STATE of Hawaiʻi, Respondent/Plaintiff-Appellee, v. Rangie B. ALANGCAS, Petitioner/Defendant-Appellant.
No. SCWC-30109.
Supreme Court of Hawaiʻi.
Feb. 9, 2015.
As corrected Feb. 20, 2015.
345 P.3d 181
David M. Louie and Marissa H.I. Luning, for respondent.
RECKTENWALD, C.J., NAKAYAMA, MCKENNA, and POLLACK, JJ., and Circuit Judge TOʻOTOʻO, assigned by reason of vacancy.
Opinion of the Court by POLLACK, J.
Over the last fifteen years, states have struggled to address internet solicitation of minors because traditional attempt and solicitation statutes do not sufficiently address internet activity.1 In response, “state legislatures have revised their criminal statutes to create a new species of crime called ‘Internet luring,’ or ‘enticement.‘” 2 In 2002, Hawaiʻi enacted
The appeal in this case challenges the constitutionality of
I. Background
A. Facts3
Honolulu Police Department (HPD) Detective Andrew Brito created an online persona of a 14-year-old girl, Heather Cabico, with the screen name “kaplma_girl.” On August 29, 2008, a user with the screen name “eel_nana” started a chat with “kaplma_girl,” in which it was represented that “kaplma_girl” was a fourteen-year-old girl. It was later confirmed that “eel_nana” was the screen name of Rangie B. Alangcas, a male adult. In subsequent online chats, Alangcas expressed his interest in meeting Heather Cabico for the purpose of having sex. Although Alangcas was informed that Heather Cabico was fourteen-years-old, he still indicated that he would meet her “for having sex” even if she was “not experienced.”
Alangcas traveled to a decoy meeting at a coffee shop at an agreed upon time on September 3, 2008. Alangcas was surveilled at the coffee shop by HPD officers, and he later confirmed in an online chat that it was he who showed up at the decoy meeting.
On March 3, 2009, Alangcas again related his desire to engage in sexual conduct with Heather Cabico, and a meeting was set up for that day. In an online message, Alangcas indicated that he would meet Heather Cabico and her fourteen-year-old friend, “Shanna,” at a Pearl City fast-food restaurant before all going to Shanna‘s house. Alangcas expressed that he would engage in various sexual acts with Heather, including sexual intercourse.
HPD officers watched Alangcas leave his house and travel to the fast-food restaurant, and Alangcas was arrested outside of the restaurant shortly after his arrival. Alangcas subsequently admitted that he went to the restaurant on March 3, 2009, with the intent to engage in sexual conduct with the two girls. Alangcas also admitted to sending pornographic web site information and a full-face picture of himself to the girls.
B. Procedural Background
1. Trial Court Proceedings
Alangcas was indicted in counts I and III upon the charge of electronic enticement of a child in the first degree, in violation of
On September 2, 2009, a hearing was held on Alangcas’ motions to dismiss.6 The court orally agreed with the State‘s opposing position and denied the motions to dismiss. The circuit court filed orders denying both motions on September 17, 2009.7 The court granted Alangcas’ motion for leave to file an interlocutory appeal, and the appeal was filed on October 12, 2009.
2. Proceedings before the ICA
a. Arguments of the Parties
On appeal to the ICA, Alangcas argued that the circuit court erred in denying his motions to dismiss because
i.
In support of his contention that
Alangcas maintained that the “purpose of the overbroad mens rea and actus rea” was to create a de facto attempt statute. He contended that
In response, the State contended that
The State noted that
The State disagreed with Alangcas’ argument that
Alangcasʻ also contended that
The State responded that
iii.
