Doe v. Attorney General. ( 2019 )

*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
13-DEC-2019
08:05 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---oOo---
________________________________________________________________
JOHN DOE, Petitioner/Appellant-Appellant,
vs.
ATTORNEY GENERAL, CLARE E. CONNORS,
Respondent/Appellee-Appellee.
________________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CIV. NO. 15-1-2158)
DECEMBER 13, 2019
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
This is the second appeal arising out of a 2013 request for
a declaratory ruling by a pro se litigant, a registered sex
offender in the State of Washington, as to whether he is
required to register as a sex offender in Hawaiʻi before visiting
Hawaiʻi with his family for more than ten days. Hawaiʻi Revised
Statutes (“HRS”) § 846E-2(a) (2014) provides that “registration
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
under this subsection is required whenever the covered offender,
whether or not a resident of this State, remains in this State
for more than ten days or for an aggregate period exceeding
thirty days in one calendar year.” The Department of the
Attorney General (“AG”) issued an October 15, 2015 ruling1 that
Doe was required to register in Hawaiʻi because his out-of-state
conviction of two counts of “Communication with minor for
immoral purposes,” Wash. Rev. Code Ann. (“RCW”) § 9.68A.090
(West 2010) (“the Washington offense”), a gross misdemeanour
under Washington law, qualifies as a sexual offense under Hawaiʻi
law.
In its May 20, 2019 summary disposition order (“SDO”), the
Intermediate Court of Appeals (“ICA”) affirmed the Circuit Court
of the First Circuit’s (“circuit court[‘s]”) April 7, 2016 final
1
In Doe v. Attorney General, 135 Hawaiʻi 390, 351 P.3d 1156 (2015) (“Doe
I”), we remanded the case to the AG, and the AG subsequently issued its
October 15, 2015 ruling, which is the subject of this appeal.
In Doe I, Doe appealed the Circuit Court of the First Circuit’s
(“circuit court[’s]”) dismissal for lack of jurisdiction of his appeal of the
AG’s initial response to his inquiry regarding sex offender registration
requirements. That response stated Doe would be required to register as a
sex offender in Hawaiʻi before the AG could determine whether Doe’s offense is
a covered offense under Hawaiʻi law, thereby requiring him to register as a
sex offender. We concluded that the circuit court had jurisdiction to hear
Doe’s appeal, and that Hawaiʻi’s statutory scheme governing sex offender
registration did not require an individual to “register” before the AG could
determine whether registration was actually required under HRS § 846E-2(a).
See 135 Hawaiʻi at 404, 351 P.3d at 1170 (“[T]he sex offender registration
scheme relies heavily on self-reporting. Requiring Group 2 offenders [i.e.,
offenders who do not establish or maintain a residence in Hawaiʻi but who wish
to visit Hawaiʻi for more than ten days or for an aggregate period greater
than thirty days in a calendar year] to register before they can determine
whether an out-of-state offense is a ‘covered offense’ in Hawaiʻi effectively
deters voluntary self-reporting.” (footnote omitted)).
2
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
judgment, which was entered pursuant to the April 6, 2016 “Order
Dismissing Notice of Appeal to Circuit Court Filed November 10,
2015” of Doe’s appeal from the AG’s ruling. Doe’s application
for a writ of certiorari (“Application”) presents the following
questions:
1. Was the ICA’s ruling in conflict with this Court’s
ruling in State v. Chun, 102 Haw. 383 [sic], 102 Hawaiʻi
383, 76 P.3d 935, going past the elements of the offense in
determining that [Doe’s] conviction was a sex offense in
Hawaii?
2. Was the ICA’s broad interpretation of “solicitation”
and equating it to the element of [Doe’s] foreign
conviction of “communicate” (as used in RCW [§] 9.68A.090)
in error?
3. Must an out-of-state conviction be an actual offense in
the State of Hawaii before triggering a requirement to
register in the state of Hawaii? Does legislative intent
and a plain reading of HRS [§] 846E-2(b) require the out-
of-state conviction to be an actual offense in this state
before triggering a requirement to register?
