State v. Cotton , 55 Haw. 138 ( 1973 )

DISSENTING OPINION OF

ABE, J.,

WITH WHOM KOBAYASHI, J., JOINS

The majority of this court has upheld the constitutionality of the helmet requirement provision of HRS § 286-81 (1) (A)¹ and I respectfully dissent.

The defendant attacks the constitutionality of the portion of HRS § 286-81, requiring a motorcyclist to wear a helmet on the ground that the wearing of a protective helmet is only for an individual’s own personal safety and, therefore, is not a reasonable exercise of the State’s police power to protect public safety, health, or welfare.

The State, on the other hand, contends that the State has a vital interest in protecting “members of the community from injuring themselves” and that the headgear requirement is a valid exercise of its police power. The State also urges this court to adopt the reasoning in Simon v. Sargent, 346 F. Supp. 277, 279 (D. Mass., 1972); aff'd mem., 409 U.S. 1020 (1972), where contentions similar to plaintiff’s were rejected:

For while we agree with plaintiff that the act’s only realistic purpose is the prevention of head injuries incurred in motorcycle mishaps, we cannot agree that the consequences of such injuries are limited to the individual who sustains the injury. In view of the evidence warranting a finding that motorcyclists are especially prone to serious head injuries, see Statistical Division, National Safety Council, 1971 Motorcycle Facts, the public has an interest in minimizing the resources directly involved. [Fn. omitted.] From the moment of the injury, society picks the person up off the highway; delivers him to a municipal hospital and municipal doctors; provides him with unemployment compensation if, after recovery, he cannot replace his lost job, and, if the injury causes permanent disability, may assume the responsibility for his and his family’s continued subsistence. We do not understand a state of mind that permits plaintiff to think that only he himself is concerned.

It is generally recognized that a state has inherent authority under its police power to enact reasonable laws to protect and preserve public order, safety, health and morals. Nebbia v. New York, 291 U.S. 502 (1934); Borden Co. v. McCrory, 169 F. Supp. 197 (E.D. La. 1959); Pacific Meat Co. v. Otagaki, 47 Haw. 652, 394 P.2d 618 (1964); State v. Gordon, 143 Conn. 698, 125 A.2d 477 (1956). However, it would be impossible for any court to provide a precise delineation of, or definition for, the scope of the police power.

On this difficult question the United States Supreme Court in Goldblatt v. Hempstead, 369 U.S. 590, 594 (1962) said:

The term “police power” connotes the time-tested conceptional limit of public encroachment upon private interests. Except for the substitution of the familiar standard of “reasonableness,” this Court has generally refrained from announcing any specific criteria. The classic statement of the rule in Lawton v. Steele, 152 U. S. 133, 137 (1894), is still valid today:

“To justify the State in . . . interposing its authority in behalf of the public, it must appear, first, that the interests of the public . . . require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals.”

In Shelton v. Tucker, 364 U.S. 479, 488 (1960), the U.S. Supreme Court said:

In a series of decisions this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.

I agree with the State’s contention that the State has a substantial interest in highway safety and that it has the power to control and regulate the use of highways. However, it does not necessarily follow that under such power, the State may constitutionally mandate the wearing of headgear under threat of criminal punishment.

The general rule as stated by this court in Bishop v. Mahiko, 35 Haw. 608, 641 (1940), is that:

The burden of showing that an Act of the legislature is unconstitutional is on the party asserting it. Every enactment of the legislature carries a presumption of constitutional validity and should be upheld by the courts unless it has been shown to be, beyond all reasonable doubt, in violation of the Constitution. Moreover, the facts adduced to show unconstitutionality must be clear and convincing and must show beyond question that the legislature exceeded the limits marked by the Constitution. [Footnoted citations omitted.]

However, a presumption of constitutionality cannot serve as a rationale for complete judicial abdication of responsibility for determining whether legislation meets the test adopted by the U. S. Supreme Court in Goldblatt v. Hempstead, supra, and Shelton v. Tucker, supra. Thus, it ' for this court to determine whether the object or purpose of the headgear requirement is to promote public safety and also whether it is unduly oppressive to individual freedom. See also, American Motorcycle Association v. Davids, 11 Mich. App. 351, 358, 158 N.W.2d 72, 76 (1968).

Comparing provisions (A) and (B) of HRS § 286-81 (1), I believe that the specific objective of the headgear requirement is to safeguard the person wearing it. It would appear that our legislature, fully recognizing the special hazards faced by all motorcyclists, and the folly exhibited by some motorcyclists, enacted the headgear provision to prevent death and injuries to cyclists resulting from motorcycle mishaps. I do not question the beneficent intent of the legislature in enacting the law to protect immature and reckless, or careless, or foolhardy youngsters and adults, who are unwilling to protect themselves.²

I agree, as this court said in State v. Lee, 51 Haw. 516, 519, 465 P.2d 573, 575-76 (1970), that the basic issue on the helmet question is

whether the legislature may constitutionally regulate the conduct of an individual so as to require him to protect himself from physical injury and or death; that is, whether physical harm to self is a proper subject of public interest and thus subject to the police power of the legislature.

