Barker v. Young. ( 2023 )

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
06-MAR-2023
08:13 AM
Dkt. 15 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
________________________________________________________________
PHILLIP J. BARKER,
Petitioner/Plaintiff-Appellant,
vs.
CHRISTOPHER YOUNG, ADMINISTRATOR,
HAWAIʻI CRIMINAL JUSTICE DATA CENTER
Respondent/Defendant-Appellee.
________________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; 1CSP-XX-XXXXXXX)
MARCH 6, 2023
RECKTENWALD, C.J., NAKAYAMA, McKENNA, WILSON, AND EDDINS, JJ.
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
This is a statutory interpretation case. We are called
upon to interpret Hawaiʻi Revised Statutes (“HRS”) § 831-3.2(a)
(2014 & Supp. 2018), which allows for expungement of arrest
records. It provides in relevant part:
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§ 831-3.2. Expungement orders
(a) The . . . attorney general’s duly authorized
representative . . . , upon written application from a
person arrested for, or charged with but not convicted of a
crime, . . . shall issue an expungement order annulling,
canceling, and rescinding the record of arrest; provided
that an expungement order shall not be issued:
. . . .
(2) For a period of five years after arrest or
citation in the case of a petty misdemeanor or
violation where conviction has not been obtained
because of a bail forfeiture[.]
Phillip J. Barker (“Barker”) was arrested for harassment, a
petty misdemeanor. He was eventually convicted of disorderly
conduct as a violation. He then applied to the Hawaiʻi Criminal
Justice Data Center (“HCJDC”) for expungement of his arrest
record pursuant to HRS § 831-3.2. He asserted that because HRS
§ 701-107(7) (2014) of the Hawaiʻi Penal Code provides that a
violation does not constitute a crime, he is entitled to
expungement based on the plain language of HRS § 831-3.2(a).
The HCJDC denied his application, concluding that Barker
had been convicted of a “crime” within the meaning of HRS § 831-
3.2(a), pointing to HRS § 831-3.2(a)(2), which provides that an
expungement order shall not issue for five years after arrest
“in the case of a petty misdemeanor or violation where
conviction has not been obtained because of a bail
forfeiture[.]”
Barker then sought an order from the Circuit Court of the
First Circuit (“circuit court”) to require the HCJDC to expunge
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his arrest record. The circuit court1 granted judgment in favor
of the HCJDC.
Barker appealed to the Intermediate Court of Appeals
(“ICA”), which affirmed the circuit court in a published
opinion. See Barker v. Young, 151 Hawaiʻi 312, 511 P.3d 811(App. 2022). The ICA ruled it could not apply the Penal Code
definition of crime to HRS § 831-3.2(a) because of the language
in subsection (a)(2). 151 Hawaiʻi at 320, 511 P.3d at 819.
Essentially, the HCJDC, circuit court, and ICA all concluded
that inclusion of the word “violation” in HRS § 831-3.2(a)(2)
indicates a “violation” is a “crime” under HRS § 831-3.2(a).
On certiorari, Barker asks “[w]hether the ICA gravely erred
in holding that the word ‘crime’ in [HRS § 831-3.2(a)] is
ambiguous such that the word includes violations?”
Applying rules of statutory interpretation, we hold that
under the plain language of HRS §§ 831-3.2(a) and 701-107(7), a
person arrested for or charged with a crime (including a petty
misdemeanor), but convicted of a violation, is eligible for
arrest record expungement because a “violation” is not a
“crime.”2
1 The Honorable Bert I. Ayabe presided.
2 The statute allows expungement only of arrest records; conviction
records are not at issue.
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We therefore vacate the circuit court’s order granting the
HCJDC’s motion for summary judgment and its final judgment, as
well as the ICA’s judgment on appeal, and we remand to the
circuit court for further proceedings consistent with this
opinion.
II. Background
A. HCJDC proceedings
On October 7, 2017, Barker was arrested for harassment in
violation of HRS § 711-1106(1)(a) (2014), a petty misdemeanor.3
On November 21, 2017, Barker pled no contest and was found
guilty of the amended charge of disorderly conduct under HRS §
711-1101(1)(b) (2014), as a violation.4
3 HRS § 711-1106(1)(a) & (2) provide:
(1) A person commits the offense of harassment if, with intent
to harass, annoy, or alarm any other person, that person:
(a) Strikes, shoves, kicks, or otherwise touches another
person in an offensive manner or subjects the other
person to offensive physical contact[.]
