right of privacy includes the right '
i of an individual to tell the world to "mind your own business."
Another area of concern that may be alleviated by this right is the issue of informa-
tional privacy , o:• the ability of a person to control [he privacy of information about himself.
i There has been a trend in modern-day society to require that a person complete forms de-
tailing information about himself. There is often a legitimate need for government or private
parties to gather data about individuals, but there is danger of abuse in the use and/or
dissemination of such information. The danger of inclusion of inaccurate data being retained
in Borne computer bank, thereby affecting the life of an individual, is inherent in our modern
day, but the right to privacy should insure that at the least an individual shall have the
ri ght to inspect records~to correct misinformation about himself.
Perhaps the most important aspect of privacy is [hat it confers upon people the most
important right of all--[he right to be left alone. As Justice Brandeis said in his now cele-
~ ~ braced and vindicated dissent in Olmstead v. U.S. , 277 U.S. 438 (1928):
I
"The makers of our Constitution undertook to secure condi-
tions favorable to the pursuit of happiness. They recognized-
~ the significance of mans spiritual nature, of his feelings and
i i of his intellect. They knew that only a part of the pain, plea-
sure and satisfactions of life are to be found in material things.
j They sought to protect Americans in their beliefs, their thoughts,
their emotions and their sensations. They conferred, as against
the Government, the right to be let alone--the most comprehen-
~ I sive of rights and the right most valued by civilized men."
It gives each and every individual the ri ght to control certain highly personal and
i intimate affairs of his own life. The right to personal autonomy, to dictate his lifestyle, ;i..
4 to be oneself are included in this concept of privacy. As Justice Abe stated in his concur-
~ ring opinion in State v. Kantner, 53 H. 327, 493 P 2d 306 (1972): each person has the
"fundamental right of liberty to make a fool of himself as long as his act does not endanger ~
others, and that the state may regulate the conduct of a person under pain of criminal
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STANDING COMMITTEE REPORTS 675
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punishment only when his actions affect the general welfare--th at is, where others are
harmed or likely to be harmed."
.y ' Whether an individual's desire to engage in a particular activity is protected by this •
aspect of the right to privacy, (the right to personal autonomy) will remain a matter for
the courts., For example, it has been held that society has no legitimate interest in the
hairstyle of a person attending a public educational institution. Other cases have included
certain marital, sexual and reproductive matters within this right, thereby insuring free-
dom of choice in these matters.
It should be emphasized that this right is not an absolute one but, because similar
to the right of free speech, it is so important in value to society that it enn be infringed
upon only by the showing of a compelling state interest. If the State is able to show a com-
yelling state interest, the right of the group will prevail over the privacy rights or the
~ right of the individual. However, in view of [he important nature of this right, the State
must use the leas[ restrictive means should i[ desire to interfere with the right.
Your Committee expects that at times the interests of national security, law enforce-
; ment, the interest of the State to protect the lives of citizens or other similar interests
will be strong enough to override the right to privacy. It is not the intent of your Commit-
tee to grant a license to individuals to violate the right of others but rather to grant the
individual full control over his life, absent the showing of a compelling state interest to
protect his security and that of others. Thus it is expected that in certain situations the
interest of the State will rise to such an intensity that it will be deemed a compelling state
interest. For example, in the case of dissemination of information about individuals, law I
enforcement officials would not be restricted in sharing information about suspected wrong-
i doers, or the press may be justified in writing about certain personal matters of public i
figures. Further, i[ should be noted that the committee does not intend to prohibit one
department of fire state government from obtaining data kept in another department, as hap-
pened in Alaska. Your Committee does not believe that exchanging and sharing of informa-
lion between separate components of government should be prohibited. Your Committee
t ' is concerned about abuses such as using such data for illegitimate purposes or revealing i,
` it to the public when no le gitima[e public interest is involved. Thus, your Committee does
} not envision closing off access to court records or public records already subject to "sun-
s shine" laws but feels that this amendment would be useful in prohibiting abuse, misuse
1 or unwarranted revelations of highly personal information. However, your Committee
strongly believes that in aday when outside forces seek to learn more and more about an t
individual and control more and more about an individual's life, this amendment is neces-
7 sary.
