STATE OF HAWAI'I, Respondent/Plaintiff-Appellant/Cross-Appellee,
CHESTER PACQUING, Petitioner/Defendant-Appellee/Cross-Appellant.
FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CAAP-14-0001205;
CR. NO. 08-1-0556)
W. Jerome for petitioner
R. Vincent For respondent
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND POLLACK, JJ., AND
CIRCUIT JUDGE NISHIMURA, IN PLACE OF WILSON, J., RECUSED
appeal and cross-appeal in this case primarily involve the
constitutionality of the statutes criminalizing the
unauthorized possession of confidential personal information
(UPCPI). Hawaii Revised Statutes (HRS) §§ 708-800,
708-839.55 (Supp. 2006)- Three issues are presented: (1) whether
the complaint in this case charging the UPCPI offense is
legally insufficient for not being readily comprehensible to
persons of common understanding, in violation of article I,
section 14 of the Hawai'i Constitution and the Sixth
Amendment to the United States Constitution; (2) whether the
UPCPI statutes are unconstitutionally overbroad; and (3)
whether the UPCPI statutes are unconstitutionally vague.
that (1) the complaint is legally insufficient and contrary
to constitutional due process rights, (2) the UPCPI statutes
are not unconstitutionally overbroad, and (3) portions of the
UPCPI statutes are unconstitutionally vague, but they are
severable from the constitutional parts of the statutes.
March 23, 2008, at about 11:00 p.m., Officer Barry Danielson
of the Honolulu Police Department (HPD), assisted by Officer
Daniel Lum, initiated a traffic stop of a black Acura Integra
with an expired tax emblem. Chester Pacquing, the driver of
the black Acura, was asked, but failed, to produce his
driver's license, registration, and insurance papers.
Pacquing then identified himself as the complainant and
provided the complainant's residential address and date
of birth. When the officers called in the complainant's
name, residential address, and date of birth to HPD dispatch,
the physical description of the complainant provided by HPD
dispatch matched that of Pacquing.
Officer Lum issued two citations to Pacquing in the
complainant's name: a criminal citation for the offense
of Driving Without Insurance and a traffic infraction for
Delinquent Vehicle Tax and Fraudulent Safety Check. Officer
Lum indicated on the citations the complainant's
Hawai'i driver's license number and the last four
digits of the complainant's social security number, and
Pacquing signed the citations with the complainant's
Pacquing was allowed to leave, Officer Lum discovered that he
did not give Pacquing a copy of one of the traffic citations.
Officer Lum went to the complainant's residential address
to deliver the citation, and when the complainant did not
answer, Officer Lum left the citation in the
complainant's mailbox. The complainant later discovered
the citation in his mailbox, and believing that the citation
was mistakenly issued in his name, he took it to the Kalihi
Police Station. The complainant explained that he had not
been stopped by the police at the date and time indicated on
the citation and that he did not own or operate a black Acura
Integra. A police report was initiated, and Officer Lum was
informed of the complainant's statement.
April 7, 2008, Officer Danielson stopped the same black Acura
Integra, with Officer Lum assisting. Pacquing again failed to
provide picture identification. Officer Lum detained
Pacquing, the complainant was brought to the scene, and the
complainant identified Pacquing as his former neighbor.
Pacquing thereafter admitted his true identity and explained
that he used the complainant's name and personal
information because there were outstanding warrants issued
against him, and he was scared of getting arrested.
April 14, 2008, Pacquing was charged by complaint with one
count of UPCPI, in violation of HRS §
708-839.55. The complaint stated as follows:
On or about the 23rd day of March, 2008, to and
including the 7th day of April, 2008, in the City
and County of Honolulu, State of Hawaii, CHESTER PACQUING did
intentionally or knowingly possess, without authorization,
any confidential personal information of [the complainant] in
any form, including but not limited to mail, physical
documents, identification cards, or information stored in
digital form, thereby committing the offense of Unauthorized
Possession of Confidential Personal Information, in violation
of Section 708-839.55 of the Hawaii Revised Statutes.