4. Must the review of an out-of-state offense trigger a
requirement to register in Hawaii be narrowly interpreted
under the rule of lenity, as are all criminal statutes,
given that an element of failure to register is that the
offender must be convicted of a sexual offense as
defined under HRS [§] 846E-l?
For the following reasons, the record does not support the
AG’s ruling, and the ICA erred in affirming the circuit court’s
dismissal of Doe’s agency appeal. We therefore reverse the
ICA’s July 2, 2019 judgment on appeal as well as the circuit
court’s April 7, 2016 final judgment.
3
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
II. Background
A. Factual Background
In 2011, Doe pled guilty to two counts of the gross
misdemeanor, “Communication with minor for immoral purposes,”
RCW § 9.68A.090. Doe stated the following facts in his plea
agreement: “During the period between October 1, 2009 and
October 31, 2009, on two separate occasions, I communicated with
[omitted initials and birthdate of minor], a person under 18
years of age, for an immoral purpose of a sexual nature. This
occurred in King County Washington.” Doe was sentenced to
twenty-four months of probation and due to the conviction, Doe
has been a registered sex offender in the State of Washington,
and must continue to be registered until 2021 under RCW §
9A.44.140(3) (West 2009, Supp. 2015).
As Doe was “[p]resently . . . not a resident of Hawaii,
. . . but [he and his family2] [we]re making plans for an
extended visit to the islands and likely to exceed the 10 day
grace period,” Doe wrote to then-Attorney General David Louie by
letter dated March 24, 2013 petitioning for a “formal
determination” that he not be required to register as a sex
offender in Hawaiʻi. With his letter, Doe included several State
of Washington court documents related to his conviction, and
2
Doe uses the pronoun, “we,” in his letter, but does not define it.
Based on other documents in the record, it appears “we” refers to him and his
family.
4
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
indicated that if further information was required, to please
contact him.
After this court remanded the matter to the AG following
Doe I, see supra note 1, the administrator of the Hawaiʻi
Criminal Justice Data Center (“HCJDC”) issued a letter dated
October 15, 2015 on behalf of then-Attorney General Douglas S.
Chin,3 determining that “based solely upon the attached request
and certified court documents provided to our office”:
Your conviction in the State of Washington of two counts of
“Communication with a Minor for an Immoral Purpose” is a
“sexual offense” as defined under section 846E-1, HRS,
because you committed acts that consisted of “criminal
sexual conduct toward a minor” and/or “solicitation of a
minor who is less than fourteen years old to engage in
sexual conduct.” As a person who was convicted of a
“sexual offense,” you are considered a “sex offender” and
are, therefore, a “covered offender” who is required to
register with the attorney general under section 846E-2,
HRS.
The letter also indicated: “Registration information will not be
available to the public pursuant to section 846E-3(h), HRS.”
B. Circuit Court Proceedings
On November 10, 2015, Doe filed a Notice of Appeal to the
circuit court4 “from the decision of the Attorney General dated
October 15, 2015, and received October 20, 2015, determining
that Appellant’s Washington State misdemeanor conviction in
3
Under Hawaiʻi Rules of Appellate Procedure Rule 43(c), a public officer
named in a case is automatically substituted by the officer’s successor when
the holder of the office ceases to hold office on appeal. Accordingly,
Attorney General Clare E. Connors has been substituted for former Attorney
General Douglas S. Chin.
4
The Honorable Rhonda A. Nishimura presided.
5
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
violation of RCW [§] 9.68A.090 was a ‘covered offense’ under HRS
[§] 846E-1.”
