State v. Bani, No. 22196.

36 P.3d 1255

97 Haw. 285

STATE of Hawai`i, Plaintiff-Appellee, v. Eto BANI, Defendant Appellant.

No. 22196.

Supreme Court of Hawai`i.

November 21, 2001.

Certiorari Granted December 6, 2001.

Reconsideration Denied January 11, 2002.

Robert T. Nakatsuji, Deputy Public Defender, for defendant-appellant.

Alexa D.M. Fujise, Deputy Prosecuting Attorney (Mangmang Qiu Brown with her on the brief) for plaintiff-appellee.

MOON, C.J., LEVINSON, NAKAYAMA, and RAMIL, JJ., and Circuit Judge GRAULTY, assigned by reason of vacancy.

Opinion of the Court by RAMIL, J.

This appeal involves a challenge to the constitutionality of Hawaii's sex offender registration and notification statute, codified at Hawai`i Revised Statutes (HRS) chapter 846E (Supp.2000). The arguments advanced implicate the inherent tensions between safety and freedom that exist in any democracy. The question ultimately raised is how the people of Hawai`i may protect themselves against future offenses by those prone to recidivism without jeopardizing the constitutional rights of persons who have already paid the price imposed by law for their crimes. Resolving the issues and arguments raised in this appeal requires us to discern and delineate the sensitive and difficult balance between these tensions embodied in the United States and Hawai`i Constitutions.

Defendant-appellant Eto Bani ("Bani") pled no contest to the charge of sexual assault in the fourth degree, in violation of HRS § 707-733(1)(a) (Supp.1993).¹ Following Bani's plea, the district court ordered Bani, as part of his sentence, inter alia, to register as a sex offender pursuant to the sex offender registration and notification law, HRS chapter 846E, commonly known as "Megan's Law." On appeal, Bani contends, under the United States and Hawai`i Constitutions, that the statute violates: (1) the constitutional right to procedural due process; (2) the constitutional right to privacy; (3) the prohibition against cruel and unusual punishment; and (4) the right to equal protection of the law.

For the reasons discussed below, we hold that the public notification provisions of HRS chapter 846E deprive Bani of a protected liberty interest without due process of law. Our conclusion derives from the fact that HRS § 846E-3 authorizes public notification of Bani's status as a convicted sex offender without notice, an opportunity to be heard, or any preliminary determination of whether and to what extent Bani actually represents a danger to society. In our view, the absence of any procedural safeguards in the public notification provision of HRS chapter 846E renders the statute unconstitutional, void, and unenforceable. Our decision today is based solely upon article I, section 5 of the Hawai`i Constitution, and we pass no judgment upon Bani's remaining constitutional claims in this appeal.

I. BACKGROUND

Bani pled no contest to the charge of sexual assault in the fourth degree in exchange for a sentence of one year of probation, subject to special conditions of two days of incarceration with credit for time served, an alcohol assessment and any recommended treatment, a $300.00 fine, and a $50.00 contribution to the criminal injuries fund. Defense counsel, however, notified the circuit court that it would be challenging the constitutionality of the sex offender registration and notification statute—HRS chapter 846E.

At the time of Bani's no contest plea, the parties placed some of the underlying facts of the case into the record. Bani stated that he could not recall the events that occurred. Defense counsel added:

[Defense Counsel]: Your Honor, the only thing I would add is the police report does indicate that all the witnesses to the events stated that Mr. Bani was intoxicated at the time and he did tell me that he did have a lot of alcohol before the offense and that possibly did effect his memory of the offense. But nonetheless he wanted to proceed today by entering a no contest plea to conclude these matters today.

The prosecution then stated:

[Deputy Prosecutor]: Your Honor, complaining witness being under the age of 18, I believe she was 17 years old and under [HRS] 707-733 she was subjected to sexual contact by compulsion by the defendant in the manner in being in Waikiki last week Friday night. He did grab her buttocks two times as well as asking her if she wanted to go to a party. She was therefore scared, did not give him any permission to do this.

THE COURT: And I assume that you also would have established that this was by compulsion[,] that is[,] there is an absence of consent.

[Deputy Prosecutor]: Correct, Your honor, she didn't give him any permission.