moved to dismiss the complaint on the basis of insufficient
evidence and on the basis that it was a de minimis violation
of the UPCPI statutes. The circuit court granted the motion
in part, agreeing with Pacquing that his actions constituted
a de minimis violation of the UPCPI statutes. The State
appealed from the circuit court's order to the
Intermediate Court of Appeals (ICA), which, in a memorandum
opinion, vacated the order and remanded the case for further
proceedings after concluding that Pacquing had failed to
"place all the relevant attendant circumstances before
the trial court." State v. Pacquing, No. 29703
(App. Jan. 25, 2012) (mem.), aff'd on other
grounds, 129 Hawai'i 172, 297 P.3d 188 (2013) .
applied for a writ of certiorari to this court, which, in a
published opinion filed on March 22, 2013, affirmed the
ICA's judgment on other grounds and remanded the case to
the circuit court. State v. Pacquing, 129
Hawai'i 172, 297 P.3d 188 (2013). This court determined
that the circuit court erred in concluding that the complaint
should be dismissed as a de minimis statutory violation and
that the ICA erred in allowing further proceedings on the de
minimis motion. Id. at 183-87, 297 P.3d at 199-203.
remand to the circuit court, Pacquing moved to dismiss the
complaint on the grounds that the UPCPI statutes are
unconstitutionally vague and overbroad under the Due Process
Clauses of the federal and state constitutions. On the same
day, Pacquing filed a separate dismissal motion, alleging
that the complaint failed to provide him fair notice of the
nature and cause of the accusation. The State opposed both
conducting hearings on the dismissal motions, the circuit
court dismissed the case on the ground that the complaint is
fatally defective (Order Dismissing Complaint).The circuit court
reasoned that the statutory term "confidential personal
information" is not readily comprehensible to persons of
common understanding and that the State's failure to
define that phrase in the complaint denied Pacquing of his
right to be fully informed of the nature and cause of the
accusation against him.
the constitutional challenges to the UPCPI statutes, the
circuit court concluded that the statutes are not void for
vagueness because they are sufficiently specific to give a
person of ordinary intelligence a reasonable opportunity to
know what conduct is prohibited and provide explicit
standards to avoid arbitrary and discriminatory enforcement.
However, the circuit court found that the UPCPI statutes are
overbroad because they impact the fundamental rights of
expression and of the press as protected by the First
Amendment to the U.S. Constitution and by article I, section
4 of the Hawai'i Constitution. The circuit court reasoned
that the State's significant public interest in
preventing identity theft and the misuse of confidential
personal information does not justify the UPCPI statutes'
potentially sweeping restriction on the exercise of the
freedoms of speech and of the press. Thus, the circuit court
dismissed the complaint with prejudice on overbreadth grounds
(Order Invalidating the UPCPI Statutes).
State moved for reconsideration of each of the two orders,
and the circuit court orally denied the motions. Thereafter,
the State filed a notice of appeal to the ICA, appealing from
the circuit court's Order Dismissing Complaint, Order
Invalidating the UPCPI Statutes, and the oral decision
denying reconsideration. On the same day, Pacquing filed a
notice of cross-appeal challenging the Order Invalidating the
UPCPI Statutes. Thereafter, Pacquing filed an application
for transfer, which this court granted.
STANDARDS OF REVIEW
constitutionality of a statute is a question of law which is
reviewable under the right/wrong standard." State v.
Alangcas, 134 Hawai'i 515, 524, 345 P.3d 181, 190
(2015) (quoting State v. Gaylord, 78 Hawai'i
127, 137, 890 P.2d 1167, 1177 (1995)). It is well established
that "the standard for demonstrating that a statute is
contrary to our constitution remains high: 'Every
enactment of the Hawai'i Legislature is presumptively
constitutional, and the party challenging a statute has the
burden of showing the alleged unconstitutionality beyond a
reasonable doubt.'" Id. at 531, 345 P.3d at
197 (quoting State v. Bui, 104 Hawai'i 462, 466,
92 P.3d 471, 475 (2004)).
a charge sufficiently sets forth all the elements of the
offense is also a question of law reviewed on appeal under
the right/wrong standard. State v. Wheeler, 121
Hawai'i 383, 390, 219 P.3d 1170, 1177 (2009).
