*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
Electronically Filed
Supreme Court
SCWC-13-0005700
18-JUN-2015
09:05 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---oOo---
________________________________________________________________
JOHN DOE, Petitioner/Appellant-Appellant,
vs.
ATTORNEY GENERAL, Respondent/Appellee-Appellee.
________________________________________________________________
SCWC-13-0005700
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIV. NO. 13-1-1331)
JUNE 18, 2015
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.,
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
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 (“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.
II. Background
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),1 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
1
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.”
2
vacation in Hawaii with his family, on May 23, 2012, Doe sent an
e-mail to the Hawaii 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 Hawaii,”
which “administers the State’s sex offender registration
system.” Hawaii 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
Hawaii 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.2 HCJDC added that certain
2
HCJDC did not cite to the HRS when relaying this “duration
condition” to Doe. Indeed, it could not, as the statutory provision
reflecting this condition was not enacted until April 30, 2013. See 2013
Haw. Sess. Laws Act 64, § 5 at 116 (amending HRS § 846E-2(a) by adding:
“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.”) (“duration condition”).
(continued . . .)
3
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)”3
as he was “[p]resently . . . not a resident of Hawaii, . . . but
(. . . continued)
The only statutory minimum duration period as of June 2012 was
contained in HRS § 846E-2(g) (Supp. 2012), which concerns registration with
the chief of police, and not registration with the attorney general. See HRS
§ 846E-2(g) (Supp. 2012) (“In addition to the requirement under subsection
(a) to register with the attorney general . . . each covered offender shall
also register in person with the chief of police where the covered offender
resides or is present. . . . 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.” (emphasis added)).
3
A person who establishes or maintains a residence in this
State and who has not been designated as a covered offender
by a court of this State but who has been designated as a
covered offender . . . or any other sexual offender
designation in another state or jurisdiction and was, as a
result of such designation, subjected to registration or
community or public notification, . . . without regard to
whether the person otherwise meets the criteria for
registration as a covered offender, shall register in the
manner provided in this section . . . . A person who meets
the criteria of this subsection is subject to the
requirements and penalty provisions of section 846E-9 until
the person successfully petitions the attorney general for
termination of registration requirements . . . .
HRS § 846E-2(b) (2014).
4
[he and his family4] [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
4
Doe uses the pronoun, “we,” in his letter, but does not define
it. That it appears he refers to he and his family is based on his e-mail.
5
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 845E-
1.” In the Notice, Doe cited to “Chapter 846ER-2(b) [sic],
Chapter 91-8 and Chapter 91.14 [sic], Hawaii Revised
Statutes,[5] and Rule 72 of the Hawaii 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
5
Any interested person may petition an agency for a
declaratory order as to the applicability of any statutory
provision or of any rule or order of the agency. Each
agency shall adopt rules prescribing the form of the
petitions and the procedure for their submission,
consideration, and prompt disposition. Orders disposing of
petitions in such cases shall have the same status as other
agency orders.
HRS § 91-8 (2012).
Any person aggrieved by a final decision and order in a
contested case or by a preliminary ruling of the nature
that deferral of review pending entry of a subsequent final
decision would deprive appellant of adequate relief is
entitled to judicial review thereof . . . .
HRS § 91-14(a) (2012).
6
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].
(footnote omitted).
B. Circuit Court Proceedings
The parties filed briefs on the appeal, which were
received and considered by the circuit court.6 Oral argument was
held on September 13, 2013. Doe appeared pro se.
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 Hawaii.
Doe never stated that he would be residing in Hawaii. 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
6
Although Doe’s Reply Brief was untimely filed on August 26, 2013,
given that no objections were made by the Attorney General, the circuit court
ruled at oral argument that it would “receive [the Reply Brief] and . . .
consider [it].”
7
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:
8
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, [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
Hawaii.” Accordingly, the ICA affirmed the circuit court’s:
9
“(1) ‘Notice of Entry of Final Judgement,’ filed October 17,
2013; (2) ‘Final Judgment,’ filed October 17, 2013; and (3)
‘Order Dismissing Notice of Appeal to Circuit Court, Filed May
6, 2013,’ filed October 17, 2013.”
III. Standards of Review
A. Jurisdiction
“[T]he existence of jurisdiction is a question of law
that [is] review[ed] de novo under the right/wrong standard.”
Captain Andy’s Sailing, Inc. v. Dep’t of Land & Natural Res.,
113 Hawaii 184, 192, 150 P.3d 833, 841 (2006) (internal
quotation marks, brackets, and citation omitted).
B. Interpretation of a Statute
“‘The interpretation of a statute is a question of law
reviewable de novo.’” Ka Paakai O Kaaina v. Land Use Comm’n, 94
Hawaii 31, 41, 7 P.3d 1068, 1078 (2000) (quoting Amantiad v.
Odum, 90 Hawaii 152, 160, 977 P.2d 160, 168 (1999)).
IV. Discussion
A. Overview of Hawaii’s Sex Offender Registration Scheme
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 Hawaii, fall into one of three
categories: (1) those who remain in Hawaii for no more than ten
10
days or for no more than an aggregate period of thirty days in
one calendar year (“Group 1”); (2) those who remain in Hawaii
for more than ten days or for an aggregate period exceeding
thirty days in one calendar year (“Group 2”);7 and (3) those who
establish or maintain a residence in Hawaii (“Group 3”). These
categories are based on the following statutes:
A covered offender shall register with the attorney general
and comply with the provisions of this chapter for life or
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);
A person who establishes or maintains a residence in this
State and who has not been designated as a covered offender
by a court of this State but who has been designated as a
covered offender . . . or any other sexual offender
designation in another state or jurisdiction and was, as a
result of such designation, subjected to registration or
community or public notification . . . , without regard to
whether the person otherwise meets the criteria for
registration as a covered offender, shall register in the
manner provided in this section . . . . A person who meets
the criteria of this subsection is subject to the
requirements and penalty provisions of section 846E-9 until
the person successfully petitions the attorney general for
termination of registration requirements . . . .
