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IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---oOo---

________________________________________________________________

JOHN DOE, Petitioner/Appellant-Appellant,

vs.

ATTORNEY GENERAL, CLARE E. CONNORS,

Respondent/Appellee-Appellee.

________________________________________________________________

SCWC-16-0000351

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-16-0000351; CIV. NO. 15-1-2158)

DECEMBER 13, 2019

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

This is the second appeal arising out of a 2013 request for 

a declaratory ruling by a pro se litigant, a registered sex 

offender in the State of Washington, as to whether he is 

required to register as a sex offender in Hawaiʻi before visiting 

Hawaiʻi with his family for more than ten days. Hawaiʻi Revised 

Statutes (“HRS”) § 846E-2(a) (2014) provides that “registration 

Electronically Filed

Supreme Court

SCWC-16-0000351

13-DEC-2019

08:05 AM
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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.” The Department of the 

Attorney General (“AG”) issued an October 15, 2015 ruling1 that 

Doe was required to register in Hawaiʻi because his out-of-state 

conviction of two counts of “Communication with minor for 

immoral purposes,” Wash. Rev. Code Ann. (“RCW”) § 9.68A.090 

(West 2010) (“the Washington offense”), a gross misdemeanour 

under Washington law, qualifies as a sexual offense under Hawaiʻi 

law. 

In its May 20, 2019 summary disposition order (“SDO”), the 

Intermediate Court of Appeals (“ICA”) affirmed the Circuit Court 

of the First Circuit’s (“circuit court[‘s]”) April 7, 2016 final 

 

1 In Doe v. Attorney General, 135 Hawaiʻi 390, 351 P.3d 1156 (2015) (“Doe 

I”), we remanded the case to the AG, and the AG subsequently issued its 

October 15, 2015 ruling, which is the subject of this appeal. 

In Doe I, Doe appealed the Circuit Court of the First Circuit’s 

(“circuit court[’s]”) dismissal for lack of jurisdiction of his appeal of the 

AG’s initial response to his inquiry regarding sex offender registration 

requirements. That response stated Doe would be required to register as a 

sex offender in Hawaiʻi before the AG could determine whether Doe’s offense is 

a covered offense under Hawaiʻi law, thereby requiring him to register as a 

sex offender. We concluded that the circuit court had jurisdiction to hear 

Doe’s appeal, and that Hawaiʻi’s statutory scheme governing sex offender 

registration did not require an individual to “register” before the AG could 

determine whether registration was actually required under HRS § 846E-2(a). 

See 135 Hawaiʻi at 404, 351 P.3d at 1170 (“[T]he sex offender registration 

scheme relies heavily on self-reporting. Requiring Group 2 offenders [i.e., 

offenders who do not establish or maintain a residence in Hawaiʻi but who wish 

to visit Hawaiʻi for more than ten days or for an aggregate period greater 

than thirty days in a calendar year] to register before they can determine 

whether an out-of-state offense is a ‘covered offense’ in Hawaiʻi effectively 

deters voluntary self-reporting.” (footnote omitted)).
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judgment, which was entered pursuant to the April 6, 2016 “Order 

Dismissing Notice of Appeal to Circuit Court Filed November 10, 

2015” of Doe’s appeal from the AG’s ruling. Doe’s application 

for a writ of certiorari (“Application”) presents the following 

questions:

1. Was the ICA’s ruling in conflict with this Court’s 

ruling in State v. Chun, 102 Haw. 383 [sic], 102 Hawaiʻi 

383, 76 P.3d 935, going past the elements of the offense in 

determining that [Doe’s] conviction was a sex offense in 

Hawaii? 

2. Was the ICA’s broad interpretation of “solicitation” 

and equating it to the element of [Doe’s] foreign 

conviction of “communicate” (as used in RCW [§] 9.68A.090) 

in error? 

3. Must an out-of-state conviction be an actual offense in 

the State of Hawaii before triggering a requirement to 

register in the state of Hawaii? Does legislative intent 

and a plain reading of HRS [§] 846E-2(b) require the outof-state conviction to be an actual offense in this state 

before triggering a requirement to register? 

4. Must the review of an out-of-state offense trigger a 

requirement to register in Hawaii be narrowly interpreted 

under the rule of lenity, as are all criminal statutes, 

given that an element of failure to register is that the 

offender must be convicted of a sexual offense as 

defined under HRS [§] 846E-l? 