In his opening brief before the circuit court, Doe
primarily argued that “[o]nly those offenders convicted of an
out-of-state offense that would be a sexual offense in Hawaiʻi
would be required to register,” meaning that “the elements of
the out-of-state offense must include all the elements of the
Hawaiʻi statute.” Doe pointed out that the letter “failed to
state what Hawaiʻi criminal offense for which [Doe]’s out-of-
state conviction was equivalent to, or make an element
comparison to a Hawaiʻi criminal offense demonstrating the
Washington offense was equivalent to a Hawaiʻi statute.” Doe
also asserted that in any event, “solicitation” is not an
element of the Washington offense and that the Washington
offense does not address “physical contact” and “therefore the
[Washington] offense cannot categorically be considered an
offense consisting of ‘criminal sexual conduct toward a minor’
under Hawaiʻi law.” Additionally, Doe asserted that “RCW [§]
9.68A.090 does not require any specific criminal sexual
misconduct to be committed toward a minor, but broadly
criminalizes any communications of a sexual nature that could
lead to criminal sexual conduct under Washington law.” Doe also
presented case law from other states with registration laws
regarding out-of-state offenders, such as Alaska, demonstrating
6
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
an element-by-element analytical approach. Notably, Doe had
requested a similar declaratory judgment from the State of
Alaska, Department of Public Safety, and a court had found that
Doe “is not required to register as a sex offender in Alaska”
because “communicating with a minor for immoral purposes” was
not similar to “attempted sexual abuse of a minor in the second
degree” under Alaska law.
The AG argued in response that the HCJDC correctly
concluded Doe was required to register as a sex offender. It
pointed out that in State v. McNallie, 846 P.2d 1358, 1364
(Wash. 1993), RCW § 9.68A.001 “‘prohibits communication with
children for the predatory purpose of promoting their exposure
to and involvement in sexual misconduct,’” that “‘[i]mmoral
purposes’ in the Washington statute means ‘immoral purposes of a
sexual nature,’” and that therefore Doe’s “acts that resulted in
his conviction in Washington State consisted of ‘criminal sexual
conduct toward a minor’ and/or ‘solicitation of a minor who is
less than fourteen years old to engage in sexual conduct.’”
In reply, Doe reiterated his opening brief statement that
“[i]f this court were to require the Appellant to register for
an out-of-state conviction that does not rise to the level of a
crime in Hawaiʻi, it . . . punishes the Appellant for conduct
that, if committed in Hawaiʻi, would not be a crime.” Further,
Doe argued that although “criminal sexual conduct toward a
7
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
minor” and “solicitation of a minor . . . to engage in sexual
conduct” may be elements of certain Hawaiʻi criminal offenses,
“they themselves are not criminal offenses and are not
separately listed in the criminal code.”
On February 12, 2016, the same day Doe filed his reply
brief, he also filed a “Motion for Judgment on the Pleadings,”
asking that oral arguments not be scheduled. On February 17,
2016, the circuit court nevertheless set Doe’s appeal for a
hearing on March 18, 2016. The AG took no position on Doe’s
request, but did not file such notice until March 4, 2016. A
hearing was held on March 18, 2016 as scheduled, at which Doe
represented himself.
At the hearing, Doe again argued that the elements of the
respective state offenses needed to be analyzed, but the AG
disagreed. The AG explained its position:
We believe that the statutes are clear the registration
requirement under 846E-2(a), from there, you know, it takes
us clearly to the Definition section. And under the
Definition section, the sexual offenses has a list of
seven, but there is an “or” on 6, which means that any of
the seven could apply. And we strongly believe that 3(a)
and (b) both could apply to this situation. The words do
not match up exactly, you know, between our requirement and
the Washington offense, but we don’t believe it needs to be
like that.
Specifically, the AG asserted that “Communication with a Minor
for an Immoral Purpose . . . would match up with the
Solicitation to Engage in Sexual Conduct with a Minor Who is
Less Than 14 Years Old.” Doe responded that although
8
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
solicitation is a subset of communication, “you could also
communicate that’s not a solicitation.”
After hearing the arguments, the circuit court issued its
ruling, which held the AG did not err:
What the Court is guided by is by HRS Section 846E-2,
comparing that with the Washington statute 9.68A.090 and
looking at the definition of sexual offense under HRS
Section 846E. So comparing everything amongst -- with each
other, whether it’s internally or in comparison between the
two, the Court cannot say that there was an error of law by
the AG or that they violated the statute in so interpreting
and in comparing the Hawaiʻi statute with the Washington
statute to require that [Doe] needs to register.
