CONSTITUTION OF THE

UNITED STATES OF AMERICA

 

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  This copy of the Constitution and its amendments contains the orthography and punctuation of the originals.

  Generally, the annotations to the Constitution cover cases decided after statehood only.  On application of Constitution and laws of the United States to Hawaii between annexation and the establishment of the Territorial government, see Joint Resolution of Annexation and notes thereto, RLH 1955, page 13; on application of the Constitution and laws to Hawaii thereafter until statehood, see Organic Act and notes thereto, post.

 

 

     WE THE PEOPLE of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this CONSTITUTION for the United States of America.

 

ARTICLE I

 

     Section 1.  All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

 

Case Notes

 

  U.S. Sentencing Commission Guidelines Manual was not rendered unconstitutional by Title IV of the Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003 (PROTECT Act), Pub. L. No. 108-21.  302 F. Supp. 2d 1170.

 

 

     Section 2.  The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

     No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

     Representatives and direct Taxes shall be apportioned among the several States which may be included within the Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.*  The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.  The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

     When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

     The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

 

Attorney General Opinions

 

  State legislature may not impose additional qualifications to federal offices.  Att. Gen. Op. 75-22.

 

Law Journals and Reviews

 

  Trailblaze or Retreat?  Political Gerrymandering After Vieth v. Jubelirer.  27 UH L. Rev. 269.

 

Case Notes

 

  State must depend on total federal census figures to apportion congressional districts.  552 F. Supp. 554.

 

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*See the XIVth amendment, §2, and the XVIth amendment.

 

     Section 3.  [The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.]*

     Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes.  The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year;[and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.]*

     No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

     The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

     The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

     The Senate shall have the sole Power to try all Impeachments.  When sitting for that Purpose, they shall be on Oath or Affirmation.  When the President of the United States is tried, the Chief Justice shall preside:  And no Person shall be convicted without the Concurrence of two thirds of the Members present.

     Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States:  but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

 

Attorney General Opinions

 

  State legislature may not impose additional qualifications to federal offices.  Att. Gen. Op. 75-22.

 

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*Superseded by the XVIIth amendment.

 

     Section 4.  The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

     [The Congress shall assemble at least once in every Year, and such Meetings shall be on the first Monday in December, unless they shall by Law appoint a different Day.]*

 

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*Superseded by the XXth amendment.

 

     Section 5.  Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

     Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and with the Concurrence of two thirds, expel a Member.

     Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

     Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

 

     Section 6.  The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States.  They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

     No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a member of either House during his Continuance in Office.

 

     Section 7.  All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

     Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it.  If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law.  But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively.  If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

     Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

 

     Section 8.  The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts, and Excises shall be uniform throughout the United States;

     To borrow Money on the credit of the United States;

     To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

     To establish an uniform Rule of Naturalization, and uniform Laws, on the subject of Bankruptcies throughout the United States;

     To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

     To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

     To establish Post Offices and post Roads;

     To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

     To constitute Tribunals inferior to the supreme Court;

     To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

     To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

     To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

     To provide and maintain a Navy;

     To make Rules for the Government and Regulation of the land and naval Forces;

     To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions:

     To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

     To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And

     To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

 

Attorney General Opinions

 

  A bill that requires the labeling of poultry products specifying their geographic origin on their container does not violate the U.S. Constitution's commerce clause.  Att. Gen. Op. 67-11.

  Proposed amendment to article 8, titled "Nuclear Energy", of chapter 14 of Hawaii County Code, that would prohibit the transportation into or storage of any radioactive material that could be used, e.g., in an irradiation facility, impermissibly regulated the flow of interstate commerce and thus violated the commerce clause.  Att. Gen. Op. 99-1.

 

Law Journals and Reviews

 

Bankruptcy.

  The "ABCs" of Hawaii's Assignment for Benefit of Creditors Law.  13 HBJ, no. 13, at 127 (2009).

  Setting Aside Transfers of Property in Foreign Countries:  How Long Is the Reach of the United States Bankruptcy Court?  32 UH L. Rev. 53 (2009).

 

Commerce.

  The New Resident:  Hawaii's Second-Class Citizen.  5 HBJ 77.

  The Power of the Courts to Protect Journalists' Confidential Sources of Information:  An Examination of Proposed Shield Legislation.  11 HBJ 35.

  Hawaii's Quarantine Laws:  Can Spot Come Home?  13 UH L. Rev. 175.

  A Skeleton in the Legal Closet:  The Discovery of "Kennewick Man" Crystalizes the Debate over Federal Law Governing Disposal of Ancient Human Remains.  21 UH L. Rev. 41.

  The Jurisdictional Limits of Federal Criminal Child Pornography Law.  21 UH L. Rev. 73.

  Federalism and Federal Spending:  Why the Religious Land Use and Institutionalized Persons Act of 2000 is Unconstitutional.  23 UH L. Rev. 479.

  The Akaka Bill:  The Native Hawaiians' Race For Federal Recognition.  23 UH L. Rev. 857.

  Loko i‘a:  A Legal Guide to the Restoration of Native Hawaiian Fishponds Within the Western Paradigm.  24 UH L. Rev. 657.

  The Aboriginal Land Title of the Native People of Guam.  26 UH L. Rev. 1.

  Price Controls in Paradise:  Foreshadowing the Legal and Economic Consequences of Hawai‘i's Gasoline Price Cap Law.  27 UH L. Rev. 549.

  Gonzales v. Raich:  How the Medical Marijuana Debate Invoked Commerce Clause Confusion.  28 UH L. Rev. 261.

  Crying Over Spilt Milk:  Recognizing Hawaii's Unique State Characteristics in the Context of the Dormant Commerce Clause.  32 UH L. Rev. 513 (2010).

 

Patents and copyrights.

  Questions and Answers About the Performance of Music Under the New Copyright Law.  15 HBJ 21.

  Discretionary Use of the Doctrine of Equivalents in Patent Law:  Going Beyond the Triple Identity Test of Graver Tank.  17 UH L. Rev. 513.

  The Misappropriation Doctrine in Cyberspace:  Protecting the Commercial Value of "Hot News" Information.  20 UH L. Rev. 421.

  Music on the Internet:  An International Copyright Dilemma.  23 UH L. Rev. 183.

  No Free Music:  Effect of A & M Records, Inc. v. Napster, Inc. on the Music Industry and Internet Copyright Law.  23 UH L. Rev. 767.

  New York Times Co. v. Tasini:  Can Electronic Publications Ever Be Considered Revisions of Printed Media?  24 UH L. Rev. 843.

  A Macabre Fixation:  Is Plastination Copyrightable?  32 UH L. Rev. 125 (2009).

  Property Law and American Empire.  34 UH L. Rev. 471 (2012).

  America Invents Act:  Promoting Progress or Spurring Secrecy?  36 UH L. Rev. 1 (2014).

 

Taxing and spending.

  Federalism and Federal Spending:  Why the Religious Land Use and Institutionalized Persons Act of 2000 is Unconstitutional.  23 UH L. Rev. 479.

  Patricia N. v. LeMahieu:  Abrogation of State Sovereign Immunity Under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act After Board of Trustees v. Garrett.  24 UH L. Rev. 347.

 

Case Notes

 

Commerce.

  Fifth Amendment's takings clause precludes federal government from exercising commerce clause authority to promote navigation.  444 U.S. 164.

  Liquor tax exemption for okolehao and pineapple wine violated commerce clause because it had both purpose and effect of discriminating in favor of local products.  468 U.S. 263.

  Lagoon formed from littoral Hawaiian fishpond was incapable of use as continuous highway for purpose of navigation in interstate commerce, not subject to federal navigational servitude.  944 F.2d 1489.

  No commerce clause violation by state anchoring and mooring regulations where state's interest in having regulations for public safety is substantial and there is little burden on interstate commerce.  42 F.3d 1185.

  Where defendant argued that Congress exceeded its authority under commerce clause when it enacted 21 U.S.C. §841(a)(1), i.e., defendant contended, inter alia, that possession of a controlled substance is not necessarily a commercial activity that may be regulated under commerce clause, defendant's commerce clause argument lacked merit.  94 F.3d 1247.

  Where defendant who entered conditional guilty pleas to two counts of illegal possession of a firearm, contended that 18 U.S.C. §922(g), as applied to defendant, represented an unconstitutional extension of Congress' power to regulate interstate commerce, and that §922(g) could not be justified as having a substantial effect on interstate commerce, district court's denial of defendant's motion to dismiss on commerce clause grounds affirmed.  479 F.3d 1153.

  Plaintiffs lacked standing where they asserted that the cabotage provisions of the Jones Act violated the commerce clause; even if plaintiffs established standing, they would still fail to state a claim.  The commerce clause does not limit Congress' authority to regulate interstate commerce and plaintiffs' complaint was aimed squarely at a regulation of commerce among the several states, specifically shipping between Hawaii and the other states.  795 F.3d 1012 (2015).

  Airline engaged in interstate and foreign commerce subject to suit in Hawaii.  253 F. Supp. 588.

  Control share acquisition law is unconstitutional because it directly burdens interstate commerce and its indirect burden on commerce outweighs its benefits.  643 F. Supp. 161.

  Congress is provided with the exclusive authority to regulate the nation's waterways.  725 F. Supp. 1509.

  Defendant's motion to dismiss indictment alleging that defendant violated 18 U.S.C. §922(g) by possessing a rifle and ammunition while being an unlawful user of a controlled substance denied, where defendant argued that the statute, as applied to the facts of the case, was an unconstitutional exercise of Congress' commerce clause authority.  351 F. Supp. 2d 1045.

  Plaintiff had not presented sufficient evidence to raise a question of fact as to whether the seasonal ban on parasailing imposed clearly excessive burdens on interstate commerce. 380 F. Supp. 2d 1160.

  Plaintiff fireworks company was unlikely to succeed on the merits in alleging that a Honolulu city ordinance, prohibiting the importation of consumer fireworks into Honolulu, violated the commerce clause; the city's interest in the safety of its citizens reasonably outweighs any incidental impact on interstate commerce; also, the commerce clause does not protect plaintiff's method of operation in a retail market.  796 F. Supp. 2d 1261 (2011).

  Not all burdens imposed by a state upon commerce, but only undue or discriminatory ones, are forbidden.  46 H. 269, 379 P.2d 336; 48 H. 486, 405 P.2d 382.

  General excise tax on commissions received by travel agencies does not offend the commerce clause if (1) it does not discriminate against interstate commerce, (2) it is fairly apportioned so as to cover only income attributable to activity within state, (3) it does not subject interstate commerce to cumulative taxation.  53 H. 419, 495 P.2d 1172.

  A tax upon out-of-state company's income based upon leased telecast rights exercisable only in Hawaii held not unconstitutional burden on interstate commerce.  57 H. 175, 554 P.2d 242.

  Where comparison between out-of-state taxpayer and its in-state counterpart shows tax advantage to the former, such taxpayer has no ground to complain that use tax violates the commerce clause.  58 H. 163, 566 P.2d 1091.

  Imposition of public service company tax on interisland air carrier was not undue burden on commerce.  65 H. 1, 647 P.2d 263.

  No violation in exempting certain locally produced products from liquor tax.  65 H. 566, 656 P.2d 724.

  No violation of commerce clause by Hawaii's imposition of general excise tax on Delaware corporation which sold books to the state library where corporation's presence in Hawaii was a continuous process of sales and service creating a substantial legal nexus with Hawaii, and tax was "internally" and "externally" consistent for fair apportionment of taxable income.  103 H. 359, 82 P.3d 804.

  Section 707-756 does not concern interstate commerce, and therefore, scrutiny under the commerce clause was not appropriate.  Assuming, arguendo, that §707-756 warranted commerce clause scrutiny, the section does not violate the dormant commerce clause.  131 H. 312 (App.), 318 P.3d 602 (2013).

 

Naturalization.

  The Welfare Reform Act established a uniform federal structure for providing welfare benefits to distinct classes of aliens.  The entire benefit scheme flows from these classifications; a state's limited discretion to implement a plan for a specified category of aliens does not defeat or undermine uniformity.  748 F.3d 875 (2014).

  The limited discretion authorized to states for the third category of aliens established by the Welfare Reform Act, which included Compact of Free Association residents, did not undermine the uniformity requirement of the naturalization clause.  797 F.3d 572 (2014).

 

Necessary and proper.

  Migratory Bird Treaty Act was upheld by Supreme Court under necessary and proper clause and Article II treaty-making power.  103 F.3d 1475.

  Treaty power coupled with the necessary and proper clause provided Congress with an additional source of authority to apply federal statute beyond U.S. borders.  525 F.3d 709.

  Respondent contended that Congress exceeded its authority in enacting 18 U.S.C. §4248 of the Adam Walsh Child Protection and Safety Act as applied to persons, like respondent, who are in the custody of the Bureau of Prisons, but whose sentences have expired; Congress did not exceed its authority in enacting a civil commitment scheme that applies to persons in the custody of the Bureau of Prisons.  574 F. Supp. 2d 1123 (2008).

 

Taxing and spending.

  Allegation that State improperly administers unemployment compensation program is not sufficient to confer standing to challenge federal contributions to state program.  691 F.2d 905.

 

 

     Section 9.  The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

     The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

     No Bill of Attainder or ex post facto Law shall be passed.

     No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.

     No Tax or Duty shall be laid on Articles exported from any State.

     No Preference shall be given by an Regulation of Commerce or Revenue to the Ports of one State over those of another:  nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

     No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

     No Title of Nobility shall be granted by the United States:  And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

 

Law Journals and Reviews

 

Habeas corpus.

  Habeas Corpus, Equitable Tolling, and AEDPA's Statute of Limitations:  Why the Schlup v. Delo Gateway Standard for Claims of Actual Innocence Fails to Alleviate the Plight of Wrongfully Convicted Americans.  31 UH L. Rev. 225.

 

Case Notes

 

Ex post facto law.

  Ex post facto clause did not bar aggregation of amounts of contraband distributed before and after effective date of federal statute during course of single ongoing conspiracy.  938 F.2d 972.

  No ex post facto clause violation despite crew members' claims that possession of drugs on ship became illegal only when ship's flag nation consented to authority of U.S. law.  35 F.3d 426.

  Not violated by rule that, for purposes of criminal history calculation, state conviction for conduct which occurred after defendant's federal offense, but for which defendant was sentenced before defendant's sentencing on the federal offense, is counted as a prior sentence.  44 F.3d 749.

  Applicability of provisions of Title IV of the Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003 (PROTECT Act), Pub. L. No. 108-21, and amendments to U.S. Sentencing Commission Guidelines Manual in defendant's sentencing, where defendant's criminal conduct clearly preceded the enactment of the relevant law, discussed.  302 F. Supp. 2d 1170.

  Because 18 U.S.C. §4248 of the Adam Walsh Child Protection and Safety Act is civil and not criminal in nature, the Constitution's ex post facto clause does not apply.  574 F. Supp. 2d 1123 (2008).

 

Habeas corpus.

  Where applicants, passengers on vessel intercepted by U.S. Coast Guard and brought to Midway Island, argued that Immigration and Nationality Act effectively eliminated habeas jurisdiction and that such a repeal violated the suspension clause, Congress had not provided the benefit of a habeas corpus proceeding for aliens who were not in the United States; thus, applicants had no constitutional claim.  71 F. Supp. 2d 1052.

 

     Section 10.  No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

     No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws:  and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress.

     No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

 

Attorney General Opinions

 

Ex post facto law.

  Law requiring reporting of campaign contributions made before effective date of Act was not an ex post facto law.  Att. Gen. Op. 73-17.

 

Import-export.

  Hawaii's general excise and use taxes do not constitute an improper "Impost or Duty" under the import-export clause.  Att. Gen. Op. 94-2.

 

Obligation of contracts.

  Milk control legislation enacted within the proper exercise of a State's police powers will not be declared unconstitutional even though it may impair the obligation of a pre-existing contract.  Att. Gen. Op. 67-10.

 

Title of nobility.

  Section prohibits the states from granting titles of royalty upon their citizens.  Att. Gen. Op. 68-20.

 

Law Journals and Reviews

 

  For discussion of contracts clause, see Hawaii's Land Reform Act:  Is it Constitutional?  6 HBJ 31.

  The Contract Clause:  The "Regulated Industry" Exception.  8 UH L. Rev. 135.

  Kapiolani Park Preservation Society v. City and County of Honolulu:  The Lease of Public Park Land as a Breach of a Charitable Trust.  11 UH L. Rev. 199.

 

Case Notes

 

Bill of attainder.

  Plaintiffs, owners of leasehold interests in a condominium complex, did not meet the burden of establishing that the savings clause of the ordinance which repealed chapter 38 of the Revised Ordinances of Honolulu constituted a bill of attainder.  378 F. Supp. 2d 1258.

  Chapter 134 is not an impermissible bill of attainder with respect to plaintiff.  548 F. Supp. 2d 1151.

 

Duty of tonnage.

  Mooring and anchoring fees imposed by state regulations not a duty of tonnage.  42 F.3d 1185.

  Where plaintiffs argued that mooring and anchoring fees charged by State were duty of tonnage in violation of this section, plaintiffs' Article I challenge denied.  823 F. Supp. 766.

  Division of boating and ocean recreation's assessment of a two per cent ocean recreation management area fee against vessel was an impermissible tax in violation of prohibition against tonnage duties; two per cent use fee assessed other vessel was not a prohibited duty of tonnage.  195 F. Supp. 2d 1157.

 

Ex post facto law.

  Not violated by rule that, for purposes of criminal history calculation, state conviction for conduct which occurred after defendant's federal offense, but for which defendant was sentenced before defendant's sentencing on the federal offense, is counted as a prior sentence.  44 F.3d 749.

  Inmates' claim that sex offender treatment program violated ex post facto clause was ripe; sex offender treatment program did not violate ex post facto clause.  131 F.3d 818.

  Prison's policy of not placing untreated sex offenders in minimum custody did not violate ex post facto clause.  905 F. Supp. 813.

  General definition of.  50 H. 351, 440 P.2d 528.

  1964 amendments to the negligent homicide statute, as applied to prior wrongdoers, were not ex post facto.  50 H. 351, 440 P.2d 528.

  Law providing for increased punishment for repeat offenders, was not violative of the ex post facto clause.  61 H. 262, 602 P.2d 914.

  Retrospective application of §291-4, as amended by Act 128, L 1993, did not violate ex post facto clause.  76 H. 360, 878 P.2d 699.

  Chapter 846E not violative of this clause as legislature's express purpose was for chapter to be remedial rather than punitive and statutory scheme is not so punitive as to negate the State's remedial purpose.  105 H. 222, 96 P.3d 242.

  The constitutional prohibition against ex post facto measures was not offended by the plain language of Act 1, L Sp 2007 2d, amending §§706-661, 706-662, and 706-664 regarding sentencing or resentencing for extended terms of imprisonment, where it was clear that the new jury provisions did not (1) increase criminal liability for conduct previously innocent, (2) aggravate the degree of defendant's crimes, (3) increase the punishment available at the time defendant committed defendant's crimes, or (4) alter evidentiary standards to defendant's detriment.  117 H. 381, 184 P.3d 133.

  Where the department of public safety's (DPS) written policy for computing presentence credit for consecutive sentences merely adopted and enforced the holding of Tauiliili, which set forth the proper interpretation of §706-671, any change in the DPS's or the Hawaii paroling authority's internal policies regarding the calculation of presentence credit was irrelevant for purposes of an ex post facto analysis.  125 H. 429, 263 P.3d 709 (2010).

  The constitutional prohibition against ex post facto measures was not offended by the retrospective application to defendant of Act 1, L Sp 2007 2d, amending §§706-661, 706-662, and 706-664, where Act 1 did not punish as a crime an act previously committed which was innocent when done, make more burdensome the punishment for the crime after its commission, nor deprive one charged with the crime of any defense available according to the law when the act was committed.  118 H. 68 (App.), 185 P.3d 816.

 

Import-export.

  No violation in exempting certain locally produced products from liquor tax.  65 H. 566, 656 P.2d 724.

 

Obligation of contracts.

  District court did not abuse its discretion in granting plaintiffs' motion for a preliminary injunction, where court granted a preliminary injunction against operation of Act 355, L 1997  (which amended §78-13), State's "pay lag" law, on the ground that it impaired the obligations of the employees' collective bargaining agreement in violation of the contract clause.  183 F.3d 1096.

  Where lessees claimed that the ordinance that repealed chapter 38 of the Revised Ordinances of Honolulu impaired their contracts with the city and county of Honolulu in violation of the contracts clause, the reserved powers doctrine did not apply and U.S. Trust Co. v. New Jersey's heightened scrutiny test provided the mandatory analysis.  512 F.3d 1148.

  City ordinance that repealed an existing ordinance that allowed condominium lessees to convert their leasehold interests into fee interests through city's power of eminent domain was not in violation of the contracts clause because it did not impair the city's contractual relationships with lessees, who at the time, did not have the condemnation of their property approved by the city council prior to the effective date of the repealing ordinance.  639 F.3d 907 (2011).

  Zoning regulations did not impair development contract but only affected property which was subject matter of contract.  649 F. Supp. 926.

  Plaintiffs' motion for a preliminary injunction granted, where plaintiffs filed motion seeking to enjoin defendants from delaying payroll under Act 355, L 1997 (which amended §78-13), with respect to University of Hawaii faculty members, arguing that Act 355 violated the contract clause because a five-day delay in pay violated the collective bargaining agreement between the State and the faculty members at the University.  16 F. Supp. 2d 1242.

  Where there was no existing contract that Act 355, L 1997 (amending §78-13), impaired, no contracts clause violation possible and injunction no longer needed; the case was moot.  125 F. Supp. 2d 1237.

  Chapter 134 imposes no impairment of a contractual right possessed by plaintiff.  548 F. Supp. 2d 1151.

  Ordinance that repealed chapter 38, Revised Ordinances of Honolulu, which allowed owners of long-term leasehold interests to convert them into fee interests through the city and county of Honolulu's eminent domain power, did not violate the contracts clause.  630 F. Supp. 2d 1233 (2009).

  Contract clause violated where Act 189 of the 2009 Hawaii legislature (relating to real property) did not provide for "reasonable conditions" for meeting the legitimate purpose of Act 189 and was not "of a character appropriate to the public purpose".  715 F. Supp. 2d 1115 (2010).

  The legislature may alter or abolish public positions.  48 H. 370, 405 P.2d 772.

  State law requiring lessor to purchase leasehold improvements upon termination of lease unconstitutionally impairs obligation of preexisting lease contract.  69 H. 112, 736 P.2d 55.

  Clause does not prohibit execution of state laws on Hawaiian home lands merely because Congress has not expressed its consent to the exercise of such enforcement power.  80 H. 168, 907 P.2d 754.

  No violation by repeal of court reporter temporary certification rule where repeal did not substantially impair plaintiff's contractual relationships, repeal served a significant and legitimate public purpose, and was reasonably and narrowly drawn.  82 H. 329, 922 P.2d 942.

 

 

 

ARTICLE II

 

Case Notes

 

  Migratory Bird Treaty Act was upheld by Supreme Court under Article I, Section 8 necessary and proper clause and Article II treaty-making power.  103 F.3d 1475.

 

     Section 1.  The executive Power shall be vested in a President of the United States of America.  He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected as follows

     Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress:  but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

     [The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves.  And they shall make a List of all the Persons voted for, and the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate.  The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted.  The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President.  But in chusing the President, the Votes shall be taken by States, the Representation from each State having one vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice.  In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President.  But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President].*

     The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

     No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

     In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.**

     The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

     Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:-- I do solemnly swear (or affirm) that I will faithfully execute the Office of the President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.

 

Attorney General Opinions

 

  State legislature may not impose additional qualifications to federal offices.  Att. Gen. Op. 75-22.

 

_______________

 

*Superseded by XIIth and XXth amendments.

**See the XXth and XXVth amendments.

 

     Section 2.  The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons, for Offences against the United States, except in Cases of Impeachment.

     He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law:  but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

     The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

 

Law Journals and Reviews

 

  Peeking Abroad?:  The Supreme Court's Use of Foreign Precedents in Constitutional Cases.  26 UH L. Rev. 385.

 

Case Notes

 

  Temporary judicial commissions valid.  751 F.2d 1008.

 

     Section 3.  He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

 

     Section 4.  The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

 

ARTICLE III

 

Law Journals and Reviews

 

  The Constitutional Structure of the Courts of the United States Territories:  The Case of American Samoa.  13 UH L. Rev. 379.

  Judicial Review and Sexual Freedom.  30 UH L. Rev. 1.

 

Case Notes

 

  Not violated by magistrate's review of motion to dismiss, where district court exercised own judgment.  764 F.2d 690.

  Plaintiff lacked standing under Article III to maintain action regarding U.S. Army's decision to award computer service contract, because plaintiff conceded that plaintiff had no substantial chance of receiving the award.  113 F.3d 1129.

  All parties' motions for summary judgment with respect to L 2009, Act 189, regarding leases of commercial and industrial property, denied; the court does not presently adopt the parties' assumption that, for standing purposes, a dollar loss is the only possible injury.  676 F. Supp. 2d 1036 (2009).

 

     Section 1.  The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.  The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation which shall not be diminished during their Continuance in Office.

 

Law Journals and Reviews

 

  The Price of Precedent:  Anastasoff v. United States.  23 UH L. Rev. 795.

  From Anti-Injunction to Radical Reform:  Proposing a Unifying Approach to Class-Action Adjudication.  31 UH L. Rev. 155.

  Setting Aside Transfers of Property in Foreign Countries:  How Long Is the Reach of the United States Bankruptcy Court?  32 UH L. Rev. 53 (2009).

 

Case Notes

 

  Recess appointee to federal bench cannot exercise judicial power of United States.  726 F.2d 1328.

  Not violated by magistrate-conducted voir dire in criminal case without defendant's consent.  760 F.2d 999.

  Rule that jury selection by magistrate without defendant's consent violates Federal Magistrate Act did not apply retroactively to final conviction challenged on collateral review.  944 F.2d 523.

  Defendant has constitutional right to have all stages of a criminal trial conducted by a person with jurisdiction to preside.  42 F.3d 473.

  Congress need not make an Article 3 court available for adjudication of disputes arising out of events occurring within a United States territory.  550 F. Supp. 1227.

  U.S. Sentencing Commission Guidelines Manual was not rendered unconstitutional by Title IV of the Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003 (PROTECT Act), Pub. L. No. 108-21.  302 F. Supp. 2d 1170.

 

 

     Section 2.  The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party; to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

     In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.  In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

     The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

 

Law Journals and Reviews

 

  The Judicial Improvements Act of 1990:  Historic Changes in Federal Civil Procedure Aimed at Improving the Efficiency of Federal Courts and Reducing the Uncertainty and Cost Associated with Federal Litigation.  23 HBJ 41.

  Hawaii's Thousand Friends v. Anderson:  Standing to Challenge Governmental Actions.  12 UH L. Rev. 435.

  Evolution of the Act of State Doctrine:  W.S. Kirkpatrick Corp. v. Environmental Tectonics Corp. and Beyond.  13 UH L. Rev. 687.

  Hawai‘i's Justiciability Doctrine.  26 UH L. Rev. 537.

  How to Transfer Venue When You Only Have One:  The Problem of High Profile Criminal Jury Trials in American Samoa.  29 UH L. Rev. 325.

  Standing Down:  The Negative Consequences of Expanding Hawai‘i's Doctrine of Standing.  30 UH L. Rev. 475.

  Setting Aside Transfers of Property in Foreign Countries:  How Long Is the Reach of the United States Bankruptcy Court?  32 UH L. Rev. 53 (2009).

 

Case Notes

 

  Standing of various taxpayers to challenge alleged unconstitutionality of OHA programs.  741 F.2d 1169.

  Case or controversy requirement satisfied by cloud on title created by litigation and language of court decisions.  753 F.2d 1468.

  Native Hawaiian group had standing to bring injunctive action for violation of Admission Act.  764 F.2d 623.

  Alleged past mistreatment of litigant, by itself, was insufficient to demonstrate likelihood of future deprivations for purposes of meeting case or controversy requirement.  961 F.2d 852.

  Congress had power through "arising under" clause to enact alien tort statute.  978 F.2d 493.

  District courts have original jurisdiction under Alien Tort Act for suit by alien for wrongful death, committed by military intelligence officials through torture prohibited by the law of nations.  25 F.3d 1467.

  Foreign Sovereign Immunities Act does not apply when action is against estate of an individual foreign official whose actions were outside the official's scope of authority.  25 F.3d 1467.

  Plaintiffs, Hawai‘i medicaid recipients who suffered from tobacco-related illnesses, had standing in suit against state officials, where plaintiffs alleged that the officials violated and continued to violate federal disbursement rules for medicaid recovery.  311 F.3d 929.

  Plaintiffs lacked standing to challenge the restriction on office of Hawaiian affairs trustee appointments to Hawaiians, because plaintiffs neither alleged nor provided evidence of any injury related to the appointment process.  314 F.3d 1091.

  Appellant lacked standing to challenge (1) office of Hawaiian affairs business loan program where appellant failed to demonstrate an injury in fact; and (2) native Hawaiian eligibility requirement for Hawaiian homestead leases because appellant's injury was not redressable.  342 F.3d 934.

  Appellant who contended, among other things, injury by the provisions of article XII of the state constitution and chapter 10 personally subjecting appellant to racial classification, lacked standing as appellant did not suffer an injury in fact. 342 F.3d 934.

  Appellant was properly tried and convicted in the U.S. district court for the district of Hawaii for committing federal crimes in American Samoa, where, inter alia, venue was proper in the district of Hawaii under 18 U.S.C. §3238.  472 F.3d 638.

  Plaintiffs who challenged the department of Hawaiian home lands (DHHL)/Hawaiian homes commission (HHC) lease eligibility programs in their capacity as state taxpayers, lacked standing to sue the United States and the United States remained an indispensable party to any challenge to the DHHL/HHC lease eligibility criteria; plaintiffs did not have standing as state taxpayers to challenge the appropriation of state revenue to the office of Hawaiian affairs.  477 F.3d 1048.

  Plaintiffs' claims for prospective relief arising from the government's seizure of marijuana met the constitutional requirements and prudential factors for ripeness, and plaintiffs had associational standing to assert the claims; seizure of plaintiffs' marijuana that had already occurred created a justiciable case and controversy about plaintiffs' constitutional and statutory entitlement to use marijuana for religious purposes; adjudication of plaintiffs' claims did not require that the court entangle itself in hypothetical scenarios or "abstract disagreements".  676 F.3d 829 (2012).

  Plaintiff wedding event professionals association had Article III standing to assert claims on behalf of those who sought to marry on an unencumbered state beach in Hawaii; application of department of land and natural resources regulations to commercial weddings had resulted in economic injury to "vendors", that is, to the members of the association, who organized such weddings; members of association were "subject to sanction and loss of license for violation of the [regulations]", making them "a proper party in interest...."  682 F.3d 789 (2012).

  Plaintiffs lacked standing, where they asserted that the cabotage provisions of the Jones Act violated the commerce clause.  Although plaintiffs' claim was not a generalized grievance because the alleged harm was not entirely of an abstract and indefinite nature, plaintiffs alleged facts showing that two companies may well have engaged in their injury-inflicting actions even in the absence of the government's challenged conduct, and plaintiffs did not show a likelihood that the shipping companies would lower their prices if the challenged provisions of the Jones Act were invalidated.  795 F.3d 1012 (2015).

  Statute authorizing search and seizure of psychiatrist's records inflicts "injury in fact" which satisfies case or controversy requirement.  481 F. Supp. 1028.

  Case or controversy presented.  588 F. Supp. 889; 590 F. Supp. 778.

  No standing to sue for price-fixing and monopoly since no showing that alleged price-fixing caused injury.  606 F. Supp. 584.

  Whether liability coverage existed was case or controversy even before insured's liability determined.  608 F. Supp. 383.

  No alienage jurisdiction where aliens on both sides of litigation.  778 F. Supp. 1535.

  No case or controversy where plaintiffs not threatened with nor subject to application of Hawaii employment discrimination statute, chapter 378.  800 F. Supp. 882.

  Plaintiff had no standing to bring Truth in Lending Act claims unless plaintiff could show claims were exempt from bankruptcy estate or abandoned by bankruptcy trustee.  949 F. Supp. 1447.

  Requests for injunctive and declaratory relief rendered moot by the cessation of the disputed low-frequency active sonar research and the expiration of the subject permit.  14 F. Supp. 2d 1198.

  Plaintiff did not have standing to bring lawsuit, where plaintiff asserted mishandling of annual social security trust funds from 1960-1996, by improperly allowing social security trust funds to be spent for deficit reduction.  37 F. Supp. 2d 1176.

  Plaintiff was without standing, where plaintiff sought to enjoin State and city and county of Honolulu from implementation or enforcement of any and all state statutes and city ordinances that might apply to the business that plaintiff claimed to be developing, involving a commercial boating activity on the Ala Wai canal.  57 F. Supp. 2d 1028.

  Plaintiff, disabled individual who required a wheelchair to gain mobility, met constitutional minimum of Article III standing to seek injunctive relief for alleged Americans with Disabilities Act of 1990 violations plaintiff encountered at fast food franchised restaurant and had standing to sue for injunctive relief for barriers not initially encountered; plaintiff's claims not specifically related to nonmobility denied due to lack of standing.  96 F. Supp. 2d 1065.

  Department of education's appeal of hearing officer's award of compensatory education moot; student had already received award of three months of compensatory education and had already graduated from high school.  127 F. Supp. 2d 1103.

  Defendants' motion to dismiss plaintiff's appeal of plaintiff's claim for compensatory education granted, where appeal of hearing officer's award moot; among other things, plaintiff had received a high school diploma.  127 F. Supp. 2d 1117.

  Defendants' issuance of supplemental environmental assessment for routine training at Makua Military Reservation and PFC Pililaau Range Complex (SEA) and finding of no significant impact (FONSI) constituted a final agency action ripe for judicial review at commencement of litigation under Administrative Procedure Act; plaintiff's claims had not been rendered moot by defendants' voluntary withdrawal of SEA and FONSI.  136 F. Supp. 2d 1155.

  Plaintiff challenging constitutionality of article XII of state constitution insofar as it created Hawaiian Homes Commission and office of Hawaiian affairs and established native Hawaiian gathering rights, lacked standing, where, inter alia, as to OHA's programs, plaintiff had not suffered injury-in-fact.  188 F. Supp. 2d 1219.

  Plaintiff challenging constitutionality of article XII, §§5 and 6 of state constitution and chapter 10, lacked standing, where plaintiff had not suffered any injury-in-fact.  188 F. Supp. 2d 1233.

  Where plaintiffs, seeking an order enjoining the executive director of the campaign spending commission, the commission, and the commissioners from taking any action adverse to plaintiffs, had not demonstrated a case or controversy for Article III purposes, court dismissed complaint for lack of jurisdiction and denied plaintiffs' motion for preliminary injunction as moot.  199 F. Supp. 2d 1018.

  Plaintiffs alleging systemic harassment of lesbian, gay, bisexual, and transgender youth at a secure juvenile correctional facility, as well as differential treatment by staff and administrators, had standing to seek injunctive relief; one plaintiff's claims had become moot where there was no realistic possibility that the plaintiff would be returned to the facility.  415 F. Supp. 2d 1129.

  Plaintiff, a nonprofit health maintenance organization, satisfied Article III's case or controversy requirement; among other things, plaintiff alleged a concrete and particularized injury in its failure to obtain a contract under the QUEST expanded access program.  567 F. Supp. 2d 1238 (2008).

  Plaintiffs had standing to challenge §11-358 where each plaintiff had had a legitimate desire to make a contribution or contributions that would exceed the statutory limitations pursuant to §11-358 to a committee that made only independent expenditures; such a situation gave rise to an actual controversy. 744 F. Supp. 2d 1075 (2010).

  Claimant, as an unsecured creditor, did not have Article III standing to challenge the forfeiture of debtor's property, assuming that the defendant's money orders were purchased solely from the proceeds of the sale of debtor's property.  780 F. Supp. 2d 1084 (2011).

  Defendant insurance company's motion for judgment on the pleadings granted, inter alia, where insurance policy only covered some property in the individual units if the condo association agreement required the association of apartment owners (AOAO) to provide such insurance; policy did not state that the individual unit owners thereby became insureds who may bring claims against defendant on their own; that is, even if policy expanded what defendant covered for the AOAO, it did not necessarily follow that plaintiffs may themselves enforce the policy; in effect, plaintiffs had no standing to sue.  836 F. Supp. 2d 1117 (2011).

  Defendant insurance company's motion for judgment on the pleadings granted, inter alia, where the court was not persuaded that, by explicitly mentioning §514B-143(a)(1) while remaining silent as to §514B-143(b) in §514B-143(f), the legislature was giving a unit owner a private right of action under §514B-143(b); it could just as easily be said that the legislature's failure to mention any direct action by a unit owner indicated an intent not to permit such an action at all; in effect, plaintiffs had no standing to sue.  836 F. Supp. 2d 1117 (2011).

  Plaintiff physician, in plaintiff's individual capacity and in plaintiff's capacity as manager of defendant LLC, did not have standing to pursue claims on behalf of the other five physicians who were either equity members or employees of the LLC; a court may deny standing to a party because of prudential limitations on the standing doctrine which "include a requirement that the plaintiff assert [plaintiff's] own rights, rather than rely on the rights or interests of a third party".  861 F. Supp. 2d 1170 (2012).

  Plaintiff donors to political action committee had standing to challenge §11-358; they desired to and eventually made contributions that exceeded the statutory limitations, giving rise to an actual controversy; further, if §11-358 was constitutional as applied, they could have been subject to administrative fines or criminal prosecution; moreover, they indicated a legitimate desire to make similar contributions in 2012, and thus a favorable ruling would have allowed them to make further contributions in 2012 without violating the law.  872 F. Supp. 2d 1023 (2012).

  Plaintiff noncandidate committee and government contractor had standing to challenge the "advertising" disclaimer requirements in §11-391(a)(2)(B); first, even if plaintiff had already published advertisements with the disclaimers, it did not mean that it faced no injury; second, plaintiff sought a declaration that it need not include disclaimers in the future and challenged those statutes facially; third, plaintiff did not have to publish the advertisements without the disclaimers to have standing; finally, a favorable ruling would have enabled plaintiff to publish its advertisements without the disclaimers and fear of violating the law.  872 F. Supp. 2d 1023 (2012).

  Plaintiff noncandidate committee and government contractor had standing to challenge the contribution restrictions on government contractors in §11-355, given that plaintiff was a government contractor, had made substantial contributions to candidates in the past, and sought to make future contributions while it was a contractor; moreover, plaintiff did not have to violate the statute to challenge its terms, and a favorable ruling would have allowed plaintiff to make contributions as a contractor without violating the law.  872 F. Supp. 2d 1023 (2012).

  Plaintiff noncandidate committee and government contractor had standing to challenge the "noncandidate committee" and "expenditure" definitions in §11-302, where plaintiff had a good faith basis for believing it should not have to register as a noncandidate committee, giving rise to an actual controversy; if plaintiff ceased registration, but engaged in campaign related activities, it could have subjected itself to possible fines or actions; moreover, a favorable ruling would have allowed plaintiff to cease registration without violating the law.  872 F. Supp. 2d 1023 (2012).

  Plaintiffs asserting that Hawaii's marriage laws were unconstitutional, had standing to seek relief from defendant governor; governor was a proper party in the case.  884 F. Supp. 2d 1065 (2012).

  Plaintiff had not alleged an injury in fact, where plaintiff only alleged that plaintiff faced potential tax liability and penalties as a result of defendants' alleged violations of federal and state tax laws.  It was possible to cure the defects in the amended count by amendment, if plaintiff could allege that plaintiff faced actual or imminent tax liabilities or penalties as a result of defendant's alleged violations of federal and state tax laws.  23 F. Supp. 3d 1152 (2014).

  Employees' retirement system (ERS) trustees had standing as fiduciaries of the system and its members to challenge legislation that would impair the ERS where, because of the legislature's diversion of excess investment earnings to reduction of employer contributions, ERS had continued to suffer a large unfunded actuarial liability, at the very core of the dispute was the impact of Act 100, L 1999 on the viability of the system, and injunctive relief would provide assurance that the legislature would honor its representations that excess investment earnings would be retained by the ERS.  114 H. 302, 162 P.3d 696.

  Plaintiffs did not have standing where they failed to allege an "actual or threatened injury"; argument that impairing the employees' retirement system by removing "actuarial investment earnings in excess of a ten per cent investment yield rate" to be credited against employer contributions required for 1997 and 1998 would ultimately affect all members of the employees' retirement system was "abstract, conjectural, or merely hypothetical" with respect to each individual plaintiff.  114 H. 302, 162 P.3d 696.

  Plaintiffs, retired and current employees challenging the State's removal of excess earnings from the retirement system, did not have standing where they were unable to show that they had "not received any pension benefit to which he or she was entitled", nor were they able to show any "immediate threat that the pension fund would become insolvent".  114 H. 302, 162 P.3d 696.

  Plaintiff-county, acting on behalf of the county council, had standing to maintain action where it (1) sufficiently alleged a threatened injury--the usurpation of the county council's taxing authority, (2) the council's threatened injury was fairly traceable to the defendants' duty to enforce the charter amendment, and (3) a favorable decision of invalidating the charter amendment would likely have provided relief for the threatened injury.  115 H. 15, 165 P.3d 916.

  Where taxpayers failed to allege an injury-in-fact with regard to the Hawaiian homes commission act’s native Hawaiian ancestry qualification for homestead leases, they did not have standing to challenge the constitutionality of the tax exemptions for homestead lessees or the Hawaiian homes commission act generally.  128 H. 89, 283 P.3d 695 (2011).

  Clause 2 did not grant original jurisdiction to U.S. Supreme Court in a case between a state and one of its own citizens; additionally, original jurisdiction did not lie in the U.S. Supreme Court because the instant case involved state penal statutes and was not civil in nature.  77 H. 222 (App.), 883 P.2d 644.

  Where plaintiff failed to demonstrate in plaintiff's complaint "such a personal stake in the outcome of the controversy as to warrant plaintiff's invocation of the court's jurisdiction and to justify exercise of the court's remedial powers on plaintiff's behalf," plaintiff lacked standing to challenge two city zoning and development ordinances.  96 H. 134 (App.), 28 P.3d 350.

 

 

     Section 3.  Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.  No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or in Confession in open Court.

     The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attained.

 

ARTICLE IV

 

     Section 1.  Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.  And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

 

Law Journals and Reviews

 

  Re-Evaluating the Limits of the Full Faith and Credit Clause After Baker v. General Motors Corporation.  21 UH L. Rev. 747.

  Love and Let Love:  Same-Sex Marriage, Past, Present, and Future, and the Constitutionality of DOMA.  22 UH L. Rev. 185.

 

Case Notes

 

  Divorce decrees of foreign countries.  4 U.S.D.C. Haw. 563; 252 F. Supp. 313.

  This clause inapplicable to mere commencement of action in another jurisdiction.  14 H. 80.

  Divorce.  24 H. 239.

  Finality of the judgment, whether a requisite.  40 H. 397.

  Hawaii has as much leeway to depart from foreign judgment as does state rendering it.  41 H. 246; 49 H. 273, 291, 414 P.2d 925.

  Inapplicable to right to practice law.  44 H. 26, 30, 352 P.2d 607; 44 H. 597, 598, 358 P.2d 709.

  Applicability of clause to foreign custody decrees.  49 H. 20, 407 P.2d 885.

  A divorce decree in case when defendant did not appear in person but was represented by counsel who made general appearance is entitled to full faith and credit.  51 H. 173, 454 P.2d 122.

  Basic considerations in sustaining foreign court's assumption of personal jurisdiction over nonresident and according full faith and credit to its judgment.  59 H. 272, 580 P.2d 66.

  Divorce proceedings.  1 H. App. 496, 621 P.2d 387.

  Where it was undisputed that California superior court had in personam jurisdiction over husband and wife at the time the court issued the divorce decree, the divorce decree was entitled to full faith and credit.  119 H. 212 (App.), 194 P.3d 1174.

 

     Section 2.  The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

     A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

     No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

 

Case Notes

 

  Right to harbor berth at the same rates residents receive is not a fundamental privilege of citizenship.  651 F.2d 661.

  None of plaintiffs' "fundamental" rights, for purposes of the privileges and immunities clause, were at stake with respect to charging nonresidents an access fee to enter bay that was designated a marine life conservation district and nature preserve.  215 F. Supp. 2d 1098.

  Where plaintiffs challenged the constitutionality of the pre-employment residency requirement for public employment set forth in §78-1(c), plaintiffs had standing to challenge the constitutionality of §78-1, and the court granted plaintiffs' motion for preliminary injunction to bar defendants from enforcing the pre-employment residency requirement of §78-1(c).  423 F. Supp. 2d 1094.

  Scope of habeas corpus proceeding to resist extradition considered.  48 H. 508, 405 P.2d 309.

  Given the apparent absence of a "countervailing state interest of overriding significance", family court's restrictions violated mother's right to free access to the courts where family court required mother, if she was represented by an attorney, to access the record in the case only through a licensed Hawaii attorney or other attorney admitted pro hac vice, or allowing mother, if she was representing herself pro se, to access the record only if she was accompanied by a family court staff person.  118 H. 293 (App.), 188 P.3d 807.

 

     Section 3.  New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislature of the States concerned as well as of the Congress.

     The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

 

Law Journals and Reviews

 

  The Commonwealth of the Northern Mariana Islands' Rights Under United States and International Law to Control Its Exclusive Economic Zone.  13 UH L. Rev. 477.

  The Evolving Legal Relationships Between the United States and Its Affiliated U.S.-Flag Islands.  14 UH L. Rev. 445.

  Resolving the Hostility:  Which Laws Apply to the Commonwealth of the Northern Mariana Islands When Federal and Local Laws Conflict.  21 UH L. Rev. 237.

  How to Transfer Venue When You Only Have One:  The Problem of High Profile Criminal Jury Trials in American Samoa.  29 UH L. Rev. 325.

  Other Arms:  The Power of a Dual Rights Legal Strategy for the Chamoru People of Guam Using the Declaration on the Rights of Indigenous Peoples in U.S. Courts. 31 UH L. Rev. 113.

 

Case Notes

 

  Authority of Congress to provide for the government of Hawaii prior to statehood was derived from clause 2 of this section.  44 H. 634, 361 P.2d 390.

 

     Section 4.  The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

 

Law Journals and Reviews

 

  Trailblaze or Retreat?  Political Gerrymandering After Vieth v. Jubelirer.  27 UH L. Rev. 269.

 

ARTICLE V

 

     The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

 

ARTICLE VI

 

     All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

     This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges of every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

     The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

 

Attorney General Opinions

 

  Article 8, titled "Nuclear Energy", of chapter 14 of Hawaii County Code and proposed amendment to the article, that would prohibit the transportation into or storage of any radioactive material that could be used, e.g., in an irradiation facility, were preempted by the Atomic Energy Act of 1954.  Att. Gen. Op. 99-1.

  Allocating royalties from geothermal developments on department of Hawaiian home lands (DHHL) lands to the board of land and natural resources or the counties violated §4 of the Admission Act and article XII, §§1 and 3 of the Hawaii constitution.  It is clear from the Admission Act and the Hawaii constitution that the State has an obligation to manage such resources on Hawaiian home lands for the benefit of native Hawaiians pursuant to the Hawaiian Homes Commission Act (HHCA).  Allocation of royalties from geothermal developments on DHHL lands to entities other than DHHL would be violations of both the Admission Act and the Hawaii constitution because those proceeds would not be available to DHHL to carry out the terms and conditions of the HHCA.  Att. Gen. Op. 14-1.

 

Law Journals and Reviews

 

  Hawaiian Self-Determination:  A Need for Debate.  III HBJ No. 13, at pg. 121.

  Center for Bio-Ethical Reform, Inc. v. City & County of Honolulu:  Demonstrating the Need to Abandon the Field Preemption Doctrine.  29 UH L. Rev. 501.

 

Case Notes

 

Supremacy.

  No implied preemption of state mooring and anchoring regulations where congressional intent to preempt state action is not clearly manifest, federal regulation has not occupied the field of navigation, and the federal interest in navigation is not so dominant as to assume federal preemption of state laws.  42 F.3d 1185.

  No preemption of state mooring and anchoring regulations by Submerged Lands Act where there was no actual conflict between federal Act and Hawaii's regulations.  42 F.3d 1185.

  Act 243 [L 1995] preempted by Newspaper Preservation Act, because Act 243 intruded upon a field preempted by Congress; plaintiffs' preemption claim was ripe.  103 F.3d 742.

  State regulation that prohibited commercial tour boat operators from operating their tour boats in Hanalei Bay, in conjunction with relevant federal shipping laws, violated the supremacy clause.  340 F.3d 1053.

  Device implanted in plaintiff's leg had no requirements imposed upon it by Medical Device Amendments to Federal Food, Drug, and Cosmetic Act or Food and Drug Administration which would preempt state tort claims.  841 F. Supp. 327.

  Where plaintiffs filed motion for preliminary injunction regarding Act 359 of 1993 Hawaii legislature (relating to Hawaiian sovereignty), as amended in 1994 and 1996, no supremacy clause violation found regarding native Hawaiian vote.  941 F. Supp. 1529.

  Genuine issues of material fact precluded summary judgment where defendant argued that it was entitled to summary judgment on some of plaintiff's claims because they were preempted by the Federal Food, Drug, and Cosmetic Act.  For preemption to apply, the facts would have to undisputably demonstrate that defendant could not manufacture a feed that satisfied plaintiff's minimum taurine requirement without taurine supplementation.  971 F. Supp. 2d 1017 (2013).

  Complaint did not allege conduct which would constitute state tort exception to area of labor relations otherwise preempted by federal law.  65 H. 189, 649 P.2d 1119; 73 H. 276, 831 P.2d 1335.

  Implied warranty claim not preempted by Medical Device Amendments to Federal Food, Drug, and Cosmetics Act.  74 H. 1, 837 P.2d 1273.

  Federal Aviation Act did not preempt state's power, under §239-6, to tax gross receipts attributable to the ground transportation portion of air packages that common carrier transported interisland and/or between Hawaii and the mainland.  88 H. 336, 966 P.2d 648.

  Public utilities commission correctly determined that it could not assume jurisdiction over federal military camp and dismissed complaint for lack of subject matter jurisdiction as this Article preempted any state regulation over the military camp; it was not shown that camp was not an instrumentality of the United States and therefore not entitled to invoke immunity or that the camp was an instrumentality of the United States, but there was a clear and unambiguous congressional authorization waiving camp's immunity from direct state regulation.  112 H. 150, 145 P.3d 693.

  Plaintiffs' state law claims, alleging violation of chapter 480 and common law fraud, to the extent they were premised on Truth in Lending Act (TILA) or Regulation Z violations, including defendant's alleged failure to properly disclose certain terms in its documents as required by TILA, were preempted; the remaining state law claims were not preempted.  647 F. Supp. 2d 1208 (2008).

  The preemption provision of the federal National Traffic and Motor Vehicle Safety Act of 1966 did not preempt state law tort claim; no conflict preemption between state tort law claim and federal department of transportation standard.  696 F. Supp. 2d 1150 (2010).

  Parts of plaintiff's unfair and deceptive trade practices claim were not preempted by federal law where complaint alleged that defendant had a general duty applicable to a contract, and not a duty created by a federal statute or regulation.  707 F. Supp. 2d 1080 (2010).

  State law claims that involved a union's duty to fairly represent plaintiff were likely preempted by federal law.  722 F. Supp. 2d 1181 (2010).

  Where the trial court was not presented with conflicting state and federal statutes because the National Labor Relations Act did not apply to the city and county of Honolulu, the appeals court's application of preemption principles to conclude that employee was not required to exhaust employee's contractual remedies under the collective bargaining agreement was erroneous.  121 H. 1, 210 P.3d 501 (2009).

 

 

ARTICLE VII

 

     The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.  Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth In Witness whereof We have hereunto subscribed our Names.

        Go: Washington_______________

    Presidt. and deputy from Virginia

 

New Hampshire

  John Langdon

  Nicholas Gilman

Massachusetts

  Nathaniel Gorham

  Rufus King

Connecticut

  Wm. Saml. Johnson

  Roger Sherman

New York

  Alexander Hamilton

New Jersey

  Wil: Livingston

  David Brearley

  Wm. Paterson

  Jona: Dayton

Pennsylvania

  B. Franklin

  Thomas Mifflin

  Robt. Morris

  Geo. Clymer

  Thos. Fitzsimons

  Jared Ingersoll

  James Wilson

  Gouv Morris

Delaware

  Geo: Reed

  Gunning Bedford jun

  John Dickinson

  Richard Bassett

  Jaco: Brown

Maryland

  James McHenry

  Dan of St. Thos. Jenifer

  Danl. Carroll

Virginia

  John Blair--

  James Madison, Jr.

North Carolina

  Wm. Blount

  Richd. Dobbs Spaight

  Hu Williamson

South Carolina

  J. Rutledge

  Charles Cotesworth Pinckney

  Charles Pinckney

  Pierce Butler

Georgia

  William Few

  Abr. Baldwin

Attest William Jackson

                     Secretary

 

AMENDMENTS TO THE CONSTITUTION

 

  For decisions applying to U.S. Constitution and Amendments to the Territory of Hawaii, see notes to Organic Act, §§5, 55, 86.

 

[ARTICLE I.--1791]

 

     Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

 

Attorney General Opinions

 

  Statute which would include newspapers within definition of public utility and subject them to PUC jurisdiction would be violative of freedom of the press.  Att. Gen. Op. 74-11.

  Licensing of church-sponsored day care programs constitutional.  Att. Gen. Op. 85-25.

  Section 445-112(11), regulating political signs, was unconstitutional and unenforceable.  Att. Gen. Op. 96-4.

  Section 452-23(a)(4), (5), and (6) was overly broad and infringed upon commercial speech rights afforded by First Amendment.  Att. Gen. Op. 98-2.

  Section 11-204(b): violates First Amendment because it restricts persons or other entities from making contributions to noncandidate ballot measure committees.  Section 11-204(j):  statutory provision prohibits contributions based upon length of time that noncandidate committee has been registered; this durational requirement is unconstitutional because it imposes limitations on the right of association and the right of expression when contributions are made to noncandidate committees.  Att. Gen. Op. 98-5.

  Zelman v. Simmons-Harris, in which the U.S. Supreme Court held that an Ohio school voucher program did not violate the establishment clause, was inapposite in Hawaii; a publicly-funded Hawaii school voucher program would violate article X, §1 of the state constitution.  Att. Gen. Op. 03-1.

 

Law Journals and Reviews

 

  The Decision to Disobey:  A View of Symbolic Civil Disobedience.  7 HBJ 5.

  The Dissenting Cop.  9 HBJ 59.

  The Power of the Courts to Protect Journalists' Confidential Sources of Information:  An Examination of Proposed Shield Legislation.  11 HBJ 35.

  Cameras In Court-Focusing In On Constitutional Problems.  15 HBJ 83.

  Estes v. Kapiolani Women's and Children's Medical Center:  State Action and the Balance Between Free Speech and Private Property Rights in Hawaii.  13 UH L. Rev. 233.

  The Lum Court, Land Use, and the Environment:  A Survey of Hawai‘i Case Law 1983 to 1991.  14 UH L. Rev. 119.

  The Protection of Individual Rights Under Hawai‘i's Constitution.  14 UH L. Rev. 311.

  The Lum Court and Native Hawaiian Rights.  14 UH L. Rev. 377.

  The Lum Court and the First Amendment.  14 UH L. Rev. 395.

  Burdick v. Takushi:  Yes to Equal Voice in Voting, No to a Fundamental Right to Vote for Any Particular Candidate.  14 UH L. Rev. 715.

  The Law and Politics of Dancing:  Barnes v. Glen Theatre and the Regulation of Striptease Dance.  14 UH L. Rev. 925.

  Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah:  Reaffirming the Supreme Court's Religious Free Exercise Jurisdiction.  16 UH L. Rev. 401.

  Curing A Bad Reputation:  Reforming Defamation Law.  17 UH L. Rev. 113.

  Non-Profit Peddling in Waikiki:  To Permit or Not to Permit?  17 UH L. Rev. 539.

  Son of Simon & Schuster:  A "True Crime" Story of Motive, Opportunity and the First Amendment.  18 UH L. Rev. 201.

  Rosenberger v. Rector & Visitors of University of Virginia and the Equal Access Rights of Religious People.  18 UH L. Rev. 339.

  Confidentiality Breeds Contempt:  A First Amendment Challenge to Confidential Ethics Commission Proceedings of the City & County of Honolulu.  18 UH L. Rev. 797.

  The Inherent Hostility of Secular Public Education Toward Religion:  Why Parental Choice Best Serves the Core Values of the Religion Clauses.  19 UH L. Rev. 697.

  The Jurisprudence of Justice Scalia:  A Critical Appraisal.  22 UH L. Rev. 385.

  The Primacy of Political Actors in Accommodation of Religion.  22 UH L. Rev. 403.

  Justice Scalia and the Religion Clauses.  22 UH L. Rev. 449.

  Full and Equal Rights of Conscience.  22 UH L. Rev. 469.

  Transcript of the University of Hawai‘i Law Review Symposium:  Justice Scalia and the Religion Clauses.  22 UH L. Rev. 501.

  Federalism and Federal Spending:  Why the Religious Land Use and Institutionalized Persons Act of 2000 is Unconstitutional.  23 UH L. Rev. 479.

  Legal Services Corporation v. Velazquez:  A Correct Application of the U.S. Supreme Court's First Amendment Limited Public Forum Analysis.  24 UH L. Rev. 331.

  Hawai‘i's Response to Strategic Litigation Against Public Participation and the Protection of Citizens' Right to Petition the Government.  24 UH L. Rev. 411.

  Revisiting San Francisco Arts & Athletics v. United States Olympic Committee:  Why It Is Time to Narrow Protection of the Word "Olympic".  24 UH L. Rev. 729.

  Child Pornography on the Internet:  The Effect of Section 230 of the Communications Decency Act of 1996 on Tort Recovery for Victims Against Internet Service Providers.  24 UH L. Rev. 763.

  Evolution-Creationism Debate:  Evaluating the Constitutionality of Teaching Intelligent Design in Public School Classrooms.  25 UH L. Rev. 9.

  Preserving the Religious Freedom and Autonomy of Religious Institutions After Equal Employment Opportunity Commission v. Kamehameha Schools/Bishop Estate.  26 UH L. Rev. 203.

  Emergency Contraception in Religious Hospitals:  The Struggle Between Religious Freedom and Personal Autonomy.  27 UH L. Rev. 65.

  Your Body, Your Choice:  How Mandatory Advance Health-Care Directives Are Necessary to Protect Your Fundamental Right to Accept or Refuse Medical Treatment.  27 UH L. Rev. 201.

  Knievel v. ESPN:  Demonstrating the Need for a Common-Sense Subjective Standard for Meaning in Defamation Law.  28 UH L. Rev. 231.

  A Public Lecture by Anthony Lewis, The First Amendment in Perspective.  29 UH L. Rev. 13.

  Free Exercise and Hybrid Rights:  An Alternative Perspective on the Constitutionality of Same-Sex Marriage Bans.  29 UH L. Rev. 23.

  Compelled Expression of the Religiously Forbidden:  Pharmacists, "Duty to Fill" Statutes, and the Hybrid Rights Exception.  29 UH L. Rev. 97.

  Playing by the Rules of Intellectual Property:  Fantasy Baseball's Fight to Use Major League Baseball Players' Names and Statistics.  29 UH L. Rev. 301.

  Restricting Student Speech that Invades Others' Rights:  A Novel Interpretation of Student Speech Jurisprudence in Harper v. Poway Unified School District.  29 UH L. Rev. 479.

  An Analysis of Hawai‘i's Tradition of "Local" Ethnic Humor.  30 UH L. Rev. 219.

  May Religious Worship be Excluded from a Limited Public Forum?  Commentary on the Ninth Circuit Court of Appeals Decision in Faith Center Church Evangelistic Ministries v. Glover.  31 UH L. Rev. 29.

  RLUIPA and the Individualized Assessment:  Special Use Permits and Variances Under Strict Congressional Scrutiny.  31 UH L. Rev. 257.

  Drunk, Driving, and Untouchable:  The Implications of State v. Heapy on Reasonable Suspicion in Hawai`i.  31 UH L. Rev. 607.

  State v. Spillner:  An Investigatory Traffic Stop Based on Unreasonable Suspicion.  31 UH L. Rev. 631.

  The Constitution and Inking:  How Anderson v. City of Hermosa Beach Expanded First Amendment Protection for the Tattoo Industry.  33 UH L. Rev. 417 (2010).

  Christian Legal Society v. Martinez:  In Hindsight.  34 UH L. Rev. 71 (2012).

  The New First Amendment:  Allowing Unlimited Corporate Election Speech Free from Response.  34 UH L. Rev. 263 (2012).

  Borrowing Valor:  A Comment on United States v. Alvarez and the Validity of the Stolen Valor Act of 2013.  36 UH L. Rev.  315 (2014).

 

Case Notes

 

Generally.

  State's ban on write-in voting does not unreasonably infringe upon voters' constitutional rights.  504 U.S. 428.

  Military bases are at least one location in which First Amendment restrictions are permissible.  582 F.2d 1194.

  If government creates a public forum, even though under no duty to do so, its power to exclude expression is severely limited.  710 F.2d 1410.

  Recalled officials likely to succeed on claim that two-year ban on their election to office is unconstitutional.  775 F.2d 1393.

  Section 11-216(d)'s prohibition on complainant publicly disclosing that complaint was filed with campaign spending commission and on other disclosures by third parties unconstitutionally overbroad.  30 F.3d 1115.

  Prison officials entitled to 42 U.S.C. §1983 qualified immunity from inmate's claim of retaliatory punishment for exercising inmate's First Amendment rights where reasonable prison official would have believed that inmate's transfer from minimum to medium security facility was lawful, advancing legitimate penological goals.  55 F.3d 454.

  Where appellants claimed, inter alia, that restrictions imposed on organizations who chose to receive Legal Services Corporation funds were unconstitutional because they conditioned the receipt of a benefit, the grant of federal funds, on the relinquishment of the right to engage in protected activities, appellants' unconstitutional conditions argument was without merit because neither the congressional enactments nor the implementing regulations infringed on First Amendment rights.  145 F.3d 1017.

  Independent candidates for president denied access to State's ballot for the 2004 election appealed district court's holding that relevant provisions governing access do not violate the First and Fourteenth Amendments or the equal protection clause; district court's holding that the presidential ballot access scheme is constitutional, affirmed.  620 F.3d 1214 (2010).

  Government cannot require an individual to relinquish First Amendment rights as a condition of employment.  437 F. Supp. 368.

  Joint efforts to influence officials in the exercise of their public duties are beyond scope of antitrust laws in that to prohibit such activity would impair right to petition government.  460 F. Supp. 1359.

  County ordinance which allows refusal to issue, suspension, or revocation of license to exhibit public shows on grounds of (1) presentation of obscene, indecent, or immoral show; or (2) past violation of certain pornography statutes is unconstitutional on its face.  488 F. Supp. 820.

  Service of process is an expressive act protected by the First Amendment.  823 F. Supp. 806.

  With the ability to control the separately incorporated and insular second organization, alternative channels existed for Legal Services Corporation-funded organizations to pursue their constitutionally protected activities; thus, the Legal Services Corporation regulations did not constitute an unconstitutional condition and thus, were not violative of plaintiffs' First Amendment rights.  981 F. Supp. 1288.

  State's motion for a preliminary injunction granted, where State sought a preliminary injunction to enjoin defendants from taking any further steps to implement termination agreement and close newspaper, and defendants claimed, among other things, that any injunctive relief would necessarily violate their First Amendment rights to refrain from speaking or publishing.  99 F. Supp. 2d 1241.

  Defendants' motion for partial summary judgment granted as to plaintiff's claim that defendants misappropriated and used plaintiff's name and likeness in an unfavorable publication without plaintiff's authorization; the published article, photographs, and liner notes were newsworthy and relevant.  528 F. Supp. 2d 1081.

  Ordinance prohibiting use of streets for soliciting sales does not abridge freedom of press or freedom of speech.  43 H. 71.

  "Loitering" statutes, effect of First Amendment, §265-52 distinguished.  49 H. 624, 632, 425 P.2d 1014.

  Narrowing of statute by common sense interpretation where no First Amendment rights involved.  49 H. 624, 634, 425 P.2d 1014.

  Obstructing use of university office constituted conduct outside First Amendment rights, and ex parte temporary restraining order was not constitutionally invalid.  52 H. 427, 478 P.2d 320.

  Exercise of First Amendment rights and the trespass statutes.  54 H. 450, 509 P.2d 1095.

  Obscenity is outside protection of First Amendment.  58 H. 440, 573 P.2d 945.

  Not violated by disqualification of recalled officials from running for vacancy created by recall.  68 H. 263, 711 P.2d 723.

  Section 842-2(3) does not implicate First Amendment concerns because it is neither directed at, nor does it regulate or proscribe First Amendment freedoms, i.e., membership in a political organization or certain beliefs held by an individual.  84 H. 211, 933 P.2d 48.

  Section 712-1200 does not proscribe constitutionally protected conduct and was not overbroad as applied to defendant's actual conduct; the language of the section also was sufficiently clear that defendant was not required to guess at its meaning, the statute gave defendant fair warning that defendant was prohibited from offering or agreeing to engage in sex for a fee.  107 H. 360 (App.), 113 P.3d 811.

  Given the apparent absence of a "countervailing state interest of overriding significance", family court's restrictions violated mother's right to free access to the courts where family court required mother, if she was represented by an attorney, to access the record in the case only through a licensed Hawaii attorney or other attorney admitted pro hac vice, or allowing mother, if she was representing herself pro se, to access the record only if she was accompanied by a family court staff person.  118 H. 293 (App.), 188 P.3d 807.

 

 

Establishment of religion.

  Statute declaring Good Friday as state holiday does not violate establishment clause.  932 F.2d 765.

  University policy of not funding student organizational activities intended to or actually promoting particular religious points of view, even if secular in context, constitutional if funding criteria evenly applied to all eligible groups seeking funding of nonsectarian events.  15 F.3d 922.

  Parole officer did not have qualified immunity.  First Amendment was violated where the parole officer allegedly required a parolee to attend a drug treatment program rooted in religious faith and then recommended revoking parole because the parolee refused to participate; pertinent establishment clause law was clearly established on this point such that a reasonable official would know that the official's conduct was illegal.  504 F.3d 705.

  Religious Land Use and Institutionalized Persons Act of 2000 does not violate the establishment clause in a land use context.  298 F. Supp. 2d 1010.

  Plaintiffs' motion for preliminary injunction denied as to their establishment clause claim, where they claimed, inter alia, that certain staff members at a secure juvenile correctional facility promoted religion, often discussing religious teachings and quoting from the Bible, and that the facility ratified the conduct of these staff members.  415 F. Supp. 2d 1129.

 

Freedom of association.

  Where plaintiff claimed provisions requiring an open primary were facially unconstitutional because allowing voters to associate anonymously with a political party violated a party's First Amendment right of free association:  (1) plaintiff's purely facial challenge to the open primary failed; and (2) the court could not assess whether plaintiff's associational rights were burdened without considering evidence as to the extent, if any, of that burden.  982 F. Supp. 2d 1166 (2013).

 

Freedom of press.

  Factors used to determine whether news reporter must reveal sources in libel action.  507 F. Supp. 880.

  Freedom of press guarantee is not sufficient in itself to protect reporter from being compelled to disclose confidential news source.  45 H. 317, 367 P.2d 472.

  Is not an absolute.  45 H. 317, 367 P.2d 472.

  In libel action by county supervisor against newspaper, plaintiff at trial must show knowledge of falsity or reckless disregard of the truth, but upon defendant's motion for summary judgment situation different.  49 H. 675, 427 P.2d 79.

  In libel action, newspaper publisher not entitled to have case withdrawn from the jury merely because the article is not clearly defamatory.  49 H. 675, 681-83, 427 P.2d 79.

  Libel action by public official against newspaper; summary judgment for defendant granted when.  50 H. 648, 448 P.2d 337.

  Defamation; concept of "public figure" discussed.  56 H. 522, 543 P.2d 1356.

  News media liable for negligent defamation of private person.  56 H. 522, 543 P.2d 1356.

  Right to freedom of press not denied by the closing of judicial proceedings to the public.  59 H. 224, 580 P.2d 49.

  Where plaintiff in defamation action failed to prove that newspaper had acted with actual malice when it erroneously published story naming plaintiff as the target of an investigation, summary judgment for newspaper properly granted.  89 H. 254, 971 P.2d 1089.

 

Freedom of religion.

  Compelling government interest in preventing trespass to military land outweighs defendant's free exercise of religion.  582 F.2d 1194.

  Inmates' motion for preliminary injunction regarding inmates' prayer objects denied, where inmates argued that the deprivation of the prayer objects violated inmates' rights to the free exercise of religion under the U.S. and state Constitutions.  One inmate failed to exhaust available administrative remedies as to the destruction of the prayer object, and even if the inmate had exhausted administrative remedies, the inmate had not established that the inmate was likely to suffer irreparable harm in the absence of a preliminary injunction.  The other inmate, among other things, was unlikely to prevail on the merits of the free exercise claim because the regulations and policies at issue were reasonably related to legitimate penalogical interest.  The regulations satisfied the less stringent valid, rational connection to a legitimate governmental interest factor, and the inmate had alternate means of exercising inmate's right to practice inmate's religion.  903 F. Supp. 2d 975 (2012).

  Sex education films, shown to fifth and sixth grades, with excusal system which permitted parents to have their children excused from viewing the films did not violate the free exercise of religion clause.  52 H. 436, 478 P.2d 314.

  Not violated by requiring church-run school to make unemployment contributions on behalf of its lay teachers and staff.  68 H. 410, 718 P.2d 267.

  Geothermal plant does not regulate or burden religious beliefs nor does it inhibit religious speech.  69 H. 255, 740 P.2d 28.

  Under the First Amendment and article I, §4 of Hawai‘i constitution, civil courts have no authority to resolve disputes that turn on matters of church doctrine, practice, polity, or administration or that cannot be decided without resolving underlying controversies over such matters.  When faced with such claims, civil courts must dismiss them.  77 H. 383, 885 P.2d 361.

  Not violated by director's failure to grant building height restriction zoning variance for temple hall where plaintiff Buddhist temple failed to demonstrate substantial burden on its free exercise of religion because of height restriction.  87 H. 217, 953 P.2d 1315.

  Trial court did not err in concluding that defendant failed to prove that §712-1249.5 unconstitutionally burdened the free exercise of defendant's religion where defendant failed to establish that the trial court clearly erred in finding that defendant did not demonstrate that defendant's religion required possession or cultivation of fifty or more marijuana plants.  108 H. 169, 118 P.3d 652.

  Under the circumstances of the case, the free exercise clause of the First Amendment was not a viable defense to prosecution under §712-1249; §712-1249 is a neutral law of general applicability to the extent it purports to prohibit, without exception, the possession of marijuana and any other substance defined as a "Schedule V substance" by chapter 329, it does not interfere with other constitutional rights, and it does not create a mechanism for governmental assessment of individual applicants for exemptions.  115 H. 396, 168 P.3d 526.

  Administrative rules pertaining to entrance into the Kaho‘olawe island reserve did not unconstitutionally burden defendants' right to practice their religion.  132 H. 36, 319 P.3d 1044 (2014).

  Statute prohibiting possession of marijuana did not burden defendant's free exercise of religion.  5 H. App. 411, 695 P.2d 336.

  Where church was not a hierarchical church, but a congregational church that made decisions by a vote of its members as set forth in its "petition for charter" of incorporation and by-laws, the church was governed by chapter 414D; thus, appellants should have been allowed to amend their complaint, had standing to contest their expulsion, and were not precluded from doing so by the ecclesiastical abstention doctrine; also, doctrine did not bar appellants' complaint to the extent it did not require resolution of controversies over church doctrine, law, or polity.  118 H. 165 (App.), 185 P.3d 913.

 

Freedom of speech.

  Does not prevent defendant's exclusion from military base after being barred.  472 U.S. 675.

  Section 291C-77(c), banning political signs on public sidewalk, denies freedom of speech.  516 F.2d 892.

  Section 11-216(d) unconstitutional to the extent that it prevents an individual from disclosing that the individual filed a complaint with campaign spending commission.  30 F.3d 1115.

  Defendants' statements implying attorney's poor client representation not defamatory where general and specific contexts in which statements were made did not imply assertion of an objective fact and statements were incapable of being proved true or false.  56 F.3d 1147.

  Plaintiffs' sales of T-shirts imprinted with philosophical and inspirational messages fell within ambit of First Amendment; peddling ordinance prohibiting sale of merchandise on city streets was content-neutral, narrowly tailored to serve substantial interests throughout Waikiki, and left ample alternative channels of communication.  76 F.3d 1009.

  Plaintiffs' free speech claim rejected, where plaintiffs argued that  Hawaii's policy of putting all questions on the same physical ballot, when combined with Hawai‘i State AFL-CIO v. Yoshina's method for calculating a majority, "coerced" votes in violation of First Amendment.  140 F.3d 1218.

  District court judgment in favor of plaintiff affirmed, where defendants, state officials, contended, among other things, that there was insufficient evidence to support court's findings of retaliatory motives on the part of defendants.  283 F.3d 1070.

  Mt. Healthy mixed-motive analysis applies to First Amendment claims, regardless of whether the plaintiff uses direct or circumstantial evidence to prove there was a retaliatory motive behind the adverse employment action.  283 F.3d 1070.

  Ordinance requiring all publishers who wished to distribute their publications along sidewalks in the Waikiki special district to use one of two sets of newsracks, one reserved solely for publications that charge readers and one just for free publications, did not violate the First Amendment.  298 F.3d 1037.

  Ordinance prohibiting aerial advertising did not violate the First Amendment or the equal protection clause of the Fourteenth Amendment.  Honolulu's airspace was a nonpublic forum, and the ordinance was reasonable, viewpoint neutral, and rationally related to legitimate governmental interests.  455 F.3d 910.

  The constitutionality of department of land and natural resources' (DLNR) regulation of commercial weddings on the State's unencumbered beaches upheld in all respects but one; the only provisions that violate the First Amendment are the terms and conditions giving to the chairperson of the board of land and natural resources the authority to revoke an already issued permit "at any time and for any reason in [his or her] sole and absolute discretion", and giving to DLNR the authority to add terms and conditions to an already issued permit such "as it deems necessary or appropriate".  682 F.3d 789 (2012).

  Hawaii's government contractor contribution ban under §11-355 satisfies closely drawn scrutiny; it serves sufficiently important governmental interests by combating both actual and the appearance of quid pro quo corruption, and it is closely drawn because it targets direct contributions from contractors to officeholders and candidates, the contributions most closely linked to actual and perceived quid pro quo corruption.  The ban survives closely drawn scrutiny even as applied to plaintiff's proposed contributions to candidates who neither decide whether plaintiff receives contracts nor oversee plaintiff's contracts.  786 F.3d 1182 (2015).

  The disclaimer requirement under §11-391(a)(2) did not violate the First Amendment as applied to plaintiff's political advertisements.  786 F.3d 1182 (2015).

  The "noncandidate committee" definition and accompanying reporting and disclosure requirements were substantially related to Hawaii's important interests in informing the electorate, preventing corruption or its appearance, and avoiding the circumvention of valid campaign finance laws.  Because the burden of complying with the disclosure scheme was modest compared to the significance of the interests being served, the court upheld the noncandidate committee reporting and disclosure requirements, as applied to plaintiff, a for-profit corporation.  786 F.3d 1182 (2015).

  Reporter's right of access to government news conferences.  369 F. Supp. 906.

  Violated by city ordinance purporting to prohibit outdoor political signs on private and public property.  762 F. Supp. 280.

  Rule 3.5(b) of Hawaii rules of professional conduct unconstitutional, where, inter alia, language of rule 3.5(b) prohibiting ex parte communication with jurors "except as permitted by law" was unconstitutionally vague and overbroad.  916 F. Supp. 1525.

  Statements in editorial about plaintiff (when plaintiff was mayor) were protected by First Amendment and thus, not actionable.  930 F. Supp. 1403.

  Where plaintiffs filed motion for preliminary injunction regarding Act 359 of 1993 Hawaii legislature (relating to Hawaiian sovereignty), as amended in 1994 and 1996, plaintiffs unlikely to prevail on First Amendment claims as to native Hawaiian vote.  941 F. Supp. 1529.

  Plaintiff (who previously held a position at correctional facility), was not entitled to First Amendment protection, where plaintiff's repeated grievances and complaints regarding plaintiff's lack of safety at correctional facility, i.e., plaintiff's requests for a personal security guard, did not substantially involve matters of public concern.  25 F. Supp. 2d 1124.

  Where plaintiff-physician claimed that plaintiff had been illegally harassed and retaliated against by the defendants who acted as part of an illegal conspiracy against plaintiff and that all of the defendants' actions constituted retaliation against plaintiff for exercising plaintiff's First Amendment right to speak out about inmate abuse at correctional facility, defendants, among other things, engaged in a conspiracy to deprive plaintiff of constitutionally protected rights to free speech in violation of 42 U.S.C. §1983.  99 F. Supp. 2d 1216.

  Where defendants argued that plaintiff waived constitutional right to free speech by voluntarily signing Code of Fair Campaign Practices (Code), plaintiff did not waive ability to assert First Amendment rights; campaign spending commission's (commission) administrative decision did not have preclusive effect on the court proceeding; Code unconstitutionally burdened protected speech; commission's censure of plaintiff violated plaintiff's First Amendment rights to free speech.  135 F. Supp. 2d 1114.

  In lawsuit involving a challenge to city and county of Honolulu's practice of charging nonresidents a $3 fee to enter bay designated a marine life conservation district and nature preserve, plaintiff's First Amendment rights not violated and ordinance instituting the fee not overbroad.  215 F. Supp. 2d 1098.

  Plaintiff maintained that defendant union provided inadequate information to nonmembers prior to making union payroll deductions pursuant to §89-4, in violation of Chicago Teachers Union v. Hudson.  Defendants were preliminarily enjoined from taking any action to demand and/or collect from plaintiff and class members, by any means, agency fees and from taking any other action to enforce §89-4(a), until a mechanism for withdrawing agency fees that was in compliance with Hudson was devised and approved, where plaintiff alleged, among other things, irreparable injury by arguing that any violation of Hudson notice requirements infringed upon plaintiff's First Amendment rights.  269 F. Supp. 2d 1252.

  Plaintiffs asserted that an ordinance preventing them from flying their aerial tow banners over the city's beaches violated their rights under the First Amendment; the ordinance was a reasonable, viewpoint neutral restriction on speech in a nonpublic forum.  345 F. Supp. 2d 1123.

  Defendants' motion to dismiss or for summary judgment denied, where, inter alia, taking plaintiff's allegations as true, the complaint set forth sufficient facts to support plaintiff's claim that defendants' actions infringed upon plaintiff's First Amendment rights, either because defendants' actions caused plaintiff actual harm or because those actions chilled future speech, and defendants were not entitled to qualified immunity.  400 F. Supp. 2d 1223.

  Section 446E-5(f) is not an unconstitutional restriction on free speech.  486 F. Supp. 2d 1132.

  Defendants' motions for summary judgment granted in part as to plaintiffs' First Amendment retaliation claims brought under 42 U.S.C. §1983; plaintiffs failed to provide evidence on which a reasonable jury could find a municipal policy or custom sufficient to create liability under §1983.  621 F. Supp. 2d 1019 (2008).

  Plaintiff's First Amendment retaliation claim dismissed in its entirety, where plaintiff's statements were made pursuant to plaintiff's official duties or were not substantial or motivating factors in the adverse employment action.  679 F. Supp. 2d 1188 (2009).

  Where plaintiffs challenged department of land and natural resources administrative regulations that required a permit for commercial activity (including weddings performed or arranged for a fee) on public beaches:  (1) plaintiffs had standing to make an as-applied challenge; (2) since state unencumbered beaches are non-public fora for purposes of a First Amendment analysis, regulation need only satisfy a requirement of reasonableness, and the regulations passed the test; assuming beaches were public fora, the regulations passed a stricter test for constitutionality; and (3) even if the court had jurisdiction over the breach of settlement agreement (in prior action) claim, plaintiffs would not prevail on that claim.  685 F. Supp. 2d 1140 (2010).

  Plaintiff could not maintain the present action where plaintiff had agreed to "forever release, acquit, and discharge" the claims in the mutual release and settlement agreement in plaintiff's first action.  686 F. Supp. 2d 1079 (2010).

  Contribution limit in §11-358 is unconstitutional as applied to plaintiffs' proposed contributions to an entity that engages in solely independent expenditures in excess of the statutory limit; plaintiffs' motion for preliminary injunction granted.  744 F. Supp. 2d 1075 (2010).

  Hawaii's government-contractor ban on direct campaign contributions set forth in §11-355 was constitutional as applied to plaintiff noncandidate committee and government contractor's proposed contributions; given the public role of legislators and the power (or perceived power) they can have in contractual matters, applying the contribution ban was closely connected to the government interest in refuting at least the perception of corruption in the electoral process; it functions to alleviate even the appearance of a connection (a quid pro quo) between a government contractor and a candidate for public office.  872 F. Supp. 2d 1023 (2012).

  Plaintiff noncandidate committee and government contractor's as-applied challenge to the definition of "noncandidate committee" in §11-302 failed; plaintiff actively participated in our democracy; it was not unconstitutional to require it to comply with campaign finance laws that are substantially related to important government interests; Hawaii has a substantial interest in imposing noncandidate committee disclosure requirements on an organization--like plaintiff--that actively engages in political activity.  872 F. Supp. 2d 1023 (2012).

  Plaintiff noncandidate committee and government contractor's as-applied challenge to the disclaimer requirement in §11-391(a)(2)(B) and the corresponding definition of "advertisement" in §11-302, which included the "electioneering communications" definitions in §11-341(c), rejected; the court concluded that the plaintiff's advertisements fit within the regulatory "safe harbor"--they were an "advertisement" that was an "electioneering communication" and was the functional equivalent of express advocacy under §11-341(c).  872 F. Supp. 2d 1023 (2012).

  Plaintiff noncandidate committee and government contractor's challenge to the definition of "noncandidate committee" in §11-302 failed; the statute was substantially related to important governmental interests as "[i]ts coverage vindicates the government's interest in an informed electorate without imposing on nonpolitical organizations unnecessarily" and was square with the U.S. Supreme Court in Citizens United; thus, Hawaii's noncandidate committee requirements did not facially violate the First Amendment.  872 F. Supp. 2d 1023 (2012).

  Plaintiff noncandidate committee and government contractor's facial challenge to the disclaimer requirement in §11-391(a)(2)(B) failed; disclosure requirements could apply to issue advocacy, so long as the exacting scrutiny test was otherwise met, and disclosure and disclaimer requirements--such as requiring a disclaimer under federal law that a communication "was not authorized by any candidate or candidate's committee"--satisfied the exacting scrutiny test; in effect, the U.S. Supreme Court in "Citizens United had effectively disposed of any attack on ... attribution and disclaimer requirements".  872 F. Supp. 2d 1023 (2012).

  Section 11-358 limits the amount of contributions a person can make to a noncandidate committee; if that noncandidate committee makes only independent expenditures, then pursuant to the U.S. Supreme Court in Citizens United, Hawaii cannot limit those expenditures; plaintiff donors' contributions to a noncandidate committee could only lead to independent expenditures; therefore, the section was unconstitutional as applied to plaintiff donors' contributions to a noncandidate committee and defendants were permanently enjoined from enforcing the section's contribution limitation in that situation.  872 F. Supp. 2d 1023 (2012).

  Plaintiff's First Amendment claim against police department and police chief failed multiple steps; among other things, the police department had a legitimate reason for conducting the second internal affairs investigation and it did not involve speech by plaintiff, much less speech on a matter of public concern.  937 F. Supp. 2d 1220 (2013).

  Right to receive information and ideas not infringed by statutes proscribing possession of marijuana.  56 H. 501, 542 P.2d 366.

  Standard for suppression of evidence where seizure violated freedom of speech or expression.  63 H. 596, 634 P.2d 80.

  Ordinance prohibiting distribution of commercial handbills in Waikiki impermissibly regulated commercial speech.  64 H. 148, 637 P.2d 1117.

  Peddling ordinance unduly restricted commercial speech.  64 H. 499, 643 P.2d 1058.

  Attorneys' extrajudicial statements may be subject to prior restraint by trial court upon demonstration that the activity restrained poses a serious and imminent threat to defendant's right to a fair trial and to the fair administration of justice.  73 H. 499, 835 P.2d 637.

  Section 707-716 not unconstitutional where threats sufficiently unequivocal, unconditional, immediate, and specific as to convey a gravity of purpose and imminent prospect of execution.  75 H. 398, 862 P.2d 1063.

  Where plaintiff was removed from project, State did not violate the Hawai‘i Whistleblowers' Protection Act or the First Amendment when it reassigned the project to someone else.  76 H. 332, 876 P.2d 1300.

  Defendant's statement not false or defamatory where statement was rhetorical hyperbole--figurative or hyperbolic language that would negate the impression that defendant was asserting an objective fact about plaintiff.  88 H. 94, 962 P.2d 353.

  Neither the free speech clause of the U.S. Constitution nor that of the Hawaii constitution impose a temporal "immediacy" requirement that must be met before words become subject to criminal prosecution as "true threats" under §§707-715 and 707-716.  95 H. 465, 24 P.3d 661.

  Where student manager was a public agent of the university and manager did not identify any matter of public concern addressed by manager's racial slur directed at complainant or accompanying threatening statements, manager's speech was not protected speech.  102 H. 307, 76 P.3d 550.

  A "misrepresentation" made under the mantle of "self-advocacy" at a department hearing is not constitutionally protected by this Amendment.  113 H. 1, 147 P.3d 785.

  Where there was no evidence that the "interior work area" of the state department of transportation building where the union bulletin board was located had been transformed from a "non-public forum" into a public forum, bulletin board remained a non-public forum; thus, where the State's bulletin board posting prohibition was against all campaign materials, and not simply against materials advocating a particular viewpoint, the prohibition against campaign materials on the union bulletin board was not in violation of this Amendment.  116 H. 73, 170 P.3d 324.

  Where the defendants' purpose was to claim and manage, control, and subsequently occupy Kaho‘olawe, the defendants' intent to communicate through their presence on Kaho‘olawe could not be deemed "speech" for purposes of the First Amendment freedom of speech protections.  132 H. 36, 319 P.3d 1044 (2014).

  Section 852-1 not unconstitutional as it does not prohibit picketing or the communication of messages altogether, is specifically aimed at conduct causing an obstruction of ingress to or egress from public or private places, and individuals may continue to exercise rights guaranteed by the First Amendment and article I, §4 of the Hawaii constitution as long as they do not do so in a manner prohibited by section.  89 H. 27 (App.), 968 P.2d 194.

  Defendant's continuing physical obstruction of the lawful work by the Hawaii county department of water supply on Hawaiian home lands property constituted conduct clearly outside the scope of any First Amendment right to freedom of speech.  105 H. 319 (App.), 97 P.3d 395.

  As the First Amendment does not protect speech which is part of a course of criminal conduct, and defendant's words were an integral part of defendant's conduct in violating a valid statute prohibiting offers or agreements to engage in sex for a fee (§712-1200), defendant's prosecution did not violate this Amendment.  107 H. 360 (App.), 113 P.3d 811.

 

Right of privacy.

  Where plaintiff failed to show sufficient likelihood that state child protective services agency would violate plaintiff's privacy rights in the future, plaintiff lacked standing to seek injunctive relief against agency.  68 F.3d 331.

  Sex education film series shown to fifth and sixth grades with excusal system which permitted parents to have their children excused from viewing films did not contravene parents' right of privacy.  52 H. 436, 478 P.2d 314.

  Where police forcibly entered petitioner's home in pursuit of petitioner's son without a warrant and in the absence of any exigent circumstances, there was no conceivable basis in the law to uphold the entry as valid; thus, trial court's conclusion to the contrary reversed.  121 H. 74, 214 P.3d 613.

 

Search and seizure generally.

  Container search by government agents that occurred at the U.S. border as the container was entering the country, was conducted in a reasonable manner and the searches of defendant at the airport as defendant was exiting the country, were constitutionally valid.  610 F. Supp. 2d 1234.

  Where police consent form stated that search of defendant's automobile and its contents was expressly confined to evidence of "firearms, ammunition", and officer acknowledged that the wallet was lying closed on the seat and that officer searched the wallet for ammunition but that officer was not nervous because officer could not "feel anything", officer 's observations did not reasonably suggest the presence of ammunition in the wallet; thus, the continued search of the wallet that uncovered another person's license was objectively unreasonable and exceeded the scope of defendant's consent.  121 H. 533 (App.), 221 P.3d 511.

  Navy police officer's initial search of defendant's car after defendant drove defendant's car back through the base gate and subsequent search by federal agents were supported by probable cause given the collective knowledge of the officers who were involved in the investigation and apprehension of defendant and thus were valid under the federal automobile exception to the warrant requirement; given the proximity in time and location to the reported theft involving defendant, the large amount of money involved and other circumstances, there was probable cause to believe that the missing money or other evidence would be present in defendant's car.  122 H. 2 (App.), 222 P.3d 409.

 

Petitioning of government.

  Section 89-14, by vesting the labor relations board with exclusive original jurisdiction over plaintiff's action, did not violate this Amendment, as the administrative dispute resolution process set forth in chapter 89 did not preclude plaintiff from seeking redress from the courts; plaintiff could appeal an unfavorable decision issued by the board to the circuit court and was thus not deprived of reasonable access to the courts.  125 H. 317 (App.), 260 P.3d 1135 (2011).

 

 

[ARTICLE II.--1791]

 

     A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

 

Case Notes

 

  Defendant police chief was entitled to qualified immunity from plaintiff firearm permit applicant's 42 U.S.C. §1983 claims  for monetary damages for alleged violations of plaintiff's Second Amendment right to bear arms and Fourteenth Amendment procedural due process right because a reasonable official in defendant's circumstances would not have understood that defendant's conduct violated a right that was clearly established at the time of the denial of plaintiff's permit; §134-7, on which the denial was based, had not been invalidated by case or legislative action.  869 F. Supp. 2d 1203 (2012).

  Plaintiff firearm permit applicant's allegations that plaintiff was denied a permit and ordered to surrender plaintiff's weapons because of a conviction of harassment more than ten years before under §711-1106 and that the conviction was not a crime of violence under §134-7(b) or federal law for the purposes of prohibiting ownership or possession of firearms were sufficient to state a 42 U.S.C. §1983 claim for a violation of plaintiff's Second Amendment rights.  869 F. Supp. 2d 1203 (2012).

  Plaintiff firearm permit applicant's allegations that plaintiff was deprived of plaintiff's fundamental constitutional right to bear operational firearms and ammunition as guaranteed by the Second Amendment and that plaintiff was wrongfully denied a permit under this section without being afforded minimal due process protection such as a meaningful opportunity to be heard and to have the decision reviewed, were sufficient to state a 42 U.S.C. §1983 claim for denial of procedural due process under the Fourteenth Amendment.  869 F. Supp. 2d 1203 (2012).

  Plaintiff did not have standing to challenge chapter 134 on the basis of an alleged deprivation of a Second Amendment right; plaintiff failed to show "injury" because the right to bear arms is a right held by the states.  548 F. Supp. 2d 1151.

  Genuine issue of material fact existed regarding:  (1) whether plaintiff had been under counseling for addiction to, abuse of, or dependence upon a drug or intoxicating liquor; and (2) whether plaintiff had been "medically documented to be no longer adversely affected" by drugs or intoxicating liquor.  As a result, plaintiff had not established a right under this Amendment to possess firearms.  976 F. Supp. 2d 1200 (2013).

  Plaintiff did not establish that plaintiff had a liberty or property interest under this Amendment that would trigger due process protection.  976 F. Supp. 2d 1200 (2013).

  Section 134-7(b) did not disqualify plaintiff from exercising plaintiff's rights under this Amendment because the court could not conclude that plaintiff's convictions for harassment constituted a crime of violence.  976 F. Supp. 2d 1200 (2013).