Alangcas contended in his third argument on appeal that
In its response, the State countered that under its police power it may regulate internet conduct intended to endanger children‘s welfare. The State reasoned that
b. ICA Opinion
On November 29, 2013, the ICA issued its published opinion. State v. Alangcas, 131 Hawaiʻi 312, 318 P.3d 602 (App.2013). In determining whether a statute is overbroad,
The ICA considered Alangcas’ argument that
In response to Alangcas’ argument that
The ICA next addressed Alangcas’ vagueness challenge. Id. at 320, 318 P.3d at 610. The ICA held that the reference in
Nonetheless, the ICA concluded that the statute was not unconstitutional as applied to Alangcas because “before a law may be held to be unduly vague, in violation of due process, it must be demonstrated that the law is impermissibly vague in all its applications.” Id. The ICA held that Alangcas engaged in conduct that was clearly proscribed by the statute and that he could not “complain of the vagueness of the law as applied to the conduct of others.” Id.
In response to Alangcas’ argument that the word “communicates” in the statute is undefined and fails to distinguish between “conduct that is calculated to harm and that which is essentially innocent,” the ICA held that “when read in conjunction with the rest of the statute, the meaning [of ‘communicates‘] gains even greater clarity” and provides “much less leeway” to police in their enforcement of the statute and gave the “general public ... a much better understanding of just what conduct is prohibited.” Id. at 326, 318 P.3d at 616.
The ICA concluded that
On January 14, 2014, the ICA issued its judgment on appeal affirming the circuit court‘s orders.
C. Application for Writ of Certiorari
In his Application for Writ of Certiorari (Application), Alangcas presents two questions:
- Whether the ICA gravely erred in only using an “as applied” analysis and holding that
HRS § 707-756 is not unconstitutionally overbroad and/or vague and that the Circuit Court did not err in denying Mr. Alangcas’ motion to dismiss the indictment on that basis. - Whether the ICA gravely erred in holding that
HRS § 707-756 does not violate the dormant Commerce Clause of the United States Constitution and that the Circuit Court properly denied Mr. Alangcas’ motion to dismiss the indictment on that ground.
Alangcas argues that the ICA applied the “wrong vagueness and overbreadth analysis” because the ICA used an “as applied” analysis instead of the “more stringent ‘facial’ analysis.” Alangcas contends that
In its response, the State contends that the overbreadth doctrine does not apply because
Concerning vagueness, the State maintains that “it is irrelevant whether the statute could be vague in other circumstances or as to others not before the court” because it is not vague as applied to Alangcas. The State also asserts that the ICA correctly determined the dormant commerce clause challenge.
II. Standards of Review
When confronted with a constitutional challenge of a penal statute on the grounds of vagueness or overbreadth, the following principles apply:
The constitutionality of a statute is a question of law which is reviewable under the right/wrong standard. Additionally, where it is alleged that the legislature has acted unconstitutionally, this court has consistently held that every enactment of the legislature is presumptively constitutional, and a party challenging the statute has the burden of showing unconstitutionality beyond a reasonable doubt. The infraction should be plain, clear, manifest, and unmistakable.
State v. Gaylord, 78 Hawaiʻi 127, 137, 890 P.2d 1167, 1177 (1995).
Where possible, a penal statute will be read in such a manner as to preserve its constitutionality.
To accord a constitutional interpretation of 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.
Provisions of a penal statute will be accorded a limited and reasonable interpretation under this doctrine in order to preserve its overall purpose and to avoid absurd results.
III. Discussion
“In a facial challenge to the overbreadth and vagueness of a law, a court‘s first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct.” State v. Beltran, 116 Hawaiʻi 146, 152, 172 P.3d 458, 464 (2007) (quoting Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982)). “If it does not, then the overbreadth challenge must fail.” Hoffman, 455 U.S. at 494, 102 S.Ct. 1186.
“In determining whether a substantial amount of protected activity was affected, a court should evaluate the ambiguous as well as the unambiguous scope of the enactment.” Id. Thus in evaluating whether a statute is overbroad or vague, the scope of the prohibited conduct requires determination. Id.; see also United States v. Williams, 553 U.S. 285, 293, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008) (“The first step in overbreadth analysis is to construe the challenged statute; it is impossible to determine whether a statute reaches too far without first knowing what the statute covers.“).