HRS § 846E-2(b) (2014).
7
Because the parties do not take issue with the duration condition
(whether as codified in 2014 or as expressed in HCJDC’s June 4, 2012 e-mail,
see supra note 2) or other 2013 amendments to HRS Chapter 846E-2, we examine
Hawaii’s sex offender registration requirements as they were codified in 2014
unless otherwise noted.
11
The critical difference between these two subsections
is that subsection (b) applies only to Group 3 offenders, i.e.,
“person[s]” who are out-of-state offenders who “establish[] or
maintain[] a residence in [Hawaii].” HRS § 846E-2(b). HRS
Chapter 846E does not define “residence” nor does it refer to a
statutory definition provided elsewhere in the HRS. The 2013
amendments, however, define “permanent residence” and “temporary
residence.”
“Permanent residence” means a building, permanent
structure or unit therein, or watercraft where the covered
offender resides and intends to reside indefinitely, or at
least for the next one hundred eighty days, and which the
offender owns, rents, or occupies with the consent of the
owner.
. . . .
“Temporary residence” means a building, permanent
structure or unit therein, watercraft, emergency shelter,
or transitional housing facility where the covered offender
resides, but does not intend to reside for more than one
hundred eighty days.”
HRS § 846E-1 (2014).
The portions of these definitions that concern
“residence” turn on “where the covered offender resides.” Id.
(emphasis added). “Reside” is defined as: “[t]o dwell
permanently or continuously; to have a settled abode for a time;
to have one’s residence or domicile; specif., to be in
residence, as the incumbent of a benefice.” Webster’s New Int’l
Dictionary 2119 (2d ed. 1960). Taking these definitions into
consideration, “residence,” in the context of HRS § 846E-2(b),
12
reasonably means “a building, permanent structure or unit
therein, or watercraft where the covered offender settles to
dwell permanently or continuously.”
Notably, the foregoing is consistent with the
definition of “residence” provided in HRS § 11-13 (2009), which
is used for election purposes only: “The residence of a person
is that place in which the person’s habitation is fixed, and to
which, whenever the person is absent, the person has the
intention to return[.]” HRS § 11-13(1).
Registration requirements for out-of-state offenders
in Groups 1 and 3 are straightforward. Those in Group 1 are not
subject to Hawaii’s registration requirements, as they do not
remain in Hawaii long enough to trigger registration. See HRS
§ 846E-2(a). Those in Group 3 are plainly subject to Hawaii’s
registration requirements as they are “person[s]” who meet the
residency criterion: “A person who establishes or maintains a
residence in this State . . . who has been designated as a
covered offender, sex offender, . . . or any other sexual
offender designation in another state or jurisdiction and was,
as a result of such designation, subjected to registration
. . . , without regard to whether the person otherwise meets the
criteria for registration as a covered offender, shall register
13
in the manner provided in this section . . . .” HRS § 846E-2(b)
(emphasis added).8
Whether an out-of-state offender in Group 2 — to which
Doe ostensibly belongs9 — must register is solely dependent on
whether the out-of-state offense committed is considered a
“covered offense” under Hawaii law. This is because
registration under subsection (a) is only required of “covered
offender[s].” HRS § 846E-2(a) (“A covered offender shall
register with the attorney general and comply with the
provisions of this chapter . . . .”) (emphasis added). This
contrasts with subsection (b)’s reference to “person[s].” HRS §
846E-2(b). A “covered offender” includes a person who has been
convicted of a “sexual offense” or a “crime against minors.”
HRS § 846E-1. A “sexual offense” includes any out-of-state
offense “that under the laws of [Hawaii] would be a sexual
offense as defined in [HRS § 846E-1, paragraphs (1)–(6), under
the definition of ‘sexual offense’].” Id. A “crime against
minors” includes any out-of-state offense “that, under the laws
of [Hawaii], would be a crime against minors as designated in
8
As the record does not show Doe has established or maintained a
residence in Hawaii, and as discussed infra Parts IV.B.—G., the statutory
subsection applicable to Doe is HRS § 846E-2(a). Accordingly, although there
may be potential issues posed by the register-first-then-petition scheme set
forth in HRS § 846E-2(b), this opinion does not address them.
9
See infra Part IV.C.
14
[HRS § 846E-1, paragraphs (1)–(4), under the definition of
‘crime against minors’].” Id.
If the offense is not a “covered offense,” then the
out-of-state offender does not fall under Hawaii’s sex offender
registration scheme, and therefore the out-of-state offender
need not register. However, if the out-of-state offense is a
“covered offense,” the out-of-state offender must register. See
HRS § 846E-2(a). This inquiry is not an easy one, as
acknowledged by the Attorney General in 2013. See David M.