For the following reasons, the record does not support the 

AG’s ruling, and the ICA erred in affirming the circuit court’s 

dismissal of Doe’s agency appeal. We therefore reverse the 

ICA’s July 2, 2019 judgment on appeal as well as the circuit 

court’s April 7, 2016 final judgment.
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II. Background

A. Factual Background

In 2011, Doe pled guilty to two counts of the gross 

misdemeanor, “Communication with minor for immoral purposes,” 

RCW § 9.68A.090. 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.” Doe was sentenced to 

twenty-four months of probation and due to the conviction, Doe

has been a registered sex offender in the State of Washington,

and must continue to be registered until 2021 under RCW § 

9A.44.140(3) (West 2009, Supp. 2015). 

As Doe was “[p]resently . . . not a resident of Hawaii, 

. . . but [he and his family2] [we]re making plans for an 

extended visit to the islands and likely to exceed the 10 day 

grace period,” Doe wrote to then-Attorney General David Louie by 

letter dated March 24, 2013 petitioning for a “formal 

determination” that he not be required to register as a sex 

offender in Hawaiʻi. With his letter, Doe included several State 

of Washington court documents related to his conviction, and 

 

2 Doe uses the pronoun, “we,” in his letter, but does not define it. 

Based on other documents in the record, it appears “we” refers to him and his 

family.
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indicated that if further information was required, to please 

contact him.

After this court remanded the matter to the AG following 

Doe I, see supra note 1, the administrator of the Hawaiʻi 

Criminal Justice Data Center (“HCJDC”) issued a letter dated 

October 15, 2015 on behalf of then-Attorney General Douglas S. 

Chin,3 determining that “based solely upon the attached request 

and certified court documents provided to our office”:

Your conviction in the State of Washington of two counts of 

“Communication with a Minor for an Immoral Purpose” is a 

“sexual offense” as defined under section 846E-1, HRS, 

because you committed acts that consisted of “criminal 

sexual conduct toward a minor” and/or “solicitation of a 

minor who is less than fourteen years old to engage in 

sexual conduct.” As a person who was convicted of a 

“sexual offense,” you are considered a “sex offender” and 

are, therefore, a “covered offender” who is required to 

register with the attorney general under section 846E-2, 

HRS.

The letter also indicated: “Registration information will not be 

available to the public pursuant to section 846E-3(h), HRS.” 

B. Circuit Court Proceedings

On November 10, 2015, Doe filed a Notice of Appeal to the 

circuit court4 “from the decision of the Attorney General dated 

October 15, 2015, and received October 20, 2015, determining 

that Appellant’s Washington State misdemeanor conviction in 

 

3 Under Hawaiʻi Rules of Appellate Procedure Rule 43(c), a public officer 

named in a case is automatically substituted by the officer’s successor when 

the holder of the office ceases to hold office on appeal. Accordingly, 

Attorney General Clare E. Connors has been substituted for former Attorney 

General Douglas S. Chin.

4 The Honorable Rhonda A. Nishimura presided.
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violation of RCW [§] 9.68A.090 was a ‘covered offense’ under HRS 

[§] 846E-1.” 

In his opening brief before the circuit court, Doe 

primarily argued that “[o]nly those offenders convicted of an 

out-of-state offense that would be a sexual offense in Hawaiʻi 

would be required to register,” meaning that “the elements of 

the out-of-state offense must include all the elements of the 

Hawaiʻi statute.” Doe pointed out that the letter “failed to 

state what Hawaiʻi criminal offense for which [Doe]’s out-ofstate conviction was equivalent to, or make an element 

comparison to a Hawaiʻi criminal offense demonstrating the 

Washington offense was equivalent to a Hawaiʻi statute.” Doe 

also asserted that in any event, “solicitation” is not an 

element of the Washington offense and that the Washington 

offense does not address “physical contact” and “therefore the 

[Washington] offense cannot categorically be considered an 

offense consisting of ‘criminal sexual conduct toward a minor’ 

under Hawaiʻi law.” Additionally, Doe asserted that “RCW [§]

9.68A.090 does not require any specific criminal sexual 

misconduct to be committed toward a minor, but broadly 

criminalizes any communications of a sexual nature that could 

lead to criminal sexual conduct under Washington law.” Doe also 

presented case law from other states with registration laws 

regarding out-of-state offenders, such as Alaska, demonstrating 
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an element-by-element analytical approach. Notably, Doe had 

requested a similar declaratory judgment from the State of 

Alaska, Department of Public Safety, and a court had found that 

Doe “is not required to register as a sex offender in Alaska” 

because “communicating with a minor for immoral purposes” was 

not similar to “attempted sexual abuse of a minor in the second 

degree” under Alaska law.

