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Oral Argument Before the Hawaii Supreme Court

No. SCAP-14-0001205, Thursday, February 18, 2016, 11:15 a.m.

(Amended)

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

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for Petitioner:

Kirsha K.M. Durante, Deputy Public Defender

Attorney for Respondent:

Brian R. Vincent, Deputy Prosecuting Attorney

NOTE: Certificate of Recusal, by Associate Justice Michael D. Wilson, filed 05/22/15.

NOTE: Order assigning Circuit Court Judge Rhonda A. Nishimura, in place of Wilson, J., recused, filed 05/27/15.

NOTE: Order accepting Application for Transfer, filed 05/28/15.

COURT: MER, CJ; PAN, SSM and RWP, JJ., and Circuit Court Judge Nishimura, in place of Wilson, J., recused.

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

Chester Pacquing was charged in a criminal Complaint with the offense of Unauthorized Possession of Confidential Personal Information (UPCPI) in violation of Hawai`i Revised Statutes (HRS) § 708-839.55. Pacquing filed a Motion to Dismiss for Unconstitutionally Broad, Vague, and Punitive Statute (Motion to Dismiss for Overbreadth) and a Motion to Dismiss Complaint for failing to provide him with fair notice of the nature and cause of the accusation (Motion to Dismiss Complaint). After a hearing on the motions, the Circuit Court for the First Circuit (circuit court) granted the Motion to Dismiss Complaint, reasoning that the phrase “confidential personal information” in the Complaint is not unmistakable or readily comprehensible to persons of common understanding and that the State’s failure to define that phrase infringed upon Pacquing’s right to be fully informed of the nature and of the accusation against him. In addition, the circuit court granted in part and denied in part the Motion to Dismiss for Overbreadth. The circuit court concluded that the statute is unconstitutionally overbroad because while the State has a significant public interest in preventing identity theft and the misuse of confidential personal information, the UPCPI statute places a potentially sweeping restriction on the constitutionally protected exercise of the freedoms of speech and of the press. However, the circuit court found the statute not to be unconstitutionally vague because the statutory definition of the phrase “confidential personal information” is sufficiently specific to give a person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited and provides explicit standards to avoid arbitrary and discriminatory enforcement of the law.

The State appealed, and Pacquing cross-appealed, to the Intermediate Court of Appeals. The State argued that (1) the Complaint was not defective for failing to define the phrase “confidential personal information” because that phrase is readily comprehensible to persons of common understanding; (2) the failure to define “confidential personal information” does not deprive the circuit court of subject-matter jurisdiction; and (3) the UPCPI statute is not unconstitutionally overbroad because its legitimate applications substantially outweighs any possible impermissible applications and because any situation in which the statute impermissibly impinges upon constitutional rights to free speech and freedom of the press is curable on a case-by-case basis. In his cross appeal, Pacquing asserted that (1) the UPCPI statute is unconstitutionally vague because it is internally inconsistent and incomprehensible to a person of ordinary intelligence and because it delegates resolution of basic policy matters to police on an ad hoc and subjective basis; and (2) the UPCPI statute violates constitutional due process, under Article I, Section 5 of the Hawai?i Constitution and the Fourteenth Amendment to the U.S. Constitution, because it improperly shifts the burden of persuasion on a defendant to disprove an essential element of the crime–that the defendant knew or intended that his or her possessions of the complainant’s personal information was not authorized. As part of its response, the State contends that the appellate court lacks jurisdiction to consider the cross appeal as Pacquing did not seek permission from the circuit court for an interlocutory appeal and there is no final judgment in this case.

An Application for Transfer of the case to the supreme court was filed on April 24, 2015, which was granted on May 28, 2015