APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT. CIV. NO. 13-1-1331.
John Doe, petitioner, Pro se.
Marissa Luning, for respondent.
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
Sabrina S. McKenna,
Pro se Petitioner/Appellant-Appellant John Doe (" Doe" ) timely applied for writ of certiorari (" Application" ) on March 30, 2015 from a March 25, 2015 Judgment entered by the Intermediate Court of Appeals (" ICA" ) pursuant to its February 23, 2015 Summary Disposition Order (" SDO" ). The ICA affirmed the Circuit Court of the First Circuit's [135 Hawai'i 391] (" circuit court['s]" ) dismissal of Doe's agency appeal based on a lack of jurisdiction, holding that the circuit court's decision was not clearly erroneous.
At issue in Doe's Application is whether communication between Respondent/Appellee-Appellee Attorney General and Doe consists of an administrative decision in response to a petition, and whether that decision is appealable to the circuit court.
A. Factual Background
As a result of pleading guilty in 2011 to two counts of a gross misdemeanor under Washington law, " Communication with minor for immoral purposes," Wash. Rev. Code Ann. § 9.68A.090 (West 2010), Doe has been a registered sex offender in Washington, and must continue to be registered until 2021. See Wash. Rev. Code Ann. § 9A.44.140(3) (West 2009, Supp. 2015). A gross misdemeanor is a serious misdemeanor though not a felony. Black's Law Dictionary 1150 (10th ed. 2014). As he hoped to vacation in Hawai'i with his family, on May 23, 2012, Doe sent an e-mail to the Hawai'i Criminal Justice Data Center (" HCJDC" ), inquiring as to (1) Hawaii's registration requirements, and (2) whether and how he could petition the attorney general for an exemption from those requirements. HCJDC is " an agency of the Department of the Attorney General in the State of Hawai'i," which " administers the State's sex offender registration system." Hawai'i Criminal Justice Data Center, Hawaii.gov, http://www.ag.hawaii.gov/hcjdc (last visited June 16, 2015); Department of the Attorney General, Hawaii.gov, http://ag.hawaii.gov/about-us/overview/ (last visited June 16, 2015).
On June 4, 2012, HCJDC replied to Doe's e-mail, generally paraphrasing registration requirements under the Hawai'i Revised Statutes (" HRS" ) -- that all sex offenders convicted of " covered offenses" pursuant to HRS § 846E-1 (Supp. 2012), " who remain, or expect to remain, in Hawaii for more than ten days, or for an aggregate period exceeding thirty days in one calendar year" shall register. HCJDC added that certain covered offenders who " establish or maintain a residence in Hawaii . . . may petition the State Attorney General for termination of registration requirements," but that " [c]urrently, there is no form available."
Approximately ten months after HCJDC e-mailed its reply, Doe wrote to then Attorney General David Louie (" Attorney General" ) by letter dated March 24, 2013. Doe stated that his purpose was to " petition termination of sex offender registration requirements per Hawaii statute Section 846E-2(b)"  as he was " [p]resently . . . not a resident [135 Hawai'i 392] of Hawaii, . . . but [he and his family ] [we]re making plans for an extended visit to the islands and likely to exceed the 10 day grace period . . . ." With his letter, Doe included several State of Washington court documents related to his conviction.
Doe argued that he should be relieved from sex offender registration requirements because " Hawaii has no comparable criminal sex offense to [his] misdemeanor violation . . . , and neither the elements of the conviction nor the conduct pled to is comparable to a Hawaii criminal sex offense." Doe sought a " formal determination on this matter," and provided notice that " if unsatisfied with [the Attorney General's] determination, [he] may appeal [the] decision pursuant to Chapter 91."
HCJDC replied to Doe on behalf of the Attorney General by letter dated April 10, 2013:
In regards to whether your Washington State conviction of Communication with a Minor for Immoral Purposes is a covered offense requiring registration in Hawaii, Chapter 846E-2, Hawaii Revised Statutes (HRS) requires you to register in this state before any determination can be made. . . .
As such, you will be required to register in Hawaii should you remain in this state for more than ten days or for an aggregate period exceeding thirty days in one calendar year. You must register . . . no later than three working days after your arrival in this state. . . .
On May 6, 2013, Doe filed a " Notice of Appeal to the Circuit Court" (" Notice" ), with respect to " the decision of Attorney General written on April 10, 2013, denying request for declaratory review whether a foreign conviction in violation of Washington State RCW 9.68A.090 was a 'covered offense' per 846E-1." In the Notice, Doe cited to " Chapter 846ER-2(b) [sic], Chapter 91-8 and Chapter 91.14 [sic], Hawai'i Revised Statutes, and Rule 72 of the Hawai'i Rules of Civil Procedure" in support.