So the Court will dismiss the appeal and affirm the
AG’s decision with respect to the declaratory ruling.
The circuit court issued its “Order Dismissing Notice of Appeal
to Circuit Court Filed November 10, 2015” on April 6, 2016.
Final judgment was entered on April 7, 2016.
B. Appeal to the ICA
Doe filed a Notice of Appeal to the ICA. After receiving
written briefs substantively similar to those submitted to the
circuit court, the ICA affirmed the circuit court’s final
judgment. See Doe v. Attorney General, CAAP-XX-XXXXXXX, at 7
(App. May 20, 2019) (SDO).
The ICA rejected Doe’s focus on the elements of a sexual
offenses in Hawaiʻi, and concluded that Doe’s Washington offense
was a “sexual offense” as defined in HRS § 846E-1, which did not
need to “match up exactly” to a Hawaiʻi Penal Code provision.
Id. As the definition of “sexual offense” consists of seven
9
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
relevant paragraphs, where the seventh refers to “[a]ny . . .
out-of-state . . . conviction for any offense that under the
laws of this State would be a sexual offense as defined in
paragraphs (1) through (6),” HRS § 846E-1, the ICA’s analysis
focused on paragraph 3(B), which defined “sexual offense” as
“[a]n act that consists of . . . [s]olicitation of a minor who
is less than fourteen years old to engage in sexual conduct.”
See Doe, SDO at 6-7. The ICA applied the dictionary definition
of “solicitation,”5 as that term is not defined in HRS Chapter
846E or the Penal Code, and was “convinced that the use of the
word . . . was meant in the more general sense,” and therefore
“agree[d] with the AG’s determination that communicating with an
5
The ICA cited to https://www.merriam-
webster.com/dictionary/solicitation for the definition of “solicitation”:
“1: the practice or act or an instance of soliciting[,] especially :
ENTREATY, IMPORTUNITY[;] 2: a moving or drawing force : INCITEMENT,
ALLUREMENT.” Doe, SDO at 4—5 n.7.
The ICA then cited to https://www.merriam-
webster.com/dictionary/solicit for the definition of “solicit”:
transitive verb
1 a : to make petition to : ENTREAT
b : to approach with a request or plea . . .
2 : to urge (something, such as one's cause) strongly
3 a : to entice or lure especially into evil
b : to proposition (someone) especially as or in
the character of a prostitute
4 : to try to obtain by usually urgent requests or
pleas . . .
intransitive verb
1 : to make solicitation : IMPORTUNE
2 of a prostitute : to offer to have sexual relations
with someone for money[.]
Doe, SDO at 5 n.7.
10
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
eleven-year-old for an immoral purpose of a sexual nature falls
within the plain language of the sexual offense definition in
HRS § 846E-1.” See id. The ICA stated it was not necessary for
it to address whether Doe’s Washington conviction was a “sexual
offense” under paragraph 3(A), “[c]riminal sexual conduct toward
a minor.” See Doe, SDO at 7 n.8.
C. Application for Writ of Certiorari
In his Application, Doe presents the following questions:
1. Was the ICA’s ruling in conflict with this Court’s
ruling in State v. Chun, 102 Haw. 383 [sic], 102 Hawaiʻi
383, 76 P.3d 935, going past the elements of the offense in
determining that [Doe’s] conviction was a sex offense in
Hawaiʻi?
2. Was the ICA’s broad interpretation of “solicitation”
and equating it to the element of [Doe’s] foreign
conviction of “communicate” (as used in RCW [§] 9.68A.090)
in error?
3. Must an out-of-state conviction be an actual offense in
the State of Hawaiʻi before triggering a requirement to
register in the state of Hawaiʻi? Does legislative intent
and a plain reading of HRS [§] 846E-2(b) require the out-
of-state conviction to be an actual offense in this state
before triggering a requirement to register?
4. Must the review of an out-of-state offense trigger a
requirement to register in Hawaiʻi be narrowly interpreted
under the rule of lenity, as are all criminal statutes,
given that an element of failure to register is that the
offender must be convicted of a sexual offense as
defined under HRS [§] 846E-l?
