HSC Weighs in on Difference Between "Public" and "the Public"

 State v. Kaeo (HSC December 29, 2021)

Background. Samuel Kaeo went to a base yard in central Maui with other protestors. He linked arms with the protestors and lied down on the road blocking a convoy of trucks bound for the summit of Haleakala. It was a demonstration to protest and temporarily halt construction of a telescope there. About twenty convoy workers were inconvenienced. Police arrested Kaeo and he was charged with disorderly conduct. The district court—the Hon. Judge Blaine Kobayashi—convicted him and sentenced him to pay a fine of $200 and $30 in court fees. Kaeo appealed. The ICAaffirmed, but Judge Karen Nakasone dissented. The HSC accepted the application for certiorari.


The Real Victims of the Disorderly Conduct Offense. A person commits the offense of disorderly conduct when the person, “with the intent to cause physical inconvenience or alarm by a member or members of the public . . ., creates a hazardous or physically offensive condition by any act which is not performed under any authorized license or permit.” HRS § 711-1101(1)(d). The case centers on the meaning of the words “the public” in this statute.


The ICA held that the word “public” is defined by statute in HRS § 711-100. That statute defines the word “public” to mean “affecting or likely to affect a substantial number of persons[.]” The HSC disagreed.


The Statutory Definition did not apply to the Statute. The HSC noted that the statutory definitions do not apply when “a different meaning is plainly required.” HRS § 711-7100. That’s the case here. The HSC noted that the word “public” in the definitions statute describes an adjective. The words “the public,” however, are a noun. The HSC reasoned that if the statutory definition applied, it would make little sense.


The prosecution must prove that the defendant intended to physically inconvenience or alarm “a member or members of the public.” HRS § 711-71101(1)(d). This contemplates the possibility of a single member. If the statutory definition applied—that is, “the public” meant just a large group of people—it would make little sense. Moreover, the HSC examined the commentary and noted that police officers are a distinct group of people who are not considered members of the general public.


“The Public” Means, well, the Community . . . When a word is not defined by statute, courts can rely on “ordinary and familiar signification” and the “general and popular use” of the word. Wells Fargo Bank, N.A. v. Omiya, 142 Hawai'i 439, 449, 420 P.3d 370, 380 (2018). For that, the courts look to the dictionary. Id. at 449-450, 420 P.3d at 380-381. Here, the HSC defined “the public” to mean “[t]he community or the people as a whole.” The American Heritage Dictionary (5th ed. 2020).


Discrete Groups like Cops and your Family Don’t Count. With this definition, the HSC noted that members of a distinct group are not members of “the public.” The commentary even notes that the police are not considered part of “the public” because of their training and the expectation that they are “employed to bear the burden of hazardous situations[.]” HRS § 711-1101 cmt.


The HSC also provided a hypothetical. It noted that if the statutory definition applied instead of the dictionary’s definition, “then an out-of-control brawl at a big family gathering could lead to multiple ‘disorderly conduct’ convictions under HRS § 711-11011)(a)—even if the melee happened at a private home and all the participants were family. That makes no sense.”


. . and Neither did the Workers in the Convoy. The HSC applied the definition to the case here. The workers were not considered members of “the public” because they were a “subset of people tasked with facilitating the [telescope’s] construction.” The HSC also noted that they were the very group of people Kaeo “targeted with his conduct. This conceptual nexus between Kaeo’s conduct and the convoy workers’ presence at the Baseyard . . . precludes us from treating the convoy workers as ‘members of the public.” And without that element proven, there was no substantial evidence proven at trial. The HSC reversed the conviction.

Editor’s Note. The HSC’s analysis centered only on the interpretation of the disorderly conduct statute. It made no comment on the ICA’s constitutional analysis. It would seem then that the ICA’s First Amendment analysis—that Kaeo’s conduct was not protected by the constitution—remains.


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