The AG argued in response that the HCJDC correctly 

concluded Doe was required to register as a sex offender. It 

pointed out that in State v. McNallie, 846 P.2d 1358, 1364 

(Wash. 1993), RCW § 9.68A.001 “‘prohibits communication with 

children for the predatory purpose of promoting their exposure 

to and involvement in sexual misconduct,’” that “‘[i]mmoral 

purposes’ in the Washington statute means ‘immoral purposes of a 

sexual nature,’” and that therefore Doe’s “acts that resulted in 

his conviction in Washington State consisted of ‘criminal sexual 

conduct toward a minor’ and/or ‘solicitation of a minor who is 

less than fourteen years old to engage in sexual conduct.’”

In reply, Doe reiterated his opening brief statement that 

“[i]f this court were to require the Appellant to register for 

an out-of-state conviction that does not rise to the level of a 

crime in Hawaiʻi, it . . . punishes the Appellant for conduct 

that, if committed in Hawaiʻi, would not be a crime.” Further, 

Doe argued that although “criminal sexual conduct toward a 
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minor” and “solicitation of a minor . . . to engage in sexual 

conduct” may be elements of certain Hawaiʻi criminal offenses, 

“they themselves are not criminal offenses and are not 

separately listed in the criminal code.”

On February 12, 2016, the same day Doe filed his reply 

brief, he also filed a “Motion for Judgment on the Pleadings,” 

asking that oral arguments not be scheduled. On February 17, 

2016, the circuit court nevertheless set Doe’s appeal for a 

hearing on March 18, 2016. The AG took no position on Doe’s 

request, but did not file such notice until March 4, 2016. A 

hearing was held on March 18, 2016 as scheduled, at which Doe 

represented himself.

At the hearing, Doe again argued that the elements of the 

respective state offenses needed to be analyzed, but the AG 

disagreed. The AG explained its position:

We believe that the statutes are clear the registration 

requirement under 846E-2(a), from there, you know, it takes 

us clearly to the Definition section. And under the 

Definition section, the sexual offenses has a list of 

seven, but there is an “or” on 6, which means that any of 

the seven could apply. And we strongly believe that 3(a) 

and (b) both could apply to this situation. The words do 

not match up exactly, you know, between our requirement and 

the Washington offense, but we don’t believe it needs to be 

like that.

Specifically, the AG asserted that “Communication with a Minor 

for an Immoral Purpose . . . would match up with the 

Solicitation to Engage in Sexual Conduct with a Minor Who is 

Less Than 14 Years Old.” Doe responded that although 
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solicitation is a subset of communication, “you could also 

communicate that’s not a solicitation.”

After hearing the arguments, the circuit court issued its 

ruling, which held the AG did not err:

What the Court is guided by is by HRS Section 846E-2, 

comparing that with the Washington statute 9.68A.090 and 

looking at the definition of sexual offense under HRS 

Section 846E. So comparing everything amongst -- with each 

other, whether it’s internally or in comparison between the 

two, the Court cannot say that there was an error of law by 

the AG or that they violated the statute in so interpreting 

and in comparing the Hawaiʻi statute with the Washington 

statute to require that [Doe] needs to register.

So the Court will dismiss the appeal and affirm the 

AG’s decision with respect to the declaratory ruling. 

The circuit court issued its “Order Dismissing Notice of Appeal 

to Circuit Court Filed November 10, 2015” on April 6, 2016. 

Final judgment was entered on April 7, 2016. 

B. Appeal to the ICA

Doe filed a Notice of Appeal to the ICA. After receiving 

written briefs substantively similar to those submitted to the 

circuit court, the ICA affirmed the circuit court’s final 

judgment. See Doe v. Attorney General, CAAP-16-0000351, at 7 

(App. May 20, 2019) (SDO). 

The ICA rejected Doe’s focus on the elements of a sexual 

offenses in Hawaiʻi, and concluded that Doe’s Washington offense 

was a “sexual offense” as defined in HRS § 846E-1, which did not 

need to “match up exactly” to a Hawaiʻi Penal Code provision. 

