Thursday, April 21, 2011

Unauthorized Possession Requires just, well, Possession

State v. Rodrigues (ICA April 20, 2011)

Background. A man left his "waist pouch" in a company van, but did not realize it until the next day. He notified his bank. Two days later, Rodrigues went into a payday loan office to cash one of the man's checks written to her. The manager became suspicious, called a telephone number on the check, and learned that the check was stolen. The police investigated. The man denied writing a check for Rodrigues and that he did not know her. He also denied that that was his signature on the check. Rodrigues was charged with one count of unauthorized possession of confidential personal information and identity theft in the third degree. Rodrigues filed a motion to dismiss on the grounds that the counts merge. The circuit court disagreed with Rodrigues that the offenses merged, but granted her motion to dismiss on the grounds that there was insufficient evidence to support the charges. The State appealed.

Unauthorized Possession of Confidential Personal Information. Unauthorized possession of personal confidential personal information arises when a person "intentionally or knowingly possesses without authorization, any confidential personal information of another[.]" HRS § 708-839.55. "Confidential personal information" is defined as "information in which an individual has a significant privacy interest, including but not limited to a driver's license number, a social security number, . . . a bank account number, a password or other information that is used for accessing information, or any other name, number, or code that is used . . . to confirm the identity of a person." HRS § 708-800. The circuit court concluded that implicit in this statutory definition lies an additional element of impersonation and that the government must allege and prove that the Rodrigues impersonated the person whose identity is confirmed in the information. The ICA rejected this interpretation.

Statute Merely Requires Possession, not Actual Use. "[W]here the statutory language is plain and unambiguous, our sole duty is to give effect to its plain and obvious meaning." HGEA v. Lingle, 124 Hawai'i 197, 202, 239 P.3d 1, 6 (2010). The ICA held that the plain and unambiguous language of the statute merely requires intentional or knowing possession of "confidential personal information." The statute does expressly not require the personal information be actually used to impersonate another.

Legislature Intended Possession as the Criminal Conduct, not the use. Departing "from a literal construction of a statute is justified when such construction would produce an absurd result and the literal construction in the particular action is clearly inconsistent with the purposes and policies of the act." Estate of Roxas v. Marcos, 121 Hawai'i 59, 67, 214 P.3d 598, 606 (2009). Here, the ICA held that it could not depart from the literal construction of the statute based on a review of conference committee reports from the legislature when it adopted the statute as well as the commentary to HRS § 708-839.55. According to the ICA, the statute was intended to allow the prosecution of unauthorized possession before actual use of the information. The circuit court's construction, thus, is inconsistent with the purpose and policy of the statute.

Identity Theft Merely Requires use, not Impersonation. Identity theft in the 3d degree arises when a person "makes or causes to be made . . . a transmission of any personal information of another . . . with the intent to commit the offense of theft in the third degree[.]" HRS § 708-839.8. It is undisputed that the check constituted "personal information" as defined by HRS § 708-800. The ICA rejected the circuit court's construction that impersonation is necessary. The plain language, according to the ICA, called only for the transmission of the information with the requisite intent. Again, the ICA pointed out that the legislative history does not support a departure from the plain language of the statute.

How to Interpret Statutes . . . The canons of statutory construction are well-established in Hawai'i. When a statute is plain and unambiguous, the court must give effect to the plain and obvious meaning. HGEA v. Lingle, 124 Hawai'i at 202, 239 P.3d at 6. The HSC has strictly adhered to this rule.

On the other hand, if a statute is not plain and unambiguous, "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." HGEA v. Lingle, supra. "If statutory language is ambiguous or doubt exists as to its meaning, courts may take legislative history into consideration in construing a statute." Kona Village Realty, Inc. v. Sunstone Realty Partners, XIV, LLC, 123 Hawai'i 476, 482, 236 P.3d 456, 462 (2010).

Absurdities AND Inconsistencies? An equally well-established canon of construction is the absurd result rule. A "departure from a literal construction is justified when such construction would produce an absurd result and the literal construction . . . is clearly inconsistent with the purposes and policies of the act." Estate of Roxas v. Marcos, supra. The ICA's application of this rule is curious. First, it never examined whether the literal interpretations of the statutes produced absurd results. That's too bad. Although the rule of avoiding absurdities is well-established, there really isn't a lot of law explaining what an absurdity is.

But what's more troubling is that the ICA relies on extrinsic aids even though it acknowledged that the language is plain and unambiguous. This approach suggests that unambiguously written and plainly understood statute must nonetheless be consistent with its legislative purpose. The HSC has required strict adherence to the plain-language rule. "Even when the court is convinced . . . that the legislature really meant and intended something not expressed by the phraseology of the act, it has no authority to depart from the plain meaning of the language used." State v. Klie, 116 Hawai'i 519, 526, 174 P.3d 358, 365 (2007). In Carlisle v. One (1) Boat, 119 Hawai'i 245, 195 P.3d 1177 (2008), the HSC noted that the ICA should not have turned to legislative history in aid of its interpretation when the statute was plain and unambiguous. What if a statute was in fact plain, unambiguous, but inconsistent with the legislative purpose? Isn't that the situation contemplated by the HSC in Klie and Carlisle?

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