In sum, Doe argues: (1) an “elemental comparison” between
the Washington offense and a specific Hawaiʻi offense is required
for Doe to be considered a “sex offender,” (2) the ICA abused
its discretion when it used “solicitation” interchangeably with
“communication,” and (3) because the failure of a covered
11
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
offender to comply with Hawaiʻi’s registration scheme is a crime
pursuant to HRS § 846E-9(c) (2014), whether a person is a
“covered offender” is therefore an element of a criminal
statute, which should be construed in accordance with the rule
of lenity requiring any statutory ambiguity to be construed in
favor of the defendant, i.e., Doe.
The AG responds that, at bottom, Doe’s Washington offense
was a “sexual offense” under paragraph 3(B) of the HRS § 846E-1
definition of “sexual offense” for the reasons stated by the
ICA. As such, the AG argues, “Doe cannot sidestep the
dispositive issue and analysis described above, simply by
arguing that the specific Washington statutory sex offense for
which he was convicted has no precise Hawaiʻi analogue.”
Moreover, according to the AG, because RCW § 9.68A.090 has been
interpreted to prohibit the “communication with children for the
predatory purpose of promoting their exposure and involvement in
sexual misconduct,” the AG argues Doe, “through his
communicative actions[,] . . . effectively solicited a minor who
was less than fourteen years old to engage in sexual conduct.”
Thus, the AG argues the ICA did not err when it compared
“solicitation” with “communication.” Lastly, the AG asserts the
ICA’s SDO is not in conflict with the rule of lenity because
that interpretative “rule” applies to criminal statutes, not
civil ones, such as Hawaiʻi’s registration scheme.
12
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
III. Standards of Review
A. Administrative Agency Appeals
Ordinarily, deference will be given to decisions of
administrative agencies acting within the realm of their
expertise. The rule of judicial deference, however, does
not apply when the agency’s reading of the statute
contravenes the legislature’s manifest purpose.
Consequently, we have not hesitated to reject an incorrect
or unreasonable statutory construction advanced by the
agency entrusted with the statute’s implementation.
Coon v. City & Cty. of Honolulu, 98 Hawaiʻi 233, 245, 47 P.3d
348, 360 (2002) (citations and brackets omitted).
B. Interpretation of a Statute
“Interpretation of a statute is a question of law which
[is] review[ed] de novo.” Kikuchi v. Brown, 110 Hawaii 204,
207, 130 P.3d 1069, 1072 (App. 2006) (internal quotation marks
and citation omitted).
IV. Discussion
A. Overview of Hawaiʻi’s Sex Offender Registration Scheme as to
Out-of-State Offenders Who Wish to be Present in Hawaiʻi for
More than Ten Days or for an Aggregate Period Exceeding
Thirty Days in One Calendar Year
Persons who commit sexual offenses out-of-state and are
subject to the registration requirements of the jurisdiction in
which those crimes were committed (“out-of-state offenders”),
who also wish to be present in Hawaii for more than ten days or
for an aggregate period exceeding thirty days in one calendar
year, must register in Hawaiʻi if they are “covered offenders.”
A covered offender shall register with the attorney general
and comply with the provisions of this chapter for life or
13
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
for a shorter period of time as provided in this chapter.
Registration under this subsection is required whenever the
covered offender, whether or not a resident of this State,
remains in this State for more than ten days or for an
aggregate period exceeding thirty days in one calendar
year. A covered offender shall be eligible to petition the
court in a civil proceeding for an order that the covered
offender's registration requirements under this chapter be
terminated, as provided in section 846E-10.
HRS § 846E-2(a) (2014) (emphasis added). A “covered offender”
is a “sex offender” or an “offender against minors.”6 HRS §
846E-1. A “sex offender” is a “person who is or has been
convicted at any time . . . of a ‘sexual offense.’” Id.