  Defendant could not claim that state firearms regulations infringed upon rights protected by Second Amendment.  82 H. 143, 920 P.2d 357.

 

 

[ARTICLE III.--1791]

 

     No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

 

[ARTICLE IV.--1791]

 

     The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

 

Attorney General Opinions

 

  Bargained for random drug testing program for public school teachers with appropriate procedural protections is constitutional and would not violate either the federal or state Constitution.  If a court were to find such a program to violate either the federal or state Constitution, the doctrine of qualified immunity would bar personal liability for any state official; if a court were to impose personal liability, based upon past history and practice, the legislature would fund payment of the claims.  Att. Gen. Op. 08-1.

 

Law Journals and Reviews

 

  Suppression of Evidence Without the Aid of the Fourth, Fifth and Sixth Amendments.  8 HBJ 109.

  In Search of Reason at the Border.  10 HBJ 101.

  "Totem Pole" Hearsay and the Search Warrant Affidavit.  12 HBJ No. 4 Winter 1977, pg. 3.

  State v. Sherlock:  Police Use of a Controlled Purchase of Contraband to Corroborate an Informant's Tip.  12 UH L. Rev. 237.

  Reasonable Searches Absent Individualized Suspicion:  Is There a Drug-Testing Exception to the Fourth Amendment Warrant Requirement After Skinner v. Railway Labor Executives' Association?  12 UH L. Rev. 343.

  State v. Rothman:  Expanding the Individual's Right to Privacy Under the Hawaii Constitution.  13 UH L. Rev. 619.

  The Protection of Individual Rights Under Hawai‘i's Constitution.  14 UH L. Rev. 311.

  State v. Quino:  The Hawai‘i Supreme Court Pulls Out All the "Stops".  15 UH L. Rev. 289.

  Criminal Procedure Rights Under the Hawaii Constitution Since 1992.  18 UH L. Rev. 683.

  Vernonia Sch. Dist. v. Acton:  Now Children Must Shed Their Constitutional Rights at the Schoolhouse Gate.  18 UH L. Rev. 869.

  Cyberprivacy on the Corporate Intranet:  Does the Law Allow Private-Sector Employers to Read Their Employees' E-mail?  20 UH L. Rev. 165.

  Wyoming v. Houghton:  The Bright Line Search Includes Passengers' Belongings.  22 UH L. Rev. 645.

  United States v. Montero-Camargo Elimination of the Race Factor Develops Piecemeal:  The Ninth Circuit Approach.  23 UH L. Rev. 703.

  Kyllo v. United States:  The Warrantless Use of Thermal Imagery Devices, and Why the Public Use Standard Proves Unworkable.  24 UH L. Rev. 383.

  Still Wondering After All These Years:  Ferguson v. City of Charleston and the Supreme Court's Lack of Guidance over Drug Testing and the Special Needs Doctrine.  24 UH L. Rev. 797.

  Reconsidering Hawai‘i's HIV Statute:  The Need to Protect an Individual's Basic Liberties.  28 UH L. Rev. 169.

  Drunk, Driving, and Untouchable:  The Implications of State v. Heapy on Reasonable Suspicion in Hawai‘i.  31 UH L. Rev. 607 (2009).

  State v. Spillner:  An Investigatory Traffic Stop Based on Unreasonable Suspicion.  31 UH L. Rev. 631 (2009).

  The Privacy Rights of Public School Students.  32 UH L. Rev. 305 (2010).

  Hawai‘i's Right to Privacy.  33 UH L. Rev. 669 (2011).

  Chief Justice Moon's Criminal Past.  33 UH L. Rev. 755 (2011).

  Homeless Property Rights:  An Analysis of Homelessness, Honolulu's "Sidewalk Law," and Whether Real Property is a Condition Precedent to the Full Enjoyment of Rights under the U.S. Constitution.  35 UH L. Rev. 197 (2013).

 

Case Notes

 

Generally.

  Plaintiff contended that police officer used deadly force against plaintiff's son in violation of son's Fourth Amendment rights and that the district court erred in granting the officer qualified immunity; district court's judgment affirmed.  511 F.3d 901.

  Police officers did not use excessive force in violation of the Fourth Amendment in attempting to restrain an individual.  523 F.3d 1103.

  A reasonable fact finder could conclude that the defendant-appellant police officers' use of a taser gun in dart-mode, as alleged, against plaintiff-appellee was constitutionally excessive force in violation of the Fourth Amendment; however, defendant-appellant police officers were entitled to qualified immunity because the alleged constitutional violation was not clearly established when the conduct occurred.  661 F.3d 433 (2011).

  Trial court's jury instruction enforced an erroneous partial grant of summary judgment in favor of defendant police officers and constituted reversible error, where jury was instructed that defendants did not, as a matter of law, use excessive force when they broke stolen vehicle's window and dragged plaintiff through it.  The substance of the applicable law under Graham is whether the officers' force was reasonable under the totality of the circumstances; the court's instruction plainly prevented the jury from applying Graham to all of the relevant facts.  704 F. 3d 624 (2012).

  There was no constitutional violation and individual police officers were entitled to qualified immunity in the 42 U.S.C. §1983 civil rights suit stemming from allegations of excessive force, where unwanted visitor died as a result of a heart attack sustained during the encounter with police.  414 F. Supp. 2d 965.

  Where plaintiff alleged that defendant police officer violated an individual's Fourth Amendment rights when the officer shot and killed the individual, the officer was entitled to qualified immunity.  554 F. Supp. 2d 1141.

  Based on the totality of the circumstances and on factors prescribed by the United States Supreme Court in Graham, defendant police officers did not employ excessive force against plaintiff based on the situation that presented itself to defendants prior to plaintiff being removed from the car by defendants; however, defendants' motion for summary judgment denied because a genuine issue of material fact existed as to whether or not defendants' use of force, once plaintiff was removed from the car plaintiff was in, was reasonable.  753 F. Supp. 2d 1092 (2010).

  Defendant city and county of Honolulu's motion to dismiss denied on plaintiff's claim that plaintiff was subjected to excessive force in violation of the Fourth Amendment where plaintiff alleged that defendant police officer shot plaintiff with a taser without provocation, and proceeded to punch and kick plaintiff, while in the course of arresting plaintiff.  761 F. Supp. 2d 1080 (2010).

  Where plaintiff alleged that defendant police officer's failure to intercede to stop alleged violations violated plaintiff's Fourth Amendment right to be free from the use of excessive force, plaintiff's failure to intercede claim failed.  Plaintiff failed to set forth facts sufficient to demonstrate the kind of cooperation and/or conspiracy necessary for a finding that defendant security guard, a private party, may be considered a state actor for purposes of 42 U.S.C. §1983 liability; as such, defendant security guard could not fairly be characterized as defendant police officer's "fellow officer".  955 F. Supp. 2d 1138 (2013).

 

Consent.

  Person entrusted with photos by co-owner had authority to consent to police examination of them.  575 F.2d 209.

  "Voluntariness" of consent to search is a factual question to be determined from the totality of the circumstances.  577 F.2d 473.

  Court agreed with district court's reasoning rejecting contentions that, inter alia, consent to undercover agents' entry into home was vitiated when, in response to direct question, they denied that they were police officers, and that warrantless entry of additional uniformed officers was unlawful and therefore invalidated subsequent consent to search.  103 F.3d 1475.

  Not violated where homeowner voluntarily consented to search for marijuana even if co-owner's later consent was involuntary.  779 F. Supp. 1272.

  Entry and search of hotel room was nonconsensual where government agents threatened to break door down and were observed with weapons drawn.  803 F. Supp. 352.

  Considering the totality of the circumstances, although defendant was in custody and was not read Miranda rights before providing consent, defendant's consent to search defendant's luggage was ultimately intelligent and voluntary; inter alia, detective's suggestion that defendant may be able to continue defendant's travels if defendant consented did not transform the consent into a product of duress or coercion.  835 F. Supp. 2d 938 (2011).

  Defendant's consent to search and waiver of search warrant was voluntary; scope of consent was not exceeded.  894 F. Supp. 1384.

  Authority of defendant's wife to consent to search and seizure considered.  45 H. 622, 372 P.2d 365.

  Right to privacy is a personal right that can be waived by possessor only.  51 H. 62, 451 P.2d 257.

  To be valid, consent to warrantless search must be voluntary.  55 H. 442, 521 P.2d 376.

  Determination of voluntariness of consent.  58 H. 462, 571 P.2d 745.

  Consent implied where visitor applies for admission to prison with knowledge of practice of strip search.  59 H. 366, 580 P.2d 1282.

  Question raised but not decided.  63 H. 95, 621 P.2d 374.

  Consent to search was given under duress.  X-ray should have been conducted as least intrusive means of conducting body cavity search.  65 H. 601, 655 P.2d 864.

  No showing of voluntary consent by defendant to search car.  67 H. 126, 681 P.2d 553.

  Babysitter did not have authority to consent to search of suspect's room.  67 H. 496, 692 P.2d 1156.

  Finding that defendant not coerced by police officers and voluntarily consented to search of defendant's truck not clearly erroneous.  81 H. 358, 917 P.2d 370.

  Evidence found in defendant's living room illegally seized where no exigent circumstances or search warrant to enter living room and person consenting to police entering living room did not have "actual authority" to consent.  82 H. 394 (App.), 922 P.2d 1007.

  Warrantless search of defendant's bedroom in defendant's parents' house unreasonable where mother did not have actual authority to consent to search of son's bedroom; son had, by implicit agreement and in practice, exclusive possession of bedroom, and there was no indication that son gave mother access to room or permission to allow others access.  96 H. 472 (App.), 32 P.3d 116.

 

Right of privacy.

  Arrest of defendants sunbathing nude on public beach did not violate their right of privacy.  52 H. 336, 475 P.2d 684.

  Not violated by use by police of a ruse to effect the voluntary opening of a door and the subsequent entry without use of force for purpose of executing a lawful arrest warrant.  83 H. 13, 924 P.2d 181.

  Regardless of the number of times that the police tested defendant's blood sample for its DNA, no violation of defendant's constitutional right to privacy occurred because the analyses did not exceed the objective for which the original warrant was sought--DNA testing for the purpose of identification.  103 H. 38, 79 P.3d 131.

  Where police forcibly entered petitioner's home in pursuit of petitioner's son without a warrant and in the absence of any exigent circumstances, there was no conceivable basis in the law to uphold the entry as valid; thus, trial court's conclusion to the contrary reversed.  121 H. 74, 214 P.3d 613 (2009).

 

Search and seizure generally.

  Drug enforcement officers had reasonable suspicion that defendant was transporting drugs to make investigative stop.  490 U.S. 1.

  If inaccuracies in warrant affidavit are not deliberate and remaining allegations support probable cause, seizure based on the warrant is lawful.  575 F.2d 209.

  Absent exigent circumstances, seizure of items alleged to violate Food, Drug, and Cosmetic Act must comply with basic Fourth Amendment requirements.  641 F.2d 1289.

  General requirements for probable cause.  703 F.2d 408.

  Even though article seized illegally, forfeiture may proceed if requirement for forfeiture can be satisfied with untainted evidence.  715 F.2d 1339.

  Probable cause for search of vehicle and plastic bag within.  757 F.2d 969.

  Defendant's purchase of printing equipment and ink, questions about printing, and conversation established probable cause for defendant's arrest for counterfeiting.  Untainted information independently established probable cause for search of vehicle.  790 F.2d 789.

  Under circumstances, affidavit provided substantial basis for warrant though based on allegedly anonymous and conclusory allegations.  795 F.2d 841.

  Seizure was reasonable when defendants were detained at airport while dog sniffed their luggage, and during detention federal agent held their airplane tickets and drivers' licenses; dog's sniff of luggage not a search; admissibility of notes discovered in envelope in defendant's luggage, after search, where warrant covered only drugs.  796 F.2d 257.

  No "plain view" seizure since government agents' presence no longer justified.  807 F.2d 792.

  Defendant was seized when grabbed by the arm and sat down for questioning; seizure not based on reasonable suspicion.  808 F.2d 1366.

  A person who is detained illegally is not immunized from prosecution for crimes committed during the person's detention.  812 F.2d 1250.

  Detention of packages suspected of containing marijuana for seven to twenty-three days prior to obtaining a search warrant violated the Fourth Amendment.  849 F.2d 414.

  Investigatory detention was justified.  871 F.2d 1497.

  Warrant authorizing search and seizure of art gallery's entire works was overbroad.  875 F.2d 747.

  Detention was reasonable where police detained party for interview but waited until party was sober.  879 F.2d 607.

  No seizure occurred when defendant voluntarily gave agent airline ticket.  887 F.2d 232.

  No reasonable expectation of privacy in illegally taken seal meat stored in freezer where defendant merely had possession to store meat, not right to exclude others from freezer.  945 F.2d 254.

  Not applicable to search of nonresident aliens on ship in international waters.  946 F.2d 608.

  Probable cause demonstrated for warrant authorizing drug raid on defendants' home independent of readings taken by infrared device during helicopter surveillance of home.  984 F.2d 1053.

  Defendant had no reasonable expectation of privacy in hallway outside defendant's apartment in high security high rise apartment building.  3 F.3d 1239.

  Employee's contention that employee's designation as a witness in IRS summons to obtain handwriting exemplars was a calculated maneuver to circumvent employee's Fourth Amendment privilege against unreasonable searches and seizures and employee's due process rights under both Fifth Amendment and IRS regulations, rejected.  94 F.3d 1342.

  Where an undercover agent is invited into a home, establishes the existence of probable cause to arrest or search, and immediately summons help from other officers, the other officers' warrantless entry does not violate Fourth Amendment.  103 F.3d 1475.

  Search warrant authorizing search of a residence also authorizes without so stating the search of the residence's curtilage.  104 F.3d 272.

  District court's denial of appellant's motion to suppress evidence acquired after Federal Express employees opened appellant's package and contacted Drug Enforcement Administration because they suspected it contained illegal drugs, affirmed, where appellant failed to establish Federal Express was acting as an instrument or agent of the government.  153 F.3d 1079.

  When an administrative search scheme encompasses both a permissible and an impermissible purpose, and when the officer conducting the search has broad discretion in carrying out the search, that search does not meet Fourth Amendment's reasonableness requirements.  Secondary purpose for administrative search was improper, where primary purpose behind search at federal building was to look for weapons and explosives, and secondary purpose was to look for other materials that violated regulations, e.g., drugs.  156 F.3d 963.

  Fourth Amendment had no application, where defendants challenged "walk and talk" procedure in which police officer made initial contact with defendants, arguing that, although in form consensual, the approach was in fact coercive, defendants yielding to pressure exerted by a police officer showing officer's identification and asking if they were willing to speak.  177 F.3d 1130.

  Where defendants contended that officer lacked probable cause to arrest either of them, probable cause that was sufficient for officer to arrest [other person] also was sufficient for officer to arrest the two persons officer had observed acting in concert with [other person].  177 F.3d 1130.

  District court judgment affirmed, concerning order denying defendant's motion to suppress evidence obtained by police during allegedly illegal search of defendant's home; defendant contended, inter alia, that observations made by officers while standing within curtilage of defendant's home were made in violation of defendant's Fourth Amendment rights, and were wrongfully relied upon by magistrate in issuing search warrant, arguing that officers had no right to approach defendant's home in an attempt to investigate their suspicions, officers violated defendant's Fourth Amendment rights by leaving front door and circling defendant's home, and marijuana plants were not in plain view of officers.  236 F.3d 1054.

  Defendants lacked standing to challenge police entry into hotel room at 12:40 p.m., where a defendant had checked out of the hotel before noon and other defendant's expectation of privacy was reasonable only until 12:30 p.m.  241 F.3d 1124.

  Where police stopped defendant's rental car after they had received a report from the car's owner that the car was overdue, police had reasonable suspicion to stop the car, even if the report turned out to be mistaken due to its timing, because the police were acting on a police report from the car's owner, whose honesty had not been questioned.  241 F.3d 1124.

  Prosecutor entitled to qualified immunity where the right allegedly violated, i.e., Fourth Amendment right not to have a prosecutor, in order to obtain a bail revocation, personally attest to a false statement of a biased source with no investigation of the statement's truth or falsity, was not "clearly established" at the time of the alleged violation.  279 F.3d 1064.

  Detention of express mail package addressed to defendant was reasonable, where defendant challenged postal inspector's initial detention of the package and the delay in calling for a canine unit to sniff the package.  313 F.3d 1206.

  In 42 U.S.C. §1983 case against an elementary school vice principal who taped a second grade student's head to a tree for disciplinary purposes, student's claim was appropriately brought under the Fourth Amendment, and district court correctly denied vice principal's motion for summary judgment on basis of qualified immunity.  334 F.3d 906.

  Where defendant had no privacy interest in an illegal gambling room, defendant could not challenge the protective sweep. The fact that defendant was arrested outside the gambling room did not automatically preclude police officers from conducting an appropriate sweep of the interior of the room to dispel suspicion and protect themselves; police officer's search behind the sofa did not exceed the scope of the protective sweep.  469 F.3d 760.

  Defendant's Fourth Amendment rights were not implicated by the brief pre-sniff detention of defendant's package and thus could not be violated.  Once the narcotics detection dog alerted to the package, probable cause supported the further diversion of the package, and the search was properly conducted pursuant to a warrant.  486 F.3d 1156.

  Airport screening search of defendant was a constitutionally reasonable administrative search, where defendant elected to attempt entry into the posted secured area of the airport when defendant walked through the magnetometer, thereby subjecting defendant to the airport screening process.  497 F.3d 955.

  Even if the search warrant was technically deficient, the executing FBI agents were entitled to the good faith exception; the search warrant adequately described the items to be seized; the agents did not act unreasonably in failing to enlist the help of an agent fluent in Chinese in conducting the search.  525 F.3d 709.

  To establish probable cause for defendant's arrest, plaintiff government did not need to prove that the arresting officers knew defendant had committed a crime, but only that the officers' belief that defendant committed crimes related to child pornography was an objectively reasonable one; district court erred, and case was remanded for further proceedings.  648 F.3d 820 (2011).

  Transportation Security Administration employee's viewing of photographs from the envelope found in defendant's luggage during airport screening was justified by and part of the lawful administrative search and even the development of a secondary desire to confirm that the photographs evidenced contraband did not invalidate that search; suppression order by district court vacated and remanded.  648 F.3d 820 (2011).

  Telescopic surveillance of apartment by government agents without a warrant held to be an unreasonable search.  415 F. Supp. 1252.

  Section 346-42, authorizing inspection of offices and records of medical providers, violated Fourth Amendment because it did not require that facts upon which inspection is based be measured against objective standard.  481 F. Supp. 1028.

  Prevailing federal law is that warrantless recordings do not violate Fourth Amendment where one party to conversation consents to recording.  526 F. Supp. 1198.

  Postal parcel held for seven days without a warrant was an unreasonable seizure.  666 F. Supp. 1424.

  The warrantless entry of a home by deception is not a violation.  673 F. Supp. 387.

  Applicable to searches and seizures on the high seas.  685 F. Supp. 732.

  Exclusionary rule is completely irrelevant to issues involving the operation of grand juries.  707 F. Supp. 1207.

  Agent was entitled to open notebook located on passenger seat to see if it contained a weapon.  751 F. Supp. 161.

  Police department did not exhibit a deliberate indifference to warrantless stops and arrests.  751 F. Supp. 1385.

  Government must demonstrate probable cause to believe that seized property was involved with illegal drugs or money laundering transactions prescribed by statutes.  754 F. Supp. 1467.

  Defendants had no objectively reasonable expectation of privacy in heat emanations, as incidental byproduct of energy sources used in marijuana cultivation, detected by instrument in helicopter flying above defendants' residence.  773 F. Supp. 220.

  Probable cause existed to believe that search of defendant's residence would uncover specific evidence relating to drug trafficking.  800 F. Supp. 892.

  Seizure of vehicle proper where probable cause existed to believe vehicle had been used to transport drugs.  803 F. Supp. 352.

  Airport "walk and talk" encounter was a consensual exchange under federal law; even if a seizure, it was supported by reasonable suspicion and was therefore valid.  823 F. Supp. 792.

  Federal law governed admissibility of evidence in case involving investigatory detention where there was no federal investigative involvement at time of encounter and arrest.  823 F. Supp. 792.

  Where plaintiff asserted that defendant police officer and defendant resident manager unlawfully arrested plaintiff, both defendants had probable cause to arrest plaintiff for harassment.  855 F. Supp. 1167.

  No government action, where defendant's law partner (off-duty reserve police officer), former secretary, and former secretary's husband (off-duty full-time police officer) removed documents and on-duty police officers sent to law firm did not remove any files or property from law firm.  14 F. Supp. 2d 1194.

  Defendant's motion to suppress evidence denied, where government demonstrated that defendant's initial encounter with officer and search were consensual, that there was probable cause for defendant's arrest, and that evidence in issue was therefore lawfully obtained.  191 F. Supp. 2d 1173.

  Plaintiffs challenging city and county of Honolulu's practice of charging nonresidents a $3 fee to enter bay designated a marine life conservation district and nature preserve were not "seized" in violation of the Fourth Amendment or article I, §7 of the Hawaii constitution; stopping to pay $3 entrance fee at turnstile did not constitute an impermissible seizure.  215 F. Supp. 2d 1098.

  Police officer had not established that the officer was entitled to summary judgment on qualified immunity grounds, where in plaintiff's version of events, the officer could see plaintiff's hands in the air and therefore knew that shooting plaintiff would clearly violate plaintiff's Fourth Amendment rights.  294 F. Supp. 2d 1179.

  Where plaintiff sued defendant for allegedly violating plaintiff's rights under the Fourth, Fifth, and Fourteenth Amendments, based on defendant's involvement in the removal and subsequent destruction of motorcycles and mopeds in the area of plaintiff's motorcycle repair shop, genuine issues of material fact existed and precluded the court from determining whether defendant was entitled to qualified immunity under federal law.  333 F. Supp. 2d 942.

  Police officers did not violate a civil process server's Fourth Amendment rights, because the officers had probable cause to arrest the process server for impersonating a law enforcement officer; since no constitutional violation occurred, the officers were entitled to qualified immunity.  348 F. Supp. 2d 1165.

  Defendant's ownership interest in a mailed parcel, where defendant was neither the sender nor the addressee of the parcel, along with defendant's control and supervision of the parcel, was sufficient to manifest a subjective expectation of privacy, and the expectation was objectively reasonable; defendant's motion to suppress evidence obtained through an initial warrantless search and an ensuing sting operation and subsequent home search granted.  351 F. Supp. 2d 1040.

  "Automobile exception" permitted police officers to search defendant's car without a search warrant, provided that the government had probable cause to believe that defendant's car contained contraband or evidence of a crime; the police had probable cause to believe that they would find a shotgun and ammunition in the trunk and center console of the car, based on the totality of the circumstances.  The police were entitled to search the car to protect the public safety. 388 F. Supp. 2d 1185.

  Defendant had standing to challenge the search of the vehicle defendant was driving and the search of the locked duffel bag removed from the vehicle.  DEA special agent's affidavit in support of the search warrant for the bag contained sufficient detail to establish probable cause; even if the affidavit failed to set forth sufficient facts to establish probable cause, the DEA agents acted in good faith and the evidence obtained from the bag need not be suppressed.  470 F. Supp. 2d 1202.

  Container search by government agents that occurred at the U.S. border as the container was entering the country, was conducted in a reasonable manner and the searches of defendant at the airport as defendant was exiting the country, were constitutionally valid.  610 F. Supp. 2d 1234 (2009).

  Defendant social worker was not entitled to qualified immunity because defendant did not have specific, articulable evidence that provided reasonable cause to believe that the subject child was in imminent danger of abuse before defendant took custody of the child; the lack of exigency would have been apparent to any reasonable social worker and defendant violated plaintiffs' clearly established Fourth and Fourteenth Amendment rights by taking custody of the child without a warrant.  683 F. Supp. 2d 1097 (2009).

  Federal Bureau of Investigation's agents limited search for weapons in defendant's hotel room's night drawer was reasonable in order to ensure officer safety and public safety prior to defendant's hotel room co-occupant's access to defendant and defendant's hotel room co-occupant's belongings.  693 F. Supp. 2d 1200 (2010).

  Search warrant and supporting affidavit sufficiently established a basis for probable cause to search defendant's computer and peripheral devices for evidence relating to defendant's crimes; search was not overreaching because the search produced only evidence related to defendant's crimes and the evidence found was not used to substantiate additional charges or establish additional search warrants against defendant.  693 F. Supp. 2d 1200 (2010).

  Defendant city and county of Honolulu's motion to dismiss denied on plaintiff's 42 U.S.C. §1983 claim where plaintiff alleged that a police officer shot plaintiff with a taser, punched and kicked plaintiff and proceeded to arrest plaintiff without any provocation or probable cause to believe plaintiff committed a crime because it was plausible to infer that defendant failed to adequately train and/or supervise the police officers resulting in plaintiff's unlawful arrest.  761 F. Supp. 2d 1080 (2010).

  Defendant's motion to suppress granted, where, government did not carry its burden of establishing that law enforcement agent had reasonable suspicion formed by specific, articulable acts to search defendant's car at a traffic stop and therefore violated the Fourth Amendment; collective knowledge doctrine did not apply to the evidence presented.  802 F. Supp. 2d 1141 (2011).

  Based on all of the relevant circumstances--that TSA screeners saw photographs of nude and semi-nude children, at least one, if not two photos they saw contained child pornography, and there were additional photos that they were aware of--HCPD officers had an objectively reasonable belief that defendant had committed a violation of §707-752; in effect, probable cause to arrest defendant existed.  835 F. Supp. 2d 938 (2011).

  The exclusionary rule did not apply to the attachment of a global positioning device on defendant's vehicle at the navigation dock because the search was conducted "in objectively reasonable reliance on binding appellate precedent ... ", moreover, drug enforcement agents' conduct in the use of the GPS tracking device was objectively reasonable; the agents acted with an objectively reasonable good-faith belief that their conduct was fully compliant with then-existing Fourth Amendment jurisprudence.  856 F. Supp. 2d 1188 (2012).

  Defendant, as an employee of defendant Hawaii Island Humane Society, was protected by qualified immunity; even if defendant's actions constituted a violation of plaintiff's Fourth Amendment rights, qualified immunity would apply because plaintiff's Fourth Amendment rights were not "clearly established".  947 F. Supp. 2d 1087 (2013).

  Summary judgment granted to defendants county of Hawaii, Hawaii Island Humane Society (HIHS), HIHS executive director, and HIHS officer as to plaintiff's constitutional claims.  Among other things, no violation of the Fourth Amendment, where:  (1) search and seizure of dogs by defendant HIHS officer was performed under a valid search warrant; and (2) assuming plaintiff's version of the facts as true, the officer's disposal of the dogs was based on a mistake of fact as to the validity of the power of attorney and animal surrender policy form.  The officer's failure to detect fraud regarding the documents was not objectively unreasonable.  947 F. Supp. 2d 1087 (2013).

  Defendant police officer was not an integral participant in the alleged takedown and subsequent assaults such that defendant may be subject to 42 U.S.C. §1983 liability for those acts of other defendants.  Also, plaintiff's allegations, absent specific facts indicating abusive or otherwise unreasonable conduct, were insufficient to demonstrate that defendant police officer acted unreasonably; therefore, defendant was entitled to qualified immunity.  955 F. Supp. 2d 1138 (2013).

  Officer did not have reasonable suspicion to seize defendant where officer did not have evidence that defendant, rather than other members of defendant's group, had committed or was about to commit a crime; officer did not observe defendant drinking, arguing, fighting or making unreasonable amounts of noise; thus, appeals court erred in affirming the district court's judgment.  126 H. 68, 266 P.3d 1122 (2011).

  Where defendant was seized without reasonable suspicion when officer told defendant to exit the vehicle, and continued when officer subsequently chased defendant, officer's stop was a single illegal seizure; thus, officer's continuing attempt to improperly seize defendant placed officer in the position from which officer could observe the beer bottles in defendant's car and was thus evidence obtained as a result of an illegal seizure.  126 H. 68, 266 P.3d 1122 (2011).

  Where officer did not have reasonable suspicion to stop defendant when officer told defendant to exit car, and after officer chased defendant and subsequently discovered probable cause to arrest defendant when officer observed the beer bottles in defendant's car, the evidence obtained after the initial stop was the fruit of the poisonous tree as it was discovered by exploiting the officer's prior illegal seizure.  126 H. 68, 266 P.3d 1122 (2011).

  Where police consent form stated that search of defendant's automobile and its contents was expressly confined to evidence of "firearms, ammunition", and officer acknowledged that the wallet was lying closed on the seat and that officer searched the wallet for ammunition but that officer was not nervous because officer could not "feel anything", officer's observations did not reasonably suggest the presence of ammunition in the wallet; thus, the continued search of the wallet that uncovered another person's license was objectively unreasonable and exceeded the scope of defendant's consent.  121 H. 533 (App.), 221 P.3d 511 (2009).

  Navy police officer's initial search of defendant's car after defendant drove defendant's car back through the base gate and subsequent search by federal agents were supported by probable cause given the collective knowledge of the officers who were involved in the investigation and apprehension of defendant and thus were valid under the federal automobile exception to the warrant requirement; given the proximity in time and location to the reported theft involving defendant, the large amount of money involved and other circumstances, there was probable cause to believe that the missing money or other evidence would be present in defendant's car.  122 H. 2 (App.), 222 P.3d 409 (2010).

  Effect on confession.  45 H. 622, 372 P.2d 365.

  Confession tainted by illegal search and seizure must be excluded.  48 H. 204, 397 P.2d 558.

  Illegal arrest does not render defendant's statement inadmissible.  48 H. 204, 210, 397 P.2d 558; 49 H. 522, 529-30, 423 P.2d 438.

  Use of flashlight by police officer in scanning interior of automobile lawfully stopped for traffic offense is not per se unreasonable search and seizure.  50 H. 461, 443 P.2d 149; 430 F.2d 58.

  Place protected; test is whether the place is of such a character as to give rise reasonably to expectation of freedom from governmental intrusion.  52 H. 100, 470 P.2d 510.

  Under the facts, warrantless search held not justified by "exigent circumstance" and not "incident to an arrest".  52 H. 100, 470 P.2d 510; 66 H. 499, 666 P.2d 592.

  Probable cause:  general definition; defendant's reputation as a factor.  52 H. 226, 473 P.2d 567.

  Police officer may in appropriate circumstances stop a person to investigate possible criminal activities even though there is no probable cause to make an arrest.  52 H. 497, 479 P.2d 800.

  No warrant is required when government secret agent is invited to private home to purchase marijuana and later goes there and makes purchase.  54 H. 513, 510 P.2d 1066.

  Search or arrest without warrant valid only when officer has probable cause to believe that a crime is being, was, or is about to be, committed.  Exists when facts and circumstances would warrant reasonable person to believe crime is being committed.  54 H. 552, 512 P.2d 551.

  Search warrants; manner of executing warrants covering drugs; scope of warrants.  55 H. 90, 516 P.2d 65.

  Sufficiency of affidavits based on informer's tip to support issuance of warrant.  55 H. 90, 516 P.2d 65.

  If facts in affidavit together with reasonable inferences support existence of probable cause, appellate court is constrained to uphold that finding by lower court, even though other inferences might point to opposite conclusion.  55 H. 565, 524 P.2d 290.

  Requisites of affidavit for warrant based on informer's tips.  55 H. 565, 524 P.2d 290.

  Staleness of information forming basis of affidavit.  55 H. 565, 524 P.2d 290.

  Warrant to search premises does not authorize search of identified possessions of visitors present during execution of warrant.  55 H. 583, 525 P.2d 573.

  Street interrogation by police did not constitute "seizure".  56 H. 8, 525 P.2d 1099.

  Although initial stop of vehicle was proper, when police without justification required defendant to leave vehicle, unlawful seizure of person occurred.  56 H. 216, 533 P.2d 270.

  Disclosure of informer's identity is not required where sole purpose is to challenge finding of probable cause.  58 H. 19, 563 P.2d 990.

  Sufficiency of affidavit based on informer's tip to support issuance of warrant.  58 H. 19, 563 P.2d 990.

  Helicopter observation of open marijuana patch did not constitute search.  58 H. 412, 570 P.2d 1323.

  Sufficiency of affidavit based upon hearsay.  58 H. 485, 572 P.2d 856.

  Informant, actively recruited by police, may be considered agent of State, and Fourth Amendment prohibitions would apply to searches made by informant.  58 H. 530, 574 P.2d 1330.

  Where officer had to stand upon a crate stacked on a bench to peer through a hole in the drawn drapes covering a window, the occupants had a reasonable expectation of privacy.  59 H. 23, 575 P.2d 462.

  Sufficiency of affidavit based on informer's tip.  59 H. 120, 577 P.2d 335.

  Discretionary stop of automobile by police officer to investigate possible violation of laws regulating motor vehicles may be made only if supported by a reasonable belief of a violation.  59 H. 130, 577 P.2d 781.

  Strip search of prison visitor not unreasonable.  59 H. 366, 580 P.2d 1282.

  In seizure of gun without warrant, knowledge of one officer was imputed to the other to establish probable cause.  59 H. 375, 581 P.2d 758.

  Investigative stop of automobile held not justified under the circumstances.  59 H. 386, 581 P.2d 765.

  Use of evidence wrongfully obtained--permissible scope.  59 H. 572, 584 P.2d 127.

  Whether governmental visual surveillance was an unreasonable search depended on whether defendant had exhibited a reasonable expectation of privacy.  60 H. 301, 588 P.2d 447.

  Marijuana plants exposed to viewing by public are not within reasonable expectation of privacy.  60 H. 318, 589 P.2d 527.

  Elements of legitimate expectation of privacy.  61 H. 117, 596 P.2d 773.

  "Open view" doctrine applied.  61 H. 124, 596 P.2d 777.

  Arrest without warrant for a specific offense was valid where police had probable cause to arrest for a different but closely related offense.  61 H. 291, 602 P.2d 933.

  Pre-incarceration search.  61 H. 291, 602 P.2d 933.

  Investigative stop and warrantless search of automobile.  61 H. 316, 603 P.2d 143.

  Warrantless search of automobile, when permissible; exigent circumstances.  61 H. 492, 605 P.2d 930.

  Warrantless entry of residence to effect arrest, when justified.  61 H. 505, 606 P.2d 913.

  Where police allowed no one to touch box until a search warrant was obtained, there was a seizure without warrant.  61 H. 505, 606 P.2d 913.

  "Stop" or "seizure" occurs when.  61 H. 566, 606 P.2d 1329.

  Strip search of prison visitor not unreasonable; opening of balloon recovered from visitor and examination of contents similarly not unreasonable.  62 H. 1, 607 P.2d 1048.

  Absent exigent circumstances, police may not enter private building without a warrant.  62 H. 44, 609 P.2d 131; 62 H. 52, 609 P.2d 637.

  Where gambling was observable by anyone on adjoining premises, observation by police who trespassed on adjoining premises did not constitute unreasonable search and seizure.  62 H. 44, 609 P.2d 131.

  Squatters on government property.  62 H. 52, 609 P.2d 637.

  What is knowingly exposed to view and hearing of outsiders is not a subject of protection.  62 H. 52, 609 P.2d 637.

  Warrantless search of automobile.  62 H. 59, 610 P.2d 502.

  Pre-incarceration search.  62 H. 79, 611 P.2d 130.

  Requirement that a warrant "particularly describe the things to be seized" discussed.  Severability of provisions violating the particularity requirement.  62 H. 166, 613 P.2d 645.

  Warrantless search of footlocker unreasonable in absence of exigency despite existence of probable cause to arrest owner and seize footlocker.  62 H. 238, 615 P.2d 84.

  Warrantless search of automobile justified when probable cause and exigent circumstances are present.  62 H. 252, 614 P.2d 393.

  Police impoundment of house which curtailed occupant's freedom of movement pending arrival of search warrant constituted seizure of house and contents.  62 H. 377, 615 P.2d 740.

  Where valid investigative stop has been made, police may not order person to leave vehicle or conduct protective search unless specific conduct of defendant, reliable information or attendant circumstances indicate person is armed and dangerous.  62 H. 453, 617 P.2d 76.

  Sufficiency of informer's tip to support warrantless search.  62 H. 459, 617 P.2d 565.

  Warrant required for police to use optical aid to view activity which could not be seen with naked eye.  62 H. 459, 617 P.2d 565.

  "Hot pursuit" is merely a criterion to use in determining whether exigency justifies warrantless search.  62 H. 495, 617 P.2d 89.

  Warrantless search authorized by exigent circumstances.  62 H. 495, 617 P.2d 89; 64 H. 130, 637 P.2d 1105.

  Warrantless automobile search exception did not extend to search of knapsack taken from automobile.  62 H. 660, 619 P.2d 108.

  Sufficiency of affidavit to support warrant; citizen informer; eyewitness informer; conduct which is as consistent with innocent activity as with criminal activity.  63 H. 36, 620 P.2d 1072.

  Use of binoculars to view contents of greenhouse not visible to naked eye constituted search.  63 H. 90, 621 P.2d 370.

  Establishment of probable cause to search house and adjacent areas from discovery of marijuana growing in vacant lot.  63 H. 95, 621 P.2d 374.

  Arrest and seizure held valid.  63 H. 488, 630 P.2d 619.

  Warrantless search.  Exigent circumstances lacking.  63 H. 553, 632 P.2d 1064.

  Procedural requirements for seizure of materials in obscenity prosecutions.  63 H. 596, 634 P.2d 80.

  City policy requiring inspection prior to entering concert, of all containers or clothing capable of concealing bottles or cans held unreasonable.  64 H. 17, 635 P.2d 946.

  Warrantless searches.  Probable cause existed to search automobile for firearm.  64 H. 101, 637 P.2d 770.

  Illegal arrest or seizure of evidence, without more, does not bar prosecution.  Exclusion of tainted evidence is appropriate remedy; purchase of allegedly obscene material from "willing sellers" by private citizen under police direction prior to arrest was actually "preconceived seizure" designed to evade warrant procedures; warrantless arrest for promoting pornography and seizure of material cannot be premised on ad hoc determination by police officer that material was obscene.  64 H. 109, 637 P.2d 1095.

  Evidence inadequate to support probable cause for issuance of warrant.  64 H. 399, 641 P.2d 1341.

  Warrantless recordation by party to conversation upheld.  64 H. 659, 649 P.2d 346.

  No reasonable expectation of privacy in airspace surrounding luggage.  Use of dog to sniff luggage for narcotics upheld.  65 H. 104, 649 P.2d 366.

  No unlawful search where binoculars used only to confirm unaided observations into area where no reasonable expectation of privacy.  65 H. 152, 648 P.2d 194.

  No reasonable expectation of privacy shown.  65 H. 159, 649 P.2d 737.

  Warrantless body cavity search not justified under circumstances.  65 H. 488, 654 P.2d 355.

  Expectation of privacy under circumstances was not one which society is prepared to recognize as legitimate.  Strip search of prisoner was reasonable under circumstances.  66 H. 21, 656 P.2d 1330.

  Checking an engine number located inside a vehicle constitutes a "search".  66 H. 202, 659 P.2d 70.

  Police may conduct warrantless search of lost property to identify and safeguard it, protect police from false claims, or negate danger presented.  A police inventory of lost and found property is a search.  67 H. 107, 678 P.2d 1088.

  Use of dog to sniff all packages in cargo room was reasonable in light of balance of interests.  Prior suspicion of particular package not absolute prerequisite to use of dog to sniff for drugs.  67 H. 168, 681 P.2d 980.

  Protective weapons search; scope of, when justified.  67 H. 181, 683 P.2d 822.

  Warrantless search of probationer's person, property, or residence; when justified.  67 H. 268, 686 P.2d 1379.

  Ordering driver out of car and to take sobriety test was reasonable seizure.  Flashlight-aided inspection of vehicle's interior to confirm unaided observation of object in open view, not a search.  67 H. 293, 687 P.2d 544.

  Circumstances, including anonymous tip, did not warrant search of car.  67 H. 535, 696 P.2d 346.

  Any co-inhabitant of commonly held property has right to consent to search of property; no expectation of privacy in property abandoned; abandonment primarily a question of intent.  67 H. 644, 701 P.2d 171.

  Extraction of cigarettes from purse at defendant's request not a search; if search, consent given; warrantless seizure as valid protective measure incident to lawful arrest.  67 H. 650, 701 P.2d 1277.

  Based on record, no consent to search; legitimate expectation of privacy in area searched; warrantless seizure; exigent circumstances lacking.  68 H. 32, 703 P.2d 680.

  Stopping automobile for a brief period during traffic stop is a "seizure".  68 H. 184, 706 P.2d 1305.

  Warrant to install beeper not excused by difficulty in satisfying particularity requirement; sufficient basis for warrant.  68 H. 213, 708 P.2d 820.

  Reasonable expectation of privacy in closed public toilet stall; no probable cause to search stall.  68 H. 404, 716 P.2d 493.

  No reasonable expectation of privacy in defendant's yard where defendant made no attempts to screen neighbor's view, construct or maintain a fence.  69 H. 534, 750 P.2d 932.

  Per se reasonable for arresting officer to conduct a warrantless, limited pat-down search.  70 H. 107, 762 P.2d 803.

  Search warrant was valid although informant had no history of reliability because other corroborated information indicated informant was reliable.  70 H. 271, 768 P.2d 1290.

  Constitutional right was not voluntarily waived by defendant's consent to search car where waiver was predicated on prior illegal search and State failed to meet burden of showing that taint of illegal search had been dissipated or that there was an independent source inducing defendant to waive right.  72 H. 505, 824 P.2d 833.

  Although no force was used, officers' show of authority and questioning constituted seizure under Hawaii constitution.  74 H. 161, 840 P.2d 358.

  Traffic stop was justified; police officer was permitted to invite appellant to exit appellant's vehicle for further investigation.  75 H. 1, 856 P.2d 1207.

  Children in school have legitimate expectations of privacy that are protected by article I, §7 of Hawai‘i constitution and the Fourth Amendment.  77 H. 435, 887 P.2d 645.

  High school principal's search of student's purse was lawfully conducted.  77 H. 435, 887 P.2d 645.

  Where handgun on floor of defendant's truck under corner of driver's seat was observed in plain view, presence of exigent circumstances was not required to justify a warrantless seizure.  78 H. 308, 893 P.2d 159.

  Detective's entrance into defendants' home, whatever the purpose, over six hours after everyone had left was a "search" in the constitutional sense.  78 H. 433, 896 P.2d 889.

  Clear plastic packets not "closed" containers as contents were within plain view of officer conducting search under warrant; defendant thus could not claim any reasonable expectation of privacy in the packets' contents.  80 H. 382, 910 P.2d 695.

  Obtaining warrant as precondition to testing suspected cocaine in clear plastic bags unnecessary where defendant could not have reasonable expectation of privacy in clear plastic bags.  80 H. 382, 910 P.2d 695.

  Valid search incident to lawful arrest where there was probable cause to make an arrest prior to and independent of search of defendant's pants, search was limited to finding narcotics bindles, and arrest was made immediately after search.  80 H. 419, 910 P.2d 732.

  As Hawaii constitution provides greater protection for Hawaii's citizens, determination of probable cause for issuance of search warrant warrants de novo review on appeal.  81 H. 113, 913 P.2d 39.

  Defendant lacked standing to challenge seizure of search warrant evidence where evidence seizure did not violate defendant's personal rights; defendant was not owner of any of items seized and did not allege any reasonable expectation of privacy in items.  82 H. 474, 923 P.2d 891.

  No "seizure" where private individual, acting on own initiative, secured videotape and voluntarily transferred possession to police.  82 H. 474, 923 P.2d 891.

  Drug evidence admissible and wrongly suppressed where police intrusion into hotel room pursuant to valid arrest warrant was justified and evidence seizure was permissible under plain view doctrine.  83 H. 13, 924 P.2d 181.

  "Totality of the circumstances test" correct test to determine whether private individual's search and seizure of evidentiary items was as a government agent, and subjective motivation of individual irrelevant to this determination.  83 H. 124, 925 P.2d 294.

  Warrantless seizure justified where witness' identification of defendant as person who terrorized witness with gun gave officers probable cause to believe defendant committed a crime and officer's observation of defendant sleeping with gun in immediate reach presented sufficient exigent circumstances for officer to board boat and seize gun.  83 H. 229, 925 P.2d 797.

  Officer lacked specific and articulable facts sufficient to warrant a person of reasonable caution in believing that defendant was engaged in criminal activity; officer was thus unjustified in initiating investigative "encounter" at airport with defendant.  83 H. 250, 925 P.2d 818.

  Where nothing in objective facts available to police at time they obtained search warrant for house suggested defendant's bedroom was separate residential unit completely secured against access by other dwelling occupants, search warrant not overbroad and search of bedroom reasonable.  84 H. 462, 935 P.2d 1007.

  Police may not prolong the detention of individuals subjected to brief, temporary investigative stops, once such stops have failed to substantiate the reasonable suspicion that initially justified them, solely for the purpose of performing a check for outstanding warrants.  91 H. 80, 979 P.2d 1106.

  Officer's warrantless seizure of pouch containing handgun was justified based on exigent circumstances where, based on totality of the circumstances, including dark and deserted nature of area of traffic stop, truck occupants' unusual degree of movement in truck and refusal to obey officer's order to stay in truck, officer reasonably believed that occupants of truck posed a danger to officer.  93 H. 87, 997 P.2d 13.

  When an airline passenger consents to a search of his or her effects at an airport security checkpoint, the scope of the search reasonably extends to those receptacles, the contents of which cannot be identified, contained in luggage.  97 H. 71, 34 P.3d 1.

  A mandatory blood test, pursuant to §286-163, absent an arrest, violates neither this Amendment nor article I, §7 of the Hawaii constitution, so long as the police have probable cause to believe that the driver has committed one of the enumerated offenses and that the driver's blood contains evidence of intoxication or drug influence, exigent circumstances excuse a warrant, and the test is performed in a reasonable manner.  98 H. 221, 47 P.3d 336.

  Assuming arguendo that, because drug detection dog jumped into the truck's passenger compartment, this canine screening constituted a "search" within the meaning of either this Amendment or article I, §7 of the Hawaii constitution, defendant did not have a reasonable expectation of privacy in the truck (or specifically in the airspace within the cab of the truck); thus, neither the dog's nor police handler's conduct violated defendant's rights.  98 H. 426, 49 P.3d 1227.

  In detaining defendant for the purpose of determining if defendant was impaired and if defendant would consent to a search of defendant's vehicle, officer did not exceed the scope of a temporary investigative stop premised upon circumstances that gave rise to a reasonable suspicion that defendant was driving while impaired or that defendant's vehicle might contain illicit substances.  99 H. 370, 56 P.3d 138.

  Based on the totality of the circumstances, pool hall owner's actions in searching and detaining defendant were as a private citizen, not as a government agent; thus, owner's search and/or seizure of defendant was not constrained by this Amendment nor article I, §7 of the Hawaii constitution.  100 H. 195, 58 P.3d 1242.

  Section 803-37 does not apply to the interior office door of a store; however, as an objectively reasonable expectation of privacy exists at the interior office door of a store, police are required to provide reasonable notification of their presence and authority before making a forced entry; police satisfied this requirement by knocking three times, announcing "police department, search warrant", and waiting fifteen seconds before forcibly entering the locked interior office door of the store.  100 H. 210, 58 P.3d 1257.

  Use of thermal imager device to detect heat emanating from defendant's apartment constituted an unreasonable warrantless search; thus, information gained should have been excluded in the establishment of probable cause.  102 H. 13, 72 P.3d 485.

  Officer's additional observations, considered in concert with the reasonable inferences arising from defendant's screeching of tires, warranted an objectively reasonable suspicion that defendant had, at a minimum, committed the offense of reckless driving of a vehicle, in  violation of §291-2; thus, officer's investigative stop was within the parameters of permissible police conduct.  102 H. 228, 74 P.3d 980.

  Police may act on an anonymous tip of reckless driving, but only under very narrow circumstances; based on the totality of the circumstances, including the reliability of the tip and the imminence of the harm, an anonymous tip was sufficiently reliable to justify an investigatory stop.  103 H. 451, 83 P.3d 714.

  Even assuming the crime stoppers' anonymous tip was not "tainted" as a result of it being relayed to school officials via a police officer, the anonymous tip failed to provide even reasonable suspicion, much less probable cause, to justify the search of minor; the anonymous tip bore no indicia of reliability--the identity or status of the informant, the time the tip came in, the basis, if any, for the informant's knowledge, and the reliability of its assertion of illegality.  104 H. 403, 91 P.3d 485.

  Reasonable suspicion for detaining defendant for the sole purpose of a canine screen did not exist where there were no specific facts to suggest that criminal activity was currently afoot (that defendant had drugs or drug paraphernalia in defendant's possession); the fact that defendant was a known drug dealer, when coupled with the fact that defendant had stolen an item that could have been used to smoke crystal methamphetamine, gave rise only to the inchoate suspicion that defendant might intend to engage in drug activity in the future.  111 H. 392, 141 P.3d 1039.

  Officer's one-week-old knowledge that defendant's truck did not carry valid insurance—and that defendant had not acted to remedy the insurance violation in the preceding week-long interval—and officer's two-week-old knowledge that defendant was unlicensed were together sufficiently fresh to give rise to reasonable suspicion to execute the traffic stop.  116 H. 351, 173 P.3d 498.

  Lack of "exigent circumstances" necessary to justify exception to search warrant requirement.  1 H. App. 3, 612 P.2d 119.

  Failure to show that arresting officer knew that person providing information was an eyewitness results in lack of proof of probable cause.  1 H. App. 60, 613 P.2d 909.

  Probable cause required before person can be detained for custodial interrogation.  1 H. App. 60, 613 P.2d 909.

  Affidavit in support of search warrant was adequate.  2 H. App. 606, 638 P.2d 338.

  Search or seizure need not be preceded by arrest in order to be "incident to" lawful arrest; conditions.  Seizure valid under "plain feel" rule.  4 H. App. 143, 662 P.2d 517.

  Search of receptacles on premises; seizure of property; when within scope of warrant.  5 H. App. 547, 705 P.2d 54.

  Unconstitutional search of backpack where officer had exclusive control of backpack.  7 H. App. 261, 752 P.2d 598.

  Suspicionless drug testing of firefighters by urinalysis in conjunction with annual physical examination is not an unreasonable search.  8 H. App. 571, 816 P.2d 306.

  Officer's order for defendant to exit vehicle was unlawful; thus, subsequent plain view of, search for, and seizure of incriminating evidence was tainted and should have been suppressed.  80 H. 75 (App.), 905 P.2d 50.

  Probable cause existed for issuance of warrant based on officer's affidavit that relied on police investigation as well as on informant's information.  81 H. 29 (App.), 911 P.2d 1101.

  Where warrant only authorized search of specific room of business and another subsequently discovered room of business separated by a hallway and other numbered and unnumbered rooms were also searched, other room was not within scope of warrant and constituted illegal search.  82 H. 162 (App.), 920 P.2d 376.

  Evidence found in defendant's living room illegally seized where no exigent circumstances or search warrant to enter living room and person consenting to police entering living room did not have "actual authority" to consent.  82 H. 394 (App.), 922 P.2d 1007.

  Where private individual was not informed by police of discretionary nature of warrant issuing process and consequently assisted police by searching son's bedroom for evidence, individual became agent of police and individual's actions constituted improper warrantless search by government.  83 H. 209 (App.), 925 P.2d 379.

  Where police had probable cause to arrest defendant without a warrant for fourth degree theft, a petty misdemeanor under §708-833, and simple trespass, a violation under §708-815, and §803-6 authorized them to cite, rather than arrest, defendant for those offenses if defendant did not have any outstanding arrest warrants, outstanding warrant check on defendant by police not unconstitutional.  91 H. 111 (App.), 979 P.2d 1137.

  Right not violated where defendant did not have a reasonable expectation of privacy on busy public street, defendant took no precautions to insure privacy by screening defendant's presence or defendant's drug dealing activity from public view, and no objectively reasonable expectation of privacy for persons, objects, or activities which were visible to the public and captured by non-intrusive video camera.  92 H. 454 (App.), 992 P.2d 723.

  Feeling of the contents of defendant's fanny bag through its cover by officer was an intentional warrantless search of the interior of the fanny bag.  93 H. 314 (App.), 2 P.3d 718.

  Defendant had a constitutionally protected expectation of privacy not only in the general premises of the house, but also in the specific area that was defendant's bedroom; defendant's lack of property interest in defendant's parents' house was not a bar to a claim that defendant had a protected privacy interest in that house.  96 H. 472 (App.), 32 P.3d 116.

  Exigent circumstances did not exist to justify warrantless police entry into and search of house, where, by securing the house believed to hold their quarry, the police had eliminated the perceived threat posed by a free-roaming, allegedly armed suspect, and by closing off the street, the police were in control of the situation, thus having sufficient time to consider their options, plan and obtain a search warrant.  96 H. 472 (App.), 32 P.3d 116.

  Where defendant exhibited an actual, subjective expectation of privacy in defendant's bedroom by keeping door locked at all times, and no other person had the key or access to the room, and as an adult child living with parents is not uncommon in this State, defendant's expectation was one that society was prepared to recognize as objectively "reasonable"; thus, defendant's privacy interests in common areas of parents' house and in defendant's bedroom were constitutionally protected.  96 H. 472 (App.), 32 P.3d 116.

  The federal and state regulatory schemes, which establish security and screening procedures at airports governed by both the Federal Aviation Administration and the state department of transportation, made private security employee's search of passenger's toolbox a governmental search for purposes of the Fourth Amendment and article I, §7 of the Hawaii constitution.  97 H. 77 (App.), 34 P.3d 7.

  Warrantless search of passenger's toolbox at airport by private security company employee was reasonable under the Fourth Amendment and article I, §7 of the Hawaii constitution.  97 H. 77 (App.), 34 P.3d 7.

  Where totality of circumstances clearly showed that store asset protection agent conducted a purely private search of defendant with no governmental involvement, trial court did not err in denying defendant's motion to suppress evidence.  97 H. 247 (App.), 35 P.3d 764.

  Right not violated where police officer's search of defendant's fanny pack found by hotel guest and already inventoried by hotel security fell under the lost property inventory exception to the warrant requirement.  101 H. 112 (App.), 63 P.3d 420.

  Warrantless seizure of plaintiff's vehicle not unconstitutional where seizure was from a public place and officers had probable cause to believe it was forfeitable contraband.  101 H. 422 (App.), 70 P.3d 648.

  Applying the totality of the circumstances test, trial court correctly determined that adult video store clerk was not acting as a "government agent"; clerk was not actively recruited, directed, or paid by the police, and clerk's actions were for a private purpose--to make sure defendant was complying with video store's no-smoking policy and not doing anything that would harm the store.  103 H. 11 (App.), 78 P.3d 1159.

  Warrantless seizure of defendant's glass pipe and its contents justified where police had probable cause to arrest defendant after viewing defendant smoking glass pipe in video booth, and exigent circumstances existed as defendant was lawfully observed ingesting an illegal drug and any delay would allow more, if not all, of the drugs to be consumed, and as defendant rented video booth for only half an hour, defendant would likely have finished defendant's "business" long before police could have obtained a warrant.  103 H. 11 (App.), 78 P.3d 1159.

  Where defendant took no steps to cover up "glory hole" in adult video preview booth, defendant could not have reasonably expected that defendant's conduct would not be viewed through the glory hole; thus, defendant could not have had a subjective expectation of privacy in the video preview booth that society would recognize as objectively reasonable.  103 H. 11 (App.), 78 P.3d 1159.

  Defendant was not subject to a de facto arrest not supported by probable cause where officers' use or display of force was reasonably necessary to protect their personal safety, was in response to defendant's erratic and hostile behavior, and defendant's conduct made it reasonable for the officers to insist that defendant submit to a pat-down search for weapons.  107 H. 144 (App.), 111 P.3d 39.

  When police officers encounter someone while lawfully at a residence to execute an arrest warrant, the officers may detain that person and perform a pat-down search for weapons if the officers have a reasonable and articulable basis to suspect that the person may possess a weapon and pose a danger; the officers may compel such person to submit to a pat-down search for weapons even if the officers have no reasonable suspicion that the person is involved in criminal activity.  107 H. 144 (App.), 111 P.3d 39.

  Authorization in search warrant to search any personal, rental, or borrowed vehicle that defendant was operating or occupying was not unconstitutionally overbroad, and was sufficiently particularized where authorization was based on probable cause that defendant would be in possession of ice, and would be transporting it in any number of different vehicles in which defendant was either the operator or an occupant.  108 H. 361 (App.), 120 P.3d 260.

  Where defendant removed defendant's fanny pack from waist and attempted to discard it four different times, defendant did not exhibit a subjective expectation of privacy in the fanny pack; even assuming defendant did, defendant's expectation of privacy was not objectively reasonable where defendant failed to establish that defendant had a privacy interest in the places defendant attempted to throw the fanny pack; thus, where defendant voluntarily threw the fanny pack onto a building roof top, defendant abandoned defendant's expectation of privacy.  116 H. 29 (App.), 169 P.3d 981.

  Where defendant spontaneously denied ownership of nylon bag in response to a request to sign a consent to search form, rather than in response to police interrogation, defendant's unequivocal disclaimer of ownership showed defendant's intent to abandon the bag, thus relinquishing any expectation of privacy defendant had in the contents of the bag; thus, warrantless search of the bag by police did not violate this Amendment.  119 H. 15 (App.), 193 P.3d 1215.

  Where officer approached defendant as a potential witness who might be able to assist in officer's investigation about the stolen car and asked for defendant's name and identifying information, and there was no evidence to suggest that officer drew officer's weapon, made any coercive displays of authority, or questioned defendant in an overbearing or harassing manner, defendant was not seized at that time; only after defendant had disclosed defendant's identity, officer realized who defendant was, and officer directed defendant to sit down did officer, by means of officer's show of authority, restrain defendant's liberty. 120 H. 363 (App.), 205 P.3d 628.

  Where officer's knowledge that a computer check by dispatch had revealed an outstanding warrant for defendant was sufficient to constitute reasonable suspicion, officer was authorized to detain defendant; thus, trial court properly determined that defendant's detention was lawful.  120 H. 363 (App.), 205 P.3d 628.

  Cited:  56 H. 366, 537 P.2d 8.

 

Search incident to arrest.

  Use of black light to detect presence of substance was a permissible search incident to arrest.  860 F.2d 911.

  Contemporaneous arrest of defendant of search of automobile, discussed.  867 F.2d 561.

  Defendant did not have any reasonable expectation of privacy once police opened address book.  871 F.2d 1497.

  Search not unreasonable where, after defendant was handcuffed and seated in hallway, black bag within defendant's control was searched within three minutes of defendant's arrest.  3 F.3d 1239.

  Search of defendant's handbag in vehicle valid where search made contemporaneous to arrest.  800 F. Supp. 892.

  Because the initial search of defendant's cellular telephone was valid, the secondary search was also valid, where telephone remained in the custody of law enforcement after being taken from defendant's person and searched at the scene, and then searched again at the federal building.  895 F. Supp. 2d. 1011 (2012).

  Search of defendant's black bag was a valid warrantless search where, among other things, the bag was within defendant's immediate control when defendant was detained and arrested, and no intervening events occurred between when defendant was detained and arrested and when agent initially searched the bag.  895 F. Supp. 2d. 1011 (2012).

  Search of defendant's wallet about an hour after the wallet was taken from defendant's person when defendant was arrested was a reasonable search and fell squarely within the search incident to arrest exception.  895 F. Supp. 2d. 1011 (2012).

  Search without warrant after a lawful arrest is not constitutionally interdicted.  45 H. 295, 367 P.2d 499.

  Validity of search incidental to arrest as dependent upon probable cause for the arrest, whether probable cause may be based on hearsay.  50 H. 138, 433 P.2d 593.

  In making search of handbag incidental to lawful arrest for being present at gambling game, officers may seize marijuana cigarettes though the evidence is of a different crime.  50 H. 275, 439 P.2d 212.

  Search of automobile without warrant incident to arrest upon probable cause.  52 H. 226, 473 P.2d 567.

  Warrantless search not made pursuant to valid arrest.  65 H. 104, 649 P.2d 366.

  Where search of coin purse conducted for drugs two hours after arrest was not reasonably related either in time or to the circumstances which might have justified it (the shoplifting arrest and a search for evidence of that offense), search was not incident to the shoplifting arrest.  111 H. 392, 141 P.3d 1039.

 

Standing to invoke immunity.

  Defendants occupying vehicle unlawfully had no standing to contest search of vehicle.  45 H. 295, 367 P.2d 499.

  When property is seized in defendant's home, defendant may invoke protection without asserting ownership of property.  45 H. 622, 372 P.2d 365.

  Overnight guest of tenant of apartment had right to privacy in premises of that apartment; a person has right to privacy wherever the person may legitimately be.  51 H. 62, 451 P.2d 257.

  One who is the victim of search and seizure directed against oneself has standing to raise question of validity of search.  52 H. 100, 470 P.2d 510.

 

Stop and frisk.

  For police officers to conduct valid stop and frisk, they must have observed conduct or have reliable information causing them to believe that criminal activity is afoot and that the person is armed and dangerous.  53 H. 593, 499 P.2d 657.

  Sufficiency of informer's tip.  55 H. 601, 525 P.2d 580.

  Self-protective search for weapons.  56 H. 374, 537 P.2d 14; 59 H. 305, 580 P.2d 847.

  Investigatory stop, when justifiable.  58 H. 333, 568 P.2d 1207.

  Scope of search incident to investigative stop.  58 H. 333, 568 P.2d 1207.

  Was not improper under the circumstances.  61 H. 566, 606 P.2d 1329.

  Basic guidelines.  62 H. 59, 610 P.2d 502.

  Where valid investigative stop has been made, police may not order person to leave vehicle or conduct protective search unless specific conduct of defendant, reliable information or attendant circumstances indicate person is armed and dangerous.  62 H. 453, 617 P.2d 76; 62 H. 459, 617 P.2d 565.

  Where informant's tip is specific as to time and place, firearms are involved, and police observations verify information received, investigatory stop is authorized.  62 H. 464, 616 P.2d 1374.

  When justified; sufficiency of informer's tip.  63 H. 160, 622 P.2d 122.

  Investigatory stop justified by circumstances.  63 H. 488, 630 P.2d 619.

  Justified.  63 H. 553, 632 P.2d 1064.

  Standard of review for search for concealed weapon.  64 H. 376, 641 P.2d 979.

  Investigatory stop not justified by informers tip.  65 H. 261, 650 P.2d 1358.

 

Suppression of evidence.

  Timely motion to suppress evidence prior to trial, or justification for interruption of trial, is necessary.  45 H. 295, 367 P.2d 499.

  When pre-trial motion unnecessary.  45 H. 622, 372 P.2d 365.

  Under HRCP 41(e), trial judge has discretion to entertain motion even if untimely made.  51 H. 62, 451 P.2d 257.

 

 

[ARTICLE V.--1791]

 

     No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any Criminal Case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law, nor shall private property be taken for public use, without just compensation.

 

Attorney General Opinions

 

  Student regulations at state universities are subject to the vagueness standard but do not require the same specificity required of criminal statutes.  Att. Gen. Op. 71-9.

  Section 486H-10 prohibiting manufacturers and jobbers of petroleum products from operating a retail service station for retail sale of petroleum products did not violate eminent domain clause of federal constitution.  Att. Gen. Op. 95-4.

 

Law Journals and Reviews

 

  Suppression of Evidence Without the Aid of the Fourth, Fifth and Sixth Amendments.  8 HBJ 109.

  Hawaii's Noncommitment to Civil Commitment:  Out of Sight, Out of Mind, Out of Theory.  13 HBJ No. 4 Winter 1978, pg. 40.

  Included Offenses in Hawaii Case Law and the Rights to Trial by Jury:  Coherence or Confusion.  II HBJ No. 13, at pg. 77.

  Fitness to Proceed:  Compassion or Prejudice?  II HBJ No. 13, at pg. 135.

  Res Judicata and Collateral Estoppel in Hawaii:  One of These Things is Not Like The Other.  III HBJ No. 13, at pg. 1.

  Shoreline Setback Regulations and the Takings Analysis.  13 UH L. Rev. 1.

  The Hostile Work Environment:  Are Federal Remedies Hostile, Too?  13 UH L. Rev. 537.

  The Lum Court, Land Use, and the Environment:  A Survey of Hawai‘i Case Law 1983 to 1991.  14 UH L. Rev. 119.

  Administering Justice or Just Administration:  The Hawaii Supreme Court and the Intermediate Court of Appeals.  14 UH L. Rev. 271.

  The Protection of Individual Rights Under Hawai‘i's Constitution.  14 UH L. Rev. 311.

  The Evolving Legal Relationships Between the United States and Its Affiliated U.S.-Flag Islands.  14 UH L. Rev. 445.

  Aliens, Resident Aliens, and U.S. Citizens in the Never-Never Land of the Immigration and Nationality Act.  15 UH L. Rev. 61.

  Even a War Has Some Rules:  The Supreme Court Puts the Brakes on Drug-Related Civil Forfeitures.  16 UH L. Rev. 493.

  The Reassertion of Native Hawaiian Gathering Rights Within The Context of Hawai‘i's Western System of Land Tenure.  17 UH L. Rev. 165.

  Dolan v. City of Tigard:  Individual Property Rights v. Land Management Systems.  17 UH L. Rev. 193.

  State v. Lessary:  The Hawaii Supreme Court's Contribution to Double Jeopardy Law.  17 UH L. Rev. 269.

  A Biologic Argument for Gay Essentialism-Determinism:  Implications for Equal Protection and Substantive Due Process.  18 UH L. Rev. 571.

  Criminal Procedure Rights Under the Hawaii Constitution Since 1992.  18 UH L. Rev. 683.

  Adarand Constructors Inc. v. Pena:  A Color-blind Remedy Eliminating Racial Preferences.  18 UH L. Rev. 939.

  A Constitutionally Valid Justification for the Enactment of No-Growth Ordinances:  Integrating Concepts of Population Stabilization and Sustainability.  19 UH L. Rev. 93.

  An Evaluation of the Summary Contempt Power of the Court:  Balancing the Attorney's Role as an Advocate and the Court's Need for Order.  19 UH L. Rev. 145.

  Hawai‘i Constitution, Article XI, Section 1:  The Conservation, Protection, and Use of Natural Resources.  19 UH L. Rev. 177.

  Babbitt v. Youpee:  Allotment and the Continuing Loss of Native American Property and Rights to Devise.  19 UH L. Rev. 265.

  The Manoa Valley Special District Ordinance:  Community-Based Planning in the Post-Lucas Era.  19 UH L. Rev. 449.

  The Japanese American Cases and the Vagaries of Constitutional Adjudication in Wartime:  An Institutional Perspective.  19 UH L. Rev. 649.

  Critical Excavations:  Law, Narrative, and the Debate on Native American and Hawaiian "Cultural Property" Repatriation.  20 UH L. Rev. 261.

  Justice Ruth Bader Ginsburg And Gender Discrimination.  20 UH L. Rev. 699.

  The Jurisdictional Limits of Federal Criminal Child Pornography Law.  21 UH L. Rev. 73.

  A New Segregation?  Race, Rice v. Cayetano, and the Constitutionality of Hawaiian-Only Education and the Kamehameha Schools.  23 UH L. Rev. 109.

  IOLTA in the New Millenium:  Slowly Sinking Under the Weight of the Takings Clause.  23 UH L. Rev. 221.

  "If a Policeman Must Know the Constitution, Then Why Not a Planner?"  A Constitutional Challenge of the Hawai‘i Public Access Statute.  23 UH L. Rev. 409.

  Right Against Self-Incrimination v. Public Safety:  Does Hawai‘i's Sex Offender Treatment Program Violate the Fifth Amendment?  23 UH L. Rev. 825.

  Is Agricultural Land in Hawai‘i "Ripe" for a Takings Analysis?  24 UH L. Rev. 121.

  Lucas Takings:  Why Investment-Backed Expectations are Irrelevant when Applying the Categorical Rule.  24 UH L. Rev. 147.

  The Defense of Marriage Act:  Sex and the Citizen.  24 UH L. Rev. 279.

  Takings:  An Introduction and Overview.  24 UH L. Rev. 441.

  Transcript of the University of Hawai‘i Law Review Symposium:  Property Rights After Palazzolo.  24 UH L. Rev. 455.

  The Latest Take on Background Principles and the States' Law of Property After Lucas and Palazzolo.  24 UH L. Rev. 497.

  The Regulatory Takings Notice Rule.  24 UH L. Rev. 533.

  Time, Space, and Value in Inverse Condemnation:  A Unified Theory for Partial Takings Analysis.  24 UH L. Rev. 589.

  Facial Takings Claims Under Agins-Nectow:  A Procedural Loose End.  24 UH L. Rev. 623.

  Moratoria and Musings on Regulatory Takings:  Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency.  25 UH L. Rev. 279.

  Tahoe Sierra:  Much Ado About--What?  25 UH L. Rev. 295.

  Some Permanent Problems with the Supreme Court's Temporary Regulatory Takings Jurisprudence.  25 UH L. Rev. 325.

  Rules for the Relevant Parcel.  25 UH L. Rev. 353.

  An Analysis of Tahoe-Sierra and Its Help and Hindrance in Understanding the Concept of a Temporary Regulatory Taking.  25 UH L. Rev. 417.

  The Constitutionality of a Naked Transfer:  Mandatory Lease-to-Fee Conversion's Failure To Satisfy a Requisite Public Purpose in Hawai‘i Condominiums.  25 UH L. Rev. 561.

  Arrow of Time:  Vested Rights, Zoning Estoppel, and Development Agreements in Hawai‘i.  27 UH L. Rev. 17.

  Price Controls in Paradise:  Foreshadowing the Legal and Economic Consequences of Hawai‘i's Gasoline Price Cap Law.  27 UH L. Rev. 549.

  A Public Lecture by Joseph L. Sax, Environment and Its Mortal Enemy:  The Rise and Decline of the Property Rights Movement.  28 UH L. Rev. 7.

  Dolan v. City of Tigard and the Distinction Between Administrative and Legislative Exactions:  "A Distinction Without a Constitutional Difference".  28 UH L. Rev. 139.

  Kelo v. City of New London:  Of Planning, Federalism, and a Switch in Time.  28 UH L. Rev. 327.

  The Overreaching Use of Eminent Domain and the Police Power After Kelo.  28 UH L. Rev. 349.

  Kelo:  A Case Rightly Decided.  28 UH L. Rev. 365

  Text-Mess:  There is No Textual Basis for Application of the Takings Clause to the States.  28 UH L. Rev. 373.

  Re-Defining Public Use:  Kelo v. City of New London.  28 UH L. Rev. 485.

  The Role and Content of the Character of the Governmental Action Factor in a Partial Regulatory Takings Analysis.  29 UH L. Rev. 437.

  Maui's Residential Workforce Housing Policy:  Finding the Boundaries of Inclusionary Zoning.  30 UH L. Rev. 447.

  Constitutionalizing the Right of Property:  The U.S., England and Europe.  31 UH L. Rev. 1.

  Do We Need to Impair or Strengthen Property Rights in Order to "Fulfill Their Unique Role"?  A Response to Professor Dyal-Chand.  31 UH L. Rev. 423 (2009).

  From Sea to Rising Sea:  How Climate Change Challenges Coastal Land Use Laws.  33 UH L. Rev. 289 (2010).

  Missing the Men:  Defining Female Servicemembers as Primary Caregivers in Deployment Deferral Policy.  34 UH L. Rev. 161 (2012).

  Homeless Property Rights:  An Analysis of Homelessness, Honolulu's "Sidewalk Law," and Whether Real Property is a Condition Precedent to the Full Enjoyment of Rights under the U.S. Constitution.  35 UH L. Rev. 197 (2013).

  Economic Substantive Due Process:  Considered Dead Is Being Revived by a Series of Supreme Court Land-use Cases.  36 UH L. Rev.  455 (2014).

 

Case Notes

 

Generally.

  Exhibition of individual to jury in criminal prosecution not per se improper.  81 H. 15, 911 P.2d 735.

 

Defendant's out-of-court statements.

  Exclusionary rule not applicable where Miranda rights violated by foreign police in foreign country even though in violation of foreign law.  783 F.2d 1052.

  Defendant's second statement was voluntary even though it followed a previous unwarned admission.  889 F.2d 819.

  Where M.P.s allowed defendant to consume beer there was no coercion and defendant's statements were voluntary.  666 F. Supp. 1421.

  Miranda warnings not required where defendant was not in custody at the time of hospital bedside discussion.  800 F. Supp. 892.

  Although Miranda warnings properly given, where government fails to prove accuracy of defendant's written statement due to defendant's limited understanding of English, statement inadmissible.  803 F. Supp. 352.

  Defendant's waivers of defendant's Miranda rights at time of defendant's arrest and before defendant's first interview were valid; defendant's statements made after defendant made request for attorney to Canadian law enforcement officer suppressed.  888 F. Supp. 1521.

  Upon new trial after reversal, doctrine of Miranda v. Arizona, 384 U.S. 436, applicable, even though statements taken, and first trial held before Miranda.  49 H. 504, 506, note 3, 421 P.2d 305.

  Doctrine of Miranda v. Arizona, 384 U.S. 436, inapplicable to defendant tried before that case decided.  49 H. 522, 532, 423 P.2d 438.

  Confession obtained while defendant in custody after being retaken following an escape not voluntary when defendant previously had been found by a psychiatric commission to be suffering from a major mental illness, and upon consideration of other circumstances.  50 H. 42, 430 P.2d 330.

  Where Miranda inapplicable, question is whether confession was given "freely and voluntarily without any compelling influences".  50 H. 42, 430 P.2d 330.

  Waiver of constitutional protection.  51 H. 260, 457 P.2d 505.

  In application of Miranda, the test is whether the words used give a clear, understandable warning of accused's rights.  56 H. 428, 539 P.2d 1200.

  Miranda applies only to custodial interrogation.  58 H. 94, 564 P.2d 1271; 61 H. 124, 596 P.2d 777.

  Voluntary statement that didn't result from custodial interrogation is not restricted by Miranda.  58 H. 323, 568 P.2d 1200; 66 H. 499, 666 P.2d 592.

  Custodial interrogation.  59 H. 357, 581 P.2d 752; 64 H. 479, 643 P.2d 541; 67 H. 126, 681 P.2d 553.

  Without Miranda warnings, statements made during custodial interrogation must be excluded although they may be wholly voluntary; volunteered confession independent of interrogation is outside of Miranda rule.  61 H. 356, 604 P.2d 45.

  Defendant not entitled to Miranda warnings before being questioned by probation officer.  61 H. 571, 606 P.2d 1332.

  Circumstances indicate that interrogation was not custodial interrogation.  62 H. 259, 614 P.2d 386; 2 H. App. 462, 634 P.2d 421.

  Roadside questioning to obtain information to issue traffic citation not a "custodial interrogation".  68 H. 184, 706 P.2d 1305.

  Miranda rights violated where defendant was questioned after polygraph examination.  70 H. 351, 772 P.2d 113.

  No custodial interrogation prior to arrest where police officer lacking probable cause to arrest temporarily detained defendant  for on-the-scene questioning in open view.  73 H. 41, 828 P.2d 805.

  Right to remain silent waived where defendant, after being properly given Miranda warnings and additionally being told that everything defendant said was "on the record", initiated dialogue with officer.  80 H. 439, 911 P.2d 74.

  Defendant's response to police matron's question during strip search was inadmissible, absent Miranda warnings.  1 H. App. 430, 620 P.2d 263.

  Validity of waiver of rights; standard of review.  1 H. App. 625, 623 P.2d 1271.

  No right to suppress unsolicited, spontaneous, and voluntary statements made while in custody.  3 H. App. 107, 643 P.2d 807.

  Confession not tainted by earlier confession which had been obtained illegally.  4 H. App. 248, 665 P.2d 181.

  Question to defendant "do you know why you are being detained?" was interrogation because officer should have known that it was reasonably likely to elicit an incriminating response from defendant.  85 H. 171 (App.), 938 P.2d 1190.

 

Due process.

  See also notes to Amendment 14.

  In absence of exigent circumstances, the due process clause of the Fifth Amendment prohibits the government in a civil forfeiture case from seizing real property without first affording the owner notice and an opportunity to be heard.  510 U.S. 43.

  Trial court's finding that defendants had actual notice of trespassing prohibition is not clearly erroneous and does not violate due process.  582 F.2d 1194.

  Defendant was not denied due process by alleged prosecutorial misconduct before grand jury.  614 F.2d 214.

  Interest in receiving medical care at Hale Mohalu leprosy facility may be a property interest protected by due process clause if more than a "unilateral expectation".  616 F.2d 410.

  Federal employee not denied due process because disciplinary action was based on charges in notice, and even though investigative officer asked questions about pending charges.  625 F.2d 285.

  Only where defendant alleges governmental conduct "of the most shocking and outrageous kind" will due process be violated and court required to divest itself of jurisdiction.  625 F.2d 308.

  Use for impeachment purposes of defendant's silence at time of arrest and after receiving Miranda warnings violates due process.  639 F.2d 466.

  No legitimate entitlement to continued employment obtained through deliberate material misrepresentation.  649 F.2d 748.

  Range of due process rights at sentencing not as extensive as that at trial.  694 F.2d 200.

  Forfeiture rules under federal Food, Drug, and Cosmetic Act did not violate.  715 F.2d 1339.

  Not violated by jury instruction's connection between extensive use of currency and wilful criminal tax activity.  Not violated by extrajudicial communication between juror and prosecutor regarding matter unrelated to trial.  730 F.2d 1292.

  Where legal arguments only are involved, and the material issues have been briefed, no requirement for oral argument covering all legal theories.  738 F.2d 1455.

  Defendant's unrebutted allegations of prejudice from absence of counsel at previous trial sufficient to warrant dismissal of indictment on due process grounds.  741 F.2d 1123.

  Procedures under which defendant sentenced as second offender complied with requirements.  750 F.2d 787.

  Not violated by magistrate-conducted voir dire in criminal case without defendant's consent.  760 F.2d 999.

  Where Miranda inapplicable because confession obtained by foreign police, trustworthiness of confession must still satisfy due process.  783 F.2d 1052.

  Not violated by issuance, without opportunity for hearing, and enforcement of bar letter excluding defendant from military base.  783 F.2d 1484.

  Test of whether prison guard's use of force against inmate denies due process.  795 F.2d 780.

  Court's finding that guilty plea was knowing rebuts claim that defense counsel's erroneous advice rendered plea "unintelligent".  800 F.2d 861.

  Defendant could rely on appellate court's decision in repeating the same conduct, before the appellate decision was reversed by the Supreme Court.  830 F.2d 985.

  Not violated where probationer was not given notice prior to drug testing.  831 F.2d 176.

  No sham prosecution by federal authorities if there was sufficient independent federal involvement.  831 F.2d 181.

  An acquittal based on a ruling that the government's evidence is legally insufficient to sustain a conviction is not appealable.  833 F.2d 135.

  Controversy was not ripe.  887 F.2d 215.

  Not violated by sentencing court's reliance on evidence at co-defendant's trial.  909 F.2d 363.

  Not offended by exercise of jurisdiction over defendants since sufficient nexus existed where vessel with marijuana off-loaded from Panamanian freighter was ultimately bound for U.S. 946 F.2d 608.

  Violated by government's seizure of owner's home pursuant to federal Controlled Substances Act without preseizure notice or hearing.  971 F.2d 1376.

  Supervised releasee's due process right of confrontation violated.  984 F.2d 308.

  Violated by prosecutor's comments during closing rebuttal argument on defendants' postarrest silence.  998 F.2d 412.

  Federal maritime drug enforcement statute's application to defendants not unconstitutional where there was sufficient nexus between defendant crew members and the U.S. as ship's drug cargo was destined for the U.S.  35 F.3d 426.

  Federal wastewater treatment permit not unconstitutionally vague where defendants were knowledgeable in wastewater field, could be expected to have understood what the permit meant, and took considerable pains to conceal their illegal dumping activities.  35 F.3d 1275.

  Not violated by rule that, for purposes of criminal history calculation, state conviction for conduct which occurred after defendant's federal offense, but for which defendant was sentenced before defendant's sentencing on the federal offense, is counted as a prior sentence.  44 F.3d 749.

  Not violated by a court's entry of default judgment or other sanction against a party for refusal to cooperate with discovery and if party is later held to the consequences of such judgment in a bankruptcy discharge proceeding.  47 F.3d 365.

  Employee's contention that employee's designation as a witness in IRS summons to obtain handwriting exemplars was a calculated maneuver to circumvent employee's Fourth Amendment privilege against unreasonable searches and seizures and employee's due process rights under both Fifth Amendment and IRS regulations, rejected.  94 F.3d 1342.

  Where appellants contended that restrictions on organizations that accept Legal Services Corporation funds violated equal protection and due process rights protected by the U.S. Constitution, appellants failed to establish their standing to raise the rights of their clients.  145 F.3d 1017.

  Defendant failed to establish the actual, nonspeculative prejudice from government's delay in bringing third superseding indictment that is necessary to prove a Fifth Amendment violation based upon excessive preindictment delay.  322 F.3d 1157.

  Department of Interior's regulations acknowledging the federally recognized status of Indian tribes, which excluded native Hawaiians, did not violate the Fifth Amendment under rational basis scrutiny.  386 F.3d 1271.

  Universal condemnation of foreign defendant's conduct and the existence of the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation provided foreign defendant with all the notice due process required that foreign defendant could be prosecuted in the United States.  525 F.3d 709.

  Person on supervised release's interest in cross-examining the laboratory technician who handled and tested the person's urine sample so outweighed the government's interest in not producing the witness that the admission of the hearsay evidence violated the person's Fifth Amendment constitutional right to due process where, inter alia, the test report itself stated the sample was "dilute".  526 F.3d 543.

  The residual clause of the definition of "crime of violence" in §4B1.2(a)(2) of the federal Sentencing Guidelines was not unconstitutionally vague.  724 F.3d 1133 (2013).

  The special condition of defendant's supervised release that defendant could not knowingly use or possess any substance defendant believed was intended to mimic the effects of any controlled substance was impermissibly vague.  794 F.3d 1033 (2015).

  Plaintiffs' contention that the cabotage provisions of the Jones Act were discriminatory because its effects on Hawaii commerce were disproportionate as compared to the rest of the United States did not support a viable cause of action, whether framed as a matter of due process or as an attempt to enforce a supposed structural limitation on federal power under the commerce clause.  795 F.3d 1012 (2015).

  Delay of six months between date of offense and indictment held not excessive.  316 F. Supp. 892.

  Re court's relocation of private land boundary without due process.  402 F. Supp. 95.

  Forfeiture proceeding satisfied due process rights of purchaser of property, who was unaware of prior owner's tax debt.  429 F. Supp. 1002.

  Congress had a rational basis for preempting state health insurance laws and did not violate due process.  442 F. Supp. 695.

  Nonjudicial punishment by way of Captain's Mast procedure does not deny due process.  466 F. Supp. 257.

  Law providing for affidavit method of postjudgment garnishment of wages not unconstitutional.  467 F. Supp. 544.

  Determination of whether taking is for public purpose is limited to whether there is a denial of substantive due process. Statute is constitutional if:  (1) any possible rationale for the statute, expressed or not, is within state police power; and (2) statute is not arbitrary or product of legislative bad faith.  483 F. Supp. 63.

  Violated if civilians prosecuted differently than military personnel for traffic violations on military bases.  604 F. Supp. 416.

  Thirty-three month delay between alleged offense and return of indictment was not a violation of defendant's due process rights.  666 F. Supp. 1428.

  No coercion existed where, regardless of defendant's alleged hand injury and the alleged failure of Federal Bureau of Investigation agents to obtain medical care for the defendant, defendant's statements were the product of rational intellect and free will.  693 F. Supp. 2d 1200.

  Award of punitive damages for wanton, oppressive, or malicious actions did not violate due process.  728 F. Supp. 1461.

  Legislature's decision not to define statutory terms does not render such statutes unconstitutional.  751 F. Supp. 853.

  Administrative segregation of prisoner invoked due process.  751 F. Supp. 1401.

  No due process liberty interest in parole is created under §§353-68 and 353-69; inmate had due process liberty interest at stake at misconduct hearing.  795 F. Supp. 1020.

  Facts did not support a claim of either procedural due process or takings clause violation; termination of special use permits did not require compensation because they were not property interests recognized by the Fifth Amendment.  875 F. Supp. 680.

  Where defendant's phone conversations with person working at behest of FBI were voluntary, defendant's due process rights not violated.  961 F. Supp. 1398.

  Where plaintiffs filed action for temporary restraining order claiming, inter alia, that by not allowing enough time for plaintiffs to challenge the agency decision to launch the Cassini Mission, defendants violated plaintiffs' right to procedural due process, court assumed that judicial review under National Environmental Policy Act and Administrative Procedures Act was the protected right at the center of the procedural due process claim; plaintiffs had an adequate opportunity to obtain judicial review of the agency decision.  980 F. Supp. 1160.

  Motion to dismiss indictment on ground that deportation order, an essential element of crime charged (unauthorized reentry into the United States after previous deportation), was procured in a proceeding that was fundamentally unfair, granted.  107 F. Supp. 2d 1248.

  Where plaintiff protested Federal Aviation Administration requirement that plaintiff retire as air traffic controller at age fifty-six, while other air traffic controllers were allowed to work past that age, defendant's motion for partial summary judgment granted as to plaintiff's right to equal protection under the Fifth Amendment claim.  128 F. Supp. 2d 672.

  Defendant's motion to dismiss indictment denied, where defendant asserted that statute of limitations tolling provision, which provided that any time during which the person committing an offense arising under the internal revenue laws is outside the United States shall not be counted towards the limitation by law for the commencement of proceedings, violated defendant's constitutional right to travel under the Fifth Amendment.  248 F. Supp. 2d 970.

  Federal employees have no property interest in prospective payment of locality pay.  532 F. Supp. 2d 1238.

  Fifth Amendment due process clause does not apply to the states and was therefore inapplicable; even if plaintiff's due process claim is considered, plaintiff's right to due process was not violated by the enforcement of chapter 134.  548 F. Supp. 2d 1151.

  Plaintiff, a nonprofit health maintenance organization, did not state a valid due process claim, where plaintiff alleged that defendants deprived it of a liberty/property interest without due process of law when defendants removed plaintiff's "automatic eligibility conferred by federal law ... to receive a contract" regarding the QUEST expanded access program.  567 F. Supp. 2d 1238 (2008).

  Respondent argued that the involuntary civil commitment scheme under the Adam Walsh Child Protection and Safety Act is unconstitutionally vague because it does not define the key criteria that the court must find before ordering commitment under 18 U.S.C. §4248; the terms of the Act have a plain meaning that does not leave a person uncertain as to their application.  574 F. Supp. 2d 1123 (2008).

  Right not violated, where petitioner who had been convicted of money laundering was disqualified from employment by a labor union pursuant to 29 U.S.C. §504.  597 F. Supp. 2d 1113 (2009).

  No coercion existed where, regardless of defendant's alleged hand injury and the alleged failure of Federal Bureau of Investigation agents to obtain medical care for the defendant, defendant's statements were the product of rational intellect and free will.  693 F. Supp. 2d 1200 (2010).

  Due process clause did not apply, where plaintiff presented claims only against county of Hawaii and private actors.  947 F. Supp. 2d 1087 (2013).

  Even if defendant, an employee of Hawaii Island Humane Society, had violated plaintiff's due process rights to notice, qualified immunity still applied because plaintiff's rights were not "clearly established" at the time of the violation.  947 F. Supp. 2d 1087 (2013).

  Where plaintiff alleged that Federal National Mortgage Association (Fannie Mae) was a government actor and that the nonjudicial foreclosure of the subject property violated the due process clause, Fannie Mae was not a government actor by virtue of the Federal Housing Finance Agency conservatorship.  990 F. Supp. 2d 1042 (2013).

  Where plaintiff asserted violation of the Age Discrimination in Employment Act (ADEA) and plaintiff's due process rights under the Fifth and Fourteenth Amendments and under 5 U.S.C. §7701(c)(2)(A):  (1) because the Merit Systems Protection Board (MSPB) did not have jurisdiction over the nondiscrimination claim, plaintiff's case was not a "mixed case", and any appeal of the jurisdictional determination must be filed in the federal Circuit Court of Appeals, the district court lacked jurisdiction to hear plaintiff's appeal of the final MSPB decision pursuant to 5 U.S.C. §7703 and dismissed the due process claims; (2) to the extent that plaintiff relied on a Bivens-style claim, a Bivens suit against a federal official in his or her official capacity would merely be another way of pleading an action against the United States, which would be barred by the doctrine of sovereign immunity; and (3) even assuming that the district court had jurisdiction to hear the due process claims, to the extent that plaintiff asserted any age discrimination claims predicated on the U.S. Constitution, the ADEA's specific, complex procedural provisions provided the exclusive remedy for claims of age discrimination.  997 F. Supp. 2d 1144 (2014).

  Government's motion in limine to preclude defendant from providing unsworn allocution before the jury before sentencing denied.  Boardman v. Estelle recognized the constitutional right to allocution, and that to make the right meaningful, the court must provide defendant the opportunity to allocute before the jury.  18 F. Supp. 3d 1065 (2014).

  It was contrary to and an unreasonable application of Brooks to remand the case to bolster the record since Kido supported petitioners' valid Brooks claim, and the record was already clear that the Kido exemptions did not apply.  23 F. Supp. 3d 1182 (2014).

  The record before the intermediate court of appeals clearly supported petitioner's Brooks claim that the trial court violated petitioner's right to remain silent and to control petitioner's own defense, as petitioner would not have taken the stand before petitioner's own witnesses if the trial court had not forced petitioner to do so.  Also, the magistrate judge erred in applying a harmless error analysis, as Brooks violations are structural errors, which require the presumption of prejudice and automatic reversal.  23 F. Supp. 3d 1182 (2014).

  Advisement by the family court did not adequately ascertain whether petitioner understood petitioner's constitutional right to testify or not to testify, as required by the Hawaii supreme court in Tachibana v. State.  Moreover, petitioner's need for an interpreter during the trial was a "salient fact" heightening the necessity for the court to insure that petitioner understood the rights petitioner waived.  Accordingly, the court did not obtain a valid on-the-record waiver of petitioner's right to testify.  130 H. 83, 306 P.3d 128 (2013).

  Law providing for service of summons on nonresident motorists by publication does not violate due process clause.  50 H. 484, 443 P.2d 155.

  Discussion of preindictment delay resulting in deprivation of due process.  53 H. 652, 500 P.2d 1171.

  Courts' construing prior land court decree was not a taking of private property even though it established a different shoreline boundary.  57 H. 585, 562 P.2d 771.

  Constitutional permissibility of lifting of bar of statute of limitations to restore a remedy previously barred.  59 H. 259, 581 P.2d 310.

  Condition of probation that defendant "refrain from company of people of questionable character" was not invalid for vagueness.  59 H. 366, 580 P.2d 1282.

  Defendant who leaves trial voluntarily waives right to be present at trial, which may continue as if defendant were present.  62 H. 309, 615 P.2d 91.

  Accused's right to a fair trial includes right to present matters in the accused's defense, and government may not by its conduct render a material witness unavailable to defendant.  63 H. 27, 620 P.2d 728; 63 H. 34, 620 P.2d 732.

  Lineup of accused and due process rights.  63 H. 354, 628 P.2d 1018.

  No violation in court's refusal to order production of letter concerning dismissal of charges against prosecution witness because no material effect on trial's outcome.  66 H. 175, 657 P.2d 1052.

  Requires that State fulfill its end of plea bargain if defendant's guilty plea based in significant degree on promised resolution of cases against defendant.  66 H. 342, 662 P.2d 1112.

  Not violated due to thirty-one month preindictment delay; a showing of memory loss alone is insufficient to demonstrate substantial prejudice.  67 H. 247, 686 P.2d 9.

  Not violated by methodology used by public utilities commission rate making proceeding.  67 H. 425, 690 P.2d 274.

  Due process denied where lessee's property seized without proper service of process, time to answer, evidence presented by lessor, and opportunity to contest case.  68 H. 466, 719 P.2d 397.

  Not violated by court's entering of judgment against defendants for violating court order.  68 H. 608, 726 P.2d 254.