. . . .
(2) Harassment is a petty misdemeanor.
4 HRS § 711-1101(1)(b) & (3) provide:
(1) A person commits the offense of disorderly conduct if, with
intent to cause physical inconvenience or alarm by a member or
members of the public, or recklessly creating a risk thereof, the
person:
. . . .
(b) Makes unreasonable noise . . . .
. . . .
(3) Disorderly conduct is a petty misdemeanor if it is the
defendant’s intention to cause substantial harm or serious
inconvenience, or if the defendant persists in disorderly conduct
after reasonable warning or request to desist. Otherwise
disorderly conduct is a violation.
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On June 20, 2019, Barker submitted an application to the
HCJDC to have his harassment arrest record expunged pursuant to
HRS § 831-3.2. Barker asserted that because he was found guilty
of a “violation” and not a “crime,” he is eligible for
expungement. The HCJDC denied Barker’s application on the basis
that arrests resulting in convictions, even for violations, do
not qualify for expungement.
B. Circuit court proceedings
On October 19, 2020, Barker filed a first amended complaint
in circuit court. Barker argued that under HRS § 701-107(5),5 a
violation does not constitute a crime, and therefore, Barker was
“not convicted of a crime” within the meaning of the expungement
statute. Barker requested an order requiring the HCJDC to
expunge his record of arrest, or alternatively, a declaratory
judgment that he is entitled to have his arrest record expunged.
Barker and the HCJDC then filed cross-motions for summary
judgment. Barker argued that the only relevant definitions of
5 HRS § 701-107 provides in relevant part:
(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. . . .
. . . .
(5) An offense defined by this Code or by any other statute of
this State constitutes a violation if it is so designated in this
Code or in the law defining the offense or if no other sentence
than a fine, or fine and forfeiture or other civil penalty, is
authorized upon conviction or if it is defined by a statute other
than this Code which provides that the offense shall not
constitute a crime. A violation does not constitute a crime, and
conviction of a violation shall not give rise to any civil
disability based on conviction of a criminal offense.
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“crime” and “violation” are found in HRS § 701-107 of the Hawaiʻi
Penal Code, which explicitly provides that “[a] violation does
not constitute a crime, and conviction of a violation shall not
give rise to any civil disability based on conviction of a
criminal offense.” Barker asserted that the legislature could
have used the word “offense” in HRS § 831-3.2(a), which would
have included violations, but it did not.
HCJDC argued that the definitions of “violation” and
“crime” in HRS § 701-107 are inapplicable to the expungement
statute. The HCJDC maintained that the legislative history of
the expungement statute indicates an intent to “minimize or
abolish extrajudicial penalties which may confront a person who
has a record of arrest, even though such arrest did not lead to
conviction.” HCJDC noted that Barker’s arrest for harassment
did lead to his conviction of a violation.
The HCJDC also relied on HRS § 831-3.2(a)(2), which
provides that an expungement order shall not be issued “[f]or a
period of five years after arrest or citation in the case of a
petty misdemeanor or violation where conviction has not been
obtained because of a bail forfeiture[.]” HCJDC posited that if
the legislature had intended “violation” and “crime” to be
defined as in the Hawaiʻi Penal Code, “it would follow that a
record of arrest or citation for a violation would always
qualify to be expunged regardless of whether the arrest or
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citation led to a conviction.” HCJDC asserted it would be
illogical to require it to maintain records of violations if
they would subsequently be expunged irrespective of later
convictions. Finally, citing Crime, Black’s Law Dictionary
(11th ed. 2019), the HCJDC contended the term “crime” in § 831-
3.2 should be interpreted according to its common legal
definition, which is an “act that the law makes punishable[.]”
The circuit court agreed with the HCJDC. It entered an
order denying Barker’s motion and granting HCJDC’s motion on
March 1, 2021. It also entered its judgment on that day.