Article I, Sec. 2 of our State Constitution³ guarantees the right to the enjoyment of life, liberty, and the pursuit of happiness. Under this guarantee one has the constitutional right to be let alone. With this right to be let alone, one has the right to determine for himself what is for his “best interest, ’ ’ even though some scholars contend that there is “. . . a general decline in the belief that individuals know their own interests best, and ... an increased awareness of a great range of factors which diminish the significance to be attached to an apparently free choice or . . . consent.”⁴

Are we to accept the State’s contention (and the reasoning of Simon v. Sargent, supra) that injuries to a single individual are a concern, not for himself alone but for the public in general, because of the State’s interest in keeping its citizens healthy and productive and in preventing expenditures of public funds to aid persons injured by falls from motorcycles? I believe that our acceptance of the State’s argument would open the door to constitutional justification for unlimited paternalism on the part of the State. As a corollary, our upholding of the headgear requirement under such reasoning could mean that the legislature might have virtually limitless power to curtail individual actions, even though such actions do not affect public safety, health or morals. For example, according to the State’s argument, our legislature could, under threat of criminal punishment: prohibit the smoking of cigarettes or other tobacco products; regulate or restrict the consumption of fattening foods to prevent obesity; regulate and fix the daily hour for retiring and waking up; or otherwise regiment the lives of individuals by other regulations. I do not believe that people of Hawaii are ready to forfeit their individual liberty to a point where legislative discretion is to be the only practical bar to the determination of what one may or may not do under the doctrine of “best interest” of the individual.

I recognize that that intent of the law is beneficent; however, that should not be the determinative factor as to its constitutionality. As stated by Justice Louis Brandeis in his dissent in Olmstead v. United States, 277 U.S. 438, 478-79 (1928):

The makers of our Constitution * * * 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 comprehensive of rights and the right most valued by civilized man. * * *

Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.

Therefore, I cannot agree that the protection of an individual from himself is within the legitimate exercise of the police power; otherwise, there would be no restriction or limitation to this power, and the State could regulate an individual’s life, his way of living, and even his way of thinking. The statute is not concerned with the preservation of public safety, health, order, morals, or welfare; and though the headgear requirement may be beneficent, nevertheless, it is unconstitutional because it attempts to infringe upon and stifle the fundamental personal right of liberty, under which each individual may act as he sees fit to preserve his own safety if he does not harm others in doing so.

The fact that the general public may consider it foolhardy to ride a motorcycle without a safety helmet is alone insufficient basis or justification for defining the non-use of a helmet a criminal offense. I believe that our State Constitution affords one the privilege of making a fool of himself if he so desires, so long as his action does not bring significant harm to the general public.

I would, therefore, hold that HRS § 286-81 (1) (A), the provision requiring the wearing of a helmet, is not a reasonable exercise of the State’s police power and violates Art. I, Sec. 2 of the Hawaii State Constitution, and I would overrule State v. Lee, 51 Haw. 516, 465 P.2d 573 (1970).

1 HRS § 286-81 (1) provides in pertinent part:

§ 286-81 Motorcycle, motor scooter, etc.; protective devices. No person shall:

(1) Operate a motorcycle or motor scooter on any highway in the State unless he and any passenger he carries on the motorcycle or motor scooter wears (A) a safety helmet securely fastened with a chin strap; (B) safety glasses, goggles, or a face shield, in the case of a motorcycle or motor scooter that is not equipped with windscreens or windshields; and (C) any other protective devices required by rules and regulations adopted by the state highway safety coordinator. For the purposes of meeting the requirements of this paragraph, a required device must meet the specifications and requirements established by rules and regulations adopted by the state highway safety coordinator.

2 The defendant here questions the beneficent effect of the law and contends that more deaths in motorcycle mishaps are caused by the wearing of headgear. However, I reiterate that the wisdom or lack of wisdom in the enactment of the law is not for this court to decide.

3 Article I, Sec. 2 of our State Constitution provides:

All persons are free by nature and are equal in their inherent and inalienable rights. Among these rights are the enjoyment of life, liberty and the pursuit of happiness, and the acquiring and possessing of property. These rights cannot endure unless the people recognize their corresponding obligations and responsibilities.

4 Hart, Law, Liberty and Morality, pp. 32-33, 1963 (reprinted 1965).