Louie & Lance M. Goto, Testimony of the Dep’t of the Attorney
Gen. Twenty-seventh Legislature, 2013, 2–3 (Jan. 29, 2013),
http://www.capitol.hawaii.gov/Session2013/Testimony/SB1016_TESTI
MONY_JDL_01-29-13.pdf (“AG Testimony”) (“In evaluating offenders
with convictions from other jurisdictions, it sometimes is very
difficult to determine whether or not, and how, Hawaii
registration requirements apply. Some offenses from other
jurisdictions are very different from Hawaii law.”).
B. Terminating Registration Requirements under HRS § 846E-2(b)
for a Group 3 Offender Differs from Determining Whether a Group
2 Offender’s Out-of-State Offense Is a “Covered Offense”
Although a Group 3 offender who establishes or
maintains a residence in Hawaii must register “without regard to
whether the person otherwise meets the criteria for registration
as a covered offender,” he or she may “petition[] the attorney
15
general”10 to terminate his or her registration requirements by
showing that he or she “does not meet the criteria for
registration as a covered offender under the laws of [Hawaii],”
i.e., that the out-of-state offense committed is not a “covered
offense” under Hawaii law. HRS § 846E-2(b) (emphasis added).11
In this context, the root legal issue regarding whether
registration requirements for a Group 3 offender should be
10
“‘Attorney general’ means the attorney general of the State of
Hawaii, the department of the attorney general, or an authorized
representative of the attorney general.” HRS § 846E-1.
11
HRS 846E-2(b) states in relevant part:
A person who meets the criteria of this subsection [HRS
846E-2(b)] is subject to the requirements and penalty
provisions of section 846E-9 until the person successfully
petitions the attorney general for termination of
registration requirements by:
(1) Providing an order issued by the court that
designated the person as a covered offender, sex offender,
offender against minors, repeat covered offender, sexually
violent predator, or any other sexual offender designation
in the state or jurisdiction in which the order was issued,
which states that such designation has been removed or
demonstrates to the attorney general that such designation,
if not imposed by a court, has been removed by operation of
law or court order in the state or jurisdiction in which
the designation was made, and such person does not meet the
criteria for registration as a covered offender under the
laws of this State; or
(2) Demonstrating that the out-of-state convictions
upon which the sexual offender designation was established
are not covered offenses under section 846E-1, thereby
showing that such person does not meet the criteria for
registration as a covered offender under the laws of this
State.
HRS § 846E-2(b) (emphasis added). Accordingly, termination pursuant to
either of these two bases rests on whether the out-of-state offender “does
not meet the criteria for registration as a covered offender under the laws
of this State.”
16
terminated is very similar, if not identical, to that regarding
whether Hawaii’s registration scheme applies to a Group 2
offender: is the out-of-state offense a “covered offense” under
Hawaii law?
Despite this overlap of the underlying legal questions
facing offenders in Groups 2 and 3, when that question arises
for each Group differs. Group 2 faces the question before any
registration is required, as the inquiry’s purpose is to
determine whether the statutory scheme even applies. On the
other hand, because Hawaii’s registration requirements
immediately apply to Group 3 by the plain language of HRS
§ 846E-2(b), offenders in this Group face the question only upon
their request for termination of requirements, which occurs
after mandatory registration.
How the question is raised by an out-of-state offender
before an appropriate authority also differs based on whether
the offender belongs to Group 2 or Group 3. Pursuant to the
plain language of the statute, a Group 3 out-of-state offender
would pose the question to the attorney general for termination
of registration requirements. See supra note 11 (quoting HRS §
846E-2(b)). An appeal of the attorney general’s decision can be
made pursuant to HRS Chapter 91, Hawaii’s Administrative
Procedure Act. See HRS § 846E-2(b).
17
The statute is not as clear with respect to how the
question can be raised by a Group 2 offender. Nothing in HRS
§ 846E-2(a) outlines the process by which a Group 2 offender may
seek an authoritative determination as to whether the
registration scheme applies to him or her.12 Nevertheless, due
to the attorney general’s role as the administrator of Hawaii’s
sex offender registration system, such a request by a Group 2
offender would be governed by Hawaii’s Administrative Procedure
Act, see HRS Chapter 91, and the attorney general’s agency
rules, see Hawaii Administrative Rules (“HAR”) Title 5.13
Specifically, HRS § 91-8 permits “any interested
person [to] petition an agency for a declaratory order [which is
afforded the same status as other agency orders] as to the
applicability of any statutory provision or of any rule or order
of the agency,” and HAR § 5-1-70 (effective 1993) states in
relevant part:
Petition for declaratory rulings. (a) Any interested
person may petition the department [of the attorney
general] for the issuance of a declaratory order as to the
applicability of any statutory provision administered by
12
Notably, the subsection provides: “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). However, this
civil court procedure is not directed at an out-of-state offender who seeks a
determination regarding his or her “covered offender” status.
13
Multiple sections within HRS Chapter 846E refer to HRS Chapter
91: HRS § 846E-2(b), (g) (2014); HRS § 846E-3(c), (d) (2014); HRS § 846E-4(e)
(2014); HRS § 846E-5(b) (2014); and HRS § 846E-9(a)(12) (2014).
18
the department or of any rule or order of the department.
Petitions for the issuance of a declaratory order shall
state clearly and concisely the controversy or uncertainty,
shall cite the statutory authority or rule or order
involved, shall include a detailed statement of all the
facts and the reasons or grounds prompting the petition,
together with full disclosure of the petitioner’s interest,
and shall conform to the requirements of section 5-1-35.