  One year limitation on right to former spouse's property does not violate due process.  69 H. 1, 730 P.2d 338.

  Police tactics designed to detect drug-related offenses, including officer posing as drug dealer and supplying and selling drugs in "reverse buy" operation, were not so outrageous as to deprive defendant of right to due process.  73 H. 179, 830 P.2d 492.

  Right not violated by defendant's absence from conference settling jury instructions as conference does not involve jury's presence or witness testimony.  74 H. 141, 838 P.2d 1374.

  Section 703-309(1) not unconstitutionally vague as it describes with sufficient clarity level of force that may be justifiably used in discipline of a minor.  81 H. 5, 911 P.2d 725.

  A vessel and its accompanying mooring and live-aboard permits are constitutionally protected "property", of which an individual may not be deprived without notice and an opportunity to be heard.  91 H. 1, 979 P.2d 586.

  Procedural due process violated where State informed boat owner by letter of impoundment and possible disposal of vessel, but made no mention of any procedures available for challenging that action, administrative or otherwise, and boat owner was never provided with an opportunity to be heard on matter of vessel's impoundment.  91 H. 1, 979 P.2d 586.

  Right not violated by administrative driver's license revocation hearing procedure where defendant was afforded a hearing where witnesses were called and defendant was represented by counsel, and hearing office advised counsel of the procedure that hearing officer was going to follow.  108 H. 31, 116 P.3d 673.

  Right not violated where pregnant wife had qualified right to be present at her civil trial and right was unobstructed as family court did not preclude wife from attending; court merely denied wife's motions to continue and wife had no fundamental right to have trial commence at the time of her choosing; family court did not abuse its discretion as it considered conflicting testimony of doctors and other evidence in denying wife's motions.  112 H. 374, 146 P.3d 89.

  Refusal of court to permit defendant at an identification suppression hearing to examine the identification witness was not violative of constitutional rights.  1 H. App. 335, 619 P.2d 1078.

  Testimony presented through interpreter was understandable, comprehensible, and intelligible.  5 H. App. 20, 686 P.2d 28.

  Show up identification was sufficiently reliable.  5 H. App. 127, 681 P.2d 573.

  Materiality of evidence suppressed by prosecution.  5 H. App. 350, 692 P.2d 1166.

  Termination or reduction of welfare benefits pursuant to original notice even though adopted rules invalidated.  New notices after readoption not required.  5 H. App. 419, 697 P.2d 43.

  Not violated by revival of paternity action.  5 H. App. 558, 705 P.2d 535.

  Right to participate in interscholastic sports not protected interest.  6 H. App. 397, 721 P.2d 165.

  Violated where petitioner whose driver's license was administratively revoked denied right to cross-examine director's representative regarding basis for continuance of administrative hearing.  80 H. 358 (App.), 910 P.2d 129.

  Defendant entitled to elicit evidence of complainant's past sexual behavior, not to attack complainant's character, but to determine whether complainant was mentally defective and whether defendant knew that complainant was mentally defective.  81 H. 447 (App.), 918 P.2d 254.

  Where building addition was permitted structure under zoning ordinance in existence at time subsequent land use ordinance was adopted, requiring landowner to remove addition and pay daily fines until addition was removed constituted interference with landowner's vested property rights under this clause.  86 H. 343 (App.), 949 P.2d 183.

  Right violated by trial court entering free-standing restitution order where no notice was provided to defendant that defendant's original sentence might be modified at the hearing on the probation officer's motion to revoke restitution.  92 H. 36 (App.), 986 P.2d 987.

  Where trial court did not apply clear and convincing standard of proof on complainant as required by §604-10.5, applied a subjective rather than objective reasonable person standard in evaluating whether defendant's conduct caused complainant emotional distress, and violated defendant's due process rights, court erred by denying defendant's motion for reconsideration of injunction order.  92 H. 330 (App.), 991 P.2d 840.

  Given the apparent absence of a "countervailing state interest of overriding significance", family court's restrictions violated mother's right to free access to the courts where family court required mother, if she was represented by an attorney, to access the record in the case only through a licensed Hawaii attorney or other attorney admitted pro hac vice, or allowing mother, if she was representing herself pro se, to access the record only if she was accompanied by a family court staff person.  118 H. 293 (App.), 188 P.3d 807.

 

Eminent domain.

  "Public use" requirement is coterminous with scope of sovereign's police powers.  Land reform act was rational use of eminent domain power.  467 U.S. 229.

  If fear of a hazard would affect price a knowledgeable and prudent buyer would pay to a similarly well-informed seller, diminution in value caused by that fear may be recoverable as part of just compensation.  Severance damages not allowed because no prima facie case of causation.  731 F.2d 1443.

  Public access to lagoon formed from littoral Hawaiian fishpond could not be imposed without payment of compensation.  944 F.2d 1489.

  Courts are not immune from prohibition against taking without compensation.  402 F. Supp. 95.

  "Public use" includes "public interest".  471 F. Supp. 871.

  Given system of landholding in Hawaii, legislature could, under police power, conclude that general welfare was served by condemning land of large landholder-lessors and allow lessees to purchase land from State under chapter 516.  483 F. Supp. 63.

  Legislative declaration of public use and finding of necessity are not constitutional prerequisites.  43 H. 255.

  Application of ordinance regulating outdoor signs did not constitute a taking of private property without payment of compensation.  50 H. 33, 429 P.2d 825.

  Law imposing on private employers obligation to pay their employees for service on juries and public boards, constituted taking.  52 H. 327, 475 P.2d 679.

  Attorney's fees and expenses are not embraced within "just compensation".  53 H. 582, 499 P.2d 663.

  Condemnation of leased fee interests in residential houselots continued to satisfy "public use" prerequisite of Fifth Amendment and article I, §20 of Hawai‘i constitution.  79 H. 64, 898 P.2d 576.

 

Former jeopardy.

  Essence of double jeopardy determination in conspiracy case is whether there is more than one agreement.  681 F.2d 581.

  Convictions for possession of unregistered firearms and possession of firearms by a felon not violative.  682 F.2d 799.

  Due diligence did not require extraordinary search methods at remote site, based on facts known at that time; greater charges not prohibited if government was unable to prosecute at outset because facts were not discovered despite exercise of due diligence.  707 F.2d 1100.

  No jeopardy attached where at pretrial hearing defendant acquitted by trial court by reason of insanity.  794 F.2d 1458.

  Remand for resentencing of an illegal sentence did not constitute double jeopardy.  876 F.2d 734.

  No double jeopardy where government appeals a reversal of defendant's conviction.  910 F.2d 617.

  Increasing sentence of defendant due to firearm possession while in possession of drugs was not double jeopardy.  924 F.2d 800.

  Murder defendant's fourth trial not barred by double jeopardy clause based on contention that prosecutorial misconduct intended to goad defendant into moving for mistrial.  937 F.2d 1409.

  Civil penalty imposed for failure to disclose marijuana pursuant to U.S. customs directive was not punishment for purposes of double jeopardy which would bar subsequent criminal prosecution for knowing possession and importation of marijuana.  940 F.2d 442.

  Double jeopardy claim failed where appellants failed to show that two conspiracies were the same in law and in fact.  995 F.2d 1448.

  Jury's "not guilty" verdicts on attempted second degree murder counts created a double jeopardy bar to petitioner's impending retrial on attempted second degree murder charges, where jury returned a "guilty" verdict on attempted first degree murder charge and "not guilty" verdicts on attempted second degree murder counts, based on the same incidents, and Hawaii supreme court reversed jury's judgment of conviction of attempted first degree murder and held that the "not guilty" verdicts did not, in substance, constitute acquittals and therefore the State could retry petitioner for attempted second degree murder without subjecting petitioner to double jeopardy.  389 F.3d 880.

  Reversal of a conviction on a greater offense, coupled with a final conviction on a lesser included offense, does not preclude retrial of the greater offense when the offenses were charged in the same indictment and tried together in the same original trial.  425 F.3d 1237.

  District court concluded appropriately that there was manifest necessity for a mistrial, where the court was faced with conflicts that had hindered defendant's lead counsel's ability to adequately represent defendant, and with defendant's refusal to waive the conflict while insisting on continuing with lead counsel as defendant's lawyer.  463 F.3d 858.

  Where jury found defendant guilty of attempted murder in the first degree based on two incidents and indicated on verdict form that defendant was not guilty of two counts of attempted murder in the second degree for the same two incidents, and Hawaii supreme court reversed the conviction and remanded the case for retrial on the two counts of attempted murder in the second degree, double jeopardy clause would be violated if defendant were retried for attempted murder in the second degree.  288 F. Supp. 2d 1122.

  Where defendant moved for dismissal of defendant's drug case on the ground that any trial would place defendant in double jeopardy, the court denied the motion on the grounds that (1) defendant waived the arguments defendant made, e.g., that any conflict of interest that may have existed was eliminated when the court struck a defense witness' testimony, and (2) even if the court considered the arguments, it was manifestly necessary to declare a mistrial.  369 F. Supp. 2d 1203.

  Although double jeopardy clause embraces a defendant's right to have bench trial completed by a particular judge, a defendant moving for a mistrial can be retried.  446 F. Supp. 1120.

  When judge declares mistrial sua sponte over defendant's objections, determination whether there was valid reason for ending trial is governed by manifest necessity test.  No manifest necessity to terminate first trial.  528 F. Supp. 833.

  Prosecution not barred because due diligence exception applied.  Due diligence means ordinary rather than extraordinary diligence.  546 F. Supp. 805.

  Because 18 U.S.C. §4248 of the Adam Walsh Child Protection and Safety Act is civil and not criminal in nature, the Constitution's double jeopardy clause does not apply.  574 F. Supp. 2d 1123 (2008).

  Congress did not intend 18 U.S.C. §§1591(a)(1) and (a)(2) to create two separate offenses such that a defendant could be penalized multiple times for the same conduct; Congress instead intended to provide two alternate means of committing the same offense.  713 F. Supp. 2d 1207 (2010).

  Uncontested administrative forfeiture did not offend the double jeopardy clause.  Because defendant chose to forego opportunity to contest forfeiture, defendant was not a party to forfeiture proceeding and could not claim an interest in the property; without an interest in the property, defendant could not be said to have been subjected to jeopardy or punished in any way by the administrative forfeiture.  876 F. Supp. 235.

  Where plaintiff was subjected to two separate proceedings, i.e., separation proceedings after plaintiff was found not guilty of use of cocaine by military judge in special court martial, question of whether the separation proceedings were sufficiently punitive to implicate double jeopardy was a serious constitutional question, justifying an exception from the exhaustion requirement for the limited purpose of the temporary restraining order and a finding of a serious question on the merits.  877 F. Supp. 508.

  Uncontested administrative forfeiture did not punish petitioner or place petitioner in jeopardy in the sense necessary to trigger double jeopardy clause protection.  887 F. Supp. 1371.

  Trial court's decision to declare mistrial was proper exercise of its discretion; accordingly, even if juror misconduct was not certain to result in reversal, defendants' joint motion to dismiss indictment on double jeopardy grounds must be denied.  951 F. Supp. 928.

  Double jeopardy clause not violated by a retrial, where jury was unable to reach a verdict.  952 F. Supp. 1426.

  Double jeopardy did not bar retrial with regard to defendant's failure to disperse from the first floor of a shopping mall under §711-1102, for which there was clearly sufficient evidence to support a conviction, where defendant was not expressly acquitted by the jury, defendant's conviction could not be assumed to include an implied acquittal on either of the acts offered by the prosecution to support the conviction, defendant was not convicted on a lesser included offense, and the jury did not refuse to convict defendant on the basis of either act on the first or second floor or choose between them.  124 H. 43, 237 P.3d 1109 (2010).

  Former prosecution bar to subsequent prosecution, when.  52 H. 321, 474 P.2d 704.

  Effects of setting aside former convictions by granting coram nobis and habeas corpus.  52 H. 420, 477 P.2d 630.

  Declaration of mistrial--when a bar to retrial.  58 H. 377, 569 P.2d 900; 62 H. 108, 612 P.2d 107.

  Resentencing to correct illegal sentence does not violate double jeopardy clause even if correction increases sentence.  61 H. 226, 602 P.2d 13; 67 H. 531, 696 P.2d 344.

  Where first indictment was void, no jury was impanelled, and judge heard no evidence on the charge, jeopardy did not attach.  62 H. 364, 616 P.2d 193.

  Under circumstances, jeopardy did not attach even though jury was sworn.  64 H. 395, 641 P.2d 1338.

  Rights waived by defendant.  64 H. 611, 645 P.2d 1340.

  Dismissal of prosecution not required.  65 H. 47, 647 P.2d 705; 65 H. 129, 648 P.2d 192.

  No jeopardy attached where at pretrial hearing defendant acquitted by trial court by reason of insanity.  67 H. 70, 679 P.2d 615.

  Jeopardy did not attach where case dismissed after defendant arraigned but before State's first witness sworn.  68 H. 238, 709 P.2d 607.

  No double jeopardy where crimes charged involved different mens rea requirements and different facts proved each crime.  68 H. 280, 711 P.2d 731.

  No double jeopardy where trial court did not accept verdict or discharge the jury.  70 H. 175, 765 P.2d 1091.

  Retrial not barred by double jeopardy clause where there was no prosecutorial intent to goad defendant into moving for mistrial.  73 H. 289, 834 P.2d 275.

  Reprosecution barred because defendant was subjected to former jeopardy in first trial and trial court erroneously declared mistrial without defendant's consent or a showing of manifest necessity.  75 H. 195, 857 P.2d 585.

  Hawaii constitution provides greater protection against multiple prosecutions than U.S. Constitution; requires application of "same conduct" test.  75 H. 446, 865 P.2d 150.

  One year suspension of appellant's license to practice medicine by board of medical examiners after appellant was convicted of attempted first degree sexual abuse and kidnapping did not amount to a violation of double jeopardy clause.  78 H. 21, 889 P.2d 705.

  Appellant's new sentence did not contravene right against double jeopardy even if it potentially affected appellant's future eligibility for parole.  79 H. 281, 901 P.2d 481.

  Reprosecution not barred by double jeopardy where trial court's declaration of mistrial supported by manifest necessity; court sufficiently considered alternatives available.  79 H. 461, 903 P.2d 1282.

  As §286-261(d) did not require defendant to submit to needs assessment nor undergo any treatment for alcohol dependence, application of that section with DUI conviction under §291-4 not "multiple punishments for same offense".  80 H. 8, 904 P.2d 893.

  Remanding case for retrial on lesser included offenses following appellate determination that insufficient evidence was presented at trial to support conviction of greater offense did not violate clause.  80 H. 126, 906 P.2d 612.

  Defendant not subjected to multiple punishments as a result of administrative driver's license revocation under §286-261 and DUI conviction under §291-4 as administrative revocation non-punitive and purely remedial in nature.  81 H. 226, 915 P.2d 700.

  Because counseling and assessment, as consequence of administrative driver's license revocation under §286-261(d), not punitive but purely remedial, subsequent DUI conviction did not expose defendant to multiple "punishments"; defendant's motion to dismiss on double jeopardy grounds thus properly denied.  82 H. 446, 923 P.2d 388.

  Denial of defendant's motion to dismiss on double jeopardy grounds, premised on protection against multiple punishments for same offense, not effectively unreviewable on appeal and thus not immediately appealable under collateral order exception.  82 H. 446, 923 P.2d 388.

  Jeopardy did not attach where defendant failed to file a timely claim for forfeited property under §712A-10(4).  83 H. 141, 925 P.2d 311.

  Where defendant's conviction on non-existent attempted reckless manslaughter charge vacated, remand for retrial on original charge of attempted first degree murder unconstitutional and also violation of §701-110(1).  83 H. 335, 926 P.2d 1258.

  Not violated by prosecution's appeal from judgment of acquittal following jury's verdict of guilty pursuant to §641-13(9).  87 H. 108, 952 P.2d 865.

  As conviction for manslaughter due to an extreme mental or emotional disturbance under §707-702(2) is deemed an acquittal of murder, double jeopardy barred defendant's reprosecution for second degree murder under §707-701.5.  88 H. 356, 966 P.2d 1082.

  Prosecution not barred from reprosecuting defendant for offense of reckless manslaughter under §707-702(1)(a) as reckless manslaughter is a lesser included offense of murder and remanding a case for retrial on lesser included offenses not barred by double jeopardy.  88 H. 356, 966 P.2d 1082.

  Where, upon defendant's own motion, place to keep firearms count under §134-6 was dismissed on a basis unrelated to factual guilt or innocence, retrial on the place to keep firearms charge not barred by double jeopardy clauses of U.S. and Hawaii Constitutions.  88 H. 389, 967 P.2d 221.

  As family court's "judgment of acquittal" was, in fact, an acquittal "in substance as well as form", clause violated where family court granted prosecution's motion for reconsideration and denied defendant's motion to dismiss complaint.  91 H. 206, 982 P.2d 340.

  Given that any improper remarks in opening statement, closing and rebuttal arguments by prosecutor were harmless beyond a reasonable doubt, and their cumulative effect was similarly harmless and did not deprive defendant of a fair trial, prosecutor's misconduct did not warrant reversal of any of defendant's convictions and did not implicate the double jeopardy clauses of either the U.S. or Hawaii Constitutions.  95 H. 465, 24 P.3d 661.

  Trial court abused its discretion in concluding there was manifest necessity for mistrial as circumstances creating apparent need for mistrial did not make it impossible for trial to proceed; in absence of manifest necessity, defendant should have been allowed to choose between continuing with trial or consenting to a mistrial; by moving for dismissal with prejudice, defendant did not "consent" to the mistrial; retrial thus barred by double jeopardy.  97 H. 238, 35 P.3d 755.

  The double jeopardy clause does not constrain the legislature from intentionally imposing multiple punishments upon a defendant for separate offenses arising out of the same conduct; the protections afforded by the U.S. Constitution, as set forth in the Blockburger "same elements" test, adequately protect against double jeopardy in "multiple punishments" cases.  107 H. 469, 115 P.3d 648.

  A prior judgment of acquittal on a §291E-61(a)(3) method of proof in an operating a vehicle under the influence of an intoxicant trial is "in form only", but it serves as a factual finding that the State has not met its burden of proving breath alcohol content.  As such, the collateral estoppel principle embodied in the double jeopardy clause of article I, §10 of the Hawaii constitution and the Fifth Amendment prohibits the State from re-litigating breath alcohol content, whether in a re-prosecution of the defendant on the §291E-61(a)(3) method of proof, or as part of the State's evidence in a subsequent trial on the §291E-61(a)(1) method of proof.  129 H. 146, 296 P.3d 359 (2013).

  Where substantial evidence supported defendant's conviction, the prohibition against double jeopardy did not preclude a remand of the case to the district court for a new trial.  132 H. 85, 319 P.3d 1093 (2014).

  Does not bar second trial of charge dismissed before being submitted to judge or jury.  5 H. App. 127, 681 P.2d 573.

  Retrial permissible if dismissal due solely to trial error rather than evidentiary insufficiency; jeopardy ended at trial where judge did not return verdict on charge despite having full opportunity to do so and no extraordinary circumstances.  7 H. App. 48, 744 P.2d 783.

  No double jeopardy for conviction under §§707-734 and 712-1217.  8 H. App. 535, 813 P.2d 335.

  Retrial barred where reversal of DUI conviction based on improperly admitted test result from breath-testing instrument was for insufficiency of evidence, not trial error.  9 H. App. 130, 828 P.2d 813.

  Retrial not barred where defendant moved for dismissal and was successful in having the charge dismissed before a determination was made of whether defendant was guilty or not guilty and where defendant did not make any showing that prosecutor intended to provoke a mistrial.  10 H. App. 491, 878 P.2d 739.

  Clause violated where defendant, upon being resentenced for same offense, not given credit for imprisonment already served and fines already paid.  82 H. 83 (App.), 919 P.2d 995.

  Since kidnapping under §707-720(d) and sexual assault under §707-732(1)(e) require proof of a fact which the other does not, offenses are different and defendant's federal double jeopardy guarantee not violated by defendant's conviction and punishment for both offenses.  85 H. 92 (App.), 937 P.2d 933.

  Where purported judgment of acquittal was unrelated to factual guilt or innocence of defendant and was solely based on a question of law, no double jeopardy if defendant retried.  88 H. 477 (App.), 967 P.2d 674.

  Retrial of defendant was not double jeopardy and not barred when mistrial was prompted by prosecutorial misconduct, even where the defendant consented to the mistrial, where the prosecutorial misconduct was not so egregious that, from an objective standpoint, it clearly denied the defendant his or her right to a fair trial.  97 H. 166 (App.), 34 P.3d 1065.

  As attempted assault in the first degree is an included offense of assault in the first degree, under §701-109(4), the trial court properly instructed the jury on the included offense of attempted assault in the first degree; as trial court's instructing the jury on the included offense of attempted assault in the first degree only placed defendant in jeopardy once, defendant's double jeopardy rights not violated.  112 H. 278 (App.), 145 P.3d 821.

  Where district court's dismissal of the charges against defendant was not based on a resolution in defendant's favor of some or all of the factual elements of the offenses charged, and was not based on a decision on the merits of the case or a decision as to the guilt of defendant, the protection against double jeopardy did not apply; because the district court's dismissal of the charges did not constitute an acquittal, the court had the authority to reconsider and overturn its dismissal ruling without violating the protection against double jeopardy.  128 H. 449 (App.), 290 P.3d 519 (2012).

  Discussed.  55 H. 14, 514, P.2d 580.

 

Indictment.

  Indictment dismissed due to prosecutorial misconduct.  607 F.2d 871.

  Government did not constructively amend appellant's indictment, where appellant contended that grand jury indicted appellant for a conspiracy to distribute cocaine in Hawaii but proof at trial failed to connect appellant to Hawaii.  255 F.3d 714.

  Indictment sufficient where indictment under 18 U.S.C. §1591 contained language that defendant acted "knowing that" defendant's alleged victims had attained the age of fourteen but had not yet attained the age of eighteen.  713 F. Supp. 2d 1207 (2010).

  Indictment not affected by examination of defendant's wife by grand jury.  45 H. 221, 365 P.2d 202.

  Indictment not affected by noncompliance with statutory or criminal rule provisions relating to preliminary examination.  45 H. 604, 372 P.2d 356.

  Preliminary hearing is not a constitutional requirement and not a prerequisite to issuance of indictment.  51 H. 318, 459 P.2d 376.

  Prosecutorial misconduct before grand jury must be extreme and clearly infringe upon jury's decision-making function in order to serve as basis for quashing indictment.  62 H. 209, 614 P.2d 373.

  Hearsay admissible if not deliberately used in place of better evidence to improve case for indictment.  62 H. 518, 616 P.2d 1383.

  Prosecutor was not required to instruct grand jury on option to indict for lesser offense unless evidence clearly established lesser offense.  62 H. 518, 616 P.2d 1383.

  Mere absence of independent grand jury counsel does not establish that the due process rights of accused were violated.  63 H. 412, 629 P.2d 1111; 63 H. 633, 633 P.2d 1113.

  Evidence established probable cause that defendant was driving under influence of drugs.  68 H. 184, 706 P.2d 1305.

  Section 485-21 provides an essential element of offense charged, when a defendant is charged with a criminal violation of Uniform Securities Act; counts of indictment, which cited to §485-21, were insufficient, as counts did not include essential elements of offenses charged.  78 H. 373, 894 P.2d 70.

  Although prosecution's oral charge failed to include the word "bodily" to modify "injury", the omission did not alter the nature and cause of the accusation such that a person of common understanding would fail to comprehend it; thus, the oral charge was not so obviously defective that by no reasonable construction could it be said to charge the offense for which conviction was had; because omission of the word "bodily" did not constitute an essential element of the offense, harmless error.  99 H. 312, 55 P.3d 276.

 

Police power.

  Statute requiring motorcyclists to wear safety helmets is reasonable exercise of the police power.  51 H. 516, 465 P.2d 573.

 

Self-incrimination.

  See also notes on defendant's out-of-court statements.

  State involuntary commitment statute does not violate privilege by penalizing refusal to speak.  617 F.2d 173.

  Prior silence cannot be used for impeachment where silence not probative and where prejudice to defendant might result.  639 F.2d 466.

  No abuse of discretion in allowing witness broad privilege to refuse to answer all substantive questions.  646 F.2d 365.

  Prosecutor's comments not improper comment upon defendant's failure to testify.  730 F.2d 1292.

  Not violated by requirement that passenger notify carrier of firearm shipment.  777 F.2d 494.

  Prosecutor improperly commented on defendant's failure to testify.  807 F.2d 805.

  Defendant's exercise of right to appeal or privilege against self-incrimination cannot be used as basis for denying reduction of offense level under sentencing guidelines for acceptance of responsibility.  998 F.2d 1460.

  Where defendant contended that pursuant to constitutional right to testify, district court was required to permit defendant to explain to jury that defendant behaved in manner that defendant did because defendant was acting under duress, whether or not defendant had demonstrated prima facie evidence of duress, since proposed testimony pertained to a defense that was not relevant as a matter of law, the district court did not err in excluding the evidence during the trial.  102 F.3d 994.

  Requiring inmates labeled as sex offenders to admit their offenses and take responsibility for their sexual behaviors as part of treatment program did not violate privilege against self-incrimination.  131 F.3d 818.

  The foregone conclusion exception applied to documents related to two credit cards expressly named in the Internal Revenue Service summonses; the exception did not apply to documents concerning two additional credit cards named during contempt proceedings, and therefore, the production of those documents was privileged under the Fifth Amendment.  596 F.3d 683 (2010).

  Prosecutor's prejudicial references to defendant's privilege against self-incrimination made during grand jury hearing are grounds for dismissal of indictment.  450 F. Supp. 1097.

  Prosecutor's comments in regard to defendant's failure to testify were prejudicial.  674 F. Supp. 788.

  Where after never asserting the privilege, petitioner argued that petitioner failed to file a bond and contest the administrative forfeiture because the acts would incriminate petitioner, because the self-incrimination dilemmas never materialized and the remedy sought was well beyond those provided for such dilemmas, petitioner's argument concerning self-incrimination found without merit.  887 F. Supp. 1371.

  Defendant was not in custody for either of two conversations, where defendant had freedom to move anywhere on island when both conversations occurred; consequently, Miranda warnings not required and defendant's right not to incriminate defendant not violated.  961 F. Supp. 1398.

  No coercion existed where, regardless of defendant's alleged hand injury and the alleged failure of Federal Bureau of Investigation's agents to obtain medical care for the defendant, defendant's statements were the product of rational intellect and free will.  693 F. Supp. 2d 1200 (2010).

  No prejudice to plaintiff where plaintiff's appellate counsel failed to raise a Miranda claim when plaintiff voluntarily, knowingly, and intelligently waived plaintiff's rights to remain silent before being questioned by the police; no reasonable probability that the appeal would have been decided differently had the Miranda claim been raised.  700 F. Supp. 2d 1252 (2010).

  Plaintiff government's experts were limited to rebutting defendant's mental status evidence and not ascertaining another possible motive for defendant's actions where defendant raised a defense that relied on an expert examination of defendant's mental condition; any diagnosis which requires a broader examination of defendant, or which is used to assert a theory of prosecution not just to rebut the defendant's mental status defense, was inadmissible.  731 F. Supp. 2d 1012 (2010).

  Based on the totality of the circumstances, detective's statements "reasonably convey[ed] to [defendant the defendant's] rights as required by Miranda"; defendant's waiver of defendant's Miranda rights was voluntarily given.  835 F. Supp. 2d 938 (2011).

  It was contrary to and an unreasonable application of Brooks to remand the case to bolster the record since Kido supported petitioners' valid Brooks claim, and the record was already clear that the Kido exemptions did not apply.  23 F. Supp. 3d 1182 (2014).

  The record before the intermediate court of appeals clearly supported petitioner's Brooks claim that the trial court violated petitioner's right to remain silent and to control petitioner's own defense, as petitioner would not have taken the stand before petitioner's own witnesses if the trial court had not forced petitioner to do so.  Also, the magistrate judge erred in applying a harmless error analysis, as Brooks violations are structural errors, which require the presumption of prejudice and automatic reversal.  23 F. Supp. 3d 1182 (2014).

  Defendant's pre-search statements admissible:  (1) where statement about the shotgun and ammunition was volunteered to a police officer and was not made in response to custodial interrogation; (2) where an officer's response to defendant's second request to make a statement did not constitute custodial interrogation; and (3) pursuant to the "public safety exception" to Miranda, regarding the location of the shotgun and ammunition; defendant's responses to the officer's final two questions suppressed.  388 F. Supp. 2d 1185.

  Claim of privilege against self-incrimination by minor under eighteen cannot be supported on the basis of possible juvenile court proceedings against minor, nor on the basis of possible prosecution for misdemeanor where the statute of limitations will run before the minor reaches eighteen.  44 H. 271, 353 P.2d 631.

  Right against self-incrimination being personal to witness, defendants cannot object to court's failure to warn witness.  51 H. 40, 450 P.2d 996.

  Comment on defendant's assertion of right against self-incrimination in civil proceeding is not permissible.  51 H. 649, 466 P.2d 452.

  Statute cannot destroy one's right to silence by empowering police and judiciary to compel communication, nor may statute impose criminal liability for failing to speak.  52 H. 527, 480 P.2d 148.

  Comment on defendant's silence not automatic grounds for reversal.  Standard.  63 H. 488, 630 P.2d 619.

  Not violated by requirement to undergo field sobriety test. Roadside questioning of defendant after stop for traffic violation not a custodial interrogation.  67 H. 293, 687 P.2d 544.

  Officer's remarks intended as greeting, not an interrogation.  Confession was unsolicited, spontaneous statement.  67 H. 563, 698 P.2d 281.

  Presentation to defendant of apparently overwhelming inculpatory evidence was an interrogation; right to remain silent violated where functional equivalent of interrogation begun immediately after right exercised.  68 H. 28, 702 P.2d 1352.

  Privilege does not extend to defendant implicated by another whose right against self-incrimination was violated.  68 H. 569, 722 P.2d 1036.

  Default judgment for failure to make an accounting did not violate privilege where no evidence that information sought by accounting would incriminate defendant.  68 H. 608, 726 P.2d 254.

  Miranda warnings for one offense provide sufficient notice as to potential criminal liability for another offense.  69 H. 398, 744 P.2d 514.

  Scope of protections guaranteed by Hawaii constitution are broader than federal requirements.  69 H. 461, 748 P.2d 365.

  Defendant's statement to police, made while wearing blanket during custodial interrogation, was not coerced under totality of circumstances.  72 H. 327, 817 P.2d 1054.

  Constitutional right was not voluntarily waived by defendant's confession to theft where waiver was predicated on prior illegal search and State failed to meet burden of showing that taint of illegal search had been dissipated or that there was an independent source inducing defendant to waive right.  72 H. 505, 824 P.2d 833.

  Not violated where court requested defendant to identify self for purposes of identification in compliance with HRPP 43(a) (requiring presence of defendant at trial).  72 H. 573, 827 P.2d 648.

  Defendant's mental and physical condition at time of defendant's interview with detective did not render defendant's statement involuntary; where defendant complained detective repeatedly exhorted defendant to tell the whole story and wheedled a confession out of defendant through misrepresentations, detective's tactics did not amount to mental or psychological coercion, rendering defendant's consequent statement involuntary and inadmissible.  74 H. 479, 849 P.2d 58.

  Circuit court's error in failing to expressly state findings of fact and conclusions of law with respect to alleged violation of appellant's right against self-incrimination was harmless error; reversal of appellant's original conviction was not based on prosecution's use of illegally obtained confessions and appellant had never alleged that appellant was in any way compelled to testify at first trial.  76 H. 237, 873 P.2d 775.

  Defendant did not invoke right where, after being properly informed of Fifth Amendment rights, record did not support conclusion that defendant did request attorney during first police interview and defendant admitted to failing to request attorney at last two interviews.  83 H. 443, 927 P.2d 844.

  Right voluntarily, knowingly, and intelligently waived where no one threatened defendant to sign police waiver forms or during subsequent interviews, defendant knew defendant could terminate interviews at any time, and defendant was not a "neophyte" to criminal justice system.  83 H. 443, 927 P.2d 844.

  Where Miranda warnings not first given to defendant in custody, defendant's statements to officer regarding device found in defendant's truck and device's purpose were unlawfully obtained and thus inadmissible.  87 H. 71, 951 P.2d 934.

  Where "public safety" exception to Miranda inapplicable to case, statements by defendant subjected to custodial interrogation without Miranda warnings inadmissible in evidence.  87 H. 71, 951 P.2d 934.

  A trial court must pass on a defendant's attempted withdrawal of the prior waiver of his or her right to testify, tendered before the commencement of closing arguments, pursuant to the "liberal approach", whereas such an attempted withdrawal tendered thereafter is subject to the "manifest injustice" standard.  88 H. 407, 967 P.2d 239.

  Where defendant did not meet burden of establishing plausible and legitimate reasons for withdrawal of defendant's prior waiver of defendant's right to testify, defendant failed to present "fair and just reasons" for defendant's request to exercise defendant's right to testify in defendant's own behalf; thus trial court did not abuse discretion by ruling that it would not reopen case.  88 H. 407, 967 P.2d 239.

  Where trial court's denial of defendant's post-verdict motion for a new trial--based on defendant's claim that defendant's attempt to withdraw defendant's waiver of right to testify in defendant's own behalf should have been allowed--was not "manifestly unjust", no abuse of discretion.  88 H. 407, 967 P.2d 239.

  Where defendant initiated contact with police for purpose of making a confession and police adequately determined that defendant's mind was clear and defendant had made a voluntary decision to waive defendant's rights and make a statement, trial court properly determined defendant knowingly and intelligently waived constitutional rights.  92 H. 19, 986 P.2d 306.

  Where no evidence that defendant felt compelled to give statement to police because defendant feared defendant would be beaten, felt dizzy and in pain, and had not slept in four days prior to defendant's arrest, trial court erred in concluding statement was not voluntarily and freely given.  92 H. 135, 988 P.2d 200.

  Where trial court was put on advance notice that defendant intended to invoke privilege against self-incrimination, court abused discretion by permitting prosecution to question defendant about false identification cards; risk of unfair prejudice occasioned by compelling criminal defendant to invoke privilege in front of jurors was substantial and not outweighed by probative value of prosecution's unanswered questions.  97 H. 206, 35 P.3d 233.

  Trial court violated defendant's constitutional privilege against self-incrimination by imposing an enhanced sentence pursuant to §706-662(4) based solely on defendant's refusal to admit defendant's guilt with respect to the offenses of which defendant was convicted by the jury.  103 H. 315, 82 P.3d 401.

  Where defendant's statements were not the product of "interrogation", but, rather, were "volunteered confessions or admissions, obtained independent of express police questioning or its functional equivalent", defendant's constitutional rights against self-incrimination and due process of law not violated.  104 H. 224, 87 P.3d 893.

  Where defendant gave a full and voluntary statement to detective but then declined to repeat the statement on tape, defendant did invoke right to remain silent, not because defendant refused to make a statement on tape, but because that refusal appeared to have caused a termination of all questioning by the police and acted as a de facto invocation of defendant's right to refrain from answering further questions.  113 H. 41, 147 P.3d 825.

  Where prosecutor merely elicited the fact, without further comment, that, following a full, voluntary explanation of how accused came to possess the welder and trailer, accused declined to agree to an audiotaped reiteration of accused's statement to detective, information elicited by prosecutor from detective was not manifestly intended or of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.  113 H. 41, 147 P.3d 825.

  Where (1) prosecutor argued the unreasonable inference that defendant was guilty in light of defendant's post-arrest silence, (2) the trial court declined to give a curative instruction when defendant objected to prosecutor's comments, and (3) the evidence against defendant was not so overwhelming that prosecutor's intrusion into defendant's right to remain silent may not have contributed to defendant's conviction, prosecutor's improper comments were not harmless beyond a reasonable doubt, and defendant was entitled to a new trial.  117 H. 235, 178 P.3d 1.

  Court's ruling that evidence of defendant's juvenile proceedings could be admissible violated §571-84(h) and constituted reversible error, where ruling was a reason defendant decided not to testify, infringed on defendant's constitutional right to testify, and there was a reasonable possibility that the court's error might have contributed to defendant's conviction.  127 H. 432, 279 P.3d 1237 (2012).

  Where the district court's ultimate Tachibana colloquy was defective because it incompletely advised defendant of defendant's right to testify and because it did not establish that defendant understood defendant's rights, the district court did not obtain an on-the-record waiver of the right to testify from defendant; defendant demonstrated a constitutional violation of defendant's right to testify, which could not be considered harmless.  132 H. 85, 319 P.3d 1093 (2014).

  Prosecutor's statements not improper comment upon defendant's failure to testify.  3 H. App. 107, 643 P.2d 807.

  Defendant's constitutional and statutory right to testify in defendant's own defense was violated where judge reproached defendant to follow defendant's attorney's advice and thus refrain from testifying, and the violation was plain error; denial of the right to testify was prejudicial and not harmless beyond a reasonable doubt.  78 H. 115 (App.), 890 P.2d 702.

  Because defendant's refusal to take the field sobriety test was neither testimonial nor compelled, this Amendment and article I, §10 of the Hawaii constitution were not offended.  94 H. 17 (App.), 7 P.3d 193.

  Where detective made clear to defendant that "in accordance with the mandate of Miranda, the right to counsel may be invoked at any point, and when invoked, all substantive questioning must cease unless and until counsel is provided," trial court did not err in denying defendant's motion to suppress statement defendant made to detective.  101 H. 97 (App.), 63 P.3d 405.

  Where defendant was properly informed of defendant's Miranda rights against self-incrimination, and expressly waived this right and the right to counsel prior to being examined and prior to giving the suppressed statements, defendant's rights not violated.  101 H. 344 (App.), 68 P.3d 618.

  Defendant's right violated where, based on the specific facts of the case, trial court abused its discretion in directing, over defendant's objection, that defendant testify before defendant's other defense witness; error not harmless beyond a reasonable doubt as there was a reasonable possibility that trial court's error contributed to defendant's conviction.  102 H. 369 (App.), 76 P.3d 612.

  State did not comment on defendant's exercise of right to remain silent as, placed in its proper context, prosecutor's question to evidence specialist--"did the defendant attribute any apparent injuries to the complainant?"--was not an attempt to elicit evidence that defendant had exercised defendant's right to remain silent.  106 H. 365 (App.), 105 P.3d 242.

  Right not to testify at trial not compromised by family court's consolidation of the hearing on motion to suppress identification and the trial itself where minor could have advised the court that minor would only testify with respect to the issues presented by minor's motion to suppress, that minor was not giving up minor's Fifth Amendment right not to testify at trial, and that absent minor's consent, the court must not consider minor's testimony when deciding the merits of the case.  107 H. 439 (App.), 114 P.3d 945.

  Where trial court misinformed defendant about defendant's eligibility for a deferred acceptance of no contest plea, defendant did not proffer defendant's plea knowingly and voluntarily, and it was constitutionally invalid.  109 H. 50 (App.), 122 P.3d 1148.

  Trial court did not abuse its discretion by prohibiting defense from calling witness in order to have witness invoke witness' privilege against self-incrimination in front of the jury where, under HRE rule 513(a), witness' invocation of privilege in front of jury would not have been entitled to any probative weight and could not properly have been considered by the jury.  110 H. 386 (App.), 133 P.3d 815.

  Trial court properly suppressed defendant's statements disclaiming fanny pack where police failed to apprise defendant of defendant's Miranda rights before subjecting defendant to custodial interrogation; when officers took defendant to the hospital for treatment, defendant was in custody because defendant had been "formally and physically arrested" and the "express questioning" of defendant by police regarding the ownership of the fanny pack constituted interrogation.  116 H. 29 (App.), 169 P.3d 981.

  Although the police department form signed by defendant advising defendant of defendant's constitutional rights only referenced a single incident, where (1) defendant was clearly advised that defendant was going to be questioned about the other three incidents before defendant was questioned about any of those incidents, (2) officer repeatedly reminded defendant that defendant's constitutional rights were still available to defendant, and (3) defendant reiterated that defendant wanted to give a statement without a lawyer present, defendant knowingly, voluntarily, and intelligently waived those rights.  121 H. 513 (App.), 221 P.3d 491 (2009).

 

Taking.

  Federal government could not require free public access to Kuapa Pond without paying just compensation.  444 U.S. 164.

  The "substantially advances" formula announced in Agins v. City of Tiburon is not a valid method of identifying regulatory takings for which the Fifth Amendment requires just compensation.  Since oil company claiming that the rent cap provision of Act 257 [L 1997 (§486H-10.4(c))], on its face, effected a taking of its property argued only a "substantially advances" theory in support of its takings claim, it was not entitled to summary judgment on that claim.  544 U.S. 528.

  Public use limitation not subsumed under police power/due process analysis.  702 F.2d 788.

  No cases finding a substantive due process violation based on a planning document.  Qualified immunity is not available as a defense to private parties in a Bivens suit.  869 F.2d 1312.

  Government does not take an individual's property unless it has denied the economically viable use of the land; a substantial reduction of the attractiveness of the property to potential purchasers does not entitle the owner to compensation.  913 F.2d 573.

  Ordinance, a rent control measure limiting increases in ground rent due owner of land under condominium units, effected a regulatory taking and was unconstitutional.  124 F.3d 1150.

  Where landowners argued that ordinance creating mechanism through which condominium owners could convert their leasehold interests into fee simple interests violated public use clause of U.S. and Hawaii Constitutions, ordinance was constitutional; landowners' claim under just compensation clause not ripe for federal adjudication.  124 F.3d 1150.

  Right to develop property, including right to lease land to build hotel, not a protectable property interest; Queen's Beach is separate parcel for determining "taking".  649 F. Supp. 926.

  Where plaintiff sued defendant for allegedly violating plaintiff's rights under the Fourth, Fifth, and Fourteenth Amendments, based on defendant's involvement in the removal and subsequent destruction of motorcycles and mopeds in the area of plaintiff's motorcycle repair shop, genuine issues of material fact existed and precluded the court from determining whether defendant was entitled to qualified immunity under federal law.  333 F. Supp. 2d 942.

  City ordinance purporting to impose maximum ceiling on renegotiated lease rents for residential condominiums was unconstitutional taking of property without just compensation.  759 F. Supp. 1477.

  City ordinance imposing ceiling on renegotiated ground lease rents for owner-occupied residential condominium units unconstitutional; ordinance providing mechanism for transfer of fee interest from condominium lessors to lessees by payment of just compensation constitutional.  802 F. Supp. 326.

  Condominium lease-to-fee ordinance did not effect an impermissible taking.  832 F. Supp. 1404.

  Facts did not support a claim of either procedural due process or takings clause violation; termination of special use permits did not require compensation because they were not property interests recognized by the Fifth Amendment.  875 F. Supp. 680.

  To the extent that plaintiffs raised a facial takings claim as to ordinance requiring developers seeking to build five or more residential units on their land to enter into a residential workforce housing agreement with county department before final subdivision approval or building permits are issued, plaintiffs must first seek compensation via state court; plaintiffs' as-applied takings claims also unripe.  573 F. Supp. 2d 1354 (2008).

  State defendants' multi-count motion for summary judgment and the joinders therein, granted as to provider plaintiffs' takings clause claim, where the plaintiffs' theory was that by reducing the reimbursement rates and by failing to pay pharmacists' claims on the basis that the claims were untimely, state defendants had taken property (in the form of losses) from the plaintiffs and transferred it to the QUEST expanded access program contractors without a public use or public purpose.  676 F. Supp. 2d 1046 (2009).

  Summary judgment granted to defendants county of Hawaii, Hawaii Island Humane Society (HIHS), HIHS executive director, and HIHS officer as to plaintiff's constitutional claims.  Among other things, where plaintiff alleged a taking under the takings clause, plaintiff failed to present a material issue of fact that the HIHS defendants had reason to know of the purported fraud, forgery, or invalidity of the power of attorney and animal surrender policy form, and plaintiff neither alleged in the second amended complaint nor stated in plaintiff's opposition that the defendants acquired the dogs for public use as opposed to law enforcement purposes.  947 F. Supp. 2d 1087 (2013).

  Enforcement of referendum did not result in taking because referendum certified before any post-zoning approvals were obtained.  65 H. 318, 653 P.2d 766.

  McBryde Sugar Co. v. Robinson, 54 H. 174, did not address question of whether cessation of any particular diversion would in fact constitute a taking.  65 H. 641, 658 P.2d 287.

  As Hawaiian custom and usage have always been part of the laws of the State, court's recognition of customary and traditional Hawaiian rights did not constitute judicial taking.  79 H. 425, 903 P.2d 1246.

  No violation by impoundment of vessel where impoundment was undertaken in substantial advancement of legitimate state interests--to prevent the sinking vessel from obstructing a public waterway; owner thus not entitled to compensation.  91 H. 1, 979 P.2d 586.

  As water is a state public trust resource to which no individual, including Waiahole Ditch water use permittees, could claim an exclusive right, permittees being required to fund subsequent stream studies and monitoring activities was not an unconstitutional "regulatory leveraging".  94 H. 97, 9 P.3d 409.

  No unconstitutional taking of petitioner's property without just compensation by water resource management commission's denying petitioner's request to use the ground water underlying its lands and allocating it instead to other leeward parties where the right to absolute ownership of water exclusive of the public trust never accompanied the "bundle of rights" conferred in the Mahele.  94 H. 97, 9 P.3d 409.

  Where power plant developers did not acquire a vested interest in the lease because it was not preceded by the requisite environmental study, which in Hawaii is a condition precedent to approval of the request and commencement of the proposed action, the lease was void and no rights could have vested in the developers; thus, developers failed in their takings claim.  106 H. 270, 103 P.3d 939.

  As a community plan amendment is not an administrative act, it cannot reasonably be required as a step in reaching a final agency determination for ripeness purposes; ripeness requires only that landowners take advantage of any available variances or waivers under existing law, it does not require them to undertake changing the law itself; thus, appellants were not required to seek a change in the applicable law, i.e., the community plan, in order to satisfy the ripeness requirements for their takings claim.  128 H. 183 (App.), 284 P.3d 956 (2012).

 

 

[ARTICLE VI.--1791]

 

     In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defence.

 

Attorney General Opinions

 

  Proposed legislation did not violate federal constitutional law to extent it diminished the number of members on jury panels in either civil or criminal trials.  Att. Gen. Op. 97-2.

 

Law Journals and Reviews

 

  Suppression of Evidence Without the Aid of the Fourth, Fifth and Sixth Amendments.  8 HBJ 109.

  Included Offenses in Hawaii Case Law and the Rights to Trial by Jury:  Coherence or Confusion.  II HBJ No. 13, at pg. 77.

  State v. Breeze:  Custodial Interrogation.  6 UH L. Rev. 653.

  State v. O'Brien:  Right to Jury Trial for Driving Under the Influence of Intoxicating Liquor.  8 UH L. Rev. 209.

  State v. Smith:  The Standard of Effectiveness of Counsel in Hawaii Following Strickland v. Washington.  9 UH L. Rev. 371.

  The Evolving Legal Relationships Between the United States and Its Affiliated U.S.-Flag Islands.  14 UH L. Rev. 445.

  State v. Furutani:  Hawai‘i's Protection of a Defendant's Right to a Fair Trial--Verdict Impeachment Made Easy.  17 UH L. Rev. 307.

  State v. Lindsey:  "Petty" Offenses and the Right to Jury Trial under the Hawai‘i Constitution.  17 UH L. Rev. 331.

  Criminal Procedure Rights Under the Hawaii Constitution Since 1992.  18 UH L. Rev. 683.

  An Evaluation of the Summary Contempt Power of the Court:  Balancing the Attorney's Role as an Advocate and the Court's Need for Order.  19 UH L. Rev. 145.

  State v. Sinagoga:  The Collateral Use of Uncounseled Misdemeanor Convictions in Hawai‘i.  19 UH L. Rev. 813.

  State v. Rivera:  Extended Sentencing and the Sixth Amendment Right to Trial by Jury in Hawai‘i.  28 UH L. Rev. 457.

  How to Transfer Venue When You Only Have One:  The Problem of High Profile Criminal Jury Trials in American Samoa.  29 UH L. Rev. 325.

  Blast It All:  Allen Charges and the Dangers of Playing With Dynamite.  32 UH L. Rev. 323 (2010).

  State v. Fields:  Should a Declarant's Professed Memory Loss at Trial Satisfy the "Unavailability" Requirement Under Hawaii's Confrontation Clause?  34 UH L. Rev. 329 (2012).

 

Case Notes

 

Generally.

  Defendant has constitutional right to have all stages of a criminal trial conducted by a person with jurisdiction to preside.  42 F.3d 473.

  No violation of defendant's due process right to a fair trial by prosecution's refusal to reveal exact dates of confidential informant's observations as exact dates were not necessary in order for defendant to challenge district court's findings of probable cause.  88 H. 396, 967 P.2d 228.

 

Appeal.

  Seven-day failure to comply with time requirements for filing criminal appeal does not preclude right to appeal.  2 H. App. 606, 638 P.2d 338.

 

Compulsory process.

  District court erred in excluding defense expert witness as sanction for asserted violation of discovery rule where no discovery violation occurred.  937 F.2d 1422.

  A sentencing increase based on defendant's false testimony does not unconstitutionally burden defendant's right to testify.  1 F.3d 1523; 35 F.3d 1275.

  Where defendant contended that pursuant to constitutional right to testify, district court was required to permit defendant to explain to jury that defendant behaved in manner that defendant did because defendant was acting under duress, whether or not defendant had demonstrated prima facie evidence of duress, since proposed testimony pertained to a defense that was not relevant as a matter of law, the district court did not err in excluding the evidence during the trial.  102 F.3d 994.

  Defendant only afforded right to compel attendance and testimony of witnesses who can give relevant and beneficial testimony for defense.  64 H. 217, 638 P.2d 324; 67 H. 59, 677 P.2d 465.

  A trial court must pass on a defendant's attempted withdrawal of the prior waiver of his or her right to testify, tendered before the commencement of closing arguments, pursuant to the "liberal approach", whereas such an attempted withdrawal tendered thereafter is subject to the "manifest injustice" standard.  88 H. 407, 967 P.2d 239.

  Where defendant did not meet burden of establishing plausible and legitimate reasons for withdrawal of defendant's prior waiver of defendant's right to testify, defendant failed to present "fair and just reasons" for defendant's request to exercise defendant's right to testify in defendant's own behalf; thus trial court did not abuse discretion by ruling that it would not reopen case.  88 H. 407, 967 P.2d 239.

  Where trial court's denial of defendant's post-verdict motion for a new trial--based on defendant's claim that defendant's attempt to withdraw defendant's waiver of right to testify in defendant's own behalf should have been allowed--was not "manifestly unjust", no abuse of discretion.  88 H. 407, 967 P.2d 239.

  Where witness appeared, exercised witness' right to remain silent, and defendant failed to offer proof beyond conjecture that witness' testimony would be helpful to defendant, defendant's right not violated.  100 H. 210, 58 P.3d 1257.

  Court's ruling that evidence of defendant's juvenile proceedings could be admissible violated §571-84(h) and constituted reversible error, where ruling was a reason defendant decided not to testify, infringed on defendant's constitutional right to testify, and there was a reasonable possibility that the court's error might have contributed to defendant's conviction.  127 H. 432, 279 P.3d 1237 (2012).

  Advisement by the family court did not adequately ascertain whether petitioner understood petitioner's constitutional right to testify or not to testify, as required by the Hawaii supreme court in Tachibana v. State.  Moreover, petitioner's need for an interpreter during the trial was a "salient fact" heightening the necessity for the court to insure that petitioner understood the rights petitioner waived.  Accordingly, the court did not obtain a valid on-the-record waiver of petitioner's right to testify.  130 H. 83, 306 P.3d 128 (2013).

  Where the district court's ultimate Tachibana colloquy was defective because it incompletely advised defendant of defendant's right to testify and because it did not establish that defendant understood defendant's rights, the district court did not obtain an on-the-record waiver of the right to testify from defendant; defendant demonstrated a constitutional violation of defendant's right to testify, which could not be considered harmless.  132 H. 85, 319 P.3d 1093 (2014).

  Refusal of court to permit defendant at an identification suppression hearing to examine the identification witness was not violative of constitutional rights.  1 H. App. 335, 619 P.2d 1078.

  Constitutional right to present character evidence no greater than right under Hawaii Rules of Evidence.  5 H. App. 251, 687 P.2d 554.

  Defendant's constitutional and statutory right to testify in defendant's own defense was violated where judge reproached defendant to follow defendant's attorney's advice and thus refrain from testifying, and the violation was plain error; denial of the right to testify was prejudicial and not harmless beyond a reasonable doubt.  78 H. 115 (App.), 890 P.2d 702.

  Trial court did not violate defendant's due process and Sixth Amendment rights to compulsory process to present a favorable defense witness when it ordered witness to wear western clothing when testifying, thus precluding witness from wearing only a malo and a kihei; to the extent that the effect of the western-Hawaiian clothing combination was bizarre, insulting and undermined the value of the witness' testimony, those consequences were caused by the witness opting for that combination and could not be used by defendant to vacate the jury's verdict.  106 H. 43 (App.), 101 P.3d 652.

 

Confrontation of witnesses.

  Not violated by court's refusal to admit prosecution witness' shoplifting conviction.  789 F.2d 1425.

  When substantial cross-examination has taken place, the courts are less inclined to find a violation of the right to confrontation.  819 F.2d 227.

  Where trial court asked defense counsel to designate one attorney to conduct "main" cross-examination into basic issues, and expressly allowed all defense attorneys to cross-examine as to issues particular to their own clients, appellants failed to show how court's requirement limited any relevant testimony or caused them prejudice.  127 F.3d 791.

  Where defendant argued that statute (18 U.S.C. §3509) setting forth procedure by which an alleged child victim can testify outside of physical presence of defendant via two-way closed circuit television violated the confrontation clause, statute (1) not unconstitutional; and (2) does not require that television monitor in witness room be located directly in child's field of vision while child testifies.  328 F.3d 493.

  Waiver, when effective.  51 H. 99, 451 P.2d 806.

  Includes the right of cross-examination.  51 H. 125, 453 P.2d 221.

  Right not necessarily violated by admission of business records as exception to hearsay rule.  53 H. 466, 497 P.2d 575.

  Admissibility of transcripts of witness' testimony at preliminary hearing.  54 H. 637, 513 P.2d 697.

  Sufficiency of proof of unavailability of witness to permit introduction of transcript of pre-trial testimony.  55 H. 346, 519 P.2d 1241.

  Admission of oral confession of a defendant implicating a co-defendant violates confrontation rights of the co-defendant.  58 H. 299, 568 P.2d 504.

  Not violated by evidence admissible under exception to hearsay rule, provided statement is found to be reliable.  62 H. 518, 616 P.2d 1383.

  Defendant's right of cross-examination may not be unduly restricted but it has never been held to be absolutely without restriction.  62 H. 572, 617 P.2d 1214.

  Admission of stipulation of testimony of State's witness was not a denial of the right of confrontation.  62 H. 646, 618 P.2d 1142.

  Waiver of right by defendant's counsel.  63 H. 186, 623 P.2d 881.

  Entry of stipulated testimony into evidence without determining knowing and intelligent waiver.  64 H. 187, 637 P.2d 778.

  Unavailability of witness; good faith effort to secure appearance.  65 H. 286, 651 P.2d 470.

  Defendant claiming confrontation rights violated had no standing to challenge admission of co-defendant's illegally obtained confession.  68 H. 569, 722 P.2d 1036.

  Redacted statement of nontestifying co-defendant did not violate confrontation clause.  70 H. 219, 768 P.2d 230.

  No violation where the State made a good faith effort to locate witness.  70 H. 343, 771 P.2d 509.

  Criminal defendant's right to be present at all stages of trial cannot be waived by counsel.  73 H. 97, 828 P.2d 280.

  Error for trial court to refuse to permit a defense witness to testify as penalty for violating witness exclusion rule.  73 H. 331, 832 P.2d 269.

  Right not violated by defendant's absence from conference settling jury instructions as conference does not involve jury's presence or witness testimony.  74 H. 141, 838 P.2d 1374.

  Admission of co-defendant's testimony concerning incriminatory out-of-court statements made against defendant did not violate defendant's rights to confront defendant's accuser under the U.S. or Hawai‘i Constitutions.  76 H. 148, 871 P.2d 782.

  Circuit court's limitation of appellant's cross-examination of witness did not violate appellant's right to confront witnesses against appellant where appellant adequately raised issue of witness' possible bias.  78 H. 383, 894 P.2d 80.

  Prior to introduction of videotaped interview, cross-examination of complainant sex assault victim regarding complainant's conversation with police officer satisfied defendant's right of confrontation.  80 H. 107, 905 P.2d 613.

  Not violated by admission of declarant's former testimony under HRE rule 804(b)(1) where prosecution established declarant's unavailability, that it had made good faith efforts to secure declarant's presence, and reliability of statement was shown.  82 H. 202, 921 P.2d 122.

  Abuse of discretion where trial court excluded evidence of complainant's prior conviction, by prohibiting cross-examination of complainant, from which jury could have inferred that complainant had a motive to bring false charges against defendant and give false testimony at trial.  83 H. 109, 924 P.2d 1215.

  Right violated as prosecution witness not "unavailable" under HRE rule 804(a)(5); prosecution's good faith efforts require a search equally as vigorous as that which it would undertake to find a critical witness if it had no prior testimony to rely upon in the event of unavailability.  83 H. 267, 925 P.2d 1091.

  Right not violated where trial court allowed defense adequate opportunity to raise issue of witness' possible bias while imposing modest restriction on defense's cross-examination of witness to avoid risk of prejudicing jury.  83 H. 335, 926 P.2d 1258.

  Admission into evidence of witness' grand jury testimony under HRE rule 802.1(4), past recollection recorded hearsay exception, did not violate defendant's right where witness' testimony was supported by numerous guarantees of trustworthiness and defendant was able to cross-examine witness on witness' subsequent failure to remember alleged incident.  92 H. 61, 987 P.2d 959.

  Admission into evidence of witness' handwritten statement on the bottom of an identification form, under HRE rule 802.1(4), past recollection recorded hearsay exception, did not violate defendant's right where witness' statement was supported by numerous guarantees of trustworthiness.  92 H. 61, 987 P.2d 959.

  Where prior inconsistent statements were properly admitted under HRE rule 802.1(1)(C) and witnesses were cross-examined with respect to their statements, substantive use of these statements did not violate defendant's confrontation rights.  92 H. 61, 987 P.2d 959.

  Where jury had sufficient information to gauge adequately witness' credibility and to appraise witness' motivation to fabricate testimony against defendant, trial court did not abuse discretion in limiting scope of defendant's cross-examination of witness.  92 H. 192, 990 P.2d 90.

  Right not violated by trial court's imposition of certain restrictions on scope of defense counsel's cross-examination  where (1) there was no reasonable possibility that the cross-examination would have changed the outcome of defendant's trial; (2) witness' second forgery conviction on recross examination was beyond the scope of redirect examination; and (3) defense counsel's inquiring into the location of a map given to witness by defendant was not relevant.  99 H. 390, 56 P.3d 692.

  When a statutory privilege interferes with a defendant's constitutional right to cross-examine, then, upon a sufficient showing by the defendant, the witness' statutory privilege must, in the interest of the truth-seeking process, bow to the defendant's constitutional rights.  101 H. 172, 65 P.3d 119.

  As there is no exception under HRE rule 804(b)(8) for pending or anticipated litigation, such that statements by victim-wife would have been admissible even if a divorce proceeding had actually been underway, trial court did not abuse discretion in determining hearsay statements were trustworthy; however, trial court abused discretion in admitting statements in violation of defendant's constitutional right to confront and cross-examine adverse witnesses.  103 H. 89, 79 P.3d 1263.

  Where trial court prohibited all inquiry into the complainant's alleged motive or bias for faking injury, petitioner's right of confrontation under this Amendment and article I, §14 of the Hawaii constitution was violated; appellate court erred and case remanded for new trial.  106 H. 116, 102 P.3d 360.

  Where defendant would not have likely been acquitted, witness was not the only witness to the event, and the conviction did  not rest on the witness' credibility alone, trial court's preclusion of defendant's questioning of witness regarding witness' motives for changing witness' mind about testifying was harmless error.  109 H. 314, 126 P.3d 357.

  Where, pursuant to HRE rule 404(b), defendant was required to give prosecution reasonable notice prior to introducing rule 404(b) evidence, it did not violate defendant's constitutional right to present a defense and examine witnesses; rule 404(b) is not per se unconstitutional even though it may restrict a defendant's constitutional right to confront an adverse witness and rule 404(b)'s policy of reducing surprise and promoting early resolution on the issue of admissibility justified the limitation imposed on the defendant's constitutional right to testify.  118 H. 452, 193 P.3d 368.

  The admission into evidence, as a business record under HRE rule 803(b)(6), of a speed check card for which a proper foundation was established, would not have violated defendant's Sixth Amendment rights; the speed check card was created in a non-adversarial setting in the regular course of maintaining the officer's vehicle five months prior to the alleged speeding incident and was therefore non-testimonial in nature.  122 H. 354, 227 P.3d 520 (2010).

  Defendant's right violated where court did not allow defendant to cross-examine complainant about complainant's alleged theft of defendant's credit cards; had defendant been allowed to cross-examine, defendant might have succeeded in eliciting testimony from complainant tending to show that complainant was biased or had a motive to fabricate or exaggerate the story about harassment and to testify falsely in court, which in turn could have affected the court's view of complainant's credibility and that the State had not proven its case.  128 H. 34, 282 P.3d 576 (2012).

  Where a defendant has expressed an intention to be absent from the proceedings and the court has the opportunity to address the defendant, trial courts should advise a defendant of the constitutional rights that will be lost upon exiting a courtroom; by engaging defendants in this manner, the trial courts seek to ensure that a defendant makes an informed decision not to be present.  128 H. 479, 291 P.3d 377 (2013).

  Face to face confrontation is preferred; prosecution failed to show unavailability of the witness.  7 H. App. 80, 742 P.2d 986.

  Not violated in DUI case by admission into evidence of log showing breath-testing instrument had been tested for accuracy.  9 H. App. 130, 828 P.2d 813.

  Admission into evidence of redacted confessions of defendants-spouses violated defendants-spouses' confrontational rights.  10 H. App. 43, 861 P.2d 24.

  Trial court erred in limiting questioning regarding complainant's financial situation and relationship with fiance; error not harmless.  79 H. 255 (App.), 900 P.2d 1322.

  Defendant entitled to elicit evidence of complainant's past sexual behavior, not to attack complainant's character, but to determine whether complainant was mentally defective and whether defendant knew that complainant was mentally defective.  81 H. 447 (App.), 918 P.2d 254.

  Clause not violated where questions defendant wanted to ask police officer regarding officer's "motive", and "knowledge of how much cocaine a drug addict would consume" were not relevant to any issue in case.  82 H. 499 (App.), 923 P.2d 916.

  Defendant's right to confrontation violated where family court admitted girls' statements, which were "testimonial" hearsay, and the girls were neither unavailable nor subject at any time to cross-examination concerning their statements; as error was not harmless beyond a reasonable doubt and there was sufficient evidence to support defendant's conviction, judgment vacated and remanded.  107 H. 133 (App.), 111 P.3d 28.

  Trial court erred by not allowing defendant to introduce evidence of, and cross-examine victim as to victim's drug use and addiction at or near the time of the incident to the extent that it affected victim's perception or recollection of the alleged event, and defendant was not required to present expert testimony to that effect.  108 H. 102 (App.), 117 P.3d 834.

  Where, even in the absence of a plea agreement, witness' pending sentencing in two other criminal matters were relevant and probative of a potential bias or motive for testifying in favor of the State, trial court erred in denying defendant's motion in limine with respect to evidence of witness' pending sentencing, and error was not harmful beyond a reasonable doubt as State's case was based on jury finding that witness' testimony was credible and believing the witness over the defendant.  108 H. 102 (App.), 117 P.3d 834.

  Where sworn statements made by police intoxilyzer supervisor admitted into evidence pursuant to HRE rule 803(b)(8) as public records could not be considered "testimonial" hearsay, the statements were not subject to the requirements of this Amendment; thus, no showing of the supervisor's unavailability nor a prior opportunity for cross-examination was required prior to admission.  114 H. 396 (App.), 163 P.3d 199.

  As the right of confrontation is not absolute, circuit court properly ruled that defendant was not entitled to introduce selected portions of witness' statement that were favorable to defendant's defense and at the same time preclude the State from introducing other portions of witness' statement that were necessary to prevent the jury from being misled; thus, circuit court did not abuse its discretion in ruling that the responsive portions of witness' statement offered by the State were admissible under HRE rule 106 and rule 403.  125 H. 462 (App.), 264 P.3d 40 (2011).

 

Impartial jury.

  Jury instructions did not invade province of jury as finders of fact.  Not violated by extrajudicial communication between juror and prosecutor regarding matter unrelated to trial.  730 F.2d 1292.

  Excusal of college students from venire did not violate right to jury fairly representing cross-section of community since college students did not qualify as cognizable group.  965 F.2d 781.

  Though prosecutor's remarks were of questionable relevance and conveyed repugnant images, reversal justified only where alleged prosecutorial misconduct materially affects verdict or deprives defendant of fair trial.  1 F.3d 1523.

  Habeas corpus granted due to jury misconduct.  677 F. Supp. 1061.

  Defendant's motion for new trial denied where defendant argued, inter alia, that new trial was necessary because juror failed to honestly answer a material question during voir dire.  101 F. Supp. 2d 1304.

  Scope of voir dire of prospective jurors in case of extensive pretrial publicity.  55 H. 640, 526 P.2d 94.

  Effect of news accounts prejudicial to defendant; protective measures required of trial court.  58 H. 356, 569 P.2d 891.

  Trial court's supplemental instruction to deadlocked jury that it must unanimously decide that it was unable to reach verdict was prejudicial.  72 H. 327, 817 P.2d 1054.

  Trial court must insure that defendant's right to fair trial is not compromised and at the least prevent or reduce prejudicial pretrial publicity; order imposing restrictions on extrajudicial statements of trial participants was impermissible.  73 H. 499, 835 P.2d 637.

  Circuit court did not commit an abuse of discretion in granting defendant's motion for new trial; circuit court's conclusions of law that possible juror misconduct at voir dire and juror misconduct during deliberations deprived defendant of a trial by twelve fair and impartial jurors not clearly erroneous.  76 H. 172, 873 P.2d 51.

  Newscast concerning appellants and their alleged involvement in a burglary other than those charged and prospective juror's account of the newscast and the effect it had on prospective juror that was given in presence of jury panel, discussed as "outside influences".  78 H. 383, 894 P.2d 80.

  Not violated by empaneling of anonymous jury where there was strong reason to believe jury needed protection and trial court took reasonable steps to minimize any prejudicial effect on defendant and ensure that defendant's fundamental rights were protected.  83 H. 507, 928 P.2d 1.

  Purpose of §612-18(c) is to uphold a criminal defendant's constitutional guarantees of a presumption of innocence and an impartial jury.  83 H. 507, 928 P.2d 1.

  Defendant's right not violated by having husband and wife serve on same jury; both expressly stated during voir dire that they would each make their own decisions and would not automatically go along with the other person.  88 H. 19, 960 P.2d 1227.

  References to race that do not have an objectively legitimate purpose constitute a particularly egregious form of prosecutorial misconduct.  91 H. 405, 984 P.2d 1231.

  Where there was a reasonable possibility that prosecutor's comment during closing argument might have contributed to defendant's conviction, prosecutor's comment constituted prosecutorial misconduct that denied defendant right to a fair trial.  91 H. 405, 984 P.2d 1231.

  Given that any improper remarks in opening statement, closing and rebuttal arguments by prosecutor were harmless beyond a reasonable doubt, and their cumulative effect was similarly harmless and did not deprive defendant of a fair trial, prosecutor's misconduct did not warrant reversal of any of defendant's convictions and did not implicate the double jeopardy clauses of either the U.S. or Hawaii Constitutions.  95 H. 465, 24 P.3d 661.

  Although prosecutor's remark that the reasonable doubt standard "was never meant to provide a shield for a guilty man" had the potential to invite the jury to misapply and erode the standard, and was thus improper, where the trial court immediately corrected the prosecutor and issued a curative instruction, and verdicts suggested that the jury was not unduly swayed by the isolated remark in the two week trial and gave proper consideration to all relevant circumstances, improper comment not reversible error.  98 H. 1, 41 P.3d 157.

  Defendant's right not violated where defendant did not assert or show that a "distinctive group" was underrepresented in the pool of potential jurors initially selected in the case.  98 H. 1, 41 P.3d 157.

  Where defendant failed to satisfy defendant's burden of establishing a prima facie showing that the possibility of juror misconduct could have substantially prejudiced defendant's right to a fair trial by an impartial jury, the trial court did not abuse its discretion by denying defendant an evidentiary hearing on defendant's motion for a new trial.  103 H. 285, 81 P.3d 1200.

  Where, even if juror was sleeping and did not hear a portion of defense counsel's closing argument, juror was given correct instruction, and presumably juror followed it; thus, based on the totality of circumstances, the prosecution met its burden in establishing that the alleged deprivation of the right to a fair trial was harmless beyond a reasonable doubt.  108 H. 474, 122 P.3d 254.

  Where juror nine's statement that defendant had "been in trouble before" concerned a highly inflammatory and prejudicial prior crime that had been ruled inadmissible, and the circuit court had instructed the jury to disregard the statement, the evidence was not so overwhelming as to outweigh the prejudice of juror nine's statement; thus, when viewed with the trial evidence and statements of other jurors during voir dire, juror nine's statements were insurmountably prejudicial, there was a reasonable possibility that it contributed to defendant's conviction, and the circuit court abused its discretion in denying a motion for a new trial.  126 H. 383, 271 P.3d 1142 (2012).

  Where record did not reflect that the jury was informed of the act that corresponded to each count, and the family court was required to provide the jury with a specific unanimity instruction, and its failure to do so constituted error, because the one-to-one relationship between counts and acts was made clear to the jury, and the jury found defendant guilty on nineteen counts for which nineteen exhibits were presented at trial, there was no genuine possibility that different jurors concluded that the defendant committed different acts; thus, error was harmless beyond a reasonable doubt.  127 H. 20, 276 P.3d 589 (2012).

  Where defendant was present when the trial court read the newspaper publicity statement to prospective jurors, and could have, but did not, object to the court's reading of the statement, appeals court did not err in concluding that defendant forfeited defendant's objection concerning the publicity statement.  127 H. 91, 276 P.3d 660 (2012).

  Where, (1) as an officer of the court, counsel was bound to respect the law as embodied in the jury instructions, and counsel's argument to the jurors encouraged disdain for the law, (2) no curative instruction was given by the court, and (3) the evidence in the case was not so overwhelming as to outweigh the effect of the misconduct, there was a reasonable possibility that prosecutor's improper remarks might have contributed to defendant's conviction and were thus not harmless beyond a reasonable doubt.  127 H. 432, 279 P.3d 1237 (2012).

  Where prosecutor advised the jury during closing argument that the jury instructions were "mumbo jumbo", that the jury instructions could be "put aside", and that the jurors could decide the question of guilt based on their "gut feeling", prosecutor's remarks constituted prosecutorial misconduct as the prosecutor reinforced the proposition that the jurors could disregard the law embodied in the instructions and improperly invited the jury to base its verdict on considerations other than the evidence in the case.  127 H. 432, 279 P.3d 1237 (2012).

  Failure to inquire into circumstances of statement overheard by juror, and reliance on juror's own determination of ability to remain impartial while unaware of influences is reversible error.  2 H. App. 643, 639 P.2d 413.

  Not violated by bailiff's statement to jury foreperson that jurors should all agree with verdict if polled.  6 H. App. 320, 721 P.2d 718.

  Where trial court found statements of jurors on voir dire credible, statements were sufficient to establish beyond reasonable doubt that defendant was not denied an impartial jury.  85 H. 49 (App.), 936 P.2d 1297.

  Where State failed to rebut presumption of prejudice to defendant resulting from juror's improper investigation of details concerning defendant's welfare status, court properly granted motion for new trial.  89 H. 215 (App.), 971 P.2d 304.

  Plain error where trial court's answer to jury communication was prejudicially insufficient, misleading and affected defendant's constitutional right to a unanimous verdict as jury may have wrongly believed based on court's answer that if they failed to reach unanimous agreement as to the affirmative defense of entrapment, the defense was not applicable and a guilty verdict was required.  90 H. 489 (App.), 979 P.2d 85.

  Where prosecutor referred to defendants' race in opening statement, there was no curative instruction given to address the inflammatory comment, trial court overruled defense counsel's timely objection, and the case against defendants, which hinged on the credibility of complainant, was not so overwhelming as to outweigh the inflammatory comment, prosecutor's references to race might have contributed to the convictions of defendants; thus, convictions set aside.  98 H. 358 (App.), 48 P.3d 605.

  Defendant's right to a fair trial not violated where the record in the case did not indicate that juror was incompetent, unable to understand the proceedings, and unable to participate in deliberations.  120 H. 94 (App.), 201 P.3d 607.

 

Jury trials.

  Error to play tape recording without defendant's waiver of right to be present, but error harmless.  781 F.2d 740.

  Defendant's sentence violated the Sixth Amendment, where defendant was sentenced under a mandatory sentencing regime, the district judge departed upward under a section of the U.S. sentencing guidelines based on judicially determined facts, and the actual sentence exceeded the maximum authorized at the time based solely on the jury's verdict.  425 F.3d 602.

  Jury trials not required in "petty" offenses.  51 H. 612, 466 P.2d 422.

  Announcement of waiver by counsel in open court in the presence of accused is effective waiver.  53 H. 551, 497 P.2d 1360.

  Demand in open court for jury-waived trial by accused's counsel in accused's presence constitutes waiver of right to jury trial.  54 H. 28, 501 P.2d 977.

  Court's refusal to allow voir dire inquiries into specific possible prejudices of prospective jurors upheld as within discretion.  57 H. 492, 559 P.2d 728.

  Deferred acceptance of guilty plea program does not impose an impermissible burden on exercise of right to trial by jury.  58 H. 304, 568 P.2d 1194.

  Criteria to determine whether offense is petty or serious; person charged with petty misdemeanor carrying maximum penalty of thirty days confinement, a fine, or both, is not entitled to jury trial.  64 H. 374, 641 P.2d 978.

  Only if proceeding is criminal is right to jury dependent on magnitude of penalty imposed.  66 H. 461, 667 P.2d 783.

  Driving while intoxicated is serious offense.  68 H. 38, 704 P.2d 883.

  Waiver of right to jury trial cannot be presumed by silent record.  73 H. 217, 830 P.2d 512.

  Because the record was silent as to any colloquy between court and defendant, counsel's waiver of client's right was invalid, violating defendant's right to trial by jury under Sixth Amendment and article I, §14 of Hawai‘i constitution. 75 H. 118, 857 P.2d 576.

  No right to a jury trial for a first-offense DUI under §291-4, as amended by Act 128, L 1993.  76 H. 360, 878 P.2d 699.

  Where no term of imprisonment was authorized under §266-25 for violation of administrative rule regulating boat moorings, violation a presumptively petty offense for which right to jury trial did not attach; consideration of other relevant factors failed to overcome presumption.  84 H. 65, 929 P.2d 78.

  Under totality of facts and circumstances, defendant knowingly and voluntarily waived right to jury trial; defendant was aware of right, articulated to trial court the difference between a jury trial and judge trial, defendant's counsel stated counsel had explained difference to defendant, and defendant affirmatively indicated to trial court that waiver was voluntary and a result of defendant's own reflection.  93 H. 63, 996 P.2d 268.

  There is no constitutional right to a jury trial for a first-time driving under the influence of drugs offense under §291-7 (1993) as the offense is a "petty" and not "serious" offense.  97 H. 259, 36 P.3d 803.

  Where record indicated that trial court conducted a colloquy with defendant regarding defendant's right to a trial by jury and that defendant orally waived this right, defendant subsequently failed to overcome burden of proving by a preponderance of the evidence that defendant's waiver of right to jury trial was involuntary.  99 H. 312, 55 P.3d 276.

  Trial court did not err in sentencing defendant to extended terms of imprisonment as a "multiple offender" pursuant to §706-662(4)(a); without this finding that the defendant committed a previous felony, notwithstanding that such an extended term may be considered "necessary for protection of the public", a judge would not be authorized to impose it; and extended term sentencing did not run afoul of this Amendment as interpreted by the U.S. Supreme Court in Apprendi v. New Jersey.  110 H. 79, 129 P.3d 1107.

  Inasmuch as §706-662 authorizes the sentencing court to extend a defendant's sentence beyond the "standard term" authorized solely by the jury's verdict by requiring the sentencing court, rather than the trier of fact, to make an additional necessity finding that does not fall under Apprendi's prior-or-concurrent-convictions exception, §706-662 is unconstitutional on its face; thus, defendant's extended term sentences imposed by the trial court violated defendant's right to a jury trial and were illegal.  115 H. 432, 168 P.3d 562.

  Appeals court did not err in affirming trial court's imposition of a consecutive term of imprisonment for attempted first degree sex assault where none of defendant's other individual prison terms exceeded the statutory maximum for each applicable offense.  121 H. 339, 219 P.3d 1126 (2009).

  No constitutional right to trial without a jury.  2 H. App. 506, 635 P.2d 244.

  Only way in which remittitur can be granted is as alternative to new trial since otherwise right to trial by jury would be taken away by the court.  2 H. App. 506, 635 P.2d 244.

  Defendant must personally give oral or written waiver of right to jury trial; waiver by defense counsel not valid in absence of any colloquy between court and defendant.  80 H. 372 (App.), 910 P.2d 143.

  Right not erroneously denied where plaintiff missed ten-day jury demand deadline under DCRCP rule 38(b) without adequate excuse.  83 H. 50 (App.), 924 P.2d 544.

  Where trial judge failed to engage in a colloquy with defendant to ensure that the waiver of jury trial was intelligent, knowing and voluntary, and defendant's counsel did not represent in open court that defendant was aware of defendant's right to a jury trial, under the totality of circumstances, trial court failed to obtain a valid waiver of defendant's right to a jury trial.  98 H. 77 (App.), 42 P.3d 654.

  Under the totality of the circumstances, where defendant's express waiver of a jury trial was consistently clear, direct, and unequivocal throughout the entire colloquy, defendant orally waived right to trial by jury, and failed to demonstrate by a preponderance of the evidence that this waiver was involuntary.  105 H. 160 (App.), 95 P.3d 14.

  Where maximum time in jail for a violation of a Hawaii administrative rule was thirty days and notwithstanding that defendant was subject to a possible maximum fine of $18,000, defendant's offense was "petty" for Sixth Amendment purposes; thus, defendant had no right to a jury trial under the U.S. Constitution.  105 H. 342 (App.), 97 P.3d 418.

  Based on the totality of the circumstances, defendant failed to establish that the waiver of defendant's right to a jury trial was involuntary or improper; the family court's mass advisement, in conjunction with the family court's individualized colloquy of defendant, sufficiently apprised defendant of defendant's constitutional right to a jury trial, and defendant knowingly, intelligently, and voluntarily waived this right.  108 H. 300 (App.), 119 P.3d 608.

  Defendant did not have a constitutional right to a jury trial for a violation of §852-1, refusal to provide ingress or egress while walking a labor picket line, where the maximum punishment was thirty days in jail or a $200 fine, or both, and violation was thus a petty misdemeanor under §701-107(4).  110 H. 139 (App.), 129 P.3d 1167.

 

Public trial.

  Defendant waived right to testify.  883 F.2d 750.

  District court's exclusion of spectators during brief mid-trial questioning of jurors to determine if they were concerned for their safety was so trivial as to not implicate defendant's Sixth Amendment rights.  316 F.3d 955.

  Defendant who intentionally failed to appear at trial waived Sixth Amendment rights to appear.  666 F. Supp. 1432.

  Courts are open to the public subject to the supervision of the presiding judge and there was no error in court's refusal to clear courtroom of police recruits.  47 H. 185, 389 P.2d 146.

  Defendant's right to be present at all stages of trial; voluntary absence.  58 H. 425, 570 P.2d 848.

  Court's authority to close judicial proceedings.  59 H. 224, 580 P.2d 49.

  Defendant entitled as of right to public trial but not to private trial.  59 H. 224, 580 P.2d 49.

  Manner in which defendant's family was excluded from courtroom violated defendant's right to a public trial.  91 H. 181, 981 P.2d 1127.

  The right to a public trial is not implicated by the exclusion of a potential witness pursuant to the witness exclusionary rule; both the witness exclusionary rule and the right to a public trial ensure the appearance of fairness at trial; thus, defendant's right not violated by exclusion of defendant's father from the courtroom as a potential prosecution rebuttal witness.  97 H. 206, 35 P.3d 233.

  Defendant's constitutional rights to a public trial were not implicated when the jury was allowed to deliberate, communicate, and return its verdict after normal business hours, when the courthouse was closed to the public, because the closure "was too trivial to implicate the constitutional guarantees".  112 H. 343 (App.), 145 P.3d 886.

 

Right to be informed.

  Indictment that charged defendant with "murder-for-hire" may not have given defendant notice that defendant must be prepared to meet a murder charge based on accomplice liability.  807 F.2d 805.

  Traffic citation issued to defendant on a military installation, referencing only Hawaii state law (§291C-102) and reciting the facts of defendant's speeding violation, provided insufficient notice to defendant that defendant faced a criminal violation of federal law.  537 F. Supp. 2d 1116.

  Not violated where burglary indictment alleged all elements of the crime and record indicated the specific crime intended to be committed, though specific crime not alleged.  66 H. 312, 660 P.2d 39.

  Indictment charging general intent crime need not contain a particularized allegation of general intent.  66 H. 650, 672 P.2d 554.

  Not violated where indictment alleged all elements of the crime and record indicated the specific crime intended to be committed, though specific crime not alleged.  67 H. 105, 678 P.2d 1078.

  Not violated though indictment stated in disjunctive, where it tracked definition of crime and record indicated specific crime committed.  67 H. 119, 680 P.2d 250.

  Accomplice instruction improper where each defendant was charged separately and charges did not inform them of circumstances in which they acted as accomplices.  72 H. 278, 815 P.2d 428.

  Section 485-21 provides an essential element of offense charged, when a defendant is charged with a criminal violation of Uniform Securities Act; counts of indictment, which cited to §485-21, were insufficient, as counts did not include essential elements of offenses charged. 78 H. 373, 894 P.2d 70.

  Although prosecution's oral charge failed to include the word "bodily" to modify "injury", the omission did not alter the nature and cause of the accusation such that a person of common understanding would fail to comprehend it; thus, the oral charge was not so obviously defective that by no reasonable construction could it be said to charge the offense for which conviction was had; because omission of the word "bodily" did not constitute an essential element of the offense, harmless error.  99 H. 312, 55 P.3d 276.

  Violated where minutes before trial was to commence, complaint against defendant amended from driving while license suspended to driving without a license.  81 H. 76 (App.), 912 P.2d 573.

 

Right to counsel.

  Defendant's out-of-court statement, see notes to Amendment 5.

  Pretrial voice identifications are not "critical stages" of the criminal proceeding in which defendant entitled to presence of counsel.  577 F.2d 473.

  Defendant not prejudiced by errors of counsel.  652 F.2d 1369.

  No showing of knowing and intelligent waiver.  672 F.2d 720; 4 H. App. 614, 672 P.2d 1036.

  Government has burden of showing that defendant was represented by counsel or waived that right if representation at time of earlier conviction is raised as issue.  799 F.2d 1401.

  Defense counsel's performance deficient because of erroneous advice regarding effect of defendant's conviction and likely sentence if defendant pled guilty.  800 F.2d 861.

  Ineffective assistance of counsel.  817 F.2d 1352.

  Miranda warning failed to adequately inform defendant of right to counsel; adequacy of Miranda warning is a question of law.  869 F.2d 1349.

  Defendant convicted of wilfully failing to file income tax returns knowingly and intelligently chose to exercise right to defend self.  941 F.2d 893.

  Uncounseled misdemeanor convictions may not be used to enhance sentence of later conviction.  957 F.2d 714.

  Violation of attorney-client privilege implicates constitutional right to counsel only when government interferes with relationship between criminal defendant and attorney resulting in substantial prejudice to defendant.  961 F.2d 852.

  Counsel's absence from portion of post-charge lineup proceeding violated defendant's right to counsel; government has affirmative duty to ensure counsel's presence at entire proceeding.  998 F.2d 1460.

  Defense counsel's failure to object to conduct of voir dire and to lack of certain jury instructions, and failure to place more emphasis on certain evidence did not fall below level of professional competence.  1 F.3d 855.

  Where defendant remains silent in face of defendant's attorney's decision not to call defendant as a witness, defendant has waived right to testify.  3 F.3d 1239.

  Right not violated by §291-4.5 mandatory imposition of prison sentence for driving motor vehicle with revoked license.  26 F.3d 920.

  Not violated where defendant who raised no objection at trial to multiple representation failed to show that an actual conflict of interest adversely affected defendant's lawyer's performance.  55 F.3d 1410.

  Corporation may use writ of coram nobis to raise ineffective assistance claim.  65 F.3d 1531.

  No violation of right to conflict-free counsel where defendant who raised no objection at trial failed to demonstrate that an actual conflict adversely affected defendant's lawyer's performance.  65 F.3d 1531.

  Appellants' right to conflict-free representation not impaired by trial court's order, where court asked defense counsel to designate one attorney to conduct "main" cross-examination into basic issues.  127 F.3d 791.

  Sixth Amendment guarantee of competent counsel applies to process of cooperation with government because this is a critical stage of the proceeding for those charged with federal crimes.  District court's decision not to grant an evidentiary hearing was an abuse of discretion; defendant's factual allegations, taken as true, stated a claim for relief based on defendant's attorney's failure to be a meaningful advocate during defendant's attempted cooperation, and the effect this failure likely had on the government's decision not to make a substantial assistance motion.  326 F.3d 1111.

  Where defendant alleged that defendant's attorney rendered ineffective assistance by failing to advise defendant to plead guilty immediately after defendant's arrest, the attorney's conduct did not constitute ineffective assistance.  326 F.3d 1111.

  Standard for habeas corpus due to lack of effective counsel: whether, with reasonably competent counsel, it is more likely than not that jury would have acquitted or convicted of a lesser offense.  488 F. Supp. 1384.

  Not violated by transfer of defendants to federal correctional facility on U.S. mainland pending trial.  778 F. Supp. 21.

  Sixth Amendment rights not violated, where defendant was charged with conspiracy to distribute drugs and obstruction of justice concerning possible money laundering offenses, and defendant's conversations did not concern drug conspiracy charge.  961 F. Supp. 1398.

  Government's request that court require defendant to waive Sixth Amendment right to effective assistance of counsel on issue of inadvertent disclosure of defendant's supplemental ex parte application for funds for mitigation investigation or compel defendant to seek new counsel was not justified, where, inter alia, any claim of ineffective assistance of counsel based on inadvertent service of application would be purely retrospective, and although defendant may choose to waive any claim for ineffective assistance of counsel, if any, that defendant might have, court could not compel defendant to waive defendant's claim.  58 F. Supp. 2d 1153.

  Where petitioner alleged, among other things, that petitioner's attorney was ineffective by failing to fully investigate mitigating defense of extreme mental or emotional distress until the eve of trial, subsequently failing to seek continuance of trial to investigate the defense, (1) presumption of prejudice was inappropriate, and (2) petitioner's argument that attorney's deficient performance prejudiced petitioner's trial, rejected.  128 F. Supp. 2d 650.

  Where petitioner argued that appellate counsel was ineffective for failing to raise petitioner's Brooks claim on direct appeal, the trial record was clear that the Brooks claim had merit; thus, it was unreasonable and prejudicial to petitioner that appellate counsel did not raise it.  23 F. Supp. 3d 1182 (2014).

  Does not apply to habeas corpus proceedings.  51 H. 318, 459 P.2d 376.

  Right to counsel at interrogation is applicable to trials begun after date of Miranda decision and right to counsel at police lineups is applicable to trials begun after decision in U.S. v. Wade, 388 U.S. 218.  51 H. 318, 459 P.2d 376.

  Applies at arraignment unless right is intelligently waived.  51 H. 322, 459 P.2d 382.

  When Hawaii was a territory, the Sixth Amendment applied and rendered invalid a conviction on a guilty plea entered without assistance of counsel.  51 H. 322, 459 P.2d 382.

  Where right is a constitutional requisite, it does not depend upon request and presuming waiver from silent record is impermissible.  51 H. 322, 459 P.2d 382; 52 H. 420, 477 P.2d 630.

  When Hawaii was a territory, Sixth Amendment applied directly, and indigent defendant had constitutional right to court-appointed counsel when entering pleas at arraignment, unless defendant waived defendant's right.  52 H. 420, 477 P.2d 630.

  Where record is silent, presumption is that defendant did not enter guilty plea voluntarily and understandingly.  52 H. 420, 477 P.2d 630.

  Defendant is entitled to effective assistance of counsel and is entitled to fair hearing on defendant's objections to appointed counsel.  52 H. 484, 479 P.2d 207.

  Right means effective assistance of counsel.  54 H. 28, 501 P.2d 977.

  To show deprival of effective assistance of counsel due to denial of continuance following change in court-appointed counsel, defendant must show actual prejudice.  54 H. 502, 510 P.2d 494.

  Prerequisites for waiver of counsel and acceptance of guilty plea.  55 H. 336, 519 P.2d 892.

  Honolulu Police Department Form 81 accepted as sufficient with respect to right to counsel warnings.  56 H. 428, 539 P.2d 1200.

  Failure of counsel to raise issue in briefs was not denial of effective counsel if issue presented orally.  56 H. 675, 548 P.2d 268.

  Right to counsel is waivable if voluntary and intelligently undertaken.  57 H. 46, 549 P.2d 727.

  When appellate court can determine voluntariness of waiver of counsel from the record, defendant has burden of proof that waiver was involuntary.  57 H. 354, 556 P.2d 577.

  Right means effective assistance of counsel; test to determine adequacy of counsel.  60 H. 17, 586 P.2d 1028.

  To establish inadequacy of counsel, it must be shown that counsel acted unreasonably and through constitutionally inadequate preparation.  60 H. 259, 588 P.2d 438.

  Defendant is entitled to a fair and reasonable time to prepare a defense and to allow counsel to prepare for trial.  60 H. 493, 591 P.2d 119.

  Opportunity for closing summation cannot be denied, but court has broad discretion to control duration and scope of closing arguments.  61 H. 233, 602 P.2d 520.

  Does not mean errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective counsel.  62 H. 120, 612 P.2d 526.

  Attaches in all trials of offenses punishable by imprisonment.  62 H. 298, 614 P.2d 397.

  To establish ineffectiveness of counsel, appellant must establish:  (1) specific errors or omissions reflecting lack of skill, judgment or diligence; (2) errors or omissions resulted in withdrawal or substantial impairment of a potentially meritorious defense.  62 H. 346, 615 P.2d 101.

  Effective assistance of counsel.  62 H. 620, 618 P.2d 301; 64 H. 62, 636 P.2d 742; 5 H. App. 20, 686 P.2d 28.

  Effective assistance--judgment of counsel to stipulate into evidence testimony of State's witness was within range of required competence.  62 H. 646, 618 P.2d 1142.

  No right to assistance of counsel at a showup conducted after the arrest of the accused but before indictment or formal charge.  63 H. 354, 628 P.2d 1018.

  Incriminating statements not "deliberately elicited" by informant.  64 H. 522, 644 P.2d 964.

  Not violated when suspect first requested counsel, then initiated further contact and made a statement after being advised by counsel not to do so.  66 H. 162, 657 P.2d 1044.

  Attorney's failure to call witnesses denied effective assistance of counsel.  68 H. 14, 701 P.2d 1287.

  Not violated by denial of funds to hire mental health expert to assist defense where defendant already examined.  68 H. 246, 710 P.2d 1193.

  Effective assistance of counsel denied where defense counsel caused introduction of highly prejudicial and otherwise inadmissible evidence.  68 H. 304, 712 P.2d 496.

  Defendant waived right to counsel.  69 H. 473, 747 P.2d 1276.

  Right to counsel for indigent defendant in misdemeanor cases.  71 H. 147, 785 P.2d 1311.

