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State v. Pacquing

Supreme Court of Hawaii

December 9, 2016

STATE OF HAWAI'I, Respondent/Plaintiff-Appellant/Cross-Appellee,
v.
CHESTER PACQUING, Petitioner/Defendant-Appellee/Cross-Appellant.

         APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CAAP-14-0001205; CR. NO. 08-1-0556)

          Craig W. Jerome for petitioner

          Brian R. Vincent For respondent

          RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND POLLACK, JJ., AND CIRCUIT JUDGE NISHIMURA, IN PLACE OF WILSON, J., RECUSED

          OPINION

          POLLACK, J.

         I. INTRODUCTION

         The 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)-[1] 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.

         We hold 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.

         II. BACKGROUND

         On 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.

         Thereafter, 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 name.

         After 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.

         On 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.

         On April 14, 2008, Pacquing was charged by complaint with one count of UPCPI, in violation of HRS § 708-839.55.[2] 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.

         Pacquing 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.[3] 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) .

         Pacquing 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.

         On 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 dismissal motions.

         After conducting hearings on the dismissal motions, the circuit court dismissed the case on the ground that the complaint is fatally defective (Order Dismissing Complaint).[4]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.

         As to 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).

         The 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.[5] On the same day, Pacquing filed a notice of cross-appeal challenging the Order Invalidating the UPCPI Statutes.[6] Thereafter, Pacquing filed an application for transfer, which this court granted.

         III. STANDARDS OF REVIEW

         "The 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)).

         Whether 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).

         IV. DISCUSSION

         In its 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.[7]

         A. Sufficiency of the Charge and Due Process

         The 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.[8] Oral Argument at 23:40-24:22, State v. Pacquing, SCAP-14-0001205, http://oaoa.hawaii.gov/jud/oa/16/SCOA_021816_14_ 12 05.mp 3.

         We 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.[9] 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 statutory definition.

         Hence, 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).[10]

         B. Overbreadth

         The 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."

         "Overbreadth 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)).

         Pacquing 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.

         The 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.

         1. Scope of ...


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