A. Scope of Prohibited Conduct
The conduct prohibited by the offense of electronic enticement of a child in the first degree is stated as follows:
(1) Any person who, using a computer or any other electronic device:
(a) Intentionally or knowingly communicates:
(i) With a minor known by the person to be under the age of eighteen years;
(ii) With another person, in reckless disregard of the risk that the other
person is under the age of eighteen years, and the other person is under the age of eighteen years; or
(iii) With another person who represents that person to be under the age of eighteen years;
(b) With the intent to promote or facilitate the commission of a felony:
(i) That is a murder in the first or second degree;
(ii) That is a class A felony; or
(iii) That is another covered offense as defined in section 846E-1,
agrees to meet with the minor, or with another person who represents that person to be a minor under the age of eighteen years; and
(c) Intentionally or knowingly travels to the agreed upon meeting place at the agreed upon meeting time....
1. Plain Language
The fundamental starting point of statutory interpretation is the language of the statute itself. Hawaii Gov‘t Emps. Ass‘n v. Lingle, 124 Hawaiʻi 197, 202, 239 P.3d 1, 6 (2010). Thus, where the statutory language is unambiguous, our duty is to give effect to its plain and obvious meaning. Id.
The plain language and structure of
The three elements are listed in discrete subsections: (1)(a), (1)(b), and (1)(c). Both the communication element of subsection (1)(a) and the traveling element of subsection (1)(c) must be “intentionally or knowingly” committed.
Our reading of
2. Legislative History
The legislative history of a statute remains relevant “even when the language appears clear upon perfunctory review.” Richardson v. City & Cnty. of Honolulu, 76 Hawaiʻi 46, 68-69, 868 P.2d 1193, 1215-16 (1994). “Were this not the case, a court may be unable to adequately discern the underlying policy which the legislature seeks to promulgate and, thus, would be unable to determine if a literal construction would produce an absurd or unjust result, inconsistent with the policies of the statute.” Id. (quoting Survivors of Medeiros v. Maui Land & Pineapple Co., 66 Haw. 290, 297, 660 P.2d 1316, 1321 (1983)).
The legislative history of
Your Committee finds that the use of the Internet to entice children into meetings has become widespread. Current laws do not specifically address using computers to communicate with minors for purposes of committing crime. This measure would close that loophole, and would allow sex offenders to be investigated and prosecuted before they commit a kidnapping or other crime.
S. Stand. Comm. Rep. No. 2867, in 2002 Senate Journal, at 1384 (emphasis added); see also S. Stand. Comm. Rep. No. 3131, in 2002 Senate Journal, at 1498 (using the same language).
Interpreting the felonious intent so that it also applies to the travel element would appear inconsistent with the underlying policy of the statute, which is to protect children. H. Stand. Comm. Rep. No. 417, in 2002 House Journal, at 1399 (“The purpose of the bill is to deter crimes against minors.“). A person who arranges a meeting with a Minor with a felonious intent and then travels to that meeting presents an immediate physical danger to the Minor. See McKnight, 131 Hawaiʻi at 389, 319 P.3d at 308 (“[R]equiring
3. Pari Materia
“Laws in pari materia, or upon the same subject matter, shall be construed with reference to each other. What is clear in one statute may be called upon in aid to explain what is doubtful in another.” State v. Kamana‘o, 118 Hawaiʻi 210, 218, 188 P.3d 724, 732 (2008); see also
The offense of electronic enticement of a child in the second degree,
(1) Any person who, using a computer or any other electronic device:
(a) Intentionally or knowingly communicates:
(i) With a minor known by the person to be under the age of eighteen years;
(ii) With another person, in reckless disregard of the risk that the other person is under the age of eighteen years, and the other person is under the age of eighteen years; or
(iii) With another person who represents that person to be under the age of eighteen years; and
(b) With the intent to promote or facilitate the commission of a felony, agrees to meet with the minor, or with another person who represents that person to be a minor under the age of eighteen years; and
(c) Intentionally or knowingly travels to the agreed upon meeting place at the agreed upon meeting time....