HAR § 5-1-70 (emphasis added). See Citizens Against Reckless
Dev. v. Zoning Bd. of Appeals, 114 Hawaii 184, 196–97, 159 P.3d
143, 155–56 (2007) (“[T]he declaratory ruling procedure of HRS §
91-8 is meant to provide a means of seeking a determination of
whether and in what way some statute, agency rule, or order,
applies to the factual situation raised by an interested
person.” (emphasis in original)); Fasi v. State Public Emp’t
Relations Bd., 60 Haw. 436, 444, 591 P.2d 113, 118 (1979) (“[HRS
§ 91-8] is designed to provide a means for securing from an
agency its interpretation of relevant statutes, rules and
orders. . . . The declaratory ruling so obtained has effect
only as an order of the agency.”). “Based on the plain language
of [HRS § 91-8], . . . interested persons are those ‘affected’
by, or ‘involved’ with, the applicability of ‘any statutory
provision or of any rule or order of the agency.” AlohaCare v.
Ito, 126 Hawaii 326, 360, 271 P.3d 621, 655 (2012) (internal
citations and footnote omitted).
Accordingly, as an “interested person,” a Group 2
offender may follow the procedure outlined in the attorney
general’s administrative rules and submit a petition to the
19
attorney general for a declaratory order regarding whether the
sex offender registration requirements detailed in HRS § 846E-2
apply to him or her. If the petitioner is aggrieved by the
decision, the petitioner may also appeal the declaratory order
to the circuit court pursuant to HRS § 91-14. See HRS § 91-
14(a) (“Any person aggrieved by a final decision and order in a
contested case or by a preliminary ruling of the nature that
deferral of review pending entry of a subsequent final decision
would deprive appellant of adequate relief is entitled to
judicial review . . . .” (emphasis added)); Lingle v. Haw. Gov’t
Emps. Ass’n, 107 Hawaii 178, 186, 111 P.3d 587, 595 (2005)
(“[W]e hold that orders disposing of petitions for declaratory
rulings under HRS § 91–8 are appealable to the circuit court
pursuant to HRS § 91–14.”); see also AlohaCare, 126 Hawaii at
342, 271 P.3d at 637 (declining to reach the issue of whether an
“interested person” who petitions for a declaratory ruling under
HRS § 91-8 is necessarily a “person aggrieved” pursuant to HRS §
91-14, but holding that in the given case, the petitioner was a
“person aggrieved”).
C. Doe, by Way of His May 23, 2012 E-mail and March 24, 2013
Letter, Sought to Petition the Attorney General for a
Declaration as to Whether He Was Required to Register in Hawaii
Pursuant to HRS Chapter 846E
In his May 23, 2012 e-mail to the Attorney General,
Doe expressed his understanding that Hawaii law did not require
20
him to register if he vacationed in Hawaii, but he wanted to
know HCJDC’s opinion:
I was convicted of a gross misdemeanor in Washington State
. . . . From what I can tell there is no similar statute
in Hawaii and that this may not require registration.
. . . .
The purpose of my request is, I and my family have in the
past and would like to continue vacationing periodically in
Hawaii, and I need to know what my requirements are, if
actually required, for registration.
(emphasis added). Notably, Doe did not state that he intended
to “establish[] or maintain[] a residence” in Hawaii — the
condition necessary for HRS § 846E-2(b) to apply — or otherwise
referred to HRS § 846E-2(b). Nor did he use the word
“termination” in his e-mail.
Instead, Doe’s e-mail with the subject line, “Sex
Offender Registration Petition,” stated: “In reviewing Hawaii’s
sex offender registration laws, I understand one can petition
the DOJ/AG to be exempt from registration in Hawaii based on the
basis the convicted offense is not similar to a Hawaii sex
offense statute. . . . Please let me know the petition process
and whethere [sic] you have a form for this or not.” A plain
reading of the entirety of Doe’s request reveals that he sought
to petition the Attorney General for verification that he would
not be subject to Hawaii’s sex offender registration laws if he
“vacation[ed] periodically in Hawaii.” In other words, Doe
sought to petition for a declaratory order, pursuant to HRS
21
§ 91-8, as to whether the sex offender registration requirements
detailed in HRS § 846E-2 would apply to him in his intended
travels to Hawaii, i.e., whether his Washington state conviction
is a “covered offense” under Hawaii law.
Further underscoring this interpretation is the fact
that, at the time of Doe’s May 23, 2012 e-mail, HRS § 846E-2(a)
(Supp. 2012) read in relevant part: “A covered offender shall
register with the attorney general and comply with the
provisions of this chapter for life or for a shorter period of
time as provided in this chapter.” In other words, the statute
in effect at the time, on its face, required a covered offender
to register as soon as the covered offender came within the
State’s jurisdiction, i.e., a covered offender’s initial
presence in Hawaii. Accordingly, given no evident “grace
period” in the requirements outlined in HRS § 846E-2(a) (Supp.
2012), it follows that Doe’s inquiry was focused on whether his
offense is a “covered offense” that triggers a requirement to
register if he vacationed in Hawaii.
The purpose of Doe’s letter dated March 24, 2013 was
less apparent, but nevertheless ascertainable. He captioned the
letter, “Reference: Petition of Termination of Sex Offender
Registration Requirements,” and the only Hawaii law he cited was
HRS § 846E-2(b). The use of “termination” in his caption and
22
sole legal citation to HRS § 846E-2(b) is unsurprising as the
petition process detailed in HCJDC’s e-mail response dated June
4, 2012 was only that contained in HRS § 846E-2(b). No
reference was made by HCJDC to HRS § 91-8 or HAR § 5-1-70.