  Claim that failure to call expert witnesses to rebut State's DNA profiling evidence introduced at motion in limine constituted ineffective assistance of counsel was meritless.  73 H. 130, 828 P.2d 1274.

  Counsel was not ineffective in failing to raise contention that defendant had not waived right to be present at trial where defendant had voluntarily absented oneself after trial had begun.  73 H. 147, 828 P.2d 281.

  Defendant has burden to establish ineffective assistance of counsel and meet two-part test; under Hawaii constitution, defendant afforded greater protection of right to effective assistance of counsel than under U.S. Constitution.  74 H. 54, 837 P.2d 1298.

  No denial of effective assistance of counsel where counsel waived defendant's presence at conference settling jury instructions, withdrew insanity defense, and failed to object to examiner's testimony.  74 H. 141, 838 P.2d 1374.

  Where petitioner's convictions on counts I (attempted first degree murder), II (second degree murder), and III (attempted second degree murder) violated §701-109(1)(c)'s clear prohibition against inconsistent factual findings, the failure to raise this issue, both at trial and on appeal, resulted in withdrawal of not only a potentially meritorious defense, but a defense that would have altered the outcome.  74 H. 442, 848 P.2d 966.

  Post-conviction ineffective assistance of counsel HRPP rule 40 petition not prejudiced where defendant alleges facts that, if proven, would entitle defendant to relief and claim is not patently frivolous and without trace of support in the record.  75 H. 419, 864 P.2d 583.

  Trial counsel's alleged errors did not constitute ineffective assistance of counsel where defendant argued, inter alia, that trial counsel should have obtained expert analysis of white powder defendant provided to undercover police officer to determine how much "pure" cocaine it contained; rejection of defendant's claim that trial counsel's failure to interview and subpoena defendant's girlfriend amounted to ineffective assistance was without prejudice to a subsequent HRPP rule 40 petition.  77 H. 72, 881 P.2d 1218.

  A proceeding to review revocation of a driver's license under §286-259 is a civil administrative proceeding, not a criminal proceeding for DUI; thus, accused's right to assistance of counsel inapplicable to administrative driver's license revocation hearing.  80 H. 197, 908 P.2d 545.

  Knowing, intelligent and voluntary waiver of right to counsel where, inter alia, defendant persistently refused legal assistance despite court's repeated invitation and amply demonstrated capacity to proceed pro se.  81 H. 198, 915 P.2d 672.

  No ineffective assistance of counsel where defense counsel's failure to object to prosecution witnesses' testimony did not result in the withdrawal or substantial impairment of a meritorious defense.  81 H. 293, 916 P.2d 703.

  No ineffective assistance where defense counsel's opening statement reflected an accurate understanding of defendant's and victim's rendition at trial of events surrounding incident in question.  83 H. 289, 926 P.2d 194.

  Defendant knowingly, intelligently, and voluntarily waived rights to counsel and to remain silent and voluntarily gave statement to police where defendant was calm and lucid during taped interview, indicated medication did not affect thinking or judgment, never expressed desire to terminate interview, and was particularly sophisticated with respect to criminal process and rights of accused.  83 H. 308, 926 P.2d 599.

  Judicial determination of probable cause proceeding is not a "critical stage" in criminal proceedings such that Sixth Amendment right to counsel attaches automatically.  83 H. 443, 927 P.2d 844.

  Where attorney-client privilege was not applicable to communications because they were not "confidential" but "voluntarily disclosed" in known presence of third party who was neither codefendant nor representative of the client or of the lawyer and in a place accessible to the general public, right to effective assistance not violated.  84 H. 229, 933 P.2d 66.

  No ineffective assistance by counsel's failure to obtain witnesses' testimony on Japanese organized crime where counsel could not have known trial court would refuse to qualify one as expert, other witness fell ill, and testimony would not have been enough to support duress defense.  85 H. 462, 946 P.2d 32.

  Where defendant could have challenged the validity of the search warrant if given a range of dates of the observations by prosecution's confidential informant and defendant's attorney could file the appropriate pre-trial motions and prepare for trial without the exact dates, right to effective assistance of counsel not violated by defendant not knowing the exact dates of the observations.  88 H. 396, 967 P.2d 228.

  No ineffective assistance where counsel was able to negotiate a plea agreement of essentially a single life term with possibility of parole from a possible sentence of 610 years.  91 H. 20, 979 P.2d 1046.

  No ineffective assistance where counsel's representation, including disclosing defendant's prior criminal history, did not result in the withdrawal or substantial impairment of a potentially meritorious defense; overwhelming nature of evidence against defendant and failure of self-defense claim warranted conviction.  91 H. 261, 982 P.2d 890.

  Right to assistance of counsel and to present a defense not violated by trial court's refusal to allow defendant to present oral argument on motion for judgment of acquittal; no constitutional right to argue a motion for judgment of acquittal.  91 H. 288, 983 P.2d 189.

  No ineffective assistance where record did not support defendant's claim that defendant's attorney failed to follow through on mental examination report, failed to pursue extreme mental or emotional disturbance defense, and should have called in a mental health professional at suppression hearing.  92 H. 19, 986 P.2d 306.

  An attorney "employed and paid by the county" for the benefit of a police officer, to defend the officer in a criminal case pursuant to §52D-8 and in related civil cases, in which the county has asserted claims adverse to the officer, is not per se, by virtue of such employment and payment, deemed ineffective counsel.  95 H. 9, 18 P.3d 871.

  Defendant was entitled to a hearing on question of whether counsel who filed motion to withdraw guilty plea should have been substituted as counsel of record before trial court summarily denied defendant's motion on the ground that a withdrawal and substitution of counsel had not been filed under HRPP rule 57.  95 H. 177, 19 P.3d 1289.

  Ineffective assistance where defense counsel failed to object to the prosecution's premature elicitation of testimony regarding defendant's prior conviction during its redirect examination of officer before defendant had "introduced testimony for the purpose of establishing defendant's credibility as a witness," as required by HRE rule 609(a).  96 H. 83, 26 P.3d 572.

  Where consolidation of attempted first degree murder cases with murder case was not improper, the charge of first degree robbery did not fail to state an offense, and the trial court's limiting instructions regarding "other bad acts" evidence was not inadequate or untimely, no ineffective assistance of counsel.  99 H. 390, 56 P.3d 692.

  Ineffective assistance of counsel as defense counsel's errors and omissions resulted in the possible impairment of a potentially meritorious defense, defense counsel failed to object to prosecution's rebuttal argument commenting on defendant's failure to testify and counsel intentionally elicited detective's opinion that defendant had murdered defendant's wife.  102 H. 504, 78 P.3d 317.

  Where a HRPP rule 40 petition raises a colorable claim of ineffective assistance of counsel, the trial court must hold an evidentiary hearing; the hearing on petitioner's claims related to petitioner's multiple sclerosis evidence, other than petitioner's own trial testimony, should have been held, as trial counsel's failure to present evidence that would have further excluded petitioner as the perpetrator – that petitioner could not have run as fast as perpetrator did – would have at least possibly affected the jury's verdict and did in fact result in the possible impairment of a potentially meritorious defense.  116 H. 106, 170 P.3d 357.

  Appellant has burden of establishing ineffective assistance of counsel; burden, how met.  1 H. App. 255, 617 P.2d 1235; 1 H. App. 268, 618 P.2d 315.

  Counsel's failure to object to prosecutor's questions or to move for mistrial or to strike as constituting ineffective assistance of counsel.  1 H. App. 536, 621 P.2d 986.

  No per se right on the part of an indigent defendant to change counsel in middle of trial.  2 H. App. 462, 634 P.2d 421.

  Dismissal of indictment not appropriate remedy for violation absent showing of prejudice or substantial threat thereof.  3 H. App. 107, 643 P.2d 807.

  Not violated where imprisonment authorized but not imposed.  3 H. App. 673, 657 P.2d 1062.

  Right to effective assistance of counsel was violated by defense counsel's prior and concurrent representation of prosecution witnesses in other matters.  4 H. App. 327, 666 P.2d 612.

  Infringement of right presumed prejudicial and State must rebut presumption and prove error was harmless beyond a reasonable doubt.  4 H. App. 614, 672 P.2d 1036.

  No right to counsel at post-arrest photographic display.  5 H. App. 127, 681 P.2d 573.

  Standard for effective assistance of appellate counsel; right not violated.  6 H. App. 331, 720 P.2d 1015.

  No right to hybrid representation.  8 H. App. 330, 802 P.2d 482.

  Whether person arrested on basis of indictment and advised of and waived right to counsel under Miranda v. Arizona but not advised of right under Sixth Amendment and article I, §14 of Hawaii constitution, has also knowingly and intelligently waived right under the two provisions, discussed.  9 H. App. 447, 845 P.2d 1194.

  The court's assumption of defense counsel's role by persuading defendant to relinquish defendant's right to testify was an interference with the attorney-client relationship protected by Sixth Amendment and article I, §14 of Hawai‘i constitution; the intervention by the court constituted plain error; the error was prejudicial and not harmless beyond a reasonable doubt.  78 H. 115 (App.), 890 P.2d 702.

  Absent valid waiver of right, use of prior uncounseled felony convictions to enhance prison sentence violated defendant's right to counsel.  81 H. 421 (App.), 918 P.2d 228.

  No ineffective assistance of counsel where counsel's failure to request trial continuance when police officer was unavailable to testify at trial did not result in prejudice to defendant.  82 H. 394 (App.), 922 P.2d 1007.

  No ineffective assistance where, inter alia, defendant's counsel adequately prepared for trial, did not fail to offer motion to sever trials, and no evidence that fact that defendant's counsel was not lead counsel was prejudicial to defendant's entrapment defense.  82 H. 499 (App.), 923 P.2d 916.

  No ineffective assistance where there was sufficient evidence to convict defendant as accomplice to second degree murder such that motion for judgment of acquittal would not have succeeded.  84 H. 112 (App.), 929 P.2d 1362.

  Where right attached at the initiation of adversarial judicial criminal proceedings, and not at the point of the DUI arrest, police did not have to give Miranda-like warnings about right to counsel at the point of the DUI arrest.  94 H. 17 (App.), 7 P.3d 193.

  Right not violated by trial court's denial of defendant's motion to withdraw and substitute counsel as there was no good cause to warrant substitution where, despite being advised of its inadmissible nature, defendant insisted attorney proffer character evidence and character witnesses at trial, there was no "complete breakdown of trust and confidence" between attorney and defendant, and defendant elected to continue with attorney, without further protest, and did not aver that defendant wanted to go to trial pro se.  101 H. 112 (App.), 63 P.3d 420.

  Where defendant had not been charged with any crime when defendant gave defendant's statement, defendant's right not violated.  101 H. 344 (App.), 68 P.3d 618.

  Ineffective assistance of counsel where public defender (PD) mistakenly concluded that HRPP rule 16 required PD to turn over defendant's toxicology report to the State and failed to realize that by doing so, PD was waiving defendant's physician-patient privilege, and PD's errors substantially impaired defendant's potentially meritorious defense as evidence that defendant tested positive for cocaine undermined the credibility of the defendant.  107 H. 282 (App.), 112 P.3d 768.

  Where record showed that trial court judge was extraordinarily patient and accommodating with defense counsel and that if defense counsel had wanted to make a closing argument, the judge would not have denied that request, defendant waived defendant's right to make a closing argument and court's failure to affirmatively offer defendant's counsel the opportunity to present a closing argument at trial did not deprive defendant of right to present a closing argument.  110 H. 284 (App.), 132 P.3d 852.

  The Hawaii paroling authority minimum-term hearing is a critical stage of the criminal proceeding and a convicted person is constitutionally entitled to be represented at the hearing by counsel; where defendant's rule 40 petition presented a colorable claim that defendant was denied the effective assistance of counsel at defendant's minimum-term hearing and did not knowingly and intelligently waive right to counsel, trial court erred in summarily denying the petition.  112 H. 446 (App.), 146 P.3d 606.

  No ineffective assistance of counsel where consideration of all the circumstances, including a waiver by client of a conflict of interest on the part of client's attorney and a power of attorney to pay for attorney's legal services, showed that attorney did not have an actual conflict of interest between client's interest and attorney's interest.  126 H. 247 (App.), 269 P.3d 782 (2012).

  No ineffective assistance of counsel where nothing in the record indicated that attorney's obligations extended any further than informing defendant that deportation was a possible consequence of defendant's no contest plea.  126 H. 541 (App.), 273 P.3d 1227 (2012).

  Cited:  56 H. 378, 537 P.2d 1187.

 

Speedy trial.

  Despite government's negligent delay in bringing third superseding indictment, defendant not entitled to dismissal of the indictment on Sixth Amendment grounds because defendant had not shown prejudice attributable to the delay.  322 F.3d 1157.

  Right under this amendment does not arise until after formal charge or indictment is lodged; whether the delay occurring thereafter amounts to unconstitutional deprivation depends upon circumstances.  316 F. Supp. 892.

  Delay of thirty-six months between indictment and trial was not a violation of defendant's right to a speedy trial where delay was caused by the inability to locate defendant.  666 F. Supp. 1428.

  Whether preindictment delay warrants dismissal of indictment rests within the discretion of the trial court.  43 H. 203.

  Provision has no application to delay occurring when there is no pending  prosecution.  47 H. 361, 389 P.2d 439.

  Provision has no application until putative defendant becomes an accused through charge or detention.  53 H. 652, 500 P.2d 1171.

  Burden upon movant to show prima facie case.  54 H. 443, 509 P.2d 549.

  In determining whether right to speedy trial has been violated, a balancing test must be used; factors that go into such a test.  54 H. 443, 509 P.2d 549.

  Right arises only when a person becomes an accused, which occurs when an indictment or information is returned against a person or when the person becomes subject to restraints on the person's liberty imposed by arrest.  54 H. 443, 509 P.2d 549.

  No deprivation of right where delays were a result of defendant's acts or the result of benefit granted defendant.  59 H. 456, 583 P.2d 337.

  Juvenile facing criminal charges as an adult becomes an "accused" upon issuance of family court's order waiving jurisdiction.  61 H. 12, 594 P.2d 1069.

  Speedy trial clause has not been extended to the resentencing procedure, so seven-year delay between original incorrect sentence and correction did not contravene the clause.  61 H. 226, 602 P.2d 13.

  Factors considered in determining deprivation of speedy trial.  62 H. 518, 616 P.2d 1383.

  In consenting to be tried with co-defendants, defendant could not claim that co-defendant's motions were not attributable to defendant's self.  64 H. 65, 637 P.2d 407.

  One-year-and-three-week delay between arrest and trial is presumptively prejudicial.  64 H. 65, 637 P.2d 407.

  HRPP rule 48 (dismissal) has broader purpose than constitutional right to speedy trial.  73 H. 352, 833 P.2d 66.

  Defendant not deprived of right, where although the reason for the delay leaned marginally in defendant's favor, the weight attributed to that factor was offset by defendant's eleventh-hour assertion of defendant's right and defendant's failure to even attempt to demonstrate that defendant was actually prejudiced by the delay in the commencement of trial.  76 H. 415, 879 P.2d 520.

  Defendants not deprived of constitutional right to speedy trial where although the reason for the delay factor weighed in favor of the defendants, it was outweighed by the facts that defendants failed to assert their right and failed to demonstrate that they were actually prejudiced by the delay in bringing them to trial.  78 H. 54, 890 P.2d 291.

  Where defendant was substantially responsible for pretrial delay and failed to assert right to speedy trial, allowing defendant's case to proceed to trial after eleven-month delay was not error.  92 H. 192, 990 P.2d 90.

  Presumption of prejudice arising from nine-month delay between indictment and trial was rebutted by the record.  1 H. App. 31, 613 P.2d 919.

  To determine whether right to speedy trial has been denied, a balancing test is used; factors that go into such test.  1 H. App. 121, 615 P.2d 109.

  Among factors to be considered is prejudice to defendant caused by oppressive pretrial incarceration, ignominy occasioned by pending criminal charges, and difficulty of preparing for trial.  9 H. App. 232, 832 P.2d 284.

  Right not violated where delay was caused by defendant's own absence from Hawaii and consequent unavailability for trial, and defendant failed to produce evidence that defendant suffered any prejudice.  83 H. 496 (App.), 927 P.2d 1379.

  Right not violated where, although the prejudice prong of the Barker analysis weighed in favor of defendant, this prejudice was outweighed by the delay attributable to defendant and defendant's failure to demand a speedy trial; that the unavailability of victim as a witness caused the "possibility of prejudice" to defendant's defense did not support defendant's position that defendant's speedy trial right was violated.  103 H. 490 (App.), 83 P.3d 753.

 

[ARTICLE VII.--1791]

 

     In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

 

Attorney General Opinions

 

  Proposed legislation did not violate federal constitutional law to extent it diminished the number of members on jury panels in either civil or criminal trials.  Att. Gen. Op. 97-2.

 

Law Journals and Reviews

 

  Hawai‘i 2000 Report Regarding Lawyers' Opinion Letters in Mortgage Loan Transactions.  22 UH L. Rev. 347.

  Blast It All:  Allen Charges and the Dangers of Playing With Dynamite.  32 UH L. Rev. 323 (2010).

 

Case Notes

 

  Right to jury trial of defendant not affected by plaintiff's election to proceed in admiralty in action to foreclose ship mortgage.  934 F.2d 1026.

  Right to jury trial not violated by use of random sample of claimants in an aggregate trial.  910 F. Supp. 1460.

  Because 18 U.S.C. §4248 of the Adam Walsh Child Protection and Safety Act is civil and not criminal in nature, the Constitution's cruel and unusual punishment clause does not apply.  574 F. Supp. 2d 1123.

  Discussed; effect of procedural rules.  50 H. 528, 445 P.2d 376.

  Not binding on states.  53 H. 372, 493 P.2d 1032.

  Although court may set aside jury verdict, respect for the jury's assessment of the evidence is mandated.  57 H. 378, 557 P.2d 788.

  No right to jury trial in paternity action.  5 H. App. 558, 705 P.2d 535.

  Where third party leasing agents were not parties to lease agreement between landlord and tenant, express waiver of right to jury trial in agreement did not apply to those third parties.  85 H. 300 (App.), 944 P.2d 97.

  Referred to:  43 H. 246, 249.

 

 

[ARTICLE VIII.--1791]

 

     Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

 

Law Journals and Reviews

 

  State v. Kumukau:  A Case for the Application of Eighth Amendment Proportionality Analysis.  13 UH L. Rev. 577.

  Even a War Has Some Rules:  The Supreme Court Puts the Brakes on Drug-Related Civil Forfeitures.  16 UH L. Rev. 493.

  A Case for Hope:  Examining Graham v. Florida and Its Implications for Eighth Amendment Jurisprudence.  33 UH L. Rev. 391 (2010).

 

Case Notes

 

  Prison guard's alleged assault against inmate, if proved, violated inmate's Eighth Amendment right.  795 F.2d 780.

  Forfeiture under Racketeer Influenced and Corrupt Organizations Act may violate the Eighth Amendment if grossly disproportionate.  817 F.2d 1409.

  Allegation of overcrowding in a prison, without more, does not state a claim under the Eighth Amendment.  However, if the overcrowding engenders violence, tension, and psychiatric problems, then an Eighth Amendment claim may arise.  832 F.2d 119.

  Prisoner was denied adequate medical treatment.  865 F.2d 982.

  No qualified immunity on 42 U.S.C. §1983 claim for prison official who allegedly forced inmate to choose between constitutional right to outdoor recreation and law library access.  39 F.3d 936.

  Prison officials' failure to provide inmate with outdoor recreation when officials knew of prison's goal to provide five hours of exercise per week precluded summary judgment for officials claiming 42 U.S.C. §1983 qualified immunity.  48 F.3d 1082.

  Prison officials not entitled to summary judgment on claim of 42 U.S.C. §1983 qualified immunity where inmate made adequate showing of "actual injury" to court access by officials that, if true, violates clearly established constitutional rights.  48 F.3d 1082.

  No merit to claim that forfeiture of real property violated excessive fines clause, where claimant's property bore a close relationship to gambling activity, and forfeiture did not impose upon claimant a grossly disproportionate penalty.  120 F.3d 947.

  District court correctly granted defendants summary judgment on claim, where inmate argued that being labeled a sex offender and being forced to participate in sex offender treatment program violated Eighth Amendment prohibition against cruel and unusual punishment.  131 F.3d 818.

  Because three-strikes statute (18 U.S.C. §3559(c)) restricted its application to instances where both the defendants' primary and past convictions were "serious violent felonies", defendant's punishment for bank robbery was not sufficiently disproportionate to contravene Eighth Amendment.  192 F.3d 1188.

  District court properly entered summary judgment in favor of prison physician on 42 U.S.C. §1983 claim, where plaintiffs  alleged that prison physician was deliberately indifferent to prisoner's serious medical needs, by, inter alia, failing to properly monitor prisoner while prisoner was in restraints and failing to employ emergency treatment to save prisoner's life; no genuine issue of fact was raised regarding prison physician's subjective knowledge and conscious disregard of a substantial risk of serious injury to prisoner.  391 F.3d 1051.

  Appellant's sentence did not violate the Eighth Amendment, where appellant appealed the ten-year sentence imposed by the district court following appellant's guilty plea to growing 2,349 marijuana plants.  432 F.3d 937.

  Generally out-of-state transfer of prisoner is not cruel and unusual punishment.  387 F. Supp. 912; 396 F. Supp. 196.

  While defendants were denied summary judgment in the district court's proceedings on the merits of an Eighth Amendment claim in a 42 U.S.C. §1983 lawsuit seeking damages for "over detention", defendants were nonetheless entitled to qualified immunity because the duty of defendants to review plaintiffs' original court records beyond what was in plaintiffs' institutional file was not clearly established; district court's denial of summary judgment to defendants as to the issue of qualified immunity vacated and remanded.  663 F.3d 1094 (2011).

  Violated by denying inmates regular outdoor exercise and recreation.  816 F. Supp. 1501.

  Violated by use of excessive force by prison personnel against inmates.  818 F. Supp. 1333.

  Summary judgment in favor of defendant appropriate on inmate's cause of action alleging that adult correctional officer's intentional and sadistic harassment of inmate violated inmate's Eighth and Fourteenth Amendment rights.  823 F. Supp. 750.

  Defendants acted neither with deliberate indifference nor maliciously and sadistically in labeling plaintiff as sex offender.  905 F. Supp. 813.

  Where plaintiff claimed that defendants state hospital superintendent, registered nurse, and paramedical assistant manifested a deliberate indifference to plaintiff's right to be free from an unreasonable use of force, plaintiff's claims against superintendent and nurse in their individual capacities were barred by doctrine of qualified immunity.  909 F. Supp. 737.

  Forfeiture of nine properties involved in money laundering offenses did not constitute an excessive fine under the Eighth Amendment.  164 F. Supp. 2d 1196.

  Defendants-prison doctors' motion for summary judgment denied; questions of fact existed as to whether defendants-prison doctors acted with deliberate indifference to plaintiff's serious medical need for a drug.  217 F. Supp. 2d 1095.

  Because 18 U.S.C. §4248 of the Adam Walsh Child Protection and Safety Act is civil and not criminal in nature, the Constitution's cruel and unusual punishment clause does not apply.  574 F. Supp. 2d 1123 (2008).

  Defendants had not demonstrated an absence of a genuine issue of material fact, or that they were entitled to judgment as a matter of law, on the merits of an Eighth Amendment claim, in a 42 U.S.C. §1983 civil rights lawsuit brought by a former state prisoner and other allegedly similarly-situated plaintiffs primarily seeking damages for "over detention".  678 F. Supp. 2d 1061 (2010).

  Defendants were not deliberately indifferent to plaintiff pre-trial detainee where defendants failed to ensure that plaintiff received the outside services for plaintiff's pregnancy as ordered; defendants' motion for summary judgment granted as to those defendants.  760 F. Supp. 2d 970 (2010).

  Where defendant deliberately structured over one million dollars to avoid paying taxes and illegally sold dangerous Class B 1.3G fireworks "on the street" for a profit, the forfeiture of the seized property did not violate the excessive fines clause.  The forfeiture of $345,421.70 and three motor vehicles was not grossly disproportionate to the gravity of defendant's offenses.  887 F. Supp. 2d 1051 (2012).

  Defendant failed to prove defendant was intellectually disabled for purposes of the Federal Death Penalty Act of 1994 and Atkins v. Virginia; defendant remained eligible to face the death penalty.  1 F. Supp. 3d 1124 (2014).

  Cruel and unusual punishment is such that would shock conscience of reasonable persons or outrage moral sense of community.  56 H. 343, 537 P.2d 724.

  Imprisonment for possession of marijuana is not cruel and unusual.  56 H. 501, 542 P.2d 366.

  Standard for determining.  61 H. 262, 602 P.2d 914.

  Extended prison term under §706‑662 not violative.  63 H. 488, 630 P.2d 619.

  Life imprisonment with mandatory minimum of fifteen years for attempted murder of infant by abandonment was neither cruel nor unusual.  73 H. 109, 831 P.2d 512.

  Given heinous character of offenses committed and primacy of retributive, incapacitative, and deterrent objectives, prescribed punishment not so disproportionate to proscribed conduct and of such duration as to shock conscience of reasonable persons or outrage moral sense of the community.  83 H. 335, 926 P.2d 1258.

  Not violated by ninety-day suspension of driver's license under §291-4 for drunken bicyclist where:  (1) no showing that disparity of risk between drunken bicyclists and drunken automobile drivers is so great; and (2) suspension not disproportionately onerous compared to more serious crimes in same jurisdiction and for the same offense in different jurisdictions.  87 H. 249, 953 P.2d 1347.

  Not violated by trial court's refusal to find strong mitigating circumstances pursuant to §706-606.5(4) (1998) and imposition of concurrent mandatory minimum ten-year terms where defendant could have reasonably been deemed to pose a danger to society, more serious crimes by repeat offenders may be punished in Hawaii by longer mandatory minimum terms, and other jurisdictions permitted significantly lengthier sentences for repeat offenders.  93 H. 87, 997 P.2d 13.

  Chapter 846E, as applied to defendant, was not grossly disproportionate to the offenses for which defendant was convicted, as proportionality is not guaranteed under this Amendment; the question was whether the statute itself effects a punishment which was both severe and unknown to Anglo-American tradition.  105 H. 222, 96 P.3d 242.

  As imposition of one-year term of probation, subject to condition that defendant undergo sex offender evaluation and treatment, for tying up and hitting nephew with belt (1) fell within the range of punishment prescribed by the applicable statutory provisions, (2) did not shock the conscience of reasonable persons, and (3) did not outrage the moral sense of the community, it was not cruel and unusual punishment for the family court to impose this sentence.  107 H. 117, 111 P.3d 12.

  Given the destructive, deceitful, and wasteful, albeit nonviolent, character of defendant's offenses and the primacy of the retributive, incapacitative, and deterrent objectives, five consecutive ten-year terms of imprisonment did not reflect a plain and manifest abuse of discretion on the part of the trial court; such a sentence was not so disproportionate to defendant's crimes nor of such duration as to shock the conscience of reasonable persons or to outrage the moral sense of the community, in light of the developing concepts of decency and fairness.  111 H. 267, 141 P.3d 440.

  Right not violated and trial court did not abuse discretion in ordering that defendant remain shackled during sentencing hearing where transcript of sentencing hearing contained no indication that the shackling in any way inhibited defendant from understanding what was going on, asserting defendant's self or consulting with counsel, or that the shackling in any way actually influenced or inclined the trial court against defendant.  111 H. 457 (App.), 142 P.3d 1286.

  Cited:  56 H. 447, 539 P.2d 1197.

 

[ARTICLE IX.--1791]

 

     The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

 

Case Notes

 

  Right to privacy extends to decisions regarding psychiatric care and communication of personal information.  481 F. Supp. 1028.

  Plaintiff did not have standing to challenge chapter 134 on the basis of an alleged deprivation of Ninth Amendment rights.  548 F. Supp. 2d 1151.

 

[ARTICLE X.--1791]R

 

     The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

 

Law Journals and Reviews

 

  Federalism and Federal Spending:  Why the Religious Land Use and Institutionalized Persons Act of 2000 is Unconstitutional.  23 UH L. Rev. 479.

 

Case Notes

 

  Federal preemption of state health insurance law by the Employee Retirement Income Security Act of 1974 did not violate Tenth Amendment limits on Congressional authority.  442 F. Supp. 695.

  Tenth Amendment does not preclude enforcement of the Endangered Species Act where the species in question exists in nature in only one state.  471 F. Supp. 985.

  Application of maritime remedies would not directly impair State's ability to engage in traditional government functions.  557 F. Supp. 1024.

  Hawaii has power to extinguish statutory cause of action that was within its power to create.  780 F. Supp. 705.

  Court would not strike death penalty notice, as neither Hawaii state sovereignty, the Tenth Amendment, nor equal footing doctrine threatened by possibility of sentence of death.  123 F. Supp. 2d 563.

  Combat activities exception to the federal Tort Claims Act did not shield private defense contractor from liability for an alleged defective mortar cartridge which exploded unexpectedly during an army training exercise.  696 F. Supp. 2d 1163.

  Eleventh Amendment did not bar suit, against Hawaii governor, that challenged Act 189 of the 2009 Hawaii legislature (relating to real property) where the governor was "giving effect" to the challenged law; governor had direct authority over and principal responsibility for enforcing Act 189, and therefore had a sufficient connection to the enforcement of Act 189.  715 F. Supp. 2d 1115.

 

 

 [ARTICLE XI.--1798]

 

     The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

 

Law Journals and Reviews

 

  Palila v. Hawaii Department of Land and Natural Resources: State Governments Fall Prey to the Endangered Species Act of 1973.  10 Ecology Law Quarterly 281.

  Palila v. Department of Land and Natural Resources:  "Taking" Under Section Nine of the Endangered Species Act of 1973.  Comment.  4 UH L. Rev. 181.

  Courts and the Cultural Performance:  Native Hawaiians' Uncertain Federal and State Law Rights to Sue.  16 UH L. Rev. 1.

  Patricia N. v. LeMahieu:  Abrogation of State Sovereign Immunity Under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act After Board of Trustees v. Garrett.  24 UH L. Rev. 347.

  Palila, People, and Politics:  Perfect Facts, Law, and Lawsuits with Imperfect Results.  37 UH L. Rev. 245 (2015).

 

Case Notes

 

  Award of attorneys' fees to Legal Aid Society in civil rights action against State not prohibited.  611 F.2d 1302.

  Congress may provide for award of attorneys' fees against state officials acting in their official capacities.  611 F.2d 1302.

  Because true purpose of action was to recover from state treasury, failure to name State as defendant was immaterial to state defendants' Eleventh Amendment immunity.  Framing of claim as action under 42 U.S.C. 1983 does not abrogate or "override" sovereign immunity.  693 F.2d 928.

  State waived immunity where it participated in federally funded and regulated special education program for handicapped children.  727 F.2d 809.

  Did not bar action to enjoin state officials from disbursing public funds to "Hawaiians".  Principles of qualified immunity do not protect state officials from actions to enjoin exercise of authority under allegedly unconstitutional state law.  741 F.2d 1169.

  State did not waive immunity from suit by native Hawaiian group; prospective injunctive relief proper for violation of federal law by state official.  764 F.2d 623.

  Bars federal court from hearing suit against State in absence of consent in state law under which suit brought; university personnel shared State's immunity against suit.  791 F.2d 759.

  Barred action against State for allegedly violating antitrust laws by entering into exclusive franchise contract for taxi service from airport.  810 F.2d 869.

  The United States may bring suits against the State.  832 F.2d 1116.

  Bars citizen's suits for retrospective relief (damages) against state official acting in official capacity.  902 F.2d 1395.

  Native Hawaiians' claim that trustees of office of Hawaiian affairs violated Admission Act not barred where action was brought against trustees in their individual, rather than official, capacities.  928 F.2d 824.

  Grants states immunity from retroactive monetary relief in federal court.  961 F.2d 852.

  Barred inmate's suit against State and individual defendants in their official capacities, but not against individual defendants in their personal capacities.  15 F.3d 1463.

  Barred suit against state officials in official capacities for alleged breach of trust in approving third party agreements permitting agricultural use of homelands by non-native Hawaiians where plaintiffs sought only retrospective relief.  45 F.3d 333.

  Bars federal courts from deciding claims against state officials based solely on state law.  45 F.3d 333.

  State officials sued in individual capacities were entitled to qualified immunity where they reasonably believed, based on their good faith reliance on substantial legal opinion, that third party agreements permitting agricultural use of homelands by non-native Hawaiians met the statutory standard.  45 F.3d 333.

  Eleventh Amendment bar against some of the claims of an action originally brought in state court does not prevent removal of the action to federal court.  68 F.3d 331.

  State employees entitled to 42 U.S.C. §1983 qualified immunity where plaintiff did not have clearly established parental right to be free from state child care intervention in the form of suggested counseling and drug testing.  68 F.3d 331.

  Where plaintiff failed to show sufficient likelihood that state child protective services agency would violate plaintiff's privacy rights in the future, plaintiff lacked standing to seek injunctive relief against agency.  68 F.3d 331.

  Court did not lack jurisdiction because of Eleventh Amendment.  What plaintiffs objected to was not the mere occurrence of an allegedly unfair vote, but the State's decision to give effect to that vote; plaintiffs sought prospective, not retrospective, relief.  140 F.3d 1218.

  Where defendants ("State") appealed denial of State's motion for partial summary judgment on question whether punitive damages are available against a state under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, and urged panel to ground its subject matter jurisdiction in Cohen collateral order doctrine, State failed to satisfy third criterion of Cohen test, rendering district court's order denying State's motion an unappealable collateral order; State was not claiming sovereign immunity from suit in federal court; State invoked Eleventh Amendment merely as a defense to liability for punitive damages under Title II and Section 504.  165 F.3d 1257.

  Did not bar plaintiffs' suits under Title II of the Americans with Disabilities Act or §504 of the Rehabilitation Act.  303 F.3d 1039.

  Supreme Court's conclusion that a court of appeals has jurisdiction over a district court's non-final order denying a state's claim to Eleventh Amendment immunity under the collateral order doctrine applies whether or not an Ex Parte Young claim survives the motion stage of the litigation.  309 F.3d 1203.

  Lawsuit against state officials by plaintiffs, Hawai‘i medicaid recipients who suffered from tobacco-related illnesses, not barred by sovereign immunity under the Eleventh Amendment, where plaintiffs alleged that the officials violated and continued to violate federal disbursement rules for medicaid recovery.  311 F.3d 929.

  State defendants did not waive sovereign immunity regarding appellant's state law claims by filing the third-party complaint; they had timely asserted immunity prior to filing the third-party complaint and the third-party complaint was a defensive move which was not incompatible with an intent to preserve sovereign immunity.  488 F.3d 1144.

  State of Hawaii was protected from suit by an individual, whether the individual was a citizen of another state or of Hawaii.  315 F. Supp. 729.

  A suit to restrain unconstitutional act of state officer is not a suit against the State.  402 F. Supp. 95.

  State could be enjoined from violating the Endangered Species Act and required to eradicate feral sheep and goats in critical habitat at state expense because Act expressly abrogates sovereign immunity under Eleventh Amendment.  471 F. Supp. 985.

  Actions for injunctive and declaratory relief against state officials acting in their official capacity are not barred by Eleventh Amendment.  481 F. Supp. 1028.

  State waived immunity by voluntarily coming into federal court when state courts also had jurisdiction.  531 F. Supp. 517.

  State sovereign immunity does not bar an action when official's actions violated the Constitution.  751 F. Supp. 1401.

  Bars inmate's claim for damages against state prison officials in their official capacities.  807 F. Supp. 1505.

  State defendants' motion for summary judgment granted on all claims against state officials in their official capacities, where Eleventh Amendment barred state law claims and plaintiffs sought only retrospective relief against the state officials.  824 F. Supp. 1480.

  State had not waived its sovereign immunity, thus, plaintiffs' claims against State or its agencies or departments were barred by the Eleventh Amendment.  824 F. Supp. 1480.

  Barred plaintiff's 42 U.S.C. §1983 claim and pendent state law claims against State.  874 F. Supp. 1095.

  Barred inmate's claims against State and defendants in their official capacities for alleged violations of state law and inmate's 42 U.S.C. §1983 claims for monetary relief against State and defendants in their official capacities.  902 F. Supp. 1220.

  Inasmuch as plaintiff's claims under §378-2 against the State were against a state government, they were barred in federal court by Eleventh Amendment; plaintiff's claims against state officials in their official capacities must likewise be barred.  910 F. Supp. 479.

  Plaintiff's claims for relief based on allegedly unconstitutional rule of professional conduct enforced by state officials, constituted an exception to Eleventh Amendment doctrine of sovereign immunity under Ex Parte Young.  916 F. Supp. 1525.

  Barred plaintiffs' 42 U.S.C. §1983 claims for damages, where plaintiffs sought damages on grounds that State's QUEST health care program prior to April 1, 1996 violated equal protection clause of Fourteenth Amendment by discriminating against the blind and disabled.  939 F. Supp. 765.

  Where plaintiffs argued that State waived its Eleventh Amendment immunity through the enactment of §353-14 and the State's Tort Claims Act [sic], §§662-2 and 663-1, no express consent or applicable waiver provisions found.  940 F. Supp. 1523.

  Barred claims against defendant state agencies, federal constitutional claims brought under 42 U.S.C. §1983 against state officials in official capacities, and state law claims.  951 F. Supp. 1484.

  No waiver of Eleventh Amendment immunity, where defendants removed case to federal court and defendants raised immunity defense in their answer in state court and not in their motion for partial judgment on pleadings.  951 F. Supp. 1484.

  Sections 661-1 and 662-2 did not constitute a waiver of defendants' Eleventh Amendment immunity; neither Native American Languages Act of 1990 nor 42 U.S.C. §1983 abrogated the Eleventh Amendment.  951 F. Supp. 1484.

  Plaintiffs' suit barred by Eleventh Amendment and prior Ninth Circuit authority, where, inter alia, plaintiffs asked court to compel state defendants to spend §5(f) (Admission Act) funds on only one (Hawaiian home lands) of the five purposes provided for in the Admission Act, in order to compensate for past breaches of trust.  996 F. Supp. 989.

  State defendants' multi-count motion for summary judgment and the joinders therein, granted as to provider plaintiffs' takings clause claim, where the plaintiffs' theory was that by reducing the reimbursement rates and by failing to pay pharmacists' claims on the basis that the claims were untimely, state defendants had taken property (in the form of losses) from the plaintiffs and transferred it to the QUEST expanded access program contractors without a public use or public purpose.  676 F. Supp. 2d 1046 (2009).

  Where plaintiffs argued that defendant was not an arm of the State of Maryland and thus was unable to obtain protection through the Eleventh Amendment, defendant was vested with sovereign immunity.  As there was no named state official in the complaint or elsewhere, that was allegedly violating plaintiffs' rights under federal law, plaintiffs' claims could not fall within exception which allowed suits to enjoin state officials from violating federal law.  3 F. Supp. 2d 1127.

  Where plaintiffs asserted claims against defendant based upon Declaratory Judgment Act, and the Longshore and Harbor Workers' Compensation Act, as provided under the Defense Base Act, absent a clear statement that Congress intended to abrogate Eleventh Amendment immunity, such immunity remained intact and protected defendant from suit in federal court.  3 F. Supp. 2d 1127.

  State and department of land and natural resources immune from suit, where plaintiff sought to enjoin State and city and county of Honolulu from implementation or enforcement of any and all state statutes and city ordinances that might apply to the business that plaintiff claimed to be developing, involving a commercial boating activity on the Ala Wai canal.  57 F. Supp. 2d 1028.

  Barred plaintiff's tort claims and claims that defendants violated two constitutional amendments made actionable under 42 U.S.C. §1983, made against defendants State and Hawaii paroling authority ("HPA") parole administrator and HPA chairman in their official capacities.  109 F. Supp. 2d 1262.

  Where defendants removed action to federal court, defendant State had not waived sovereign immunity; Eleventh Amendment barred plaintiff's claims against State and defendant-physicians in their official capacities.  109 F. Supp. 2d 1271.

  Plaintiff's claims dismissed, on Eleventh Amendment immunity grounds, to extent they were asserted against defendants in their official capacities.  110 F. Supp. 2d 1312.

  Defendants' motion to dismiss based on Eleventh Amendment immunity denied as to plaintiffs' claims against the State based on §504 of the Rehabilitation Act.  141 F. Supp. 2d 1243.

  On and after July 1, 1998, the date §304-6 [as amended] took effect, the University of Hawaii continued to be an arm of the State for purposes of Eleventh Amendment immunity.  159 F. Supp. 2d 1211.

  Defendants' motion to dismiss based on Eleventh Amendment immunity denied as to plaintiffs' claim under §504 of the Rehabilitation Act.  165 F. Supp. 2d 1144.

  No Eleventh Amendment immunity for county in lawsuit based on county planning commission's denial of a special use permit sought under §205-6.  229 F. Supp. 2d 1056.

  City and county had no Eleventh Amendment immunity, where city and county had not demonstrated that any judgment issued against it in the case would be a judgment against the State.  307 F. Supp. 2d 1149.

  State defendants' motion for judgment on the pleadings and summary judgment as to Eleventh Amendment immunity (1) denied regarding claims under §504 of the Rehabilitation Act, where State waived its Eleventh Amendment immunity as to §504 by accepting federal funding; and (2) granted regarding 42 U.S.C. §1983 and state law claims against defendants in their official capacities and defendants state agency and agency program.  351 F. Supp. 2d 998.

  Barred federal law claims against department of education (DOE) and against a defendant in the defendant's official capacity to the extent that plaintiff sought damages; did not bar federal law claims for prospective relief against the defendant in defendant's official capacity; barred state law claims against both DOE and the defendant in defendant's official capacity, regardless of the relief sought.  396 F. Supp. 2d 1138.

  Court declined to dismiss plaintiff's claim asserting violation of the Americans with Disabilities Act and the portion of the claim asserting a violation of the federal Constitution, as against the State, to the extent that plaintiff sought prospective relief, where, inter alia, plaintiff sought reinstatement as a teacher.  Where the State had not consented to be sued for the state claims in federal court, the State was immune from the claims and the claims were dismissed.  405 F. Supp. 2d 1225.

  Where the State had not waived sovereign immunity and Congress did not abrogate Eleventh Amendment immunity of state governments in passing 42 U.S.C. §§1983, 1985, and 1986, the court lacked jurisdiction over plaintiff's federal constitutional claims against the State and over plaintiff's claims for money damages against the governor and the attorney general of Hawaii.  548 F. Supp. 2d 1151.

  Combat activities exception to the federal Tort Claims Act did not shield private defense contractor from liability for an alleged defective mortar cartridge which exploded unexpectedly during an army training exercise.  696 F. Supp. 2d 1163 (2010).

  Eleventh Amendment did not bar suit, against Hawaii governor, that challenged Act 189 of the 2009 Hawaii legislature (relating to real property) where the governor was "giving effect" to the challenged law; governor had direct authority over and principal responsibility for enforcing Act 189, and therefore had a sufficient connection to the enforcement of Act 189.  715 F. Supp. 2d 1115 (2010).

  For Eleventh Amendment purposes, a suit against a state official in that official's capacity was no different from a suit against the State itself; Hawaii has not consented to suit in federal court for chapter 378 claims, and sovereign immunity thus barred plaintiff teacher's §378-2 claims against the Hawaii department of education and the department of education superintendent in the superintendent's official capacity.  855 F. Supp. 2d 1155 (2012).

  Defendant employer Hawaii department of transportation's motion for summary judgment granted on plaintiff former employee's equal protection claim where plaintiff, who alleged that defendant subjected plaintiff to disparate treatment due to plaintiff's disability and role as an equal employment opportunity specialist who acted in accordance with all laws, did not cite 42 U.S.C. §1983; even if plaintiff did cite to 42 U.S.C. §1983, sovereign immunity prohibited the claim because claims under 42 U.S.C. §1983 are limited by the scope of the Eleventh Amendment.  864 F. Supp. 2d 965 (2012).

  With respect to Title I of the Americans with Disabilities Act (ADA), plaintiff former Hawaii department of transportation (HDOT) employee's claim, as against defendant HDOT, was barred based on sovereign immunity under the Eleventh Amendment; the court agreed with defendant that plaintiff's reliance on 42 U.S.C. §12202 was misplaced as the U.S. Supreme Court had invalidated it as applied against the State; however, plaintiff's claim under Title II of the ADA was not barred by sovereign immunity but failed because Title II did not apply to employment.  864 F. Supp. 2d 965 (2012).

  The decision to invoke sovereign immunity belonged to the State; a defendant-intervenor could not force the State, through the governor who was sued in the governor's official capacity, to invoke its sovereign immunity.  884 F. Supp. 2d 1065 (2012).

  Barred plaintiffs' due process and state law claims for damages against state superintendent of the department of education, charter school, and other state defendants.  950 F. Supp. 2d 1159 (2013).

  Defendant Hawaii public housing authority (HPHA) is a state agency, and, as such, defendant HPHA and its employees fell within the protection of this Amendment; therefore, plaintiff's professional negligence claim was barred by sovereign immunity.  951 F. Supp. 2d 1116 (2013).

  For in forma pauperis purposes, plaintiff's Americans with Disabilities Act retaliation claim, predicated on alleged violations of Title II, should not be dismissed on the basis of Eleventh Amendment immunity.  951 F. Supp. 2d 1116 (2013).

  Because the State did not waive its sovereign immunity, the court lacked jurisdiction over plaintiffs' 42 U.S.C. §1983 claims which alleged federal constitutional violations against the State and department of Hawaiian Home Lands (DHHL); plaintiffs' §1983 claims against the State and DHHL and §1983 claims for damages against a state defendant in the defendant's official capacity were dismissed with prejudice.  977 F. Supp. 2d 1026 (2013).

  Requested relief that trust status of exchanged lands be restored by constructive trust is equivalent to nullification of the exchange and return of exchanged lands to trust res; as such, relief seeks compensation for past actions of state officials and is barred by State's sovereign immunity.  73 H. 578, 837 P.2d 1247.

  Appellants' claims not barred by sovereign immunity where appellants' requested relief not a request for compensation for past action of Hawaiian homes commission members.  81 H. 474, 918 P.2d 1130.

  Defendant State and state officials did not waive their sovereign immunity pursuant to chapter 673 where plaintiffs did not bring their claims under chapter 673 in their first amended complaint and plaintiffs' after-the-fact reliance on chapter 673 for a waiver of the State's sovereign immunity was solely for the purpose of their attorneys' fee request.  130 H. 162, 307 P.3d 142 (2013).

  Plaintiffs had to demonstrate a waiver of sovereign immunity specifically over attorneys' fees because plaintiffs did not implicate §661-1 (case did not arise under §661-1) or any statutory waiver of sovereign immunity; rather plaintiffs' case involved claims for declaratory and injunctive relief based on alleged constitutional violations by defendant State and state officials.  130 H. 162, 307 P.3d 142 (2013).

  There was no clear waiver of sovereign immunity based on plaintiffs' claims regarding defendant State and state officials' violation of plaintiffs' constitutional duties under article XII, §1 of the Hawaii constitution; there exists no authority entitling a prevailing party to attorneys' fees under the private attorney general doctrine where sovereign immunity did not preclude an underlying declaratory and/or injunctive relief claim that the State violated the Hawaii constitution.  130 H. 162, 307 P.3d 142 (2013).

 

 

[ARTICLE XII.--1804]

 

     The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;--The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;--The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President.  But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.  And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.  The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.  But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

 

Attorney General Opinions

 

  State legislature may not impose additional qualifications to federal offices.  Att. Gen. Op. 75-22.

 

[ARTICLE XIII.--1865]

 

     Section 1.  Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

 

Law Journals and Reviews

 

  Ke Kanawai Mamalahoe:  Equality in Our Splintered Profession.  33 UH L. Rev. 249 (2010).

 

Case Notes

 

  Family court did not violate father's right to be free from involuntary servitude by ordering father to pay $50 per month to support his child, despite father's preference to remain unemployed.  109 H. 240, 125 P.3d 461.

 

 

     Section 2.  Congress shall have power to enforce this article by appropriate legislation.

 

Law Journals and Reviews

 

  Ke Kanawai Mamalahoe:  Equality in Our Splintered Profession.  33 UH L. Rev. 249 (2010).

 

Case Notes

 

  Students' cafeteria duty is not involuntary servitude.  403 F. Supp. 1095.

 

 

[ARTICLE XIV.--1868]

 

     Section 1.  All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.  No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

 

Attorney General Opinions

 

Due process.

  This clause guarantees a jury trial in all serious criminal cases but not for petty offenses.  Att. Gen. Op. 68-10.

  Student regulations at state universities are subject to the vagueness standard but do not require the same specificity required of criminal statutes.  Att. Gen. Op. 71-9.

  The State's retention of any funds in excess of what is deemed necessary and proper to administer the county surcharge on state tax under §248-2.6 does not violate the equal protection clause or due process clause of the United States Constitution or the Hawaii State Constitution.  Att. Gen. Op. 15-1.

 

Equal protection.

  Statutes requiring United States citizenship or declaration of intention to become a citizen as a condition of obtaining a license are invalid.  Att. Gen. Op. 74-18.

  The State's retention of any funds in excess of what is deemed necessary and proper to administer the county surcharge on state tax under §248-2.6 does not violate the equal protection clause or due process clause of the United States Constitution or the Hawaii State Constitution.  Att. Gen. Op. 15-1.

 

Privileges and immunities.

  A bill to provide for a capitation tax on all persons arriving in State by commercial airline would abridge the privileges and immunities of citizens of the United States.  Att. Gen. Op. 69-7.

 

Law Journals and Reviews

 

  The New Resident:  Hawaii's Second-Class Citizen.  5 HBJ 77.

  Hawaii's Land Reform Act:  Is it Constitutional?  6 HBJ 31.

  Suppression of Evidence Without the Aid of the Fourth, Fifth and Sixth Amendments.  8 HBJ 109.

  Discussion of the First Amendment rights of the policemen, see the Dissenting Cop.  9 HBJ 59.

  The Hawaii Prison Inmate's Emerging Right to Due Process.  10 HBJ 115.

  Included Offenses in Hawaii Case Law and the Rights to Trial by Jury:  Coherence or Confusion.  II HBJ No. 13, at pg. 77.

  Res Judicata and Collateral Estoppel in Hawaii:  One of These Things is Not Like The Other.  III HBJ No. 13, at pg. 1.

  The Death Of The Living Will And The Making of Health Care Decisions Under Hawaii's New But Not Quite Uniform Health-Care Decisions Act.  III HBJ No. 13, at pg. 29.

  Real Property Tax Litigation in Hawaii.  III HBJ No. 13, at pg. 57.

  To Dwell on the Earth in Unity:  Rice, Arakaki, and the Growth of Citizenship and Voting Rights in Hawai‘i.  V HBJ No. 13, at pg. 15.

  National Collegiate Athletic Association v. Tarkanian:  The End of Judicial Review of the NCAA.  12 UH L. Rev. 383.

  Stop H-3 Association v. Dole:  Congressional Exemption from National Laws Does Not Violate Equal Protection.  12 UH L. Rev. 405.

  State v. Suka:  Balancing the Need for Witness Accompaniment Against Its Prejudicial Effect.  12 UH L. Rev. 461.

  Sandy Beach Defense Fund v. City and County of Honolulu:  The Sufficiency of Legislative Hearings in an Administrative Setting.  12 UH L. Rev. 499.

  Hawaii's Quarantine Laws:  Can Spot Come Home?  13 UH L. Rev. 175.

  The Constitutional Structure of the Courts of the United States Territories:  The Case of American Samoa.  13 UH L. Rev. 379.

  The Hostile Work Environment:  Are Federal Remedies Hostile, Too?  13 UH L. Rev. 537.

  The Protection of Individual Rights Under Hawai‘i's Constitution.  14 UH L. Rev. 311.

  The Evolving Legal Relationships Between the United States and Its Affiliated U.S.-Flag Islands.  14 UH L. Rev. 445.

  Burdick v. Takushi:  Yes to Equal Voice in Voting, No to a Fundamental Right to Vote for Any Particular Candidate.  14 UH L. Rev. 715.

  Hawai‘i's New Administrative Driver's License Revocation Law:  A Preliminary Due Process Inquiry.  14 UH L. Rev. 853.

  The Law and Politics of Dancing:  Barnes v. Glen Theatre and the Regulation of Striptease Dance.  14 UH L. Rev. 925.

  Foucha v. Louisiana:  The Keys to the Asylum for Sane But Potentially Dangerous Insanity Acquittees?  15 UH L. Rev. 215.

  For Better or for Worse, in Sickness and in Health, Until Death Do Us Part:  A Look at Same Sex Marriage in Hawaii.  16 UH L. Rev. 447.

  The Kamehameha Schools/Bishop Estate and the Constitution.  17 UH L. Rev. 413.

  A Biologic Argument for Gay Essentialism-Determinism:  Implications for Equal Protection and Substantive Due Process.  18 UH L. Rev. 571.

  Criminal Procedure Rights Under the Hawaii Constitution Since 1992.  18 UH L. Rev. 683.

  Adarand Constructors Inc. v. Pena:  A Color-blind Remedy Eliminating Racial Preferences.  18 UH L. Rev. 939.

  A Constitutionally Valid Justification for the Enactment of No-Growth Ordinances:  Integrating Concepts of Population Stabilization and Sustainability.  19 UH L. Rev. 93.

  An Evaluation of the Summary Contempt Power of the Court:  Balancing the Attorney's Role as an Advocate and the Court's Need for Order.  19 UH L. Rev. 145.

  Rethinking Race for Strict Scrutiny Purposes:  Yniguez and the Racialization of English Only.  19 UH L. Rev. 221.

  Should The Right To Die Be Protected?  Physician Assisted Suicide And Its Potential Effect On Hawai‘i.  19 UH L. Rev. 783.

  Justice Ruth Bader Ginsburg And Gender Discrimination.  20 UH L. Rev. 699.

  Tired of Your Masses:  A History of and Judicial Responses to Early 20th Century Anti-Immigrant Legislation.  21 UH L. Rev. 131.

  The Future of Same-Sex Marriage.  22 UH L. Rev. 119.

  The Fine Line Between Love and the Law:  Hawai‘i's Attempt to Resolve the Same-Sex Marriage Issue.  22 UH L. Rev. 149.

  Love and Let Love:  Same-Sex Marriage, Past, Present, and Future, and the Constitutionality of DOMA.  22 UH L. Rev. 185.

  The California Civil Rights Initiative:  Why It's Here, Its Far Reaching Effects, and the Unique Situation in Hawai‘i.  22 UH L. Rev. 279.

  A New Segregation?  Race, Rice v. Cayetano, and the Constitutionality of Hawaiian-Only Education and the Kamehameha Schools.  23 UH L. Rev. 109.

  Unfair Punishment of the Mentally Disabled?  The Constitutionality of Treating Extremely Dangerous and Mentally Ill Insanity Acquittees in Prison Facilities.  23 UH L. Rev. 623.

  Saenz v. Roe:  The Right to Travel, Durational Residency Requirements, and a Misapplication of the Privileges or Immunities Clause.  23 UH L. Rev. 685.

  The Akaka Bill:  The Native Hawaiians' Race For Federal Recognition.  23 UH L. Rev. 857.

  The Defense of Marriage Act:  Sex and the Citizen.  24 UH L. Rev. 279.

  Akaka Bill:  Native Hawaiians, Legal Realities, and Politics as Usual.  24 UH L. Rev. 693.

  Driving into the Sunset:  A Proposal for Mandatory Reporting to the DMV by Physicians Treating Unsafe Elderly Drivers.  25 UH L. Rev. 59.

  Punishment and Deterrence:  Merely a Mantra; A Casenote on State Farm v. Campbell.  26 UH L. Rev. 229.

  Arrow of Time:  Vested Rights, Zoning Estoppel, and Development Agreements in Hawai‘i.  27 UH L. Rev. 17.

  Emergency Contraception in Religious Hospitals:  The Struggle Between Religious Freedom and Personal Autonomy.  27 UH L. Rev. 65.

  To See or Not to See?  The Real Question Behind the Supreme Court's Grutter & Gratz Decisions.  27 UH L. Rev. 165.

  Trailblaze or Retreat?  Political Gerrymandering After Vieth v. Jubelirer.  27 UH L. Rev. 269.

  Wiping Out the Ban on Surfboards at Point Panic.  27 UH L. Rev. 303.

  Adarand Constructors, Inc. v. Slater and Concrete Works of Colorado, Inc. v. City of Denver:  Breathing Life into Croson's Passive Participant Model.  27 UH L. Rev. 469.

  Prudent Use of Judicial Minimalism:  Why Minimalism May Not be Appropriate in the Context of Same-Sex Marriage.  27 UH L. Rev. 501.

  Price Controls in Paradise:  Foreshadowing the Legal and Economic Consequences of Hawai‘i's Gasoline Price Cap Law.  27 UH L. Rev. 549.

  Text-Mess:  There is No Textual Basis for Application of the Takings Clause to the States.  28 UH L. Rev. 373.

  Free Exercise and Hybrid Rights:  An Alternative Perspective on the Constitutionality of Same-Sex Marriage Bans.  29 UH L. Rev. 23.

  Physician Assisted Suicide:  Expanding the Laboratory to the State of Hawai‘i.  29 UH L. Rev. 269.

  Prostitution:  Protected in Paradise?  30 UH L. Rev. 193.

  Property Rights:  Substantive Due Process and the "Shocks the Conscience" Standard.  31 UH L. Rev. 577 (2009).

  The State Marriage Cases:  Implications for Hawai‘i's Marriage Equality Debate in the Post-Lawrence and Romer Era.  31 UH L. Rev. 653 (2009).

  Maka‘ala Ke Kanaka Kahea Manu:  Examining a Potential Adjustment of Kamehameha Schools' Tuition Policy.  32 UH L. Rev. 237 (2009).

  Ke Kanawai Mamalahoe:  Equality in Our Splintered Profession.  33 UH L. Rev. 249 (2010).

  From Sea to Rising Sea:  How Climate Change Challenges Coastal Land Use Laws.  33 UH L. Rev. 289 (2010).

  Hawai‘i's Right to Privacy.  33 UH L. Rev. 669 (2011).

  A Modest Proposal for Determining Class Member Damages:  Aggregation and Extrapolation in the Kalima v. State Breach of Homelands Trust Class Action.  34 UH L. Rev. 1 (2012).

  Missing the Men:  Defining Female Servicemembers as Primary Caregivers in Deployment Deferral Policy.  34 UH L. Rev. 161 (2012).

  The New First Amendment:  Allowing Unlimited Corporate Election Speech Free from Response.  34 UH L. Rev. 263 (2012).

  Homeless Property Rights:  An Analysis of Homelessness, Honolulu's "Sidewalk Law," and Whether Real Property is a Condition Precedent to the Full Enjoyment of Rights under the U.S. Constitution.  35 UH L. Rev. 197 (2013).

  Hamilton v. Lethem:  The Parental Right to Discipline One's Child Trumps a Child's Right to Grow Up Free from Harm.  36 UH L. Rev. 347 (2014).

  Economic Substantive Due Process:  Considered Dead Is Being Revived by a Series of Supreme Court Land-use Cases.  36 UH L. Rev.  455 (2014).

  Drawing the Curtain:  Examining the Colorblind Rhetoric of Ruiz v. Robinson and Its Implications.  36 UH L. Rev. 529 (2014).

  Exclusive Democracy:  Contemporary Voter Discrimination and the Constitutionality of Prophylactic Congressional Legislation.  37 UH L. Rev. 535 (2015).

 

Case Notes

 

Generally.

  State's ban on write-in voting does not unreasonably infringe upon voters' constitutional rights.  504 U.S. 428.

  As birth in Philippines during U.S. territorial period does not constitute being born "in the U.S.", U.S. citizenship does not arise for such persons under citizenship clause.  35 F.3d 1449.

  No qualified immunity on 42 U.S.C. §1983 claim for prison official who allegedly forced inmate to choose between constitutional right to outdoor recreation and law library access.  39 F.3d 936.

  Independent candidates for president denied access to State's ballot for the 2004 election appealed district court's holding that relevant provisions governing access do not violate the First and Fourteenth Amendments or the equal protection clause; district court's holding that the presidential ballot access scheme is constitutional, affirmed.  620 F.3d 1214 (2010).

  Has no bearing on requirement that applicant must take bar examination.  44 H. 597, 358 P.2d 709.

  Program of board of land and natural resources for introduction of axis deer to island of Hawaii not unreasonable, arbitrary or capricious.  50 H. 207, 436 P.2d 527.

  For State to convict indigent without first providing indigent with counsel violates indigent's Fourteenth Amendment rights.  56 H. 23, 525 P.2d 1108.

  Where church was not a hierarchical church, but a congregational church that made decisions by a vote of its members as set forth in its "petition for charter" of incorporation and by-laws, the church was governed by chapter 414D; thus, appellants should have been allowed to amend their complaint, had standing to contest their expulsion, and were not precluded from doing so by the ecclesiastical abstention doctrine; also, doctrine did not bar appellants' complaint to the extent it did not require resolution of controversies over church doctrine, law, or polity.  118 H. 165 (App.), 185 P.3d 913.

 

Due process.

  See also notes to Amendment 5.

  Prison regulations do not create a protected liberty interest.  461 U.S. 236.

  Transfer of prisoner to mainland facility did not implicate due process clause directly.  461 U.S. 236.

  Inmate's discipline in segregated confinement did not present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest; neither the Hawaii prison regulation in question, nor the due process clause itself, afforded inmate a protected liberty interest that would entitle inmate to procedural protections set forth in Wolff v. McDonnell.  515 U.S. 472.

  Defendant was not denied due process by alleged prosecutorial misconduct before grand jury.  614 F.2d 214.

  Only where defendant alleges governmental conduct "of the most shocking and outrageous kind" will due process be violated and court required to divest itself of jurisdiction.  625 F.2d 308.

  Prison transfer regulations created liberty interest subject to due process protection.  664 F.2d 708.

  Standard of proof for invalidation of plea bargain on basis of information submitted for sentencing.  682 F.2d 799.

  Hawaii civil service appeals process does not per se violate due process.  707 F.2d 1100.

  Patients did not have entitlement to services at Hale Mohalu.  Hence, no hearing required in order to close facility.  720 F.2d 564.

  State cannot, by judicial decision, divest vested property rights.  753 F.2d 1468.

  Not violated in termination of physician's staff privileges.  754 F.2d 1420.

  Personal jurisdiction over nonresident manufacturer of military products comports with due process.  785 F.2d 720.

  Not violated where civilians prosecuted differently than military personnel for traffic violations on military bases.  786 F.2d 951.

  Defendant not denied due process by introduction into evidence of photographs showing defendant's front and profile images; court must weigh prejudicial effect of testimony that defendant had "a long police record" against its probative value; prosecution's disclosure of exculpatory evidence at pretrial conference did not violate due process; individual voir dire, when required.  789 F.2d 1425.

  Defendant's conviction violated due process where only evidence was stipulation which followed ambiguous indictment.  796 F.2d 261.

  Admission of videotape of autopsy not fundamentally unfair.  800 F.2d 1463.

  Jury instructions that erroneously characterized murder as a "lesser included offense" of "murder-for-hire" did not warrant relief, but this error, along with others, may cumulatively have deprived defendant of defendant's rights; limitation of witnesses' prior inconsistent statements for impeachment purposes and not for their substance did not violate due process.  807 F.2d 805.

  Defamation, without more is not a constitutional violation.  827 F.2d 1310.

  Boat owner did not have a property right to boat slip where permit to use slip expired automatically.  915 F.2d 528.

  Award for damages to fired city employee for violation of due process rights upheld where city failed to afford employee a pretermination hearing.  963 F.2d 1167.

  Prison rule requiring inmates to communicate in English language only gave inmates insufficient notice that they were forbidden to pray in a foreign language.  994 F.2d 1408.

  Bars State from imposing inmate punishment on the basis of an unexpected and unusual interpretation of prison rule forbidding non-English communication.  15 F.3d 1463.

  State officials performing discretionary function not entitled to qualified immunity if a reasonable official would have known that prison regulation forbidding non-English communication did not forbid foreign language prayer.  15 F.3d 1463.

  Not violated by §286-260 provision allowing for judicial review of administrative revocation of driver's license "as soon as practicable".  17 F.3d 1244.

  Federal wastewater treatment permit not unconstitutionally vague where defendants were knowledgeable in wastewater field, could be expected to have understood what the permit meant, and took considerable pains to conceal their illegal dumping activities.  35 F.3d 1275.

  Prison policies not sufficiently "mandatory" to create liberty interest in inmate not being transferred from minimum to medium security facility.  55 F.3d 454.

  Prison regulations on confinement did not create a liberty interest that would entitle inmate to due process protection.  59 F.3d 931.

  No violation where plaintiff's 42 U.S.C. §1983 action against dental board was barred by res judicata as plaintiff failed to seek state court judicial review of dental board's order failing plaintiff on dental exam.  60 F.3d 626.

  At time of alleged misconduct, persons in custody had established right to not have officials remain deliberately indifferent to the persons' serious medical needs.  74 F.3d 977.

  Where landowners argued that ordinance creating mechanism through which condominium owners could convert their leasehold interests into fee simple interests was arbitrary and irrational, landowners could not meet burden of showing irrationality.  124 F.3d 1150.

  Inmate who had never been convicted of a sex offense and had never had opportunity to formally challenge imposition of sex offender label in adversarial setting did not receive required minimum due process protections and was entitled to injunctive relief; inmate who was convicted after formal criminal proceedings of a sex offense received all of process to which inmate was due.  131 F.3d 818.

  Where child protective service caseworker's seven-day delay in filing a court petition for temporary custody violated state law, neither the seven-day delay before obtaining post-deprivation judicial review, nor the seven-day delay before filing a court petition, violated appellant's federal due process rights.  141 F.3d 927.

  Plaintiff-appellant challenged §667-5 as violating the due process clause; district court's dismissal of the case for failure to state a claim because the sale was a purely private remedy and involved no state action, affirmed.  324 F.3d 1091.

  While defendants were denied summary judgment in the district court's proceedings on the merits of plaintiffs' due process claim in a 42 U.S.C. §1983 lawsuit seeking damages for "over detention", defendants were nonetheless entitled to qualified immunity because the duty of defendants to review plaintiffs' original court records beyond what was in plaintiffs' institutional file was not clearly established; district court's denial of summary judgment to defendants as to the issue of qualified immunity vacated and remanded.  663 F.3d 1094 (2011).

  The definition of "advertisement" under §11-302 was not unconstitutionally vague, where the court agreed with the campaign spending commission that the definition was sufficiently precise without a limiting construction and therefore declined to adopt one.  786 F.3d 1182 (2015).

  The definitions of "expenditure" and "noncondidate committee" under §11-302 were not unconstitutionally vague, where the court adopted the campaign spending commission's proffered construction of the term "influence" in the definitions to refer only to "communications or activities that constitute express advocacy or its functional equivalent".  786 F.3d 1182 (2015).

  Re applicability of due process to out-of-state prison transfers.  387 F. Supp. 912; 396 F. Supp. 196.

  Denying public employment eligibility by erroneous interpretation of law, deprived person of due process.  402 F. Supp. 84.

  Courts are not immune from prohibition against taking without compensation.  402 F. Supp. 95.

  Re court's relocation of private land boundary without due process.  402 F. Supp. 95.

  Law regarding filing of notice of lis pendens held not an unconstitutional seizure of property without due process.  418 F. Supp. 695.

  A prisoner's right to classification hearing before an impartial board, as granted by state correction's regulations, cannot be arbitrarily abrogated.  421 F. Supp. 83.

  Garnishment procedures which do not provide safeguards against improper garnishment of AFDC (assistance) grants deny due process.  431 F. Supp. 1369.

  Mandatory union service fees collected from teachers not belonging to union cannot be used for political purposes.  437 F. Supp. 368.

  Several provisions of state statutes regarding emergency and nonemergency admission to psychiatric facility violated due process.  438 F. Supp. 1106.

  Hawaii may not change its laws governing property rights of riparian landowners to use of water without compensating owners for lost rights.  441 F. Supp. 559.

  In dispute over water rights, a supreme court decision rendered without affording parties a hearing, held to violate procedural due process.  441 F. Supp. 559.

  Since prison authorities are granted practically unlimited discretion to transfer state prisoners and the regulations do not provide standards limiting such discretion, defendant does not have a constitutionally protected liberty interest against transfer.  459 F. Supp. 473.

  Action of supreme court decreeing that property seaward of vegetation line belonged to public deprived owners of due process because there was no hearing on title and it was a radical departure from prior law.  460 F. Supp. 473.

  Parents' right to give their child any name they wish is protected from arbitrary state action.  466 F. Supp. 714.

  Law providing for affidavit method of postjudgment garnishment of wages not unconstitutional.  467 F. Supp. 544.

  "Public use" includes "public interest".  471 F. Supp. 871.

  Parental tort liability statute did not contain irrebuttable presumption.  529 F. Supp. 294.

  Ex parte appointment of receiver did not constitute taking of property without due process.  547 F. Supp. 988.

  Violated by §657-11, which discriminates against actions brought under 42 U.S.C. §1983.  574 F. Supp. 1510.

  Alleged conduct of police officers truly "shocks the conscience" and offends "the concept of ordered liberty", and thus violates strictures of substantive due process.  584 F. Supp. 356.

  Applicability of "void for vagueness" doctrine; does not apply to county charter provision allocating governmental power.  623 F. Supp. 657.

  Zoning and land use regulations for Queen's Beach rationally related to valid planning goals; landowner not entitled to procedural due process with respect to enactment of zoning regulations, which are legislative acts; landowner and prospective developer did not have vested property rights pursuant to general plan and detailed land use map, thus, passage of restrictive zoning did not deny them due process.  649 F. Supp. 926.

  No denial of due process where the unauthorized wrongful act is not sanctioned by any established state procedure and the state law provides a realistic means for the plaintiff to be made whole.  694 F. Supp. 738.

  Only the United States Supreme Court is empowered to review state court judgments.  735 F. Supp. 963.

  No due process liberty interest in parole is created under §§353-68 and 353-69; inmate had due process liberty interest at stake at misconduct hearing.  795 F. Supp. 1020.

  Forcing inmates to choose between law library time and outdoor exercise unconstitutional; liberty interest not created by prison regulation governing when officials could administratively segregate inmates.  816 F. Supp. 1501.

  Regulation regarding classification of inmates, acting in conjunction with language of classification scoring system, created protectable liberty interest.  Prison policy concerning inmate access to courts, legal services, and legal materials did not create a protectable liberty interest.  Inmate's claim based on prison policy regarding participation in employment was without merit; while regulation may create protectable interest, inmate offered no evidence that inmate had been denied the right to participate in activities described in the section.  823 F. Supp. 750.

  Any claim based on takings clause of Fourteenth Amendment lacked merit, regarding state mooring regulations; the regulations did not affect plaintiffs in a manner that implicated Fourteenth Amendment.  823 F. Supp. 766.

  Where plaintiffs alleged that defendants violated their constitutional rights to due process by depriving them of their dwelling without constitutionally adequate process, plaintiffs received adequate due process.  832 F. Supp. 1399.

  Where plaintiff alleged that condominium lease-to-fee ordinance violated plaintiff's substantive due process rights, ordinance was a rational exercise of legislative power. 832 F. Supp. 1404.

  Defendants granted summary judgment on plaintiff's procedural and substantive due process claims, where plaintiff contended that testing of Hawaiian terms and the lack of notice thereof constituted a violation of a protected liberty interest without due process; first-time applicant for a surveyor's license had no protected property interest in the license.  846 F. Supp. 1411.

  Police officers would have violated plaintiff's due process rights by demonstrating deliberate indifference to plaintiff's need in failing to take plaintiff to receive medical care, assuming the facts as plaintiff stated them.  872 F. Supp. 746.

  Neither prison's grooming standards nor memorandum regarding enforcement of grooming policy created a protected liberty interest; enforcement of grooming standards did not impose sufficiently "atypical or significant hardship" to justify due process protection.  902 F. Supp. 1220.

  Plaintiff's due process claims against state hospital superintendent, registered nurse, and paramedical assistant, based on defendants' use of force, barred as to superintendent and nurse in their individual capacities by doctrine of qualified immunity.  909 F. Supp. 737.

  Defendant's motion to dismiss for lack of personal jurisdiction denied, where defendant based in California had taken action in Hawaii whereby it purposefully availed itself of the privilege of conducting activities in the forum, facts established a prima facie case that but for defendant's activities in Hawaii, plaintiffs' claims would never have arisen, and defendant had not presented any argument that factors rendered jurisdiction unreasonable (court found factors favored exercise of personal jurisdiction).  980 F. Supp. 1134.

  Elements for specific jurisdiction, discussed, where defendants filed motion to dismiss complaint based on court's lack of personal jurisdiction in case containing causes of action sounding in both tort and contract.  980 F. Supp. 1362.

  Correctional facility's law library access policy was reasonable, provided meaningful access to the courts, and did not violate the Constitution.  938 F. Supp. 650.

  Section 353-14 (1987) provided Hawai‘i paroling authority board [sic] with complete discretion to assess inmates' needs and to award "gate money" as necessary in light of those needs; thus, no protected property interest existed.  The right to "gate money" not so fundamental as to warrant constitutional protection apart from its status under state law.  940 F. Supp. 1523.

  Where the court construed allegations of plaintiff (who previously held a position at correctional facility), to, at most, state a claim for negligence on the part of correctional facility officials in failing to provide plaintiff with a personal security guard, even in accepting these allegations as true, plaintiff failed to state a valid claim under 42 U.S.C. §1983.  25 F. Supp. 2d 1124.

  Defendants' motion to dismiss for failure to state a claim granted, where, inter alia, it appeared plaintiff was asserting a federal constitutional right to be free from bad faith prosecution.  45 F. Supp. 2d 794.

  Student suspended from school for violating Act 90, L 1996 (§302A-1134.5(a)), which prohibited possession of alcohol while attending school, where student allegedly participated in consumption of alcohol at student's home prior to school luau in violation of school's zero tolerance policy under Act 90.  Plaintiffs' (student's parents) motion for preliminary injunctive relief granted in part and denied in part where, among other things, it was very likely that plaintiffs would prevail on merits of claim that defendants violated due process requirements when they allegedly punished student without evidence that student violated Act 90; and plaintiffs very likely to prevail on merits of claim that if student's conduct fell within Act 90, due process violated because the statute was too vague.  84 F. Supp. 2d 1113.

  Court had personal jurisdiction over defendants, where plaintiff, allegedly a resident of Hawaii for almost thirteen years, filed complaint in response to article written by a defendant who resided in New York, and published by a newspaper distributed primarily in New York city metropolitan area.  87 F. Supp. 2d 1060.

  Where plaintiff, terminated OHA chief financial officer, claimed that defendants, OHA administrator and trustee, in individual capacities, unlawfully deprived plaintiff of plaintiff's property and liberty without due process of law, in violation of 42 U.S.C. §1983, defendants' motion for summary judgment granted with prejudice as to these claims.  120 F. Supp. 2d 1244.

  Sufficient minimum contacts existed to give rise to specific in personam jurisdiction where, inter alia, a parent corporation with control over a local facility had purposefully availed itself into the jurisdiction and invoked the benefits and protections of the State's laws.  140 F. Supp. 2d 1062.

  Having created a permit structure for commercial vessels, having issued and reissued such permits in the past, and having promised plaintiff renewal, division of boating and ocean recreation violated the due process clause by summarily withholding the promised "vessel moored elsewhere" permit for reasons that were undisclosed or tested through a fair administrative hearing process.  195 F. Supp. 2d 1157.

  Two per cent use fee did not violate right to substantive due process of plaintiff, a corporation engaged in offering boating excursions from state boating facilities on the island of Kauai.  195 F. Supp. 2d 1157.

  Federal due process requirements discussed, where defendants' motion to dismiss based on personal jurisdiction denied; plaintiff (an Oregon citizen) met plaintiff's burden of demonstrating that the court had specific jurisdiction over each defendant (California citizens) as to each claim.  283 F. Supp. 2d 1128.

  Defendants' motions to dismiss for lack of personal jurisdiction granted; among other things, those defendants could not have "reasonably anticipate[d] being haled into court" in Hawaii by responding to communications from various credit reporting agencies regarding plaintiff's credit status.  293 F. Supp. 2d 1156.

  Defendant insurer was subject to personal jurisdiction, where plaintiff's complaint alleged state law claims arising from insurer's "wrongful and bad-faith denial of its obligations to defend and indemnify" insured and its president against plaintiff's claims; insurer had issued an insurance policy indemnifying insured for liability arising from bodily injury and property damage caused by an occurrence within the coverage territory, and the coverage territory included the United States of America, Puerto Rico, and Canada.  304 F. Supp. 2d 1232.

  Where plaintiff sued defendant for allegedly violating plaintiff's rights under the Fourth, Fifth, and Fourteenth Amendments, based on defendant's involvement in the removal and subsequent destruction of motorcycles and mopeds in the area of plaintiff's motorcycle repair shop, genuine issues of material fact existed and precluded the court from determining whether defendant was entitled to qualified immunity under federal law.  333 F. Supp. 2d 942.

  Plaintiffs' motion for preliminary injunction granted as to their due process claim, where plaintiffs asked the court to require defendants to, inter alia, refrain from failing to protect plaintiffs from anti-lesbian, gay, bisexual, and transgender peer harassment and abuse at a secure juvenile correctional facility.  415 F. Supp. 2d 1129.

  Specific jurisdiction test discussed, where court denied nonresident defendants' motion to dismiss for lack of personal jurisdiction.  416 F. Supp. 2d 948.

  Where plaintiff contended that enforcement of §§134-6 and 134-9 violated plaintiff's individual right to carry a gun and right to due process under the Fourteenth Amendment, plaintiff's complaint failed to state a claim on which relief may be granted for violation of plaintiff's due process rights and dismissal of the claim was warranted.  548 F. Supp. 2d 1151.

  Defendant's motion to dismiss for lack of personal jurisdiction denied; among other things, defendant had purposefully availed itself of the forum by installing retarders in custom built vehicles which it knew were to be used in Hawaii, the alleged malfunctioning of which caused harm in this State.  556 F. Supp. 2d 1162 (2008).

  Plaintiff, a nonprofit health maintenance organization, did not state a valid due process claim, where plaintiff alleged that defendants deprived it of a liberty/property interest without due process of law when defendants removed plaintiff's "automatic eligibility conferred by federal law ... to receive a contract" regarding the QUEST expanded access program.  567 F. Supp. 2d 1238 (2008).

  Ordinance that repealed chapter 38, Revised Ordinances of Honolulu, which allowed owners of long-term leasehold interests to convert them into fee interests through the city and county of Honolulu's eminent domain power, did not violate plaintiffs' substantive due process rights.  630 F. Supp. 2d 1233 (2009).

  Plaintiff made a prima facie case that the court had specific personal jurisdiction over defendant; the court's exercise of personal jurisdiction would comport with due process and defendant's contacts with Hawaii, as alleged and evidenced by plaintiff, satisfied Hawaii's long-arm statute (§634-35).  664 F. Supp. 2d 1103 (2008).

  Defendants failed to meet their burden to demonstrate that they were entitled, either factually or legally, to summary judgment as a matter of law on the merits of a due process claim, in a 42 U.S.C. §1983 civil rights lawsuit brought by a former state prisoner and other allegedly similarly-situated plaintiffs primarily seeking damages for "over detention".  678 F. Supp. 2d 1061 (2010).

  Defendants' motion to dismiss plaintiff's equal protection and due process claims denied, where defendants claimed, among other things, that:  (1) the circuit court and the liquor commission had primary jurisdiction; and (2) plaintiff failed to sufficiently allege that it was treated differently than similarly situated individuals.  Defendants' motion to stay proceedings pending the resolution of plaintiff's appeals of the liquor commission's decisions currently before the circuit court, granted.  681 F. Supp. 2d 1209 (2009).

  Defendant social worker was not entitled to qualified immunity because defendant did not have specific, articulable evidence that provided reasonable cause to believe that the subject child was in imminent danger of abuse before defendant took custody of the child; the lack of exigency would have been apparent to any reasonable social worker and defendant violated plaintiffs' clearly established Fourth and Fourteenth Amendment rights by taking custody of the child without a warrant.  683 F. Supp. 2d 1097 (2009).

  Defendants' motion for summary judgment granted on plaintiff's 42 U.S.C. §1983 claim where defendant police officers and public safety aids were not subjectively aware of decedent pre-trial detainee's serious medical needs, and were therefore not deliberately indifferent to detainee, and did not violate the detainee's Fourteenth Amendment rights; defendants' subjective knowledge that detainee could have been monitored more closely or thoroughly was not commensurate with the subjective knowledge that the detainee faced a substantial risk due to a lack of close or thorough monitoring.  727 F. Supp. 2d 898 (2010).

  Summary judgment denied to two defendant police officers and one defendant public safety aid on plaintiff's 42 U.S.C. §1983 claim where a reasonable factfinder could find that defendants were deliberately indifferent to decedent pre-trial detainee's serious medical needs in violation of detainee's Fourteenth Amendment rights; also, defendants were not entitled to qualified immunity because a reasonable fact finder could conclude that defendants were subjectively aware of and disregarded a substantial risk to detainee's health.  727 F. Supp. 2d 898 (2010).

  Section 481B-14 was not unconstitutionally vague in violation of due process; moreover, §481B-14 did not deny defendant hotel and resort employer due process because it did not automatically transform the service charges in question into the property of plaintiff hotel employees, who sought unpaid wages, because it permitted defendant the option of disclosing to customers that the service charges would not be paid to employees.  810 F. Supp. 2d 1145 (2011).

  Plaintiff physician had presented evidence that, under the circumstances, defendant hospital's decision to adopt a closed-department model for its radiation oncology department was unreasonable, arbitrary, and capricious because it was part of an attempt to eliminate all competition in the radiation oncology field in Hawaii; for the purposes of plaintiff's motion for a temporary restraining order, or in the alternative, for a preliminary injunction, plaintiff physician was reasonably likely to succeed on the merits of plaintiff's due process claim.  861 F. Supp. 2d 1170 (2012).

  Defendant police chief was entitled to qualified immunity from plaintiff firearm permit applicant's 42 U.S.C. §1983 claims for monetary damages for alleged violations of plaintiff's Second Amendment right to bear arms and Fourteenth Amendment procedural due process right because a reasonable official in defendant's circumstances would not have understood that defendant's conduct violated a right that was clearly established at the time of the denial of plaintiff's permit; §134-7, on which the denial was based, had not been invalidated by case or legislative action.  869 F. Supp. 2d 1203 (2012).

  Plaintiff firearm permit applicant's allegations that:  (1) plaintiff was deprived of plaintiff's fundamental constitutional right to bear operational firearms and ammunition as guaranteed by the Second Amendment; and (2) plaintiff was wrongfully denied a permit under §134-2 without being afforded minimal due process protection such as a meaningful opportunity to be heard and to have the decision reviewed, were sufficient to state a 42 U.S.C. §1983 claim for denial of procedural due process under the Fourteenth Amendment.  869 F. Supp. 2d 1203 (2012).

  It was "reasonable and readily apparent" that the court narrowly construed relevant Hawaii campaign provisions and interpreted the terms "to influence" and "for the purpose of influencing" in the definitions of "noncandidate committee" and "expenditure" in §11-302 as referring to express advocacy or its functional equivalent; so construed, the meaning of "influence" was "considerably more precise", and "ensur[ed] that persons of average intelligence will have reasonable notice of the provisions' coverage" so as not to offend due process.  872 F. Supp. 2d 1023 (2012).

  The definition of "advertisement" in §11-302, which was narrowly construed by the court and used the wording "advocates or supports the nomination, opposition, or election of the candidate", was not unconstitutionally vague.  872 F. Supp. 2d 1023 (2012).

  Hawaii's marriage laws (§572-1 and article I, §23 of the state constitution), which define marriage as a union between a man and a woman, are rationally related to legitimate government interests and do not violate the due process clause.  884 F. Supp. 2d 1065 (2012).

  Defendant's motion to dismiss for lack of personal jurisdiction granted, where plaintiff did not meet its burden of showing that defendant, an Idaho corporation not licensed to do business in Hawaii, had the minimum contacts with Hawaii necessary for the court to exercise personal jurisdiction over defendant.  887 F. Supp. 2d 1068 (2012).

  Plaintiff, a graduate student, was likely to succeed on the merits of plaintiff's due process claim where, among other things, amended letter from defendant, the university director of judicial affairs, deprived plaintiff of a meaningful opportunity to respond to allegations against plaintiff and plaintiff did attempt to respond to the allegations or to otherwise participate in the process.  927 F. Supp. 2d 1007 (2013).

  A probationary police officer does not have a property interest in continued employment, and the kind of procedural and substantive due process rights plaintiff described simply did not attach to plaintiff's job.  937 F. Supp. 2d 1220 (2013).

  Defendant's motion to dismiss for lack of personal jurisdiction denied; among other things, defendant, which manufactured high pressure turbine blades, purposefully availed itself of the privilege of conducting business in Hawaii with respect to plaintiff's negligence, strict liability, and negligent misrepresentation claims.  942 F. Supp. 2d 1035 (2013).

  Even if defendant, an employee of Hawaii Island Humane Society, had violated plaintiff's due process rights to notice, qualified immunity still applied because plaintiff's rights were not "clearly established" at the time of the violation.  947 F. Supp. 2d 1087 (2013).

  Summary judgment granted to defendants county of Hawaii, Hawaii Island Humane Society (HIHS), HIHS executive director, and HIHS officer as to plaintiff's constitutional claims.  Among other things, because state tort remedies may provide adequate post-deprivation relief, the HIHS defendants did not violate plaintiff's procedural due process rights.  947 F. Supp. 2d 1087 (2013).

  Summary judgment granted to defendants county of Hawaii, Hawaii Island Humane Society (HIHS), HIHS executive director, and HIHS officer as to plaintiff's constitutional claims.  Among other things, HIHS defendants did not take conscious action to deprive plaintiff of plaintiff's property in violation of plaintiff's constitutional rights; rather, defendants passively agreed to plaintiff's agents' decision to transfer the dogs through the general power of attorney and animal surrender policy form.  947 F. Supp. 2d 1087 (2013).

  Summary judgment granted to defendants county of Hawaii, Hawaii Island Humane Society (HIHS), HIHS executive director, and HIHS officer as to plaintiff's constitutional claims.  Among other things, as to plaintiff's substantive due process claim, HIHS defendants' decision regarding whether to honor a form submitted by plaintiff's purported agents was not the type of "egregious official conduct" that is "arbitrary in the constitutional sense", and their actions did not fall within the category of "the large concerns of the governors and the governed" that due process attempts to address.  947 F. Supp. 2d 1087 (2013).

  Plaintiff's rejection of all offered alternative public schools, in lieu of no schooling, did not constitute a deprivation of education.  Accordingly, plaintiffs were not deprived of a constitutionally-protected property interest in public education, and were not entitled to any procedural due process protections in connection with minor plaintiff's expulsion from defendant charter school.  950 F. Supp. 2d 1159 (2013).

  Plaintiff did not establish that plaintiff had a liberty or property interest under the Second Amendment that would trigger due process protection.  976 F. Supp. 2d 1200 (2013).

  Where plaintiff asserted violation of the Age Discrimination in Employment Act (ADEA) and plaintiff's due process rights under the Fifth and Fourteenth Amendments and under 5 U.S.C. §7701(c)(2)(A):  (1) because the Merit Systems Protection Board (MSPB) did not have jurisdiction over the nondiscrimination claim, plaintiff's case was not a "mixed case", and any appeal of the jurisdictional determination must be filed in the federal Circuit Court of Appeals, the district court lacked jurisdiction to hear plaintiff's appeal of the final MSPB decision pursuant to 5 U.S.C. §7703 and dismissed the due process claims; (2) to the extent that plaintiff relied on a Bivens-style claim, a Bivens suit against a federal official in his or her official capacity would merely be another way of pleading an action against the United States, which would be barred by the doctrine of sovereign immunity; and (3) even assuming that the district court had jurisdiction to hear the due process claims, to the extent that plaintiff asserted any age discrimination claims predicated on the U.S. Constitution, the ADEA's specific, complex procedural provisions provided the exclusive remedy for claims of age discrimination.  997 F. Supp. 2d 1144 (2014).

  Defendants' motion denied to the extent it sought dismissal of plaintiff's complaint for lack of personal jurisdiction, where plaintiff asserted tort and contract claims.  6 F. Supp. 3d 1068 (2014).

  It was contrary to and an unreasonable application of Brooks to remand the case to bolster the record since Kido supported petitioners' valid Brooks claim, and the record was already clear that the Kido exemptions did not apply.  23 F. Supp. 3d 1182 (2014).

  The record before the intermediate court of appeals clearly supported petitioner's Brooks claim that the trial court violated petitioner's right to remain silent and to control petitioner's own defense, as petitioner would not have taken the stand before petitioner's own witnesses if the trial court had not forced petitioner to do so.  Also, the magistrate judge erred in applying a harmless error analysis, as Brooks violations are structural errors, which require the presumption of prejudice and automatic reversal.  23 F. Supp. 3d 1182 (2014).

  Where, as a pro se criminal defendant, defendant was not permitted to have access to defendant's materials at the start of trial and the trial court failed to provide defendant with the option of continuing the trial, conditioned upon defendant's agreement to waive defendant's right to a speedy trial, especially given that defendant's materials were scheduled to arrive the next day, and compelling defendant to proceed without defendant's materials, defendant was denied defendant's due process right to adequately prepare defendant's defense.  121 H. 339, 219 P.3d 1126 (2009).

  Statute may be so vague as to violate due process.  43 H. 66.

  Ordinance prohibiting use of streets for soliciting sales does not violate due process clause.  43 H. 71.

  No constitutional right to preliminary hearing, and denial of hearing does not affect indictment.  45 H. 604, 372 P.2d 356.

  Generally speaking, public employment does not create property rights subject to the protection of due process.  48 H. 370, 405 P.2d 772.

  Criminal statute must be sufficiently definite, but only a reasonable degree of certainty is required.  49 H. 624, 636-38, 425 P.2d 1014.

  Penal sanctions, effect on requirement of legislative standards for administrative agencies in adoption of regulations.  49 H. 651, 657-58, 426 P.2d 626.

  Regulation of signs for aesthetic reasons not a denial of due process.  50 H. 33, 429 P.2d 825.

  Conduct of trial judge in examining and discrediting witnesses called by defendant may violate requirements of fair trial and due process.  50 H. 287, 439 P.2d 666.

  An ordinance proscribing "presence" at a cockfight is too vague to satisfy requirement of due process.  50 H. 384, 441 P.2d 333.

  Law providing for service of summons on nonresident motorist by publication does not violate due process clause.  50 H. 484, 443 P.2d 155.

  Trial by jury composed only of jurors meeting three-year residence qualification not denial of due process.  51 H. 195, 456 P.2d 805.

  Notice by publication provided by §531-14 was constitutionally insufficient by itself and should have been supplemented by notice by mail or personal service.  52 H. 145, 472 P.2d 494.

  Public employees seeking accidental disability retirement benefits are entitled to hearing on contested issues before board of trustees.  52 H. 212, 473 P.2d 866.

  Law imposing on private employers obligation to pay their employees for service on juries and public boards, constituted taking.  52 H. 327, 475 P.2d 679.

  Defendant in criminal proceedings is entitled to fair hearing on objections to appointed counsel.  52 H. 484, 479 P.2d 207.

  Law is void for vagueness when it neither gives fair notice of what conduct is prohibited nor prescribes fixed standards for adjudging guilt of accused.  52 H. 527, 480 P.2d 148.

  Law making presence in barricaded place a crime, was too vague and overly broad.  52 H. 604, 483 P.2d 997.

  Law together with other sections of part II, chapter 709, was invalid for failing to require proof of guilt beyond reasonable doubt.  53 H. 40, 487 P.2d 283.

  Right of accused to be convicted only upon proof by prosecution of all elements of the crime beyond reasonable doubt is constitutionally protected.  53 H. 110, 488 P.2d 322.

  Prejudicial conduct of prosecutor in presenting case to grand jury violates due process.  53 H. 226, 491 P.2d 1089.