Therefore, in light of the plain language of
B. Overbreadth
Overbreadth analysis addresses laws that, if enforced, would allow the prosecution of constitutionally-protected conduct. Andrew E. Goldsmith, The Void-for-Vagueness Doctrine in the Supreme Court, Revisited, 30 Am. J. Crim. L. 279, 284 n.39 (2003). Overbreadth doctrine assumes that individuals understand what a statute prohibits and as a consequence, refrain from that behavior, even though some of it is protected. Id.
Generally, “one who alleges that a statute is unconstitutionally overbroad ... must be directly affected by the claimed overbroad aspects.” Gaylord, 78 Hawaiʻi at 142, 890 P.2d at 1182 (quoting State v. Tripp, 71 Haw. 479, 483, 795 P.2d 280, 282 (1990)). That is, the doctrine is generally limited to challengers who allege that their innocent conduct has been improperly swept into the reach of the statute. Id.
Alangcas admitted his intent to engage in sexual conduct with a Minor; thus, Alangcas cannot and does not assert that constitutionally protected conduct is being prosecuted by the State. Therefore, the law is not overbroad as applied to his conduct, and Alangcas does not have standing to challenge the law as overbroad on that basis.
1. Constitutionally Protected Expression
Alangcas contends that
The First Amendment and
In Dhingra and Meek, the Ninth Circuit Court of Appeals reviewed
Meek also noted, “The potential for unconstitutional chilling of legitimate speech disappears because
State courts have come to the same conclusion that comparable electronic enticement statutes do not implicate freedom of expression because the laws only criminalize speech that is intended to entice a minor to engage in prohibited sexual conduct.20
In this case,
Thus,
2. Facial Challenge
“[I]n a facial challenge to the overbreadth and vagueness of a law, a court‘s first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct.” Beltran, 116 Hawaiʻi at 152, 172 P.3d at 464; see also United States v. Stevens, 559 U.S. 460, 473, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (holding that a law may be invalidated as overbroad if “a substantial number of its applications are unconstitutional, judged in relation to the statute‘s plainly legitimate sweep“).21
As noted,
A person‘s freedom of movement has also been found to be a basis for challenging a statute under the overbreadth doctrine. See Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) (citing Aptheker v. Secretary of State, 378 U.S. 500, 505-06, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964); Kent v. Dulles, 357 U.S. 116, 126, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958)). To the extent Alangcas raised the freedom of movement in his Application, any restriction on a person‘s legitimate movements, assuming complete abandonment of the felonious intent en route to the meeting place, would not sweep a substantial amount of constitutional conduct into
Thus,
C. Vagueness
1. Analyzing a Vagueness Challenge
A penal statute is vague if it does not define a criminal offense “with sufficient definiteness [so] that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Beltran, 116 Hawaiʻi at 151, 172 P.3d at 463. Thus, a statute is void for vagueness under
The United States Supreme Court “has often noted that criminal statutes are subject to stricter vagueness analysis than civil statutes.” Goldsmith, supra, at 281 (citing Hoffman, 455 U.S. at 498-99, 102 S.Ct. 1186; Nat‘l Endowment for the Arts v. Finley, 524 U.S. 569, 588, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998)) (referring to the criteria for issuing NEA grants and noting, “The terms of the provision are undeniably opaque, and if they appeared in a criminal statute or regulatory scheme, they could raise substantial vagueness concerns.“). “Subject to an even stricter standard are criminal statutes that reach expression protected by the First Amendment, any other constitutional right, or any ‘fundamental right.‘” Id. (citing Smith v. Goguen, 415 U.S. 566, 573, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974); Hoffman, 455 U.S. at 499, 102 S.Ct. 1186; Rose v. Locke, 423 U.S. 48, 50 n. 3, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975) (per curiam)).23
This court has recognized that a statute may be found void for vagueness on its face or as applied. See State v. Bates, 84 Hawaiʻi 211, 222, 933 P.2d 48, 59 (1997) (observing that where a case does not involve any first amendment issues, a “defendant has standing to raise a vagueness challenge only insofar as the statute is vague as applied to his or her specific conduct“); State v. Manzo, 58 Haw. 440, 573 P.2d 945, 955 (1977) (“A statute may be overbroad because its vagueness extends its reach too far, and yet it may define the core of its coverage with sufficient specificity to avoid challenge for facial vagueness.“).
