*1 STATE OF HAWAII v. SAMUEL ET AL. SHIGEMATSU, 4989.
No. STATE OF HAWAII v. THOMAS I. ET AL. FREEMAN,
No. 4990. April 7, 1971. C.J., Marumoto, JJ., Richardson, Abe, Levinson, Judge op Circuit Doi in M. Place Kobayashi, J., op
Absent Account Illness. *2 ABE, THE COURT BY OF J. OPINION originally charged The were district defendants HRS 746-61 because they the violation court with § in a or or room barri- place barred, found present “were to in manner make it diffi- or or a built, caded, officers gambling or to where ingress of access cult exposed or exhibited view.” were implements for court denied defendants’ motions The district demands for upon jury cases and trial, in both dismissal Court of the committed to Circuit First the cases were Prior to both cases were jury trial. jury trial, for Circuit for hearing on the motions dismissal. consolidated § 746-6reads: HRS any Every place. present person found in tarricaded “Presence house, barricaded, room, or or built barred or otherwise or such protected ingress po- manner make it difficult of access or in a cards, any dice, exposed exhibited or to view officers where are lice layout any any layout, any part dominoes, or or such or any game faro, gambling implements whatsoever used other monte, roulette, tan, banking game, tan, any percentage or fan or money, checks, cards, dice, dominoes, any played credit, or device for game anything representative value, other guilty won, money anything of a is lost or of value which misdemeanor.” bearing, tbe
After tbe circuit court ruled that HBS 746-6 against charges was unconstitutional and dismissed tbe appealed ruling. tbe defendants. The State from this
I. question Tbe first before us is whether tbe statute is so vague process broad that it tbe due violates clauses of tbe law United States Constitution and tbe Ha- long ago waii State Not Constitution. too we struck down presence cockfight an ordinance which made tbe at a criminal offense and we said: aspect amorphous
“A fundamental
of tbe somewhat
concept
penal
of due
law that
*3
clarity
proscribes.
must state with reasonable
tbe acts it
Territory
(1958); Territory
66
v.
43
Naumu, Haw.
v.
(1930),
(9th
Any come home locks in the doors built with would “any or built or such house ... within the term room, or make it difficult of access in a manner to ingress police it an the statute officers.” makes Also, any person present “room, to be such house offense any gambling implements, place,” such as cards, or where exposed. or are exhibited dice, dominoes, etc., appear person room of his home within a violating chips are in view would be dice where cards, the statute. overly vague the statute have no doubt that
We guar- the due of law and therefore violates broad Amendment of the Constitution the Fourteenth anteed Article Section of the Consti- States and of the United tution of the State Hawaii.
II. being vague suf- besides broad, The deficiencies. constitutional fers further recognized generally that in the exercise of its
It power
acts of indi-
curtail
restrict
the State
unreason-
curtailments
restrictions
unless
viduals
*4
personal rights
ably infringe upon
of in-
the fundamental
Territory
The State, gambling. of proscribed all forms But, the statutes has problems inherent apparently, the enforcement to alleviate legislature in enacted the statute gambling the statutes in sup- purpose of question. for the here is whether The issue may gambling, the make pressing the State of the evils presence premises mere meeting description the set forth in § HRS and where 746-6, dice or other cards, gambling implements in view a criminal offense. Per- haps people go places it is correct that who to such as the prob- sites where the defendants were arrested would ably gamble. do so preclude this does not the However, possibility may premises pur- that others enter such poses gambling knowing gambling other than without being people may carried on. some enter Then, such premises merely gamble. to watch others may argue question