The factual circumstances presented in the letter had
not changed from those presented in his e-mail. That is, he:
(1) reiterated that he is not a resident of Hawaii (“Presently I
am not a resident of Hawaii . . . . Even though I am not a
resident . . . I request that my petition be evaluated
nonetheless.”); (2) asserted that he planned to “visit” Hawaii
(“[W]e are making plans for an extended visit to the islands and
likely to exceed the 10 day grace period[14] triggering
requirement for in person registration.”); and (3) argued that
his Washington state conviction is not “comparable to any
existing Hawaii criminal offense” as “neither the elements of
the [Washington] conviction nor the conduct pled to is
comparable to a Hawaii criminal sex offense,” and attached
numerous Washington court documents associated with his
conviction. In sum, Doe’s circumstances were clearly that of a
Group 2 offender, not a Group 3 offender.
14
The ten-day or thirty-day-in-the-aggregate durational condition
was not yet codified at the time of Doe’s letter. However, HCJDC’s June 4,
2012 e-mail communicated the “grace period” to Doe. See also supra 3 & note
2.
23
That Doe wrote in his letter that he was
“petition[ing] [for] termination of sex offender registration
requirements per Hawaii statute Section 846E-2(b),” is not
dispositive of how his pro se letter should have been handled by
the attorney general, the receiving agency. The case, Dupree v.
Hiraga, 121 Hawaii 297, 219 P.3d 1084 (2009), is instructive.
In Dupree, the Clerk of the County of Maui (“Clerk”),
received several letters challenging the residency of Solomon P.
Kahoohalahala, a candidate for the Lānai seat on the Maui County
Council (“Candidate”). One of letters was submitted by Lānai
resident, Michael D. Dupree (“Dupree”), who stated that the
Candidate “should ‘run in the district that he currently resides
in and give a current Lanai resident the opportunity to
represent their home island.’” Dupree, 121 Hawaii at 302, 219
P.3d at 1089. In his issued ruling on the collective complaint
letters, the Clerk concluded that the Candidate’s “‘residence
address of record has always been on Lanai.’ . . . [T]o the
extent that the Complaint Letters constitute a challenge to [the
Candidate’s] right to remain a registered voter in []Lanai[] . .
. , the challenge is not sustained.” Dupree, 121 Hawaii at 304,
219 P.3d at 1091.
The Board of Registration (“Board”) subsequently
received a pro se appeal letter from Dupree, which was
24
characterized by the Board chair as a “‘challenge to [the
Candidate’s] right to remain a registered voter on Lanai.’” 121
Hawaii at 306, 219 P.3d at 1093. After holding a hearing, the
Board sustained Dupree’s appeal and overruled the Clerk’s
decision, holding that “[f]or purposes of this 2008 election,
[the Candidate] is a resident of Lahaina, Maui.” 121 Hawaii at
310, 219 P.3d at 1097. On appeal to this court, the Candidate
argued that the Board had lacked jurisdiction to hear Dupree’s
appeal because Dupree’s initial letter to the Clerk challenged
the Candidate’s candidacy, not his voter registration status.
Id. at 311, 219 P.3d at 1098.
In holding that the Board had jurisdiction to consider
Dupree’s appeal, this court observed that Dupree had proceeded
pro se when he submitted his initial letter to the Clerk, and
that “[p]leadings prepared by pro se litigants should be
interpreted liberally.” 121 Hawaii at 314, 219 P.3d at 1101
(citing Giuliani v. Chuck, 1 Haw. App. 379, 385–86, 620 P.2d
733, 737–38 (1980)). Accordingly, the Clerk “acted within the
scope of his authority in construing [Dupree’s] letter[] as a
challenge to [the Candidate]’s residency . . . and investigating
on that basis. . . . The Board therefore . . . had jurisdiction
to hear Dupree’s appeal from that aspect of [the Clerk]’s
25
decision.” 121 Hawaii at 315, 219 P.3d at 1102 (footnote
omitted). Specifically, this Court observed:
[Although] Dupree’s letter focused on [the Candidate]’s
residency for the purpose of challenging his eligibility as
a candidate from Lānai, rather than his right to vote on
Lānai[,] . . . that does not mean that [the Clerk] was
required to ignore Dupree’s factual allegations insofar as
they cast doubt on the legitimacy of [the Candidate]’s
voter registration on Lānai.
121 Hawaii at 313, 219 P.3d at 1100.
This reasoning applies to Doe’s case. The facts
alleged in Doe’s letter dated March 24, 2013 indicate that he
was not a Group 3 offender seeking to terminate registration
requirements, but rather a Group 2 offender seeking a
declaration from the attorney general, pursuant to HRS § 91-8,
that the registration requirements of HRS § 846E-2(a) would not
apply to him if he were to vacation in Hawaii for longer than
ten days. That Doe, proceeding pro se, mis-cited the
appropriate subsection of the HRS or used the term “termination”
with respect to registration requirements, does not preclude a
liberal construction of his letter. Indeed, when viewed
together with Doe’s initial e-mail, Doe’s request as a Group 2
offender is plain. Moreover, the attorney general’s office is
an agency that is familiar with the operation of Hawaii law, and
would be particularly adept at liberally construing a pro se
letter as an HRS § 91-8 petition request. Thus, for the
26
foregoing reasons, the Attorney General could ascertain the true
nature of Doe’s request.