In order for a defendant to succeed on an as-applied challenge, the defendant must demonstrate that the disputed statute is vague with respect to his or her conduct. Id. However, when a statute burdens a significant constitutional right, such as the freedom of expression, a defendant whose rights are not violated may raise the constitutional rights of others. See Beltran, 116 Hawaiʻi at 151 n. 4, 172 P.3d at 463 n. 4.
In Beltran, this court held that a camping regulation was facially overbroad and vague. Id. at 151, 155, 172 P.3d at 463, 467. The camping regulation was found to “conceivably” implicate activities “relating to freedom of movement and association, or that involve expressive conduct.” Id. at 152, 172 P.3d at 464. In finding the statute facially overbroad and vague, the Beltran court relied on Kolender v. Lawson, 461 U.S. 352, 353, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983).
Kolender “concerned a facial vagueness challenge to a criminal statute that require[d] persons who loiter or wander on the streets to provide a ‘credible and reliable’ identification and to account for their presence when requested by a peace officer.” Kolender, 461 U.S. at 353, 103 S.Ct. 1855. The Kolender court based its application of facial analysis on concerns for First Amendment liberties and the right to freedom of movement. Id. at 358, 103 S.Ct. 1855; see also Beltran, 116 Hawaiʻi at 151, 172 P.3d at 463. The Kolender court observed that a facial challenge of a law is permitted where the law “reaches a substantial amount of constitutionally protected conduct.” 461 U.S. at 358 n. 8, 103 S.Ct. 1855. Kolender also concluded that “where a statute imposes criminal penalties, the standard of certainty is higher.” Id.
The Kolender court expressly rejected the idea that a statute “should not be held unconstitutionally vague on its face unless it is vague in all of its possible applications.” Id.; see also Beltran, 116 Hawaiʻi at 155, 172 P.3d at 467 (”Kolender, however, indicated that ‘[t]his concern has, at times, led us to invalidate a criminal statute on its face even when it could conceivably have had some valid application.‘“) (alteration in original) (quoting Kolender, 461 U.S. at 358 n. 8, 103 S.Ct. 1855). Therefore, under Beltran‘s adoption of Kolender, because a criminal statute requires higher certainty, it may “at times” be challenged for vagueness on its face “even when it could conceivably have had some valid application,” just as a facial challenge is permitted for overbreadth if the statute reaches a substantial amount of protected conduct.24 Beltran, 116 Hawaiʻi at 151, 172 P.3d at 463.
For example, in Bates, 84 Hawaiʻi at 222, 933 P.2d at 59, the court initially evaluated the challenged statute to determine whether a person of ordinary intelligence would know what conduct was prohibited. Bates, 84 Hawaiʻi at 222-226, 933 P.2d at 59-63. Bates began its analysis by examining the legislative history of the relevant statute and reviewing federal courts’ interpretation of similar statutes in order to define the statutory terminology at issue. Id. at 222-224, 933 P.2d at 59-61. Having properly defined the statute, the Bates court concluded a person of ordinary intelligence would know what conduct was prohibited, and therefore the court found the law was not unconstitutionally vague. Id. at 224-225, 933 P.2d at 61-62. Having reached this determination, the Bates court was not required to address the defendant‘s standing in order to determine whether “the defendant [can] succeed on a vagueness challenge.” Id. at 222, 933 P.2d at 59.