  Admitting evidence of prior convictions to impeach criminal defendant's credibility imposes unreasonable burden on defendant's right to testify; §621-22 unconstitutional.  53 H. 254, 492 P.2d 657.

  Prosecutor's deliberate misrepresentation of law or fact which denies a defendant fair opportunity to prepare for trial may constitute denial of due process.  53 H. 536, 498 P.2d 635.

  Penal statute must clearly define proscribed behavior or it denies due process of law.  54 H. 1, 501 P.2d 363.

  Right to effective counsel in criminal trial.  54 H. 28, 501 P.2d 977.

  Personal jurisdiction over nonresidents--requirement that minimal contacts be such as give rise to or were causally connected with the obligation sought to be enforced in state court.  54 H. 597, 513 P.2d 165.

  Necessity of appointing interpreter for defendant who has difficulty understanding English.  54 H. 637, 513 P.2d 697.

  Honolulu ordinance prohibiting loitering by juveniles is too vague and overbroad.  54 H. 647, 513 P.2d 1385.

  Summary prejudgment garnishment statute is violative of due process as applied to bank accounts.  54 H. 656, 513 P.2d 1390.

  Method of selection of Bishop Estate trustee by supreme court justices not constitutionally defective; beneficiaries have no "property" right in selection process.  55 H. 104, 516 P.2d 1239.

  Mere lack of wisdom in enacting a statute does not render it void under the due process clause.  55 H. 148, 516 P.2d 715.

  Prerequisites for waiver of counsel and acceptance of guilty plea.  55 H. 336, 519 P.2d 892.

  Penal Code's classification of marijuana along with certain mild narcotic compounds not a violation of due process.  56 H. 501, 542 P.2d 366.

  In absence of expectancy of employment, non-tenured faculty does not have property interest in continued employment.  56 H. 680, 548 P.2d 253.

  Law requiring payment of taxes prior to judicial hearing, does not violate due process.  57 H. 1, 548 P.2d 246.

  Admission of irrelevant, prejudicial evidence of other offenses of defendant denies fair trial.  57 H. 17, 548 P.2d 1397.

  Cross-examination of defendant on credibility must be limited to defendant's capacity for truth.  57 H. 17, 548 P.2d 1397.

  Trial judge's prejudicial comments violate right to fair trial.  57 H. 17, 548 P.2d 1397.

  Constitutional errors in criminal trial that are harmless beyond reasonable doubt do not mandate reversal.  57 H. 26, 548 P.2d 1402.

  Convictions based on eyewitness identifications at trial, following a pretrial photograph identification, will be set aside if pretrial identification procedure was so suggestive as to create substantial likelihood of irreparable misidentification.  57 H. 150, 552 P.2d 357.

  The basic test of state jurisdiction to tax is whether tax bears reasonable fiscal relation to benefits given by the State.  57 H. 175, 554 P.2d 242.

  An accused need not be informed, prior to acceptance of guilty plea, about every collateral effect of a conviction.  57 H. 354, 556 P.2d 577.

  Imposition of both an excise tax on an activity and an ad valorem tax on the value of property did not violate due process.  57 H. 436, 559 P.2d 264.

  Due process not violated by court's refusal to permit certain voir dire questions.  57 H. 492, 559 P.2d 728.

  Statutes may authorize inferences of fact only if there is a natural and rational evidentiary relation between the facts proven and the fact inferred.  57 H. 526, 560 P.2d 110.

  Member of prosecution serving as agent of grand jury violated due process requirement of separation of functions.  57 H. 574, 560 P.2d 1309.

  Refusal by court to permit withdrawal of guilty plea under deferred acceptance of guilty plea procedure was not violative of due process.  58 H. 304, 568 P.2d 1194.

  Effect of news accounts prejudicial to defendant; protective measures required of trial court.  58 H. 356, 569 P.2d 891.

  Defendant's right to be present at all stages of trial; voluntary absence.  58 H. 425, 570 P.2d 848.

  Consideration of hearsay information by court in hearing on waiver of family court jurisdiction over juvenile does not violate due process.  58 H. 522, 574 P.2d 119.

  No duty on State to personally notify individuals of effective date of act.  59 H. 430, 583 P.2d 955.

  Failure of state court to observe procedures to protect defendant from being tried while incompetent to stand trial deprives defendant of due process right to fair trial.  60 H. 17, 586 P.2d 1028.

  State is required to prove every element of a criminal offense beyond a reasonable doubt.  61 H. 308, 603 P.2d 141.

  Pre-trial identification on a one-to-one show up.  62 H. 59, 610 P.2d 502.

  "To loiter about" in §445-43 is invalid for vagueness.  62 H. 147, 613 P.2d 354.

  Prosecutorial misconduct before grand jury must be extreme and clearly infringe upon jury's decision making function in order to serve as basis for quashing indictment.  62 H. 209, 614 P.2d 373.

  Defendant who leaves trial voluntarily waives right to be present at trial, which may continue as if defendant were present.  62 H. 309, 615 P.2d 91.

  Hearsay admissible if not deliberately used in place of better evidence to improve case for indictment.  62 H. 518, 616 P.2d 1383.

  Accused's right to a fair trial includes right to present matters in accused's defense, and government may not by its conduct render a material witness unavailable to defendant.  63 H. 27, 620 P.2d 728; 63 H. 34, 620 P.2d 732.

  The notice-of-alibi rule provides the defendant reciprocal right to discover the State's witnesses who will be used to rebut defendant's alibi witnesses and is not violative of due process.  63 H. 191, 624 P.2d 376.

  Lineup of accused and due process rights.  63 H. 354, 628 P.2d 1018.

  Notice provisions of tax lien statute failed to meet minimum standards of due process.  64 H. 4, 635 P.2d 938.

  Specific finding of unfitness need not be made prior to involuntary termination of parental rights.  64 H. 85, 637 P.2d 760.

  No violation in denial by trial court of defendant's request to examine identification witnesses where claim was impermissibly suggestive identification.  64 H. 217, 638 P.2d 324.

  Subjection of Nevada corporation to unemployment compensation contributions did not violate due process.  64 H. 274, 639 P.2d 1088.

  Peddling ordinance was unduly vague.  64 H. 499, 643 P.2d 1058.

  Availability of rehearings process and U.S. Supreme Court review of constitutional violations allegedly created by state supreme court decision provides aggrieved persons adequate opportunity to have arguments considered.  65 H. 641, 658 P.2d 287.

  No denial in summary termination of lease of public land.  66 H. 632, 672 P.2d 1030.

  Retrospective application of §584-7 to case did not violate due process.  67 H. 63, 677 P.2d 468.

  No constitutional right to examine probation officer's sentencing recommendation.  67 H. 408, 689 P.2d 754.

  No violation where civilian agent used to obtain prostitution convictions by engaging in sexual acts with defendants.  67 H. 608, 699 P.2d 983.

  Rational basis exists for treating public assistance recipients differently from other no-fault insurance policyholders.  68 H. 192, 708 P.2d 129.

  Violated where defendant was denied opportunity to challenge reasonableness of agency recommendation regarding restitution.  68 H. 292, 711 P.2d 1295.

  Prosecutorial suppression of favorable material evidence violates due process, regardless of any good faith or bad faith by State; violation where defendant sentenced under attempted murder statute which was not raised until after jury returned guilty verdict.  69 H. 204, 738 P.2d 812.

  Shackling of defendant during trial, discussed.  69 H. 633, 756 P.2d 1033.

  Not violated by proceedings conducted by city council when acting upon Shoreline Management Act permit.  70 H. 361, 773 P.2d 250.

  Violated where counselor of victim-witness was allowed to place hands upon victim's shoulders while victim was testifying.  70 H. 472, 777 P.2d 240.

  Bifurcating two methods of proof for the same offense into separate trials violated defendant's rights.  70 H. 528, 777 P.2d 1187.

  Plaintiff failed to show existence of clearly established substantive due process right in continued enrollment in university program under 42 U.S.C. §1983 claim where defendants raised defense of qualified immunity.  72 H. 586, 825 P.2d 1060.

  Claim that failure to call expert witnesses to rebut State's DNA profiling evidence introduced at motion in limine constituted ineffective assistance of counsel was meritless.  73 H. 130, 828 P.2d 1274.

  Counsel was not ineffective in failing to raise contention that defendant had not waived right to be present at trial where defendant had voluntarily absented oneself after trial had begun.  73 H. 147, 828 P.2d 281.

  Claim brought under 42 U.S.C. §1983 that exchange of ceded lands by State violated right to due process was barred by statute of limitations and res judicata.  73 H. 578, 837 P.2d 1247.

  Right not violated by defendant's absence from conference settling jury instructions as conference does not involve jury's presence or witness testimony.  74 H. 141, 838 P.2d 1374.

  Requires unbiased administrative adjudicators; no violation where §88-77 trustees not shown to have pecuniary or institutional disqualifying interest in adjudication.  74 H. 181, 840 P.2d 367.

  Written notice of specific charges not required for §710-1077(1)(a) direct summary criminal contempt case; contemnor's misconduct and judge's response did not require contempt trial before different judge.  74 H. 267, 842 P.2d 255.

  Section 707-716 not unconstitutional where threats sufficiently unequivocal, unconditional, immediate, and specific as to convey a gravity of purpose and imminent prospect of execution.  75 H. 398, 862 P.2d 1063.

  Post-conviction ineffective assistance of counsel HRPP rule 40 petition not prejudiced where defendant alleges facts that, if proven, would entitle defendant to relief and claim is not patently frivolous and without trace of support on the record.  75 H. 419, 864 P.2d 583.

  Third-party agreements homestead lessees entered into with third party non-Hawaiian farmers could not be considered property interests.  76 H. 128, 870 P.2d 1272.

  Circuit court did not commit an abuse of discretion in granting defendant's motion for new trial; circuit court's conclusions of law that possible juror misconduct at voir dire and juror misconduct during deliberations deprived defendant of a trial by twelve fair and impartial jurors not clearly erroneous.  76 H. 172, 873 P.2d 51.

  Because appellants had been afforded an adequate opportunity to challenge the fine assessed by department of land utilization on appeal--at both administrative and judicial levels--before they incurred any obligation to pay it, the application of the procedural mechanism set forth in section of land use ordinance had not violated their right to due process of law.  77 H. 168, 883 P.2d 629.

  Hawaiian Homes Commission Act beneficiaries on pastoral waiting list were entitled to contested case hearings at which Hawaiian homes commission must at least consider their applications for pastoral lot awards of sufficient acreage (within statutory limits) for commercial ranching activities.  78 H. 192, 891 P.2d 279.

  Presumption of nonconsent imposed on appellant a burden of persuasion of the nonexistence of an essential element of the crime with which appellant was charged; so construed, the presumption would violate due process clauses of Fourteenth Amendment and article I, §5 of Hawai‘i constitution by virtue of improperly shifting burden of proof to appellant.  78 H. 262, 892 P.2d 455.

  Reversible error where jury may have reached verdict by improperly shifting burden of proof from prosecution to defense by concluding that defendant had not established defendant's claim of extreme mental or emotional distress before considering whether prosecution had disproved that defense beyond a reasonable doubt. 80 H. 172, 907 P.2d 758.

  Section 703-309(1) not unconstitutionally vague as it describes with sufficient clarity level of force that may be justifiably used in discipline of a minor.  81 H. 5, 911 P.2d 725.

  Defendant received adequate notice that consecutive sentences may be imposed by sentencing court where court had that discretion by statute, and plain language of §706-668.5 informed defendant that defendant may be sentenced to consecutive sentences.  81 H. 309, 916 P.2d 1210.

  No facial violation of substantive due process by repeal of court reporter temporary certification rule as right to work not a fundamental right and certification requirement rationally furthers legitimate state interest in ensuring efficient administration of justice.  82 H. 329, 922 P.2d 942.

  No procedural violation where plaintiffs received prior notice and "opportunity to be heard at a meaningful time and a meaningful manner" prior to repeal of court reporter temporary certification rule.  82 H. 329, 922 P.2d 942.

  No violation of substantive due process by repeal of court reporter temporary certification rule where board did not apply rule to appellants in arbitrary or unreasonable manner or in a manner that had no substantial relation to public health, safety, morals, or general welfare.  82 H. 329, 922 P.2d 942.

  Defendant's due process right to fair hearing violated where circuit court refused to allow defendant's witness to offer relevant testimony in support of defendant's motion to suppress evidence.  83 H. 229, 925 P.2d 797.

  In the context of Child Protective Act proceedings involving parents neither resident nor domiciled in Hawaii, personal jurisdiction may not be exercised over a parent pursuant to §587-11 to terminate their parental rights unless due process requirements are satisfied.  83 H. 367, 926 P.2d 1290.

  Water commission's failure to hold contested case hearing on water management area designation pursuant to chapter 174C did not deny aquifer water user procedural due process.  83 H. 484, 927 P.2d 1367.

  Section 704-415 does not violate due process principles; at release hearing, insanity acquittee bears burden of proving by preponderance of evidence freedom from mental illness and dangerous propensities.  84 H. 269, 933 P.2d 606.

  In products liability action, cumulative effect of three alleged errors by trial court did not deny defendants right to fair trial where overwhelming and substantial evidence supported jury's verdict.  86 H. 214, 948 P.2d 1055.

  Prosecution's use of pre-scripted questions and answers in connection with its grand jury witnesses, called in a proceeding resulting in indictment of defendant, did not violate defendant's right by invading province of grand jury or induce unwarranted action by the grand jurors.  86 H. 282, 949 P.2d 122.

  Section 134-8 not unconstitutionally vague or overbroad on its face or as applied to defendant for "possession of a bomb".  87 H. 71, 951 P.2d 934.

  Although appellant was not afforded an opportunity to cross-examine witnesses who had testified at a public hearing but not before the zoning board of appeals, error was harmless beyond a reasonable doubt.  87 H. 217, 953 P.2d 1315.

  Director's exposure to materials outside the record constitutionally harmless beyond a reasonable doubt as director expressly declined to consider material in rendering decision.  87 H. 217, 953 P.2d 1315.

  Definition of "sexual contact" in §707-700 not unconstitutionally overbroad as it does not interfere with the constitutionally protected activity of nude dancing; section permits dancing in the nude and allows customers to look at performers dancing in the nude; the conduct prohibited is the touching of sexual or intimate parts.  88 H. 19, 960 P.2d 1227.

  Definition of "sexual contact" in §707-700 not void for vagueness as it establishes a bright line rule "you can look but you can't touch", gives a person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited, constitutes an explicit standard that avoids arbitrary and discriminatory enforcement and is not subjective.  88 H. 19, 960 P.2d 1227.

  Arrestee's right not violated by administrative driver's license revocation office's practice under §286-259 of denying all prehearing subpoena requests for witnesses other than law enforcement officials submitting sworn statements.  88 H. 55, 961 P.2d 620.

  A trial court must pass on a defendant's attempted withdrawal of the prior waiver of his or her right to testify, tendered before the commencement of closing arguments, pursuant to the "liberal approach", whereas such an attempted withdrawal tendered thereafter is subject to the "manifest injustice" standard.  88 H. 407, 967 P.2d 239.

  Where defendant did not meet burden of establishing plausible and legitimate reasons for withdrawal of defendant's prior waiver of defendant's right to testify, defendant failed to present "fair and just reasons" for defendant's request to exercise defendant's right to testify in defendant's own behalf; thus trial court did not abuse discretion by ruling that it would not reopen case.  88 H. 407, 967 P.2d 239.

  Where trial court's denial of defendant's post-verdict motion for a new trial--based on defendant's claim that defendant's attempt to withdraw defendant's waiver of right to testify in defendant's own behalf should have been allowed--was not "manifestly unjust", no abuse of discretion.  88 H. 407, 967 P.2d 239.

  Not violated by county's retroactive change, by ordinance, in property tax classification of time share units where county enacted ordinance to create uniformity in tax treatment of time share units, established a reasonable period of retroactivity of only six months, appellant did not acquire a vested right in a specific tax rate and no evidence that appellant would have been entitled to a refund had ordinance not been passed.  90 H. 334, 978 P.2d 772.

  Where an owner's right to a hearing subsequent to impoundment of a derelict vessel was not clearly established under §§200-48, 200-49, or other law at the time of state boating officers' actions, it was not unreasonable for officers to have believed it was lawful to dispose of vessel without a hearing; thus officers, in individual capacities, entitled to qualified immunity in 42 U.S.C. §1983 action.  91 H. 1, 979 P.2d 586.

  Where trial court erred by ruling that evidence of defendant's eligibility for HUD assistance was irrelevant under HRE rule 401 and thus inadmissible under rule 402 when evidence was probative of and relevant to defendant's requisite intent, defendant's right to present a complete defense violated.  91 H. 275, 982 P.2d 904.

  Three separate findings required by trial court before criminal defendant may constitutionally be involuntarily medicated with antipsychotic drugs, where it is alleged that the medication is necessary because the defendant poses a danger to himself or herself or others.  91 H. 319, 984 P.2d 78.

  Out-of-state attorneys, who were granted pro hac vice status, not denied procedural due process prior to revocation of status and imposition of sanctions where three separate oral notices were given to one attorney and to local counsel.  91 H. 372, 984 P.2d 1198.

  Right not violated where defendant failed to supply any evidence that prosecution acted in bad faith when it "inadvertently" destroyed evidence.  93 H. 87, 997 P.2d 13.

  Adverse party's right to fair tribunal in contested case hearing before water resource management commission not violated by land and natural resources department chairperson also serving as chairperson of water resource management commission under §174C-7(b) where legislature deemed it appropriate for one person to serve in both capacities and could override common law doctrine of incompatible offices which prohibited a person from serving in a dual capacity.  94 H. 97, 9 P.3d 409.

  Department of land and natural resources chairperson's dual status as chairperson of the water resource management commission and the department did not constitute a reversible due process violation where, although chairperson should have been precluded from presiding over the hearing, objecting party did not seek chairperson's disqualification, and where chairperson's disqualification would have prevented commission from acting on the case for lack of quorum, the "rule of necessity" demanded that chairperson preside over the hearing.  94 H. 97, 9 P.3d 409.

  Petitioners' right not violated, and water resource management commission's decision not invalidated by governor's remarks about merits of case where governor's comments arose in public forums apart from commission's proceedings, and, as there was no evidence of direct communication by the governor with the decisionmakers, petitioners failed to demonstrate the requisite nexus between the external political pressure and the actual decisionmaker.  94 H. 97, 9 P.3d 409.

  Petitioners' right not violated by attorney general simultaneously representing two state agencies and the water resource management commission, where dismissal of commission's deputy attorney general effectively cured the conflict of interest and petitioners failed to show that dismissal impaired commission's ability to decide case competently and impartially.  94 H. 97, 9 P.3d 409.

  Where department of land and natural resources was a party in a contested case proceeding before the water resource management commission, constitutional mandate that tribunal be impartial precluded chairperson of the commission, who was also chairperson of the department, from presiding over the hearing.  94 H. 97, 9 P.3d 409.

  Right not violated by district court affirming administrative driver's license revocation office's denial of motorist's request for continuance of driver's license revocation hearing where administrative driver's license revocation office properly considered the evidence before it at the time of the administrative hearing and imposed the statutorily mandated revocation period.  94 H. 232, 11 P.3d 457.

  Section 706-657 not unconstitutionally vague as section provides adequate guidance to a fact-finder charged with determining whether a murder was "especially heinous, atrocious, or cruel, manifesting exceptional depravity" and provides adequate notice to the person of ordinary intelligence that an enhanced sentence may be imposed if he or she intentionally or knowingly inflicts unnecessary torture on the murder victim and the victim in fact suffers unnecessary torture.  95 H. 1, 18 P.3d 203.

  Trial court did not err in denying defendant's motion to dismiss for pre-indictment delay where defendant did not demonstrate that defendant's alleged loss of memory, loss of potential witnesses and evidence, or failure of police to tape record defendant's confession caused substantial prejudice to defendant's right to a fair trial.  97 H. 170, 35 P.3d 197.

  Juror questioning of witnesses did not deprive defendant of fair and impartial trial where questions posed by jurors were carefully reviewed by the trial court and questions tending to elicit improper or inadmissible evidence were excluded.  97 H. 206, 35 P.3d 233.

  The right to a public trial is not implicated by the exclusion of a potential witness pursuant to the witness exclusionary rule; both the witness exclusionary rule and the right to a public trial ensure the appearance of fairness at trial; thus, defendant's right not violated by exclusion of defendant's father from the courtroom as a potential prosecution rebuttal  witness.  97 H. 206, 35 P.3d 233.

  Trial court abused its discretion in concluding there was manifest necessity for mistrial as circumstances creating apparent need for mistrial did not make it impossible for trial to proceed; in absence of manifest necessity, defendant should have been allowed to choose between continuing with trial or consenting to a mistrial; by moving for dismissal with prejudice, defendant did not "consent" to the mistrial; retrial thus barred by double jeopardy.  97 H. 238, 35 P.3d 755.

  As an aspect of procedural due process, individuals must, as needed, be provided an interpreter at family court proceedings where their parental rights are substantially affected.  99 H. 522, 57 P.3d 447.

  Where family court conducted an in camera review of the complainant's child protection services records and produced the relevant portions to defense counsel, defendant's due process rights not violated; and family court's order to seal the remaining portions of the child protection services file for appellate review did not constitute an abuse of discretion.  101 H. 172, 65 P.3d 119.

  Lost opportunities for concurrent sentencing, parole, and loss of parental rights do not affect a defendant's ability to present an effective defense, and thus do not constitute actual substantial prejudice to a defendant's due process right to a fair trial.  102 H. 183, 74 P.3d 6.

  Where there was no evidence that the trial court either reviewed the reasons for the preindictment delay prior to requiring a showing of actual substantial prejudice to the defendant or required a showing of something less than actual substantial prejudice, the trial court did not misapply the correct standard to be used to determine whether charges should be dismissed for preindictment delay.  102 H. 183, 74 P.3d 6.

  Vexatious litigant's due process right not impacted in present or future cases where litigant was only restrained from bringing unmeritorious litigation, which could be restricted in any event; as trial court held a hearing to review litigant's objections to prefiling order, order imposed on litigant under §634J-7 satisfied procedural due process because it afforded litigant notice and an opportunity to be heard.  102 H. 289, 75 P.3d 1180.

  Section 663-15.5 adequately protects a non-settling joint tortfeasor's right to procedural due process; subsections (b) and (c) afford a non-settling joint tortfeasor notice and an opportunity to be heard regarding the determination whether a settlement has been given in good faith and, consequently, bars cross-claims for contribution against the settling joint tortfeasor.  102 H. 399, 77 P.3d 83.

  No prosecutorial misconduct by prosecutor's questions and remarks regarding defendant's failure to "explain away" the DNA evidence as questions and remarks were more analogous to legitimate prosecutorial comment on the state of the evidence and not the improper shifting of the burden of proof onto the defendant.  103 H. 38, 79 P.3d 131.

  Where defendant's statements were not the product of "interrogation", but, rather, were "volunteered confessions or admissions, obtained independent of express police questioning or its functional equivalent", defendant's constitutional rights against self-incrimination and due process of law not violated.  104 H. 224, 87 P.3d 893.

  Appellants were not deprived of any identifiable property interest by the registration of an apprenticeship program, under chapter 372, initiated by the union, so as to invoke due process protections by way of a contested case hearing.  104 H. 275, 88 P.3d 647.

  Where lease was executed in contravention of chapter 343, power plant developers were not "existing Hawaiian homes commission act lessees"; trial court's decision that the lease was void did not deprive developers of any interest they were entitled to under the law.  106 H. 270, 103 P.3d 939.

  Applying the covered loss deductible under §431:10C-301.5 to plaintiff's recovery of underinsured motorist benefits did not violate plaintiff's right to substantive due process as the legislature's policy determination to enact this section to reduce one of the costs of the motor vehicle insurance system was expressly within the constitutional purview of the legislature.  106 H. 511, 107 P.3d 440.

  Assuming that possession of leased premises and rent to be paid into the trust fund are property interests protected under the due process clause, §666-21 does not offend due process as tenants are afforded an opportunity to challenge summary possession and motions for the establishment of a rent trust fund.  107 H. 73, 110 P.3d 397.

  In securing hearings, administrative driver's license revocation office's identification and sign-in procedure did not violate defendant's right to a public hearing as procedure serves an important government interest, the security procedure is unrelated to the content of the information disclosed at the hearings, and there is no less restrictive way to meet the goal of securing the hearings.  108 H. 31, 116 P.3d 673.

  Right not violated by administrative driver's license revocation hearing procedure where defendant was afforded a hearing where witnesses were called and defendant was represented by counsel, and hearing office advised counsel of the procedure that hearing officer was going to follow.  108 H. 31, 116 P.3d 673.

  Where effect of administrative driver's license revocation office's default decision was to deprive petitioner of driver's license, a constitutionally protected property interest, the risk of erroneous deprivation of this interest through the procedures the office used was great, and outweighed the government's interest, including the function of the office and the fiscal and administrative burdens that any additional or substitute procedural requirement would entail, procedural due process right denied.  110 H. 407, 133 P.3d 1199.

  As §207(c)(1)(A) of the Hawaiian Homes Commission Act does not provide a "statutory entitlement" to any entity which may be granted a license pursuant to it, plaintiff energy producer failed to establish that plaintiff's exclusive telecommunications service license issued under that section constituted "property" which would entitle plaintiff to due process protection.  110 H. 419, 134 P.3d 585.

  Where definition of "incapacitated person" in §560:5-101 (2003), when read as a whole, sufficiently apprised ward of the bases on which the court would review the guardianship petition and any ambiguity in the statute did not render it "substantially incomprehensible", so as to overcome the "presumption of constitutionality", definition was not unconstitutionally vague.  113 H. 236, 151 P.3d 717.

  Considerations of due process continue to require that the aggravating factors set forth in §291E-61(b) – all of which remain "attendant circumstances that are intrinsic to and 'enmeshed' in the hierarchy of offenses that §291E-61 as a whole describes" – be alleged in the charging instrument and proven beyond a reasonable doubt at trial.  114 H. 227, 160 P.3d 703.

  Landowner was not vested with a property interest--building a particular sized structure or building in a particular location--sufficient to implicate due process protection where landowner's deed related that the Kauai planning commission retained authority to amend the shoreline setback at the time of building permit review; landowner was nevertheless afforded due process by being given a full public hearing and the commission conducted a site inspection of the property before making its ruling.  115 H. 477, 168 P.3d 929.

  Defendant's right to have all elements of an offense proven beyond a reasonable doubt was statutorily protected under §701-114 and constitutionally protected under the Hawaii and federal Constitutions; as only defendant personally could have waived such fundamental right and such right could not have been waived or stipulated to by defendant's counsel, stipulation by defendant's counsel of the fact that defendant committed defendant's crime within two years of a second or prior conviction of abuse for purposes of the §709-906(7) charge violated defendant's due process rights.  116 H. 3, 169 P.3d 955.

  County park camping ordinance and rule was unconstitutionally overbroad where rule stated that certain conduct, according to the definition of camping, constituted camping "regardless of the intent of the participants or the nature of any other activities in which they may also be engaging", thus subjecting "innocent, constitutionally protected behavior as well as conduct which may be validly regulated", to a criminal penalty.  116 H. 146, 172 P.3d 458.

  County park camping ordinance and rule was unconstitutionally vague where rule stated that a camping without a permit violation occurs where "it reasonably appears, in light of the circumstances, that the participants in conducting certain listed activities were in fact using the area as a living accommodation regardless of the intent of the participants or the nature of any activities in which they may also be engaging", as this standard was internally inconsistent and incomprehensible to a person of ordinary intelligence and vested virtually complete discretion to the police to determine whether a person had violated the regulation.  116 H. 146, 172 P.3d 458.

  The "best interests of the child" standard in §571-46.3(2) (grandparent visitation statute) required the family court to give "special weight" to (i.e., uphold a rebuttable presumption in favor of) the visitation decisions of a custodial parent whose fitness had not been challenged; thus, the family court erred to the extent that it relied on Troxel to invalidate §571-46.3 (2003); however, as a "harm to the child" standard was constitutionally required and could not be read into §571-46.3 without making a substantive amendment to the statute, §571-46.3, as written, was unconstitutional.  116 H. 323, 172 P.3d 1067.

  Where (1) prosecutor argued the unreasonable inference that defendant was guilty in light of defendant’s post-arrest silence, (2) the trial court declined to give a curative instruction when defendant objected to prosecutor’s comments, and (3) the evidence against defendant was not so overwhelming that prosecutor’s intrusion into defendant’s right to remain silent may not have contributed to defendant’s conviction, prosecutor’s improper comments were not harmless beyond a reasonable doubt, and defendant was entitled to a new trial.  117 H. 235, 178 P.3d 1.

  Where candidates failed to show that the chief election officer had a "direct, personal, pecuniary interest" in the officer's exercise of judicial power, the trial court did not err in holding that candidates were provided with a fair administrative hearing.  117 H. 323, 179 P.3d 1050.

  Invocation of a court's inherent power to provide process where none exists, by reforming §706-662 (1996) to allow for jury fact-finding did not violate defendant's due process right, where assigning the fact-finding role to the jury would be a procedural, as opposed to a substantive, change that would not expand the scope of criminal liability, increase punishment, or alter any evidentiary burdens to defendant's detriment, but, rather, would simply change the course to a result.  117 H. 381, 184 P.3d 133.

  Where the State promised as a condition of the plea agreement to "take no position" on petitioner's deferred acceptance of no contest plea (DANCP) motion but prosecutor's comments directly addressed the issues pertinent to the motion, the terms of the agreement were not fulfilled and petitioner was denied petitioner's due process rights; because this contravention of petitioner's DANCP plea agreement violated petitioner's fundamental rights and resulted in manifest injustice, this was plain error under HRPP rule 52, the error was not harmless beyond a reasonable doubt and sentencing by another judge was the proper remedy.  122 H. 92, 223 P.3d 157 (2010).

  Where petitioner lacked "written notice" that probation revocation was sought because petitioner was a high risk to commit another offense, and petitioner was not notified of the "evidence" of other sexual assaults that was used "against" petitioner in seeking revocation, petitioner's due process rights were violated.  125 H. 114, 254 P.3d 425 (2011).

  Where the Tauiliili decision did not "reform" the law in any way--did not overrule any prior decision of the Hawaii supreme court with regard to application of presentence credit to two or more consecutive sentences and was the first opportunity for the court to interpret §706-671 on that issue--and did not increase the punishment for the crime for which defendant was convicted, the court's construction of §706-671 reflected the correct reading of the statute, not an expansion of it, and did not violate due process.  125 H. 429, 263 P.3d 709 (2010).

  Court's ruling that evidence of defendant's juvenile proceedings could be admissible violated §571-84(h) and constituted reversible error, where ruling was a reason defendant decided not to testify, infringed on defendant's constitutional right to testify, and there was a reasonable possibility that the court's error might have contributed to defendant's conviction.  127 H. 432, 279 P.3d 1237 (2012).

  The Hawaii supreme court had appellate jurisdiction over, and petitioners had a due process right to a hearing and judicial review of the commission on water resource management's (CWRM) interim instream flow standards (IIFS) determination where: (1) the analysis that the CWRM had to undertake in setting IIFS was complex and involved significant and thorough analysis and factfinding, taking into consideration the factors specified in §174C-71(2)(D); and (2) the ramifications of an erroneous IIFS could offend the public trust, and was too important to deprive the parties of due process and judicial review.  128 H. 228, 287 P.3d 129 (2012).

  Where a defendant has expressed an intention to be absent from the proceedings and the court has the opportunity to address the defendant, trial courts should advise a defendant of the constitutional rights that will be lost upon exiting a courtroom; by engaging defendants in this manner, the trial courts seek to ensure that a defendant makes an informed decision not to be present.  128 H. 479, 291 P.3d 377 (2013).

  The trial court's questioning of witness seemingly clarified and developed the evidence and it could not be concluded on the record that the court was biased.  Although it could not be ascertained definitively whether the court considered witness' testimony, the court would be acting within its discretion to do so inasmuch as the court's questioning of witness only clarified and developed the testimony.  129 H. 30, 292 P.3d 1260 (2013).

  Advisement by the family court did not adequately ascertain whether petitioner understood petitioner's constitutional right to testify or not to testify, as required by the Hawaii supreme court in Tachibana v. State.  Moreover, petitioner's need for an interpreter during the trial was a "salient fact" heightening the necessity for the court to insure that petitioner understood the rights petitioner waived.  Accordingly, the court did not obtain a valid on-the-record waiver of petitioner's right to testify.  130 H. 83, 306 P.3d 128 (2013).

  Charge of excessive speeding under §291C-105(a)(1) against petitioner dismissed where the charge did not allege that petitioner acted intentionally, knowingly, or recklessly thus failing to allege the requisite state of mind.  A charge that fails to charge a requisite state of mind cannot be construed reasonably to state an offense and thus the charge was dismissed without prejudice because it violated due process.  130 H. 353, 311 P.3d 676 (2013).

  Where the written submission of plea form in which defendant entered a plea of no contest solely to the subsection (a)(1) method of proof, was silent regarding subsection (a)(3), and the hearing transcript revealed some ambiguity as to the State's and district court's understandings of the plea, the court construed the State as having given up its ability to prosecute defendant under subsection (a)(3) in exchange for defendant's conditional plea under subsection (a)(1); in these circumstances, permitting the State to prosecute defendant under subsection (a)(3) would allow the State to avoid its end of the bargain, and would thereby violate defendant's due process rights.  131 H. 1, 313 P.3d 690 (2013).

  To prevent future misunderstandings over the significance and effect of the planning director's statements and correspondence, it would be beneficial for the planning director to clearly indicate when an appealable decision has been made and how an interested person may challenge the decision.  131 H. 513, 319 P.3d 432 (2014).

  Where the district court's ultimate Tachibana colloquy was defective because it incompletely advised defendant of defendant's right to testify and because it did not establish that defendant understood defendant's rights, the district court did not obtain an on-the-record waiver of the right to testify from defendant; defendant demonstrated a constitutional violation of defendant's right to testify, which could not be considered harmless.  132 H. 85, 319 P.3d 1093 (2014).

  Where the defendant presented extensive evidence, called four expert witnesses, submitted two scientific studies, and presented multiple lay witnesses, the defendant was not deprived of due process because the defendant had a meaningful opportunity to present arguments and evidence at the contested case hearing.  132 H. 247, 320 P.3d 912 (2014).

  Four-month delay between date of offense and date of indictment was not a violation of due process.  1 H. App. 121, 615 P.2d 109.

  Court did not abuse its discretion in denying motion for deferred acceptance of guilty plea and motion to reconsider.  1 H. App. 157, 616 P.2d 227.

  Trial judge has duty to determine admissibility of inculpatory statement prior to jury's exposure to such evidence.  1 H. App. 221, 617 P.2d 98.

  Purpose of family court waiver hearing is not to determine whether minor committed offense alleged or even to determine probable cause.  Presumption that charges are true does not violate due process.  1 H. App. 243, 617 P.2d 830.

  State must prove every material element of offense beyond a reasonable doubt.  1 H. App. 544, 622 P.2d 619.

  Testimony presented through interpreter was understandable, comprehensible, and intelligible.  5 H. App. 20, 686 P.2d 28.

  Not violated by trial court's refusal to allow further examination of witness.  5 H. App. 127, 681 P.2d 573.

  Violated where previously accepted expense item in ratemaking was disallowed without giving utility notice and chance to be heard.  5 H. App. 445, 698 P.2d 304.

  Deprivation of property solely on basis of substituted service in adverse possession action violates due process, where, with due diligence, actual notice possible.  6 H. App. 241, 718 P.2d 1109.

  Does not require agency hearing before tax director issues notices of tax assessment.  6 H. App. 260, 718 P.2d 1122.

  Not violated by bailiff's statement to jury foreperson that jurors should all agree with verdict if polled.  6 H. App. 320, 721 P.2d 718.

  Prohibiting defendant from challenging reliability of intoxilyzer test in DUI case violated due process.  7 H. App. 20, 740 P.2d 1017.

  In constructive criminal contempt proceedings, sufficient notice of hearing required.  7 H. App. 95, 746 P.2d 574.

  Prison rules did not create protected liberty interest.  7 H. App. 247, 753 P.2d 598.

  Act of state witness leaving witness stand in presence of security personnel was not so prejudicial as to deny defendant's right to fair trial; jury is presumed to adhere to court's cautionary instruction to draw no inference from event.  8 H. App. 624, 817 P.2d 130.

  Claim under 42 U.S.C. §1983 properly dismissed where award of delayed tenure to probationary university employee and alleged damage to employee's reputation alone did not implicate liberty or property interest sufficient to invoke due process protection.  9 H. App. 21, 821 P.2d 937.

  Trial court's failure to orally instruct jury about presumption of defendant's innocence and beyond-a-reasonable doubt concept heightened the risk that defendant would be found guilty and thus unfairly deprived defendant of defendant's right to due process and a fair trial.  77 H. 177 (App.), 880 P.2d 1224.

  Defendant's constitutional and statutory right to testify in defendant's own defense was violated where judge reproached defendant to follow defendant's attorney's advice and thus refrain from testifying, and the violation was plain error; denial of the right to testify was prejudicial and not harmless beyond a reasonable doubt.  78 H. 115 (App.), 890 P.2d 702.

  Motions court's order denying defendant's pre-trial motion to dismiss for pre-indictment delay affirmed, where, inter alia, motions court was correct in concluding that defendant failed to establish that defendant's claimed inability to recollect events prior to defendant's indictment, even with the aid of others, amounted to substantial prejudice to defendant's right to a fair trial.  79 H. 165 (App.), 880 P.2d 217.

  Violated where trial court's exclusion of gun-like cigarette lighter prejudiced defendant by precluding jury from properly evaluating essential defense evidence.  79 H. 385 (App.), 903 P.2d 690.

  Violated where defendant's assertions and defense counsel's representations raised good faith doubt whether defendant's failure to take medication affected defendant's legal competence to stand trial.  81 H. 332 (App.), 916 P.2d 1233.

  Not violated at sentencing where defendant received notice of information court was to consider, received notice that defendant might be subject to consecutive terms of imprisonment, and had the opportunity to participate in the proceedings concerning the information being considered.  81 H. 421 (App.), 918 P.2d 228.

  Section 291C-112, which prohibits the use of a vehicle "for purposes of human habitation", not unconstitutionally vague.  82 H. 269 (App.), 921 P.2d 1170.

  "Reasonable grounds" standard of §709-906(4) not unconstitutionally vague where standard is an objective standard requiring a trial court to independently assess facts and circumstances which responding officers had before them in determining to issue warning citations.  82 H. 381 (App.), 922 P.2d 994.

  Section 709-906(4) not overbroad as issuance of warning citation must be based on objective facts and circumstances, other than merely a complainant's claim, which would lead a reasonable police officer to believe recent physical abuse was inflicted on family or household member.  82 H. 381 (App.), 922 P.2d 994.

  Violated where claimant failed to serve employer and insurer with motion and summons; circuit court thus did not acquire personal jurisdiction over employer and insurer and judgment and garnishee summons issued pursuant to §386-91 in absence of personal jurisdiction void.  82 H. 405 (App.), 922 P.2d 1018.

  Procedural due process right not denied when guardian ad litem not appointed for mother where mother was provided with court-appointed attorney and, pursuant to §587-34(d), court determined mother was capable of comprehending legal significance of issues.  85 H. 119 (App.), 938 P.2d 178.

  Not violated by shooting victim being collaterally estopped in civil action against insurer from re-litigating issue of assailant's intent to cause victim's death where intent issue had already been decided in criminal trial.  85 H. 177 (App.), 938 P.2d 1196.

  Application of preponderance of the evidence standard as appropriate judicial basis for issuance of protective order under §586-5.5 does not violate right.  85 H. 197 (App.), 940 P.2d 404.

  Where an indictment is valid on its face, the burden is on the defendant seeking dismissal of indictment to prove that any improper presentation of evidence to grand jury was so extreme and flagrant that grand jury was clearly overreached or deceived in significant way.  86 H. 290 (App.), 949 P.2d 130.

  Section 707-731(1)(c), providing offense of second degree sexual assault for state correctional facility employee who knowingly subjects imprisoned person to sexual penetration, not unconstitutionally vague.  86 H. 426 (App.), 949 P.2d 1047.

  Right not violated:  (1) by setting of trial date before previously scheduled pre-trial hearing date where need for pre-trial hearing was obviated by appellant's decision to forgo second genetic test for paternity; and (2) where no showing that judge was not neutral and unbiased in deciding case.  88 H. 159 (App.), 963 P.2d 1135.

  As no Hawaii statute governing parole requires a parolee's parole to be automatically revoked upon the parolee's conviction and sentence to imprisonment for a crime committed while on parole, and §353-62 appears to vest Hawaii paroling authority with discretion to revoke parole, parolee's right violated when authority summarily revoked parole without giving parolee a final revocation hearing.  88 H. 229 (App.), 965 P.2d 162.

  Section 852-1 not void for vagueness as:  (1) a person of ordinary intelligence would have a reasonable opportunity to know that it is unlawful to refuse or wilfully fail to move as directed by an officer; (2) person may then choose between the lawful and unlawful conduct; and (3) the statute provides sufficiently explicit standards for those who apply it.  89 H. 27 (App.), 968 P.2d 194.

  Section 52D-8 provides officers with a constitutionally protected property interest--the right to legal representation for acting within the scope of their duty; due process thus entitles an officer to a contested case hearing under chapter 91 before the officer can be deprived of this interest.  89 H. 221 (App.), 971 P.2d 310.

  Minor's right to due process and fair hearing not violated where minor failed to show that trial delay was prejudicial, that minor's defense was in any way impaired by the passage of time, or that minor was denied a fair hearing.  91 H. 147 (App.), 981 P.2d 704.

  Right violated by trial court entering free-standing restitution order where no notice was provided to defendant that defendant's original sentence might be modified at the hearing on the probation officer's motion to revoke restitution.  92 H. 36 (App.), 986 P.2d 987.

  As §604-10.5(h) provides that there can be no criminal conviction unless "[a] knowing or intentional violation of a restraining order or injunction" has occurred, harassment under §604-10.5(a)(1) is not turned into a "strict liability" offense; thus, no violation of due process under §604-10.5(a)(1).  92 H. 312 (App.), 990 P.2d 1194.

  Section 604-10.5(a)(1) not unconstitutionally overbroad as it imposes no criminal liability nor places any burden on the reduced punishment or complete defense provisions of the penal code.  92 H. 312 (App.), 990 P.2d 1194.

  Where trial court's initial jury instruction and subsequent unanimity instructions, read in conjunction with each other, failed to maintain the defendant's presumption of innocence during the jury's consideration of the unanimity requirement, defendant's right to a fair trial violated.  92 H. 675 (App.), 994 P.2d 607.

  The judicial foreclosure system in Hawaii, pursuant to §667-1, is not clearly, manifestly and unmistakably violative of due process; considering the two basic elements of procedural due process--notice and the opportunity to be heard--appellants were afforded due process.  94 H. 422 (App.), 16 P.3d 827.

  Where counsel for successful bidder at a judicial foreclosure sale was aware at time of hearing on motion for cancellation of sale that the damages mortgagee bank had prayed for exceeded bidder's deposit, and had the opportunity to challenge, at the hearing, the damages the bank was seeking, bidder's right not violated.  96 H. 348 (App.), 31 P.3d 205.

  Defendant's right violated where, based on the specific facts of the case, trial court abused its discretion in directing, over defendant's objection, that defendant testify before defendant's other defense witness; error not harmless beyond a reasonable doubt as there was a reasonable possibility that trial court's error contributed to defendant's conviction.  102 H. 369 (App.), 76 P.3d 612.

  Having been previously convicted of driving without motor vehicle insurance, driver was clearly on notice that driving without motor vehicle insurance was a criminal offense; thus, revocation of driver's suspended sentence for commission of the same offense during the period of suspension did not implicate driver's due process rights.  106 H. 391 (App.), 105 P.3d 1197.

  Where family court had neither general nor specific jurisdiction over father, court erred in entering default judgment against father in mother's child support action.  110 H. 294 (App.), 132 P.3d 862.

  Right not violated and trial court did not abuse discretion in ordering that defendant remain shackled during sentencing hearing where transcript of sentencing hearing contained no indication that the shackling in any way inhibited defendant from understanding what was going on, asserting defendant's self or consulting with counsel, or that the shackling in any way actually influenced or inclined the trial court against defendant.  111 H. 457 (App.), 142 P.3d 1286.

  Although consulting counsel had limited powers and duties in family court's pilot program proceedings for permanent custody, mother had the benefit of full representation of counsel and was not denied her right to due process.  113 H. 499 (App.), 155 P.3d 682.

  Loss of photographs did not violate defendant's due process rights where even if the lost photographs failed to depict any packets of crystal methamphetamine within defendant's bag, it would not have exculpated defendant; the lost photographs could only have diminished the strength of the State’s evidence; they could not have provided defendant with a complete defense; thus, the potential exculpatory value of the lost photographs was not compelling.  114 H. 162 (App.), 158 P.3d 280.

  Given the apparent absence of a "countervailing state interest of overriding significance", family court's restrictions violated mother's right to free access to the courts where family court required mother, if she was represented by an attorney, to access the record in the case only through a licensed Hawaii attorney or other attorney admitted pro hac vice, or allowing mother, if she was representing herself pro se, to access the record only if she was accompanied by a family court staff person.  118 H. 293 (App.), 188 P.3d 807.

  Where father was not appointed counsel until sixteen days prior to the permanent custody trial of father's two biological sons, applying the case-by-case balancing test of Lassiter--(1) the private interests at stake, (2) the government's interest, and (3) the risk that the failure to appoint counsel will lead to an erroneous decision--father was deprived of father's due process right.  119 H. 28 (App.), 193 P.3d 1228.

  Where mother had a fundamental liberty interest in her right of care, custody, and control of child, and under this Amendment and the Hawaii constitution, article I, §5, the State could not deprive mother of this interest without providing a fair procedure for deprivation, family court's ex parte order awarding father sole custody of child deprived mother of custody of child without the constitutionally required procedural protections.  120 H. 149 (App.), 202 P.3d 610.

  Sections 707-730(1)(b) and 707-732(1)(b), as applied to private consensual acts between two persons, including minors, did not violate minor's right to privacy as the State has at least a significant interest in regulating the sexual activities of children under the age of fourteen; in addition, there is no fundamental personal privacy right for minors under the age of fourteen to engage in sexual activities with other children under the age of fourteen; this applies to young boys, as well as to young girls, and is not strictly dependent on an age differential between the children.  121 H. 92 (App.), 214 P.3d 1082 (2009).

  State's exercise of prosecutorial discretion in the case was not constitutionally infirm where defendant failed to meet the burden of demonstrating that defendant was prosecuted based on an arbitrary classification; defendant was prosecuted under §§707-730 and 707-732 based on allegations that defendant was significantly older than child #1, had initiated the prohibited sexual activities with child #1 and child #2, and had engaged in multiple instances of prohibited sexual contact with more than one child.  121 H. 92 (App.), 214 P.3d 1082 (2009).

  Granting the labor relations board exclusive original jurisdiction over plaintiff's action under §89-14 did not violate plaintiff's substantive due process rights; as plaintiff's fundamental right was not implicated, granting the board exclusive original jurisdiction over public sector prohibited practice controversies was rationally related to the public policy of chapter 89 - that it would be more effective in promoting harmonious governmental employer-employee relations and assuring the effective operation of government for these controversies to be first decided by the board rather than the courts.  125 H. 317 (App.), 260 P.3d 1135 (2011).

  Section 89-14 did not violate plaintiff's procedural due process rights where: (1) chapter 89 afforded plaintiff the opportunity to present plaintiff's action to the labor relations board in an administrative hearing; (2) the decision of the board required a majority vote of its three members, and one member each must be representative of management, labor, and the public; and (3) any person aggrieved by a decision of the board could appeal that decision to the circuit court.  125 H. 317 (App.), 260 P.3d 1135 (2011).

  Chapter 586 is not unconstitutional, as the right of parents to discipline their children is not unlimited; as parents do not possess a fundamental right to inflict force or harm upon a child that the legislature has deemed to be excessive and harmful to the child's welfare, a rational basis review applied to that chapter; under that review, ex parte TROs under chapter 586 were rationally related to the legitimate state interest in protecting minors from physical and psychological harm.  125 H. 330 (App.), 260 P.3d 1148 (2011).

  The process for obtaining an ex parte temporary restraining order under chapter 586 did not fall short of the constitutional requirements of procedural due process where the strength of the State's and petitioner's interests, the "emergency nature of the decision", and the "practical difficulties inherent in convening an immediate evidentiary hearing" mitigated against requiring further procedural protections.  125 H. 330 (App.), 260 P.3d 1148 (2011).

  Where defendant's HRPP rule 40 petition presented a colorable claim that the Hawaii paroling authority (HPA) acted arbitrarily and capriciously by increasing defendant's aggregate minimum term of imprisonment without providing an adequate justification so as to give rise to a due process violation, and defendant's petition presented a colorable claim of actual vindictiveness given the lack of pertinent evidence in the record regarding the HPA's justification for the increased aggregate minimum term, circuit court erred in denying defendant's petition without a hearing.  126 H. 555 (App.), 273 P.3d 1241 (2012).

  Plaintiff's right to procedural due process violated where defendant department of Hawaiian homelands (DHHL) and DHHL officials impounded plaintiff's trespassing cattle and sold the cattle, permanently depriving plaintiff of a significant property interest and in doing so, did not provide plaintiff with adequate prior notice and an opportunity to be heard.  Further, no qualified immunity for defendant DHHL officials given that they should have known their actions violated statutory requirements and due process.  129 H. 123 (App.), 295 P.3d 993 (2013).

  Defendant's right to due process not violated where defendant's waiver of defendant's right to a termination hearing from the drug court program (program) was voluntarily and intelligently undertaken under the totality of the circumstances.  Defendant was advised at three different hearings about the legal rights defendant would give up and the consequences of self-termination from the program, signed an admission agreement acknowledging that defendant understood what would happen upon termination from the program, and was warned repeatedly by the trial court regarding the consequences of termination from the program.  129 H. 135 (App.), 295 P.3d 1005 (2013).

  Respondent's conduct was sufficient to give rise to tort liability and some award of punitive damages based on respondent's intentional conduct, but did not rise to the high degree of reprehensibility necessary to warrant the amount of punitive damages awarded to petitioner by the circuit court in violation of respondent's due process rights.  130 H. 58 (App.), 305 P.3d 474 (2013).

  Assuming arguendo that the right to familial association extends to the maternal aunt of a child who is currently living with foster parents and under the custody of the department of human services, the department lacked the right to vicariously assert that right on the child's maternal aunt's behalf; department had not shown that maternal aunt was somehow hindered from asserting that right, e.g., prevented from appealing from the prior family court ruling or intervening in the current appeal.  130 H. 486 (App.), 312 P.3d 1193 (2013).

  Section 707-756 was not unconstitutionally overbroad and/or vague as applied to defendant, and the circuit court did not err in denying defendant's motion to dismiss the indictment on that basis where, among other things, when the statute was read as a whole, it was clear that only criminal conduct was proscribed and the statute plainly criminalized conduct that is coupled with the intent to promote or facilitate the commission of a felony.  131 H. 312 (App.), 318 P.3d 602 (2013).

 

Equal protection.

  Durational residency requirement for preferential rates for mooring privileges in small boat harbors not significant penalty on right to travel.  651 F.2d 661.

  No racially discriminatory motive despite disproportionate impact upon Caucasians of residency requirement.  651 F.2d 661.

  Claim arose where council made decision to finance the special election with private funds.  849 F.2d 1176.

  Not violated by Endangered Species Act where differential treatment between native Hawaiians and native Alaskans justified by importance of subsistence hunting in native Alaskan culture.  945 F.2d 254.

  Young adults do not constitute cognizable group for purposes of equal protection challenge to composition of petit jury.  986 F.2d 1259.

  Court's finding that government did not engage in purposeful discrimination in jury selection process was not clearly erroneous.  995 F.2d 1448.

  No qualified immunity for state officials where reasonable state official would have known of complainant's constitutional right to be free from sexual harassment.  39 F.3d 1021.

  No qualified immunity for supervising state official where state officials knew of sexual harassment complaint and failed to take any action.  39 F.3d 1021.

  Not violated by state small boat harbor mooring and anchoring regulations imposing higher fees on nonresidents than residents.  42 F.3d 1185.

  Not violated by rule that, for purposes of criminal history calculation, state conviction for conduct which occurred after defendant's federal offense, but for which defendant was sentenced before defendant's sentencing on the federal offense, is counted as a prior sentence.  44 F.3d 749.

  Ordinance creating mechanism through which condominium owners could convert their leasehold interests into fee simple interests was constitutional.  124 F.3d 1150.

  Ordinance requiring all publishers who wished to distribute their publications along sidewalks in the Waikiki special district to use one of two sets of newsracks, one reserved solely for publications that charge readers and one just for free publications, did not violate the equal protection clause of the U.S. Constitution.  298 F.3d 1037.

  Appellants who claimed that article XII of the state constitution and the statutes implementing it violated the equal protection clause because it restricted benefits to only those classified as "native Hawaiians" or "Hawaiians", lacked standing.  342 F.3d 934.

  Ordinance prohibiting aerial advertising did not violate the First Amendment or the equal protection clause of the Fourteenth Amendment.  Honolulu's airspace was a nonpublic forum, and the ordinance was reasonable, viewpoint neutral, and rationally related to legitimate governmental interests.  455 F.3d 910.

  Where plaintiffs alleged that various state programs preferentially treated persons of Hawaiian ancestry in violation of, inter alia, the Fourteenth Amendment, plaintiffs, as state taxpayers, lacked standing to bring a suit claiming that the office of Hawaiian affairs (OHA) programs funded by state tax revenue violate the equal protection clause.  If any plaintiffs were able to establish standing, their challenge to the appropriation of tax revenue to OHA did not raise a nonjusticiable political question.  477 F.3d 1048.

  Independent candidates for president denied access to State's ballot for the 2004 election appealed district court's holding that relevant provisions governing access do not violate the First and Fourteenth Amendments or the equal protection clause; district court's holding that the presidential ballot access scheme is constitutional, affirmed.  620 F.3d 1214 (2010).

  Hawaii's discretionary decision not to provide optional coverage for Compact of Free Association with United States residents, authorized by the Welfare Reform Act, was subject to rational-basis review.  748 F.3d 875 (2014).

  Where plaintiffs claimed that Basic Health Hawaii violated the equal protection clause because it provided less health coverage to Compact of Free Association with the United States residents than the health coverage that Hawaii provided to citizens and qualified aliens eligible for federal reimbursement through medicaid, plaintiffs failed to offer any evidence that Hawaii had not closely followed the federal direction and adhered to requirements prescribed by Congress.  Plaintiffs also did not allege that state expenditures for health insurance for aliens within the discretionary category were less than the state expenditures for health insurance for others.  748 F.3d 875 (2014).

  Where plaintiffs challenged the lack of parity in benefits that Compact of Free Association (COFA) residents received through Basic Health Hawaii as compared to benefits provided through medicaid, the Ninth Circuit Court vacated the district court's grant of a preliminary injunction preventing Hawaii from reducing state-paid health benefits for COFA residents.  The Ninth Circuit Court determined that rational-basis review applied to Hawaii's conduct, which was consistent with Graham and the Supreme Court's equal protection cases, because Hawaii was merely following the federal direction set forth by Congress under the Welfare Reform Act.  797 F.3d 572 (2014).

  Classification according to criminal record is not constitutionally suspect.  402 F. Supp. 84.

  Durational residency requirement for public employment has sufficient impact on right to travel to require statute be justified by compelling state interest test.  443 F. Supp. 228.

  Statistical evidence that tenure was awarded to almost everyone on the faculty who applied does not establish denial of equal protection.  469 F. Supp. 443.

  Natural parents are not a suspect class.  Classifications drawn by parental tort liability statute are not irrational.  Parental tort liability statute did not affect any fundamental rights, and has rational relation to legitimate government interests.  529 F. Supp. 394.

  Deductions from cost of living allowance paid to civilian employees who had commissary and exchange privileges unconnected to employment did not deny equal protection.  545 F. Supp. 356.

  State plan to reapportion house of representatives was unconstitutional because it failed to reasonably further rational policy of providing each basic island unit with meaningful representation.  Total population in redistricting of senate, 43.18%, was facially violative of equal protection.  552 F. Supp. 554.

  Use of registered voters as population base was impermissible because State failed to show that registered voter base substantially approximated results of using a population base.  552 F. Supp. 554.

  No evidence of economic discrimination regarding special elections or that equal access denied to voter lists.  623 F. Supp. 657.

  Definition of "Hawaiian" without reference to blood quantum does not violate equal protection.  631 F. Supp. 1153.

  Durational residency requirement for gubernatorial candidates does not violate equal protection clause.  639 F. Supp. 1552.

  Native Hawaiians have no standing to challenge constitutionality of Hawaiian Homes Commission Act on equal protection grounds as they would be asserting the rights of non-Hawaiian third parties.  795 F. Supp. 1009.

  Not violated where city ordinance providing mechanism for transfer of fee simple interest from condominium lessors to lessees did not intentionally discriminate against Native Hawaiians.  802 F. Supp. 326.

  Violated by use of excessive force by prison personnel against inmates.  818 F. Supp. 1333.

  Condominium lease-to-fee ordinance did not violate plaintiff's equal protection rights.  832 F. Supp. 1404.

  No violation, where plaintiff claimed that sex offender treatment program violated right to equal protection because it was overinclusive in that it included inmates who had not actually been convicted of a sex offense.  905 F. Supp. 813.

  Petitioner claiming that petitioner's sentence violated equal protection clause because by virtue of petitioner's status as a deportable alien, petitioner had been unconstitutionally excluded from early prerelease programs, failed to state equal protection claim because deportable aliens were not "similarly situated" to U.S. citizens.  940 F. Supp. 275.

  Denial of "gate money" where parole board determined that plaintiffs had no immediate needs satisfied rational basis test; thus, there was no equal protection violation.  940 F. Supp. 1523.

  Where plaintiffs filed motion for preliminary injunction regarding Act 359 of 1993 Hawaii legislature (relating to Hawaiian sovereignty), as amended in 1994 and 1996, no equal protection violation found regarding native Hawaiian vote.  941 F. Supp. 1529.

  No equal protection violation, where petitioner claimed, inter alia, that petitioner was denied parole in violation of equal protection clause because petitioner was classified by Hawaii paroling authority as Hawaiian.  2 F. Supp. 2d 1291.

  Student suspended from school for violating Act 90, L 1996 (§302A-1134.5(a)), which prohibited possession of alcohol while attending school, where student allegedly participated in consumption of alcohol at student's home prior to school luau in violation of school's zero tolerance policy under Act 90.  Plaintiffs' (student's parents) motion for preliminary injunctive relief granted in part and denied in part where, among other things, it was very unlikely that plaintiffs would prevail on merits of claim that defendants' conduct violated equal protection clause.  84 F. Supp. 2d 1113.

  Where plaintiffs challenged city and county of Honolulu's practice of charging nonresidents a $3 fee to enter bay designated a marine life conservation district and nature preserve, appropriate standard of review was rational basis; genuine issue of material fact existed with respect to rationality of ordinance instituting the fee.  215 F. Supp. 2d 1098.

  Plaintiffs' Hawaiian home lands lease program claim dismissed, because plaintiffs' claim necessarily involved a challenge to the Admission Act, a challenge that could not be brought by a party with only state taxpayer standing.  299 F. Supp. 2d 1114.

  Summary judgment denied as to 42 U.S.C. §1983 claim, where plaintiffs produced sufficient evidence to create a genuine issue of material fact with regard to a defendant's motives for denying craft vendors at an event hosted by a plaintiff, a nonprofit corporation, and for refusing to clean the park used for the event when requested.  300 F. Supp. 2d 1003.

  Plaintiffs asserted that an ordinance preventing them from flying their aerial tow banners over the city's beaches violated their rights under the equal protection clause; the ordinance did not violate the Fourteenth Amendment because it did not discriminate against any speaker or form of speech on the basis of viewpoint.  345 F. Supp. 2d 1123.

  Federal statute that exempted only Hawaii from the preemptive effect of federal marine mammal statutes and applied only to laws relating to humpback whales, furthered the legitimate governmental purpose of protecting humpback whales, an endangered species; as a whole, that statute satisfied rational basis review. 380 F. Supp. 2d 1166.

  Where plaintiffs challenged the constitutionality of the pre-employment residency requirement for public employment set forth in §78-1(c), plaintiffs had standing to challenge the constitutionality of §78-1, and the court granted plaintiffs' motion for preliminary injunction to bar defendants from enforcing the pre-employment residency requirement of §78-1(c).  423 F. Supp. 2d 1094.

  Section 13-5-23(L-6), Hawaii Administrative Rules, allowing for construction of single family residences within floodplains and coastal high hazard areas when granted permit approval from the board of land and natural resources, was not facially unconstitutional under the equal protection clause because it was rationally related to the State's legitimate interests.  438 F. Supp. 2d 1186.

  Because the Federal Employees Pay Comparability Act of 1990 is supported by a rational basis, the Act does not violate the equal protection clause.  532 F. Supp. 2d 1238.

  Plaintiff's equal protection claim under the Fourteenth Amendment where plaintiff asserted, inter alia, that plaintiff's civil right to equal protection was violated by the enforcement of chapter 134, was without merit.  548 F. Supp. 2d 1151.

  Summary judgment granted to county defendants as to plaintiffs' facial equal protection claim and denied as to the as-applied equal protection claim and county defendants' "class of one" equal protection argument, regarding ordinance requiring developers seeking to build five or more residential units on their land to enter into a residential workforce housing agreement with county department before final subdivision approval or building permits are issued.  573 F. Supp. 2d 1354 (2008).

  Defendants' motion to dismiss plaintiff's equal protection and due process claims denied, where defendants claimed, among other things, that:  (1) the circuit court and the liquor commission had primary jurisdiction; and (2) plaintiff failed to sufficiently allege that it was treated differently than similarly situated individuals.  Defendants' motion to stay proceedings pending the resolution of plaintiff's appeals of the liquor commission's decisions currently before the circuit court, granted.  681 F. Supp. 2d 1209 (2009).

  Strict scrutiny was the appropriate standard of review for plaintiffs' equal protection claim given that the State's decision to distinguish between citizens and qualified aliens who may participate in older health care benefits programs that provided greater benefits versus Compacts of Free Association Residents and "New Residents" who may participate in the new health care benefits program implemented by the State was a classification based on alienage.  805 F. Supp. 2d 1027 (2011).

  Defendant employer Hawaii department of transportation's motion for summary judgment granted on plaintiff former employee's equal protection claim where plaintiff, who alleged that defendant subjected plaintiff to disparate treatment due to plaintiff's disability and role as an equal employment opportunity specialist who acted in accordance with all laws, did not cite 42 U.S.C. §1983; even if plaintiff did cite to 42 U.S.C. §1983, sovereign immunity prohibited the claim because claims under 42 U.S.C. §1983 are limited by the scope of the Eleventh Amendment.  864 F. Supp. 2d 965 (2012).

  Plaintiff citizens had not shown a likelihood of succeeding on their claim that Hawaii's legislative reapportionment plan's use of a permanent resident base, coupled with extraction of military personnel, their dependents, and students, constituted an equal protection violation for the purpose of a preliminary injunction; further, the equities and public interest tipped overwhelmingly in defendant reapportionment commission's favor, as any preliminary relief at this stage would significantly upend the election process; plaintiff's motion for preliminary injunction denied.  878 F. Supp. 2d 1124 (2012).

  Hawaii's marriage laws (§572-1 and article I, §23 of the state constitution) which define marriage as a union between a man and a woman, are rationally related to legitimate government interests and do not violate the equal protection clause.  884 F. Supp. 2d 1065 (2012).

  Section 572-1 does not treat males and females differently as a class; it is gender-neutral on its face; it prohibits men and women equally from marrying a member of the same sex.  884 F. Supp. 2d 1065 (2012).

  Inmates' motion for preliminary injunction regarding inmates' prayer objects denied, where inmates argued that the deprivation of the prayer objects violated inmates' rights to equal protection under the U.S. and state Constitutions.  One inmate failed to exhaust available administrative remedies as to the destruction of the prayer object, and even if the inmate had exhausted administrative remedies, the inmate had not established that the inmate was likely to suffer irreparable harm in the absence of a preliminary injunction.  The other inmate, among other things, did not establish that the correctional center treated inmates who practiced the Native Hawaiian religion less favorably than it treated inmates of other religions, and was unlikely to prevail on the equal protection claims.  903 F. Supp. 2d 975 (2012).

  Summary judgment granted to defendants county of Hawaii, Hawaii Island Humane Society (HIHS), HIHS executive director, and HIHS officer as to plaintiff's constitutional claims.  Among other things, where plaintiff argued a "class-of-one" theory:  (1) plaintiff failed to raise a genuine issue of material fact because plaintiff did not present any evidence of a clear standard that the HIHS defendants deviated from when performing their duties; and (2) the defendants had discretion with regard to enforcing animal control laws.  947 F. Supp. 2d 1087 (2013).

  Without evidence of a clear standard, plaintiff cannot demonstrate that plaintiff's right to equal protection was "clearly established"; qualified immunity protected defendant, employee of Hawaii Island Humane Society, as to plaintiff's claim.  947 F. Supp. 2d 1087 (2013).

  Hawaii's choice of a permanent resident population base for the 2012 reapportionment plan was constitutionally permissible; among other things, there was no evidence that Hawaii discriminated unreasonably among non-resident groups.  960 F. Supp. 2d 1074 (2013).

  Plaintiffs had standing to assert equal protection challenges to Hawaii's 2012 reapportionment plan, where plaintiffs had suffered the injury of losing an Oahu senate seat and three of the plaintiffs lived in underrepresented districts.  960 F. Supp. 2d 1074 (2013).

  Where plaintiffs contended that the reapportionment commission violated the equal protection clause by apportioning Hawaii's legislative districts unequally, the reapportionment commission's justifications for the challenged population deviations embodied rational, legitimate, and substantial state policies, and the 2012 reapportionment plan reasonably advanced those policies in a neutral and nondiscriminatory manner.  960 F. Supp. 2d 1074 (2013).

  Ordinance prohibiting use of streets for soliciting sales does not violate equal protection clause.  43 H. 71.

  Classifications in ordinance regulating signs upheld, in absence of showing of discrimination.  50 H. 33, 429 P.2d 825.

  Three-year residence qualification for jurors upheld, in absence of showing of discrimination.  51 H. 195, 456 P.2d 805.

  Law imposing upon private employers the obligation to pay their employees who serve on juries and public boards, was invalid; reasonableness of classification discussed.  52 H. 327, 475 P.2d 679.

  Law authorizing imprisonment of person unable to pay fine, denied equal protection.  52 H. 601, 483 P.2d 191.

  Durational residence requirement has no rational basis and violates equal protection clause.  53 H. 557, 498 P.2d 644.

  Suggestion of leniency in return for testimony made to one co-defendant but not to another is not a denial of equal protection.  53 H. 574, 499 P.2d 678.

  Regulatory classifications are presumed valid and are to be upheld unless no reasonable state of facts is conceivable to support them.  55 H. 148, 516 P.2d 715.

  Discrimination in tax statute not invalid if there is rational basis for classification.  55 H. 572, 524 P.2d 890.

  Inconsistent with due process and equal protection to say putative father of illegitimate child has no parental rights.  56 H. 462, 541 P.2d 13.

  Differing treatment of alcohol and marijuana is not so arbitrary as to violate equal protection.  56 H. 501, 542 P.2d 366.

  University policy relating to retirement of person sixty-five years or older is not reasonably related to a state interest and is unconstitutional.  56 H. 601, 546 P.2d 1005.

  Law requiring payment of taxes prior to judicial hearing, does not deny equal protection.  57 H. 1, 548 P.2d 246.

  Requirement that a woman visitor to an all-male prison wear a brassiere is not invalid.  59 H. 346, 581 P.2d 1164.

  Sex-based classification must serve important governmental objective and be substantially related to the achievement of the objective.  59 H. 346, 581 P.2d 1164.

  Law requiring indigent candidates to submit nomination papers signed by a certain percentage of the voters in lieu of a filing fee, does not deny equal protection.  59 H. 430, 583 P.2d 955.

  Providing different means for partisan and nonpartisan candidates to appear on election ballot did not violate equal protection.  60 H. 282, 588 P.2d 915.

  A statute does not violate the equal protection clause merely because it could have included other persons, objects or conduct.  61 H. 262, 602 P.2d 914.

  Sex-based classification must serve important governmental objectives and must be substantially related to achievement of those objectives.  62 H. 120, 612 P.2d 526.

  Law prohibiting play of pinball machines, no longer bears rational relationship to legitimate statutory objective and denies equal protection.  62 H. 147, 613 P.2d 354.

  Discriminatory enforcement of a criminal law is unconstitutional and may be raised as a defense.  62 H. 222, 615 P.2d 730.

  Exemption of certain products from liquor tax was rationally related to achievement of valid legislative purpose.  65 H. 566, 656 P.2d 724.

  No violation in law denying bail pending appeal to convicted felon sentenced to imprisonment.  66 H. 82, 657 P.2d 464.

  Defendant failed to meet burden of proving intentional or purposeful discrimination; prostitution prohibition is gender-neutral; even if not, it does not deny equal protection.  67 H. 608, 699 P.2d 983.

  Rational basis exists for treating public assistance recipients differently from other no-fault insurance policyholders.  68 H. 192, 708 P.2d 129.

  Not violated by disqualification of recalled officials from running for vacancy created by recall.  68 H. 263, 711 P.2d 723.

  No equal protection violation where there is no showing that the two groups are similarly circumstanced.  69 H. 349, 742 P.2d 359.

  Reapportionment plan not unconstitutional where there was no identifiable political group whose homogenous interests might be the subject of illegal discrimination and no evidence of invidious purpose.  75 H. 463, 868 P.2d 1183.

  Equal protection clause of Fourteenth Amendment not violated by §601-20(b) (court annexed arbitration program).  76 H. 494, 880 P.2d 169.

  Where county imposed impermissibly discriminatory tax, county must be given certain options to correct the impermissible discrimination.  81 H. 248, 915 P.2d 1349.

  Section 704-415 does not violate equal protection; State may place burden on insanity acquittee to prove by preponderance of evidence that acquittee should be released.  84 H. 269, 933 P.2d 606.

  Not violated by trial court's redaction of home street addresses and home and work telephone numbers on juror qualification forms where redaction procedure was not administered differently against other similarly situated criminal defendants having jury trials in the first circuit.  85 H. 258, 942 P.2d 522.

  As chapter 671 rationally furthers legitimate state interest of assuring the provision of affordable health care to Hawaii's citizens by requiring  participation in medical malpractice dispute resolution such that the high cost of  litigation may be avoided, plaintiff not denied equal protection of the laws.  89 H. 188, 970 P.2d 496.

  Not violated by county ordinance classifying time share units into "hotel resort" category where classification was reasonably related to ordinance's stated purpose of eliminating disproportionate tax burdens within that category and classification applied to properties whose actual use was transient or short-term, regardless of whether the units were used personally. 90 H. 334, 978 P.2d 772.

  Clause not violated by §709-906 as State has a legitimate interest in protecting the health, safety, and welfare of its citizens, enactment of §709-906 to address family violence within the community is "legitimate" in protecting Hawaii's citizens, and as including family and household members within scope of §709-906 may reduce or deter family violence by imposing upon violators greater criminal punishment than criminal assault, it is rationally related to the State's interest in preventing incidents of family violence.  93 H. 63, 996 P.2d 268.

  Search warrant did not violate appellant's rights under the U.S. and Hawaii Constitutions although it was not issued against any other bettors; to raise the selective prosecution defense, appellant needed to present sufficient evidence as to why appellant was prosecuted while the other seven bettors were not; reason provided by appellant that detective arbitrarily "classified" appellant as part of a conspiracy did not explain why only appellant was subject to the search warrant nor did it distinguish appellant from other bettors.  104 H. 323, 89 P.3d 823.

  As the imposition of a rent trust fund--requiring tenants to pay rent in exchange for possession for the duration of the dispute--appears rationally related to achieving the purpose of providing landlords with an expeditious alternative to eviction proceedings and tenants with an opportunity to maintain possession so long as rent is paid when properly due, §666-21 does not violate this clause.  107 H. 73, 110 P.3d 397.

  Trial court did not err in concluding that there was no unconstitutional deviation in the population count in the county council districts as set forth in the council redistricting plan adopted by the county reapportionment commission where the plan complied with the mandate of the county charter that the districts be comprised of "approximately equal resident populations as required by applicable constitutional provisions".  108 H. 318, 120 P.3d 217.

  Chapter 584 did not implicate father's fundamental privacy right to procreational autonomy, but rather father's economic interest in not supporting his child, and although father had standing to raise an equal protection challenge to chapter 584, that standing was based on a non-suspect classification, i.e., the biological relationship of fathers to their children; thus, because chapter 584 bears a rational relation to the public welfare, the statute survives rational basis review and father's privacy and equal protection arguments failed.  109 H. 240, 125 P.3d 461.

  Where insurance commissioner imposed a substantial portion of the administrative cost of operating the insurance division and its supporting offices and divisions upon insurers pursuant to §431:2-215, and the insurance division's regulatory costs were necessitated by the business of insurers, §431:2-215 did not violate this Amendment or article I, §5 of the Hawaii constitution.  120 H. 51, 201 P.3d 564.

  Complaint that defendants illegally denied student's right to participate in interscholastic sports stated cognizable claim.  6 H. App. 397, 721 P.2d 165.

  Not violated by §291C-112, which rationally furthers legitimate state interest in protecting health and welfare of public at large by prohibiting use of vehicles parked on public property as places of habitation during certain hours.  82 H. 269 (App.), 921 P.2d 1170.

  Not violated by use of preponderance of evidence standard of proof for §586-5.5 as family and household members not suspect class and rational basis underlying this standard adopted by legislature under chapter 571 for chapter 586 was to facilitate and expedite judicial issuance of protective orders.  85 H. 197 (App.), 940 P.2d 404.

  As a suspect classification or fundamental right was not involved, and based upon dissimilar statutory treatment generally accorded to possession of marijuana as opposed to alcohol, where there was a rational basis for dissimilar punishment, §710-1022 did not violate defendant's right because it imposed a more severe penalty for a prisoner's marijuana possession than for alcohol possession under §710-1023.  92 H. 217 (App.), 990 P.2d 115.

  Not violated by disparate treatment of persons enjoined under §604-10.5(a)(1) and (a)(2) as those enjoined under subsection (a)(1) are not subject to a suspect classification vis-a-vis those enjoined under subsection (a)(2) and the legislature could reasonably omit a state-of-mind element in the more perilous cases under subsection (a)(1) but require an intentional or knowing course of conduct in subsection (a)(2) cases.  92 H. 312 (App.), 990 P.2d 1194.

  1998 Amended Child Support Guidelines classification challenged by father was constitutional as it reasonably calculated the child support payable for child without regard to child support owed by the non-custodial parent to other children, whether by a previous court order or a non-adjudicated legal obligation, and reasonably imposed upon the non-custodial parent the burden of proving that exceptional circumstances warrant deviation from the calculated amount.  104 H. 449 (App.), 91 P.3d 1092.

  Amounts assessed by the state insurance division against insurers for payment into the insurance regulation fund under §431:2-215 did not violate this Amendment where the regulatory fees were rationally related to the statutory objective of defraying any administrative costs and costs incurred by supporting offices and divisions.  117 H. 454 (App.), 184 P.3d 769.

  State's exercise of prosecutorial discretion in the case was not constitutionally infirm where defendant failed to meet the burden of demonstrating that defendant was prosecuted based on an arbitrary classification; defendant was prosecuted under §§707-730 and 707-732 based on allegations that defendant was significantly older than child #1, had initiated the prohibited sexual activities with child #1 and child #2, and had engaged in multiple instances of prohibited sexual contact with more than one child.  121 H. 92 (App.), 214 P.3d 1082 (2009).

  Granting the labor relations board exclusive original jurisdiction over plaintiff's action under §89-14 did not violate plaintiff's equal protection right; as plaintiff's fundamental right was not implicated, and plaintiff did not argue that public employees were a suspect class, the board's exclusive original jurisdiction over public sector prohibited practice controversies was rationally related to the public policy of chapter 89.  125 H. 317 (App.), 260 P.3d 1135 (2011).

 

Privileges and immunities.

  Plaintiff's claim that chapter 134 interfered with a right of national citizenship because it restricted the right to carry firearms was without merit.  548 F. Supp. 2d 1151.

  Law requiring three-year residence qualification for jurors does not violate privileges and immunities clause.  51 H. 195, 456 P.2d 805.

 

Right to privacy.

  Extends to decisions regarding psychiatric care and communication of personal information.  481 F. Supp. 1028.

  Defendant had no continuing or existing reasonable expectation of privacy with regard to defendant's hotel room pursuant to the Fourth Amendment when a person, who has the authority to do so, takes justifiable affirmative steps to evict defendant with the help of law enforcement prior to Federal Bureau of Investigation agents' entry into the hotel room.  693 F. Supp. 2d 1200 (2010).

 

 

     Section 2.  Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.  But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

 

     Section 3.  No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, have previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.  But Congress may by a vote of two-thirds of each House, remove such disability.

 

     Section 4.  The validity of the public debt of the United States authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.  But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

 

     Section 5.  The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

 

Law Journals and Reviews

 

  The Power of the Courts to Protect Journalists' Confidential Sources of Information:  An Examination of Proposed Shield Legislation.  11 HBJ 35.

  Federalism and Federal Spending:  Why the Religious Land Use and Institutionalized Persons Act of 2000 is Unconstitutional.  23 UH L. Rev. 479.

  Patricia N. v. LeMahieu:  Abrogation of State Sovereign Immunity Under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act After Board of Trustees v. Garrett.  24 UH L. Rev. 347.

  RFRA II:  The Failure of the Religious Land Use and Institutionalized Persons Act of 2000 Under Section 5 of the Fourteenth Amendment.  25 UH L. Rev. 131.

  RLUIPA and the Individualized Assessment:  Special Use Permits and Variances Under Strict Congressional Scrutiny.  31 UH L. Rev. 257.

 

Case Notes

 

  Congress acted within its §5 authority in enacting the Religious Freedom Restoration Act.  883 F. Supp. 510; 902 F. Supp. 1220.

  Neither the Native American Languages Act of 1990 nor 42 U.S.C. §1983 abrogated the Eleventh Amendment.  951 F. Supp. 1484.

  Religious Land Use and Institutionalized Persons Act of 2000 was constitutional.  298 F. Supp. 2d 1010.

  Where the State had not waived sovereign immunity and Congress did not abrogate Eleventh Amendment immunity of state governments in passing 42 U.S.C. §§1983, 1985, and 1986, the court lacked jurisdiction over plaintiff's federal constitutional claims against the State and over plaintiff's claims for money damages against the governor and the attorney general of Hawaii.  548 F. Supp. 2d 1151.

 

[ARTICLE XV.--1870]

 

     Section 1.  The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

 

Law Journals and Reviews

 

  To Dwell on the Earth in Unity:  Rice, Arakaki, and the Growth of Citizenship and Voting Rights in Hawai‘i.  V HBJ No. 13, at pg. 15.

  The California Civil Rights Initiative:  Why It's Here, Its Far Reaching Effects, and the Unique Situation in Hawai‘i.  22 UH L. Rev. 279.

  Matters of Trust:  Unanswered Questions After Rice v. Cayetano.  23 UH L. Rev. 363.

  The Akaka Bill:  The Native Hawaiians' Race For Federal Recognition.  23 UH L. Rev. 857.

  Akaka Bill:  Native Hawaiians, Legal Realities, and Politics as Usual.  24 UH L. Rev. 693.

  Doe v. Kamehameha Schools:  A "Discrete and Insular Minority" in Hawai‘i Seventy Years After Carolene Products?  30 UH L. Rev. 295.

  Ke Kanawai Mamalahoe:  Equality in Our Splintered Profession.  33 UH L. Rev. 249 (2010).

  Exclusive Democracy:  Contemporary Voter Discrimination and the Constitutionality of Prophylactic Congressional Legislation.  37 UH L. Rev. 535 (2015).

 

Case Notes

 

  State's electoral restriction enacted a race-based voting qualification; Hawaii's denial of petitioner's right to vote, where petitioner was not a "Hawaiian", was a clear violation of the Fifteenth Amendment.  528 U.S. 495.

  Limitation of eligibility to be a candidate for office of Hawaiian affairs trustee to Hawaiians invalid under the Fifteenth Amendment and §2 of the Voting Rights Act.  314 F.3d 1091.

  Absentee voting; when violative of right to vote.  623 F. Supp. 657.

  Where plaintiffs filed motion for preliminary injunction regarding Act 359 of 1993 Hawaii legislature (relating to Hawaiian sovereignty), as amended in 1994 and 1996, plaintiffs not likely to prevail on constitutional claims under Fourteenth and Fifteenth Amendments, articles I, §5 and II, §1 of Hawaii constitution, or Voting Rights Act with regards to native Hawaiian vote.  941 F. Supp. 1529.

 

     Section 2.  The Congress shall have the power to enforce this article by appropriate legislation.

 

[ARTICLE XVI.--1913]

 

     The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.

 

[ARTICLE XVII.--1913]

 

     The Senate of the United States shall be composed of two Senators from each state, elected by the people thereof, for six years; and each Senator shall have one vote.  The electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislatures.

     When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies:  Provided, that the legislature of any state may empower the executive thereof to make temporary appointment until the people fill the vacancies by election as the legislature may direct.

     This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

 

[ARTICLE XVIII.--1919]*

 

     Section 1.  After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

 

__________

 

*This article repealed by the XXIst amendment.

 

     Section 2.  The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

 

[ARTICLE XIX.--1920]

 

     The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

     Congress shall have power to enforce this article by appropriate legislation.

 

[ARTICLE XX.--1933]

 

     Section 1.  The terms of the President and Vice-President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3rd day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

 

     Section 2.  The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3rd day of January unless they shall by law appoint a different day.

 

     Section 3.  If, at the time fixed for the beginning of the term of the President, the President-elect shall have died, the Vice-President-elect shall become President.  If a President shall not have been chosen before the time fixed for the beginning of his term or if the President-elect shall have failed to qualify, then the Vice-President-elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President-elect nor a Vice-President-elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice-President shall have qualified.

 

     Section 4.  The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice-President whenever the right of choice shall have devolved upon them.

 

[ARTICLE XXI.--1933]

 

     Section 1.  The 18th article of amendment to the constitution of the United States is hereby repealed.

 

     Section 2.  Transportation or importation into any state, territory or possession of the United States for delivery or use therein of intoxicating liquors in violation of the laws thereof is hereby prohibited.

 

Law Journals and Reviews

 

  The Law and Politics of Dancing:  Barnes v. Glen Theatre and the Regulation of Striptease Dance.  14 UH L. Rev. 925.

 

Case Notes

 

  Liquor tax exemption for okolehao and pineapple wine not protected because it violates a central tenet of the commerce clause and is not supported by any clear concern of Twenty-first Amendment.  468 U.S. 263.

 

[ARTICLE XXII.--1951]

 

     No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once.  But this Article shall not apply to any person holding the office of President when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.

 

[ARTICLE XXIII.--1961]

 

     Section 1.  The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct:

     A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

 

     Section 2.  The Congress shall have power to enforce this article by appropriate legislation.

 

[ARTICLE XXIV.--1964]

 

     Section 1.  The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

 

     Section 2.  The Congress shall have power to enforce this Article by appropriate legislation.

 

[ARTICLE XXV.--1966]

 

     Section 1.  In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

 

     Section 2.  Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

 

     Section 3.  Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

 

     Section 4.  Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office of Acting President.

     Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office.  Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session.  If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both houses that the President is unable to discharge the powers and duties of his office the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

 

[ARTICLE XXVI.--1971]

 

     Section 1.  The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

 

     Section 2.  The Congress shall have power to enforce this article by appropriate legislation.

 

[ARTICLE XXVII.--1992]

 

     No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

 

HAWAII NATIONAL PARK

 

An Act to Provide for the Exercise of Sole and Exclusive

Jurisdiction by the United States Over the Hawaii National Park

in the State of Hawaii, and for Other Purposes

 

(Act of April 19, 1930, c 200, 46 Stat 227)

 

     §1.  That hereafter sole and exclusive jurisdiction shall be exercised by the United States over the territory which is now or may hereafter be included in the Hawaii National Park in the State of Hawaii, saving, however, to the State of Hawaii the right to serve civil or criminal process within the limits of the aforesaid park in suits or prosecutions for or on account of rights acquired, obligations incurred, or crimes committed outside of said park, and saving further to the State of Hawaii the right to tax persons and corporations, their franchises and property on the lands included in said park.  All the laws applicable to places under the sole and exclusive jurisdiction of the United States shall have force and effect in said park.  All fugitives from justice taking refuge in said park shall be subject to the same laws as refugees from justice found in the State of Hawaii. [16 U.S.C.A. 395]

 

     [Sections 2 and 3.  Repealed, June 25, 1948, c 646, §39, 62 Stat 992.]

 

     §4.  That all hunting or the killing, wounding, or capturing at any time of any wild bird or animal, except dangerous animals when it is necessary to prevent them from destroying human lives or inflicting personal injury, is prohibited within the limits of said park; nor shall any fish be taken out of the waters of the park in any other way than by hook and line, and then only at such seasons and in such times and manner as may be directed by the Secretary of the Interior.  That the Secretary of the Interior shall make and publish such general rules and regulations as he may deem necessary and proper for the management and care of the park and for the protection of the property therein, especially for the preservation from injury or spoilation of all timber, natural curiosities, or wonderful objects within said park, and for the protection of the animals and birds in the park from capture or destruction, and to prevent their being frightened or driven from the park; and he shall make rules and regulations governing the taking of fish from the streams or lakes in the park.  Possession within said park of the dead bodies, or any part thereof, of any wild bird or animal shall be prima facie evidence that the person or persons having the same are guilty of violating this Act.  Any person or persons, or stage or express company, or railway company who knows or has reason to believe that they were taken or killed contrary to the provisions of this Act and who receives for transportation any of said animals, birds, or fish so killed, caught or taken, or who shall violate any of the provisions of this Act or any rule or regulation that may be promulgated by the Secretary of the Interior with reference to the management and care of the park or for the protection of the property therein, for the preservation from injury or spoilation of timber, natural curiosities, or wonderful objects within said park, or for the protection of the animals, birds, or fish in the park, or who shall within said park willfully commit any damage, injury, or spoilation to or upon any building, fence, hedge, gate, guidepost, tree, wood, underwood, timber, garden crops, vegetables, plants, land, springs, natural curiosities, or other matter or thing growing or being thereon or situated therein, shall be deemed guilty of a misdemeanor and shall be subject to a fine of not more than $500 or imprisonment not exceeding six months, or both, and be adjudged to pay all costs of the proceedings. [16 U.S.C.A. 395c]

 

Cross References

 

  As to rules and regulations, see also section 4 of the Act of August 1, 1916, c 264, 39 Stat 432, 16 U.S.C.A. 394.  For general rules and regulations see Title 36, Code of Federal Regulations, Chapter 1, and for special rules applicable to Hawaii National Park, see §7.25 thereof.

 

     §5.  That all guns, traps, teams, horses or means of transportation of every nature or description used by any person or persons within said park limits when engaged in killing, trapping, ensnaring, or capturing such wild beasts, birds, or animals shall be forfeited to the United States and may be seized by the officers in said park and held pending the prosecution of any person or persons arrested under charge of violating the provisions of this Act, and upon conviction under this Act of such person or persons using said guns, traps, teams, horses, or other means of transportation, such forfeiture shall be adjudicated as a penalty in addition to the other punishment provided in this Act.  Such forfeited property shall be disposed of and accounted for by and under the authority of the Secretary of the Interior. [16 U.S.C.A. 395d]

 

     [Sections 6 through 11.  Repealed, June 25, 1948, c 646, §39, 62 Stat 992.]

 

     §12.  That the Secretary of the Interior shall notify, in writing, the Governor of the State of Hawaii of the passage and approval of this Act and of the fact that the United States assumes police jurisdiction over said park.

 

General Note

 

  The Hawaii National Park was established by the Act of August 1, 1916, c 264, 39 Stat 432, and the boundaries were changed, or other tracts added or taken away, by the following Acts:  May 1, 1922, c 174, 42 Stat 503; Feb. 12, 1927, c 111, 44 Stat 1087; April 11, 1928, c 359, 45 Stat 424; June 20, 1938, c 530, 52 Stat 781; July 16, 1940, c 630, 54 Stat 761.  These Acts contain, or incorporate by reference, provisions of a substantive nature as to the control of the park and as to private rights.  See 16 U.S.C.A. §§391, 391a, 391b, 391b-1, 391c, 392a, 392b, 393, 394, 396.

  The Act of February 27, 1920, c 89, 41 Stat 452, authorized the acquisition of private land in the park without regard to the restrictions of Section 73 of the Organic Act, as to exchanges.  See 16 U.S.C.A. 392.

  For origin of the park see also concurrent resolution of 1911 Hawaiian Legislature, House Journal, p. 975, Senate Journal, pp. 1028-1029.

  City of Refuge National Historical Park, establishment; see Act of July 26, 1955, c 385, 69 Stat 376; 16 U.S.C.A. 397.

  Haleakala National Park, establishment; see Act of September 13, 1960, Pub L 86-774, 74 Stat 881; 16 U.S.C.A. 396b.

  Hawaii Volcanoes National Park, name changed from Hawaii National Park; see Act of September 22, 1961, Pub L 87-278, 75 Stat 577; 16 U.S.C.A. 391d.

  Section 3 of the Act of June 20, 1938, c 530, 52 Stat 781, makes the following provision as to leases to native Hawaiians within the Kalapana extension (as described by section 1 of that Act):

  §3.  (a)  That the Secretary of the Interior is authorized to lease, under such rules and regulations as he may deem proper, land ascertained by him to be suitable for home site purposes in the Kalapana extension as described herein, to native Hawaiians when such occupancy does not encroach on or prevent free access to any points of historic, scientific, or scenic interest or in any manner obstruct or interfere with protection and preservation of said area as a part of the Hawaii National Park:  Provided, however, that occupants of homesites shall reside on the land not less than six months in any one year; and provided further, that fishing shall be permitted in said area only by native Hawaiian residents of said area or of adjacent villages and by visitors under their guidance.

  (b)  The term native Hawaiian, as used in this section, means any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778. [16 U.S.C.A. 396a]

 

Cross References

 

  Conveyance for National Parks, see §184-21.

 

Case Notes

 

  State may condemn land for national park purposes.  44 H. 370, 355 P.2d 25.

 

ORGANIC ACT

 

An Act to Provide a Government for the Territory of Hawaii

 

(Act of April 30, 1900, c 339, 31 Stat 141)

 

CHAPTER I.

GENERAL PROVISIONS

 

     §1.  Definitions.  That the phrase "the laws of Hawaii," as used in this Act without qualifying words, shall mean the constitution and laws of the Republic of Hawaii, in force on the twelfth day of August, eighteen hundred and ninety-eight, at the time of the transfer of the sovereignty of the Hawaiian Islands to the United States of America.

     The constitution and statute laws of the Republic of Hawaii then in force, set forth in a compilation made by Sidney M. Ballou under the authority of the legislature, and published in two volumes entitled "Civil Laws" and "Penal Laws," respectively, and in the Session Laws of the Legislature for the session of eighteen hundred and ninety-eight, are referred to in this Act as "Civil Laws," "Penal Laws," and "Session Laws."

 

  This is the Act, as since amended, of April 30, 1900, c 339, 31 Stat 141 (2 Supp. R.S. 1141), prepared and recommended by a commission appointed by the President under the Joint Resolution of Annexation of July 7, 1898, 30 Stat 750 (2 Supp. R.S. 895).  The formal transfer of sovereignty under that resolution took place Aug. 12, 1898, and this Organic Act, creating the Territory, took effect June 14, 1900.  See Joint Resolution, RLH 1955, page 13, with notes thereto, for application of Federal Constitution and laws to Hawaii between annexation and establishment of territorial government.  For decisions under this Organic Act, see notes to sections thereof.