Id. As the definition of “sexual offense” consists of seven 
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relevant paragraphs, where the seventh refers to “[a]ny . . . 

out-of-state . . . conviction for any offense that under the 

laws of this State would be a sexual offense as defined in 

paragraphs (1) through (6),” HRS § 846E-1, the ICA’s analysis 

focused on paragraph 3(B), which defined “sexual offense” as 

“[a]n act that consists of . . . [s]olicitation of a minor who 

is less than fourteen years old to engage in sexual conduct.” 

See Doe, SDO at 6-7. The ICA applied the dictionary definition 

of “solicitation,”5 as that term is not defined in HRS Chapter 

846E or the Penal Code, and was “convinced that the use of the 

word . . . was meant in the more general sense,” and therefore 

“agree[d] with the AG’s determination that communicating with an 

 

5 The ICA cited to https://www.merriamwebster.com/dictionary/solicitation for the definition of “solicitation”: 

“1: the practice or act or an instance of soliciting[,] especially : 

ENTREATY, IMPORTUNITY[;] 2: a moving or drawing force : INCITEMENT, 

ALLUREMENT.” Doe, SDO at 4—5 n.7.

The ICA then cited to https://www.merriamwebster.com/dictionary/solicit for the definition of “solicit”: 

transitive verb

1 a : to make petition to : ENTREAT

b : to approach with a request or plea . . .

2 : to urge (something, such as one's cause) strongly

3 a : to entice or lure especially into evil

b : to proposition (someone) especially as or in 

the character of a prostitute

4 : to try to obtain by usually urgent requests or 

pleas . . .

intransitive verb

1 : to make solicitation : IMPORTUNE

2 of a prostitute : to offer to have sexual relations 

with someone for money[.]

Doe, SDO at 5 n.7.
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eleven-year-old for an immoral purpose of a sexual nature falls 

within the plain language of the sexual offense definition in 

HRS § 846E-1.” See id. The ICA stated it was not necessary for 

it to address whether Doe’s Washington conviction was a “sexual 

offense” under paragraph 3(A), “[c]riminal sexual conduct toward 

a minor.” See Doe, SDO at 7 n.8. 

C. Application for Writ of Certiorari

In his Application, Doe presents the following questions:

1. Was the ICA’s ruling in conflict with this Court’s 

ruling in State v. Chun, 102 Haw. 383 [sic], 102 Hawaiʻi 

383, 76 P.3d 935, going past the elements of the offense in 

determining that [Doe’s] conviction was a sex offense in 

Hawaiʻi? 

2. Was the ICA’s broad interpretation of “solicitation” 

and equating it to the element of [Doe’s] foreign 

conviction of “communicate” (as used in RCW [§] 9.68A.090) 

in error? 

3. Must an out-of-state conviction be an actual offense in 

the State of Hawaiʻi before triggering a requirement to 

register in the state of Hawaiʻi? Does legislative intent 

and a plain reading of HRS [§] 846E-2(b) require the outof-state conviction to be an actual offense in this state 

before triggering a requirement to register? 

4. Must the review of an out-of-state offense trigger a 

requirement to register in Hawaiʻi be narrowly interpreted 

under the rule of lenity, as are all criminal statutes, 

given that an element of failure to register is that the 

offender must be convicted of a sexual offense as 

defined under HRS [§] 846E-l? 

In sum, Doe argues: (1) an “elemental comparison” between 

the Washington offense and a specific Hawaiʻi offense is required 

for Doe to be considered a “sex offender,” (2) the ICA abused 

its discretion when it used “solicitation” interchangeably with 

“communication,” and (3) because the failure of a covered 
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offender to comply with Hawaiʻi’s registration scheme is a crime 

pursuant to HRS § 846E-9(c) (2014), whether a person is a 

“covered offender” is therefore an element of a criminal 

statute, which should be construed in accordance with the rule 

of lenity requiring any statutory ambiguity to be construed in 

favor of the defendant, i.e., Doe. 

The AG responds that, at bottom, Doe’s Washington offense 

was a “sexual offense” under paragraph 3(B) of the HRS § 846E-1 

definition of “sexual offense” for the reasons stated by the 

ICA. As such, the AG argues, “Doe cannot sidestep the 

dispositive issue and analysis described above, simply by 

arguing that the specific Washington statutory sex offense for 

which he was convicted has no precise Hawaiʻi analogue.” 