Similarly, in Bui, a defendant challenged his prosecution for possession of burglar‘s tools, arguing that “burglar‘s tools,” as described in the statute, “could include anything used in the commission of a burglary.”25 Bui, 104 Hawaiʻi at 463, 465, 92 P.3d at 472, 474. This court held that the statute was not vague because it described the proscribed conduct in ordinary and understandable terms and also adequately informed the public of how to avoid committing the offense. Id. at 465, 92 P.3d at 474. Thus, as in Bates, the court initially determined that the challenged statute was not vague, and as a consequence of its determination, the court had no reason to address whether the statute was vague as applied to the defendant‘s conduct. Bui, 104 Hawaiʻi at 465, 92 P.3d at 474.
In summary, in resolving a challenge to a criminal statute as vague, the challenged statute is analyzed to determine if it (1) is internally inconsistent and incomprehensible to a person of ordinary intelligence, or (2) it invites delegation of basic policy matters to police for resolution on an ad hoc and subjective basis. Beltran, 116 Hawaiʻi at 153, 172 P.3d at 465. If the statute is determined to be vague, the challenger is then required to demonstrate that “the statute is vague as applied to his or her specific conduct” or demonstrate that the statute burdens a significant constitutional right such as a first amendment right.26
We have already determined that
2. Application of Vagueness Analysis
A Conviction Clause is also included in each definition; under the Conviction Clauses, any previous conviction from another jurisdiction that would be a “crime against [a] minor” or a “sexual offense” under Hawaiʻi law is also included in the definition for each covered offense. Thus, both types of covered offenses appear to be broadened by the Catch-all Clauses and the Conviction Clauses.
Alangcas argues that
a. Catch-all Clauses
To reiterate, under Beltran, a penal statute is void for vagueness unless the crim-
A statute that is internally inconsistent may prevent a person of ordinary intelligence from knowing what conduct is prohibited.28 Id. at 151, 172 P.3d at 463. However,
A statute is not incomprehensible if “a person of ordinary intelligence would be able to ascertain the nature of conduct prohibited.” Bui, 104 Hawaiʻi at 465, 92 P.3d at 474. The ICA in this case held that the “exceeds” language in the Catch-all Clauses introduced unconstitutional vagueness into
A person of ordinary intelligence would know that intending to promote or facilitate a felony, as defined by Hawaiʻi law, against a Minor is prohibited. Future cases may reveal a dispute as to whether a given felony is actually “comparable to” or actually “exceeds” the listed offenses included within the covered offenses, such that a question is present as to whether the intent to promote or facilitate the felony was properly included as a mens rea in a prosecution under
The same analysis eliminates the concern of “a delegation of basic policy matters to police resolution on an ad hoc and subjective basis,” Beltran, 116 Hawaiʻi at 153, 172 P.3d at 465, because if the intended conduct is already prohibited as a felony, there is no concern of arbitrary or subjective police enforcement. That is, so long as the intended conduct designated as a felony in Hawaii‘s statutory code is not defined so vaguely as to permit “arbitrary and discriminatory enforcement,” Gaylord, 78 Hawaiʻi at 138, 890 P.2d at 1178, prosecuting the intent to promote or facilitate such conduct under the electronic enticement prohibition does not jeopardize consistent nondiscriminatory enforcement.
Thus, as the Catch-all Clauses are narrowed in application to
b. Conviction Clauses
The effect of the Conviction Clauses is to require registration by sex offenders and other covered offenders under HRS Chapter 846E for particular convictions from other jurisdictions; that is, completed con-
duct in another jurisdiction.
