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Doe v. Connors

Supreme Court of Hawaii

December 13, 2019

JOHN DOE, Petitioner/Appellant-Appellant,
v.
ATTORNEY GENERAL, CLARE E. CONNORS, Respondent/Appellee-Appellee.

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS CAAP-16-0000351; CIV. NO. 15-1-2158

          RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

          OPINION

          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 Hawai'i before visiting Hawai'i with his family for more than ten days. Hawai'i Revised Statutes ("HRS") § 846E-2(a) (2014) provides that "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." The Department of the Attorney General ("AG") issued an October 15, 2015 ruling[1] that Doe was required to register in Hawai'i 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 Hawai'i 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 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');">102 Haw. 383');">102 Haw. 383');">102 Haw. 383 [sic], 102 Hawai'i 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-1?

         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.

         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 family[2] [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 Hawai'i. With his letter, Doe included several State of Washington court documents related to his conviction, and 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 Hawai'i 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 court[4] "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 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 Hawai'i would be required to register," meaning that "the elements of the out-of-state offense must include all the elements of the Hawai'i statute." Doe pointed out that the letter "failed to state what Hawai'i criminal offense for which [Doe]'s out-of-state conviction was equivalent to, or make an element comparison to a Hawai'i criminal offense demonstrating the Washington offense was equivalent to a Hawai'i 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 Hawai'i 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 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 Hawai'i, it . . . punishes the Appellant for conduct that, if committed in Hawai'i, would not be a crime." Further, Doe argued that although "criminal sexual conduct toward a minor" and "solicitation of a minor ... to engage in sexual conduct" may be elements of certain Hawai'i 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 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 Hawai'i 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 ...


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