Hawaiʻi’s registration scheme defines “sexual offense” as:
“Sexual offense” means an offense that is:
(1) Set forth in section 707-730(1), 707-731(1),
707-732(1), 707-733(1)(a), 707-733.6, 712-1202(1), or 712-
1203(1), but excludes conduct that is criminal only because
of the age of the victim, as provided in section 707-
730(1)(b), or section 707-732(1)(b) if the perpetrator is
under the age of eighteen;
(2) An act defined in section 707-720 if the
charging document for the offense for which there has been
a conviction alleged intent to subject the victim to a
sexual offense;
(3) An act that consists of:
(A) Criminal sexual conduct toward a minor,
including but not limited to an offense set forth in
section 707-759;
(B) Solicitation of a minor who is less than
fourteen years old to engage in sexual conduct;
(C) Use of a minor in a sexual performance;
(D) Production, distribution, or possession of
child pornography chargeable as a felony under section 707-
750, 707-751, or 707-752;
6
Because an “offender against minors” means a person who is not a “sex
offender,” this portion of the definition of “covered offender” is not at
issue in this appeal, and therefore is not further discussed.
14
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
(E) Electronic enticement of a child
chargeable under section 707-756 or 707-757 if the offense
was committed with the intent to promote or facilitate the
commission of another covered offense as defined in this
section; or
(F) Solicitation of a minor for prostitution
in violation of section 712-1209.1;
(4) A violation of privacy under section 711-1110.9;
(5) An act, as described in chapter 705, that is an
attempt, criminal solicitation, or criminal conspiracy to
commit one of the offenses designated in paragraphs (1)
through (4);
(6) A criminal offense that is comparable to or that
exceeds a sexual offense as defined in paragraphs (1)
through (5);
(7) Any federal, military, out-of-state, tribal, or
foreign conviction for any offense that under the laws of
this State would be a sexual offense as defined in
paragraphs (1) through (6).
HRS § 846E-1 (definition of “sexual offense”). Thus, whether
Doe is required to register as a sex offender in Hawaiʻi before
visiting Hawaiʻi hinges on whether the offense for which he was
convicted would be a sexual offense as defined by HRS § 846E-1.
The AG’s ruling was based on an interpretation that Doe’s
offense was a “sexual offense” under paragraphs 3 (A) and (B)
above. We therefore analyze both provisions.
B. The ICA Erred in Affirming the Circuit Court’s Decision on
the Grounds That Doe’s Offense “Would Be” a “Sexual
Offense” under Paragraph 3(B) of HRS § 846E-1’s Definition
of “Sexual Offense”
As a preliminary matter, in referring to “[a]ny . . . out-
of-state . . . conviction for any offense that under the laws of
this State would be a sexual offense,” paragraph 7 contemplates
that Hawaiʻi law is to be applied to the underlying act or acts
15
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
constituting the offense (as opposed to merely the statute
violated) to determine whether the offense “would be” a “sexual
offense” as defined in HRS § 846E-1. Additionally, as noted by
the ICA, paragraph 3 refers to an “act that consists of” (and
therefore not limited to) any enumerated acts in paragraphs 3(A)
through 3(F). See Doe, SDO at 6. Thus, the ICA correctly
interpreted Hawaiʻi’s registration scheme to require that Doe’s
offense meet the definition of “sexual offense” in HRS § 846E-1,
and that the offense need not “match up” to each of the elements
of a particular crime in the Hawaiʻi Penal Code.
The record of Doe’s offense is sparse and limited to the
following: “During the period between October 1, 2009 and
October 31, 2009, on two separate occasions, I communicated with
[omitted initials and birthdate of minor], a person under 18
years of age, for an immoral purpose of a sexual nature. This
occurred in King County Washington.” The AG argued, and the ICA
agreed, that this offense “consist[ed] of” “[s]olicitation of a
minor who is less than fourteen years old to engage in sexual
conduct,” an act enumerated in paragraph 3(B) of the definition
of “sexual offense.” Doe, SDO at 6. In this regard, the ICA
erred.
It is uncontested that the minor with whom Doe communicated
on two separate occasions was less than fourteen years old at
the time the acts were committed. What is disputed is whether
16
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Doe’s “communicat[ion] . . . for an immoral purpose of a sexual
nature” amounts to “[s]olicitation of a minor . . . to engage in
sexual conduct.”