c. “Communicates”
Alangcas suggests that the word “communicates” in
However, the “likelihood that anyone would not understand any of those common words seems quite remote” when a statute includes a scienter element requiring a felonious intent. See Hill v. Colorado, 530 U.S. 703, 732, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000). Thus, when read with the rest of the statute, it is unlikely that the public will misunderstand “communicates” because of the clear requirements of the statute defining the prohibited communication. First, the communication must be made intentionally or knowingly. Second, the communication must be with a Minor; thus, at a minimum the person must consciously disregard a substan-
Further, as the communication and agreement elements must then be consummated with an intentional or knowing travel to the agreed upon place at the agreed upon time, there is little risk that police will enforce
Thus, as the Catch-all Clauses, the Conviction Clauses, and the term “communicates” provide citizens of ordinary intelligence a reasonable opportunity to know what conduct is prohibited and provides explicit standards for those who apply the statute to do so in a consistent and nondiscriminatory manner,
D. Dormant Commerce Clause
The doctrine of the dormant commerce clause is a result implied from the federal government‘s exclusive authority to control interstate commerce34 and may require a court to invalidate a state law that interferes with that authority. Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970).
Where the statute regulates even-handedly to effectuate a legitimate local public inter-
est, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.... If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.
Id. (emphases added). Thus, when a law does not express any purpose to discriminate against commerce to or from another state, the doctrine of the dormant commerce clause is implicated only when the state law has more than an incidental effect on interstate commerce.35
Commerce is economic activity. United States v. Morrison, 529 U.S. 598, 610, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000) (holding that Congress may not regulate noneconomic, violent criminal conduct based solely on that conduct‘s aggregate effect on interstate commerce); see also id. at 628-35, 120 S.Ct. 1740 (Souter, J., dissenting) (opposing the majority‘s ruling, in part based on the “the mountain of data assembled by Congress ... showing the effects ... on interstate commerce“).
Where legitimate commerce is not burdened by a state law, the doctrine of the dormant commerce clause is inapplicable. See People v. Foley, 94 N.Y.2d 668, 709
Alangcas did not identify any legitimate commerce directly burdened by
IV. Conclusion
Based upon the plain language of the statute, its legislative history, and principles of statutory construction, we hold that the felonious intent of
For the reasons set forth in this opinion, the orders of the circuit court filed September 17, 2009, and the judgment on appeal of the ICA, filed January 14, 2014, are affirmed.
Notes
(1) Any person who, using a computer or any other electronic device:
(a) Intentionally or knowingly communicates:
(i) With a minor known by the person to be under the age of eighteen years;
(ii) With another person, in reckless disregard of the risk that the other person is under the age of eighteen years, and the other person is under the age of eighteen years; or
(iii) With another person who represents that person to be under the age of eighteen years;
(b) With the intent to promote or facilitate the commission of a felony:
(i) That is a murder in the first or second degree;
(ii) That is a class A felony; or
(iii) That is another covered offense as defined in section 846E-1,
agrees to meet with the minor, or with another person who represents that person to be a minor under the age of eighteen years; and
(c) Intentionally or knowingly travels to the agreed upon meeting place at the agreed upon meeting time,
is guilty of electronic enticement of a child in the first degree.
The “Catch-all Clauses” refer to provisions within
“Crime against minors” excludes “sexual offenses” as defined in this section and means a criminal offense that consists of:
....
(4) A criminal offense that is comparable to or which exceeds one of the offenses designated in paragraphs (1) through (3);
....
“Sexual offense” means an offense that is:
....
(6) A criminal offense that is comparable to or that exceeds a sexual offense as defined in paragraphs (1) through (5)....
The “Conviction Clauses” refer to provisions within
“Crime against minors” excludes “sexual offenses” as defined in this section and means a criminal offense that consists of:
....
(5) Any federal, military, out-of-state, tribal, or foreign conviction for any offense that, under the laws of this State, would be a crime against minors as designated in paragraphs (1) through (4).
“Sexual offense” means an offense that is:
....
(7) Any federal, military, out-of-state, tribal, or foreign conviction for any offense that under the laws of this State would be a sexual offense as defined in paragraphs (1) through (6).
Yet, the ICA Opinion also seems to suggest a contrary interpretation that the felonious intent of
The U.S. Constitution provides that
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
No law shall be enacted respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press or the right of the people peaceably to assemble and to petition the government for a redress of grievances.