The State that the in rationally suppression gambling. gist related to the The presence of the offenseunder the statute is the mere on the premises fitting description of HRS where 746-62, gambling implements exposed are exhibited or to view. may suppression gam- the statute facilitate the Yes, bling. gambling To convict one under the need proved presence. not be because offense is mere persons they par- premises, all found on the whether were bystanders ticipating merely gambling, watching others persons just gamble, happened or other innocent who any prior at time of the be there arrest without knowl- edge gambling, chargeable would all be with the viola- contraption tion of the statute. It would be like a made guilty gambling expense those catch upheld such an innocent. Should broad statute be help suppressing gambling? because would may suppress gambling the statute It is true though suppression connected but therewith, evils “legitimate pur- gambling be substantial, court hibition it went on to be in value is lost or won at the time of arrest.” In wherein actual correctly Territory against mere use in say noted that that the statute does not v. Ah Fook presence gambling game devices are exhibited or the statute “constitutes an additional Young, as it relates to a barred or barricaded 39 Haw. which “require money exposed that the 425-426 to view.” And anything (1952), implements pro- this
609 pose broadly pursued by stifle funda- cannot be means that personal more mental end can be nar- liberties the when abridgment rowly legislative of achieved. The breadth light of achiev- must be in the drastic means viewed of less ing purpose.” the same basic Shelton v. Tucker, 488 479, Talley Supreme Cali-
The United States Court (1960) 64 said: U.S. fornia, 60, pro- urged
“Counsel this ordinance is aimed has viding way identify responsible for fraud, those advertising in no Yet ordinance is false libel. * * pass manner *. do not so we limited, Therefore, validity prevent of an ordinance limited to these or supposed simply This other evils. ordinance bars anywhere all handbills under all circumstances printed names and on them do not have the addresses requires. the ordinance “There can be no doubt that such an identification requirement tend to restrict freedom to dis thereby expression. tribute information and freedom of ‘Liberty of circulation is as essential to that freedom liberty publishing; as without the circula indeed, publication tion the would be little value.’ Lovell at 452.” v. Griffin, U.S., Supreme
And the United States Court held the ordinance void on its face. Rights
In Bill State Hawaii Constitution persons “All are free nature it is declared: and are rights. Among equal inherent and inalienable in their enjoyment liberty pur- rights and the are life, these * * happiness, *.”3 suit of among rights encompassed appears to us that “enjoyment rights” “inalienable for the under term pursuit happiness,” liberty freedom of and the life, Constitution of the State of Hawaii. Art. See. *6 movement and freedom of association. Such are nec- rights essary to foundations our American of way life since their absence or denial characterizes confinement and imprison- ment.
They just as and to important vital our of life way as rights the more freedoms enumerated in specifically Sections 3 to 19 in our Bill of Article Constitu Bights, tion the State of Hawaii. we have no doubt that Thus, our State Constitution does to the guarantee people of Hawaii the freedom of movement4 and freedom of assoc iation.5 the importance we believe of these fundamental
Also, more to the rights coming and more in our foreground modern mobile fluid society. and be utmost to underestimate the influence of these freedoms folly two free Freedom if it society. incomplete our would be right does not include the of men to move from to to in the fields in the or on the streets country walk place, stand under in a and open sky public park a to city, on a and the fresh to lie down beach enjoy air, public enjoy to visit a friend in his home and enjoy a sunbath, to others right and evening together, an associate of an avocation or a vocation. enjoyment the State’s police power have under recognized, As we to for the subject regulation protec- remains “[c]onduct ‘liberty’ 4 right part of which the to travel is a “[T]he deprived process of law under be without due Anglo-Saxon cannot citizen ** * right emerg- In law was Fifth Amendment. * * * may early Magna ing as the Carta. be as close least as eats, wears, individual as the choice of what he heart of the of movement is basic our scheme values.” Freedom reads. 116, (1958). Dulles, 125-126 357 U.S. Kent v. association, closely right speech 5 “Right allied to freedom of of free speech, right which, foundation of a free like free lies at the soci and a ety.” (1960), Tucker, 479, Jonge 486 cites De 364 U.S. 364 which Shelton v. 353, Rock, (1937) Oregon. and Bates Little U.S. v. 299 U.S. recognize (1960). 516, These two cases that “freedom 522-523 cited airing grievances advancing purpose ideas and for the association protected Process Clause.” the Due ** * society. every power regulate tion of In casé attaining permissible must be so exercised as not, end, unduly infringe freedom.” Cantwell v. (1940). 310 U.S. This court’s Connecticut, atten- 296, possible legislative abridgment tion has been called to personal rights fundamental “should liberties we challenged legisla- be astute to examine the effect of the legislative preferences respecting tion. Mere or beliefs public support regulation matters of convenience well personal directed at other but be activities, insufficient to justify rights such as diminishes exercise of so vital to the maintenance of democratic institutions.” Schneider v. State, *7 legality to determine the of the we are