Moreover, according to the AG, because RCW § 9.68A.090 has been 

interpreted to prohibit the “communication with children for the 

predatory purpose of promoting their exposure and involvement in 

sexual misconduct,” the AG argues Doe, “through his 

communicative actions[,] . . . effectively solicited a minor who 

was less than fourteen years old to engage in sexual conduct.” 

Thus, the AG argues the ICA did not err when it compared 

“solicitation” with “communication.” Lastly, the AG asserts the 

ICA’s SDO is not in conflict with the rule of lenity because 

that interpretative “rule” applies to criminal statutes, not 

civil ones, such as Hawaiʻi’s registration scheme. 
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III. Standards of Review

A. Administrative Agency Appeals

Ordinarily, deference will be given to decisions of 

administrative agencies acting within the realm of their 

expertise. The rule of judicial deference, however, does 

not apply when the agency’s reading of the statute 

contravenes the legislature’s manifest purpose. 

Consequently, we have not hesitated to reject an incorrect 

or unreasonable statutory construction advanced by the 

agency entrusted with the statute’s implementation.

Coon v. City & Cty. of Honolulu, 98 Hawaiʻi 233, 245, 47 P.3d 

348, 360 (2002) (citations and brackets omitted).

B. Interpretation of a Statute

“Interpretation of a statute is a question of law which 

[is] review[ed] de novo.” Kikuchi v. Brown, 110 Hawaii 204, 

207, 130 P.3d 1069, 1072 (App. 2006) (internal quotation marks 

and citation omitted).

IV. Discussion

A. Overview of Hawaiʻi’s Sex Offender Registration Scheme as to 

Out-of-State Offenders Who Wish to be Present in Hawaiʻi for 

More than Ten Days or for an Aggregate Period Exceeding 

Thirty Days in One Calendar Year

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 Hawaii for more than ten days or 

for an aggregate period exceeding thirty days in one calendar 

year, must register in Hawaiʻi if they are “covered offenders.”

A covered offender shall register with the attorney general 

and comply with the provisions of this chapter for life or 
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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) (emphasis added). A “covered offender” 

is a “sex offender” or an “offender against minors.”6 HRS § 

846E-1. A “sex offender” is a “person who is or has been 

convicted at any time . . . of a ‘sexual offense.’” Id. 

Hawaiʻi’s registration scheme defines “sexual offense” as:

“Sexual offense” means an offense that is:

 (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 712-

1203(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;

 

6 Because an “offender against minors” means a person who is not a “sex 

offender,” this portion of the definition of “covered offender” is not at 

issue in this appeal, and therefore is not further discussed.
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 (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);

 (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). 

HRS § 846E-1 (definition of “sexual offense”). Thus, whether 

Doe is required to register as a sex offender in Hawaiʻi before 

visiting Hawaiʻi hinges on whether the offense for which he was 

convicted would be a sexual offense as defined by HRS § 846E-1. 

The AG’s ruling was based on an interpretation that Doe’s 

offense was a “sexual offense” under paragraphs 3 (A) and (B) 

above. We therefore analyze both provisions.

B. The ICA Erred in Affirming the Circuit Court’s Decision on 

the Grounds That Doe’s Offense “Would Be” a “Sexual 

Offense” under Paragraph 3(B) of HRS § 846E-1’s Definition 

of “Sexual Offense”

As a preliminary matter, in referring to “[a]ny . . . outof-state . . . conviction for any offense that under the laws of 

this State would be a sexual offense,” paragraph 7 contemplates 

that Hawaiʻi law is to be applied to the underlying act or acts 
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constituting the offense (as opposed to merely the statute 

violated) to determine whether the offense “would be” a “sexual 

offense” as defined in HRS § 846E-1. Additionally, as noted by 

the ICA, paragraph 3 refers to an “act that consists of” (and 

therefore not limited to) any enumerated acts in paragraphs 3(A) 

through 3(F). See Doe, SDO at 6. Thus, the ICA correctly 

interpreted Hawaiʻi’s registration scheme to require that Doe’s 

offense meet the definition of “sexual offense” in HRS § 846E-1, 

and that the offense need not “match up” to each of the elements 

of a particular crime in the Hawaiʻi Penal Code.

The record of Doe’s offense is sparse and limited to the 

following: “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.” The AG argued, and the ICA 

agreed, that this offense “consist[ed] of” “[s]olicitation of a 

minor who is less than fourteen years old to engage in sexual 

conduct,” an act enumerated in paragraph 3(B) of the definition 

of “sexual offense.” Doe, SDO at 6. In this regard, the ICA 

erred.