appeal, the State maintains that the circuit court erred in
concluding (1) that the term "confidential personal
information" is not readily comprehensible to persons of
common understanding; (2) that the defect in the complaint
deprived the circuit court of subject-matter jurisdiction;
and (3) that the UPCPI statutes are unconstitutionally
overbroad. In his cross-appeal, Pacquing asserts that the
circuit court erred in concluding that the UPCPI statutes are
not unconstitutionally vague.
Sufficiency of the Charge and Due Process
State contends in its appellate briefs that the complaint
against Pacquing is readily comprehensible to persons of
common understanding and that the circuit court erred in
concluding that the complaint did not provide Pacquing with
fair notice of the accusations against him in violation of
article I, section 14 of the Hawai'i Constitution and the
Sixth Amendment to the U.S. Constitution. However, the State
at oral argument conceded that the complaint is defective
because it did not include the statutory definition of
"confidential personal information" and that,
therefore, the complaint did not fairly apprise persons of
common understanding of what they must defend
against. Oral Argument at 23:40-24:22, State v.
http://oaoa.hawaii.gov/jud/oa/16/SCOA_021816_14_ 12 05.mp 3.
agree with the State's concession. "Article 1,
section 14 of the Hawai'i Constitution and the Sixth
Amendment to the United States Constitution require that Mi]n
all criminal prosecutions, the accused shall enjoy the right
. . . to be informed of the nature and cause of the
accusation[.]'" State v. Wells, 78
Hawai'i 373, 379, 894 P.2d 70, 76 (1995) (alterations in
original). Generally, "[w]here the statute sets forth
with reasonable clarity all essential elements of the crime
intended to be punished, and fully defines the offense in
unmistakable terms readily comprehensible to persons of
common understanding, a charge drawn in the language of the
statute is sufficient." State v. Wheeler, 121
Hawai'i 383, 393, 219 P.3d 1170, 1180 (2009) (alteration
in original) (quoting State v. Jendrusch, 58 Haw.
279, 282, 567 P.2d 1242, 1245 (1977)). Here, because the
statutory definition of "confidential personal
information" "does not comport with its commonly
understood definition, " it is "neither
'unmistakable' nor 'readily comprehensible to
persons of common understanding.'" Wheeler,
121 Hawai'i at 394, 219 P.3d at 1181 (quoting State
v. Merino, 81 Hawai'i 198, 214, 915 P.2d 672, 688
(1996)). A person of ordinary intelligence would reasonably
construe the phrase "confidential personal
information" as secret or private knowledge belonging or
relating to a particular person or designed for use by that
person. On the other hand, the statutory
definition of "confidential personal information"
provides as follows:
information in which an individual has a significant privacy
interest, including but not limited to a driver's license
number, a social security number, an identifying number of a
depository account, a bank account number, a password or
other information that is used for accessing information, or
any other name, number, or code that is used, alone or in
conjunction with other information, to confirm the identity
of a person.
HRS § 708-800 (Supp. 2006). Thus, under the statute,
only "information in which an individual has a
significant privacy interest, " including and as
exemplified by the list provided in HRS § 708-800,
qualifies as "confidential personal information"
for the purposes of the UPCPI offense. As such, the common
signification of "confidential personal
information" does not convey the extent or limits of the
simply stating the phrase "confidential personal
information" in the complaint against Pacquing did not
sufficiently apprise him "of what he . . . must be
prepared to meet." Wells, 78 Hawai'i at
379-80, 894 P.2d at 76-77 (quoting State v. Israel,
78 Hawai'i 66, 69, 890 P.2d 303, 306 (1995)). The State
should have included in the charge the statutory definition
of "confidential personal information" under HRS
§ 708-800 or at least specified in the charge the items
of information that allegedly were unlawfully possessed.