  For note relating to act of Congress, presidential proclamations, and executive orders, see the Chronological Note, RLH 1955, page 9.

  The volumes mentioned in the second paragraph of this § did not contain all the laws then in force referred to in the first paragraph, nor were all the laws therein contained then in force.  The Civil Laws and Penal Laws were compilations, not enacted by the legislature.  These laws were in general continued in force by Congress with certain exceptions and modifications:  §§6, 7, below:  23 Ops. 539; 114 Fed. 852, affirming 1 U.S.D.C. Haw. 75; 122 Fed. 587.  Referred to in 16 H. 245; 22 H. 251.  See also, as to continuation of Hawaiian laws, notes to other §§, especially §§5, 6 and 7, and to Joint Resolution of Annexation, RLH 1955, page 13.

 

 

     §2.  Territory of Hawaii.  That the islands acquired by the United States of America under an Act of Congress entitled "Joint resolution to provide for annexing the Hawaiian Islands to the United States," approved July seventh, eighteen hundred and ninety-eight, shall be known as the Territory of Hawaii.

 

  The Hawaiian group consists of the following islands:  Hawaii, Maui, Oahu, Kauai, Molokai, Lanai, Niihau, Kahoolawe, Molokini, Lehua, Kaula, Nihoa, Necker, Laysan, Gardiner, Lisiansky, Ocean, French Frigates Shoal, Palmyra, Brooks Shoal, Pearl and Hermes Reef, Gambia Shoal and Dowsett and Maro Reef.  The first nineteen were listed in the Commission report transmitted to Congress by the message of the President, Senate Doc. 16, 55th Congress, 3d Session, 1898.  U.S. Misc. Pub. 1898.

  For history of Palmyra see 133 F.2d 743; 156 F.2d 756; 331 U.S. 256.  It has been a question whether Midway was acquired by Hawaii on July 5, 1859, and so is a part of the Territory, or was acquired by the United States independently on August 28, 1867; the latter was assumed in 182 U.S. 304.  See 1933 report of Hawaiian Historical Society, paper read by P. C. Morris, Dec. 14, 1933.  It was assumed by Congress that Midway was not part of the Territory in the Act of August 13, 1940, c 662, 54 Stat 784, extending jurisdiction of United States District Court for Hawaii to include Midway Islands, also Wake, Johnston, Sand, and Jarvis Islands.

  Territorial jurisdiction includes the military and naval reservations within the exterior boundaries of the Territory.  19 Haw. 200; 23 Haw. 61; cf 4 U.S.D.C. Haw. 62.

  By the Act of April 19, 1930, the Hawaii National Park was removed from territorial jurisdiction except for certain purposes therein stated.  This Act is set out in full following the U.S. Constitution.

 

     §3.  Government of the Territory of Hawaii.  That a Territorial government is hereby established over the said Territory, with its capital at Honolulu, on the island of Oahu.

 

  By this Act Hawaii acquired the status of an incorporated Territory:  182 U.S. 305; and became an integral part of the United States:  190 U.S. 197.

  While a territory is not a municipality or quasimunicipality (27 Ops. 486), or a municipal corporation (18 H. 255), and is not liable as a municipal corporation for torts (13 H. 481; 14 H. 484), and sustains a relation to the Federal government analogous to that of a county to a state (17 H. 181; 101 U.S. 133), and is not a state as that term is generally used in the Constitution (258 U.S. 111) or so as to render unconstitutional the federal opium law as an invasion of the police power of the Territory (4 U.S.D.C. Haw. 202); but is a state as that term is generally used in treaties (133 U.S. 258; 182 U.S. 262, 270); it has been referred to as an inchoate state (20 Fed. 305) or as having a quasi-state government (194 U.S. 491) and is sufficiently sovereign to be exempt from suit without its consent, differing in that respect from the District of Columbia (205 U.S. 349; 13 H. 478), and so that a statute of limitations does not run against it (18 H. 252; 21 H. 600), and so as to have preference over its subjects as to claims against an insolvent estate (26 H. 688).  This Territory is said to be in the position of a state as respects its courts and in all other particulars except sovereignty (4 U.S.D.C. Haw. 467, and cases there cited).  Referred to in 108 Fed. 113; 23 Ops. 416; 13 H. 21.

  On the status of Hawaii between annexation and the establishment of territorial government, see note to Joint Resolution of Annexation, RLH 1955, page 13.

 

 

     §4.  Citizenship.  That all persons who were citizens of the Republic of Hawaii on August twelfth, eighteen hundred and ninety-eight, are hereby declared to be citizens of the United States and citizens of the Territory of Hawaii.

     And all citizens of the United States resident in the Hawaiian Islands who were resident there on or since August twelfth, eighteen hundred and ninety-eight and all the citizens of the United States who shall hereafter reside in the Territory of Hawaii for one year shall be citizens of the Territory of Hawaii.

 

  This section was supplemented by the Act of July 2, 1932, 47 Stat 571, amended by the Act of July 1, 1940, 54 Stat 707, providing that for purposes of Act of Sept. 22, 1922, 46 Stat 1511, women born in Hawaii prior to June 14, 1900 deemed U.S. citizens at birth.  But Act of Sept. 22, 1922 was repealed by Act of Oct. 14, 1940, 54 Stat 1137, which in turn was repealed by Act of June 27, 1952, 66 Stat 166 (McCarran-Walter Act), and the present provisions are contained in 8 U.S.C.A. 1435(a).

  Under Art. 17, §1, of the Const. of 1894 (adapted from the 14th Am. of the U.S. Const.) all persons born or naturalized in the Hawaiian Islands and subject to the jurisdiction of the Republic of Hawaii were citizens thereof.  Between 1842 and 1892, 731 Chinese and three Japanese were naturalized in Hawaii; since 1892, none.  Birth certificates by the Territory of Hawaii are not controlling, and persons applying for admission to the United States with such certificates may be detained by immigration officers for the purpose of determining citizenship, 35 Ops. 69.  The secretary of Hawaii may issue to persons born in Hawaii certificates of Hawaiian birth, which are prima facie evidence:  HRS §§338‑41 to 44, see also former law:  L. 1905, c. 64; am. L. 1907, c. 79; rep. L. 1909, c. 15; R.L. 1915, p. 1487; R.L. 1925, c. 21; R.L. 1935, c. 247.  A person born in the Kingdom of Hawaii of British parents domiciled there was held to be a citizen of the Republic of Hawaii although he was registered at birth at the British consulate and had never renounced allegiance to the British crown nor sworn allegiance to the Hawaiian government:  11 H. 166.  On citizenship of persons born in the United States of alien parents, see 169 U.S. 649.  Mere residence in foreign state after majority does not expatriate, 31 F.2d 738.  But son of naturalized Hawaiian citizen became expatriated through residence in foreign country of birth.  89 F.2d 489, cert. den. 301 U.S. 682, reh'g den. 301 U.S. 713.  Naturalization as Hawaiian citizen did not occur under Const. of 1894 by issuance of certificate of Minister of Interior where allegiance to native land not renounced and court order not obtained.  117 F.2d 588, reh'g den. 120 F.2d 760, aff'd by divided court, 315 U.S. 783.

  Chinese who were Hawaiian citizens on Aug. 12, 1898, by either birth or naturalization, whether under the monarchy or the republic, became American citizens under this §:  23 Ops. 509; 1 U.S.D.C. Haw. 118; and their wives and children were thereafter entitled to enter the Territory; 23 Ops. 345; and such a citizen could take oath that he was such, and obtain an American register for a vessel which had a Hawaiian register on that date and was then owned and continued to be owned by a Hawaiian citizen until purchased by such Chinese; 23 Ops. 352.  Son of Chinese, naturalized Hawaiian citizen, born in China in 1894 and remaining there through minority, did not become citizen and not entitled to enter U.S. 69 F.2d 681.  Chinese held for deportation may set up American citizenship in habeas corpus or deportation proceedings, but the burden is on them to prove such citizenship:  1 U.S.D.C. Haw. 6; 1 U.S.D.C. Haw. 44; 1 U.S.D.C. Haw. 104; 1 U.S.D.C. Haw. 113; 1 U.S.D.C. Haw. 234; 270 Fed. 57.

  Habeas corpus lies to protect immigrant's right to have question of citizenship determined; 160 Fed. 842, affirming 3 U.S.D.C. Haw. 168.  See also §§100 and 101, and notes thereto; also note to Joint Resolution of Annexation, RLH 1955, page 13.

  Woman of Chinese ancestry, born in Hawaii in 1894 but married to Chinese alien in 1910, could not be naturalized under the Acts cited in first paragraph of this note as they stood prior to 1940 amendment, because of her nonresidence on July 2, 1932, 88 F.2d 88.

  For decisions generally on immigration and citizens see notes to §§100 and 101, and note to RLH 1955, §57‑43; also, presumptions:  arising from findings of Board of inquiry or certificate of identity, 29 F.2d 500; 30 F.2d 516; 49 F.2d 19 and 24; may be rebutted, 30 F.2d 65; lack of, prima facie supports right to deport, 36 F.2d 563; fraud must be alleged in complaint, 63 F.2d 375 and 377.  Delay for depositions may be a matter of right, 33 F.2d 236.  Proof of Chinese descent shifts burden of proof:  104 F.2d 21, 111 F.2d 707.  Finding of citizenship on previous entry not binding:  124 F.2d 21; but see 188 F.2d 975.

  Under the treaty with Spain and Acts of Congress, a Puerto Rican, residing in Puerto Rico on April 11, 1899, and a year thereafter, who did not declare his decision to preserve his allegiance to Spain, did not lose his political status by removing to Hawaii in 1901, but became a citizen of the United States under a subsequent Act of Congress and hence entitled to vote in Hawaii:  24 H. 21.

  Although §8(a)(1) of the Act of March 24, 1934, c 84, 48 Stat 456, 462, provides that Filipinos shall be placed on the quota basis as aliens, it is specifically made inapplicable to Hawaii and immigration is determined by the Interior Dept. on basis of industrial needs.

  Referred to in 13 H. 21, 556; 162 Fed. 470.

  Filipino national in Hawaii became alien by proclamation of Philippine Independence, 183 F.2d 795.

 

 

     §5.  United States Constitution.  That the Constitution, and, except as otherwise provided, all the laws of the United States, including laws carrying general appropriations, which are not locally inapplicable, shall have the same force and effect within the said Territory as elsewhere in the United States; Provided, That sections 1841 to 1891, inclusive, 1910 and 1912, of the Revised Statutes, and the amendments thereto, and an act entitled "An act to prohibit the passage of local or special laws in the Territories of the United States, to limit Territorial indebtedness, and for other purposes," approved July 30, 1886, and the amendments thereto, shall not apply to Hawaii. [Am May 27, 1910, c 258, §1, 36 Stat 443; April 12, 1930, c 136, 46 Stat 160; June 6, 1932, c 209, §116(b), 47 Stat 205]

 

  Compare U.S. Rev. Sts. §1891.

  The federal Constitution and laws were first formally extended to Hawaii by this §, 190 U.S. 197.  See also the note to §3.  On the application of these to Hawaii after enactment of Org. Act, see, 121 Fed. 772; 13 H. 590; 1 U.S.D.C. Haw. 294; 20 H. 483; 327 U.S. 304.  Construction tending toward unconstitutionality is to be avoided if possible, 62 F.2d 13; 52 F.2d 411; 36 H. 206, 230.  A person not affected cannot raise invalidity:  24 H. 100; 33 H. 194; 36 H. 661, 709; 39 H. 67.  Acceptance of benefits of law as estoppel of claim of invalidity:  33 H. 813.  Burden is on party asserting unconstitutionality:  35 H. 855, aff'd 130 F.2d 786.  Constitutional questions decided only where necessary for decision of cases:  33 H. 180; 38 H. 346; waiver:  33 H. 813.  Time of raising constitutional questions:  39 H. 287.

  In general, while the legislative power of Congress over a territory, whether exercised directly or through a territorial legislature, is often said to be plenary, and is not limited by such specific provisions as the apportionment clause in respect of direct taxation and the uniformity clause in respect of indirect taxation, which control legislation for national purposes, yet the power is subject to some constitutional limitations, but just what provisions of the Constitution are operative in such cases is not fully determined; inhibitions which go to the root of the power of Congress to act at all, irrespective of time or place, such as that no bill of attainder or ex post facto law or law respecting the establishment of a religion shall be passed, apply; also fundamental limitations respecting personal and property rights apply by inference and the general spirit of the Constitution rather than expressly or directly:  136 U.S. 1, 44; 182 U.S. 244, 277, 291, 294; 195 U.S. 138, 146; the trial and grand jury provisions, as well as doubtless other provisions, apply to territory incorporated but not to territory unincorporated as an integral part of the United States--the status being determined by statute or treaty: 258 U.S. 298, 304‑5, 313, and cases there cited.  See also 258 U.S. 101, 112.  Congressional delegation of taxing power to territorial legislature, see note to §55.

  Art. III, §2, or Art. I, §8, U.S. Const. not violated by workmen's compensation act as applied to injury on ship by workman under non-maritime contract, 26 H. 737.

  Interstate Commerce, merchandise licenses, 13 H. 286.  Not involved when Congress has validated the territorial law.  305 U.S. 306, affg. 96 F.2d 412 and 33 H. 890.  Taxation by Territory of radio station not encroachment upon commerce clause, 40 H. 121, aff. 216 F.2d 700.

  Art. IV, full faith and credit, 24 H. 239.

  1st Amendment.  Riot and unlawful assembly law, valid, 37 H. 625; questioned 82 F. Supp. 104.

  4th Amendment.  Searches and seizures:  20 H. 71; 22 H. 597; questioned 26 H. 336; 23 H. 250; 26 H. 331; 28 H. 173.  If officer was violating 4th Amendment this would not justify homicide.  35 H. 232, aff'd 119 F.2d 936, CCA holding there was no violation of the Constitution.

  5th Amendment.  Applies to Territory.  273 U.S. 284; 28 H. 43; 28 H. 88.  (See, 30 H. 526; 31 H. 678, 696; 35 H. 855, aff. 130 F.2d 786.)

  Territory may not regulate food prices, 24 H. 485, but see 256 U.S. 170.

  A physician's license fee law, invalid, 17 H. 389; veterinary license fees, invalid, 19 H. 99; banking license fees, valid, 19 H. 262; auctioneer's license fees, valid, 19 H. 651, aff. 226 U.S. 184, 191, 57 L. ed. 180; chauffeur's license not ex post facto, 22 H. 103.  Beer licenses:  1 U.S.D.C. Haw. 206.  Artesian wells, 30 H. 912.  Foreign language school law invalid, 7 F.2d 710, 273 U.S. 284, 71 L. ed. 646.  Guardianship of minors, 32 H. 479.  Health, disbarring physician sustained, 31 H. 625, aff. 52 F.2d 411.  Laundries, 4 H. 335; 10 H. 491; 27 H. 253.  Loitering law of 1929 invalid, 31 H. 459, aff. 48 F.2d 171.  Photographers:  33 H. 397.  Public utilities:  34 H. 52; 305 U.S. 306, affg. 96 F.2d 412, and 33 H. 890.  Fisheries:  35 H. 608.  Hit and run driving:  36 H. 32.  Mutual benefit societies, 36 H. 206, 230.  Ordinance, 28 H. 222.  Sanitation, 21 H. 314.

  Law against employer deducting wages, etc., valid, 23 H. 176.  Workmen's compensation law, valid, 24 H. 97; see also, 26 H. 737; 28 H. 383.  Law against trading stamps, invalid, 17 H. 331.  Emigrant agents, 20 H. 483; cutting trees, regulation, invalid, 13 H. 272, but see limitation of damages, 19 H. 468.

  Taxation:  Taxable value assessed to lessee of public land, 23 H. 621; double taxation not necessarily invalid, 16 H. 603.  General tax exemption, repealable, 19 H. 193; stamp tax 1 U.S.D.C. Haw. 86; 14 H. 431.  Inheritance tax classifications: 19 H. 531.  Inheritance tax:  31 H. 196.  Weight tax:  31 H. 726, affd 54 F.2d 313.  Taxing salaries of federal employees:  130 F.2d 786, affg. 35 H. 855.  Tax appeal does not raise constitutional law issue (prior to amendment of statute):  34 H. 515.  A tax is not an assessment of benefits:  305 U.S. 306, affg. 96 F.2d 412, and 33 H. 890.

  Assessments for street improvements, valid, 24 H. 524; 25 H. 69; 25 H. 180; 28 H. 298.

  Subdivision of property:  29 H. 62.

  Eminent domain, compensation must be reasonable, 1 U.S.D.C. Haw. 183; for private use, invalid, 13 H. 215.  Payment to grantor where a deed was given pending condemnation does not violate am., 31 H. 781 also 787, aff. 61 F.2d 896.  See 182 F.2d 172.  No constitutional right to jury trial, 188 F.2d 459.

  Criminal cases:  "Twice in jeopardy" 27 H. 270.  Privilege against incrimination, 40 H. 65.  Incrimination, waived, 24 H. 621, see also, 3 U.S.D.C. Haw. 491.  Confession:  188 F.2d 54.  Trivial offense:  27 H. 844.  Manslaughter:  29 H. 7.  Confrontation:  36 H. 42.  Compulsory fingerprinting:  34 H. 459.  Conviction for embezzlement under charge of larceny, invalid, 26 H. 725.  Systematic discrimination in drawing of jury violates due process clause:  118 F.2d 667.  Provisions relating to persons present at gambling games do not violate due process clause, 40 H. 257.

  6th Amendment.  As to juries and jury trials see §83 and note.  "Public trial" applicable, 28 H. 431.  "Speedy trial," 16 H. 751.  Confrontation, testimony at former trial, 23 H. 421.  Confrontation may be waived, 33 F.2d 396; 36 H. 42.  Commitment of insane without jury is valid, 19 H. 346, 535, 576, 647.  Waiver of jury in felony case:  33 H. 113; 33 H. 813 (waiver of constitutional issues).  Insufficient indictment:  35 H. 324, 334.  Validity of accusation, 152 F.2d 933.

  7th Amendment.  Unanimity of jury waived, 13 H. 705.  This amendment is in force in Hawaii, 21 H. 229; 30 H. 860.  See 228 U.S. 364.  Guardianship proceedings in insanity cases not suits at common law where value is in controversy, 39 H. 39.  Not applicable to suits in equity, 40 H. 269.

  8th Amendment.  Imprisonment in county jail for contempt not "cruel and unusual," 1 U.S.D.C. Haw. 69; nor is imprisonment there for misdemeanors "infamous," 17 H. 428.  Compelling such to work in public in jail uniform is infamous, 17 H. 168.  Whipping as "cruel" etc. see 31 H. 982.

  13th Amendment.  Restraint for purposes of prostitution is "involuntary servitude," 1 U.S.D.C. Haw. 434.

  14th Amendment.  13 H. 590, 598; does not invalidate law prohibiting minors in places where liquor is sold, 15 H. 607.  Fish laws, 28 H. 43.  Punishment, 28 H. 88.  Unwarranted delegation of power, 28 H. 534.  Taxation, ironclad uniformity not required, 30 H. 685 and 795, aff. 36 F.2d 159.  Also see cases under 5th Am. supra.  Foreign language schools, 11 F.2d 710, 273 U.S. 284.  General demurrer does not raise issue of discrimination through grant of an exemption, 33 H. 180.  See 130 F.2d 786, affg. 35 H. 855, as to charge of discrimination in taxation.  Police power:  33 H. 397; 34 H. 459 (fingerprinting).  Due process:  (taxis) 34 H. 52; 35 H. 608.  (Rulings of court) 160 F.2d 289.

  Courts-Martial:  have jurisdiction under 2nd and 12th Art. of War to try soldier under 96th Art. of War with violating a territorial statute, 13 F.2d 348.

  National banking laws apply to Hawaii but not to banks existing in Hawaii prior to this act:  23 Ops. 177.  Prohibition of organization of national bank with capital less than $200,000 in city with population over 50,000 does not apply to Schofield Barracks having a less population although it is part of a city and county having a greater population:  31 Ops. 120.  Shipping Act conferred on Shipping Board, to exclusion of territorial public utilities commission, jurisdiction to regulate rates of common carriers by water between territorial ports:  24 H. 136; similar ruling as to jurisdiction of Interstate Commerce Commission over telephone rates in Hawaii:  26 H. 508.  But P.U.C. has investigatory powers over water carriers notwithstanding Shipping Act:  305 U.S. 306, affg. 96 F.2d 412 and 33 H. 890.

  Honolulu is a "port or place in the United States" within meaning of 46 U.S.C.A. 289, forbidding transportation of passengers by foreign vessel.  36 Ops. Atty. Gen. 352.

  First Federal Employer's Liability Act, being separable, was valid in territories though not in states:  215 U.S. 87; but otherwise as to child labor law, because inseparable:  33 Ops. 374.  Agricultural Marketing Act (46 Stat 11) extends to Hawaii, 36 Ops. 326; but certain acts relating to agricultural experiment stations do not, 35 Ops. 54.  Federal law disqualifying district judges applies to Hawaii although not strictly workable as to procedure:  4 U.S.D.C. Haw. 1.  The Edmunds Act is applicable to Hawaii and adultery is punishable under either the Federal or Territorial laws:  3 U.S.D.C. Haw. 262; 3 U.S.D.C. Haw. 517; but an acquittal or conviction in either the federal or the territorial court will bar a trial in the other:  3 U.S.D.C. Haw. 295.  Extension of Edmunds Act to Hawaii did not repeal local law against fornication:  19 H. 201.

  White Slave Traffic Act applies to Hawaii since it applies to territories, though Hawaii not enumerated in definition of "territory" in the Act, 125 F.2d 95.  See 42 C. Cls. R. 57, on application to Hawaii, before this § was amended, of federal laws relating to territories generally.  Federal liquor prohibition laws in effect in Hawaii repealed Mar. 26, 1934, c 88, 48 Stat 467.  For application of other provisions of the Federal Constitution and laws to Hawaii, see note to Joint Resolution of Annexation, RLH 1955, page 13, and notes to other sections of this act, especially §§4, 6, 10, 45, 55, 73, 81, 83, 86, 101.  Referred to also in 13 H. 20, 556, 706; 16 H. 253; 18 H. 255, 539; 19 H. 17; 21 H. 241; 25 H. 688; 108 Fed. 113; 114 Fed. 849; 122 Fed. 587, 776; 23 Ops. 177, 346; 1 U.S.D.C. Haw. 49, 88, 91; 3 U.S.D.C. Haw. 66.

 

 

     §6.  Laws of Hawaii.  That the laws of Hawaii not inconsistent with the Constitution or laws of the United States or the provisions of this Act shall continue in force, subject to repeal or amendment by the legislature of Hawaii or the Congress of the United States.

 

  Re meaning of "laws of Hawaii" see section 1 and note.

  Pursuant to section 73(c) certain land laws are not subject to repeal or amendment by legislature without approval of Congress.

  All parts of this Act must be considered in determining what Hawaiian laws were continued in force:  197 U.S. 354.  A judicial constitution of a statute before annexation is continued as a part of the statute:  210 U.S. 153; 114 Fed. 852; 16 H. 776.  The local law against fornication is not repealed by the extension of the Edmunds Act to Hawaii:  19 H. 201.  As in a state, a person might be liable under the local law against adultery, notwithstanding that he might be liable also for the same offense under the Edmunds Act:  3 U.S.D.C. Haw. 262; Id. 517.  But, not as in a state, a conviction or acquittal under either law would bar a subsequent jeopardy under the other law:  Id. 295.  See 133 U.S. 333.

  A Hawaiian corporation chartered before annexation is not a "corporation organized by authority of any laws of Congress" within the meaning of an Act of Congress forbidding contributions for election purposes, but, obiter dictum, contra as to corporations chartered (except those incorporated without official consent by filing articles of association) after annexation, whether before or after the establishment of territorial government:  3 U.S.D.C. Haw. 299.  Referred to in 13 H. 481, 706; 14 H. 269, 432; 15 H. 117, 329; 16 H. 245, 266, 401; 18 H. 539; 21 H. 250 (Ann. Cas. 1916A, 1136); 188 U.S. 313; 205 U.S. 354; 217 U.S. 244; 108 Fed. 113; 114 Fed. 849; 122 Fed. 587; 1 U.S.D.C. Haw. 88, 91; 23 Ops. 542.  See notes to §§3, 5, and 55.

 

 

     §7.  That the constitution of the Republic of Hawaii and of the laws of Hawaii, as set forth in the following acts, chapters, and sections of the civil laws, penal laws, and session laws, and relating to the following subjects, are hereby repealed:

 

     Civil Laws:  Sections two and three, Promulgation of laws; chapter five, Flag and seal; sections thirty to thirty-three, inclusive, Tenders for supplies; chapter seven, Minister of Foreign Affairs; chapter eight, Diplomatic and consular agents; section one hundred and thirty-four and one hundred and thirty-five, National museum; chapter twelve, Education of Hawaiian youths abroad; sections one hundred and fifty to one hundred and fifty-six, inclusive, Aid to board of education; chapter fourteen, Minister of the Interior; sections one hundred and sixty-six to one hundred and sixty-eight, inclusive, one hundred and seventy-four and one hundred and seventy-five, Government lands; section one hundred and ninety, Board of commissioners of public lands; section four hundred and twenty-four, Bureau of agriculture and forestry; chapter thirty-one, Agriculture and manufactures; chapter thirty-two, Ramie; chapter thirty-three, Taro flour; chapter thirty-four, Development of resources; chapter thirty-five, Agriculture; section four hundred and seventy-seven, Brands; chapter thirty-seven, Patents; chapter thirty-eight, Copyrights; sections five hundred and fifty-six and five hundred and fifty-seven, Railroad subsidy; chapter forty-seven, Pacific cable; chapter forty-eight, Hospitals; chapter fifty-one, Coins and currency; chapter fifty-four, Consolidation of public debt; chapter fifty-six, Post-office; chapter fifty-seven, Exemptions from postage; chapter fifty-eight, Postal savings banks; chapter sixty-five, Import duties; chapter sixty-six, Imports; chapter sixty-seven, Ports of entry and collection districts; chapter sixty-eight, Collectors; chapter sixty-nine, Registry of vessels; section one thousand and eleven, Customs-house charges; section eleven hundred and two, Elections; section eleven hundred and thirty-two, Appointment of magistrate; last clause of first subdivision and fifth subdivision of section eleven hundred and forty-four, first subdivision of section eleven hundred and forty-five, Jurisdiction; sections eleven hundred and seventy-three to eleven hundred and seventy-eight, inclusive, Translation of decisions; section eleven hundred and eighty-eight, Clerks of court; sections thirteen hundred and twenty-nine, thirteen hundred and thirty-one, thirteen hundred and thirty-two, thirteen hundred and forty-seven to thirteen hundred and fifty-four, inclusive, Juries; sections fifteen hundred and nine to fifteen hundred and fourteen, inclusive, Maritime matters; chapter one hundred and two, Naturalization; section sixteen hundred and seventy-eight, Habeas corpus; chapter one hundred and eight, Arrest of debtors; subdivisions six, seven, ten, twelve to fourteen of section seventeen hundred and thirty-six, Garnishment; sections seventeen hundred and fifty-five to seventeen hundred and fifty-eight, inclusive, Liens on vessels; chapter one hundred and sixteen, Bankruptcy, and sections eighteen hundred and twenty-eight to eighteen hundred and thirty-two, inclusive, Water rights.

 

     Penal Laws:  Chapter six, Treason; sections sixty-five to sixty-seven, inclusive, Foot binding; chapter seventeen, Violation of postal laws; section three hundred and fourteen, Blasphemy; sections three hundred and seventy-one to three hundred and seventy-two, inclusive, Vagrants; sections four hundred and eleven to four hundred and thirteen, inclusive, Manufacture of liquors; chapter forty-three, Offenses on the high seas and other waters; sections five hundred and ninety-five and six hundred and two to six hundred and five, inclusive, Jurisdiction; section six hundred and twenty-three, Procedure; sections seven hundred and seven hundred and one, Imports; section seven hundred and fifteen, Auction license; section seven hundred and forty-five, Commercial travelers; sections seven hundred and forty-eight to seven hundred and fifty-five, inclusive, Firearms; sections seven hundred and ninety-six to eight hundred and nine, inclusive, Coasting trade; sections eight hundred and eleven and eight hundred and twelve, Peddling foreign goods; sections eight hundred and thirteen to eight hundred and fifteen, inclusive, Importation of livestock; section eight hundred and nineteen, Imports; sections eight hundred and eighty-six to nine hundred and six, inclusive, Quarantine; section eleven hundred and thirty-seven, Consuls and consular agents; chapter sixty-seven, whale ships; sections eleven hundred and forty-five to eleven hundred and seventy-nine, inclusive, and twelve hundred and four to twelve hundred and nine, inclusive, Arrival, entry and departure of vessels; chapters sixty-nine to seventy-six, inclusive, Navigation and other matters within the exclusive jurisdiction of the United States; sections thirteen hundred and forty-seven and thirteen hundred and forty-eight, Fraudulent exportation; chapter seventy-eight, Masters and servants; chapter ninety-three, Immigration; sections sixteen hundred and one, sixteen hundred and eight, and sixteen hundred and twelve, Agriculture and forestry; chapter ninety-six, Seditious offenses; and chapter ninety-nine, Sailing regulations.

 

     Session Laws:  Act fifteen, Elections; Act twenty-six, Duties; Act twenty-seven, Exemptions from duties; Act thirty-two, Registry of vessels; section four of Act thirty-eight, Importation of livestock; Act forty-eight, Pacific cable; Act sixty-five, Consolidation of public debt; Act sixty-six, Ports of entry; and Act sixty-eight, Chinese immigration.

 

  Referred to in 15 H. 329, 413, 606; 16 H. 245, 253; 19 H. 209, 210, 213, 214; 197 U.S. 354; 217 U.S. 244; 108 Fed. 113; 1 U.S.D.C. Haw. 88, 91; 3 U.S.D.C. Haw. 299.  See §§1, 5, and 6 and notes thereto.

 

 

     §8.  Certain offices abolished.  That the offices of President, minister of foreign affairs, minister of the interior, minister of finance, minister of public instruction, auditor-general, deputy auditor-general, surveyor-general, marshal, and deputy marshal of the Republic of Hawaii are hereby abolished.

 

  Referred to in 15 H. 115, 274; 16 H. 245.  See §§9, 66, 68, and 71-79.

 

 

     §9.  Amendment of official titles.  That wherever the words "President of the Republic of Hawaii," or "Republic of Hawaii," or "Government of the Republic of Hawaii," or their equivalents, occur in the laws of Hawaii not repealed by this Act, they are hereby amended to read "Governor of the Territory of Hawaii," or "Territory of Hawaii," or "Government of the Territory of Hawaii," or their equivalents, as the context requires.

 

  Referred to in 16 H. 245, 400.  Compare Laws of 1893-4, Act 1, and Const. of 1894, Art. 92, §2.

 

 

     §10.  Construction of existing statutes.  That all rights of action, suits at law and in equity, prosecutions, and judgments existing prior to the taking effect of this Act shall continue to be as effectual as if this Act had not been passed; and those in favor of or against the Republic of Hawaii, and not assumed by or transferred to the United States, shall be equally valid in favor of or against the government of the Territory of Hawaii.  All offenses which by statute then in force were punishable as offenses against the Republic of Hawaii shall be punishable as offenses against the government of the Territory of Hawaii, unless such statute is inconsistent with this Act, or shall be repealed or changed by law.  No person shall be subject to imprisonment for nonpayment of taxes nor for debt.  All criminal and penal proceedings then pending in the courts of the Republic of Hawaii shall be prosecuted to final judgment and execution in the name of the Territory of Hawaii; all such proceedings, all actions at law, suits in equity, and other proceedings then pending in the courts of the Republic of Hawaii shall be carried on to final judgment and execution in the corresponding courts of the Territory of Hawaii; and all process issued and sentences imposed before this Act takes effect shall be as valid as if issued or imposed in the name of the Territory of Hawaii:  Provided, That no suit or proceedings shall be maintained for the specific performance of any contract heretofore or hereafter entered into for personal labor or service, nor shall any remedy exist or be enforced for breach of any such contract, except in a civil suit or proceeding instituted solely to recover damages for such breach:  Provided further, That the provisions of this section shall not modify or change the laws of the United States applicable to merchant seamen.

     That all contracts made since August twelfth, eighteen hundred and ninety-eight, by which persons are held for service for a definite term, are hereby declared null and void and terminated, and no law shall be passed to enforce said contracts in any way; and it shall be the duty of the United States marshal to at once notify such persons so held of the termination of their contracts. [Am June 27, 1952, c 477, §403(a), 66 Stat 279]

 

  Compare Const. of 1894, Art. 92, §§1-3.  Admiralty cases were included in "other proceedings" under this §, and those then pending continued in the jurisdiction of the territorial courts, though subsequent ones could be brought only in the federal court, and no appeal lay in such pending cases to the federal circuit court of appeals:  13 H. 174; 108 Fed. 113; 183 U.S. 545; 187 U.S. 309.  A petition in 1904 for the removal of a guardian appointed in 1899 is in a proceeding pending in 1899: 197 U.S. 354.  An action by the Territory for taxes due the Republic is not barred:  18 H. 255.  Imprisonment, for contempt, to compel an administrator to pay creditors pro rata is not imprisonment for debt:  19 H. 234; but the execution of a writ of ne exeat, in assumpsit, to obtain security for a judgment that might be recovered would be such imprisonment:  15 H. 413.

  Inhibition against suit on contract for personal service except for damages for breach, does not prevent injunction against exhibition or dealing in moving pictures in violation of contract:  22 H. 550; nor does this provision apply to a contract to have one cultivate on shares land in sugar cane for three crops in a husbandlike manner to the satisfaction of another:  25 H. 558.  On contract labor laws, see note to Joint Resolution of Annexation RLH 1955, page 13.  On applicability to Hawaii of Federal laws against introduction of contract labor, see 27 Ops. 479.  Referred to in 16 H. 245, 255; 18 H. 539; 20 H. 487; 22 H. 587; 197 U.S. 354; 1 U.S.D.C. Haw. 41.

 

Law Journals and Reviews

 

  Hawai‘i's Masters and Servants Act:  Brutal Slavery?  31 UH L. Rev. 87.

 

 

     §11.  Style of process.  That the style of all process in the Territorial courts shall hereafter run in the name of "The Territory of Hawaii," and all prosecutions shall be carried on in the name and by the authority of the Territory of Hawaii. [Rep L Sp 1959 1st, c 5, §8]

 

  Cf. Const. of 1894, Art. 92, §3.  Prosecutions under county ordinances should be in name of Territory:  17 H. 185.  Likewise prosecutions in Territorial courts under national prohibition: 27 H. 240.  Referred to in 16 H. 245.

 

 

CHAPTER II.

THE LEGISLATURE

 

  C II of this act (§§12-62), excepting §15, was taken, with some modifications, from Const. of 1894; see also, RL 1905, p 51, and RL 1915, p 29.  See 16 H. 242, 253.

 

     §12.  The legislative power.  That the legislature of the Territory of Hawaii shall consist of two houses, styled, respectively, the senate and house of representatives, which shall organize and sit separately, except as otherwise herein provided.

     The two houses shall be styled "The legislature of the Territory of Hawaii."

 

 

     §13.  That no person shall sit as a senator or representative in the legislature unless elected under and in conformity with this Act.

 

  Referred to in 16 H. 245; 22 H. 250.

 

 

     §14.  General elections.  That a general election shall be held on the Tuesday next after the first Monday in November, nineteen hundred, and every second year thereafter:  Provided, however, That the governor may in his discretion, on thirty days' notice, order a special election before the first general election, if, in his opinion, the public interests shall require a special session of the legislature.

 

  Although legislature is authorized by §85, as amended, to amend election laws of Territory, it cannot change time for holding elections of members of legislature prescribed by this §14 of the Org. Act, by providing that a candidate receiving a majority at direct primary shall be thereby elected:  22 H. 247.  But such provision is valid and operative as to county supervisor notwithstanding that there are more than one to be elected:  22 H. 520.  Referred to in 15 H. 266; 16 H. 245; 20 H. 295.  See §85, election of delegate; §64.

 

     §15.  Each house judge of qualifications of members.  That each house shall be the judge of the elections, returns, and qualifications of its own members.

 

  This prevents secretary of Territory and courts from passing on eligibility of a candidate for the legislature except when it is clearly their duty to do so:  14 H. 145; 15 H. 329, 332.  The supreme court formerly had exclusive jurisdiction in election cases:  Const. of 1894, Art. 40; 15 H. 328.  Referred to in 15 H. 266; 16 H. 245; 20 H. 312.

 

 

     §16.  Disqualification of legislators.  That no member of the legislature shall, during the term for which he is elected, be appointed or elected to any office of the Territory of Hawaii:  Provided, That nothing in this Act shall prevent a member of the legislature from serving as a delegate to a constitutional convention. [Am Oct. 26, 1940, c 752, 63 Stat 926]

 

  Office of a supervisor of city and county of Honolulu is not an office of Territory, and hence a member of legislature may be elected to such office:  25 H. 669.  Referred to in 16 H. 245.

 

     §17.  Disqualifications of government officers and employees.  That no person holding office in or under or by authority of the Government of the United States or of the Territory of Hawaii shall be eligible to election to the legislature, or to hold the position of a member of the same while holding said office.

 

  Notaries and similar officers were held within inhibition of somewhat similar provision of Const. of 1887; to be eligible, officer must resign before election:  8 H. 561.  Office of supervisor of city and county of Honolulu is an office by authority of the Territory, and hence acceptance of such office by member of the legislature vacates his office as such member:  25 H. 669.  Referred to in 16 H. 245.

 

     §18.  No idiot or insane person, and no person who shall be expelled from the legislature for giving or receiving bribes or being accessory thereto, and no person who, in due course of law, shall have been convicted of any criminal offense punishable by imprisonment, whether with or without hard labor, for a term exceeding one year, whether with or without fine, shall register to vote or shall vote or hold any office in, or under, or by authority of, the government, unless the person so convicted shall have been pardoned and restored to his civil rights.

 

  Referred to in 13 H. 19; 16 H. 245; 17 H. 13, 18, 248; 18 H. 140.

 

 

     §19.  Oath of office.  That every member of the legislature, and all officers of the government of the Territory of Hawaii, shall take the following oath or affirmation:

     I solemnly swear (or affirm), in the presence of Almighty God, that I will faithfully support the Constitution and laws of the United States, and conscientiously and impartially discharge my duties as a member of the legislature, or as an officer of the government of the Territory of Hawaii (as the case may be).

 

  Attorneys at law are not required to take this oath:  15 H. 383.

 

     §20.  Officers and rules.  That the senate and house of representatives shall each choose its own officers, determine the rules of its own proceedings, not inconsistent with this Act, and keep a journal.

 

  The clerk of the house is an officer within meaning of a Federal statute forbidding officers to destroy public records (vouchers of house expense):  2 U.S.D.C. Haw. 20.

 

 

     §21.  Ayes and noes.  That the ayes and noes of the members on any question shall, at the desire of one-fifth of the members present, be entered on the journal.

 

  §§21-24, with many other §§, are referred to in 16 H. 245.

 

     §22.  Quorum.  That a majority of the number of members to which each house is entitled shall constitute a quorum of such house for the conduct of ordinary business, of which quorum a majority vote shall suffice; but the final passage of a law in each house shall require the vote of a majority of all the members to which such house is entitled.

 

     §23.  That a smaller number than a quorum may adjourn from day to day, and compel the attendance of absent members, in such manner and under such penalties as each house may provide.

 

 

     §24.  That, for the purpose of ascertaining whether there is a quorum present, the chairman shall count the number of members present.

 

 

     §25.  Punishment of persons not members.  That each house may punish by fine, or by imprisonment not exceeding thirty days, any person not a member of either house who shall be guilty of disrespect of such house by any disorderly or contemptuous behavior in its presence or that of any committee thereof; or who shall, on account of the exercise of any legislative function, threaten harm to the body or estate of any of the members of such house; or who shall assault, arrest, or detain any witness or other person ordered to attend such house, on his way going to or returning therefrom; or who shall rescue any person arrested by order of such house.

     But the person charged with the offense shall be informed, in writing, of the charge made against him, and have an opportunity to present evidence and be heard in his own defense.

 

  Does not prevent garnishment of senator's salary under territorial law:  19 H. 428.

 

     §26.  Compensation of members.  The members of the legislature shall receive for their services, in addition to mileage to and from general sessions at the rate of 20 cents a mile each way, the sum of $1,000 for each general session, payable in three equal installments, on and after the first, thirtieth, and fiftieth days of such session, to be appropriated by Congress from any moneys in the Treasury not otherwise appropriated, based upon regular estimates submitted through the Secretary of the Interior.  The sums authorized to be appropriated from the Federal Treasury for mileage and salary of members for general sessions shall constitute the only sums to be appropriated by the Congress for legislative expenses.  Members shall receive from the Treasury of the Territory $500 as compensation for any special session held under the provisions of existing law.  The Territory of Hawaii is hereby authorized to enact such laws as it may deem appropriate for the payment from the Treasury of the Territory for compensation and mileage to such members for budget sessions and for the payment of additional compensation to such members for general sessions and special sessions. [Am May 27, 1910, c 258, §2, 36 Stat 443; July 9, 1921, c 42, §301, 42 Stat 115; June 27, 1930, c 647, 46 Stat 823; Aug. 20, 1958, Pub L 85-690, §4, 72 Stat 684]

 

  Between 1909 and 1930, appropriations by Congress for Hawaiian legislative expenses contained proviso that legislators should not receive compensation or mileage for any session held under §54.

 

 

     §27.  Punishment of members.  That each house may punish its own members for disorderly behavior or neglect of duty, by censure, or by a two-thirds vote suspend or expel a member.

 

     §28.  Exemption from liability.  That no member of the legislature shall be held to answer before any other tribunal for any words uttered in the exercise of his legislative functions in either house.

 

     §29.  Exemption from arrest.  That the members of the legislature shall, in all cases except treason, felony, or breach of the peace, be privileged from arrest during their attendance at the sessions of the respective houses, and in going to and returning from the same:  Provided, That such privilege as to going and returning shall not cover a period of over ten days each way.

 

 

THE SENATE

 

     §30.  Senate; Number; Term.  The senate shall be composed of twenty-five members, who shall be elected by the qualified voters of the respective senatorial districts for a term of four years beginning with their election and ending on the day of the second general election after their election:  Provided, however, That (1) senators elected at the general election of 1956 shall continue to hold office until the expiration of the terms for which they were elected and shall be deemed to have been elected from the new senatorial district in which they resided at the time of their election; and (2) that at the first session of the legislature subsequent to the general election of 1958, the legislature shall so assign the senators to long or short terms, that as nearly as possible one half of them, including the holdover senators, shall hold office for two years and the remaining senators shall hold office for four years.  In the event that the legislature fails to make the necessary assignments of short and long terms for senators as herein required, the Governor shall do so. [Am Aug. 1, 1956, c 851, §1, 70 Stat 903]

 

  Referred to in 13 H. 19; 16 H. 245.  Congress apportioned the senators elected at the first election, on failure of the legislature to do so:  32 Stat 200.  See §55 on reapportionment of senators and representatives on the basis of number of citizens as determined by the census.

 

 

     §31.  Vacancies.  That vacancies caused by death, resignation, or otherwise shall be filled for the unexpired term at general or special elections.

 

  Referred to, with §32 and many other §§, in 16 H. 245.

 

 

     §32.  Senatorial Districts.  For the purpose of representation in the senate, the Territory is divided into the following senatorial districts, namely:

     First senatorial district:  That portion of the island of Hawaii known as Puna, Hilo and Hamakua;

     Second senatorial district:  That portion of the island of Hawaii known as Kau, Kona and Kohala;

     Third senatorial district:  The islands of Maui, Molokai, Lanai and Kahoolawe;

     Fourth senatorial district:  That portion of the island of Oahu lying east and south of Nuuanu Street and Pali Road and the upper ridge of the Koolau Range from the Nuuanu Pali to Makapuu Point and all other islands not specifically enumerated;

     Fifth senatorial district:  That portion of the island of Oahu lying west and north of the fourth senatorial district; and

     Sixth senatorial district:  The islands of Kauai and Niihau. [Am Aug. 1, 1956, c 851, §2, 70 Stat 903]

 

 

     §33.  Apportionment of Senators.  The electors in the said senatorial districts shall be entitled to elect senators as follows:

     In the first senatorial district, five;

     In the second senatorial district, two;

     In the third senatorial district, five;

     In the fourth senatorial district, five;

     In the fifth senatorial district, five;

     In the sixth senatorial district, three. [Am Aug. 1, 1956, c 851, §3, 70 Stat 903]

 

  On reapportionment of senators after the census, see §55; see also note to §30.  Referred to in 16 H. 245.

 

 

     §34.  Qualifications of senators.  That in order to be eligible to election as a senator a person shall--

     Be a citizen of the United States;

     Have attained the age of thirty years;

     Have resided in the Hawaiian Islands not less than three years and be qualified to vote for senators in the district from which he is elected. [Am Sept. 15, 1922, c 315, 42 Stat 844]

 

  This § does not invalidate the law requiring nominations to be filed within a prescribed time:  19 H. 227.  Referred to in 13 H. 21; 16 H. 245; 25 H. 689.

 

 

THE HOUSE OF REPRESENTATIVES

 

     §35.  House of Representatives; Number.  The house of representatives shall be composed of fifty-one members, who shall be elected by the qualified voters of the respective representative districts. [Am Aug. 1, 1956, c 851, §4, 70 Stat 903]

 

  Referred to in 16 H. 245, 253.

 

 

     §36.  Term of office.  That the term of office of the representatives elected at any general or special election shall be until the next general election held thereafter.

 

  Referred to in 22 H. 250; also, with §§37, 38 and many other §§, in 16 H. 245.

 

 

     §37.  Vacancies.  That vacancies in the office of representative caused by death, resignation, or otherwise shall be filled for the unexpired term at special elections.

 

 

     §38.  Representative Districts.  For the purpose of representation in the house of representatives, the Territory is divided into the following representative districts:

     First representative district:  That portion of the island of Hawaii known as Puna;

     Second representative district:  That portion of the island of Hawaii known as South Hilo;

     Third representative district:  That portion of the island of Hawaii known as North Hilo and Hamakua;

     Fourth representative district:  That portion of the island of Hawaii known as Kau and South Kona and that portion of North Kona, for convenience herein referred to as Keauhou, more particularly described as follows:  (1) from a point at the seashore between the lands of Holauloa 1 and 2 and Puapuaa 2 running northeasterly along the boundary of Holauloa 1 and 2 to Puu Laalaau; (2) easterly in a straight line to a point called Naohueleelua being the common corner of the lands of Puuanahulu, Kaohe and Keauhou 2d; (3) southeasterly along the common boundary between Hamakua and North Kona Districts to the summit of Mauna Loa; (4) westerly along the common boundary between Kau and North Kona Districts to the easterly boundary of South Kona District; (5) northerly and westerly along the boundary between North and South Kona Districts to the seashore; and (6) northerly along the seashore to the point of beginning;

     Fifth representative district:  That portion of the island of Hawaii known as Kohala and that portion of North Kona not included in the fourth representative district;

     Sixth representative district:  The islands of Molokai and Lanai;

     Seventh representative district:  The islands of Maui and Kahoolawe;

     Eighth representative district:  That portion of the island of Oahu known as Koolaupoko and Koolauloa;

     Ninth representative district:  That portion of the island of Oahu known as Waialua and Wahiawa;

     Tenth representative district:  That portion of the island of Oahu known as Ewa and Waianae;

     Eleventh representative district:  That portion of the island of Oahu, for convenience herein referred to as Kalihi, more particularly described as follows:  (1) from the intersection of Kalihi and Auiki Streets running westerly along Auiki Street to Mokauea Street; (2) southwesterly along Mokauea Street extension extended to a point on the outer edge of the reef; (3) westerly along the outer edge of the reef to a point on the Moanalua-Halawa boundary; (4) northerly and northeasterly along the Moanalua-Halawa boundary to the top of Koolau Range; (5) southeasterly along the top of Koolau Range to a place called "Puu Lanihuli"; (6) southwesterly along the top of the ridge between the lands of Kalihi, Kapalama and Nuuanu to Kalihi Street; and (7) southwesterly along Kalihi Street to the point of beginning;

     Twelfth representative district:  That portion of the island of Oahu, for convenience herein referred to as Upper Nuuanu, more particularly described as follows:  (1) from the intersection of King and Kalihi Streets running northeasterly along Kalihi Street to the ridge between the lands of Kalihi, Kapalama and Nuuanu; (2) northeasterly along the top of said ridge to a point on the Koolau Range called Puu Lanihuli; (3) easterly along the top of said range to Pali Road at the Nuuanu Pali; (4) southwesterly along Pali Road to Nuuanu Avenue and southwesterly along Nuuanu Avenue to School Street; (5) northwesterly along School Street to the centerline of the Kapalama drainage canal (Waikiki Branch); (6) southwesterly along said canal to the centerline of the main Kapalama drainage canal; (7) southwesterly along said canal to King Street; and (8) northwesterly along King Street to the point of beginning.

     Thirteenth representative district:  That portion of the island of Oahu for convenience herein referred to as Kapalama, more particularly described as follows:  (1) from the junction of the Honolulu Harbor Channel and the reef running westerly along the outer edge of the reef to Mokauea Street extension extended; (2) northeasterly along Mokauea Street extension extended to Sand Island Road; (3) northeasterly along Mokauea Street extension to Auiki Street; (4) easterly along Auiki Street to Kalihi Street; (5) northeasterly along Kalihi Street to King Street; (6) southeasterly along King Street to the center line of the Main Kapalama drainage canal; (7) northerly along said canal to the center line of the Kapalama drainage canal (Waikiki Branch); (8) northeasterly along said canal to School Street; (9) southeasterly along School Street to Nuuanu Avenue; (10) southwesterly along Nuuanu Avenue to the sea, and (11) southwesterly along the middle of Honolulu Harbor and Honolulu Harbor Channel to the point of beginning.

     Fourteenth representative district:  That portion of the island of Oahu, for convenience herein referred to as Pauoa, more particularly described as follows:  (1) from the junction of the Honolulu Harbor Channel and the outer edge of the reef running northeasterly along the middle of Honolulu Harbor Channel and Honolulu Harbor to the intersection of Queen Street and Nuuanu Avenue; (2) northeasterly along Nuuanu Avenue to Pali Road and northeasterly along Pali Road to the top of Koolau Range at the Nuuanu Pali; (3) easterly and southerly along the top of the Koolau Range to a point called Puu Konahuanui; (4) southwesterly along the top of the ridge between the lands of Nuuanu, Pauoa and Manoa to a mountain peak called Puu Ohia or Tantalus; (5) southwesterly along the top of the ridge between the lands of Makiki and Kalawahine to the intersection of Nehoa Street and Lewalani Drive; (6) southerly along Lewalani Drive and Piikoi Street to Wilder Avenue; (7) easterly along Wilder Avenue to Punahou Street; (8) southerly along Punahou Street to King Street; (9) westerly along King Street to Kalakaua Avenue; (10) southerly along Kalakaua Avenue to the center line of the Ala Wai Canal; (11) westerly along said canal and along the line of said canal extended to the outer edge of the reef; and (12) westerly along the outer edge of the reef to the point of beginning.

     Fifteenth representative district:  That portion of the island of Oahu, for convenience herein referred to as Manoa and Waikiki, more particularly described as follows:  (1) from the intersection of Kalakaua Avenue and the center line of the Ala Wai Canal running northerly along Kalakaua Avenue to King Street; (2) easterly along King Street to Punahou Street; (3) northerly along Punahou Street to Wilder Avenue; (4) westerly along Wilder Avenue to Piikoi Street; (5) northerly along Piikoi Street to Lewalani Drive; (6) northerly along Lewalani Drive to Nehoa Street; (7) northeasterly along the top of the ridge between the lands of Makiki and Kalawahine to a mountain peak called Puu Ohia or Tantalus; (8) northeasterly along the top of the ridge between the lands of Pauoa, Manoa and Nuuanu to a point on the Koolau Range called Puu Konahuanui; (9) southeasterly along the top of said range to a place called Mountain Olympus; (10) southwesterly along the top of Waahila Ridge to the top edge of Palolo Valley; (11) southwesterly along the top edge of said valley to the forest reserve boundary; (12) southwesterly along the southeasterly boundary of Saint Louis Heights tract, series 2 (file plan 464) to the southerly boundary of said tract one hundred feet southeasterly from Alencastre Street; (13) southwesterly parallel to and one hundred feet from Alencastre Street and Saint Louis Drive to Waialae Avenue; (14) westerly along Waialae Avenue to Kapahulu Avenue extended; (15) southerly across Waialae Avenue and along Kapahulu Avenue to Kalakaua Avenue; (16) westerly along Kapahulu Avenue extended to the outer edge of the reef; (17) northwesterly along the outer edge of the reef to a point on the line extended of the center line of the Ala Wai Canal; and (18) easterly along said line to the point of beginning;

     Sixteenth representative district:  That portion of the island of Oahu, for convenience herein referred to as Kaimuki and Kapahulu, more particularly described as follows:  (1) from a point at the seacoast at a place called Black Point running westerly along the seacoast to Kapahulu Avenue extended to the sea; (2) easterly across Kalakaua Avenue and easterly and northerly along Kapahulu Avenue to Waialae Avenue; (3) easterly along Waialae Avenue to a point one hundred feet easterly of Saint Louis Drive; (4) northeasterly across Waialae Avenue then parallel to and one hundred feet from Saint Louis Drive and Alencastre Street to the southerly boundary of Saint Louis Heights tract, series 2 (file plan numbered 464); (5) northeasterly along the southeasterly boundary of said tract to the forest reserve boundary; (6) northeasterly along the top ridge of Palolo Valley to the top of Waahila Ridge; (7) northeasterly along the top of Waahila Ridge to a point on Koolau Range called Mount Olympus; (8) easterly along the top of the Koolau Range to the top of the ridge between the lands of Waialae Nui and Palolo; (9) southwesterly along the top of said ridge to a place called Kalepeamoa; (10) southwesterly along Mauumae Ridge to Sierra Drive; (11) southwesterly along Sierra Drive to Waialae Avenue; (12) easterly along Waialae Avenue to Thirteenth Avenue; (13) southwesterly along Thirteenth Avenue and Ocean View Drive to Kilauea Avenue; (14) westerly along Kilauea Avenue to Makapuu Avenue; (15) southwesterly along Makapuu Avenue to Diamond Head Road; and (16) southeasterly along Diamond Head Road to the military road and along the military road extended to the point of beginning;

     Seventeenth representative district:  That portion of the island of Oahu not included in any other representative district on the island of Oahu, together with all other islands not included in any other representative district;

     Eighteenth representative district:  The islands of Kauai and Niihau.

Wherever a roadway or intersection of one or more roadways is designated as a boundary in any of the above descriptions, the centerline of such roadway or intersection is intended as such boundary. [Am Aug. 1, 1956, c 851, §5, 70 Stat 904]

 

 

     §39.  Apportionment of Representatives.  The electors in said representative districts shall be entitled to elect representatives as follows, prior to the first reapportionment: First, one; second, four; third, one; fourth, one; fifth, one; sixth, one; seventh, five; eighth, two; ninth, two; tenth, two; eleventh, three; twelfth, three; thirteenth, three; fourteenth, five; fifteenth, six; sixteenth, four; seventeenth, three; eighteenth, four. [Am Aug. 1, 1956, c 851, §6, 70 Stat 906]

 

  On reapportionment of representatives after the census, see §55.  Referred to in 16 H. 245.

 

 

     §40.  Qualifications of representatives.  That in order to be eligible to be a member of the house of representatives a person shall, at the time of election--

     Have attained the age of twenty-five years;

     Be a citizen of the United States;

     Have resided in the Hawaiian Islands not less than three years and shall be qualified to vote for representatives in the district from which he is elected. [Am Sept. 15, 1922, c 315, 42 Stat 844]

 

  This § does not invalidate the law requiring nominations to be filed within a prescribed time:  19 H. 227.  Referred to in 13 H. 21; 14 H. 146; 25 H. 689.

 

 

LEGISLATION

 

     §41.  Sessions of the legislature.  (a)  Regular sessions of the legislature shall be held in odd number years and additional regular sessions may, if so provided by act of the legislature be held in even number years.  All such sessions shall commence at 10 o'clock antemeridian, on the third Wednesday in February.   Regular sessions in odd number years shall be known as general sessions and those in even number years shall be known as budget sessions.

     (b)  At budget sessions the legislature shall be limited to the consideration and enactment of (1) the general appropriation bill for the succeeding fiscal year, (2) bills to authorize proposed capital expenditures, (3) revenue bills necessary therefor, (4) bills calling elections, (5) proposed constitutional amendments, (6) bills to provide for the expenses of such session, and (7) matters relating to the impeachment or removal of officers. [Am Aug. 20, 1958, Pub L 85-690, §1, 72 Stat 684]

 

  Referred to in 16 H. 245.

 

 

     §42.  That neither house shall adjourn during any session for more than three days, or sine die, without the consent of the other.

 

  Referred to, with §43 and many other §§, in 16 H. 245.

 

 

     §43.  (a)  General sessions shall be limited to a period of sixty days and budget sessions and special sessions to a period of thirty days, but the Governor may extend any session for not more than thirty days.  Sundays and holidays shall be excluded in computing the number of days in any session.

     (b)  The Governor may convene the legislature, or the Senate alone, in special session.  All sessions shall be held at the capital of the Territory.  In case the capital shall be unsafe, the Governor may direct that any session shall be held at some other place in the Territory of Hawaii. [Am Aug. 20, 1958, Pub L 85-690, §2, 72 Stat 684]

 

 

     §44.  Enacting clause-English language.  That the enacting clause of all laws be, "Be it enacted by the legislature of the Territory of Hawaii."

     All legislative proceedings shall be conducted in the English language.

 

  Whether joint resolution without this enacting clause may have force of law, see message of governor to legislature relating to House J.R. No. 8, session of 1911.  Referred to in 16 H. 245.

 

Law Journals and Reviews

 

  "Language Is Never About Language":  Eliminating Language Bias in Federal Education Law to Further Indigenous Rights.  37 UH L. Rev. 381 (2015).

 

 

     §45.  Title of laws.  That each law shall embrace but one subject, which shall be expressed in its title.

 

  This provision is mandatory:  3 H. 661; 22 H. 307; 35 H. 203.  Does not apply to titles of subdivisions of a code:  12 H. 120.  Should be liberally construed, it being satisfied if the provisions of the act are naturally connected and expressed in a general way in the title:  9 H. 171; 15 H. 299; 17 H. 201; 35 H. 203.  All the provisions need not be referred to in title:  3 H. 675; 16 H. 771, 780 (county act).  A revision covering many subjects may be enacted as a whole by a separate short act:  17 H. 567; 25 H. 640.  Court should, if possible, avoid holding an act invalid on ground that its title is too narrow:  18 H. 406; 17 H. 354.  Portion not covered by title may be void and rest stand:  9 H. 171; 40 H. 604; but not if the void portion is an essential part:  15 H. 365.  Title may be broader but not narrower than the act and hence a proviso relating to taxes is void where title relates only to licenses:  22 H. 307.  Title referring to general subject matter of amendments did not violate section, 48 H. 370, 405 P.2d 772.

  The title has greater weight in the construction of an act under a provision of this kind:  15 H. 331.  Title of a subdivision of this act was considered in construing a subdivision:  42 C. Cls. R. 55.  An act described in its title as an amendment of a preceding act, but which expressly repeals the preceding act, is not itself repealed:  9 H. 171.  The purposes of this provision are set forth in 7 H. 78; applied in 7 H. 508; 40 H. 604.  As to title of municipal ordinance, see 20 H. 559; 21 H. 19.  As to whether a J.R. without a title expressing its subject may have force of law, see message of governor to legislature relative to House J.R. No. 8, session of 1911.  Referred to in 16 H. 245, 771; 22 H. 202.  Cited:  35 H. 550; 41 H. 219.

 

 

     §46.  Reading of bills.  That a bill in order to become a law shall, except as herein provided, pass three readings in each house, on separate days, the final passage of which in each house shall be by a majority vote of all the members to which such house is entitled, taken by ayes and noes and entered upon its journal.

 

  A revision may be enacted by a separate short act without itself being read:  17 H. 567.  Referred to in 15 H. 298, 366; 16 H. 245; 20 H. 600.

 

 

     §47.  Certification of bills from one house to the other.  That every bill when passed by the house in which it originated, or in which amendments thereto shall have originated, shall immediately be certified by the presiding officer and clerk and sent to the other house for consideration.

 

  The clerk is an "officer."  See note to §20.  Referred to in 16 H. 245.

 

 

     §48.  Signing bills.  That, except as herein provided, all bills passed by the legislature shall, in order to be valid, be signed by the governor.

 

  Referred to in 16 H. 245, 253.

 

 

VETO

 

  Pocket veto:  where legislature passed bill and presents it to governor less than ten days before sine die adjournment, but is convened in special session on the last day allowed the governor to consider the bill.  43 H. 216.

 

     §49.  Veto of Governor.  That every bill which shall have passed the legislature shall be certified by the presiding officers and clerks of both houses, and shall thereupon be presented to the governor.  If he approves it, he shall sign it, and it shall become a law.  If the governor does not approve such bill, he may return it, with his objections, to the legislature.

     He may veto any specific item or items in any bill which appropriates money for specific purposes; but shall veto other bills, if at all, only as a whole.

 

  Clerk is an "officer."  See note to §20. See note to next § re taking effect of law.  Whether J.R. may be vetoed, see message of governor to legislature relating to House J.R. No. 8, Session of 1911.  Referred to in 16 H. 245; 19 H. 12.

 

 

     §50.  Procedure upon receipt of veto.  That upon the receipt of a veto message from the governor each house of the legislature shall enter the same at large upon its journal and proceed to reconsider such bill, or part of a bill, and again vote upon it by ayes and noes, which shall be entered upon its journal.

     If after such reconsideration such bill, or part of a bill, shall be approved by a two-thirds vote of all the members to which each house is entitled, it shall thereby become law.

 

  An act authorizing an issuance of bonds was held to take effect upon its passage over governor's veto, although by its terms it was to "take effect" upon "its approval by the president," the latter words being held intended to refer to president's approval of issuance of the bonds, under §55, and not to be an attempt to delegate power:  19 H. 12; 26 Ops. 463.

 

 

     §51.  Failure to sign or veto.  That if the governor neither signs nor vetoes a bill within ten days after it is delivered to him it shall become a law without his signature, unless the legislature adjourns sine die prior to the expiration of such ten days.

     If any bill shall not be returned by the governor within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the legislature by their adjournment prevents its return, in which case it shall not be a law.

 

  The first paragraph of this § was taken, by the commission which drafted this act, from the Hawaiian Const. of 1894 (§69), and the second paragraph was added by Congress, from the Federal Const. (Art. 1, §7).  The latter giving twelve days, including Sundays, in which to return a bill, probably controls the former, and apparently this was recognized by the legislature in the case of L. 1911, c. 143.  In several instances bills have been signed by the governor after the adjournment of the legislature but within ten days after their passage.  Referred to in 16 H. 245.

 

 

APPROPRIATIONS

 

     §52.  That appropriations, except as herein otherwise provided, shall be made by the legislature. [Am May 27, 1910, c 258, §3, 36 Stat 444]

 

  Referred to in 15 H. 364, 535; 16 H. 245; 20 H. 518; see note to §54.

 

 

     §53.  The Governor shall submit to the legislature, at each regular session, estimates for appropriations for the succeeding biennial period or, if provision be made in accordance with section 41 of this Act for additional regular sessions of the legislature, for the succeeding fiscal year. [Am Aug. 20, 1958, Pub L 85-690, §3, 72 Stat 684]

 

  Referred to in 15 H. 364, 535; 16 H. 245; see note to §54.

 

 

     §54.  That in case of failure of the legislature to pass appropriation bills providing for payments of the necessary current expenses of carrying on the government and meeting its legal obligations as the same are provided for by the then existing laws, the governor shall, upon the adjournment of the legislature, call it in extra session for the consideration of appropriation bills, and until the legislature shall have acted the treasurer may, with the advice of the governor, make such payments, for which purpose the sums appropriated in the last appropriation bill shall be deemed to have been reappropriated.  And all legislative and other appropriations made prior to the date when this Act shall take effect, shall be available to the government of the Territory of Hawaii.

 

  The legislature in extra session under this § may divide the biennial period, covering a portion of it by one appropriation bill and the rest by another:  15 H. 361.  The objects for which appropriations may be made in such extra session are not limited to "necessary current expenses," etc.:  15 H. 514, 663.  When a complete appropriation bill was passed for the first six months of the biennial period and only an incomplete one for the last eighteen months because the remainder of the expenses were expected to be provided for by counties, and the county act turned out to be void, there was a "failure" within the meaning of this section, but the "last appropriation bills" to be resorted to were those of the previous biennial period and not those of the first six months of the period in question:  15 H. 532.  Referred to in 16 H. 245.

 

 

LEGISLATIVE POWER

 

     §55.  That the legislative power of the Territory shall extend to all rightful subjects of legislation not inconsistent with the Constitution and laws of the United States locally applicable.  The legislature shall not grant to any corporation, association, or individual any special or exclusive privilege, immunity, or franchise without the approval of Congress; nor shall it grant private charters, but it may by general act permit persons to associate themselves together as bodies corporate for manufacturing, agriculture, and other industrial pursuits, and for conducting the business of insurance, savings banks, banks of discount and deposit (but not of issue), loan, trust, and guaranty associations, for the establishment and conduct of cemeteries, and for the construction and operation of railroads, wagon roads, vessels, and irrigating ditches, and the colonization and improvement of lands in connection therewith, or for colleges, seminaries, churches, libraries, or any other benevolent, charitable, or scientific association.  No divorce shall be granted by the legislature, nor shall any divorce be granted by the courts of the Territory unless the applicant therefor shall have resided in the Territory for two years next preceding the application, but this provision shall not affect any action pending when this Act takes effect; nor shall any lottery or sale of lottery tickets be allowed; nor shall spiritous or intoxicating liquors be sold except under such regulations and restrictions as the Territorial legislature shall provide; nor shall any public money be appropriated for the support or benefit of any sectarian, denominational, or private school, or any school not under the exclusive control of the government; nor shall the government of the Territory of Hawaii, or any political or municipal corporation or subdivision of the Territory, make any subscription to the capital stock of any incorporated company, or in any manner lend its credit for the use thereof; nor shall any debt be authorized to be contracted by or on behalf of the Territory, or any political or municipal corporation or subdivision thereof, except to pay the interest upon the existing indebtedness, to suppress insurrection, or to provide for the common defense, except that in addition to any indebtedness created for such purposes the legislature may authorize loans by the Territory, or any such subdivision thereof, for the erection of penal, charitable, and educational institutions, and for public buildings, wharves, roads, harbors, and other public improvements, but the total indebtedness of the Territory shall not at any time be extended beyond 10 per centum of the assessed value of the property in the Territory and the total indebtedness of any such subdivision shall not at any time be extended beyond 5 per centum of the assessed value of property in the subdivision, as shown by the then latest assessments for taxation, whether such assessments are made in either case by the Territory or subdivision, but nothing in this Act shall prevent the refunding of any indebtedness at any time; nor shall any such loan be made upon the credit of the public domain or any part thereof; nor shall any bond or other instrument of any such indebtedness be issued unless made payable in not more than thirty years from the date of the issue thereof; nor shall any issue of bonds or other instruments of any such indebtedness be made after July 1, 1926, other than such bonds or other instruments of indebtedness in serial form maturing in substantially equal annual instalments, the first instalment to mature not later than five years from the date of the issue of such series, and the last instalment not later than thirty years from the date of such issue; nor shall any such bond or indebtedness be issued or incurred until approved by the President of the United States:  Provided, That the legislature may by general act provide for the condemnation of property for public uses, including the condemnation of rights of way for the transmission of water for irrigation and other purposes.

     On or before June 1 of the year 1959, and of each tenth year thereafter, the governor shall reapportion the members of the house of representatives in the following manner:  The total number of representatives shall first be reapportioned among four basic areas; namely, (1) the island of Hawaii, (2) the islands of Maui, Molokai, Lanai and Kahoolawe, (3) the island of Oahu and all other islands not specifically enumerated, and (4) the islands of Kauai and Niihau, on the basis of the number of voters registered at the last preceding general election in each of such basic areas and computed by the method known as the method of equal proportions, no basic area to receive less than one member.  Upon the determination of the total number of representatives to which each basic area is entitled, such total shall be reapportioned among the one or more representative districts within each basic area on the basis of the number of voters registered at the last preceding general election within each of such representative districts and computed by the method known as the method of equal proportions no representative district to receive less than one member.  Upon any reapportionment, should the total number of voters registered in any representative district be less than one-half of the quotient obtained by dividing the total number of voters registered in the Territory by the total number of members to which the house is entitled, then, as part of such reapportionment, the basic area within which such representative district lies shall be redistricted by the governor in such manner that the total number of voters registered in each new representative district therein shall be more than one-half of such quotient.

     The governor shall thereupon issue a proclamation showing the results of such reapportionment, and such reapportionment shall be effective for the election of members to such house for the next five succeeding legislatures.

     Original jurisdiction is hereby vested in the supreme court of the Territory to be exercised on the application of any registered voter, made within thirty days following the date specified above, to compel, by mandamus or otherwise, the governor to perform the above duty; and made within thirty days following the date of such proclamation, to compel, by mandamus or otherwise, the correction of any error made in such reapportionment. [Am May 27, 1910, c 258, §4, 36 Stat 444; July 9, 1921, c 42, §302, 42 Stat 116; June 9, 1926, c 512, §§1, 2, 44 Stat 710; Aug. 1, 1956, c 851, §7, 70 Stat 907; Aug. 20, 1958, Pub L 85-690, §3, 72 Stat 684]

 

General Notes

 

  Congress, from time to time, has ratified territorial bond acts and has authorized particular issues.  For the years 1933 to 1942 inclusive, see the Acts of July 15, 1935, August 3, 1935, May 28, 1937, July 10, 1937 (four Acts), May 13, 1938, August 7, 1939, November 21, 1941, and May 5, 1942 cited in the Chronological Note of Acts Affecting Hawaii, RLH 1955, page 9; see also 48 U.S.C.A. 562a to j, and the list of loan fund acts in the appendix, note 6, RLH 1955, p. 1731.

  Before §55 was amended, a county could not issue bonds unless it had the power of taxation:  19 H. 9.  Legislation substantially lessening the security for payment of county bonds by reducing county revenue might be invalid as an impairment of contract obligations:  19 H. 17.  Limitation on indebtedness of municipality applies to indebtedness imposed by legislature on, as well as that incurred by, the municipality:  25 H. 335.  Street improvement bonds to be financed by assessments not municipal "indebtedness", 33 H. 731.

  For construction with reference to delegation of power, of bond statute which in terms was to take effect on the President's approval, see note to §50.

  Other territories:  Compare this §55 of the Org. Act with Rev. Sts., §§1851, 1889; 23 Stat 348; 24 Stat 170; 25 Stat 336; 29 Stat 136, covering similar subjects in relation to territories in general, all of which may have been by implication inapplicable to Hawaii before the amendment of §5 and were made inapplicable expressly by that amendment.  See note to §56.

  By this § full congressional legislative power within its terms was delegated to the territorial legislature, 54 F.2d 313.  While the power of Congress to legislate for a territory, directly or through a local legislature, is derived from the Constitution (195 U.S. 140), it is derived, not from the enumerated specific powers, but from the general power to make "needful rules and regulations respecting the territory or other property belonging to the United States" or by implication from the power to acquire and hold territory and the fact that there is no other legislative power over such territory, or from both these sources (136 U.S. 42‑44); (182 U.S. 290; 195 U.S. 140; 118 U.S. 380).  Hence such legislative power over territories is not subject to the limitations applicable to the power of Congress over the states, except as set forth in the note to §5 of this Act, but in general is the equivalent of the combined federal and state legislative power over a state and extends to "all rightful subjects of legislation."  175 U.S. 168; 239 U.S. 365; 137 U.S. 684; 152 U.S. 48; 201 U.S. 308; 251 U.S. 406; 171 Fed. 488; 86 Fed. 456.  Congress may abrogate territorial laws or legislate directly for the territories.  305 U.S. 306, affg. 96 F.2d 412, and 33 H. 890.

  Pursuant to section 73(c), certain land laws are not subject to repeal or amendment by the legislature without the approval of Congress.

  By the Act of April 19, 1930, the Hawaii National Park was removed from territorial jurisdiction except for certain purposes therein stated.  This Act is set out following the U.S. Constitution.

  As to military and naval reservations see the note to section 2.  As to taxation see the following Acts of general application throughout the United States:  Act of June 16, 1936 known as Hayden-Cartwright Act, c 582, §10, 49 Stat 1518, 1521, as amended October 9, 1940, c 787, §7, 54 Stat 1059, 1060, construed in 38 Ops. 519; Act of October 9, 1940, known as the Buck Act, c 787, 54 Stat 1059.

  As to juries and jury trials see §83 and note.

  As to application of Constitution see §5 and note.  Constitutional construction adopted, if possible, 36 H. 206, 230.

  The legislature has never carried out the provisions for reapportionment, but legislation is not thereby invalidated, not a justifiable question:  36 H. 32.

  The provisions of this § against granting special franchises and private charters do not apply to grants of powers to municipal corporations:  19 H. 176; nor do they prevent the imposition of a license fee for fishing for profit with boats exceeding a certain width:  19 H. 643; 27 H. 7.  See 40 H. 604.

  Claim of special privilege through the grant of an exemption not raised by general demurrer, 33 H. 196.  Through grant of certificate of public convenience and necessity, not raised where benefits of law had been accepted, 33 H. 813.  Certificate of public convenience and necessity not a franchise, 34 H. 52.

  On status of corporations formed before and after annexation, with reference to their being corporations organized by authority of federal laws, see note to §6.

  For ratification of franchises granted between annexation and the establishment of territorial government, see §73 and note thereto.  For franchises granted by the territorial legislature and approved, with amendments, by Congress, see note 3 in Appendix of RLH 1945, page 1676, and list of acts in Chronological Note of Acts Affecting Hawaii in RLH 1955, page 9.  Certificate of public convenience, 34 H. 52.

  As to rightful subjects of legislation and extent of the legislative power, see 23 Ops. 539, 16 H. 266; 38 H. 188, and note to §81, on judiciary.  121 Fed. 772; 13 H. 600; 14 H. 432; 1 U.S.D.C. Haw. 95; 1 U.S.D.C. Haw. 298; 21 H. 597, 600; 23 H. 64, 359; 23 H. 437; 33 H. 278, and 33 H. 731 (street improvement bonds); 28 H. 298 (special assessments); 226 U.S. 184; 54 Fed. 2d 313, cert. den. 286 U.S. 543; 130 Fed. 2d 789; 38 Ops. 519; 39 Ops. 316, on taxation, 20 H. 483; 22 H. 103, 107; 37 H. 314 aff. 174 F.2d 21; 38 H. 188, on taxation and police power.  27 Ops. 485, on special tax on incomes in excess of $4000 for assisting immigration.  26 H. 737, validity of workmen's compensation act where contract is nonmaritime although injury occurred while workman was incidentally engaged in maritime work on ship in navigable water of United States.  205 U.S. 354, and 13 H. 481, on exemption of the Territory from suit without its consent.  21 H. 222 (Ann. Cas. 1916A 1136) on validity of statute prohibiting judge from commenting on evidence, etc.  23 H. 376, 35 H. 461, 37 H. 223, 38 H. 261, provision requiring two years' residence for applicant for divorce is mandatory and jurisdictional, but member of armed forces may become domiciled; 16 H. 777, and 17 H. 174, on creation of municipal corporations.  21 H. 31; 21 H. 41 (Ann. Cas. 1915A 1155); 21 H. 631, protection of fish.  24 H. 485, power to regulate food prices belongs to Congress as a war power and not to the states or territories, but see 256 U.S. 170.  21 H. 314, 326, improvement of insanitary lands.  34 H. 52, regulation of public utilities.  33 H. 397, photography.  38 H. 310, on statehood.

  The legislature cannot after a pardon refund a fine paid before the pardon, for that would be an invasion of the judicial and pardoning powers and a diversion of public funds to private uses:  20 H. 518; the appropriation of public funds to discharge a moral obligation is a rightful subject of legislation:  20 H. 600; but there is no obligation to refund license fees lawfully collected, 20 H. 600, nor part of the sale price of public land on the assumption that the appraisement was too high, 26 H. 104.  Likewise as to reimbursement for improvement, after forfeiture of special homestead agreement, in excess of appraised value of improvement:  25 H. 406.  Contractor's losses:  29 H. 343.  Power of legislature to provide for further judicial proceedings.  Pope vs. U.S. Sup. Ct. U.S. Nov. 6, 1944.

  The legislature may authorize the garnishment of a legislator's salary:  19 H. 428.  Street railways are subject to regulation directly by the legislature or by delegation, as to details, to administrative bodies, and perhaps, as in a state, by delegation to the courts:  211 U.S. 291.

  The legislature may delegate to municipalities and local boards of health power to enact health regulations, but it cannot delegate to administrative officers the power of taxation, e.g., the power to fix sewer rates:  20 H. 411.

  The absence of legislation for licenses to clubs to sell liquor is no defense for a club selling without a license; 16 H. 509; nor has an ex-licensee such a vested right as will entitle him to sell his stock of liquor after the expiration of his license:  18 H. 406.  Congress provided by Joint Resolution of April 26, 1910 (36 Stat 878) for a special election on prohibition, at which election the vote was against prohibition.  See also the Act of May 23, 1918, c 84, 40 Stat 560, which was followed by the National Prohibition Act, made applicable to Hawaii by §3 of Act of Nov. 23, 1921, c 134, 42 Stat 223.  All federal liquor prohibition laws in effect in Hawaii were repealed by the Act of Mar. 26, 1934, c 88, 48 Stat 467.

  The legislature may appropriate money for a hospital conducted for indigent sick without distinction as to nationality, creed, etc.:  15 H. 663.  The clause in regard to aid to sectarian schools is referred to in 17 H. 292; 19 H. 148; 206 U.S. 206; 215 U.S. 554.

  Insurance statute does not supersede contract between the parties.  9 F.2d 340.  Power to regulate foreign language schools is controlled by constitution, 11 F.2d 710, 273 U.S. 284.  Legislative control over qualifications of physicians, 31 H. 625, aff. 52 F.2d 411.

  Condemnation for irrigation project:  74 F.2d 596, cert. den. 296 U.S. 570, rev'd. on other grounds 298 U.S. 342.

  Referred to in 13 H. 706; 18 H. 539, 41 H. 37, 461.  See also note to §5.

  Conflict of a territorial statute with an executive agreement.  41 H. 565.  Action for declaratory judgment on reapportionment of legislature moot when Congress by amendment ordered reapportionment.  256 F.2d 728.  See also 138 F. Supp. 220.  Power to enact Fair Trade Act.  43 H. 103.  On rightful subjects of legislation.  43 H. 103.  Acts in discharge of a moral obligation; are rightful subjects of legislation; are not grants of special or exclusive privileges.  44 H. 100, 352 P.2d 835.

 

 

TOWN, CITY, AND COUNTY GOVERNMENT

 

     §56.  That the legislature may create counties and town and city municipalities within the Territory of Hawaii and provide for the government thereof, and all officials thereof shall be appointed or elected, as the case may be, in such manner as shall be provided by the governor and legislature of the Territory. [Am Mar. 3, 1905, c 1465, 33 Stat 1035]

 

  The federal statutes prohibiting territories from enacting special laws concerning municipal corporations were superseded as to Hawaii by this § even before the amendment to §5, which expressly declared such statutes inapplicable to Hawaii:  19 H. 176; 16 H. 777.  Congress did not intend that §16 should control this § as to who might be appointed or elected to city or county offices:  25 H. 678, 687, 688.  A county ordinance was held unauthorized because its subject matter was covered by a territorial statute:  18 H. 624, but now see 21 H. 19; 21 H. 30; 21 H. 206.  A county ordinance prescribing fire limits is not operative against the Territory whose legislature created the county:  23 H. 678.  Board of water supply, 31 H. 216.  Referred to in 16 H. 773, 779 (appointment or election of county officers and transfers of powers and duties from territorial to county officers); 17 H. 176 (power to make ordinances).  For county act of 1905, and city and county act of 1907, see HRS cc. 52, 54, 61 to 67, 70.  Cf. 20 Stat 101; 25 Stat 336.

 

 

ELECTIONS

 

     §57.  Exemptions of electors on election day.  That every elector shall be privileged from arrest on election day during his attendance at election and in going to and returning therefrom, except in case of breach of the peace then committed, or in case of treason or felony.

 

  Referred to, with §§58, 59, and many other §§, in 16 H. 245.

 

 

     §58.  That no elector shall be so obliged to perform military duty on the day of election as to prevent his voting, except in time of war or public danger, or in case of absence from his place of residence in actual military service, in which case provision may be made by law for taking his vote.

 

 

     §59.  Method of voting for representatives.  That each voter for representative may cast a vote for as many representatives as are to be elected from the representative district in which he is entitled to vote.

     The required number of candidates receiving the highest number of votes in the respective representative districts shall be the representatives for such districts.

 

 

     §60.  Qualifications of voters for representatives.  That in order to be qualified to vote for representatives a person shall--

     First.  Be a citizen of the United States.

     Second.  Have resided in the Territory not less than one year preceding and in the representative district in which he offers to register not less than three months immediately preceding the time at which he offers to register.

     Third.  Have attained the age of twenty-one years.

     Fourth.  Prior to each regular election, during the time prescribed by law for registration, have caused his name to be entered on the register of voters for representatives for his district.

     Fifth.  Be able to speak, read and write the English or Hawaiian language. [Am June 26, 1930, c 620, 46 Stat 818]

 

  This applies to the first territorial election to the exclusion of R.S. §1859; 13 H. 17.  Residence in the Territory for a year means in the Hawaiian Islands and is not limited to the time subsequent to the establishment of territorial government:  13 H. 17; a person who lives on a steamer engaged in interisland trade is not a resident of a particular precinct, though the steamer docks at such precinct when at Honolulu and that is her home port:  13 H. 22.  This § and §62 control as to qualifications of voters in city and county elections:  19 H. 178.  Referred to in 14 H. 146; 15 H. 266; 16 H. 245; 19 H. 227.  See also, on qualifications of voters, §§18, 62, 63; on citizenship, §§4, 100; on registration, §64.

 

 

     §61.  Method of voting for senators.  That each voter for senator may cast one vote for each senator to be elected from the senatorial district in which he is entitled to vote.

     The required number of candidates receiving the highest number of votes in the respective senatorial districts shall be the senators for such district.

 

  Referred to in 16 H. 245.

 

 

     §62.  Qualifications of voters for senators and in all other elections.  That in order to be qualified to vote for senators and for voting in all other elections in the Territory of Hawaii a person must possess all the qualifications and be subject to all the conditions required by this Act of voters for representatives.

 

  An election under a county act is one of the "other elections" referred to in this section; in such case the registration list for the last previous general election shall be used:  15 H. 265.  Referred to in 16 H. 245; 19 H. 227.  See also 19 H. 178, referred to in note to §60.

 

 

     §63.  That no person shall be allowed to vote who is in the Territory by reason of being in the Army or Navy or by reason of being attached to troops in the service of the United States.

 

  Cf. U.S. Rev. Sts. §1860, subd. 3, 48 U.S.C.A. 1460.  Domicile of member of armed forces:  35 H. 461.

 

 

     §64.  That the rules and regulations for administering oaths and holding elections set forth in Ballou's Compilation, Civil Laws, Appendix, and the list of registering districts and precincts appended, are continued in force with the following changes, to wit:

     Strike out the preliminary proclamation and sections one to twenty-six, inclusive, sections thirty and thirty-nine, the second and third paragraphs of section forty-eight, the second paragraph of section fifty, and sections sixty-two, sixty-three, and sixty-six, second paragraph of section one hundred.

     In section twenty-nine strike out all after the word "Niihau" and in lieu thereof insert:  "The boards of registration existing at the date of the Approval of this Act shall go out of office, and new boards, which shall consist of three members each, shall be appointed by the governor, by and with the advice and consent of the senate, whose terms of office shall be four years.  Appointments made by the governor when the senate is not in session shall be valid until the succeeding meeting of that body."

     In section thirty-one strike out "the first day of April and the thirtieth day of June, in the year eighteen hundred and ninety-seven," and insert in lieu thereof "the last day of August and the tenth day of October, in the year nineteen hundred."

     Strike out the words "and the detailed record" in sections fifty-two and one hundred and twelve.

     Strike out "marshal" wherever it occurs and insert in lieu thereof "high sheriff."

     Strike out of section fifty-three the words "except as provided in section one hundred and fourteen hereof."

     In sections fifty-three, fifty-four, fifty-six, fifty-seven, fifty-nine, sixty, seventy-one, seventy-five, eighty-six, ninety-two, ninety-three, ninety-four, ninety-five, one hundred and eleven, one hundred and twelve and one hundred and thirteen strike out the words "minister" and "minister of the interior" wherever they occur and insert in lieu thereof the words "secretary of the Territory."

     In section fifty-six, paragraph three, strike out "interior office" and insert "office of the secretary of the Territory."

     In section fifty-six, first paragraph, after the words "candidate for election" insert "to the legislature;" and in the last paragraph strike out the word "only."

     Strike out the word "elective" in section sixty-four.

     In sections twenty-seven, sixty-four, sixty-five, sixty-eight, seventy, and seventy-two strike out the words "minister of the interior" or "minister" wherever they occur and insert in lieu thereof the word "governor."

     Amend section sixty-seven so that it will read: "At least forty days before any election the governor shall issue an election proclamation and transmit copies of the same to the several boards of inspectors throughout the Territory, or where such election is to be held."

     In section seventy-five strike out the word "perfectly," and in section seventy-six strike out "in" and insert "on."

     In section one hundred and twelve strike out "interior department" and insert in lieu thereof "office of the secretary of the Territory."

     In section one hundred and fourteen strike out the word "Republic" wherever it occurs and insert in lieu thereof "Territory."

     In section one hundred and fifteen strike out the words "minister" and "minister of the interior" and insert in lieu thereof "treasurer," and strike out all after the word "refreshments":  Provided, however, That for the holding of a special election before the first general election the governor may prescribe the time during which the boards of registration shall meet and the registration be made.

 

  Referred to in 14 H. 146, 283; 15 H. 326, 328; 16 H. 245; 17 H. 247; 18 H. 140; 19 H. 178, 227, 228; 22 H. 250, 251.

 

 

     §65.  That the legislature of the Territory may from time to time establish and alter the boundaries of election districts and voting precincts and apportion the senators and representatives to be elected from such districts.

 

  On change of districts, see also §§32 and 38, above.

 

 

CHAPTER III.

THE EXECUTIVE

 

     §66.  The executive power.  That the executive power of the government of the Territory of Hawaii shall be vested in a governor, who shall be appointed by the President, by and with the advice and consent of the Senate of the United States, and shall hold office for four years and until his successor shall be appointed and qualified, unless sooner removed by the President.  He shall be not less than thirty-five years of age; shall be a citizen of the Territory of Hawaii; shall have resided therein for at least three years next preceding his appointment; shall be commander in chief of the militia thereof, and may grant pardons or reprieves for offenses against the laws of said Territory and reprieves for offenses against the laws of the United States until the decision of the President is made known thereon. [Am July 9, 1921, c 42, §303, 42 Stat 116]

 

  Legislature cannot exercise pardoning power:  20 H. 518.  Pardon restores all civil rights, including right to be heard as a witness:  35 H. 827, 832.  Referred to in 23 Ops. 138. Cf. U.S. Rev. Sts. §1841 (48 U.S.C.A. 1453).

 

 

     §67.  Enforcement of law.  That the governor shall be responsible for the faithful execution of the laws of the United States and of the Territory of Hawaii within the said Territory, and whenever it becomes necessary he may call upon the commanders of the military and naval forces of the United States in the Territory of Hawaii, or summon the posse comitatus, or call out the militia of the Territory to prevent or suppress lawless violence, invasion, insurrection, or rebellion in said Territory, and he may, in case of rebellion or invasion, or imminent danger thereof, when the public safety requires it, suspend the privilege of the writ of habeas corpus, or place the Territory, or any part thereof, under martial law until communication can be had with the President and his decision thereon made known.

 

  Referred to in 16 H. 266; 1 U.S.D.C. Haw 95; Cf. Const. of 1894, Art. 31.  See 10 H. 29, questioned 327 U.S. 319, on martial law.  Privilege of writ of habeas corpus was suspended and Territory placed under martial law on the afternoon of December 7, 1941.  Proclamation of martial law modified September 2, 1942 and February 8,1943.  Martial law terminated and privilege of writ restored by Presidential Proclamation 2627, October 18, 1944, effective October 24, 1944, 9 F.R. 12831, and Governor's proclamation of October 24, 1944.  For military powers thereafter see Executive Order 9489, October 18, 1944, effective October 24, 1944, 9 F.R. 12831.  See 30 Cal. L.R. 371; 55 Harv. L.R. 1253; 17 Journ. of State Bar of Calif. 185, 199; 30 Cal. L.R. 599; 29 A.B.A. Journ. 698; 31 Cal. L.R. 477; 44 Colum. L.R. 639; Executive Order 8987, 6 F.R. 6675.

  A person detained by the military authorities in Hawaii, after an inquiry into his loyalty, held not entitled to writ of habeas corpus after the proclamation of December 7, 1941:  132 F.2d 442, cert. den. 319 U.S. 744 (moot).  See also Application of Walter Glockner, U.S.D.C. Haw., H.C. No. 295 (moot); Application of Erwin R. Seifert, U.S.D.C. Haw., H.C. No. 296 (moot).  Persons convicted in provost courts after proclamation of December 7, 1941 and before Proclamation No. 2627 held not entitled to writ of habeas corpus:  Application of Lloyd C. Duncan, C.C.A. 9th, November 1, 1941, rev'g U.S.D.C. Haw., H.C. No. 298; Application of Harry E. White, C.C.A. 9th, November 1, 1941, rev'g U.S.D.C. Haw., H.C. No. 300; Application of Fred Spurlock, C.C.A. 9th, November 6, 1944, rev'g U.S.D.C. Haw., H.C. No. 301; as to foregoing three cases see proceedings on petitions for certiorari; see 327 U.S. 304, rev'g 146 F.2d 576, 652.

  See as to military commissions, 317 U.S. 1; trial under 56 Stat 173 for violation of military order (curfew), 320 U.S. 81.

 

Law Journals and Reviews

 

  Bayonets In Paradise:  A Half-Century Retrospect on Martial Law in Hawai‘i, 1941-1946.  19 UH L. Rev. 477.

  Internal Security, the "Japanese Problem," and the Kibei in World War II Hawai‘i.  35 UH L. Rev. 415 (2013).

 

 

     §68.  General powers of the governor.  That all the powers and duties which, by the laws of Hawaii, are conferred upon or required of the President or any minister of the Republic of Hawaii (acting alone or in connection with any other officer or person or body) or the cabinet or executive council, and not inconsistent with the Constitution or laws of the United States, are conferred upon and required of the governor of the Territory of Hawaii, unless otherwise provided.

 

  Referred to in 15 H. 115; 16 H. 245; 24 Ops. 603.  See 17 H. 30.

 

 

     §69.  Secretary of the Territory; acting secretary.  That there shall be a secretary of the said Territory, who shall be appointed by the President, by and with the advice and consent of the Senate of the United States, and who shall be a citizen of the Territory of Hawaii and hold his office for four years and until his successor shall be appointed and qualified, unless sooner removed by the President.  He shall record and preserve all the laws and proceedings of the legislature and all acts and proceedings of the governor, and promulgate proclamations of the governor.  He shall, within thirty days after the end of each session of the legislature, transmit to the President, the President of the Senate, and the Speaker of the House of Representatives of the United States one copy each of the laws and journals of such session.  He shall perform such other duties as are prescribed in this Act or as may be required of him by the legislature of Hawaii.