Upon receiving the Notice, HCJDC issued a letter dated May 16, 2013, the purpose of which was to " modify" its letter dated April 10, 2013. In the May 16 letter, HCJDC (1) characterized Doe's letter to the Attorney General as seeking " termination of sex offender registration requirements pursuant to Hawaii Revised Statutes (HRS) section 846E-2(b)," (2) quoted HRS § 846E-2(b), and (3) concluded:
[B]ecause you were convicted and required to register in the State of Washington, under the above-referenced statute, if you reside in Hawaii for more than ten days or for an aggregate period exceeding thirty days in one calendar year, you are required to register. Registration is a prerequisite to your filing of a petition for termination of registration requirement [sic].
B. Circuit Court Proceedings
The parties filed briefs on the appeal, which were received and considered by the circuit court. Oral argument was held on September 13, 2013. Doe appeared pro se.
[135 Hawai'i 393] Although Doe broadly stated in his opening brief that " [t]he purpose for the petition is to provide the Appellant with assurance of his legal standing and allow for planning regarding work, travel, and residency," and more generally argued that he " should not be required to register as a sex offender while present in Hawaii," at no time during the argument at circuit court was there a change to Doe's intended travels to Hawai'i. Doe never stated that he would be residing in Hawai'i. Instead, as previously noted, Doe's May 23, 2012 e-mail indicated he " would like to continue vacationing periodically in Hawaii," and his subsequent March 24, 2013 letter to the Attorney General noted he was " making plans for an extended visit to the islands." Nevertheless, at circuit court, the parties focused their arguments on HRS § 846E-2(b), which applies only to those offenders who " establish or maintain a residence in this State." HRS § 846E-2(b). The circuit court also concentrated on subsection (b) when clarifying the law and Doe's position:
Now, when I read the registration requirement, specifically HRS 846E-2, that pertains to registration requirements, it speaks to that a person shall register without regard to whether the person otherwise meets the criteria for registration as a covered offender. So what I'm hearing from you [Doe] is that there is a dispute on your part as to whether or not it would be a covered -- whether or not you are a covered offender, No. 1, on the merits of the case. But without going into the merits as to whether or not it pertains to you, nevertheless shall register in the manner provided in this section until the person successfully petitions the attorney general for termination.
So we're looking at a particular process. It sounds as if you have to first register and then petition for termination and then the -- there's a determination as to whether or not it should be terminated in terms of looking -- hearing the merits of your argument.
The circuit court concluded that because Doe did not follow the designated process, his communications with HCJDC " d[id] not . . . present a contested proceeding" that was appealable under HRS § 91-14. On this basis, the circuit court dismissed the case for lack of subject matter jurisdiction under HRS Chapter 91.
C. Appeal to the ICA
On appeal to the ICA, Doe asserted:
Appellant researched the registration requirements in Hawaii and believes he does not meet the requirements as a " covered offender" and therefore should not be subjected to the registration requirements if he travels to Hawaii for business or personal reasons, and requested such a determination by the Attorney General in a letter.
Doe asserted the following points of error on appeal:
1) that the communication between the Appellant and Attorney General did not constitute a contested case, and
2) that Appellant is first required to register as a sexual offender before he was authorized to petition the Attorney General as he did.
In response, the Attorney General argued the circuit court appropriately dismissed Doe's Notice because (1) the written communications between Doe and HCJDC did not constitute a contested case, (2) Doe's letter was not a petition for termination, and (3) the letter did not amount to a petition for a declaratory ruling pursuant to HRS § 91-8 as Doe did not cite to that statute, but instead cited only to HRS § 846E-2(b). The Attorney General went on to add:
To be sure, the Attorney General lacks the statutory authority to deem someone " not a covered offender" prior to registration as [Doe] requests. . . .
. . . .
[Nevertheless], it reasonably appears that [Doe]'s [Washington state] conviction for violating RCW § 9.68A.090 would constitute a " sexual offense" under HRS § 846E-1 . . . . However, as [Doe] has not yet registered here and verified his identity, [135 Hawai'i 394]
[HCJDC] has yet to make that determination.
(emphasis in original).
The ICA concluded that " [Doe]'s correspondence with [HCJDC] did not constitute an appealable contested case hearing" because (1) HCJDC's correspondence with Doe was " not required by law," and (2) " [HCJDC]'s responses were merely recitations of what registration procedures would apply, if [Doe] were to visit Hawai'i." Accordingly, the ICA affirmed the circuit court's: " (1) 'Notice of Entry of Final Judgement,' filed October 17, 2013; (2) 'Final Judgment,' filed October 17, 2013; and (3) 'Order ...