Accordingly, the circuit court did not err in concluding that
the term "confidential personal information" is not
readily comprehensible to persons of common understanding and
that, therefore, the complaint is legally insufficient under
article I, section 14 of the Hawai'i Constitution and the
Sixth Amendment to the U.S. Constitution. Because the
complaint against Pacquing is legally insufficient, it is
dismissed without prejudice. See Wheeler, 121
Hawai'i at 386, 219 P.3d at 1173 (affirming the ICA's
dismissal without prejudice of an insufficient oral charge
alleging the offense of Operating a Vehicle Under the
Influence of an Intoxicant).
State challenges the circuit court's conclusion that the
UPCPI statutes are overbroad because they impact the
fundamental rights of expression and the press as guaranteed
by the First Amendment to the U.S. Constitution and by
article I, section 4 of the Hawai'i Constitution.
According to the State, the possibility that the UPCPI
statutes may cause a chilling effect on the freedom of speech
and of the press does not render the UPCPI statutes overbroad
because their "legitimate reach . . . dwarf any
possible impermissible applications."
analysis addresses laws that, if enforced, would allow the
prosecution of constitutionally-protected conduct."
State v. Alangcas, 134 Hawai'i 515, 527, 345
P.3d 181, 193 (2015) (citing Andrew E. Goldsmith, The
Void-for-Vagueness Doctrine in the Supreme Court,
Revisited, 30 Am. J. Crim. L. 279, 284 n.39 (2003)). An
overbreadth challenge is typically available only to
individuals who "assert that [their] constitutionally
protected conduct is being prosecuted by the State."
Id. In instances where it is contended that the
challenged statute affects constitutionally protected freedom
of expression or "reaches a substantial amount of
constitutionally protected conduct, " then an individual
may initiate a facial challenge to the statute as overbroad
on these grounds. Id. at 528, 345 P.3d at 194
(quoting Vill. of Hoffman Estates v. Flipside, Hoffman
Estates, Inc., 455 U.S. 489, 494 (1982)).
does not argue that the UPCPI statutes are punishing him for
conduct that is constitutionally protected. He contends only
that "[b]ecause the creation, possession, and
dissemination of information is speech for First Amendment
purposes, HRS § 708-839.55 impacts First Amendment
rights of expression, " and he "may challenge the
statute on the grounds that it may be unconstitutionally
applied in circumstances that are not presented in the
instant case." The essence of Pacquing's argument is
that the way in which the UPCPI statutes are written
"would effectively function as a prior restraint on the
press and the public to prevent them from ever publishing or
obtaining any confidential personal information without the
authorization of the individual to whom that information
refers." Thus, Pacquing's contention is a facial
challenge to the UPCPI statutes as overbroad.
starting point for overbreadth analysis is the determination,
through statutory construction, of the meaning and scope of
the challenged statute in order to ascertain "whether
the enactment reaches a substantial amount of
constitutionally protected conduct." Alangcas,
134 Hawai'i at 525, 345 P.3d at 191 (quoting State v.
Beltran, 116 Hawai'i 146, 152, 172 P.3d 458, 464
(2007)); see United States v. Williams, 553 U.S.
285, 293 (2008) ("[I]t is impossible to determine
whether a statute reaches too far without first knowing what
the statute covers."). This threshold inquiry focuses on
an evaluation of "the ambiguous as well as the
unambiguous scope of the enactment." Alangcas,
134 Hawai'i at 525, 345 P.3d at 191 (emphasis omitted)
(quoting Vill. of Hoffman Estates, 455 U.S. at 494
n.6). If the court concludes that the law does not reach a
substantial amount of constitutionally protected conduct,
then the overbreadth challenge must fail. Id.
(quoting Vill. of Hoffman Estates, 455 U.S. at 494).
When confronted by "a provision of broad or apparent
unrestricted scope, courts will strive to focus the scope of
the provision to a narrow and more restricted construction,
" id. at 524-25, 345 P.3d at 190-91 (quoting
State v. Gaylord, 78 Hawai'i 127, 138, 890 P.2d
1167, 1178 (1995)), in order "to preserve its
constitutionality, " id.
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