     The secretary may, with the approval of the governor, designate some other officer of the government of the Territory of Hawaii to act as secretary during his temporary absence or during his illness.  Such designation and approval shall be in writing and shall be filed in the office of the governor, and a copy thereof, certified by the governor, shall be filed in the office of the Secretary of the Interior of the United States.  Such person so designated shall, during the temporary absence or illness of the secretary, be known as the acting secretary of the Territory of Hawaii, and shall have and exercise all the powers and duties of the secretary, except those provided for by section 70 of this Act (U.S.C., title 48, §535).  Such acting secretary shall serve without additional compensation, but the secretary shall be responsible and liable on his official bond for all acts done by the acting secretary in the performance of his duties as acting secretary. [Am July 2, 1932, c 389, 47 Stat 565; Aug. 21, 1958, Pub L 85-714, 72 Stat 707]

 

  Referred to in 23 Ops. 138. Cf. U.S. Rev. Sts. §§1843, 1844 (48 U.S.C.A. 1454, 1455).

 

 

     §70.  Acting governor in certain contingencies.  That in case of the death, removal, resignation, or disability of the governor, or his absence from the Territory, the secretary shall exercise all the powers and perform all the duties of governor during such vacancy, disability, or absence, or until another governor is appointed and qualified.

 

  Cf. U.S. Rev. Sts., §1843.

 

 

     §71.  Attorney-general.  That there shall be an attorney-general, who shall have the powers and duties of the attorney-general and those of the powers and duties of the minister of the interior which relate to prisons, prisoners, and prison inspectors, notaries public, and escheat of lands under the laws of Hawaii, except as changed by this Act and subject to modification by the legislature.

 

  Referred to in 16 H. 245; 16 H. 773, 779; 26 H. 570.

 

 

     §72.  Treasurer.  That there shall be a treasurer, who shall have the powers and duties of the minister of finance and those of the powers and duties of the minister of the interior which relate to licenses, corporations, companies, and partnerships, business conducted by married women, newspapers, registry of conveyances, and registration of prints, labels, and trademarks under the laws of Hawaii, except as changed in this Act and subject to modification by the legislature.

 

  Referred to in 15 H. 274, 719; 16 H. 245, 773; 20 H. 601.

 

 

     §73.  Commissioner of public lands.  (a)  That when used in this section--

     (1)  The term "commissioner" means the commissioner of public lands of the Territory of Hawaii;

     (2)  The term "land board" means the board of public lands, as provided in subdivision (1) of this section;

     (3)  The term "public lands" includes all lands in the Territory of Hawaii classed as government or crown lands previous to August 15, 1895, or acquired by the government upon or subsequent to such date by purchase, exchange, escheat, or the exercise of the right of eminent domain, or in any other manner; except (1) lands designated in section 203 of the Hawaiian Homes Commission Act, 1920, (2) lands set apart or reserved by Executive order by the President, (3) lands set aside or withdrawn by the governor under the provisions of subdivision (q) of this section, (4) sites of public buildings, lands used for roads, streets, landings, nurseries, parks, tracts reserved for forest growth or conservation of water supply, or other public purposes, and (5) lands to which the United States has relinquished the absolute fee and ownership, unless subsequently placed under the control of the commissioner and given the status of public lands in accordance with the provisions of this Act, the Hawaiian Homes Commission Act, 1920, or the Revised Laws of Hawaii of 1915; and

     (4)  The term "person" includes individual, partnership, corporation, and association.

     (b)  Any term defined or described in section 347 or 351 of the Revised Laws of Hawaii of 1915, except a term defined in subdivision (a) of this section, shall, whenever used in this section, if not inconsistent with the context or any provision of this section, have the same meaning as given it by such definition or description.

     (c)  The laws of Hawaii relating to public lands, the settlement of boundaries, and the issuance of patents on land commission awards, except as changed by this Act, shall continue in force until Congress shall otherwise provide.  Subject to the approval of the President, all sales, grants, leases, and other dispositions of the public domain, and agreements concerning the same, and all franchises granted by the Hawaiian government in conformity with the laws of Hawaii, between the 7th day of July, 1898, and the 28th day of September, 1899, are hereby ratified and confirmed.  In said laws "land patent" shall be substituted for "royal patent"; "commissioner of public lands," for "minister of the interior," "agent of public lands," and "commissioners of public lands," or their equivalents; and the words "that I am a citizen of the United States," or "that I have declared my intention to become a citizen of the United States, as required by law," for the words "that I am a citizen by birth (or naturalization) of the Republic of Hawaii," or "that I have received letters of denization under the Republic of Hawaii," or "that I have received a certificate of special right of citizenship from the Republic of Hawaii."

     (d)  No lease of the surface of agriculture lands or of undeveloped and public land which is capable of being converted into agricultural land by the development, for irrigation purposes, of either the underlying or adjacent waters, or both, shall be granted, sold, or renewed by the government of the Territory of Hawaii for a longer period than sixty-five years.  Each such lease shall be sold at public auction to the highest bidder after due notice as provided in subdivision (i) of this section and the laws of the Territory of Hawaii.  Each such notice shall state all the terms and conditions of the sale.  The land, or any part thereof so leased, may at anytime during the term of the lease be withdrawn from the operation thereof for homestead or public purposes, upon the payment of just compensation for such withdrawal.  Every such lease shall contain a provision to that effect:  Provided, That the commissioner may, with the approval of the governor and at least two-thirds of the members of the land board, omit such withdrawal provision from, or limit the same in, the lease of any lands whenever he deems it advantageous to the Territory of Hawaii, and land so leased shall not be subject to such right of withdrawal, or shall be subject only to a right of withdrawal as limited in the lease.

     (e)  All funds arising from the sale or lease or other disposal of public land shall be appropriated by the laws of the government of the Territory of Hawaii and applied to such uses and purposes for the benefit of the inhabitants of the Territory of Hawaii as are consistent with the joint resolution of annexation, approved July 7, 1898.

     (f)  No person shall be entitled to receive any certificate of occupation, right of purchase lease, cash freehold agreement, or special homestead agreement who, or whose husband or wife, has previously taken or held more than ten acres of land under any such certificate, lease, or agreement made or issued after May 27, 1910, or under any homestead lease or patent based thereon; or who, or whose husband or wife, or both of them, owns other land in the Territory, the combined area of which and the land in question exceeds eighty acres; or who is an alien, unless he has declared his intention to become a citizen of the United States as provided by law.  No person who has so declared his intention and taken or held under any such certificate, lease, or agreement shall continue so to hold or become entitled to a homestead lease or patent of the land, unless he becomes a citizen within five years after so taking.

     (g)  No public land for which any such certificate, lease, or agreement is issued after May 27, 1910, or any part thereof, or interest therein or control thereof, shall, without the written consent of the commissioner and governor, thereafter, whether before or after a homestead lease or patent has been issued thereon, be or be contracted to be in any way, directly or indirectly, by process of law or otherwise, conveyed, mortgaged, leased, or otherwise transferred to, or acquired or held by or for the benefit of, any alien or corporation; or before or after the issuance of a homestead lease or before the issuance of a patent to or by or for the benefit of any other person; or, after the issuance of a patent, to or by or for the benefit of any person who owns, or holds, or controls, directly or indirectly, other land or the use thereof, the combined area of which and the land in question exceeds eighty acres.  The prohibitions of this paragraph shall not apply to transfers or acquisitions by inheritance or between tenants in common.

     (h)  Any land in respect of which any of the foregoing provisions shall be violated shall forthwith be forfeited and resume the status of public land and may be recovered by the Territory or its successors in an action of ejectment or other appropriate proceedings.  And noncompliance with the terms of any such certificate, lease, or agreement, or of the law applicable thereto, shall entitle the commissioner, with the approval of the governor before patent has been issued, with or without legal process, notice, demand, or previous entry, to retake possession and thereby determine the estate:  Provided, That the times limited for compliance with any such approval upon its appearing that an effort has been made in good faith to comply therewith.

     (i)  The persons entitled to take under any such certificate, lease, or agreement shall be determined by drawing or lot, after public notice as hereinafter provided; and any lot not taken or taken and forfeited, or any lot or part thereof surrendered with the consent of the commissioner, which is hereby authorized, may be disposed of upon application at not less than the advertised price by any such certificate, lease, or agreement without further notice.  The notice of any sale, drawing, or allotment of public land shall be by publication for a period of not less than sixty days in one or more newspapers of general circulation published in the Territory:  Provided, however, That (1) lots may be sold for cash or on an extended time basis, as the Commissioner may determine, without recourse to drawing or lot and forthwith patented to any citizen of the United States applying therefor, possessing the qualifications of a homesteader as now provided by law, and who has qualified for and received a loan under the provisions of the Bankhead-Jones Farm Tenant Act, as amended or as may hereafter be amended, for the acquisition of a farm, and (2) with or without recourse to drawing or lot, as the commissioner may determine, lots may be leased with or without a right of purchase, or may be sold for cash or on an extended time basis and forthwith patented, to any citizen of the United States applying therefor if such citizen has not less than two years' experience as a farm owner, farm tenant, or farm laborer:  And provided further, That any patent issued upon any such sale shall contain the same restrictive provisions as are now contained in a patent issued after compliance with a right of purchase lease, cash freehold agreement, or special homestead agreement.

     The Commissioner may include in any patent, agreement, or lease a condition requiring the inclusion of the land in any irrigation project formed or to be formed by the Territorial agency responsible therefor and making the land subject to assessments made or to be made for such irrigation project, which assessment shall be a first charge against the land.  For failure to pay the assessments or other breach of the condition the land may be forfeited and sold pursuant to the provisions of this Act, and, when sold, so much of the proceeds of sale as are necessary therefor may be used to pay any unpaid assessments.

     (j)  The commissioner, with the approval of the governor, may give to any person (1) who is a citizen of the United States or who has legally declared his intention to become a citizen of the United States and hereafter becomes such, and (2) who has, or whose predecessors in interest have, improved any parcel of public lands and resided thereon continuously for the ten years next preceding the application to purchase, a preference right to purchase so much of such parcel and such adjoining land as may reasonably be required for a home, at a fair price to be determined by three disinterested citizens to be appointed by the governor.  In the determination of such purchase price the commissioner may, if he deems it just and reasonable, disregard the value of the improvements on such parcel and adjoining land.  If such parcel of public lands is reserved for public purposes, either for the use of the United States or the Territory of Hawaii, the commissioner may with the approval of the governor grant to such person a preference right to purchase public lands which are of similar character, value, and area, and which are situated in the same land district.  The privilege granted by this paragraph shall not extend to any original lessee or to an assignee of an entire lease of public lands.

     (k)  The commissioner may also, with such approval, issue, for a nominal consideration, to any church or religious organization, or person or persons or corporation representing it, a patent for any parcel of public land occupied continuously for not less than five years heretofore and still occupied by it as a church site under the laws of Hawaii.

     (l)  No sale of lands for other than homestead purposes, except as herein provided, and no exchange by which the Territory shall convey lands exceeding either forty acres in area or $15,000 in value shall be made.  Leases may be made by the commissioner of public lands, with the approval of two-thirds of the members of the board of public lands, for the occupation of lands for general purposes, or for limited specified purposes (but not including leases of minerals or leases providing for the mining of minerals), for terms up to but not in excess of sixty-five years.  There shall be a board of public lands, the members of which are to be appointed by the governor as provided in section 80 of this Act, and until the legislature shall otherwise provide said board shall consist of six members, and its members be appointed for a term of four years:  Provided, however, That the commissioner shall, with the approval of said board, sell to any citizen of the United States, or to any person who has legally declared his intention to become a citizen, for residence purposes lots not exceeding three acres in area; but any lot not sold after public auction, or sold and forfeited, or any lot or part thereof surrendered with the consent of the commissioner, which consent is authorized, may upon application be sold without further public notice or auction within the period of two years immediately subsequent to the day of the public auction, at the advertised price if the sale is within the period of six months immediately subsequent to the day of the public auction, and at the advertised price or the price fixed by a reappraisal of the land, whichever is greater, if the sale is within the period subsequent to the said six months but prior to the expiration of the said two years:  and that sales of Government lands or any interest therein may be made upon the approval of said board for business uses or other undertakings or uses, except those which are primarily agricultural in character, whenever such sale is deemed to be in the interest of the development of the community or area in which said lands are located, and all such sales shall be limited to the amount actually necessary for the economical conduct of such business use or other undertaking or use:  Provided further, That no exchange of Government lands shall hereafter be made without the approval of two-thirds of the members of said board, and no such exchange shall be made except to acquire lands directly for public uses:  Provided further, That in case any lands have been or shall be sold pursuant to the provisions of this paragraph for any purpose above set forth and/or subject to any conditions with respect to the improvement thereof or otherwise, and in case any said lands have been or shall be used by the United States of America, including any department or agency thereof, whether under lease or license from the owner thereof or otherwise, for any purpose relating to war or the national defense and such use has been or shall be for a purpose other than that for which said lands were sold and/or has prevented or shall prevent the performance of any conditions of the sale of said lands with respect to the improvement thereof or otherwise, then, notwithstanding the provisions of this paragraph or of any agreement, patent, grant, or deed issued upon the sale of said lands, such use of said lands by the United States of America, including any department or agency thereof, shall not result in the forfeiture of said lands and shall result in the extension of the period during which any conditions of the sale of said lands may be complied with for an additional period equal to the period of the use of said lands by the United States of America, including any department or agency thereof.

     (m)  Whenever twenty-five or more persons, having the qualifications of homesteaders who have not therefore made application under this Act shall make written application to the commissioner of public lands for the opening of agricultural lands for settlement in any locality or district, it shall be the duty of said commissioner to proceed expeditiously to survey and open for entry agricultural lands, whether unoccupied or under lease with the right of withdrawal, sufficient in area to provide homesteads for all such persons, together with all persons of like qualifications who shall have filed with such commissioner prior to the survey of such lands written applications for homesteads in the district designated in said applications.  The lands to be so opened for settlement by said commissioner shall be either the specific tract or tracts applied for or other suitable and available agricultural lands in the same geographical district and, as far as possible, in the immediate locality of and as nearly equal to that applied for as may be available:  Provided, however, That no leased land, under cultivation, shall be taken for homesteading until any crops growing thereon shall have been harvested.

     (n)  It shall be the duty of the commissioner to cause to be surveyed and opened for homestead entry a reasonable amount of desirable agricultural lands and also of pastoral lands in the various parts of the Territory for homestead purposes on or before January 1, 1911, and he shall annually thereafter cause to be surveyed for homestead purposes such amount of agricultural lands and pastoral lands in various parts of the Territory as there may be demand for by persons having the qualifications of homesteaders.  In laying out any homestead the commissioner shall include in the homestead lands sufficient to support thereon an ordinary family, but not exceeding eighty acres of agricultural lands and two hundred and fifty acres of first-class pastoral lands or five hundred acres of second-class pastoral lands; or in case of a homestead, including pastoral lands only, not exceeding five hundred acres of first-class pastoral lands or one thousand acres of second-class pastoral lands.  All necessary expenses for surveying and opening any such lands for homesteads shall be paid for out of any funds of the territorial treasury derived from the sale or lease of public lands, which funds are hereby made available for such purposes.

     (o)  The commissioner, with the approval of the governor, may by contract or agreement authorize any person who has the right of possession, under a general lease from the Territory, of agricultural or pastoral lands included in any homestead, to continue in possession of such lands after the expiration of the lease until such time as the homesteader takes actual possession thereof under any form of homestead agreement.  The commissioner may fix in the contract or agreement such other terms and conditions as he deems advisable.

     (p)  Nothing herein contained shall be construed to prevent said commissioner from surveying and opening for homestead purposes and as a single homestead entry public lands suitable for both agricultural and pastoral purposes, whether such lands be situated in one body or detached tracts, to the end that homesteaders may be provided with both agricultural and pastoral lands wherever there is demand therefor; nor shall the ownership of a residence lot or tract, not exceeding three acres in area, hereafter disqualify any citizen from applying for and receiving any form of homestead entry, including a homestead lease.

     (q)  All lands in the possession, use, and control of the Territory shall hereafter be managed by the commissioner, except such as shall be set aside for public purposes as hereinafter provided; all sales and other dispositions of such land shall, except as otherwise provided by the Congress, be made by the commissioner or under his direction, for which purpose, if necessary, the land may be transferred to his department from any other department by direction of the governor, and all patents and deeds of such land shall issue from the office of the commissioner, who shall countersign the same and keep a record thereof.  Lands conveyed to the Territory in exchange for other lands that are subject to the land laws of Hawaii, as amended by this Act, shall, except, as otherwise provided, have the same status and be subject to such laws as if they had previously been public lands of Hawaii.  All orders setting aside lands for forest or other public purposes, or withdrawing the same, shall be made by the governor, and lands while so set aside for such purposes may be managed as may be provided by the laws of the Territory; the provisions of this paragraph may also be applied where the "public purposes" are the uses and purposes of the United States, and lands while so set aside may be managed as may be provided by the laws of the United States.  The commissioner is hereby authorized to perform any and all acts, prescribe forms of oaths, and, with the approval of the governor and said board, make such rules and regulations as may be necessary and proper for the purpose of carrying the provisions of this section and the land laws of Hawaii into full force and effect.

     All officers and employees under the jurisdiction of the commissioner shall be appointed by him, subject to the Territorial laws of Hawaii relating to the civil service of Hawaii, and all such officers and employees shall be subject to such civil service laws.

     Within the meaning of this section, the management of lands set aside for public purposes may, if within the scope of authority conferred by the legislature, include the making of leases by the Hawaii aeronautics commission with respect to land set aside to it, on reasonable terms, for carrying out the purposes for which such land was set aside to it, such as for occupancy of land at an airport for facilities for carriers or to serve the traveling public.  No such lease shall continue in effect for a longer term than fifty-five years.  If, at the time of the execution of any such lease, the governor shall have approved the same, then and in that event the governor shall have no further authority under this or any other Act to set aside any or all of the lands subject to such lease for any other public purpose during the term of such lease.

     (r)  Whenever any remnant of public land shall be disposed of, the commissioner of public lands shall first offer it to the abutting landowner for a period of three months at a reasonable price in no event to be less than the fair market value of the land to be sold, to be determined by a disinterested appraiser or appraisers, but not more than three, to be appointed by the governor; and, if such owner fails to take the same, then such remnant may be sold at public auction at no less than the amount of the appraisal:  Provided, That if the remnant abuts more than one separate parcel of land and more than one of the owners of these separate parcels are interested in purchasing said remnant, the remnant shall be sold to the owner making the highest offer above the appraised value.

     The term "remnant" shall mean a parcel of land landlocked or without access to any public highway, and, in the case of an urban area, no larger than five thousand square feet in size, or, in the case of a suburban or rural area, no larger than one and one-half acres in size.

     Any person or persons holding an unpatented homestead under a special homestead agreement, entered into prior to the effective date of this paragraph, excluding those homesteads under the control of the Hawaiian Homes Commission as provided in section 203 of the Hawaiian Homes Commission Act, 1920, shall be entitled to a reamortization of the indebtedness due the Territory of Hawaii on account of such special homestead agreement upon filing an application for the reamortization of said indebtedness with the commissioner within six months after the effective date of this paragraph.  Upon the filing of any such application, the commissioner shall determine the balance due the Territory in the following manner:  The amount of the principal which would have been paid during the full period of payment provided for in the special homestead agreement had the agreement been duly performed according to its terms and the amount of the interest which would have been paid under the special homestead agreement prior to the effective date of this paragraph had the agreement been duly performed according to its terms shall be computed and added together; from the sum of these amounts there shall be deducted all moneys that have been actually paid to the Territory on account of the special homestead agreement, whether as principal or as interest.  The balance thus determined shall be the total amount remaining due and payable for the homestead covered by such special homestead agreement, any other terms, conditions, or provisions in any of said agreements, or any provisions of law to the contrary notwithstanding:  Provided, however, That nothing herein contained shall be deemed to excuse the payment of taxes and other charges and assessments upon unpatented homestead lands as provided in said agreements, nor to excuse or modify any term, condition, or provision of said agreements other than such as relate to the principal and interest payable to the Territory.  The total amount remaining due, determined as hereinabove provided, shall be payable in fifteen equal biennial installments.  Simple interest at the rate of three per centum per annum shall be charged upon the unpaid balance of such installments, whether matured or unmatured, said interest to be computed from the effective date of this paragraph and to be payable semi-annually.  The first payment on account of principal shall be due two years subsequent to the effective date of this paragraph, and thereafter the due dates of principal payments shall be at regular two-year periods; the first payment on account of interest shall be due six months subsequent to the effective date of this paragraph, and thereafter the due dates of interest payments shall be at regular six-month periods.  In case of default in payments of principal or interest on the due dates as hereby fixed the commissioner may, with the approval of the governor, with or without legal process, notice, demand, or previous entry, take possession of the land covered by any such special homestead agreement and thereby determine the estate created by such agreement as hereby modified, whereupon liability for payment of any balance then due under such special homestead agreement shall terminate.  When the aforesaid payments have been made to the Territory of Hawaii, and all taxes, charges, and assessments upon the land have been paid as provided by said agreements, and all other conditions therein stipulated have been complied with, except as herein excused or modified, the said special homestead agreements shall be deemed to have been performed by the holders thereof, and land-patent grants covering the land described in such agreements shall be issued to the parties mentioned therein, or their heirs or assigns, as the case may be.

     Neither the Territory of Hawaii nor any of its officers, agents or representatives shall be liable to any holder of any special homestead agreement, past or present, whether or not a patent shall have issued thereon, or to any other person, for any refund or reimbursement on account of any payment to the Territory in excess of the amount determined as provided by the preceding paragraph, and the legislature shall not recognize any obligation, legal or moral, on account of such excess payments.  [Am April 2, 1908, c 124, 35 Stat 56; May 27, 1910, c 258, §5, 36 Stat 444; July 9, 1921, c 42, §§304 to 311, 42 Stat 116; July 27, 1939, c 383, 53 Stat 1126; June 12, 1940, c 336, 54 Stat 345; Aug. 21, 1941, c 394, 55 Stat 568; Sept. 26, 1941, c 426, 55 Stat 734; Aug. 7, 1946, c 771, 60 Stat 871; July 9, 1952, cc 616, 617, 66 Stat 514, 515; April 6, 1956, c 180, §1 and c 185, §1, 70 Stat 102, 104; Aug. 1, 1956, c 820, §1 and c 859, 70 Stat 785, 918; July 18, 1958, Pub L 85-534, §1, 72 Stat 379; Aug. 14, 1958, Pub L 85-650, §2, 72 Stat 606; Aug. 21, 1958, Pub L 85-718, 72 Stat 709; Aug. 28, 1958, Pub L 85-803 §§1, 2, 72 Stat 971; L 1959, JR 21, §1 am and rat L 1960, c 15, §2]

 

Note

 

  The effective date of the last two paragraphs was June 12, 1940.

 

Exemptions From Section 73

 

  (1)  The Act of July 10, 1937, c 484, 50 Stat 508, (48 U.S.C.A. 562g) provides in part:

  "That the Legislature of the Territory of Hawaii may create a public corporate authority to engage in slum clearance, or housing undertakings, or both, within such Territory.  ***The legislature*** may, without regard to any federal Acts restricting the disposition of public lands of the Territory, authorize the commissioner of public lands, the Hawaiian homes commissioners, and any other officers of the Territory having power to manage and dispose of its public lands, to grant, convey, or lease to such authority parts of the public domain, and may provide that any of the public domain or other property acquired by such authority may be mortgaged by it as security for its bonds.***"

  (2)  The Act of February 27, 1920, c 89, 41 Stat 452, (16 U.S.C.A. 392) provided that the provisions of section 73 relating to exchanges should not apply with respect to the acquisition of privately owned lands within Hawaii National Park.

  (3)  The Act of August 7, 1946, c 787, 60 Stat 884, provided that the provisions relating to exchange should not apply to the acquisition of certain lands in Hilo.

  (4)  See Act of August 24, 1954, c 888, 68 Stat 781, authorizing the commissioner of public lands to sell public lands to certain lessees, permittees and others.

 

General Notes

 

  The amendments of July 9, 1921, are part of the "Hawaiian Homes Commission Act, 1920," the homes commission proper part of which is set forth in full hereinafter, following the Organic Act.  See Joint Resolution of Annexation and the note thereto, RLH 1955, page 13, in regard to the cession of public lands to the United States, their status, disposition thereof, application of the proceeds thereof, and grants of franchises, between annexation and the establishment of territorial government; see Chronological Note of Acts Affecting Hawaii for Acts of Congress, Presidential proclamations and Executive orders relating to public lands, RLH 1955, page 9ff, see also the note to section 91; also §§75, 89, 91, 95, 97 and 99 of this act on public lands; also laws in this Revision relating to public lands.  As to shores, harbors, etc. see §106.  Quaere, whether the federal statute (29 Stat 618, 8 U.S.C.A. 71‑77) relating to disabilities of aliens to hold land in territories in general applies to Hawaii.

  Under this § and §91, the public lands are under the territorial laws, but the President may set aside such as he deems proper for the uses of the United States, 24 Ops. 600.  Lands reserved by Executive order in the Territory for use of War Department may be returned by Executive order when purposes for which they were set aside have been served, 35 Ops. 205.  The Territory may acquire private lands by exchange, and these may then be so set aside by the President:  24 Ops. 600.

  Surplus water rights pass to owner of ili kupono on which lies source, 31 H. 376, aff. 52 F.2d 356.

  The legislature may add to the duties of the commissioner of public lands:  18 H. 490.  Before the amendment of May 27, 1910, the commissioner's powers were subject to those of the superintendent of public works in respect of certain classes of lands under §75:  17 H. 540 et seq. (town lots); 18 H. 226, 231 (power of exchange).

  The title of the government to crown lands cannot be questioned by the courts:  18 H. 645.  Quaere, whether continuing the Hawaiian land laws in force until Congress otherwise provides, makes them federal laws so as to permit an appeal to the federal supreme court on the ground that a federal question is involved:  211 U.S. 442.  Leasehold interest in public land may be assessed at value of fee; quaere whether that provision of the tax law was continued in force by this § as part of laws relating to public lands:  23 H. 624.  Provision for reimbursement of homesteader for appraised value of improvements, on forfeiture, was continued in force by this § (before its am.) and legislature cannot appropriate additional amount on theory that appraisement was too low:  25 H. 409.  Likewise legislature cannot appropriate money to reimburse purchaser in part on theory that purchase price was appraised too high:  26 H. 106.  Assignment of mortgage is within inhibition against transfers without written consent of commissioner and governor:  27 H. 4.  A franchise granted by the legislature on the day (July 7, 1898) the joint resolution of annexation was passed by Congress, whether ratified or not by this §, is not a federal franchise exempt from territorial taxation:  18 H. 18, 20; 211 U.S. 142, the latter holding also that a franchise granted July 7, 1898, was not excluded from the franchises granted between that day and a later date, which were ratified by this §.  See §55 on grants of franchises by the territorial legislature.

  Referred to in 16 H. 245; 21 H. 137; 30 H. 210; 32 H. 310; 40 H. 675.

  See RLH 1955, cc 99 to 99D, 103A.

  Discretionary powers given to commissioner not unlawful delegation.  41 H. 461.

  Land laws of Hawaii, including section 73, will continue as state laws, notwithstanding section 15 of the Admission Act prescribing a cut-off date.  Att. Gen. Op. 61‑68.  But laws relating to management and disposition of public lands were repealed by L. 1962, c 32, §3.

 

Other Related Legislation

 

  a.  Federal Acts:

  (1)  Act of April 6, 1956, c 184, 70 Stat 104, and Act of Aug. 29, 1958, Pub L 85‑694, 72 Stat 686, authorizing the amendment of certain patents of government lands by removing the conditions therein restricting use of such lands.

  (2)  Act of August 18, 1958, Pub L 85‑677, 72 Stat 628, grants status of public lands to certain reef lands.  See also RLH 1955 c 99D, HRS c 173.

  (3)  Act of August 21, 1958, Pub L 85‑713, 72 Stat 707, authorizes exchange of public lands for private lands of equal value required for highway purposes.

  (4)  Act of August 28, 1958, Pub L 85‑834, 72 Stat 987, permits certain sales and exchanges of public lands to persons who suffered substantial real property losses due to tidal wave of March 9, 1957.

  b.  Territorial Acts:   Effective upon approval by Congress of legislation making the acts valid without approval by Congress, or upon ratification by the state legislature.

  (1)  L. 1957, c. 39, permits holders of certain public lands to mortgage the land without necessity of obtaining governor's consent.

  (2)  L. 1959, c. 180, s. 2, amends the second paragraph of section 73(r) to read:  "The term 'remnant' shall mean a parcel of land unsuitable for development as a separate unit, and, in case of an urban area, no larger than five thousand square feet in size, or in case of a suburban or rural area, no larger than one and one-half acres in size."

  (3)  L. 1959, c. 269, authorizes the subdivision, improvement and leasing of public lands for residential purposes to qualified persons selected by drawing without public auction.

  (4)  L. 1959, J.R. 2, s. 1, amends section 73(g) by adding to the first sentence the proviso to read:  "Provided, That if consent be given to a mortgage or other transfer for security purposes to an established lending agency and such agency be the Federal Housing Administration or other similar federal or territorial agency or a corporation authorized to do business as a lending agency in the Territory or elsewhere in the United States, no further consent shall be required for:  (1) any subsequent assignment or reassignment made by such agency or assignee thereof to a like lending agency for refinancing or other security purposes; or (2) any transfer made at a foreclosure sale held pursuant to the provisions of said mortgage or transfer for security purposes; or (3) any subsequent transfer made by the purchaser at said foreclosure sale if the transferor shall be such agency or assignee thereof, provided that all other or further disposition shall be made only in accordance with the provisions of this act."

 

Law Journals and Reviews

 

  The Lum Court and Native Hawaiian Rights.  14 UH L. Rev. 377.

 

 

     §74.  Commissioner of agriculture and forestry.  That the laws of Hawaii relating to agriculture and forestry, except as changed by this Act, shall continue in force, subject to modification by Congress or the legislature.  In said laws "commissioner of agriculture and forestry" shall be substituted, respectively, for "bureau," "bureau of agriculture and forestry," "commissioner," "commissioners of agriculture," and "commissioners of the island of Oahu."

 

  Referred to in 16 H. 245.

 

 

     §75.  Superintendent of public works.  That there shall be a superintendent of public works, who shall have the powers and duties of the superintendent of public works and those of the powers and duties of the minister of the interior which relate to streets and highways, harbor improvements, wharves, landings, waterworks, railways, electric light and power, telephone lines, fences, pounds, brands, weights and measures, fires and fireproof buildings, explosives, eminent domain, public works, markets, buildings, parks and cemeteries, and other grounds and lands now under the control and management of the minister of the interior, and those of the powers and duties of the minister of finance and collector-general which relate to pilots and harbor masters under the laws of Hawaii, except as changed by this Act and subject to modification by the legislature.  In said laws the word "legislature" shall be substituted for "councils" and the words "circuit court" for "the Hawaiian Postal Savings Bank."

 

  Referred to in 15 H. 298, 367; 16 H. 245; 23 H. 680.  See note to §73, citing 17 H. 540 and 18 H. 226, as to powers of superintendent of public works over certain classes of public lands before the ams. of 1910.

 

 

     §76.  Superintendent of public instruction.  That there shall be a superintendent of public instruction, who shall have the powers and perform the duties conferred upon and required of the minister of public instruction by the laws of Hawaii as amended by this Act, and subject to modification by the legislature.

     It shall be the duty of the United States Commissioner of Labor to collect, assort, arrange, and present in reports in nineteen hundred and five, and every five years thereafter, statistical details relating to all departments of labor in the Territory of Hawaii, especially in relation to the commercial, industrial, social, educational, and sanitary condition of the laboring classes, and to all such other subjects as Congress may by law direct.  The said Commissioner is especially charged to ascertain the highest, lowest, and average number of employees engaged in the various industries in the Territory, to be classified as to nativity, sex, hours of labor, and conditions of employment, and to report the same to Congress. [Am April 8, 1904, c 948, 33 Stat 164]

 

  Referred to in 16 H. 245.  The duties of the United States Commissioner of Labor above referred to are now performed by the United States Commissioner of Labor Statistics.  See U.S.C.A. sections, cited to the text.

 

 

     §77.  Comptroller and Deputy Comptroller.  There shall be a comptroller and deputy comptroller, who shall have the powers and duties conferred upon and required by the auditor-general and deputy auditor-general, respectively, by Act thirty-nine of the session laws as amended by this Act, subject to modification by the legislature.  In said Act "officer" shall be substituted for "minister" where used without other designation. [Am Aug. 1, 1956, c 862, §1, 70 Stat 920]

 

  Provision of the audit law permitting suspension of auditor by the governor, was repealed by implication by §80 of this act:  15 H. 114.  Referred to with §78, etc., in 16 H. 245.

 

 

     §77A.  Post-Auditor.  There shall be a post-auditor who shall be appointed by the Governor by and with the advice and consent of the Senate, who shall serve for a term of eight years and until a successor shall have been duly appointed.  He shall have such powers and duties relating to the post-audit of Territorial and county accounts and appropriations as may be prescribed by law.  The legislature, by a two-thirds vote of the members in joint session, may remove the post-auditor at any time for cause. [Add Aug. 1, 1956, c 862, §2; rep L Sp 1959 1st, c 14, §2]

 

 

     §78.  Surveyor.  That there shall be a surveyor, who shall have the powers and duties heretofore attached to the surveyor-general, except such as relate to the geodetic survey of the Hawaiian Islands.

 

 

     §79.  High sheriff.  That there shall be a high sheriff and deputies, who shall have the powers and duties of the marshal and deputies of the Republic of Hawaii under the laws of Hawaii, except as changed by this Act, and subject to modification by the legislature.

 

  Referred to in 14 H. 283; 15 H. 367, 494; 16 H. 245.

 

 

     §80.  Appointment, removal, tenure, and salaries of officers.  The President shall nominate and, by and with the advice and consent of the Senate, appoint the chief justice and justices of the supreme court, who shall hold office for the term of seven years unless sooner removed by the President, and the judges of the circuit courts who shall hold office for the term of six years, unless sooner removed by the President; and the governor shall nominate and, by and with the advice and consent of the senate of the Territory of Hawaii, appoint the attorney-general, treasurer, commissioner of public lands, commissioner of agriculture and forestry, superintendent of public works, superintendent of public instruction, auditor, deputy auditor, surveyor, high sheriff, members of the board of health, commissioners of public instruction, board of prison inspectors, board of registration and inspectors of election, and any other boards of a public character that may be created by law, except for the board of trustee of the employees' retirement system; and he may make such appointments when the senate is not in session by granting commissions, which shall, unless such appointments are confirmed, expire at the end of the next session of the senate.  He may, by and with the advice and consent of the senate of the Territory of Hawaii, remove from office any of such officers.  All such officers shall hold office for four years and until their successors are appointed and qualified, unless sooner removed, except the commissioners of public instruction and the members of said boards, whose term of office shall be as provided by the laws of the Territory of Hawaii.

     The manner of appointment of members of the board of trustees of the employees' retirement system shall be as provided for by section 6-61, Revised Laws of Hawaii, 1955.

     The manner of appointment and removal and the tenure of all other officers shall be as provided by law; and the governor may appoint or remove any officer whose appointment or removal is not otherwise provided for.

     The salaries of all officers other than those appointed by the President shall be as provided by the legislature, but those of the chief justice and the justices of the supreme court and judges of the circuit courts shall not be diminished during their term of office.

     All officers appointed under the provisions of this section shall be citizens of the Territory of Hawaii and shall have resided therein for at least three years next preceding their appointment.

     All persons holding office in the Hawaiian Islands at the time this Act takes effect shall continue to hold their respective offices until their successors are appointed and qualified, but not beyond the end of the first session of the senate of the Territory of Hawaii unless reappointed as herein provided.

     Provided, however, That nothing in this section shall be construed to conflict with the authority and powers conferred by section fifty-six of this Act as herein amended. [Am March 3, 1905, c 1465, §2, 33 Stat 1035; July 9, 1921, c 42, §312, 42 Stat 119; May 9, 1956, c 237, §1, 70 Stat 130; Aug. 28, 1958, Pub L 85-793, 72 Stat 957]

 

  Appointive power, 34 H. 12.

  The governor cannot suspend an officer appointable and removable by him with the consent of the senate and whose term of office is four years, unless sooner removed:  15 H. 114.  A board of medical examiners appointed by the treasurer under the Hawaiian statute and not by the governor with the consent of the senate under this §, was held to be at least a de facto board.  15 H. 273.  The validity of an income tax law cannot be attacked by one not affected thereby on the ground that it would effect a diminution of judges' salaries contrary to the provisions of this §:  13 H. 594; 121 Fed. 772.  The words "and until their successors are appointed and qualified" apply to officers appointed by the President as well as to those appointed by the governor under this §:  42 C. Cls. R. 54.  This § does not invalidate a territorial statute authorizing the chief justice to designate a circuit judge of one circuit to sit in place of a circuit judge of another circuit who is absent, disqualified:  26 H. 557, 290 Fed. 146.  This § is controlled by §56, which authorizes the appointment and election of officers of municipal corporations in other ways:  16 H. 779.  Salaries of members of supreme court, not taxable:  25 H. 607.  But see 307 U.S. 277.  Referred to in 14 H. 222, 283; 15 H. 298, 366, 367; 16 H. 245; 23 Ops. 138.  On appointment of members of supreme court, see also §82.

 

 

CHAPTER IV.

THE JUDICIARY

 

  On validity of jury lists, see 82 F. Supp. 65; 105 F. Supp. 727; see also 103 F. Supp. 1.

 

     §81.  That the judicial power of the Territory shall be vested in one supreme court, circuit courts, and in such inferior courts as the legislature may from time to time establish.  And until the legislature shall otherwise provide, the laws of Hawaii heretofore in force concerning the several courts and their jurisdiction and procedure shall continue in force except as herein otherwise provided.

 

  The Organic Act is in the nature of a constitution to the territorial legislature, but it confers on the legislature the power to organize the courts and fix their jurisdiction and the number of the circuit judges, although such judges are appointed by the President and paid by the United States:  23 Ops. 539; 16 H. 667.  The circuit courts may be regarded as constitutional courts from the standpoint of the Territory:  14 H. 222; 14 H. 269.  Circuit court not court of the United States within meaning of Norris-La Guardia Act, 37 H. 404.  This § did not abrogate the jurisdiction of circuit judges at chambers in equity and probate matters:  16 H. 242 (referring also to many other §§ of this act), 197 U.S. 352.  Nor does it prevent the legislature from confining original jurisdiction in habeas corpus cases to the supreme court, its justices and circuit judges, to the exclusion of circuit courts as such:  16 H. 266; but see HRS c 660 habeas corpus.  Several sessions of the same circuit court may be held at the same time and only one judge may preside over each:  16 H. 667; 16 H. 747.

  Indeterminate sentence law does not infringe on judicial power and discretion:  22 H. 534.  The circuit courts were held to have jurisdiction in naturalization cases even before the Naturalization Act of June 29, 1906:  17 H. 296, 299.  Local statute that successive disagreements of two juries operates as acquittal, nor applicable to Federal court:  4 U.S.D.C. Haw. 466.  Territorial courts have jurisdiction in fornication cases under local laws notwithstanding the Edmunds Act:  19 H. 208 (see also references to 3 U.S.D.C. Haw. 262, 295, 517, in notes to §§5, 6).  See §83 and note as to:  grand and petty juries; nonliability of circuit judge in damages.

  This § was held to continue the jurisdiction of local courts over offenses against local laws on the naval reservation:  19 H. 201 (see also 4 U.S.D.C. Haw. 62; 23 H. 63).  But by the Act of April 19, 1930, the Hawaii National Park was removed from territorial jurisdiction except for certain purposes therein stated.  This Act is set out following the U.S. Constitution.  Referred to in 17 H. 430; 18 H. 539.  A provision for a commission to hear claims against the Territory and render final judgments, is not void on the theory that the legislature cannot create an inferior court of final jurisdiction:  14 H. 489.  A board of liquor license commissioners is not a court within the meaning of this §:  18 H. 402; nor is an act void which provides for final decisions of a commission on appeals from magistrates in insanity cases:  19 H. 538.

 

 

     §82.  Supreme Court.  That the supreme court shall consist of a chief justice and two associate justices, who shall be citizens of the Territory of Hawaii and shall be appointed by the President of the United States, by and with the advice and consent of the Senate of the United States, and may be removed by the President:  Provided, That any vacancy or vacancies occurring within the court, whether by reason of disqualification, disability, death, resignation, removal, absence from the Territory or inability to attend, or for any other reason, shall, for the hearing and determination of any cause, be temporarily filled as provided by the law of said Territory, and, if there be no such law, then by appointment from among the circuit judges of the Territory by the remaining justices or justice, and if there be no such justice, then by the governor. [Am June 15, 1950, c 250, 64 Stat 216]

 

  On appointments to supreme court, see §80.  On amount of salaries, see §92.  Salaries not to be reduced during term of office:  §80.  On appeals from supreme court, and relations between territorial and federal courts, see notes to §§81 and 86.  Retirement of the judges is provided for by the Act of May 31, 1938, c 301, 52 Stat 591, 48 U.S.C.A. §§634b, 634c.

  Under prior similar constitutional provision as to substitute justice, the court with two substitutes (the statute purporting to permit that), would be at least a de facto court:  15 H. 312; 235 U.S. 342 (reversing 201 Fed. 224, which affirmed 3 U.S.D.C. Haw. 585).  Referred to in 16 H. 245; 17 H. 408, 430; 23 Ops. 540.

  Effect of death of member prior to amendment:  38 H. 449.

  See note to §86, appeal and error.

 

 

     §83.  Laws continued in force.  That the laws of Hawaii relative to the judicial department, including civil and criminal procedure, except as amended by this Act, are continued in force, subject to modification by Congress, or the legislature.  The provisions of said laws or any laws of the Republic of Hawaii which require juries to be composed of aliens or foreigners only, or to be constituted by impaneling natives of Hawaii only, in civil and criminal cases specified in said laws, are repealed, and all juries shall hereafter be constituted without reference to the race or place of nativity of the jurors; but no person who is not a citizen of the United States and twenty-one years of age and who cannot understandingly speak, read, and write the English language shall be a qualified juror or grand juror in the Territory of Hawaii.  No person shall be convicted in any criminal case except by unanimous verdict of the jury.  No plaintiff or defendant in any suit or proceeding in a court of the Territory of Hawaii shall be entitled to a trial by a jury impaneled exclusively from persons of any race.  Until otherwise provided by the legislature of the Territory, grand juries may be drawn in the manner provided by the Hawaiian statutes for drawing petty juries, and shall sit at such times as the circuit judges of the respective circuits shall direct; the number of grand jurors in each circuit shall be not less than thirteen, and the method of the presentation of cases to said grand jurors shall be prescribed by the supreme court of the Territory of Hawaii.  The several circuit courts may subpoena witnesses to appear before the grand jury in like manner as they subpoena witnesses to appear before their respective courts. [Am April 1, 1952, c 127, 66 Stat 32]

 

  See 35 H. for rules prescribed under this § for presentation of cases to grand juries.  On juries between annexation and establishment of territorial government, see note to Joint Resolution of Annexation RLH 1955, page 13.  See 21 H. 548, as to nonliability of circuit judge in damages for official acts in excess, but not in clear absence, of jurisdiction under this section.  A single circuit judge cannot require an oath of secrecy by a witness before a grand jury:  17 H. 341; nor can a circuit judge require proposed witnesses to give recognizances, or commit them to jail without giving them an opportunity to do so, to appear and testify, when the accused has not been committed or is not held to await the action of the grand jury and no indictment is under consideration by the grand jury:  20 H. 453.  This § did not repeal so much of the Hawaiian laws relating to the drawing of juries as to leave the rest inoperative:  15 H. 602.  Objections to manner of drawing grand juries, waived, unless presented at first opportunity:  13 H. 413; 15 H. 613; 15 H. 141.  Accused has no right to appear before grand jury or have witnesses for him heard by it:  15 H. 613.  The right, if any, to assistance of counsel at impanelment of grand jury is waived, if not claimed, though accused is in prison:  15 H. 613.  Disqualifications of grand jurors (e.g., noncitizenship) do not destroy the jurisdiction of the court or make the indictment void, and cannot sustain a collateral attack by habeas corpus:  211 U.S. 148.

  Verdicts must be unanimous under this act, but unanimity may be waived in civil cases:  13 H. 705; petty offenses may be tried by magistrate without a jury notwithstanding a demand for trial by jury:  27 H. 844; see also 20 H. 614, 23 H. 91, and 23 H. 766, as well as the next two cases cited herein; a misdemeanor punishable by imprisonment for a year, is not an infamous offense and does not require an indictment, and in such case trial by jury, while required if demanded, may be waived:  17 H. 432, 439; and a case of conspiracy may be tried by consent by eleven jurors:  20 H. 74, 95; and trial by jury may be waived in civil cases:  15 H. 59.  Waiver of jury in felony case:  33 H. 113.  Trial of suit for over $20 may be before district magistrate first, if jury is provided for on appeal:  14 H. 290; but an issuance of execution in such case by the magistrate pending appeal would be unconstitutional:  14 H. 524; although a requirement of a bond for the payment of the judgment as a condition of appeal would be constitutional:  15 H. 590.  This § does not make applicable to the federal court a territorial statute making successive disagreements of two juries operate as an acquittal:  4 U.S.D.C. Haw. 466.  Referred to in 23 Ops. 543; 13 H. 481, 556; 16 H. 245, 253, 266, 747; 18 H. 539, 645; 20 H. 243, 256; 21 H. 539; 187 U.S. 309; 190 U.S. 211; 217 U.S. 244; 1 U.S.D.C. Haw. 43.

 

 

     §84.  Disqualification by relationship, pecuniary interest, or previous judgment.  That no person shall sit as a judge or juror in any case in which his relative by affinity or by consanguinity within the third degree is interested, either as a plaintiff or defendant, or in the issue of which the said judge or juror has, either directly or through such relative, any pecuniary interest; nor shall any person sit as a judge in any case in which he has been of counsel or on an appeal from any decision or judgment rendered by him, and the legislature of the Territory may add other causes of disqualification to those herein enumerated. [Am May 27, 1910, c 258, §6, 36 Stat 447; rep L Sp 1959 1st, c 5, §8]

 

  As to other causes of disqualification added by legislature, see HRS §601-7.

  Interest and relationship.  A circuit judge may sit in a suit brought by a deputy of his son as assessor in the name of the government, the son being paid a regular salary:  10 H. 5.  A justice of the supreme court may sit in a disbarment case, although he and his father-in-law were interested in a corporation, in connection with dealings with which, the attorney, representing other parties, was alleged to have acted unprofessionally: 15 H. 380; 2 U.S.D.C. Haw. 58.  A judge is not disqualified by the fact that a relative within the third degree is a shareholder in a corporation which is a party, the judge having no pecuniary interest through such relative:  18 H. 510; 20 H. 617.  Wife's interest as life beneficiary of income from stock and judge's contingent interest in income, disqualification:  35 H. 786, 811.  Ownership in stock of corporate trustee which might be individually liable, disqualification:  33 H. 565.  Relationship by affinity within the third degree to the son of a party, is not disqualification: 20 H. 434; but such relationship to a party, though the party is such merely as trustee, is a disqualification:  20 H. 262; a judge is not disqualified from sitting in a partition suit by a reason of having ordered a fee paid to an attorney out of the fund in court for defending the judge a prohibition case which arose out of the partition case:  22 H. 641; appointment of trustee by majority of justices of supreme court acting as individuals under power in will does not disqualify them from sitting on appeal from decree holding such appointment invalid and appointing a different trustee:  250 Fed. 145, affirming 23 H. 575.  Cited in 29 H. 256; 29 H. 438; 29 H. 560; 31 H. 150.

  Bias and prejudice; counsel:  A justice of supreme court should not sit in a case in which he would have to pass on effect of his own testimony:  10 H. 354; but may sit in a disbarment case although he had several times as circuit judge punished the attorney for contempt:  15 H. 377; 2 U.S.D.C. Haw. 59; for although he had referred the question of unprofessional conduct to the attorney general for investigation and action if necessary:  2 U.S.D.C. Haw. 57.  Before this § was amended a judge was held not disqualified by reason of having been of counsel if he had not taken an active part in the case:  17 H. 194; questioned 22 H. 246; or even if he had taken an active part:  17 H. 394, questioned 22 H. 246; 18 H. 375, questioned 22 H. 246; or by reason of having expressed approval of an act, involved in the case, to a member of a legislative committee when the bill was before it:  17 H. 429.

  Under the amendment a judge is not disqualified from sitting in an action of ejectment by reason of having been of counsel in an action for summary possession of the same land:  20 H. 548; nor from ordering a guardian to file an account and inventory by reason of having acted as counsel for the appointment of the guardian:  20 H. 553; and for purposes of disqualification there is no distinction between attorney and counsel:  22 H. 245.

  A judge is disqualified by having been a member of a firm which was retained although he took no part in the case and had no knowledge of the issues:  26 H. 406; and likewise in a prohibition proceeding where the firm was retained generally to accomplish a purpose and defended in a mandamus proceeding and later in the prohibition proceeding although the latter was brought after the judge left the firm:  27 H. 62.

  Acceptance of retainer to bring divorce proceedings does not disqualify district magistrate from sitting as judge upon trial of criminal offense against libellee not included in grounds for divorce.  27 H. 509, 524.  A general employment involving title to land is the same "case" as an equitable action to quiet title to such land:  27 H. 637.  See 18 H. 602 (gratuitous advice by judge).

  This § was held not to apply to a federal district judge in Hawaii, but was considered argumentatively in support of a ruling that having been of counsel, whether actively or merely nominally, was a disqualification:  4 U.S.D.C. Haw. 4; but a judge so disqualified may act in purely formal matters:  Id.

  On appeal.  A justice of the supreme court may sit on an appeal in a habeas corpus case brought to obtain the release of a prisoner held under sentence pronounced in a criminal case by such justice when he was a circuit judge:  13 H. 570; also in a case with which he has no previous connection, although a question of law is involved which was involved in other distinct cases at the trial of which he had presided when a circuit judge:  13 H. 534; and in a disbarment case, although he had previously as circuit judge passed on the insanity of one alleged to have been taken advantage of by the attorney:  15 H. 377; 2 U.S.D.C. Haw. 59.  A justice is disqualified from sitting in a case where the validity of an order made by him as circuit judge is attacked:  20 H. 617.  Formerly under the provision of C.C. 1859, §820, against sitting "alone" on appeal, etc., a justice could sit with the other justices on appeal from himself:  3 H. 30; 9 H. 354; or preside over a jury on appeal from himself:  4 H. 431; but not sit alone, jury waived, on such an appeal:  6 H. 304.

  New trial.  A circuit judge may sit on a petition for the revocation of the probate of a will admitted to probate by himself:  10 H. 188; or on the second trial of a case in which the jury had disagreed at the first trial:  11 H. 322; or in an equity case remanded to him for evidence on an issue raised by an amendment of the pleadings made after the close of the original hearing:  14 H. 3; or on a motion for a change of venue on the ground that an impartial jury cannot be obtained, after he had ordered a non-suit, which had been set aside by the supreme court:  16 H. 477; or upon a trial of the facts, after sustaining defendant's demurrer, which ruling had been reversed on appeal:  19 H. 197.

  Referred to in 217 U.S. 244; 22 H. 576; 16 H. 245; 31 H. 920, 928; 37 H. 40; 41 H. 270, 234 P.2d 221.

 

 

ORGANIC ACT

 

Law Journals and Reviews

 

  Demolition of Native Rights and Self Determination:  Act 55's Devastating Impact through the Development of Hawaii's Public Lands.  35 UH L. Rev. 297 (2013).

 

CHAPTER V.

UNITED STATES OFFICERS

 

     §85.  Delegate to Congress.  That a Delegate to the House of Representatives of the United States, to serve during each Congress, shall be elected by the voters qualified to vote for members of the house of representatives of the legislature.  Such Delegate shall possess the qualifications necessary for membership of the senate of the legislature of Hawaii.

     Such election shall be held on the first Tuesday after the first Monday in November of every even year and at such places as shall be designated by the secretary of the Territory.  The ballot for Delegate shall be such as the legislature of Hawaii may designate, and until provision is made by the territorial legislature the ballot shall be of pink paper and shall be of the same general form as those used for the election of representatives to the legislature.

     The method of certifying the names of candidates for place on this ballot and all the conduct of the election of a Delegate shall be in conformity to the general election laws of the Territory of Hawaii.

     The person having the greatest number of votes shall be declared by the governor duly elected, and a certificate shall be given accordingly.

     Every such Delegate shall have a seat in the House of Representatives with the right of debate, but not of voting.  In case of a vacancy occurring in the office of Delegate, the governor of the Territory is directed to call a special election to fill such vacancy:  Provided, however, That no vacancy shall be filled which occurs within five months of the expiration of a Congressional term.

     The legislature of the Territory of Hawaii shall have the right to alter or amend any part of the election laws of said Territory, including those providing for an election of Delegate to Congress, and its action shall be the law, with full binding force, until altered, amended, or repealed by Congress. [Am June 28, 1906, c 3582, 34 Stat 550]

 

  The delegate is not a representative in Congress, although (dictum) he is a member of Congress:  3 U.S.D.C. Haw. 299 (construing law against contributions by corporations for election purposes).  Compare the following decisions as to Philippine resident commissioner:  112 F.2d 29; as to delegate from Alaska:  5 Alaska 602.  See note to §14.

 

Law Journals and Reviews

 

  William S. Richardson:  A Leader in Hawai‘i's Successful Post-WWII Political and Judicial Revolution.  33 UH L. Rev. 25 (2010).

 

 

     §86.  Federal court.  Removal of causes and appeal.  The laws of the United States relating to removal of causes, appeals and other matters and proceedings as between the courts of the United States and the courts of the several States shall govern in such matters and proceedings as between the courts of the United States and the courts of the Territory of Hawaii. [Am March 3, 1909, c 269, §1, 35 Stat 838; March 3, 1911, c 231, §291, 36 Stat 1167; March 4, 1921, c 161, §1, 41 Stat 1412; July 9, 1921, c 42, §313, 42 Stat 119; June 1, 1922, c 204, Title II, 42 Stat 599, 614, 616; Jan. 3, 1923, c 21, Title II, 42 Stat 1068, 1084; Feb. 12, 1925, c 220, 43 Stat 890; Feb. 13, 1925, c 229, §13, 43 Stat 936; Dec. 13, 1926, c 6, §1, 44 Stat 919; Jan. 31, 1928, c 14, §1, 45 Stat 54; July 31, 1946, c 704, §1, 60 Stat 716; June 25, 1948, c 646, §§8, 39, 62 Stat 986, 992; rep March 18, 1959, Pub L 86-3, §14(f), 73 Stat 4]

 

  This section was amended in toto by the Act of June 25, 1948, c 646, §8, 62 Stat 986.  For additional annotations, mainly on matters covered under prior law, see notes on pp. 50‑52, RLH 1945.

 

Jurisdiction, As Between Federal And Territorial Courts

 

  Hawaii National Park:  As to jurisdiction within Hawaii National Park, see the Act of April 19, 1930, c 200, 46 Stat 227, as amended, set out after the U.S. Constitution.

  Military and naval reservations:  See 4 U.S.D.C. Haw. 62; cf. 19 H. 201, 23 H. 63.

  Harbors:  See 217 U.S. 244.

  Other questions of concurrent or coordinate jurisdiction:  Federal court has jurisdiction of adultery under federal statutes, even though the territorial courts have like jurisdiction, under territorial statutes:  3 U.S.D.C. Haw. 262; 3 U.S.D.C. Haw. 517; but an acquittal or conviction in either court will bar a trial in the other:  3 U.S.D.C. Haw. 295.  Territorial courts have not concurrent or coordinate jurisdiction in bankruptcy, and the federal court in bankruptcy, may, pending hearing, restrain a sale of the bankrupt's property on execution under a territorial court judgment:  1 U.S.D.C. Haw. 195; but a trustee in bankruptcy may sue in the territorial courts for a recovery of property fraudulently transferred before bankruptcy:  14 H. 544.  Federal court as court of bankruptcy has jurisdiction to pass on validity of mortgage made by bankrupt so as to prevent that issue from being heard again in territorial court:  25 H. 151.  Foreclosure of mortgage may not be stayed, 7 F.2d 576.   Bankruptcy, provisions for discharge liberally construed, 29 F.2d 205.  A seaman's wages, being exempt from garnishment, may be recovered in the federal court, though garnisheed in a territorial court:  1 U.S.D.C. Haw. 281; Fed. act exempting seaman's wages from attachment applies also to execution:  211 U.S. 239 (affirming 17 H. 416); but it does not apply to wages of seamen, not shipped through a shipping commissioner, engaged in coastwise trade other than between Atlantic and Pacific ports:  239 U.S. 459 (affirming 22 H. 160).  To same effect, 21 H. 661.  But see later amendments of the federal law.  Admiralty jurisdiction of federal court not affected by territorial workmen's compensation act, at least unless injured seaman elects to take under that act:  4 U.S.D.C. Haw. 719.  Admiralty, 183 F.2d 176.  Admiralty measure of damages, 34 F.2d 83.  The federal court will not interfere on habeas corpus with judgments of the territorial courts except in extreme cases:  1 U.S.D.C. Haw. 24; 1 U.S.D.C. Haw. 69; 1 U.S.D.C. Haw. 303.  Decisions of the territorial supreme court construing charters granted by the Hawaiian legislature, are binding on the federal court, when no federal question is involved:  1 U.S.D.C. Haw. 164.  See also note to §81 and note on practice in U.S. Court, below.

  Removal of criminal case from territorial to federal court: Federal statute providing for removal of cause from "state" to federal court when defendant acted under color of office applied to homicide case commenced in territorial court; the word "state" in the removal statute may be sufficient to include territories, but in any event §86 makes this removal statute applicable in Hawaii.  132 F.2d 374.  (See also note on practice in U.S. District Court, this section.)

  Alien property custodian:  See 172 F.2d 384; 190 F.2d 155.  Aeronautics:  jurisdiction limited by civil aeronautics act, 174 F.2d 63.

  Injunction against territorial officers prohibiting enforcement of territorial act, 336 U.S. 368, rev'g 74 F. Supp. 852.

  Diverse citizenship, for conferring jurisdiction on the federal court, does not apply as between citizen of a state and citizen of the Territory:  1 U.S.D.C. Haw. 12.  Injunction to stay proceeding in territorial circuit courts, 172 F.2d 176.

 

Appeal And Error

 

  Appeals to Court of Appeals for the Ninth Circuit:  Such appeals lie from the supreme court of the Territory and the federal District Court as provided in 28 U.S.C.A. 1291‑1294.  See 41 F.2d 740.  Federal question:  power to review decision of territorial supreme court, 160 F.2d 289; 188 F.2d 54; 191 F.2d 148; 208 F.2d 357.  Federal question essential to appellate jurisdiction must be raised in territorial supreme court, 206 F.2d 851.

  Direct review by the U.S. Supreme Court:  From the supreme court of the Territory:  28 U.S.C.A. 1252, 1257.

  For procedure on appeal and removal generally see U.S. Code, Title 28.

  Case Notes:  (For immigration and citizenship cases see the notes to §§4 and 100, Organic Act, and RLH 1955, §57‑43).

  Amount in controversy, 19 H. 73; 211 U.S. 145; 263 Fed. 817 (rev. 24 H. 460; see 24 H. 685).  Burden on appellant to show sufficient value, 25 H. 53.  Tax returns not conclusive, 212 U.S. 209.

  Where supreme court of Hawaii vacates a decree and remands for further proceedings, the decree is not final, 267 Fed. 554; 291 Fed. 721; 52 F.2d 847.  But see 270 Fed. 749.  Bill of exceptions must be properly authenticated by trial judge; transcript and stipulation insufficient, 53 F.2d 637, 638.  Mere filing of application for appeal insufficient (28 U.S.C.A. 2107, 9th Cir. rules, applied in 56 F.2d 61, 58 F.2d 1084, but rules since revised).  Not taken in time, 64 F.2d 954, 78 F.2d 720 (Habeas corpus case).  Taken in time, where within 3 mos. after dismissal of petition for rehearing:  119 F.2d 936.  Rulings not incorporated in exceptions are not reviewable, 67 F.2d 156.  Bill of exceptions to territorial supreme court does not lead to final judgment, hence no appeal to 9th circuit will lie, see 211 U.S. 169; 211 U.S. 428.

  Statement of the evidence:  reporter's transcript insufficient, 72 F.2d 60 (prior to Rule 75 of federal rules of civil procedure).

  Severance, in case of joint decree:  75 F.2d 84; 93 F.2d 821.

  Only parties to be affected are necessary or proper parties, 26 F.2d 609; 31 F.2d 553.  Appellant must have or represent some interest affected by appeal, 211 U.S. 442; 30 F.2d 769.  Insufficiency of evidence to sustain verdict must be raised by motion, for new trial, 34 F.2d 86.  Appellate court limited to process, pleadings, and judgment.  50 F.2d 599.  Where "decision" was merely opinion, not a special finding of facts, review limited to rulings on pleadings, or made in progress of trial:  91 F.2d 85.

  Construction of territorial statute by local court will not be disturbed, 16 F.2d 273; except for manifest error, 36 F.2d 159; 47 F.2d 869; 52 F.2d 411; 79 F.2d 761; 105 F.2d 286.  The 9th Cir. Ct. of App. "leans to interpretation" of local court, 27 F.2d 582.  Construction of will contrary to common law, 59 F.2d 681; of trust, 61 F.2d 598.

  Decision of Sup. Ct. of H. should be accepted if not manifestly erroneous, 305 U.S. 91, rev'g 93 F.2d 603, 94 F.2d 806, reh'g den. 305 U.S. 673; 115 F.2d 956.

  More or less weight to local decisions on local matters:  222 U.S. 285 (aff. 18 H. 625); 238 U.S. 119 (reviewing 14 H. 651; 18 H. 625; 19 H. 47 and 334; 21 H. 441); 235 U.S. 342 (rev. 201 Fed. 224; see 3 U.S.D.C. Haw. 575; 11 H. 47; 15 H. 308); 239 U.S. 502 (aff. 21 H. 756); 210 U.S. 154 (aff. 17 H. 45); 214 U.S. 108 (aff. 18 H. 265); 226 U.S. 462 (aff. 20 H. 138); 233 U.S. 70 (aff. 20 H. 132); 252 Fed. 809 (aff. 22 H. 488); 239 Fed. 450 (aff. 23 H. 338); 239 Fed. 839 (aff. 22 H. 753); 240 Fed. 97 (aff. 22 H. 465); 242 Fed. 446 (aff. 23 H. 38); 250 Fed. 147 (aff. 23 H. 575); 250 Fed. 612 (aff. 23 H. 457); 255 Fed. 736 (aff. 23 H. 747); 242 U.S. 612 (aff. 21 H. 699); 269 Fed. 751 (aff. 25 H. 438); 270 Fed. 749 (aff. 24 H. 787); 272 Fed. 856 (aff. 25 H. 357); 281 Fed. 612 (aff. 26 H. 177); but see 267 Fed. 522 (rev. 25 H. 38); 283 Fed. 731 (aff. 25 H. 739); 289 Fed. 670 (aff. 26 H. 299); 290 Fed. 146 (aff. 26 H. 557); 291 Fed. 721 (aff. 26 H. 290); 295 Fed. 636 (aff. U.S.D.C. Haw., and following 25 H. 297); but see 9 F.2d 340 (rev. 28 H. 99); 8 F.2d 845 (aff. 28 H. 197); 10 F.2d 474 (aff. 28 H. 232); 16 F.2d 273 (aff. 29 H. 258); 27 F.2d 582 (rev. 29 H. 770); 31 F.2d 641 (aff. 30 H. 500); 35 F.2d 943 (aff. 30 H. 565); 36 F.2d 159 (aff. 30 H. 685); 47 F.2d 869 (aff. 31 H. 264, 295); 52 F.2d 356 (aff. 31 H. 376); 52 F.2d 411 (aff. 31 H. 625); 59 F.2d 681 (aff. 31 H. 1); 61 F.2d 598 (aff. 32 H. 32); 61 F.2d 896 (aff. 31 H. 781, 787); 66 F.2d 929 (aff. 32 H. 246).

  See also, 78 F.2d 720; 79 F.2d 761; 105 F.2d 286; 132 F.2d 374; 312 U.S. 630; 313 U.S. 487, 498; 314 U.S. 63.

 

 

     §87.  Internal-revenue district.  That the Territory of Hawaii shall constitute a district for the collection of internal revenue of the United States, with a collector, whose office shall be at Honolulu, and deputy collectors at such other places in the several islands as the secretary of the Treasury shall direct.

 

 

     §88.  Customs district.  That the Territory of Hawaii shall comprise a customs district of the United States, with ports of entry and delivery at Honolulu, Hilo, Mahukona and Kahului.

 

  Honolulu is a Pacific port of the United States within tariff act allowing a drawback on coal used on steamers engaged in trade between Atlantic and Pacific ports of United States:  24 Ops. 6.  See also §§93, 98, of this act; also Chronological Note of Acts Affecting Hawaii for other legislation by Congress relating to customs and kindred subjects; and note to Joint Resolution of Annexation, as to customs duties between annexation and the establishment of Territorial government in RLH 1955.

  Honolulu is a "port or place in the United States" within the meaning of the shipping act.  36 Ops. 352.

 

 

CHAPTER VI.

MISCELLANEOUS

 

     §89.  Wharves and Landings.  The wharves and landings constructed or controlled by the Republic of Hawaii on any seacoast, bay, roadstead, or harbor shall remain under the control of the government of the Territory of Hawaii, which shall receive and enjoy all revenue derived therefrom. [Am June 29, 1954, c 418, 68 Stat 323]

 

  Referred to in 217 U.S. 244 (Federal jurisdiction of murder in harbor of Honolulu).

  The Act of December 22, 1942, c 803, 56 Stat 1071, authorizes federal departments and agencies to pay the Territory "the reasonable value, as determined by the department or agency concerned," of the use of such property, notwithstanding this section, during the period from Jan. 1, 1942 until 6 mo. after end of war, unless sooner terminated by Congress.

 

 

     §90.  That Hawaiian postage stamps, postal cards, and stamped envelopes at the post-offices of the Hawaiian Islands when this Act takes effect, shall not be sold, but, together with those that shall thereafter be received at such offices as herein provided, shall be canceled under the direction of the Postmaster-General of the United States; those previously sold and uncanceled shall, if presented at such offices within six months after this Act takes effect, be received at their face value in exchange for postage stamps, postal cards, and stamped envelopes of the United States of the same aggregate face value and, so far as may be, of such denominations as desired.

 

  Hawaiian currency:  See Act of Jan. 14, 1903, c 186, 32 Stat 771, 48 U.S.C.A. 513-517.

 

 

     §91.  That, except as otherwise provided, the public property ceded and transferred to the United States by the Republic of Hawaii under the joint resolution of annexation, approved July seventh, eighteen hundred and ninety-eight, shall be and remain in the possession, use, and control of the government of the Territory of Hawaii, and shall be maintained, managed, and cared for by it, at its own expense, until otherwise provided for by Congress, or taken for the uses and purposes of the United States by direction of the President or of the Governor of Hawaii.  And any such public property so taken for the uses and purposes of the United States may be restored to its previous status by direction of the President; and the title to any such public property in the possession and use of the Territory for the purposes of water, sewer, electric, and other public works, penal, charitable, scientific, and educational institutions, cemeteries, hospitals, parks, highways, wharves, landings, harbor improvements, public buildings, or other public purposes, or required for any such purposes, may be transferred to the Territory by direction of the President, and the title to any property so transferred to the Territory may thereafter be transferred to any city, county, or other political subdivision thereof, or the University of Hawaii by direction of the governor when thereunto authorized by the legislature; Provided, That when any such public property so taken for the uses and purposes of the United States, if instead of being used for public purpose, is thereafter by the United States leased, rented, or granted upon revocable permits to private parties, the rentals or consideration shall be covered into the treasury of the Territory of Hawaii for the use and benefit of the purposes named in this section. [Am May 27, 1910, c 258, §7, 36 Stat 447; June 19, 1930, c 546, 46 Stat 789; Aug. 21, 1958, Pub L 85-719, 72 Stat 709]

 

  See §1489 of title 48 of U.S. Code for the Act of Mar. 27, 1934, c 99, 48 Stat 507, providing against loss of title of U.S. land.

  See the Joint Resolution of Annexation and the note thereto, in regard to ceded public lands, RLH 1955, page 13; see Chronological Note of Acts Affecting Hawaii for Acts of Congress, presidential proclamations, and executive orders, RLH 1955, page 9; see also notes to §73.  For transfers made by the Governor, see notes to this section in R.L. 1925 and R.L. 1935 and the records of the commissioner of public lands.

  See §73(q) re further power of the Governor to set land aside for use of United States.

  Nature of authority granted Territory.  66 F. Supp. 782.

  Under the original §, the Territory could not sell ceded movable property: 25 Ops. 523 (tugboat); but previous sales were ratified and further sales authorized by an Act of May 26, 1906 (34 Stat 204).  The title of the government to the crown lands cannot be questioned by the courts:  18 H. 651; 18 H. 645; 20 H. 548.  The Territory may maintain a bill for an injunction to remove obstructions to public rights of the shore outside of high water mark:  16 H. 376.  Setting aside land for a naval reservation does not deprive the Territorial courts of jurisdiction over misdemeanors committed thereon against local laws:  19 H. 200.  (See also 23 H. 63; 4 U.S.D.C. Haw. 466; notes to §§2, 55, and 86.)  Referred to in 15 H. 367; 16 H. 245; 21 H. 144; 217 U.S. 244; 1 U.S.D.C. Haw. 95.  See also 25 Ops. 225; 150 F.2d 1016.

  Palmyra Island was part of the land ceded to the U.S. by Hawaii, 133 F.2d 743.  However, for claim of private ownership based on presumption of lost grant, see 156 F.2d 756, aff'd 331 U.S. 256.

  Sand Island, created by the deposit of spoil on submerged land, is subject to the provisions of this section and after having been set aside by the President for military purposes could be transferred by him to the Treasury Dept. 39 Ops. 460.

 

Law Journals and Reviews

 

  The Lum Court and Native Hawaiian Rights.  14 UH L. Rev. 377.

 

 

     §92.  Salaries, certain officers.  That the following officers shall receive the following annual salaries, to be paid by the United States:  The governor, $15,000; the secretary of the Territory, $5,400; the chief justice of the Supreme Court of the Territory, $10,500; the associate judges of the Supreme Court, $10,000 each; the judges of the Circuit Court for the First Circuit of the Territory of Hawaii the sum of $7,500 and, to each of the judges of the Second, Third, Fourth and Fifth Circuits of the Territory of Hawaii the sum of $7,000.  The governor shall receive annually from the United States, in addition to his salary, (1) the sum of $1,000 for stationery, postage, and incidentals, and (2) his traveling expenses while absent from the capital on official business.  The governor is authorized to employ a private secretary who shall receive an annual salary of $3,000 to be paid by the United States. [Am May 27, 1910, c 258, §8, 36 Stat 448; July 9, 1921, c 42, §314, 42 Stat 120; May 29, 1928, c 904, §§1, 2, 45 Stat 997; Oct. 15, 1949, c 695, §5(a), 63 Stat 880; rep March 18, 1959, Pub L 86-3, §14(e), 73 Stat 4]

 

  See §80, salaries of justices of supreme court and circuit courts not to be diminished during their term of office.  But see 307 U.S. 277.  See §86 for salaries of U.S. judges and see note thereto re other salaries.

  Retirement of judges of supreme court and U.S. District Court of Hawaii is provided for by the Act of May 31, 1938, c 301, 52 Stat 591, 48 U.S.C.A. §§634b, 634c.

  Salary of Secretary of Hawaii, see RLH 1955, appendix, note 1A.

 

 

     §93.  Imports from Hawaii into the United States.  That imports from any of the Hawaiian Islands, into any State or any other Territory of the United States, of any dutiable articles not the growth, production, or manufacture of said islands, and imported into them from any foreign country after July seventh, eighteen hundred and ninety-eight, and before this Act takes effect, shall pay the same duties that are imposed on the same articles when imported into the United States from any foreign country.

 

  Referred to in 13 H. 21.  See also note to §88.

 

 

     §94.  Investigation of fisheries.  That the Commissioner of Fish and Fisheries of the United States is empowered and required to examine into the entire subject of fisheries and the laws relating to the fishing rights in the Territory of Hawaii, and report to the President touching the same, and to recommend such changes in said laws as he shall see fit.

 

  A number of volumes and pamphlets have been published on these fisheries and laws by the Commissioner.  Referred to in 21 H. 632, 633.

 

 

     §95.  Repeal of laws conferring exclusive fishing rights.  That all laws of the Republic of Hawaii which confer exclusive fishing rights upon any person or persons are hereby repealed, and all fisheries in the sea waters of the Territory of Hawaii not included in any fish pond or artificial inclosure shall be free to all citizens of the United States, subject, however, to vested rights; but no such vested rights shall be valid after three years from the taking effect of this Act unless established as hereinafter provided.

 

  Fishing rights covered by land commission awards or held under the early laws of Hawaii, are vested rights under this §:  194 U.S. 154, 31 L.R.A. (N.S.) 397 (reversing 14 H. 465); 200 U.S. 255; 16 H. 308.  Requirement that fishing right be established as provided in §96 in order to be valid, is constitutional.  35 H. 608.  Fisheries in streams are not covered by this § though the fish come from the sea:  18 H. 462.  Fisheries free to citizens and alien residents alike before this Act continued so afterwards:  3 U.S.D.C. Haw. 227.  This § repealed the penal remedy provided for in §482, R.L. 1905:  16 H. 307.  This § does not prevent the requirement of a license fee for fishing for profit with a boat of more than a certain width:  19 H. 643.  Congress did not reserve exclusive control over the sea fisheries of the Territory:  21 H. 39 (Ann. Cas. 1915A 1155); 21 H. 631; 31 H. 678.

  Referred to in 39 H. 129.

 

Law Journals and Reviews

 

  Loko i‘a:  A Legal Guide to the Restoration of Native Hawaiian Fishponds Within the Western Paradigm.  24 UH L. Rev. 657.

 

 

     §96.  Proceedings for opening fisheries to citizens.  That any person who claims a private right to any such fishery shall, within two years after the taking effect of this Act, file his petition in a circuit court of the Territory of Hawaii, setting forth his claim to such fishing right, service of which petition shall be made upon the attorney-general, who shall conduct the case for the Territory, and such case shall be conducted as an ordinary action at law.

     That if such fishing right be established the attorney-general of the Territory of Hawaii may proceed, in such manner as may be provided by law for the condemnation of property for public use, to condemn such private right of fishing to the use of the citizens of the United States upon making just compensation, which compensation, when lawfully ascertained, shall be paid out of any money in the treasury of the Territory of Hawaii not otherwise appropriated.

 

  Action provided for is not an action to quiet title to real property; may be brought in circuit different from that in which fishery is:  18 H. 460.  Referred to in 21 H. 632; 205 U.S. 353; 39 H. 129; 41 H. 597.

  Jurisdiction of court does not include power to adjudicate title to submerged land.  48 H. 152, 397 P.2d 593.

  See note to §95.

 

 

     §97.  Quarantine.  The health laws of the government of Hawaii relating to the harbor of Honolulu and other harbors and inlets from the sea and to the internal control of the health of the islands shall remain in the jurisdiction of the government of the Territory of Hawaii, subject to the quarantine laws and regulations of the United States. [Am July 1, 1944, c 373, §611, 58 Stat 714]

 

  Quarantine station and grounds thus transferred included only the island known as Kamokuakulikuli and not tracts on Sand and Quarantine Islands set aside for military purposes by executive order of Nov. 24, 1920, which therefore was valid; 33 Ops. 409.  Referred to in 13 H. 21.

 

 

     §98.  That all vessels carrying Hawaiian registers on the twelfth day of August, eighteen hundred and ninety-eight, and which were owned bona fide by citizens of the United States, or the citizens of Hawaii, together with the following-named vessels claiming Hawaiian register, Star of France, Euterpe, Star of Russia, Falls of Clyde, and Willscott, shall be entitled to be registered as American vessels, with the benefits and privileges appertaining thereto, and the coasting trade between the islands aforesaid and any other portion of the United States, shall be regulated in accordance with the provisions of law applicable to such trade between any two great coasting districts.

 

  See also §88 of this act.  On authority to register Hawaiian vessels after annexation and before this act, see note to Joint Resolution of Annexation, RLH 1955, page 13.  For special act for register of barkentine "Hawaii," see 32 Stat 35.  On issuance of register to American citizen of Chinese birth, see note to §4.  Referred to in 182 U.S. 397 and 105 Fed. 78, to show that "coasting trade" is not limited to interior waters or contiguous coast.  Referred to in 23 Ops. 416; 24 Ops. 7.

 

 

     §99.  That the portion of the public domain heretofore known as Crown land is hereby declared to have been, on the twelfth day of August, eighteen hundred and ninety-eight, and prior thereto, the property of the Hawaiian government, and to be free and clear from any trust of or concerning the same, and from all claim of any nature whatsoever, upon the rents, issues, and profits thereof.  It shall be subject to alienation and other uses as may be provided by law.

 

  Compare Const. of 1894, Art. 95.  In view of this §, the title of the government to crown lands cannot be questioned by the courts:  18 H. 645; 18 H. 651; 20 H. 548.  When monarchy ceased, crown lands became part of the public domain, irrespective of this § or the corresponding § of the Const. of 1894, and no equitable interest remained in retiring queen:  45 C. Cls. R. 418; if there were any trust it was denied by this §, and the statute of limitations (six years) began to run:  Id.  Referred to in 16 H. 245.  See note to §73.

 

 

     §100.  All records relating to naturalization, all declarations of intention to become citizens of the United States, and all certificates of naturalization filed, recorded, or issued prior to the taking effect of the naturalization Act of June twenty-ninth, nineteen hundred and six, in or from any circuit court of the Territory of Hawaii, shall for all purposes be deemed to be and to have been made, filed, recorded, or issued by a court with jurisdiction to naturalize aliens, but shall not be by this Act further validated or legalized. [Am May 27, 1910, c 258, §9, 36 Stat 443; Oct. 14, 1940, c 876, §504, 54 Stat 1137, 1172]

 

  Territorial circuit courts were held to have jurisdiction to naturalize even before the general naturalization act of June 26, 1906, which clearly conferred such jurisdiction:  17 H. 295; 211 U.S. 146.  The first paragraph of this § as originally enacted (see RLH 1935) may have been unconstitutional because not "an uniform rule:"  162 Fed. 470; it has been repealed by implication by the general naturalization act above referred to:  Id, overruling 3 U.S.D.C. Haw. 191, and it was specifically repealed Oct. 14, 1940.  Referred to in 13 H. 21.  See §4 and note thereto; also citizenship and immigration cases in note to RLH 1955, §57-43.

  Certificates of naturalization granted by the U.S. District Court for Hawaii between January 1, 1919 and July 1, 1922, validated "insofar as failure of the record to contain final order under the hand of the court is concerned" by the Act of June 29, 1938, c 822, 52 Stat 1249.  Referred to in 236 F.2d 622.

 

 

     §101.  That Chinese in the Hawaiian Islands when this Act takes effect may within one year thereafter obtain certificates of residence as required by "An Act to prohibit the coming of Chinese persons into the United States," approved May fifth, eighteen hundred and ninety-two, as amended by an Act approved November third, eighteen hundred and ninety-three, entitled "An Act to amend an Act entitled 'An Act to prohibit the coming of Chinese persons into the United States,' approved May fifth, eighteen hundred and ninety-two," and until the expiration of said year shall not be deemed to be unlawfully in the United States if found therein without such certificates:  Provided, however, That no Chinese laborer, whether he shall hold such certificate or not, shall be allowed to enter any State, Territory, or District of the United States from the Hawaiian Islands. [Rep Dec. 17, 1943, c 344, 57 Stat 600]

 

  A Chinese who left Hawaii with a return permit after annexation and before this act took effect and did not return before this act took effect, was not within the provisions of this § and could not thereafter return:  1 U.S.D.C. Haw. 1.  A Chinese domiciled in the U.S. and coming to Hawaii as a seaman on an American vessel from an American port cannot be excluded:  1 U.S.D.C. Haw. 15.  Chinese exclusion laws apply to Hawaii:  1 U.S.D.C. Haw. 49.  The right of a Chinese woman to land depends on her status on arrival and is not affected by her marriage after arrival:  1 U.S.D.C. Haw. 113.  Provision excluding Chinese laborers does not apply to citizen born in Hawaii after April 30, 1900, 31 F.2d 407.  Chinese holding certificates in the U.S. may go to Hawaii, but quaere, whether they may return to the U.S. from Hawaii; "therein" in this § refers to Hawaii; 23 Ops. 487.  The provision making it a misdemeanor to aid the landing of Chinese in the U.S. from other countries is extended so as to apply to landings from Hawaii on the mainland:  3 U.S.D.C. Haw. 87.  See §4 and note thereto; also Joint Resolution of Annexation and note thereto, RLH 1955, page 13, and general immigration act and note to RLH 1955, §57-43.

 

 

     §102.  That the laws of Hawaii relating to the establishment and conduct of any postal savings bank or institution are hereby abolished.  And the Secretary of the Treasury in the execution of the agreement of the United States as expressed in an Act entitled "Joint resolution to provide for annexing the Hawaiian Islands to the United States," approved July seventh, eighteen hundred and ninety-eight, shall pay the amounts on deposit in the Hawaiian Postal Savings Bank to the persons entitled thereto, according to their respective rights, and he shall make all needful orders, rules, and regulations for paying such persons and for notifying such persons to present their demands for payment.  So much money as is necessary to pay said demands is hereby appropriated out of any money in the Treasury not otherwise appropriated, to be available on and after the first day of July, nineteen hundred, when such payments shall begin, and none of said demands shall bear interest after said date, and no deposit shall be made in said bank after said date.  Said demands of such persons shall be certified to by the chief executive of Hawaii as being genuine and due to the persons presenting the same, and his certificate shall be sealed with the official seal of the Territory, and countersigned by its secretary, and shall be approved by the Secretary of the Interior, who shall draw his warrant for the amount due upon the Treasurer of the United States, and when the same are so paid no further liabilities shall exist in respect of the same against the governments of the United States or of Hawaii.

 

  Referred to in 13 H. 21.  See also the Act of May 19, 1908, c 175, 35 Stat 165.

 

 

     §103.  That any money of the Hawaiian Postal Savings Bank that shall remain unpaid to the persons entitled thereto on the first day of July, nineteen hundred and one, and any assets of said bank shall be turned over by the government of Hawaii to the Treasurer of the United States, and the Secretary of the Treasury shall cause an account to be stated, as of said date, between such government of Hawaii and the United States in respect to said Hawaiian Postal Savings Bank.

 

  See also Act of May 19, 1908, c 175, 35 Stat 165.  Hawaiian currency:  See note to §90.

 

 

     §104.  This Act shall take effect forty-five days from and after the date of the approval thereof, excepting only as to section fifty-two, relating to appropriations, which shall take effect upon such approval.

 

 

     §105.  That no person shall be employed as a mechanic or laborer upon any public work carried on in the Territory of Hawaii by the Government of the United States, whether the work is done by contract or otherwise, unless such person is a citizen of the United States or eligible to become such a citizen. [Add July 9, 1921, c 42, §315, 42 Stat 120]

 

  The Act of January 2, 1942, c 646, 55 Stat 881, authorized the employment of nationals of the United States for certain federal public work in Hawaii during the national emergency declared by the President on May 27, 1941.

 

 

     §106.  The board of harbor commissioners of the Territory of Hawaii shall have and exercise all the powers and shall perform all the duties which may lawfully be exercised by or under the Territory of Hawaii relative to the control and management of the shores, shore waters, navigable streams, harbors, harbor and water-front improvements, ports, docks, wharves, quays, bulkheads, and landings belonging to or controlled by the Territory, and the shipping using the same, and shall have the authority to use and permit and regulate the use of the wharves, piers, bulkheads, quays, and landings belonging to or controlled by the Territory for receiving or discharging passengers and for loading and landing merchandise, with a right to collect wharfage and demurrage thereon or therefor, and, subject to all applicable provisions of law, to fix and regulate from time to time rates for services rendered in mooring vessels, charges for the use of moorings belonging to or controlled by the Territory, rates or charges for the services of pilots, wharfage, or demurrage, rents or charges for warehouses or warehouse space, for office or office space, for storage of freight, goods, wares and merchandise, for storage space for the use of donkey engines, derricks, or other equipment belonging to the Territory, under the control of the board, and to make other charges, including toll or tonnage charges on freight passing over or across wharves, docks, quays, bulkheads, or landings.  The Board shall likewise have power to appoint, subject to the Territorial laws of Hawaii relating to the civil service of Hawaii, clerks, wharfingers, and their assistants, pilots and pilot-boat crews, and such other officers and employees as may be necessary; to make rules and regulations pursuant to this section and not inconsistent with law; and generally shall have all powers necessary to carry out the provisions of this section.  All officers and employees appointed pursuant to this section shall be subject to the Territorial laws of Hawaii relating to the civil service of Hawaii.

     All moneys appropriated for harbor improvements, including new construction, reconstruction, repairs, salaries, and operating expenses, shall be expended under the supervision and control of the board, subject to the provisions of law.  All contracts and agreements authorized by law to be entered into by the board shall be executed on its behalf by its chairman.

     The board shall prepare and submit annually to the governor a report of its official acts during the preceding year, together with its recommendations as to harbor improvements throughout the Territory. [Add July 9, 1921, c 42, §315, 42 Stat 120; am Aug. 14, 1958, Pub L 85-650, §1, 72 Stat 606]

 

  Power to impose tolls, 31 H. 372.  This board was created by an act of the territorial legislature in 1911.  See HRS §266-1.  This act, as amended, was ratified by Congress by the Act of March 28, 1916, 39 Stat 39.  As to the origin of §106 supra see S. Con. R. 11, Senate Journal, 1919, p. 1027, and H.R. 7632, introduced in Congress July 21, 1919.  Cong. Rec. v. 58, pt. 3, p. 2977, but not passed.

 

 

     §107.  That this Act may be cited as the "Hawaiian Organic Act." [Add July 9, 1921, c 42, §315, 42 Stat 121]

 

  The act of July 9, 1921, 42 Stat c. 42, contains four titles.  Title 2 comprising §§201-223, is the Hawaiian Homes Commission Act, 1920, (following State Constitution).  Title 3, comprising §§301-315, consists of amendments of the Organic Act.  Title 1, comprising §§1-2, and Title 4, comprising §§401-402, are as follows:  Section 1.  That this Act may be cited as the "Hawaiian Homes Commission Act, 1920."  Section 2.  That when used in this Act the term "Hawaiian Organic Act" means the Act entitled "An Act to provide a government for the Territory of Hawaii," approved April 30, 1900, as amended.  Section 401.  All Acts or parts of Acts, either of the Congress of the United States or of the Territory of Hawaii, to the extent that they are inconsistent with the provisions of this Act, are hereby repealed.  Section 402.  If any provision of this Act, or the application of such provision to certain circumstances, is held unconstitutional, the remainder of the Act and the application of such provision to circumstances other than those as to which it is held unconstitutional shall not be held invalidated thereby.

 

 

THE ADMISSION ACT

 

An Act to Provide for the Admission of the State of Hawaii

into the Union

 

(Act of March 18, 1959, Pub L 86-3, 73 Stat 4)

 

     Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That, subject to the provisions of this Act, and upon issuance of the proclamation required by section 7(c) of this Act, the State of Hawaii is hereby declared to be a State of the United States of America, is declared admitted into the Union on an equal footing with the other States in all respects whatever, and the constitution formed pursuant to the provisions of the Act of the Territorial Legislature of Hawaii entitled "An Act to provide for a constitutional convention, the adoption of a State constitution, and the forwarding of the same to the Congress of the United States, and appropriating money therefor", approved May 20, 1949 (Act 334, Session Laws of Hawaii, 1949), and adopted by a vote of the people of Hawaii in the election held on November 7, 1950, is hereby found to be republican in form and in conformity with the Constitution of the United States and the principles of the Declaration of Independence, and is hereby accepted, ratified, and confirmed.

 

Attorney General Opinions

 

  Allows State to sell, alienate, or otherwise dispose of ceded lands; 1978 constitutional amendments did not alter State's authority.  Att. Gen. Op. 95-3.

  Allocating royalties from geothermal developments on department of Hawaiian home lands (DHHL) lands to the board of land and natural resources or the counties violated §4 of the Admission Act and article XII, §§1 and 3 of the Hawaii constitution.  It is clear from the Admission Act and the Hawaii constitution that the State has an obligation to manage such resources on Hawaiian home lands for the benefit of native Hawaiians pursuant to the Hawaiian Homes Commission Act (HHCA).  Allocation of royalties from geothermal developments on DHHL lands to entities other than DHHL would be violations of both the Admission Act and the Hawaii constitution because those proceeds would not be available to DHHL to carry out the terms and conditions of the HHCA.  Att. Gen. Op. 14-1.

  The department of Hawaiian home lands' authority to manage and dispose of geothermal resources on its lands, which stems from the Admission Act, the Hawaii constitution, and the Hawaiian Homes Commission Act, does not run afoul of the public trust doctrine.  Att. Gen. Op. 14-1.

 

Law Journals and Reviews

 

  Ke Ala Pono--The Path of Justice:  The Moon Court's Native Hawaiian Rights Decisions.  33 UH L. Rev. 447 (2011).

  Demolition of Native Rights and Self Determination:  Act 55's Devastating Impact through the Development of Hawaii's Public Lands.  35 UH L. Rev. 297 (2013).

 

Case Notes

 

  Apology Resolution reveals no indication that Congress intended to amend or repeal the State's rights and obligations under the Admission Act.  556 U.S. 163 (2009).

  Hawaii not denied "equal footing" by reason of C.A.B. control over interisland air transportation.  363 F.2d 120.

  Created a federal right enforceable under 42 U.S.C. §1983.  739 F.2d 1467.

  Admission Act is a federal public trust, creating a federally enforceable right for beneficiaries to maintain action against trustees; plaintiff's 42 U.S.C. §1983 action thus proper.  3 F.3d 1220.

  There is no positive command in this Act for the United States to bring a breach of trust action against the Hawaiian homes commission or its members.  824 F. Supp. 1480.

  Where plaintiffs alleged, inter alia, state defendants breached their trust responsibilities under this Act, claims against State or its agencies or departments, and defendants in official capacities barred by Eleventh Amendment; state defendants sued in personal capacities were entitled to qualified immunity.  824 F. Supp. 1480.

  "Equal footing", referred to:  44 H. 634, 642, 361 P.2d 390.

  Association that included native Hawaiian beneficiaries asserted viable claim under 42 U.S.C. §1983 alleging breach of trust duties by appellees under Hawaiian Homes Commission Act via Admission Act.  78 H. 192, 891 P.2d 279.

 

     §2.  The State of Hawaii shall consist of all the islands, together with their appurtenant reefs and territorial waters, included in the Territory of Hawaii on the date of enactment of this Act, except the atoll known as Palmyra Island, together with its appurtenant reefs and territorial waters, but said State shall not be deemed to include the Midway Islands, Johnston Island, Sand Island (off-shore from Johnston Island), or Kingman Reef, together with their appurtenant reefs and territorial waters.

 

Case Notes

 

  See also notes to Const. Art. XV, §1.

  Territorial waters extend only three miles from each island.  235 F. Supp. 990.

  Question of jurisdiction over channels between islands raised but not decided.  47 H. 87, 384 P.2d 536.

 

     §3.  The constitution of the State of Hawaii shall always be republican in form and shall not be repugnant to the Constitution of the United States and the principles of the Declaration of Independence.