Thereafter, defense counsel requested an order from the trial court prohibiting the compilation and release of registration information pending appeal of the sentence in this case. Specifically, defense counsel argued:

Your Honor, before the Court orders the sex offender registration, we would ask that the Court at this point issue an order prohibiting the entity that would be releasing the information from getting the information and prohibiting the attorney general and the police department from releasing the registration information to the public in the future pending our appeal of this sentence. And we'd object to the sex offender registration requirement being imposed on this charge on the following grounds:

That one, Chapter 8—HRS Chapter 846 violates the Federal and Hawaii Constitution prohibitions against cruel and unusual punishment; specifically the 8th Amendment of the U.S. Constitution [and] Article I Section 12 of the Hawaii Constitution. And we would submit that for this type of misdemeanor sex assault offense, that the burden imposed by the sex offense statute is so disproportionate to this type of offense and the duration of the penalty, we're talking about lifetime registration, every ninety (90) days and there are felony type penalties which attach to failure to register despite whatever the reason for the failure may be.

So we'd submit that the punishment on the defendant is disproportionate to the type of offense we're here for which is a misdemeanor, maximum punishment being one (1) year in jail and this penalty will be for his lifetime.

And secondly, we would submit that the statute violates procedur[al] due process rights of the defendant under the 5th and 14th Amendments of the U.S. Constitution and Article I Section 5 of the Hawaii Constitution and the statute improperly delegates to the government the decision on what information to release to the public. There are no limits or guidelines placed on the government's power to release information on this particular individual. Specifically that the government need not demonstrate an imminent threat to the public. The offender in this case, my client, is not afforded an opportunity to be heard prior to the notification or at a later point in time. And we'd submit that the statute also fails to provide relief from the registration requirement even after the offender is demonstrated that he has been rehabilitated or that a re-offense would not be an issue.

And the statute also fails to require a risk assessment to determine whether registration is appropriate for this individual. And that the statute violates substantive due process [sic]; that the purpose of the act is to register and protect the public from all sex offenders. However, we would submit that this offense is a sex assault so it is sexual in nature but the penalty is not commensurate to the threat this defendant would pose to the community, i.e. offenders who are convicted of murder or robbery or aggravated assault type of offenses those people would not be made to register. And the statute lacks the rational basis.

. . . .

And, finally, that the statute violates privacy clauses of the Hawaii Constitution under Article I, Section 6 and 7; that the government has not demonstrated a compelling state interest for the dissemination of all this information to the public such that defendant's privacy rights should be infringed to the extent that the statute requires. This statute requires work information, home information and all this information would be available to the public. It could even be on the Internet for worldwide access.

The prosecution responded by stating, "Your Honor, the State would just ask that you follow the law in that he is required to register in this matter, especially since the victim was a minor."

The district court sentenced Bani to one year of probation, subject, inter alia, to the terms and conditions provided for in the plea agreement. The district court then explained the reporting requirements of HRS chapter 846E to Bani. Finally, the district court denied the request to prohibit release of the registration information and ruled that the statute applies to Bani. With respect to Bani's constitutional challenge to HRS chapter 846, the district court ruled:

THE COURT: Alright, I'm going to deny the request to stay the attorney general's forwarding of any information pursuant to this chapter. And I also, I'm going with this point, I believe the law, as it is written, seems to apply to you. So I'm going to require you to undergo this matter. I know this matter is on appeal and may be appealed in this case but we'll let the Supreme Court decide exactly how this law is going to work with respect to you, alright?

Mr. Bani: Okay.

After sentencing, Bani filed a timely notice of appeal.

II. STANDARD OF REVIEW

We review questions of constitutional law "by exercising our own independent constitutional judgment based on the facts of the case." State v. Rogan, 91 Hawai`i 405, 411-12, 984 P.2d 1231, 1237-38 (1999) (quoting State v. Arceo, 84 Hawai`i 1, 11, 928 P.2d 843, 853 (1996) (quoting State v. Trainor, 83 Hawai`i 250, 255, 925 P.2d 818, 823 (1996), and State v. Lee, 83 Hawai`i 267, 273, 925 P.2d 1091, 1097 (1996))). Accordingly, we review questions of constitutional law under...