Although Doe correctly points out that “solicitation” is a
“subset” of “communication,” and therefore not all
“communication” amounts to “solicitation,” that analysis is
incomplete because Doe’s “communication” is modified by the
prepositional phrase, “for an immoral purpose of a sexual
nature.” (Emphasis added.) Even so, nothing in the
prepositional phrase indicates that the “communicat[ion] . . .
for an immoral purpose of a sexual nature” was to “solicit” the
minor to “engage in sexual conduct.” In other words, a
“communication” for “an immoral purpose” could exist without a
“solicitation” “to engage in sexual conduct.”
In sum, although “[s]olicitation of a minor . . . to engage
in sexual conduct” may be one possible “communicat[ion] . . .
for an immoral purpose of a sexual nature,” because the record
is bare as to the substance of Doe’s communication, nothing in
the record indicates Doe’s underlying offense consisted of
solicitation of a minor to engage in sexual conduct.
Accordingly, the AG incorrectly concluded that Doe’s out-of-
state offense “would be” a “sexual offense” under paragraph
3(B), and therefore the ICA erred in affirming the circuit
court’s decision on those grounds.
17
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
C. The Record Also Does Not Demonstrate Doe’s Offense
“Would Be” a “Sexual Offense” under Paragraph 3(A) of HRS §
846E-1’s Definition of “Sexual Offense”
The ICA declined to address whether Doe’s offense “would
be” a “sexual offense” under paragraph 3(A) of HRS § 846E-1’s
definition of “sexual offense,” “[a]n act that consists of . . .
[c]riminal sexual conduct toward a minor, including but not
limited to an offense set forth in section 707-759.” See Doe,
SDO at 7 n.8. However, as this is a question of law, and as it
was appropriately raised below, we address it briefly now.
As Doe’s underlying offense does not implicate HRS § 707-
759 (2014), “Indecent electronic display to a child,”7 the
following analysis focuses on paragraph 3(A)’s reference to
“criminal sexual conduct toward a minor.” (Emphasis added.) By
7
Indecent electronic display to a child. (1) Any person
who intentionally masturbates or intentionally exposes the
genitals in a lewd or lascivious manner live over a
computer online service, internet service, or local
bulletin board service and who knows or should know or has
reason to believe that the transmission is viewed on a
computer or other electronic device by:
(a) A minor known by the person to be under the age
of eighteen years;
(b) Another person, in reckless disregard of the
risk that the other person is under the age of eighteen
years, and the other person is under the age of eighteen
years; or
(c) Another person who represents that person to be
under the age of eighteen years, is guilty of indecent
electronic display to a child.
(2) Indecent electronic display to a child is a
misdemeanor.
HRS § 707-759.
18
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
the statute’s plain meaning, the conduct must amount to a crime
under Hawaiʻi law, i.e., violate the Penal Code. See also HRS §
846E-1 (defining “crime against minors,” in part, as “a criminal
offense”). Here, the AG, in its October 15, 2015 decision, did
not identify what statute, if any, Doe would have violated by
his offense, nor did the AG identify any in its briefing before
the circuit court, ICA, or in response to Doe’s Application.
Indeed, the AG could not compare Doe’s offense to HRS § 707-759,
or for that matter, to other similar statutes such as HRS § 707-
756 (2014), “Electronic enticement of a child in the first
degree,” or HRS § 707-757 (2014), “Electronic enticement of a
child in the second degree,” because the record is bare as to
the substance and medium of Doe’s communication.
V. Conclusion
For the foregoing reasons, the record does not support the
AG’s decision, and the ICA therefore erred in affirming the
circuit court’s dismissal of Doe’s agency appeal. Accordingly,
we reverse the ICA’s July 2, 2019 judgment on appeal as well as
the circuit court’s April 7, 2016 final judgment.
John Doe, /s/ Mark E. Recktenwald
petitioner pro se
/s/ Paula A. Nakayama
Kimberly T. Guidry,
for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
19