Arguably, Dupree can be distinguished on grounds that
an election clerk has a statutory duty, pursuant to HRS § 11-
25(a) (2009) and HRS § 12-8(d) (2009), to expeditiously
investigate posed challenges and objections. Thus, liberally
construing a complaint letter is not only within the scope of
the clerk’s authority, but encouraged under the law. In
contrast, an agency retains the discretion whether to respond to
an HRS § 91-8 petition, see Citizens, 114 Hawaii at 194, 159
P.3d at 153; therefore, conceivably, a petition that may be
liberally construed as one brought pursuant to HRS § 91-8 need
not be so construed by an agency such as the attorney general’s
office. Such reasoning, however, ignores a fundamental tenet of
Hawaii law — that “[p]leadings prepared by pro se litigants
should be interpreted liberally.” Dupree, 121 Hawaii at 314,
219 P.3d at 1101 (citation omitted). Doe’s letter to the
appropriate agency unequivocally and timely sought to initiate
administrative proceedings provided for by statute.
Accordingly, his letter, too, should have been construed
liberally. See id. (“[P]leadings in administrative proceedings
are to be construed liberally rather than technically.” (citing
27
Perry v. Planning Comm’n, 62 Haw. 666, 685–86, 619 P.2d 95, 108
(1980))).15
D. HCJDC’s April 10, 2013 Letter Demonstrates That It
Construed Doe’s Letter as a Petition Pursuant to HRS § 846E-2(a)
HCJDC’s initial response to Doe’s letter states in
relevant part:
We are responding to your letter on behalf of the
Attorney General, State of Hawaii, as the Hawaii Criminal
Justice Data Center is responsible for the maintenance of
covered offender records in the State of Hawaii.
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. Your petition for termination
of registration requirements is premature as there has been
no determination of whether you are required to register as
a covered offender, and you have not complied with the
requirements pursuant to Chapter 846E-10, HRS, for
termination.
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. . . .
According to this response, it appears that HCJDC
properly construed Doe’s letter as a “petition for termination
of registration requirements” pursuant to subsection (a), not
subsection (b), of HRS § 846E-2. This is made apparent by the
following portions of its response:
(1) “In regards to whether your Washington State conviction
of Communication with a Minor for Immoral Purposes is a covered
offense requiring registration in Hawaii . . . .” The key issue
15
This opinion is not intended to limit agencies’ authority to
reasonably request relevant information from a petitioner.
28
identified by HCJDC was whether Doe’s Washington state offense
is a “covered offense”;
(2) “Your petition for termination of registration
requirements is premature as there has been no determination of
whether you are required to register as a covered offender, and
you have not complied with the requirements pursuant to Chapter
846E-10, HRS, for termination.” The two reasons given by HCJDC
as to why Doe’s request was “premature” — that there was yet no
determination of whether Doe is required to register as a
covered offender, and that Doe failed to follow the termination
procedures provided in HRS § 846E-10, a reference to which is
contained only in HRS § 846E-2(a) — fall solely under subsection
(a), not subsection (b), of HRS § 846E-2; and
(3) “[Y]ou 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.”
HCJDC based its conclusion on the duration condition16 and not
16
The duration condition was not codified as part of HRS § 846E-
2(a) until April 30, 2013. See supra note 2. However, at the time it sent
its letter to Doe, HCJDC was already aware of the possible law change to
subsection (a) as the Attorney General had submitted written testimony on
behalf of the underlying bill when it was initially introduced, observing:
Section 846E-2(a), HRS, is being amended to clarify
the basic registration requirement, and make it clear that
covered offenders, whether or not residents of this State,
who remain in the State for more than ten days or for an
aggregate period exceeding thirty days in one calendar
year, must register with the Attorney General.
AG Testimony at 3. Moreover, by April 10, 2013, the date of HCJDC’s response
(continued . . .)
29
the “establish[ment] or maint[enance] [of] a residence in
[Hawaii].”
Indeed, nothing in HCJDC’s letter indicates that it
construed Doe’s letter as anything but a request by a Group 2
offender as to whether his Washington state offense is a
“covered offense requiring registration in Hawaii.”
As discussed supra Part IV.B., determining whether a
Group 2 offender’s out-of-state offense is a “covered offense”
is a condition precedent for that offender to be required to
register in Hawaii. Accordingly, HCJDC’s assertion that Doe
“will be required to register in Hawaii should [he] remain in
this state for more than ten days or for an aggregate period
exceeding thirty days in one calendar year,” without first
determining whether his offense is a “covered offense,” is an
inaccurate application of the law.
E. HCJDC’s May 16, 2013 “Modification” Letter Conflates
Subsections (a) and (b) of HRS § 846E-2
As an initial matter, HCJDC’s May 16, 2013 letter
issued after Doe filed his Notice of Appeal on May 6, 2013, yet
was submitted to the circuit court as part of the certified
(. . . continued)
letter, the pending bill containing the duration condition, SB1016 SD1 HD2,
had already passed a third reading in the form that it was eventually
enacted. See Hawaii State Legislature, “2013 Archives, SB1016 SD1 HD2,”
http://www.capitol.hawaii.gov/Archives/measure_indiv_Archives.aspx?billtype=S
B&billnumber=1016&year=2013.
30
record on appeal. However, as Doe raised no objections to the
letter’s inclusion, we proceed to examine the letter.