4 The importance of this amendment is that it establishes that certain rights deserve
special judicial prole Mion from majority rule. It recognizes that there will always be a ' 1
dynamic tension between majority rule, which is the basis of a democratic society, and 1
the rights of individuals to do as they choose, which is the basis of freedom , and your
Committee believes that this amendment recognizes the high value that individuality has
in society. Your Committee, by equating privacy with the First Amendment rights, in-
tends that the right be considered a fundamental right and That interference with the ac-
tivities protected by it be minimal.
r
Your Committee recognizes that generally the Constitution acts as a safeguard against
• the actions of government and not private parties. Therefore, your Committee has man-
` dated that the legislature implement [his section since statutory language can be le gi- ; 5
' timately drafted to protect against the actions of private parties. For example, the Federal ~
Privacy Act of 1974 is one example of legislative action supportive of this right.
~1
The question of whether provisions regarding discrimination based on sexual orienta-
tion should be included in the Constitution concerned your Committee. Certain members
~ of your Committee argued that the inclusion of such a provision would extend nondiscrimi-
nation to another minority group.
Your Committee believes [ha[ the inclusion of such a provision would be duplicative jl.
of the equal protection and due process protections already existing in the Constitution. j
Accordingly , your Committee believes that inclusion of n provision related to discrimina- ~ i, j
lion based on sexual orientation would be superfluous. ' '
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' ' 676 - CONVENTION POCUMEN75
Your Committee was also concerned with the subject of a journalist's privilege re-
-~I garding the confidentiality of sources, or a shield law. Members favoring the privilege
indicated [hat the question is one of great importance as members of the media have been
~ incarcerated, both locally and nationally, because of their reluctance to divulge their
I source of information. Among other things, proponents stated that privilege is essential
to the concept of the freedom of the press because reporters may be hesitant in their pur-
suit of stories and/or sources may be reluctant to provide information.
Members in opposition to the proposal stated that the rights contained in the First
Amendment are adequate in their protection of the media. The problem arises only when
the protection of sources conflicts with the right to a fair trial. Although well publicized,
the conflict involves a relatively small number of cases.
1 Other arguments advanced by the opposition included: p) that an accused should
have the right to know his accuser; (2) that a court of law, rather than reporters, should
decide on the innocence or guilt of an individual; (3) that the people have no assurance
' flagrant reporting will not occur; (4) that a defendant facing trial has the right to informa-
tion that may pave the way for his acquittal and (5) because both the right of a free press
~~j! and the right to a fair trial are in the federal Constitution, any conflict between [he two
- ~ could still be litigated in the federal courts under the federal Constitution, and any state
i constitutional provision relating to a privilege against revealing a source may well be moot.
j ; It should be noted that the press has survived well for many years without a shield
1 + law and that state laws creating a shield law have not stopped courts from jailing reporters
11 ~ for contempt when they have refused to reveal their sources of information. For example,
Ii in the presently celebrated Farber case in New Jersey, New Jersey does have a shield
ii law. Further, proponents of the privilege have argued that it was newspaper reporting,
i ! in part based on confidential sources such as "Deep Throat," that resulted in much of the
~ unraveling of Watergate. It has been suggested that without a shield law sources would
' have been hesitant to reveal to reporters the hidden mysteries of the Watergate affair, but
' this argument fails to reflect the fact that no federal shield law existed during those days
and none still exists today. Thus it is questionable whether the lack of a shield law will
I; hamper effective investigative reporting.
i
Case law has been consistent in holding that a reporter does not have the right to
refuse disclosure of his sources upon proper request. In [he context of a criminal case,
1(~' courts have consistently held that no one has the right to refuse compliance with a properly
issued subpoena seeking evidence. The U.S. supreme court in the Nixon papers case re-
affirmed this basic concept. Since the question arises in the context of a conflict between
two important rights--that of the press and a fair trial--your Committee believes that it
would not be wise to place in the Constitution a provision tipping the scales toward free
1 press, especially in light of the potential of conflict with the Federal courts.
Therefore, your Committee recommends: (1) that the above-numbered proposals
referred to your Committee be tiled, and (2) that Committee Proposal No. 15* pass first
reading in the form shown.
Signed by all members of the Committee except Delegates Barnard, Eastvold,
Funakoshi, Hayashida and Kono. Delegate Peterson did not concur.
*For the complete text of this proposal, see Committee Proposal No. 15, page 825.
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.jll STANDING COMMITTEE REPORT NO. 70
f'
Your Committee on Budget, Accounts and Printing begs leave to report that Com.
' Whole Rep. No. 9 have been printed and distributed.
i.
Signed by Delegates Ledward, Chairperson; Crozier, Vice-Chairperson; Hayashida,
j'' Vice-Chairperson; Hale and Lacy, members.
STANDING CObI6IITTEE REPORT NO. 71
Your Committee on Budget, Accounts and Printing begs leave to report that Stand.
1,
':f,..