The federal law provides,
Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 10 years or for life.
No person shall be deprived of life, liberty or property without due process of law, nor be denied the equal protection of the laws, nor be denied the enjoyment of the person‘s civil rights or be discriminated against in the exercise thereof because of race, religion, sex or ancestry.
Kolender buttresses this argument by noting the dissent concedes that “the overbreadth doctrine permits facial challenge of a law that reaches a substantial amount of conduct protected by the First Amendment.” However, in the dissent‘s view, one may not “confuse vagueness and overbreadth by attacking the enactment as being vague as applied to conduct other than his own.” But we have traditionally viewed vagueness and overbreadth as logically related and similar doctrines.
The statute stated that the subject offense was knowing[] possess[ion of] any explosive, tool, instrument, or other article adapted, designed, or commonly used for committing or facilitating the commission of an offense involving forcible entry into premises or theft by a physical taking and the person intends to use the explosive, tool, instrument, or article, or knows some person intends ultimately to use it, in the commission of the offense of the nature described aforesaid....
Bui, 104 Hawaiʻi at 465, 92 P.3d at 474 (emphasis and alterations in original) (quoting
A “crime[] against [a] minor” includes
(1) Kidnapping of a minor, by someone other than a parent;
(2) Unlawful imprisonment in the first or second degree that involves the unlawful imprisonment of a minor by someone other than a parent;
(3) An act, as described in chapter 705, that is an attempt, criminal solicitation, or criminal conspiracy to commit one of the offenses designated in paragraph (1) or (2);
(4) A criminal offense that is comparable to or which exceeds one of the offenses designated in paragraphs (1) through (3); or
(5) Any federal, military, out-of-state, tribal, or foreign conviction for any offense that, under the laws of this State, would be a crime against minors as designated in paragraphs (1) through (4).
(1) Set forth in section 707-730(1), 707-731(1), 707-732(1), 707-733(1)(a), 707-733.6, 712-1202(1), or 7121203(1), but excludes conduct that is criminal only because of the age of the victim, as provided in section 707-730(1)(b), or section 707-732(1)(b) if the perpetrator is under the age of eighteen;
(2) An act defined in section 707-720 if the charging document for the offense for which there has been a conviction alleged intent to subject the victim to a sexual offense;
(3) An act that consists of:
(A) Criminal sexual conduct toward a minor, including but not limited to an offense set forth in section 707-759;
(B) Solicitation of a minor who is less than fourteen years old to engage in sexual conduct;
(C) Use of a minor in a sexual performance;
(D) Production, distribution, or possession of child pornography chargeable as a felony under section 707-750, 707-751, or 707-752;
(E) Electronic enticement of a child chargeable under section 707-756 or 707-757 if the offense was committed with the intent to promote or facilitate the commission of another covered offense as defined in this section; or
(F) Solicitation of a minor for prostitution in violation of section 712-1209.1;
(4) A violation of privacy under section 711-1110.9;
(5) An act, as described in chapter 705, that is an attempt, criminal solicitation, or criminal conspiracy to commit one of the offenses designated in paragraphs (1) through (4);
(6) A criminal offense that is comparable to or that exceeds a sexual offense as defined in paragraphs (1) through (5); or
(7) Any federal, military, out-of-state, tribal, or foreign conviction for any offense that under the laws of this State would be a sexual offense as defined in paragraphs (1) through (6).
Id. (emphases added).
(1) An offense defined by this Code or by any other statute of this State for which a sentence of imprisonment is authorized constitutes a crime. Crimes are of three grades: felonies, misdemeanors, and petty misdemeanors. Felonies include murder in first and second degrees, attempted murder in the first and second degrees, and the following three classes: class A, class B, and class C.
(2) A crime is a felony if it is so designated in this Code or if persons convicted thereof may be sentenced to imprisonment for a term which is in excess of one year.