C. ICA proceedings
On March 3, 2021, Barker appealed to the ICA. The parties’
briefs repeated arguments made in the circuit court. In a
published opinion, the ICA affirmed the circuit court. See
Barker, 151 Hawaiʻi 312, 511 P.3d 811. The ICA concluded the
term “crime” in HRS § 831-3.2(a) is ambiguous. 151 Hawaiʻi at
317-18, 511 P.3d at 816-17. The ICA ruled that it could not
apply the Penal Code definition of crime to HRS § 831-3.2
because of the language in subsection (a)(2) delaying
expungement eligibility for a “violation where conviction has
not been obtained because of a bail forfeiture[.]” 151 Hawaiʻi
at 318, 511 P.3d at 817 (quoting HRS § 831-3.2(a)(2)). The ICA
also construed the intent of the expungement law as to allow
expungements only when there was no conviction. 151 Hawaiʻi at
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318-20, 511 P.3d at 817-19 (citing Conf. Comm. Rep. No. 21, in
1975 Senate Journal, at 859; Conf. Comm. Rep. No. 18, in 1975
House Journal, at 885). The ICA concluded that interpreting the
term “crime” in HRS § 831-3.2(a) to include violations is
rational, reasonable, and consistent with legislative intent.
151 Hawaiʻi at 320, 511 P.3d at 819 (“A ‘rational, sensible[,]
and practicable interpretation of a statute is preferred to one
which is unreasonable or impracticable . . . .’” (quoting In re
Doe, 90 Hawaiʻi 246, 251, 978 P.2d 684, 689 (1999))). Hence, the
ICA held that because Barker’s harassment arrest resulted in a
conviction for a violation, Barker does not meet the statutory
expungement criteria. 151 Hawaiʻi at 320-21, 511 P.3d at 819-20
(citing HRS § 831-3.2(a)).
D. Certiorari proceedings
Barker’s July 8, 2022 application presents one question:
whether the ICA gravely erred in holding that the word “crime”
in HRS § 831-3.2(a) is ambiguous such that the word includes
violations?
In addition to his previous arguments, Barker notes the
principle of statutory interpretation that “where the statutory
language is plain and unambiguous, [a court’s] sole duty is to
give effect [t]o its plain and obvious meaning.” Barker further
argues that “[w]here there is no ambiguity in the language of a
statute, and the literal application of the language would not
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produce an absurd or unjust result . . . there is no room for
judicial construction[.]”
Barker also points out that it is only the record of arrest
that he seeks to expunge, not the conviction. He argues that
there is no ambiguity in the statute and that if the legislature
meant “crime” to mean “offense,” which includes crimes and
violations,6 then it would have used the word “offense” instead
of “crime” in HRS § 831-3.2(a). Barker points out that the
statute has been amended eight times without the word “crime”
being changed to “offense.”
Barker questions the logic of the ICA’s reasoning that
“crime” must include “violations” because HRS § 831-3.2(a)(2)
provides an exception for expungement in the case of violations
when there is bail forfeiture.7
III. Standard of Review
“Statutory interpretation is a question of law reviewable
de novo.” State v. Wheeler, 121 Hawaiʻi 383, 390, 219 P.3d 1170,
1177 (2009) (cleaned up).
Our interpretation is shaped by the following rules:
First, the fundamental starting point for statutory
interpretation is the language of the statute itself.
Second, where the statutory language is plain and
unambiguous, our sole duty is to give effect to its plain
and obvious meaning. Third, implicit in the task of
6 HRS § 701-102(1) (2014) provides, “No behavior constitutes an offense
unless it is a crime or violation under this Code or another statute of this
State.”
7 The HCJDC did not file a response to Barker’s application.
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statutory construction is our foremost obligation to
ascertain and give effect to the intention of the
legislature, which is to be obtained primarily from the
language contained in the statute itself. Fourth, when
there is doubt, doubleness of meaning, or indistinctiveness
or uncertainty of an expression used in a statute, an
ambiguity exists.
When there is ambiguity in a statute, “the meaning of the
ambiguous words may be sought by examining the context,
with which the ambiguous words, phrases, and sentences may
be compared, in order to ascertain their true meaning.”
Moreover, the courts may resort to extrinsic aids in
determining legislative intent, such as legislative
history, or the reason and spirit of the law.
Id. (cleaned up).
IV. Discussion
Whether Barker’s arrest record is eligible for expungement
is governed by HRS § 831-3.2, which provides in relevant part:
§ 831-3.2. Expungement orders
(a) The . . . attorney general’s duly authorized
representative . . . , upon written application from a
person arrested for, or charged with but not convicted of a
crime, . . . shall issue an expungement order annulling,
canceling, and rescinding the record of arrest; provided
that an expungement order shall not be issued:
. . . .
(2) For a period of five years after arrest or
citation in the case of a petty misdemeanor or
violation where conviction has not been obtained
because of a bail forfeiture[.]