It is uncontested that the minor with whom Doe communicated 

on two separate occasions was less than fourteen years old at 

the time the acts were committed. What is disputed is whether 
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Doe’s “communicat[ion] . . . for an immoral purpose of a sexual 

nature” amounts to “[s]olicitation of a minor . . . to engage in 

sexual conduct.” 

Although Doe correctly points out that “solicitation” is a 

“subset” of “communication,” and therefore not all 

“communication” amounts to “solicitation,” that analysis is 

incomplete because Doe’s “communication” is modified by the 

prepositional phrase, “for an immoral purpose of a sexual 

nature.” (Emphasis added.) Even so, nothing in the 

prepositional phrase indicates that the “communicat[ion] . . . 

for an immoral purpose of a sexual nature” was to “solicit” the 

minor to “engage in sexual conduct.” In other words, a 

“communication” for “an immoral purpose” could exist without a 

“solicitation” “to engage in sexual conduct.”

In sum, although “[s]olicitation of a minor . . . to engage 

in sexual conduct” may be one possible “communicat[ion] . . . 

for an immoral purpose of a sexual nature,” because the record 

is bare as to the substance of Doe’s communication, nothing in 

the record indicates Doe’s underlying offense consisted of 

solicitation of a minor to engage in sexual conduct. 

Accordingly, the AG incorrectly concluded that Doe’s out-ofstate offense “would be” a “sexual offense” under paragraph 

3(B), and therefore the ICA erred in affirming the circuit 

court’s decision on those grounds.
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C. The Record Also Does Not Demonstrate Doe’s Offense 

“Would Be” a “Sexual Offense” under Paragraph 3(A) of HRS § 

846E-1’s Definition of “Sexual Offense”

The ICA declined to address whether Doe’s offense “would 

be” a “sexual offense” under paragraph 3(A) of HRS § 846E-1’s 

definition of “sexual offense,” “[a]n act that consists of . . . 

[c]riminal sexual conduct toward a minor, including but not 

limited to an offense set forth in section 707-759.” See Doe, 

SDO at 7 n.8. However, as this is a question of law, and as it 

was appropriately raised below, we address it briefly now.

As Doe’s underlying offense does not implicate HRS § 707-

759 (2014), “Indecent electronic display to a child,”

7 the 

following analysis focuses on paragraph 3(A)’s reference to 

“criminal sexual conduct toward a minor.” (Emphasis added.) By 

 

7 Indecent electronic display to a child. (1) Any person 

who intentionally masturbates or intentionally exposes the 

genitals in a lewd or lascivious manner live over a 

computer online service, internet service, or local 

bulletin board service and who knows or should know or has 

reason to believe that the transmission is viewed on a 

computer or other electronic device by:

 (a) A minor known by the person to be under the age 

of eighteen years;

 (b) 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

 (c) Another person who represents that person to be 

under the age of eighteen years, is guilty of indecent 

electronic display to a child.

 (2) Indecent electronic display to a child is a 

misdemeanor.

HRS § 707-759.
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

19

the statute’s plain meaning, the conduct must amount to a crime 

under Hawaiʻi law, i.e., violate the Penal Code. See also HRS § 

846E-1 (defining “crime against minors,” in part, as “a criminal 

offense”). Here, the AG, in its October 15, 2015 decision, did 

not identify what statute, if any, Doe would have violated by 

his offense, nor did the AG identify any in its briefing before

the circuit court, ICA, or in response to Doe’s Application. 

Indeed, the AG could not compare Doe’s offense to HRS § 707-759, 

or for that matter, to other similar statutes such as HRS § 707-

756 (2014), “Electronic enticement of a child in the first 

degree,” or HRS § 707-757 (2014), “Electronic enticement of a 

child in the second degree,” because the record is bare as to 

the substance and medium of Doe’s communication. 

V. Conclusion

For the foregoing reasons, the record does not support the 

AG’s decision, and the ICA therefore erred in affirming the 

circuit court’s dismissal of Doe’s agency appeal. Accordingly, 

we reverse the ICA’s July 2, 2019 judgment on appeal as well as 

the circuit court’s April 7, 2016 final judgment.

John Doe, /s/ Mark E. Recktenwald

petitioner pro se

/s/ Paula A. Nakayama

Kimberly T. Guidry,

for respondent /s/ Sabrina S. McKenna 

/s/ Richard W. Pollack

/s/ Michael D. Wilson