The May 16, 2013 letter “modified” HCJDC’s April 10
response, stating the following:
Your Notice of Appeal to the Circuit Court filed on
May 6, 2013 has caused my office to review the April 10,
2013 response that was sent to you. That response
inadequately conveyed the Department of Attorney General’s
response and we use this opportunity to modify the response
as follows.
Your March 24, 2013 “Petition,” which was received on
April 1, 2013, sought termination of sex offender
registration requirements pursuant to Hawaii Revised
Statutes (HRS) section 846E-2(b), for a June 23, 2011
conviction on two counts of “Communication with a Minor for
Immoral Purposes.”
[quotation of HRS § 846E-2(b) omitted]
Therefore, because you were convicted and required to
register in the State of Washington, under the above-
referenced statute [HRS § 846E-2(b)], 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].
(footnote omitted). In sum, HCJDC re-characterized Doe’s letter
from a petition brought pursuant to subsection (a), to one
brought pursuant to subsection (b), of HRS § 846E-2. Further,
despite the Notice’s clear reference to HRS § 91-8, HCJDC
declined to address it.
Even with this “modification,” however, HCJDC’s
position continued to lack clarity. Notably, HCJDC’s conclusion
conflated subsections (a) and (b) when discussing the
registration requirements of subsection (b). Specifically,
31
HCJDC stated: “[B]ecause you were convicted and required to
register in the State of Washington, under the above-referenced
statute [HRS § 846E-2(b)], 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” (emphasis added).
In other words, HCJDC did not refer to subsection (b)’s
condition that registration under it is required for “[an out-
of-state offender] who establishes or maintains a residence in
[Hawaii],” but rather, HCJDC supplanted the word “remains” in
subsection (a)’s duration condition with “reside” and presented
that as subsection (b)’s condition. It is inexplicable why
HCJDC referred to the duration condition of subsection (a) to
define the residence requirement of subsection (b).
Additionally, HCJDC’s fusion of the two subsections is
problematic, particularly here, where its communication was
directed to a pro se petitioner who wished to “visit” Hawaii for
longer than ten days, and who was seeking a declaration
regarding the law’s application to him. As discussed supra Part
IV.A., with respect to out-of-state offenders, the registration
requirements outlined in subsections (a) and (b) do not
simultaneously apply. Specifically, Hawaii’s registration
scheme simply does not reach either Group 1 offenders or Group 2
offenders whose offenses are not “covered offenses”: subsection
32
(a) applies to Group 2 offenders whose offenses are “covered
offenses”; and subsection (b) applies to Group 3 offenders.
F. The ICA Erred in Affirming the Circuit Court’s Dismissal of
Doe’s Notice of Appeal for Lack of Jurisdiction
Both the ICA and the circuit court concluded that the
circuit court lacked jurisdiction to hear Doe’s appeal because
the written communications between Doe and HCJDC did not
constitute a contested case. Use of the “contested case”
analytical framework misses the mark because appeals of agency
responses to petitions by aggrieved persons for declaratory
orders pursuant to HRS § 91-8 are appealable pursuant to HRS
§ 91-14. See AlohaCare, 126 Haw. at 342, 271 P.3d at 637 (“This
court has recognized that judicial review of orders disposing of
petitions for declaratory rulings pursuant to HRS § 91–8 are
also subject to judicial review, although those orders may not
result from contested cases.” (citation omitted)); see also Part
IV.B. (cases cited). The threshold issue, then, is whether
Doe’s letter should have been construed as a petition for a
declaratory order pursuant to HRS § 91-8 (and hence, HCJDC’s
response construed as one pursuant to HRS § 91-8) instead of a
petition for termination of registration requirements under HRS
§ 846E-2(b). If so, the circuit court would not have lacked the
jurisdiction to hear Doe’s appeal, but instead would have had
the authority to consider the merits of his question — whether
33
he is a “covered offender” that must register if he were to
remain in Hawaii for longer than the duration condition.
As discussed supra Part IV.C., Doe’s letter should be
liberally construed as an HRS § 91-8 petition regarding the
applicability of HRS § 846E-2(a), given the factual
circumstances asserted by him in his letter and that he had
proceeded pro se. See Dupree, 121 Hawaii at 314, 219 P.3d at
1101 (citation omitted). Given that Doe reiterated that he
wished merely to “visit” or “vacation” in Hawaii, it was plain
that Doe cited to the incorrect subsection for his petition, as
HRS § 846E-2(b) only applies to offenders who “establish[] or
maintain[] a residence in [Hawaii].”
Further, as discussed supra Part IV.D., despite Doe’s
incorrect citation to HRS § 846E-2(b), it appears HCJDC
nevertheless initially construed Doe’s letter as a petition
brought with respect to HRS § 846E-2(a), as the statutory
provisions cited or quoted by HCJDC all point to subsection (a).
As noted by the Attorney General at oral argument before the
circuit court, subsection (a) provides an express procedure for
registered covered offenders to engage in a civil proceeding to
terminate requirements pursuant to HRS § 846E-10. At no time
had Doe requested this kind of proceeding. See supra note 12.
But it is precisely because the circumstances laid out in Doe’s
34
letter do not involve HRS § 846E-10 or an existing registration,
that the only reasonable construction of Doe’s letter is as a
petition brought pursuant to HRS § 91-8, inquiring whether he is
a “covered offender” required to register pursuant to HRS
§ 846E-2(a) if he visited Hawaii for longer than ten days.