As noted in Section III above, statutory interpretation
begins with the premise that when statutory language is plain
and unambiguous, our sole duty is to give effect to its plain
and obvious meaning. See Wheeler, 121 Hawaiʻi at 390, 219 P.3d
at 1177.
HRS § 831-3.2(a) provides that a person arrested for but
not convicted of a crime is eligible for an arrest record
expungement. Barker was charged with harassment, a petty
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misdemeanor. He was convicted of disorderly conduct as a
violation. Under HRS § 701-107, a petty misdemeanor is a crime,
but a violation is not. Barker was therefore “charged with but
not convicted of a crime[.]” See HRS § 831-3.2(a). Hence, he
is eligible for expungement of his arrest record.
The exception in HRS § 831-3.2(a)(2) does not create an
ambiguity as to the plain language of HRS § 831-3.2(a). HRS §
831-3.2(a)(2) provides that if there is no conviction on a petty
misdemeanor or violation charge because of a bail forfeiture
(non-appearance in court), an expungement order cannot issue
until five years from the date of arrest or citation. State v.
Vallesteros, 84 Hawaiʻi 295, 933 P.2d 632 (1997), held that
police officers “may arrest those who commit violations, not
just crimes, in the officers’ presence[,]” “but only insofar as
the offense is not a traffic-related violation.” 84 Hawaiʻi at
301, 933 P.2d at 638. But pursuant to HRS § 831-3.2(a), if
there is a conviction on a charged violation, an arrest record
based on that conviction is still eligible for expungement.
The rules of statutory interpretation require us to apply a
plain language analysis when statutory language is clear. Only
when there is an ambiguity in a statute are we to resort to
other methods of statutory interpretation. As we said in State
v. Obrero, 151 Hawaiʻi 472, 517 P.3d 755 (2022):
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The in pari materia canon of statutory interpretation is a
useful tool for interpreting ambiguous or doubtful
statutes. But it should not be used to muddle the meaning
of unequivocal, but inconvenient, black letter law. Our
rule is “What is clear in one statute may be called upon in
aid to explain what is doubtful in another.” It is not:
“What is clear in one statute may be called upon to create
doubt in another.”
151 Hawaiʻi at 479, 517 P.3d at 762 (cleaned up).
Hence, what is clear in HRS § 831-3.2(a)(2) may not be
called upon to create doubt in HRS § 831-3.2(a). Only “when
there is ambiguity in a statute,” then, “the meaning of the
ambiguous words may be sought by” applying other methods of
statutory interpretation, such as the in pari materia canon, or
by “resort[ing] to extrinsic aids in determining legislative
intent, such as legislative history, or the reason and spirit of
the law.” Wheeler, 121 Hawai‘i at 390, 219 P.3d at 1177 (cleaned
up). HRS § 831-3.2(a)(2) is equally clear. It provides that if
there is no conviction on a petty misdemeanor or violation
charge because of a bail forfeiture (non-appearance in court),
an expungement order cannot issue until five years from the date
of arrest or citation.
Finally, we appreciate the concern expressed by the HCJDC
that interpreting the term “crime” in HRS § 831-3.2(a) as
excluding “violations” would seemingly preclude a person
arrested for and then convicted of a violation from obtaining
expungement of an arrest record. That issue, however, is not
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before us at this time.8 Today, we address the issue before us
and hold that under the plain language of HRS §§ 831-3.2(a) and
701-107(7), a person arrested for or charged with a crime
(including a petty misdemeanor) but convicted of a violation is
eligible for expungement because a “violation” is not a “crime.”
V. Conclusion
Under the plain language of HRS §§ 831-3.2(a) and 701-
107(7), a person arrested for or charged with a crime, but
convicted of a violation, is eligible for arrest record
expungement because a “violation” is not a “crime.”
We therefore vacate the circuit court’s order granting the
HCJDC’s motion for summary judgment and its final judgment, as
well as the ICA’s judgment on appeal, and we remand to the
circuit court for further proceedings consistent with this
opinion.
Earle A. Partington /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Candace J. Park
for respondent /s/ Sabrina S. McKenna
/s/ Michael D. Wilson
/s/ Todd W. Eddins
8 If such a case were to arise, other rules of statutory interpretation
could be triggered. For example, “[i]f a literal construction of statutory
language would produce an absurd result, we presume that result was not
intended and construe the statute in accord with its underlying legislative
intent.” State v. Abella, 145 Hawaiʻi 541, 552, 454 P.3d 482, 493 (2019)
(citation omitted).
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