required weigh conflicting two interests: on one hand, suppress gambling the interest of the State to and the evils connected and on therewith; the other hand, rights people of the to the freedom of movement and asso- ciation. may appear infringement imposed some that the
by great, charged statute is not too and this the crime not insignifi- too serious. neither the However, relative slightness penalty imposed cance of the crime nor of the potential type should blind us to the threat that this of law presents to the freedom of movement and association. It practices get must be remembered that “unconstitutional * * * footing approaches slight their first silent and legal procedure.” Boyd from deviations modes of v. United U.S. As States, we have there stated, question is no that the State in the exercise of its police power legislation proscribe enact thereby suppress the evils connected therewith. However, places recognizing statute an unlimited and indis- criminately sweeping infringement upon the freedom of goes movement we believe that the statute association, necessary purpose. much further than to achieve its We hold that the statute violates Art. Sec. Hawaii I, State Constitution is void and and, unenforce- therefore, able. having found that the
Here, statute denies freedom guaranteed by movement and freedom of Art. association, 2Sec. of the Hawaii State we find unnec- Constitution, essary provi- to decide whether the statute violates sions of the Constitution of United States other than process the due clause mentioned in Part I.
For the reasons stated the defendants’ dismissals above, are affirmed.
Joseph Deputy Prosecuting Attorney A. Kinoshita, Prosecuting (Barry Chung, Attorney, him on the with briefs) plaintiff-appellant. for Irving Chang (Jack U. Misuha him on the
T. brief) defendants-appellees. M. DOI
CONCURRING OPINION OP CIRCUIT JUDGE question, that the statute HRS I concur the basis due of both state and clause 746-6,violates vague. it is too broad and federal constitutions obviously suppress gambling intended to The by making presence *8 set of circum- a described mere reasoning the circumstances that a crime on stances highly prob- inescapable at least an or lead to described anyone been in them must have found conclusion able abetting gambling. engaging in or guilty person found if he is is Under place or present or barred barricaded, house “in such room, to make in a manner or built or otherwise ingress officers where or of access difficult any dominoes exposed dice, to view cards, exhibited * * place” HRS § Tbe bouse i*eferred “room, 746-6. by pari materia includes, a “room, bouse, construction, where-tbe doors are locked and tbe windows closed * * Territory and screened as described in HRS 746-5. Wong Hong, (1954).
v. & et als., Haw. 423 frequent dice and
Cards, dominoes are commonitems pastimes gambling. use in innocent as well Locked as bornes with sucb windows closed and screened items with innocently commonplace. in view are It obvious that a application trap literal statute more tbe would gamblers, innocent than the which its broad reach indicates any and demonstrates tbe lack of connection be- rational (presence tbe tween act condemned in tbe described cir- cumstances) activity sought legitimately and tbe to be proscribed (gambling). suppression legislative
That
is within
power may be conceded.
the means used to
However,
objective
comport
achieve sucb
must
constitutional
with
presumption
dictates. Where a
which aids
statute creates a
convicting
presuming necessary
proof
from the
fact
comply
presumption
of another
does not
fact,
presumed
not
constitutional due
if the fact
ra
tionally
proven.
connected to the fact
Turner United
(1970).
different where
can be no
States,
innocent act
an
broad
an otherwise
statute makes
reasoning
be evidence of
a crime
that such act
any
activity
rational
other criminal
and there is absent
attempt
judicial
connection
two. And
between the
applica
construction which
restrict
the statute’s
would
the two
tion so
a rational connection between
only impermissible
possible,
if
but would
even
is not
result,
vague.