For the foregoing reasons, a reasonable interpretation
of HCJDC’s initial letter is as a denial of Doe’s petition for a
declaratory order. The Attorney General had argued before the
ICA that Doe’s letter did not amount to a HRS § 91-8 petition
because the letter cited to subsection (b) and used the word
“termination,” and therefore did not comply with the attorney
general’s administrative rules. These rules require, in
relevant part, that “petition[s] for declaratory rulings”:
[(1)] state clearly and concisely the controversy or
uncertainty, [(2)] . . . cite the statutory authority or
rule or order involved, [and (3)] . . . include a detailed
statement of all the facts and the reasons or grounds
prompting the petition, together with full disclosure of
the petitioner’s interest . . . .
HAR § 5-1-70(a).
Yet, for the reasons discussed in Parts IV.C.-D.,
Doe’s letter would suffice when a liberal construction is
afforded, based on the factual circumstances advanced by Doe, a
pro se petitioner. Moreover, HCJDC had issued a “modification”
letter — which is part of the instant record on appeal — after
Doe filed the Notice. Yet, the “modification” letter wholly
35
ignores Doe’s repeated references to HRS § 91-8 within the
Notice, which should have crystallized what Doe sought.
In any event, even if Doe’s letter is construed to be
flawed, that the attorney general may “summarily dismiss a
petition for a declaratory order if the petition does not meet
the requirements of this section,” HAR § 5-1-70(a), does not
change the nature of Doe’s letter as a petition, regarding which
a decision was made by the Attorney General, thus affording him
the right to appeal that decision to circuit court pursuant to
HRS § 91-14, if aggrieved.
Notably, before the circuit court, Doe discussed
Hawaii’s sex offender registration scheme and whether his out-
of-state offense was one that placed him within that scheme.
Doe emphasized:
Your Honor, . . . if you take Section 2(b) out, which refers to
out-of-state convictions, the rest of the statute refers to
covered -- defines a covered offense as one that would be a
sexual offense in this state. Taking Section 2(b) out, if you
committed the offense out of the state that would be a sexual
offense in this state, then the rest of the chapter applies to
you. That determination has not been made.
. . . .
The prerequisite requirement -- the legislature’s intent
was clear. If your offense is not a registrable offense in this
state based on not being equivalent, defined under Section 1,
then you should not -- you’re not required to register.
Thus, despite proceeding pro se, Doe clarified that if HRS §
846E-2(b) did not apply to an out-of-state offender, e.g., he or
she has not “establish[ed] or maintain[ed] a residence in
36
[Hawaii],” HRS § 846E-2(b), then the offender need only register
in Hawaii if his or her out-of-state offense is a “covered
offense” in this State; and that this determination must be made
before registration is imposed. Thus, although the word
“termination” was readily used at oral argument by the circuit
court and the parties, it is evident that Doe’s dispute
concerned his request to the Attorney General for a
determination as to “whether or not . . . [he, as a Group 2
offender, is] a covered offender.” The review of this agency
determination squarely falls within the circuit court’s
jurisdiction.
G. The Attorney General’s Apparent Position That It Cannot
Determine Whether Out-of-State Offenders Are “Covered Offenders”
until after They Arrive in Hawaii and Initially Register, Is
Untenable
Lastly, we note that the Attorney General appears to
take the position that whether an out-of-state offender is a
“covered offender” cannot be determined until that person
“physically arrives in the State and initially registers,
including providing his [or her] fingerprints to verify his [or
her] identity,” as “the Attorney General lacks the statutory
authority to deem someone ‘not a covered offender’ prior to
registration.” (emphasis omitted). Specifically, with respect
to Doe, the Attorney General’s stated position was:
37
If [Doe] is found not to be a “covered offender,” then [he]
will not have to continue to register under subsection (a).
. . . .
[A]fter [HCJDC] verifies [Doe]’s identity and physical
presence in the state, [HCJDC] can then request certified
documents from Washington confirming [Doe]’s convictions,
run a full criminal history check in state and federal
databases, and issue a determination as to whether [Doe] is
indeed a “covered offender.”
(emphasis added). This suggests that Doe and other Group 2
offenders — those who do not establish or maintain a residence
in Hawaii but who wish to visit Hawaii for more than ten days or
for an aggregate period greater than thirty days in a calendar
year — are effectively treated like Group 3 offenders despite
the legislature’s intent to treat the two groups as distinct.17
To the extent there is any confusion regarding the
law, it is important to clarify Hawaii’s sex offender
registration scheme. By way of HRS § 91-8, the legislature
intended to foster self-compliance with all agency-administered
statutes, such as HRS § 846E-2. Moreover, as a practical
matter, the sex offender registration scheme relies heavily on
self-reporting. Requiring Group 2 offenders to register before
they can determine whether an out-of-state offense is a “covered
offense”18 in Hawaii effectively deters voluntary self-reporting.
17
As such, any possible conflict between HRS § 846E-2(b) and HRS
§ 91-8, as suggested by the Attorney General before the lower courts, does
not affect the court’s consideration here.
18
Notably, the Attorney General concedes that whether Doe is a
“covered offender” is a question of law.
38
Accordingly, advanced inquiries by out-of-state Group 2
offenders should be encouraged.
V. Conclusion
For the foregoing reasons, we vacate the ICA’s
affirmance of the circuit court’s dismissal of Doe’s agency
appeal based on a lack of jurisdiction, and remand this case to
the Attorney General so that Doe’s petition can be addressed
consistent with this opinion.
John Doe, /s/ Mark E. Recktenwald
petitioner pro se
/s/ Paula A. Nakayama
Marissa Luning,
for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
39