 

     §4.  As a compact with the United States relating to the management and disposition of the Hawaiian home lands, the Hawaiian Homes Commission Act, 1920, as amended, shall be adopted as a provision of the Constitution of said State, as provided in section 7, subsection (b) of this Act, subject to amendment or repeal only with the consent of the United States, and in no other manner:  Provided, That (1) sections 202, 213, 219, 220, 222, 224, and 225 and other provisions relating to administration, and paragraph (2) of section 204, sections 206 and 212, and other provisions relating to the powers and duties of officers other than those charged with the administration of said Act, may be amended in the constitution, or in the manner required for State legislation, but the Hawaiian home-loan fund, the Hawaiian home-operating fund, and the Hawaiian home-development fund shall not be reduced or impaired by any such amendment, whether made in the constitution or in the manner required for State legislation, and the encumbrances authorized to be placed on Hawaiian home lands by officers other than those charged with the administration of said Act, shall not be increased, except with the consent of the United States; (2) that any amendment to increase the benefits to lessees of Hawaiian home lands may be made in the constitution, or in the manner required for State legislation, but the qualifications of lessees shall not be changed except with the consent of the United States; and (3) that all proceeds and income from the "available lands", as defined by said Act, shall be used only in carrying out the provisions of said Act.

 

Attorney General Opinions

 

  Allocating royalties from geothermal developments on department of Hawaiian home lands (DHHL) lands to the board of land and natural resources or the counties violated this section and article XII, §§1 and 3 of the Hawaii constitution.  It is clear from the Admission Act and the Hawaii constitution that the State has an obligation to manage such resources on Hawaiian home lands for the benefit of native Hawaiians pursuant to the Hawaiian Homes Commission Act (HHCA).  Allocation of royalties from geothermal developments on DHHL lands to entities other than DHHL would be violations of both the Admission Act and the Hawaii constitution because those proceeds would not be available to DHHL to carry out the terms and conditions of the HHCA.  Att. Gen. Op. 14-1.

 

Law Journals and Reviews

 

  The Lum Court and Native Hawaiian Rights.  14 UH L. Rev. 377.

  Native Hawaiians, Self-Determination, and the Inadequacy of the State Land Trusts.  14 UH L. Rev. 519.

  The Native Hawaiian Trusts Judicial Relief Act:  The First Step in an Attempt to Provide Relief.  14 UH L. Rev. 889.

  Courts and the Cultural Performance:  Native Hawaiians' Uncertain Federal and State Law Rights to Sue.  16 UH L. Rev. 1.

  Native Hawaiian Homestead Water Reservation Rights:  Providing Good Living Conditions for Native Hawaiian Homesteaders.  25 UH L. Rev. 85.

  Ke Ala Pono--The Path of Justice:  The Moon Court's Native Hawaiian Rights Decisions.  33 UH L. Rev. 447 (2011).

  A Modest Proposal for Determining Class Member Damages:  Aggregation and Extrapolation in the Kalima v. State Breach of Homelands Trust Class Action.  34 UH L. Rev. 1 (2012).

 

Case Notes

 

  This section and §5(f) of Admission Act create rights enforceable under 42 U.S.C. §1983; plaintiffs had standing to enforce such rights.  996 F. Supp. 989.

  In setting aside Hawaiian home lands, federal government undertook trust obligation benefitting aboriginal people.  State assumed fiduciary obligation upon being admitted as a state.  64 H. 327, 640 P.2d 1161.

 

     §5.  (a)  Except as provided in subsection (c) of this section, the State of Hawaii and its political subdivisions, as the case may be, shall succeed to the title of the Territory of Hawaii and its subdivisions in those lands and other properties in which the Territory and its subdivisions now hold title.

     (b)  Except as provided in subsection (c) and (d) of this section, the United States grants to the State of Hawaii, effective upon its admission into the Union, the United States' title to all the public lands and other public property, and to all lands defined as "available lands" by section 203 of the Hawaiian Homes Commission Act, 1920, as amended, within the boundaries of the State of Hawaii, title to which is held by the United States immediately prior to its admission into the Union.  The grant hereby made shall be in lieu of any and all grants provided for new States by provisions of law other than this Act, and such grants shall not extend to the State of Hawaii.

     (c)  Any lands and other properties that, on the date Hawaii is admitted into the Union, are set aside pursuant to law for the use of the United States under any (1) Act of Congress, (2) Executive order, (3) proclamation of the President, or (4) proclamation of the Governor of Hawaii shall remain the property of the United States subject only to the limitations, if any, imposed under (1), (2), (3), or (4), as the case may be.

     (d)  Any public lands or other public property that is conveyed to the State of Hawaii by subsection (b) of this section but that, immediately prior to the admission of said State into the Union, is controlled by the United States pursuant to permit, license, or permission, written or verbal, from the Territory of Hawaii or any department thereof may, at any time during the five years following the admission of Hawaii into the Union, be set aside by Act of Congress or by Executive order of the President, made pursuant to law, for the use of the United States, and the lands or property so set aside shall, subject only to valid rights then existing, be the property of the United States. [Am July 12, 1960, Pub L 86-624, 74 Stat 422]

     (e)  Within five years from the date Hawaii is admitted into the Union, each Federal agency having control over any land or property that is retained by the United States pursuant to subsections (c) and (d) of this section shall report to the President the facts regarding its continued need for such land or property, and if the President determines that the land or property is no longer needed by the United States it shall be conveyed to the State of Hawaii.

     (f)  The lands granted to the State of Hawaii by subsection (b) of this section and public lands retained by the United States under subsections (c) and (d) and later conveyed to the State under subsection (e), together with the proceeds from the sale or other disposition of any such lands and the income therefrom, shall be held by said State as a public trust for the support of the public schools and other public educational institutions, for the betterment of the conditions of native Hawaiians, as defined in the Hawaiian Homes Commission Act, 1920, as amended, for the development of farm and home ownership on as widespread a basis as possible for the making of public improvements, and for the provision of lands for public use.  Such lands, proceeds, and income shall be managed and disposed of for one or more of the foregoing purposes in such manner as the constitution and laws of said State may provide, and their use for any other object shall constitute a breach of trust for which suit may be brought by the United States.  The schools and other educational institutions supported, in whole or in part out of such public trust shall forever remain under the exclusive control of said State; and no part of the proceeds or income from the lands granted under this Act shall be used for the support of any sectarian or denominational school, college, or university.

     (g)  As used in this Act, the term "lands and other properties" includes public lands and other public property, and the term "public lands and other public property" means, and is limited to, the lands and properties that were ceded to the United States by the Republic of Hawaii under the joint resolution of annexation approved July 7, 1898 (30 Stat. 750), or that have been acquired in exchange for lands or properties so ceded.

     (h)  All laws of the United States reserving to the United States the free use or enjoyment of property which vests in or is conveyed to the State of Hawaii or its political subdivisions pursuant to subsection (a), (b), or (e) of this section or reserving the right to alter, amend, or repeal laws relating thereto shall cease to be effective upon the admission of the State of Hawaii into the Union.

     (i)  The Submerged Lands Act of 1953 (Public Law 31, Eighty-third Congress, first session; 67 Stat. 29) and the Outer Continental Shelf Lands Act of 1953 (Public Law 212, Eighty-third Congress, first session, 67 Stat. 462) shall be applicable to the State of Hawaii, and the said State shall have the same rights as do existing States thereunder.

 

  Revised conveyance procedures.  Act of December 23, 1963, Pub L 88-233, 77 Stat 472, provides:  That (a)(i) whenever after August 21, 1964, any of the public lands and other public property as defined in section 5(g) of Public Law 86-3 (73 Stat. 4, 6), or any lands acquired by the Territory of Hawaii and its subdivisions, which are the property of the United States pursuant to section 5(c) or become the property of the United States pursuant to section 5(d) of Public Law 86-3, except the lands administered pursuant to the Act of August 25, 1916 (39 Stat. 535), as amended, and (ii) whenever any of the lands of the United States on Sand Island, including the reef lands in connection therewith, in the city and county of Honolulu, are determined to be surplus property by the Administrator of General Services (hereinafter referred to as the "Administrator") with the concurrence of the head of the department or agency exercising administration or control over such lands and property, they shall be conveyed to the State of Hawaii by the Administrator subject to the provisions of this Act.

  (b)  Such lands and property shall be conveyed without monetary consideration, but subject to such other terms and conditions as the Administrator may prescribe:  Provided, That, as a condition precedent to the conveyance of such lands, the Administrator shall require payment by the State of Hawaii of the estimated fair market value, as determined by the Administrator, of any buildings, structures, and other improvements erected and made on such lands after they were set aside.  In the event that the State of Hawaii does not agree to any payment prescribed by the Administrator, he may remove, relocate, and otherwise dispose of any such buildings, structures, and other improvements under other applicable laws, or if the Administrator determines that they cannot be removed without substantial damage to them or the lands containing them, he may dispose of them and the lands involved under other applicable laws, but, in such cases he shall pay to the State of Hawaii that portion of any proceeds from such disposal which he estimates to be equal to the value of the lands involved.  Nothing in this section shall prevent the disposal by the Administrator under other applicable laws of the lands subject to conveyance to the State of Hawaii under this section if the State of Hawaii so chooses.

  Sec. 2.  Any lands, property, improvements, and proceeds conveyed or paid to the State of Hawaii under section 1 of this Act shall be considered a part of public trust established by section 5(f) of Public Law 86-3, and shall be subject to the terms and conditions of that trust.

 

Note

 

  Use of lands in public land trust; payments and accounting requirements.  L 2006, c 178.

 

Attorney General Opinions

 

  Duty imposed under paragraphs (c) and (e) on federal agency to report on its continued need of land is limited to lands ceded to U.S. upon annexation and does not extend to lands acquired by U.S. thereafter.  U.S. Att. Gen. Op. June 12, 1961.

  Legislature may not authorize office of Hawaiian affairs to use funds derived from public lands trust to better the conditions of "Hawaiians", as defined in §10-2, HRS, distinguishing from "native Hawaiians" as defined in this section.  Att. Gen. Op. 83-2.

  Subsection (f) expressly acknowledges that ceded or public trust land may be alienated; proceeds of sale or disposition must be returned to the trust and held by State for use for one or more of five purposes set forth in subsection (f).  Att. Gen. Op. 95-3.

  Collaboration agreement between University and corporation requiring the University to provide the corporation with environmental samples from diverse habitats may be voidable but not null and void altogether if both the corporation and the University intended that all material come from only ceded lands the State owned.  The University could still perform under the contract by collecting material from the lands it owns and by securing a land license so that it could collect materials from the ceded lands the State owns.  Att. Gen. Op. 03-3.

  Inasmuch as the genetic material or composition of the natural resources and things connected to public lands, including ceded lands, are an integral part of those resources and things, title to biogenetic resources will still be held by State if it has not sold the land.  Legal title to biogenetic resources gathered from state public lands will not still be vested in the State if third persons were allowed to remove from public lands the natural resource or thing from which the biogenetic resources were extracted or the State sold or leased title to a parcel of public land without reserving title or retaining control of the resources or things connected to the transferred land, or their biogenetic contents.  Att. Gen. Op. 03-3.

  Legislature must again determine which income and proceeds from the public land trust lands are to go to the office of Hawaiian affairs (OHA).  Until legislature reestablishes a funding mechanism for OHA, Executive Order No. 03-03 is the only mechanism in place for transferring receipts from the use of ceded lands to OHA; receipts from the sale or transfer of biogenetic resources do not qualify for transfer under the order.  Att. Gen. Op. 03-3.

  The scope of the University's authority to sell or transfer biogenetic resources gathered from ceded lands depends upon how the University acquired the ceded land from which the biogenetic resource originated.  The University has complete authority over the lands that are set aside or conveyed to it by the State, and would have limited authority to dispose of biogenetic resources gathered from public lands it leases from the State, or lands that it has permits to use or licenses from which to remove materials.  Att. Gen. Op. 03-3.

 

Law Journals and Reviews

 

  Hawaii's Ceded Lands, Comment.  3 UH L. Rev. 101.

  The Lum Court and Native Hawaiian Rights.  14 UH L. Rev. 377.

  Native Hawaiians, Self-Determination, and the Inadequacy of the State Land Trusts.  14 UH L. Rev. 519.

  State-Federal Conflict Over Naval Defensive Sea Areas in Hawai‘i.  14 UH L. Rev. 595.

  The Native Hawaiian Trusts Judicial Relief Act:  The First Step in an Attempt to Provide Relief.  14 UH L. Rev. 889.

  Courts and the Cultural Performance:  Native Hawaiians' Uncertain Federal and State Law Rights to Sue.  16 UH L. Rev. 1.

  The Akaka Bill:  The Native Hawaiians' Race For Federal Recognition.  23 UH L. Rev. 857.

  Akaka Bill:  Native Hawaiians, Legal Realities, and Politics as Usual.  24 UH L. Rev. 693.

  Native Hawaiian Homestead Water Reservation Rights:  Providing Good Living Conditions for Native Hawaiian Homesteaders.  25 UH L. Rev. 85.

  Biopiracy in Paradise?:  Fulfilling the Legal Duty to Regulate Bioprospecting in Hawai‘i.  28 UH L. Rev. 387.

  Ke Ala Pono--The Path of Justice:  The Moon Court's Native Hawaiian Rights Decisions.  33 UH L. Rev. 447 (2011).

  A Modest Proposal for Determining Class Member Damages:  Aggregation and Extrapolation in the Kalima v. State Breach of Homelands Trust Class Action.  34 UH L. Rev. 1 (2012).

  Demolition of Native Rights and Self Determination:  Act 55's Devastating Impact through the Development of Hawaii's Public Lands.  35 UH L. Rev. 297 (2013).

 

Case Notes

 

  Hawaii's suit in supreme court, seeking to extend duty to acquired lands, dismissed on ground that U.S. could not be sued without its consent.  373 U.S. 57.

  Native Hawaiian group had no private cause of action under Act; section creates federal "right" enforceable under 42 U.S.C. §1983; enforcement of federal-state compact created by section presents federal question.  764 F.2d 623.

  Plaintiff alleged that office of Hawaiian affairs trustees were not spending funds pursuant to section.  915 F.2d 469.

  Native Hawaiians stated federal claim by alleging that trustees of office of Hawaiian affairs expended income derived from lands conveyed as public trust for purposes other than those permitted under Admission Act.  928 F.2d 824.

  Native Hawaiians' claim under 42 U.S.C. §1983 that land parcel was subject to public trust not actionable where private landowners did not act under color of state law.  939 F.2d 702.

  OHA trustees entitled to qualified immunity from 42 U.S.C. §1983 claim that trustees violated Admission Act by improperly using §5(f) funds for referendum to define "native Hawaiians".  3 F.3d 1220.

  Plaintiff had standing where plaintiff was among class of beneficiaries whose welfare was the object of the action at issue.  3 F.3d 1220.

  Act does not impose upon the United States a general fiduciary obligation to bring suit against the State for any particular alleged breach of trust, only a right to bring such action.  45 F.3d 333.

  Plaintiffs contended, inter alia, that phrase imposed a duty upon United States to sue State if State breached the trust, and that state defendants had violated and would continue to violate this section by not giving priority to the betterment of native Hawaiians by funding homesteads for them; judgment of district court affirmed, where court denied plaintiffs' motion for summary judgment and dismissed plaintiffs' complaint against all defendants.  183 F.3d 945.

  Each native Hawaiian plaintiff, as a beneficiary of the trust created by §5(f), has an individual right to have the trust terms complied with, and therefore can sue under 42 U.S.C. §1983 for violation of that right.  496 F.3d 1027.

  Trustees of the office of Hawaiian affairs established as a matter of law that each of the challenged expenditures constituted a "use" "for one or more of the [§5(f)] purposes" and that was sufficient to defeat plaintiffs' 42 U.S.C. §1983 claim under federal law for breach of the §5(f) trust; district court's summary judgment in favor of the trustees, affirmed.  616 F.3d 918 (2010).

  Under submerged lands act, Hawaii's boundaries extend one marine league.  235 F. Supp. 990.

  Plaintiffs' breach of public land trust claims dismissed, where plaintiffs claimed in their [subsection (f)] trust beneficiary capacities that they were being treated differently from a small class of native Hawaiians and did not proceed on the basis of any direct injury.  299 F. Supp. 2d 1090.

  Plaintiffs' motion for reconsideration denied, where plaintiffs argued that the court erred in finding that plaintiffs lacked standing to assert claims as beneficiaries of the public land trust created by subsection (f).  299 F. Supp. 2d 1107.

  Plaintiffs' Hawaiian home lands lease program claim dismissed, because plaintiffs' claim necessarily involved a challenge to the Admission Act, a challenge that could not be brought by a party with only state taxpayer standing.  299 F. Supp. 2d 1114.

  Where plaintiffs contended that Act 359 of 1993 Hawaii legislature (relating to Hawaiian sovereignty), as amended in 1994 and 1996, breached fiduciary duty between State and its citizens, and brought suit under 42 U.S.C. §1983 to enforce subsection (f), on motion for preliminary injunction, plaintiffs not likely to prevail on their §1983 action regarding alleged violation of Admission Act.  941 F. Supp. 1529.

  Plaintiffs' suit barred by Eleventh Amendment and prior Ninth Circuit authority, where, inter alia, plaintiffs asked court to compel state defendants to spend §5(f) funds on only one (Hawaiian home lands) of the five purposes provided for in the Admission Act, in order to compensate for past breaches of trust.  996 F. Supp. 989.

  Section 4 of Admission Act and subsection (f) create rights enforceable under 42 U.S.C. §1983; plaintiffs had standing to enforce such rights.  996 F. Supp. 989.

  New lava lands created by volcanic eruption were within "public lands" the title to which was granted by the federal government to the State upon admission to statehood.  58 H. 106, 566 P.2d 725.

  Claim brought under 42 U.S.C. §1983 that exchange of ceded lands by State constituted a breach of trust under subsection (f) was barred by statute of limitations and res judicata.  73 H. 578, 837 P.2d 1247.

  Where plaintiff--as a member of the general public and a beneficiary of the public lands trust under article XII, §7 of the Hawaii constitution--made allegations sufficient to show an injury in fact, even though legitimate uses under this section might not necessarily benefit members of the general public, and because a multiplicity of suits could be avoided by allowing plaintiff to sue to enforce the State's compliance with the trust provisions under this section, plaintiff had standing to pursue the claims raised in the suit.  121 H. 324, 219 P.3d 1111 (2009).

 

 

     §6.  As soon as possible after the enactment of this Act, it shall be the duty of the President of the United States to certify such fact to the Governor of the Territory of Hawaii.  Thereupon the Governor of the Territory shall, within thirty days after receipt of the official notification of such approval, issue his proclamation for the elections, as hereinafter provided, for officers of all State elective offices provided for by the constitution of the proposed State of Hawaii, and for two Senators and one Representative in Congress.  In the first election of Senators from said State the two senatorial offices shall be separately identified and designated, and no person may be a candidate for both offices.  No identification or designation of either of the two senatorial offices, however, shall refer to or be taken to refer to the term of that office, nor shall any such identification or designation in any way impair the privilege of the Senate to determine the class to which each of the Senators elected shall be assigned.

 

     §7.  (a)  The proclamation of the Governor of Hawaii required by section 6 shall provide for the holding of a primary election and a general election and at such elections the officers required to be elected as provided in section 6 shall be chosen by the people.  Such elections shall be held, and the qualifications of voters thereat shall be, as prescribed by the constitution of the proposed State of Hawaii for the election of members of the proposed State legislature.  The returns thereof shall be made and certified in such manner as the constitution of the proposed State of Hawaii may prescribe.  The Governor of Hawaii shall certify the results of said elections, as so ascertained, to the President of the United States.

     (b)  At an election designated by proclamation of the Governor of Hawaii, which may be either the primary or the general election held pursuant to subsection (a) of this section, or a territorial general election, or a special election, there shall be submitted to the electors qualified to vote in said election, for adoption or rejection, the following propositions:

    "(1)  Shall Hawaii immediately be admitted into the Union as a State?

    "(2)  The boundaries of the State of Hawaii shall be as prescribed in the Act of Congress approved...........

       (Date of approval of this Act)

          and all claims of this State to any areas of land or sea outside the boundaries so prescribed are hereby irrevocably relinquished to the United States.

    "(3)  All provisions of the Act of Congress approved.......

       (Date of approval of this Act)

          reserving rights or powers to the United States, as well as those prescribing the terms or conditions of the grants of lands or other property therein made to the State of Hawaii are consented to fully by said State and its people."

     In the event the foregoing propositions are adopted at said election by a majority of the legal votes cast on said submission, the proposed constitution of the proposed State of Hawaii, ratified by the people at the election held on November 7, 1950, shall be deemed amended as follows:  Section 1 of article XIII of said proposed constitution shall be deemed amended so as to contain the language of section 2 of this Act in lieu of any other language; article XI shall be deemed to include the provisions of section 4 of this Act; and section 8 of article XIV shall be deemed amended so as to contain the language of the third proposition above stated in lieu of any other language, and section 10 of article XVI shall be deemed amended by inserting the words "at which officers for all state elective offices provided for by this constitution and two Senators and one Representative in Congress shall be nominated and elected" in lieu of the words "at which officers for all state elective offices provided for by this constitution shall be nominated and elected; but the officers so to be elected shall in any event include two Senators and two Representatives to the Congress, and unless and until otherwise required by law, said Representatives shall be elected at large".

     In the event the foregoing propositions are not adopted at said election by a majority of the legal votes cast on said submission, the provisions of this Act shall cease to be effective.

     The Governor of Hawaii is hereby authorized and directed to take such action as may be necessary or appropriate to insure the submission of said propositions to the people.  The return of the votes cast on said propositions shall be made by the election officers directly to the Secretary of Hawaii, who shall certify the results of the submission to the Governor.  The Governor shall certify the results of said submission, as so ascertained, to the President of the United States.

     (c) If the President shall find that the propositions set forth in the preceding subsection have been duly adopted by the people of Hawaii, the President, upon certification of the returns of the election of the officers required to be elected as provided in section 6 of this Act, shall thereupon issue his proclamation announcing the results of said election as so ascertained.  Upon the issuance of said proclamation by the President, the State of Hawaii shall be deemed admitted into the Union as provided in section 1 of this Act.

     Until the said State is so admitted into the Union, the persons holding legislative, executive, and judicial office in, under, or by authority of the government of said Territory, and the Delegate in Congress thereof, shall continue to discharge the duties of their respective offices.  Upon the issuance of said proclamation by the President of the United States and the admission of the State of Hawaii into the Union, the officers elected at said election, and qualified under the provisions of the constitution and laws of said State, shall proceed to exercise all the functions pertaining to their offices in, under, or by authority of the government of said State, and officers not required to be elected at said initial election shall be selected or continued in office as provided by the constitution and laws of said State.  The Governor of said State shall certify the election of the Senators and Representative in the manner required by law, and the said Senators and Representative shall be entitled to be admitted to seats in Congress and to all the rights and privileges of Senators and Representatives of other States in the Congress of the United States.

 

     §8.  The State of Hawaii upon its admission into the Union shall be entitled to one Representative until the taking effect of the next reapportionment, and such Representative shall be in addition to the membership of the House of Representatives as now prescribed by law:  Provided, That such temporary increase in the membership shall not operate to either increase or decrease the permanent membership of the House of Representatives as prescribed in the Act of August 8, 1911 (37 Stat. 13), nor shall such temporary increase affect the basis of apportionment established by the Act of November 15, 1941 (55 Stat. 761; 2 U.S.C., sec. 2a), for the Eighty-third Congress and each Congress thereafter.

 

     §9.  Effective upon the admission of the State of Hawaii into the Union--

     (a)  the United States District Court for the District of Hawaii established by and existing under title 28 of the United States Code shall henceforth be a court of the United States with judicial power derived from article III, section 1, of the Constitution of the United States; Provided, however, That the terms of office of the district judges for the district of Hawaii then in office shall terminate upon the effective date of this section and the President, pursuant to sections 133 and 134 of title 28, United States Code, as amended by this Act, shall appoint, by and with the advice and consent of the Senate, two district judges for the said district who shall hold office during good behavior;

     (b)  the last paragraph of section 133 of title 28, United States Code, is repealed; and

     (c)  subsection (a) of section 134 of title 28, United States Code, is amended by striking out the words "Hawaii and".  The second sentence of the same section is amended by striking out the words "Hawaii and", "six and", and "respectively".

 

     §10.  Effective upon the admission of the State of Hawaii into the Union the second paragraph of section 451 of title 28, United States Code, is amended by striking out the words "including the district courts of the United States for the districts of Hawaii and Puerto Rico," and inserting in lieu thereof the words "including the United States District for the District of Puerto Rico,".

 

     §11.  Effective upon the admission of the State of Hawaii into the Union--

     (a)  the last paragraph of section 501 of title 28, United States Code, is repealed;

     (b)  the first sentence of subsection (a) of section 504 of title 28, United States Code, is amended by striking out at the end thereof the words ", except in the district of Hawaii, where the term shall be six years";

     (c)  the first sentence of subsection (c) of section 541 of title 28, United States Code, is amended by striking out at the end thereof the words ", except in the district of Hawaii where the term shall be six years"; and

     (d)  subsection (d) of section 541 of title 28, United States Code is repealed.

 

Cross References

 

  See Public Law 89-554, 80 Stat 378, 660.

 

     §12.  No writ, action, indictment, cause, or proceeding pending in any court of the Territory of Hawaii or in the United States District Court for the District of Hawaii shall abate by reason of the admission of said State into the Union, but the same shall be transferred to and proceeded with in such appropriate State courts as shall be established under the constitution of said State, or shall continue in the United States District Court for the District of Hawaii, as the nature of the case may require.  And no writ, action, indictment, cause or proceeding shall abate by reason of any change in the courts, but shall be proceeded with in the State or United States courts according to the laws thereof, respectively.  And the appropriate State courts shall be the successors of the courts of the Territory as to all cases arising within the limits embraced within the jurisdiction of such courts, respectively, with full power to proceed with the same, and award mesne or final process therein, and all the files, records, indictments, and proceedings relating to any such writ, action, indictment, cause or proceeding shall be transferred to such appropriate State courts and the same shall be proceeded with therein in due course of law.

     All civil causes of action and all criminal offenses which shall have arisen or been committed prior to the admission of said State, but as to which no writ, action, indictment or proceeding shall be pending at the date of such admission, shall be subject to prosecution in the appropriate State courts or in the United States District Court for the District of Hawaii in like manner, to the same extent, and with like right of appellate review, as if said State had been created and said State courts had been established prior to the accrual of such causes of action or the commission of such offenses.  The admission of said State shall effect no change in the substantive or criminal law governing such causes of action and criminal offenses which shall have arisen or been committed; and such of said criminal offenses as shall have been committed against the laws of the Territory shall be tried and punished by the appropriate courts of said State, and such as shall have been committed against the laws of the United States shall be tried and punished in the United States District Court for the District of Hawaii.

 

Case Notes

 

  Remand to Supreme Court of State as successor of Supreme Court of Territory.  274 F.2d 356.

 

     §13.  Parties shall have the same rights of appeal from and appellate review of final decisions of the United States District Court for the District of Hawaii or the Supreme Court of the Territory of Hawaii in any case finally decided prior to admission of said State into the Union, whether or not an appeal therefrom shall have been perfected prior to such admission, and the United States Court of Appeals for the Ninth Circuit and the Supreme Court of the United States shall have the same jurisdiction therein, as by law provided prior to admission of said State into the Union, and any mandate issued subsequent to the admission of said State shall be to the United States District Court for the District of Hawaii or a court of the State, as may be appropriate.  Parties shall have the same rights of appeal from and appellate review of all orders, judgments, and decrees of the United States District Court for the District of Hawaii and of the Supreme Court of the State of Hawaii as successor to the Supreme Court of the Territory of Hawaii, in any case pending at the time of admission of said State into the Union, and the United States Court of Appeals for the Ninth Circuit and the Supreme Court of the United States shall have the same jurisdiction therein, as by law provided in any case arising subsequent to the admission of said State into the Union.

 

Case Notes

 

  Right of appeal from judgment of Supreme Court of Territory preserved by this section.  279 F.2d 636, 637, note 1; 283 F.2d 86; 287 F.2d 51, 52.

 

     §14.  Effective upon the admission of the State of Hawaii into the Union--

     (a)  title 28, United States Code, section 1252, is amended by striking out "Hawaii and" from the clause relating to courts of record;

     (b)  title 28, United States Code, section 1293, is amended by striking out the words "First and Ninth Circuits" and by inserting in lieu thereof "First Circuit", and by striking out the words, "supreme courts of Puerto Rico and Hawaii, respectively" and inserting in lieu thereof, "supreme court of Puerto Rico";

     (c)  title 28, United States Code, section 1294, as amended, is further amended by striking out paragraph (4) thereof and by renumbering paragraphs (5) and (6) accordingly;

     (d)  the first paragraph of section 373 of title 28, United States Code, as amended, is further amended by striking out the words "United States District Courts for the districts of Hawaii or Puerto Rico," and inserting in lieu thereof the words "United States District Court for the District of Puerto Rico,"; and by striking out the words "and any justice of the Supreme Court of the Territory of Hawaii":  Provided, That the amendments made by this subsection shall not affect the rights of any judge or justice who may have retired before the effective date of this subsection:  And provided further, That service as a judge of the District Court for the Territory of Hawaii or as a judge of the United States District Court for the District of Hawaii or as a justice of the Supreme Court of the Territory of Hawaii or as a judge of the circuit courts of the Territory of Hawaii shall be included in computing under section 371, 372, or 373 of title 28, United States Code, the aggregate years of judicial service of any person who is in office as a district judge for the District of Hawaii on the date of enactment of this Act;

     (e)  section 92 of the Act of April 30, 1900 (ch. 339, 31 Stat. 159), as amended, and the Act of May 29, 1928 (ch. 904, 45 Stat. 997), as amended, are repealed;

     (f)  section 86 of the Act approved April 30, 1900 (ch. 339, 31 Stat. 158), as amended, is repealed;

     (g)  section 3771 of title 18, United States Code, as heretofore amended, is further amended by striking out from the first paragraph of such section the words "Supreme Courts of Hawaii and Puerto Rico" and inserting in lieu thereof the words "Supreme Court of Puerto Rico";

     (h)  section 3772 of title 18, United States Code, as heretofore amended, is further amended by striking out from the first paragraph of such section the words "Supreme Courts of Hawaii and Puerto Rico" and inserting in lieu thereof the words "Supreme Court of Puerto Rico";

     (i)  section 91 of title 28, United States Code, as heretofore amended, is further amended by inserting after "Kure Island" and before "Baker Island" the words "Palmyra Island,"; and

     (j)  the Act of June 15, 1950 (64 Stat. 217; 48 U.S.C., §644a), is amended by inserting after "Kure Island" and before "Baker Island" the words "Palmyra Island,".

 

     §15.  All Territorial laws in force in the Territory of Hawaii at the time of its admission into the Union shall continue in force in the State of Hawaii, except as modified or changed by this Act or by the constitution of the State, and shall be subject to repeal or amendment by the Legislature of the State of Hawaii, except as provided in section 4 of this Act with respect to the Hawaiian Homes Commission Act, 1920, as amended; and the laws of the United States shall have the same force and effect within the said State as elsewhere within the United States:  Provided, That, except as herein otherwise provided, a Territorial law enacted by the Congress shall be terminated two years after the date of admission of the State of Hawaii into the Union or upon the effective date of any law enacted by the State of Hawaii which amends or repeals it, whichever may occur first.  As used in this section, the term "Territorial laws" includes (in addition to laws enacted by the Territorial Legislature of Hawaii) all laws or parts thereof enacted by the Congress the validity of which is dependent solely upon the authority of the Congress to provide for the government of Hawaii prior to its admission into the Union, and the term "laws of the United States" includes all laws or parts thereof enacted by the Congress that (1) apply to or within Hawaii at the time of its admission into the Union, (2) are not "Territorial laws" as defined in this paragraph, (3) are not in conflict with any other provision of this Act.

 

Attorney General Opinions

 

  The two-year proviso terminating a territorial law enacted by Congress was intended to apply specifically to the administration of laws regulating intrastate commerce and is not applicable to the public land laws.  Att. Gen. Op. 61-68.

 

Case Notes

 

  A statute invalid under Sherman Act at time of statehood would not have been continued in force by this section.  283 F.2d 86, 89, note 2.

  Concerning continuance of certain acts of Congress for two years, see 235 F. Supp. 705, 712.

  As to cut-off period, Congress had in view specifically the termination of federal responsibility for the administration of laws regulating intrastate commerce.  44 H. 634, 361 P.2d 390.

  Authority of Congress to provide for government of Hawaii prior to statehood was derived from Art. IV, §3, cl. 2, U.S. Const. 44 H. 634, 361 P.2d 390.

  By section, C.A.B. jurisdiction over carriage by aircraft between places in the State continued to be an exception to rate-making authority of state public utilities commission during transition period.  44 H. 634, 361 P.2d 390.

  Cited:  26 F.R.D. 384, 386.

 

     §16.  (a)  Notwithstanding the admission of the State of Hawaii into the Union, the United States shall continue to have sole and exclusive jurisdiction over the area which may then or thereafter be included in Hawaii National Park, saving, however, to the State of Hawaii the same rights as are reserved to the Territory of Hawaii by section 1 of the Act of April 19, 1930 (46 Stat. 227), and saving, further, to persons then or thereafter residing within such area the right to vote at all elections held within the political subdivisions where they respectively reside.  Upon the admission of said State all references to the Territory of Hawaii in said Act or in other laws relating to Hawaii National Park shall be deemed to refer to the State of Hawaii.  Nothing contained in this Act shall be construed to affect the ownership and control by the United States of any lands or other property within Hawaii National Park which may now belong to, or which may hereafter be acquired by, the United States.

     (b)  Notwithstanding the admission of the State of Hawaii into the Union, authority is reserved in the United States, subject to the proviso hereinafter set forth, for the exercise by the Congress of the United States of the power of exclusive legislation, as provided by article I, section 8, clause 17, of the Constitution of the United States, in all cases whatsoever over such tracts or parcels of land as, immediately prior to the admission of said State, are controlled or owned by the United States and held for Defense or Coast Guard purposes, whether such lands were acquired by cession and transfer to the United States by the Republic of Hawaii and set aside by Act of Congress or by Executive order or proclamation of the President or the Governor of Hawaii for the use of the United States, or were acquired by the United States by purchase, condemnation, donation, exchange, or otherwise:  Provided, (i) That the State of Hawaii shall always have the right to serve civil or criminal process within the said tracts or parcels of land in suits or prosecutions for or on account of rights acquired, obligations incurred, or crimes committed within the said State but outside of the said tracts or parcels of land; (ii) that the reservation of authority in the United States for the exercise by the Congress of the United States of the power of exclusive legislation over the lands aforesaid shall not operate to prevent such lands from being a part of the State of Hawaii, or to prevent the said State from exercising over or upon such lands, concurrently with the United States, any jurisdiction whatsoever which it would have in the absence of such reservation of authority and which is consistent with the laws hereafter enacted by the Congress pursuant to such reservation of authority; and (iii) that such power of exclusive legislation shall vest and remain in the United States only so long as the particular tract or parcel of land involved is controlled or owned by the United States and used for Defense or Coast Guard purposes:  Provided, however, That the United States shall continue to have sole and exclusive jurisdiction over such military installations as have been heretofore or hereafter determined to be critical areas as delineated by the President of the United States and/or the Secretary of Defense.

 

Case Notes

 

  State had concurrent jurisdiction with federal government over military property owned by federal government immediately prior to Hawaii's admission as a state.  8 H. App. 497, 810 P.2d 668.

 

     §17.  The next to last sentence of the first paragraph of section 2 of the Federal Reserve Act (38 Stat. 251) as amended by section 19 of the Act of July 7, 1958, (72 Stat. 339, 350) is amended by inserting after the word "Alaska" the words "or Hawaii."

 

     §18.  (a)  Nothing contained in this Act shall be construed as depriving the Federal Maritime Board of the exclusive jurisdiction heretofore conferred on it over common carriers engaged in transportation by water between any port in the State of Hawaii and other ports in the United States, or possessions, or as conferring on the Interstate Commerce Commission jurisdiction over transportation by water between any such ports.

     (b)  Effective on the admission of the State of Hawaii into the Union--

     (1)  The first sentence of section 506 of the Merchant Marine Act, 1936, as amended (46 U.S.C., §1156), is amended by inserting before the words "an island possession or island territory," the words "the State of Hawaii, or";

     (2)  Section 605(a) of the Merchant Marine Act, 1936, as amended (46 U.S.C., §1175), is amended by inserting before the words "an island possession or island territory", the words "the State of Hawaii, or"; and

     (3)  The second paragraph of section 714 of the Merchant Marine Act, 1936, as amended (46 U.S.C., §1204), is amended by inserting before the words "an island possession or island territory" the words "the State of Hawaii, or". [Am July 12, 1960, Pub L 86-624, 74 Stat 423]

 

     §19.  Nothing contained in this Act shall operate to confer United States nationality, nor to terminate nationality heretofore lawfully acquired, or restore nationality heretofore lost under any law of the United States or under any treaty to which the United States is or was a party.

 

     §20.  (a)  Section 101 (a)(36) of the Immigration and Nationality Act (66 Stat. 170, 8 U.S.C., §1101 (a)(36), is amended by deleting the word "Hawaii,".

     (b)  Section 212 (d)(7) of the Immigration and Nationality Act (66 Stat. 188, 8 U.S.C. §1182 (d)(7), is amended by deleting from the first sentence thereof the word "Hawaii" and by deleting the proviso to said first sentence.

     (c)  The first sentence of section 310(a) of the Immigration and Nationality Act, as amended (66 Stat. 239, 8 U.S.C. §1421(a), 72 Stat. 351) is further amended by deleting the words "for the Territory of Hawaii, and".

     (d)  Nothing contained in this Act shall be held to repeal, amend, or modify the provisions of section 305 of the Immigration and Nationality Act (66 Stat. 237, 8 U.S.C. §1405).

 

     §21.  Effective upon the admission of the State of Hawaii into the Union, section 3, subsection (b), of the Act of September 7, 1957 (71 Stat. 629), is amended by substituting the words "State of Hawaii" for the words "Territory of Hawaii".

 

     §22.  If any provision of this Act, or any section, subsection, sentence, clause, phrase, or individual word, or the application thereof in any circumstance is held invalid, the validity of the remainder of the Act and of the application of any such provision, section, subsection, sentence, clause, phrase, or individual word in other circumstances shall not be affected thereby.

 

     §23.  All Acts or parts of Acts in conflict with the provisions of this Act, whether passed by the legislature of said Territory or by Congress are hereby repealed.

 

THE CONSTITUTION OF THE STATE OF HAWAII

 

As Amended and in Force January 1, 2009

 

_______________

 

  The Hawaii Constitution was framed by a Constitutional Convention under Act 334, Session Laws of Hawaii 1949.  It was adopted by the people at the election held on November 7, 1950, and was deemed amended when three propositions submitted to the people in accordance with the Act of Congress approved March 18, 1959, 73 Stat 4, Public Law 86-3, were adopted by the people at the election held on June 27, 1959.  As so amended, it was accepted, ratified, and confirmed by Congress by the Act of March 18, 1959.  It went into effect on August 21, 1959, upon the issuance of a presidential proclamation admitting the state of Hawaii into the Union.

  The Constitution has since been amended a number of times in accordance with proposals adopted by the legislature or by constitutional convention and ratified by the people.  The source of these amendments is indicated in the source notes immediately following the text of the amended or new section.

 

Revision Note

 

  On November 7, 1978, amendments to the Constitution proposed by the Constitutional Convention of 1978 were presented to the electorate for its approval.  The Lieutenant Governor's computer report showed that all of the proposed amendments passed by the necessary constitutional margin.  However, the Supreme Court of Hawaii in Kahalekai v. Doi, 60 H. 324, 590 P.2d 543 (1979), held that a number of the proposed amendments were not validly ratified.  The revisor has deleted from the Constitution these invalid amendments and added explanatory notes to the sections concerned.  This deletion has been done under the authority of Resolution No. 29 of the 1978 Constitutional Convention authorizing the revisor "to effect such necessary rearrangement, renumbering and technical changes of the sections within the articles of the State Constitution, as may be affected, for proper form and arrangement and proper order in the State Constitution in the event that any or some of the amendments to the State Constitution proposed by the Constitutional Convention of Hawaii of 1978 are not ratified by the electorate."

  In addition to the abovementioned amendments, removed from the text of the Constitution, there appear to be other proposed amendments that may have failed of ratification.  A number of unspecified amendments, involving technical, stylistic, and incidental changes, were submitted for approval by the electorate under Question 34.  As to these, the Court stated:

  The question of whether any amendment submitted for approval by Question No. 34 was in fact approved ... depends on its effect upon substantive law.  If the amendment is purely stylistic and technical in nature, and does not alter the sense, meaning or effect of any provision of the Constitution, it was approved by the electorate and has become a part of the revised Constitution.  On the other hand, if the amendment alters the sense, meaning or effect of any provision of the Constitution, it was not ratified and is not effective to change the language of the Constitution.  Obviously, we are not now in a position to make these line by line determinations.

  The revisor does not consider that the authority granted under Resolution No. 29 embraces the elimination of proposed amendments as having failed of ratification where the issue has not been adjudicated.  Thus the text of the Constitution includes all the proposed amendments submitted for ratification under Question 34.  As an aid to the readers, however, an attempt has been made to identify all such amendments--except those obviously purely technical and stylistic and clearly nonsubstantive (which have been ratified)--and explanatory notes have been appended thereto.

 

     Preamble

 

     Federal Constitution Adopted

 

Article I  Bill of Rights

 

Section

   1 Political power

   2 Rights of individuals

   3 Equality of rights

   4 Freedom of religion, speech, press, assembly and

     petition

   5 Due process and equal protection

   6 Right to privacy

   7 Searches, seizures and invasion of privacy

   8 Rights of citizens

   9 Enlistment; segregation

  10 Indictment; preliminary hearing; information;

     double jeopardy; self-incrimination

  11 Grand jury counsel

  12 Bail; excessive punishment

  13 Trial by jury, civil cases

  14 Rights of accused

  15 Habeas corpus and suspension of laws

  16 Supremacy of civil power

  17 Right to bear arms

  18 Quartering of soldiers

  19 Imprisonment for debt

  20 Eminent domain

  21 Limitations of special privileges

  22 Construction

  23 Marriage

  24 Public access to information concerning persons

     convicted of certain offenses against children and

     certain sexual offenses

  25 Sexual assault crimes against minors

 

Article II  Suffrage and Elections

 

   1 Qualifications

   2 Disqualification

   3 Residence

   4 Registration; voting

   5 Campaign fund, spending limit

   6 Campaign contributions limits

   7 Resignation from public office

   8 General, special and primary elections

   9 Presidential preference primary

  10 Contested elections

 

Article III  The Legislature

 

   1 Legislative power

   2 Composition of senate

   3 Composition of house of representatives

   4 Election of members; term

   5 Vacancies

   6 Qualifications of members

   7 Privileges of members

   8 Disqualifications of members

   9 Legislative allowance

  10 Sessions

  11 Adjournment

  12 Organization; discipline; rules; procedure

  13 Quorum; compulsory attendance

  14 Bills; enactment

  15 Passage of bills

  16 Approval or veto

     Reconsideration after adjournment

  17 Procedures upon veto

  18 Punishment of nonmembers

  19 Impeachment

 

Article IV  Reapportionment

 

   1 Reapportionment years

   2 Reapportionment commission

   3 Chief election officer

   4 Apportionment among basic island units

   5 Minimum representation for basic island units

   6 Apportionment within basic island units

   7 Election of senators after reapportionment

   8 Staggered terms for the senate

   9 Congressional redistricting for United States house

     of representatives

  10 Mandamus and judicial review

 

Article V  The Executive

 

   1 Establishment of the executive

   2 Lieutenant governor

   3 Repealed

   4 Succession to governorship; absence or disability of

     governor

   5 Executive powers

   6 Executive and administrative offices and department

 

Article VI  The Judiciary

 

   1 Judicial power

   2 Supreme court; intermediate appellate court; circuit

     courts

   3 Appointment of justices and judges

       Qualifications for appointment

       Tenure; retirement

   4 Judicial selection commission

   5 Retirement; removal; discipline

   6 Administration

   7 Rules

 

Article VII  Taxation and Finance

 

   1 Taxing power inalienable

   2 Income taxation

   3 Tax review commission

   4 Appropriations for private purposes prohibited

   5 Expenditure controls

   6 Disposition of excess revenues

   7 Council on revenues

   8 The budget

   9 Legislative appropriations; procedures; expenditure ceiling

       General fund expenditure ceiling

 10 Auditor

 11 Lapsing of appropriations

 12 Definitions; issuance of indebtedness

 13 Debt limit; exclusions

 

Article VIII  Local Government

 

   1 Creation; powers of political subdivisions

   2 Local self-government; charter

   3 Taxation and finance

   4 Mandates; accrued claims

   5 Transfer of mandated programs

   6 Statewide laws

 

Article IX  Public Health and Welfare

 

   1 Public health

   2 Care of handicapped persons

   3 Public assistance

   4 Economic security of the elderly

   5 Housing, slum clearance, development and rehabilitation

   6 Management of state population growth

   7 Public sightliness and good order

   8 Preservation of a healthful environment

   9 Cultural resources

  10 Public safety

 

Article X  Education

 

   1 Public education

   2 Board of education

   3 Power of the board of education

   4 Hawaiian education program

   5 University of Hawaii

   6 Board of regents; powers

 

Article XI  Conservation, Control and Development

of Resources

 

   1 Conservation and development of resources

   2 Management and disposition of natural resources

   3 Agricultural lands

   4 Public land banking

   5 General laws required; exceptions

   6 Marine resources

   7 Water resources

   8 Nuclear energy

   9 Environmental rights

  10 Farm and home ownership

  11 Exclusive economic zone

 

Article XII  Hawaiian Affairs

 

   1 Hawaiian Homes Commission Act

   2 Acceptance of compact

   3 Compact adoption; procedures after adoption

   4 Public trust

   5 Office of Hawaiian Affairs; establishment of board of

     trustees

   6 Powers of board of trustees

   7 Traditional and customary rights

 

Article XIII  Organization; Collective Bargaining

 

   1 Private employees

   2 Public employees

 

Article XIV  Code of Ethics

 

Article XV  State Boundaries; Capital; Flag;

Language and Motto

 

   1 Boundaries

   2 Capital

   3 State flag

   4 Official languages

   5 Motto

 

Article XVI  General and Miscellaneous Provisions

 

   1 Civil service

   2 Employees' retirement system

   3 Disqualifications from public office or employment

 3.5 Salary commission

   4 Oath of office

   5 Intergovernmental relations

   6 Federal lands

   7 Compliance with trust

   8 Administration of undisposed lands

   9 Tax exemption of federal property

  10 Hawaii national park

  11 Judicial rights

  12 Quieting title

  13 Plain language

  14 Titles, subtitles; construction

  15 General power

  16 Provisions are self-executing

 

Article XVII  Revision and Amendment

 

   1 Methods of proposal

   2 Constitutional convention

       Election of delegates

       Meeting

       Organization; procedure

       Ratification; appropriations

   3 Amendments proposed by legislature

   4 Veto

   5 Conflicting revisions or amendments

 

Article XVIII  Schedule

 

   1 Districting and apportionment

   2 1978 Senatorial elections

   3 Repealed

   4 Effective date for term limitations for governor and

     lieutenant governor

   5 Judiciary:  transition; effective date

   6 Effective date and application of real property tax

     transfer

   7 1978 Board of education elections

   8 Effective date for Office of Hawaiian Affairs

   9 Continuity of laws

  10 Debts

  11 Residence, other qualifications

  12 Board of education transition

 

  Effective date

 

Note

 

  For proposed constitutional amendments to article VI, §3, see SB 886, L 2013, pg. 841 and HB 420, L 2014, pg. 839; article VII, §12, see HB 748 and SB 2876, L 2014, pgs. 840 and 843, respectively; and article X, §1, see SB 1084, L 2013, pg. 842.

  For proposed constitutional amendment to:

  (1)   Article I, §13, see SB 143, L 2015, pg. 733; and

  (2)   Article VII, §6, see SB 2554, L 2016, pg. 853.

 

PREAMBLE

 

     We, the people of Hawaii, grateful for Divine Guidance, and mindful of our Hawaiian heritage and uniqueness as an island State, dedicate our efforts to fulfill the philosophy decreed by the Hawaii State motto, "Ua mau ke ea o ka aina i ka pono."

     We reserve the right to control our destiny, to nurture the integrity of our people and culture, and to preserve the quality of life that we desire.

     We reaffirm our belief in a government of the people, by the people and for the people, and with an understanding and compassionate heart toward all the peoples of the earth, do hereby ordain and establish this constitution for the State of Hawaii. [Am Const Con 1978 and election Nov 7, 1978]

 

FEDERAL CONSTITUTION ADOPTED

 

     The Constitution of the United States of America is adopted on behalf of the people of the State of Hawaii.

 

 

ARTICLE I

 

BILL OF RIGHTS

 

Law Journals and Reviews

 

  The Protection of Individual Rights Under Hawai‘i's Constitution.  14 UH L. Rev. 311.

 

POLITICAL POWER

 

     Section 1.  All political power of this State is inherent in the people and the responsibility for the exercise thereof rests with the people.  All government is founded on this authority. [Am Const Con 1978 and election Nov 7, 1978]

 

 

RIGHTS OF INDIVIDUALS

 

     Section 2.  All persons are free by nature and are equal in their inherent and inalienable rights.  Among these rights are the enjoyment of life, liberty and the pursuit of happiness, and the acquiring and possessing of property.  These rights cannot endure unless the people recognize their corresponding obligations and responsibilities. [Am Const Con 1978 and election Nov 7, 1978]

 

Case Notes

 

  See also notes to U.S. Const. Amend. 14.

  Section 746-6, making presence in barricaded place a crime, was invalid as it denied the freedom of movement and freedom of association guaranteed hereunder.  52 H. 604, 483 P.2d 997.

  Section 286-81(1)(A), requiring motorcycle safety helmets, is not a mere self-protective legislation and is valid.  55 H. 138, 516 P.2d 709.

  Traffic statutes, §§286-25, 286-102, 291-11.6, and 431:10C-104(b), did not violate defendant’s freedom of movement.  77 H. 222 (App.), 883 P.2d 644.

  A chapter 586 protective order does not unconstitutionally curtail a person's freedom of movement.  85 H. 197 (App.), 940 P.2d 404.

  As §711-1102's limit on freedom of association and movement is only within the immediate vicinity of the disorderly conduct and there is no "unlimited and indiscriminately sweeping infringement upon the freedom of movement and association", §711-1102 does not violate this section.  101 H. 153 (App.), 64 P.3d 282.

  Mentioned:  51 H. 516, 465 P.2d 573; 53 H. 327, 493 P.2d 306.

 

 

EQUALITY OF RIGHTS

 

     Section 3.  Equality of rights under the law shall not be denied or abridged by the State on account of sex.  The legislature shall have the power to enforce, by appropriate legislation, the provisions of this section. [L 1972, SB No 1408-72 and election Nov 7, 1972; ren Const Con 1978 and election Nov 7, 1978]

 

Law Journals and Reviews

 

  Hawaii's Equal Rights Amendment:  Its Impact On Athletic Opportunities and Competition For Women.  2 UH L. Rev. 97.

  Employee Rights Under Judicial Scrutiny:  Prevalent Policy Discourse and the Hawai‘i Supreme Court.  14 UH L. Rev. 189.

  For Better or for Worse, in Sickness and in Health, Until Death Do Us Part:  A Look at Same Sex Marriage in Hawaii.  16 UH L. Rev. 447.

 

Case Notes

 

  Requirement that a woman visitor to an all-male prison wear a brassiere does not infringe upon this section.  59 H. 346, 581 P.2d 1164.

  Classification based on unique physical characteristics of men or women is not invalid.  62 H. 120, 612 P.2d 526.

 

 

FREEDOM OF RELIGION, SPEECH, PRESS,

ASSEMBLY AND PETITION

 

     Section 4.  No law shall be enacted respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press or the right of the people peaceably to assemble and to petition the government for a redress of grievances. [Ren and am Const Con 1978 and election Nov 7, 1978]

 

Attorney General Opinions

 

  Granting permission to student religious group to use university facilities on same basis as other student groups is not in contravention of U.S. or state Constitution.  Att. Gen. Op. 64-54.

  Policy regarding devotional exercise in public schools is contrary to the First and Fourteenth Amendments to the U.S. Constitution.  Att. Gen. Op. 66-15.

  Statute which would include newspapers within definition of public utility and subject them to PUC jurisdiction would be violative of freedom of the press.  Att. Gen. Op. 74-11.

 

Law Journals and Reviews

 

  Metromedia, Inc. v. City of San Diego:  The Conflict Between Aesthetic Zoning and Commercial Speech Protection; Hawaii's Billboard Law Under Fire, Note.  5 UH L. Rev. 79.

  Estes v. Kapiolani Women's and Children's Medical Center:  State Action and the Balance Between Free Speech and Private Property Rights in Hawaii.  13 UH L. Rev. 233.

  The Lum Court and Native Hawaiian Rights.  14 UH L. Rev. 377.

  The Lum Court and the First Amendment.  14 UH L. Rev. 395.

  Burdick v. Takushi:  Yes to Equal Voice in Voting, No to a Fundamental Right to Vote for Any Particular Candidate.  14 UH L. Rev. 715.

  Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah:  Reaffirming the Supreme Court's Religious Free Exercise Jurisdiction.  16 UH L. Rev. 401.

  Curing A Bad Reputation:  Reforming Defamation Law.  17 UH L. Rev. 113.

  Hawai‘i's Response to Strategic Litigation Against Public Participation and the Protection of Citizens' Right to Petition the Government.  24 UH L. Rev. 411.

  Emergency Contraception in Religious Hospitals:  The Struggle Between Religious Freedom and Personal Autonomy.  27 UH L. Rev. 65.

 

Case Notes

 

Freedom of press.

  See also notes to U.S. Const. Amend. 1.

  News media liable for negligent defamation of private person.  56 H. 522, 543 P.2d 1356.

 

Freedom of religion.

  Inmates' motion for preliminary injunction regarding inmates' prayer objects denied, where inmates argued that the deprivation of the prayer objects violated inmates' rights to the free exercise of religion under the U.S. and state Constitutions.  One inmate failed to exhaust available administrative remedies as to the destruction of the prayer object, and even if the inmate had exhausted administrative remedies, the inmate had not established that the inmate was likely to suffer irreparable harm in the absence of a preliminary injunction.  The other inmate, among other things, was unlikely to prevail on the merits of the free exercise claim because the regulations and policies at issue were reasonably related to legitimate penalogical interest.  The regulations satisfied the less stringent valid, rational connection to a legitimate governmental interest factor, and the inmate had alternate means of exercising inmate's right to practice inmate's religion.  903 F. Supp. 2d 975 (2012).

  Under the First Amendment to the U.S. Constitution and this section, civil courts have no authority to resolve disputes that turn on matters of church doctrine, practice, polity, or administration or that cannot be decided without resolving underlying controversies over such matters.  When faced with such claims, civil courts must dismiss them.  77 H. 383, 885 P.2d 361.

  Not violated by director's failure to grant building height restriction zoning variance for temple hall where plaintiff Buddhist temple failed to demonstrate substantial burden on its free exercise of religion because of height restriction.  87 H. 217, 953 P.2d 1315.

  Administrative rules pertaining to entrance into the Kaho‘olawe island reserve did not unconstitutionally burden defendants' right to practice their religion.  132 H. 36, 319 P.3d 1044 (2014).

  Where church was not a hierarchical church, but a congregational church that made decisions by a vote of its members as set forth in its "petition for charter" of incorporation and by-laws, the church was governed by chapter 414D; thus, appellants should have been allowed to amend their complaint, had standing to contest their expulsion, and were not precluded from doing so by the ecclesiastical abstention doctrine; also, doctrine did not bar appellants' complaint to the extent it did not require resolution of controversies over church doctrine, law, or polity.  118 H. 165 (App.), 185 P.3d 913.

 

Freedom of speech.

  In lawsuit involving a challenge to city and county of Honolulu's practice of charging nonresidents a $3 fee to enter bay designated a marine life conservation district and nature preserve, plaintiff's First Amendment rights not violated and ordinance instituting the fee not overbroad.  215 F. Supp. 2d 1098.

  Right to receive information and ideas not infringed by statute proscribing possession of marijuana.  56 H. 501, 542 P.2d 366.

  Protected speech does not include unprotected obscenity under the First Amendment of U.S. Constitution.  58 H. 440, 573 P.2d 945.

  Procedural requirements for seizure of materials in obscenity prosecutions.  63 H. 596, 634 P.2d 80.

  Standard for suppression of evidence where seizure violated freedom of speech or expression.  63 H. 596, 634 P.2d 80.

  Purchase of allegedly obscene material from "willing sellers" was actually "preconceived search" designed to evade warrant procedures whose specific purpose is protection of First Amendment freedoms.  64 H. 109, 637 P.2d 1095.

  Police involvement in enforcing the hospital's right against trespass did not convert actions into a state action; appellants did not have a right to distribute leaflets and express anti-abortion views on hospital premises.  71 H. 190, 787 P.2d 216.

  Attorneys' extrajudicial statements may be subject to prior restraint by trial court upon demonstration that the activity restrained poses a serious and imminent threat to defendant's right to a fair trial and to the fair administration of justice.  73 H. 499, 835 P.2d 637.

  Defendant's statement not false or defamatory where statement was rhetorical hyperbole--figurative or hyperbolic language that would negate the impression that defendant was asserting an objective fact about plaintiff.  88 H. 94, 962 P.2d 353.

  Neither the free speech clause of the U.S. Constitution nor that of the Hawaii constitution impose a temporal "immediacy" requirement that must be met before words become subject to criminal prosecution as "true threats" under §§707-715 and 707-716.  95 H. 465, 24 P.3d 661.

  The right to free speech under this section was not violated by city ordinance requiring that the area of a booth designated for viewing pornographic videos purchased on the premises of a panoram business be visible from the booth's entryway.  107 H. 314, 113 P.3d 190.

  Where there was no evidence that the "interior work area" of the state department of transportation building where the union bulletin board was located had been transformed from a "non-public forum" into a public forum, bulletin board remained a non-public forum; thus, where the State's bulletin board posting prohibition was against all campaign materials, and not simply against materials advocating a particular viewpoint, the prohibition against campaign materials on the union bulletin board was not in violation of the First Amendment.  116 H. 73, 170 P.3d 324.

  Section 852-1 not unconstitutional as it does not prohibit picketing or the communication of messages altogether, is specifically aimed at conduct causing an obstruction of ingress to or egress from public or private places, and individuals may continue to exercise rights guaranteed by the First Amendment and article I, §4 of the Hawaii constitution as long as they do not do so in a manner prohibited by section.  89 H. 27 (App.), 968 P.2d 194.

  Defendant's continuing physical obstruction of the lawful work by the Hawaii county department of water supply on Hawaiian home lands property constituted conduct clearly outside the scope of any First Amendment right to freedom of speech.  105 H. 319 (App.), 97 P.3d 395.

 

Restraining orders.

  Obstructing use of university office constituted conduct outside of First Amendment rights, and ex parte temporary restraining order was not constitutionally invalid.  52 H. 427, 478 P.2d 320.

 

 

DUE PROCESS AND EQUAL PROTECTION

 

     Section 5.  No person shall be deprived of life, liberty or property without due process of law, nor be denied the equal protection of the laws, nor be denied the enjoyment of the person's civil rights or be discriminated against in the exercise thereof because of race, religion, sex or ancestry. [Ren and am Const Con 1978 and election Nov 7, 1978]

 

Attorney General Opinions

 

  See also notes to U.S. Const. Amend. 14.

  Equal protection--extra tax on liquid fuel imposed only in city and county of Honolulu would not be invalid.  Att. Gen. Op. 63-23.

  Student regulations at state universities are subject to the vagueness standard but do not require the same specificity required of criminal statutes.  Att. Gen. Op. 71-9.

  The State's retention of any funds in excess of what is deemed necessary and proper to administer the county surcharge on state tax under §248-2.6 does not violate the equal protection clause or due process clause of the United States Constitution or the Hawaii State Constitution.  Att. Gen. Op. 15-1.

 

Law Journals and Reviews

 

  The Hawaii Supreme Court's Criminal Law Decisions 1997-1998:  Fair Use of the Doctrine of Plain Error?  II HBJ No. 13, at pg. 49.

  Res Judicata and Collateral Estoppel in Hawaii:  One of These Things is Not Like The Other.  III HBJ No. 13, at pg. 1.

  Sandy Beach Defense Fund v. City and County of Honolulu:  The Sufficiency of Legislative Hearings in an Administrative Setting.  12 UH L. Rev. 499.

  State v. Levinson:  Limitations on a Criminal Defendant's Use of Peremptory Challenges.  13 UH L. Rev. 279.

  Employee Rights Under Judicial Scrutiny:  Prevalent Policy Discourse and the Hawai‘i Supreme Court.  14 UH L. Rev. 189.

  Burdick v. Takushi:  Yes to Equal Voice in Voting, No to a Fundamental Right to Vote for Any Particular Candidate.  14 UH L. Rev. 715.

  Hawai‘i's New Administrative Driver's License Revocation Law:  A Preliminary Due Process Inquiry.  14 UH L. Rev. 853.

  For Better or for Worse, in Sickness and in Health, Until Death Do Us Part:  A Look at Same Sex Marriage in Hawaii.  16 UH L. Rev. 447.

  The Kamehameha Schools/Bishop Estate and the Constitution.  17 UH L. Rev. 413.

  Criminal Procedure Rights Under the Hawaii Constitution Since 1992.  18 UH L. Rev. 683.

  Justice Ruth Bader Ginsburg And Gender Discrimination.  20 UH L. Rev. 699.

  Re-Identifying American State Democracy:  Implications for Same-Sex Marriage and the Nonfungibility of Hawai‘i in the Exotic 1950 Statehood Constitution.  22 UH L. Rev. 1.

  The Defense of Marriage Act:  Sex and the Citizen.  24 UH L. Rev. 279.

  Prudent Use of Judicial Minimalism:  Why Minimalism May Not be Appropriate in the Context of Same-Sex Marriage.  27 UH L. Rev. 501.

  Baehr v. Lewin and the Long Road to Marriage Equality.  33 UH L. Rev. 705 (2011).

  A Modest Proposal for Determining Class Member Damages:  Aggregation and Extrapolation in the Kalima v. State Breach of Homelands Trust Class Action.  34 UH L. Rev. 1 (2012).

  Homeless Property Rights:  An Analysis of Homelessness, Honolulu's "Sidewalk Law," and Whether Real Property is a Condition Precedent to the Full Enjoyment of Rights under the U.S. Constitution.  35 UH L. Rev. 197 (2013).

  Hamilton v. Lethem:  The Parental Right to Discipline One's Child Trumps a Child's Right to Grow Up Free from Harm.  36 UH L. Rev. 347 (2014).

 

Case Notes

 

  See also notes to U.S. Const. Amends. 5, 14.

 

Civil rights.

  Employer's policy of denying any extended leave during employee's first year of employment violated Hawaii administrative rule §12-46-108, which was adopted to enforce the legislative mandate of §378-2(1)(A) and Hawaii's constitutional prohibition against sex discrimination in the exercise of a person's civil rights in employment.  89 H. 269, 971 P.2d 1104.

 

Due process.

  Where landowners argued that ordinance creating mechanism through which condominium owners could convert their leasehold interests into fee simple interests was arbitrary and irrational, landowners could not meet burden of showing irrationality.  124 F.3d 1150.

  Count alleging violations of the state constitution failed to state a claim in a 42 U.S.C. §1983 civil rights lawsuit brought by a former state prisoner and other allegedly similarly-situated plaintiffs primarily seeking damages for "over detention".  678 F. Supp. 2d 1061 (2010).

  Applicable only to state action not private action.  698 F. Supp. 1496.

  Where plaintiff alleged that condominium lease-to-fee ordinance violated plaintiff's substantive due process rights, ordinance was a rational exercise of legislative power.  832 F. Supp. 1404.

  Plaintiff fireworks company was unlikely to succeed on the merits in alleging that a Honolulu city ordinance, prohibiting the importation of consumer fireworks into Honolulu, was overbroad because the ordinance only punished the importing and supplying of consumer fireworks in the city and county of Honolulu and not to the neighbor islands.  796 F. Supp. 2d 1261 (2011).

  Plaintiff fireworks company was unlikely to succeed on the merits in alleging that a Honolulu city ordinance, prohibiting the importation of consumer fireworks into Honolulu, was void for vagueness because the prohibitions set forth in the ordinance were clearly defined, the choice of enforcement of the ordinance by the city did not render the law unconstitutionally vague, and the ordinance did not vest the city with "virtually complete discretion" to determine whether the ordinance has been violated.  796 F. Supp. 2d 1261 (2011).

  Plaintiff, a graduate student, was likely to succeed on the merits of plaintiff's due process claim where, among other things, amended letter from defendant, the university director of judicial affairs, deprived plaintiff of a meaningful opportunity to respond to allegations against plaintiff and plaintiff did attempt to respond to the allegations or to otherwise participate in the process.  927 F. Supp. 2d 1007 (2013).

  Ordinance proscribing "presence" at cockfight is too vague to satisfy requirement of due process.  50 H. 384, 441 P.2d 333.

  Section 634-69 providing for service of summons on motorist by publication does not violate due process clause.  50 H. 484, 443 P.2d 155.

  Public employees seeking accidental disability retirement benefits are entitled to hearing on contested issues before the board of trustees.  52 H. 212, 473 P.2d 866.

  Section 772-1 making criminal one's wandering about at night without visible business was unconstitutional for vagueness.  52 H. 527, 480 P.2d 148.

  Section 709-33, together with other sections of part II, chapter 709, was invalid for failing to require proof of guilt beyond reasonable doubt.  53 H. 40, 487 P.2d 283.

  Section 621-22, allowing introduction of prior convictions to impeach credibility of defendant in criminal case was unconstitutional.  53 H. 254, 492 P.2d 657.

  Section 712-1214(1)(a), with definitions in §712-1210(5), was not void for vagueness.  58 H. 440, 573 P.2d 945.

  Procedure followed did not deprive defendant of defendant's right not to be tried while incompetent.  60 H. 17, 586 P.2d 1028.

  Hearings on applications for staff privileges at hospitals.  63 H. 430, 629 P.2d 1116.

  Irrebuttable presumption created by compulsory retirement age has a rational basis and therefore does not violate due process.  63 H. 501, 630 P.2d 629.

  Notice provisions of tax lien statute failed to meet minimum standards of due process.  64 H. 4, 635 P.2d 938.

  Ordinance prohibiting distribution of commercial handbills in Waikiki was void for vagueness.  64 H. 148, 637 P.2d 1117.

  No violation in denial by trial court of defendant's request to examine witnesses where claim was impermissibly suggestive identification.  64 H. 217, 638 P.2d 324.

  Portion of election fraud law void for vagueness.  67 H. 398, 688 P.2d 1152.

  Due process denied where lessee's property seized without proper service of process, time to answer, evidence presented by lessor, and opportunity to contest case.  68 H. 466, 719 P.2d 397.

  Violated by court's failure to inform defendant of penalties for offense to which defendant pled guilty.  68 H. 498, 720 P.2d 1010.

  Defendant denied fair trial when prosecutor expressed personal view to jury that defendant was guilty and defendant's witnesses were not credible.  68 H. 659, 728 P.2d 1301.

  One year limitation on right to former spouse's property does not violate due process.  69 H. 1, 730 P.2d 338.

  Not violated by proceedings conducted by city council when acting upon Shoreline Management Act permit.  70 H. 361, 773 P.2d 250.

  Judge who lodges complaint for criminal contempt may not decide the outcome if there is no jury trial.  70 H. 459, 776 P.2d 1182.

  HRE rule 412 cannot override the constitutional rights of the accused.  71 H. 115, 785 P.2d 157.

  Rape victim's clothing was not crucial evidence as to result in an unfair trial.  71 H. 183, 787 P.2d 671.

  Ethnical exclusion by prosecution.  71 H. 300, 788 P.2d 841.

  Defendant's right to a fair trial was denied due to State's suppression of evidence.  71 H. 347, 791 P.2d 392.

  Mandatory sentences are not unconstitutional; there is no constitutional right to probation.  71 H. 485, 795 P.2d 842.

  In criminal cases, peremptory challenges cannot be based solely on race, religion, sex, or ancestry.  71 H. 492, 795 P.2d 845.

  Violated where there were unreasonable delays by administrative malfunctions of prosecutor's office and loss of tapes by police.  71 H. 537, 797 P.2d 1312.

  Right to fair trial denied where sum of prosecutor's conduct was prejudicial.  72 H. 278, 815 P.2d 428.

  Police tactics designed to detect drug-related offenses, including officer posing as drug dealer and supplying and selling drugs in "reverse buy" operation, were not so outrageous as to deprive defendant of right to due process.  73 H. 179, 830 P.2d 492.

  Claim for relief against state officials based on alleged illegality of exchange of ceded lands was barred by State's sovereign immunity.  73 H. 578, 837 P.2d 1247.

  Right not violated by defendant's absence from conference settling jury instructions as conference does not involve jury's presence or witness testimony.  74 H. 141, 838 P.2d 1374.

  Requires unbiased administrative adjudicators; no violation where §88-77 trustees not shown to have pecuniary or institutional disqualifying interest in adjudication.  74 H. 181, 840 P.2d 367.

  Written notice of specific charges not required for §710-1077(1)(a) direct summary criminal contempt case; contemnor's misconduct and judge's response did not require contempt trial before different judge.  74 H. 267, 842 P.2d 255.

  Use at sentencing of statements previously obtained in violation of a defendant's privilege against self-incrimination violates that defendant's privilege against self-incrimination and right to due process.  74 H. 424, 848 P.2d 376.

  Third-party agreements homestead lessees entered into with third party non-Hawaiian farmers could not be considered property interests.  76 H. 128, 870 P.2d 1272.

  Appellant had a right under the due process clause, to be given reasonable notice of the circuit court's intention to apply §706-660.1(a) (1985) in sentencing appellant in connection with kidnapping conviction and to be afforded the opportunity to be heard with respect thereto.  76 H. 517, 880 P.2d 192.

  Coercive conduct of a private person may be sufficient to render a confession inadmissible based on this section and article I, §10 of Hawai‘i constitution.  77 H. 51, 881 P.2d 538.

  Because appellants had been afforded an adequate opportunity to challenge the fine assessed by department of land utilization on appeal--at both administrative and judicial levels--before they incurred any obligation to pay it, the application of the procedural mechanism set forth in section of land use ordinance had not violated their right to due process of law.  77 H. 168, 883 P.2d 629.

  Supreme court declined to hold that State must tape record a custodial interrogation in order to establish a valid waiver of a criminal defendant's constitutional rights.  77 H. 403, 886 P.2d 740.

  Presumption of nonconsent imposed on appellant a burden of persuasion of the nonexistence of an essential element of the crime with which appellant was charged; so construed, the presumption would violate due process clauses of Fourteenth Amendment to U.S. Constitution and this section by virtue of improperly shifting burden of proof to appellant.  78 H. 262, 892 P.2d 455.

  To protect the right to testify under Hawai‘i constitution, trial courts must advise criminal defendants of their right to testify and must obtain on-the-record waiver of that right in every case in which the defendant does not testify.  79 H. 226, 900 P.2d 1293.

  Reversible error where jury may have reached verdict by improperly shifting burden of proof from prosecution to defense by concluding that defendant had not established defendant's claim of extreme mental or emotional distress before considering whether prosecution had disproved that defense beyond a reasonable doubt.  80 H. 172, 907 P.2d 758.

  Defendant received adequate notice that consecutive sentences may be imposed by sentencing court where court had that discretion by statute, and plain language of §706-668.5 informed defendant that defendant may be sentenced to consecutive sentences.  81 H. 309, 916 P.2d 1210.

  The right of an accused to a unanimous verdict in a criminal prosecution, tried before a jury in a court of this State, is guaranteed by this section and §14 of this article of the Hawaii constitution.  84 H. 1, 928 P.2d 843.

  When separate and distinct culpable acts are subsumed within a single count charging a sexual assault, the trial court must either (1) require the prosecution to elect the specific act upon which the prosecution is relying to establish the "conduct" element of the charged offense, or (2) give the jury a specific unanimity instruction.  84 H. 1, 928 P.2d 843.

  Section 704-415 does not violate due process principles; at release hearing, insanity acquittee bears burden of proving by preponderance of evidence freedom from mental illness and dangerous propensities.  84 H. 269, 933 P.2d 606.

  Where violation of misdemeanor offense under §712-1248(1)(d) also constituted violation of felony offense under §712-1247(1)(h), conviction of felony offense would have constituted violation of defendant's due process and equal protection rights.  86 H. 48, 947 P.2d 360.

  In products liability action, cumulative effect of three alleged errors by trial court did not deny defendants right to fair trial where overwhelming and substantial evidence supported jury's verdict.  86 H. 214, 948 P.2d 1055.

  Although appellant was not afforded an opportunity to cross-examine witnesses who had testified at a public hearing but not before the zoning board of appeals, error was harmless beyond a reasonable doubt.  87 H. 217, 953 P.2d 1315.

  Director's exposure to materials outside the record constitutionally harmless beyond a reasonable doubt as director expressly declined to consider material in rendering decision.  87 H. 217, 953 P.2d 1315.

  A trial court must pass on a defendant's attempted withdrawal of the prior waiver of his or her right to testify, tendered before the commencement of closing arguments, pursuant to the "liberal approach", whereas such an attempted withdrawal tendered thereafter is subject to the "manifest injustice" standard.  88 H. 407, 967 P.2d 239.

  Where defendant did not meet burden of establishing plausible and legitimate reasons for withdrawal of defendant's prior waiver of defendant's right to testify, defendant failed to present "fair and just reasons" for defendant's request to exercise defendant's right to testify in defendant's own behalf; thus trial court did not abuse discretion by ruling that it would not reopen case.  88 H. 407, 967 P.2d 239.

  Where trial court's denial of defendant's post-verdict motion for a new trial--based on defendant's claim that defendant's attempt to withdraw defendant's waiver of right to testify in defendant's own behalf should have been allowed--was not "manifestly unjust", no abuse of discretion.  88 H. 407, 967 P.2d 239.

  Where trial court failed to correct prosecution's erroneous interpretation of "remains unlawfully" under §708-810, defendant's constitutional rights to due process and a unanimous jury verdict violated.  89 H. 284, 972 P.2d 287.

  A vessel and its accompanying mooring and live-aboard permits are constitutionally protected "property", of which an individual may not be deprived without notice and an opportunity to be heard.  91 H. 1, 979 P.2d 586.

  Procedural due process violated where State informed boat owner by letter of impoundment and possible disposal of vessel, but made no mention of any procedures available for challenging that action, administrative or otherwise, and boat owner was never provided with an opportunity to be heard on matter of vessel's impoundment.  91 H. 1, 979 P.2d 586.

  Findings under §706-662(5) regarding (a) the age or handicapped status of the victim and (b) whether "such disability is known or reasonably should be known to the defendant" entail "intrinsic" facts; Hawaii constitution requires these findings to be made by the trier of fact, not the sentencing court.  91 H. 261, 982 P.2d 890.

  For purposes of this section, due process requires that an order for the nonemergency involuntary administration of antipsychotic medications to a criminal defendant must be based upon facts found by clear and convincing evidence.  91 H. 319, 984 P.2d 78.

  Three separate findings required by trial court before  criminal defendant may constitutionally be involuntarily medicated with antipsychotic drugs, where it is alleged that the medication is necessary because the defendant poses a danger to himself or herself or others.  91 H. 319, 984 P.2d 78.

  Out-of-state attorneys, who were granted pro hac vice status, not denied procedural due process prior to revocation of status and imposition of sanctions where three separate oral notices were given to one attorney and to local counsel.  91 H. 372, 984 P.2d 1198.

  Defendant's constitutional right to unanimous verdict not violated as §707-715 defines a single criminal offense; subsections (1) and (2) constitute alternative means of establishing the mens rea of the offense of terroristic threatening--either one giving rise to the same criminal culpability.  92 H. 577, 994 P.2d 509.

  Where evidence concerned only a single incident of culpable conduct, trial court was not required to read the jury a specific unanimity instruction; right to unanimous verdict thus not violated.  93 H. 199, 998 P.2d 479.

  In sex assault case, jury instruction as to ineffective consent prejudicially affected defendant's rights because (1) the jury was instructed that it could convict defendant based on the absence of consent under §702-233 or any of the four grounds of ineffective consent under §702-235, (2) there was a reasonable possibility that the verdict was based upon at least one of the four grounds of ineffective consent, and (3) there was legally insufficient evidence to support any of the four grounds of ineffective consent.  96 H. 161, 29 P.3d 351.

  Unanimity is not required where alternative means of establishing an element of an offense are submitted to the jury, provided that there is no reasonable possibility that the jury's verdict was based on an alternative unsupported by sufficient evidence.  96 H. 161, 29 P.3d 351.

  Juror questioning of witnesses did not deprive defendant of fair and impartial trial where questions posed by jurors were carefully reviewed by the trial court and questions tending to elicit improper or inadmissible evidence were excluded.  97 H. 206, 35 P.3d 233.

  As §846E-3 operated to deprive defendant of a protected liberty interest and provided defendant with neither notice nor an opportunity to be heard prior to notifying the public of defendant's status as a convicted sex offender, §846E-3 denied defendant due process under this section; §846E-3 thus void and unenforceable.  97 H. 285, 36 P.3d 1255.

  As the registration requirements of chapter 846E do not interfere with any of a sex offender's protected liberty interests, the protections of procedural due process are not triggered.  97 H. 285, 36 P.3d 1255.

  Defendant's right to a unanimous jury verdict not violated by trial court's refusal to give a specific unanimity instruction as defendant's actual and constructive possession of the methamphetamine comprised a continuing course of conduct.  99 H. 198, 53 P.3d 806.

  As an aspect of procedural due process, individuals must, as needed, be provided an interpreter at family court proceedings where their parental rights are substantially affected.  99 H. 522, 57 P.3d 447.

  Parents have a substantive liberty interest in the care, custody, and control of their children protected by the due process clause of this section.  99 H. 522, 57 P.3d 447.

  Where negativing of defendant's mitigating extreme mental or emotional distress defense by prosecution was a material element of the offense of first degree murder such that jury unanimity was a prerequisite to returning any verdict, and trial court's special instruction expressly directed the jury to convict defendant of manslaughter if a single juror believed that the prosecution had failed to negative the mitigating defense, right to unanimous jury verdict violated.  99 H. 542, 57 P.3d 467.

  Where family court conducted an in camera review of the complainant's child protection services records and produced the relevant portions to defense counsel, defendant's due process rights not violated; and family court's order to seal the remaining portions of the child protection services file for appellate review did not constitute an abuse of discretion.  101 H. 172, 65 P.3d 119.

  The alternative states of mind potentially requisite to the charged offense of second degree theft by shoplifting, as prescribed by the definition of "intent to defraud" set forth in §708-800, does not implicate a defendant's constitutional right to a unanimous jury verdict, as guaranteed by article I, §14 and this section of the Hawaii constitution; a proper elements instruction, which sets forth the alternative states of mind prescribed by the "intent to defraud" component of second degree theft by shoplifting, does not violate defendant's constitutional right.  101 H. 389, 69 P.3d 517.

  Lost opportunities for concurrent sentencing, parole, and loss of parental rights do not affect a defendant's ability to present an effective defense, and thus do not constitute actual substantial prejudice to a defendant's due process right to a fair trial.  102 H. 183, 74 P.3d 6.

  Where there was no evidence that the trial court either reviewed the reasons for the preindictment delay prior to requiring a showing of actual substantial prejudice to the defendant or required a showing of something less than actual substantial prejudice, the trial court did not misapply the correct standard to be used to determine whether charges should be dismissed for preindictment delay.  102 H. 183, 74 P.3d 6.

  Vexatious litigant's due process right not impacted in present or future cases where litigant was only restrained from bringing unmeritorious litigation, which could be restricted in any event; as trial court held a hearing to review litigant's objections to prefiling order, order imposed on litigant under §634J-7 satisfied procedural due process because it afforded litigant notice and an opportunity to be heard.  102 H. 289, 75 P.3d 1180.

  Section 663-15.5 adequately protects a non-settling joint tortfeasor's right to procedural due process; subsections (b) and (c) afford a non-settling joint tortfeasor notice and an opportunity to be heard regarding the determination whether a settlement has been given in good faith and, consequently, bars cross-claims for contribution against the settling joint tortfeasor.  102 H. 399, 77 P.3d 83.

  No prosecutorial misconduct by prosecutor's questions and remarks regarding defendant's failure to "explain away" the DNA evidence as questions and remarks were more analogous to legitimate prosecutorial comment on the state of the evidence and not the improper shifting of the burden of proof onto the defendant.  103 H. 38, 79 P.3d 131.

  Where defendant's statements were not the product of "interrogation", but, rather, were "volunteered confessions or admissions, obtained independent of express police questioning or its functional equivalent", defendant's constitutional rights against self-incrimination and due process of law not violated.  104 H. 224, 87 P.3d 893.

  The lifetime registration component of the Hawaii sex offender registration statute implicates a protected liberty interest under this section and requires that minimum requirements of due process--notice and opportunity to be heard--be afforded to convicted sex offenders; such a proceeding may be instituted by a sex offender in a special proceeding.  105 H. 222, 96 P.3d 242.

  Under this section, due process requires that a convicted sex offender under §846E-1 be afforded the right to a judicial hearing at which evidence may be offered to demonstrate that continuance of all or part of the lifetime registration requirements are not necessary in a particular case to fulfill the public need to which the sex offender act responded.  105 H. 222, 96 P.3d 242.

  Applying the covered loss deductible under §431:10C-301.5 to plaintiff's recovery of underinsured motorist benefits did not violate plaintiff's right to substantive due process as the legislature's policy determination to enact this section to reduce one of the costs of the motor vehicle insurance system was expressly within the constitutional purview of the legislature.  106 H. 511, 107 P.3d 440.

  Assuming that possession of leased premises and rent to be paid into the trust fund are property interests protected under the due process clause, §666-21 does not offend due process as tenants are afforded an opportunity to challenge summary possession and motions for the establishment of a rent trust fund.  107 H. 73, 110 P.3d 397.

  Right not violated by administrative driver's license revocation hearing procedure where defendant was afforded a hearing where witnesses were called and defendant was represented by counsel, and hearing office advised counsel of the procedure that hearing officer was going to follow.  108 H. 31, 116 P.3d 673.

  Where mother was denied an opportunity to be heard at a meaningful time and in a meaningful manner as to the termination of her parental rights--that is, without a trial concerning her substantive liberty interests in the care, custody, and control of her children--mother was deprived of the custody of her children without a fair hearing.  108 H. 144, 118 P.3d 54.

  Where effect of administrative driver's license revocation office's default decision was to deprive petitioner of driver's license, a constitutionally protected property interest, the risk of erroneous deprivation of this interest through the procedures the office used was great, and outweighed the government's interest, including the function of the office and the fiscal and administrative burdens that any additional or substitute procedural requirement would entail, procedural due process right denied.  110 H. 407, 133 P.3d 1199.

  As §207(c)(1)(A) of the Hawaiian Homes Commission Act does not provide a "statutory entitlement" to any entity which may be granted a license pursuant to it, plaintiff energy producer failed to establish that plaintiff's exclusive telecommunications service license issued under that section constituted "property" which would entitle plaintiff to due process protection.  110 H. 419, 134 P.3d 585.

  Where definition of "incapacitated person" in §560:5-101 (2003), when read as a whole, sufficiently apprised ward of the bases on which the court would review the guardianship petition and any ambiguity in the statute did not render it "substantially incomprehensible", so as to overcome the "presumption of constitutionality", definition was not unconstitutionally vague.  113 H. 236, 151 P.3d 717.

  Considerations of due process continue to require that the aggravating factors set forth in §291E-61(b) – all of which remain "attendant circumstances that are intrinsic to and 'enmeshed' in the hierarchy of offenses that §291E-61 as a whole describes" – be alleged in the charging instrument and proven beyond a reasonable doubt at trial.  114 H. 227, 160 P.3d 703.

  Landowner was not vested with a property interest--building a particular sized structure or building in a particular location--sufficient to implicate due process protection where landowner's deed related that the Kauai planning commission retained authority to amend the shoreline setback at the time of building permit review; landowner was nevertheless afforded due process by being given a full public hearing and the commission conducted a site inspection of the property before making its ruling.  115 H. 477, 168 P.3d 929.

  Defendant's right to have all elements of an offense proven beyond a reasonable doubt was statutorily protected under §701-114 and constitutionally protected under the Hawaii and federal constitutions; as only defendant personally could have waived such fundamental right and such right could not have been waived or stipulated to by defendant's counsel, stipulation by defendant's counsel of the fact that defendant committed defendant's crime within two years of a second or prior conviction of abuse for purposes of the §709-906(7) charge violated defendant's due process rights.  116 H. 3, 169 P.3d 955.

  County park camping ordinance and rule was unconstitutionally overbroad where rule stated that certain conduct, according to the definition of camping, constituted camping "regardless of the intent of the participants or the nature of any other activities in which they may also be engaging", thus subjecting "innocent, constitutionally protected behavior as well as conduct which may be validly regulated", to a criminal penalty.  116 H. 146, 172 P.3d 458.

  County park camping ordinance and rule was unconstitutionally vague where rule stated that a camping without a permit violation occurs where "it reasonably appears, in light of the circumstances, that the participants in conducting certain listed activities were in fact using the area as a living accommodation regardless of the intent of the participants or the nature of any activities in which they may also be engaging", as this standard was internally inconsistent and incomprehensible to a person of ordinary intelligence and vested virtually complete discretion to the police to determine whether a person had violated the regulation.  116 H. 146, 172 P.3d 458.

  A charging instrument, be it an indictment, complaint, or information, must include all "allegations, which if proved, would result in the application of a statute enhancing the penalty of the crime committed"; where the prosecution and the courts would be substantially prejudiced by the retroactive application of this new rule, it was accorded purely prospective application.  117 H. 381, 184 P.3d 133.

  A specific unanimity (jury) instruction is not required where (1) the offense is not defined in such a manner as to preclude it from being proved as a continuous offense and (2) the prosecution alleges, adduces evidence of, and argues that the defendant's action constituted a continuous course of conduct; thus, a specific unanimity instruction was not required where prosecution alleged a continuous course of conduct with respect to defendant's kidnapping charge under §707-720, but was required for defendant's attempted first degree sexual assault charge under §707-730.  121 H. 339, 219 P.3d 1126 (2009).

  Where jury was not given a specific unanimity instruction with respect to the first degree terroristic threatening offense under §707-716, was never informed which act committed by defendant coincided with the two terroristic threatening counts, and convicted defendant of one count and acquitted defendant of the other, there was a genuine possibility that different jurors concluded that defendant committed different acts; thus, to correct any potential confusion in the case, a specific unanimity jury instruction should have been given to insure that the jury understood its duty to unanimously agree to a particular set of facts.  121 H. 339, 219 P.3d 1126 (2009).

  Appeals court did not err in concluding that theft of state property by deception under §708-830(2) constituted a continuing offense where petitioner acted "under one general impulse" and had "but one intention and plan" to unlawfully procure public assistance from the government through a "series of acts" all directed towards the same overarching goal; thus, a specific unanimity instruction for the jury under the Hawaii constitution, article I, §14 and this section was unnecessary.  122 H. 271, 226 P.3d 441 (2010).

  Where prosecutor's comments that respondent had benefited from listening to all the other witnesses before testifying plainly conveyed to the jury that respondent's testimony therefore should be discredited were based solely on respondent's presence at trial, they were prohibited generic tailoring comments.  125 H. 271, 260 P.3d 350 (2011).

  The constitutional right to discipline is inherent in the right to care, custody, and control of one's children; due process requires the State provide meaningful standards to guide the application of its laws; the appropriate standard for family courts to apply in contested chapter 586 show cause hearings is whether the parent's discipline is reasonably related to the purpose of safeguarding or promoting the welfare of the minor; in applying such a standard, circumstances, including factors such as the nature of the misbehavior, the child's age and size, and nature and propriety of the force used, should also guide the courts in this State.  126 H. 294, 270 P.3d 1024 (2012).

  Defendant's right against self-incrimination under article I, §10 and right to due process under this section violated by police practice of inviting an arrestee to make a statement and to give his or her "side of the story" or similar entreaties in a "pre-interview" before Miranda warnings were given; under the circumstances of the case, where the Mirandized statement offered into evidence at trial resulted from the exploitation of this pre-interview practice, the subsequent Miranda warnings given did not remove the "taint" of the practice; trial court's conviction and sentence vacated. 126 H. 510, 273 P.3d 1196 (2012).

  Where record did not reflect that the jury was informed of the act that corresponded to each count, and the family court was required to provide the jury with a specific unanimity instruction, and its failure to do so constituted error, because the one-to-one relationship between counts and acts was made clear to the jury, and the jury found defendant guilty on nineteen counts for which nineteen exhibits were presented at trial, there was no genuine possibility that different jurors concluded that the defendant committed different acts; thus, error was harmless beyond a reasonable doubt.  127 H. 20, 276 P.3d 589 (2012).

  Court's ruling that evidence of defendant's juvenile proceedings could be admissible violated §571-84(h) and constituted reversible error, where ruling was a reason defendant decided not to testify, infringed on defendant's constitutional right to testify, and there was a reasonable possibility that the court's error might have contributed to defendant's conviction.  127 H. 432, 279 P.3d 1237 (2012).

  The Hawaii supreme court had appellate jurisdiction over, and petitioners had a due process right to a hearing and judicial review of the commission on water resource management's (CWRM) interim instream flow standards (IIFS) determination where: (1) the analysis that the CWRM had to undertake in setting IIFS was complex and involved significant and thorough analysis and factfinding, taking into consideration the factors specified in §174C-71(2)(D); and (2) the ramifications of an erroneous IIFS could offend the public trust, and was too important to deprive the parties of due process and judicial review.  128 H. 228, 287 P.3d 129 (2012).

  Intermediate court of appeals erred in concluding that petitioner waived petitioner's due process claim relating to the Hawaii paroling authority's (HPA) nondisclosure of adverse materials in petitioner's HPA file, where petitioner would not have any opportunity to raise the issue of HPA's nondisclosure of evidence in any other proceeding if petitioner was not aware of the existence of letters sent between victim's aunt and HPA prior to second hearing until they were filed with respondent State's response to petitioner's petition for post-conviction relief.  129 H. 429, 302 P.3d 697 (2013).

  Advisement by the family court did not adequately ascertain whether petitioner understood petitioner's constitutional right to testify or not to testify, as required by the Hawaii supreme court in Tachibana v. State.  Moreover, petitioner's need for an interpreter during the trial was a "salient fact" heightening the necessity for the court to insure that petitioner understood the rights petitioner waived.  Accordingly, the court did not obtain a valid on-the-record waiver of petitioner's right to testify.  130 H. 83, 306 P.3d 128 (2013).

  Circuit court's failure to give a specific unanimity instruction that the jury was required to agree unanimously as to the person against whom defendant used force constituted plain error and there was at least a reasonable possibility that the circuit court's error contributed to defendant's conviction; thus, the error was not harmless beyond a reasonable doubt.  131 H. 19, 313 P.2d 708 (2013).

  Plaintiffs were denied the most "elementary and fundamental requirement of due process", notice of the charges against them and an opportunity to voice their objections in a meaningful time and manner before governmental deprivation of a significant liberty interest.  Thus, the circuit court clearly erred by finding, among other things, that plaintiffs were generally provided with notice through the union.  The circuit court also erred in concluding that plaintiffs received adequate notice for purposes of due process and a meaningful process to challenge the complaints against them.  131 H. 167, 317 P.3d 1 (2013).

  The adverse effect of the city's ban on plaintiffs' future employment opportunities was so prevalent and comprehensive that it implicated a liberty interest under this section.  131 H. 167, 317 P.3d 1 (2013).

  Indigent parents are guaranteed the right to court-appointed counsel in termination proceedings under the due process clause of this section.  Trial courts must appoint counsel for indigent parents upon the granting of a petition to the department of human services for temporary foster custody of their children.  131 H. 419, 319 P.3d 338 (2014).

  Circuit court plainly erred in precluding defense expert's testimony with regard to the probable effects of cocaine on the victim at the time of the shooting; the exclusion of the expert's cocaine testimony compromised petitioner's ability to present a complete defense.  131 H. 463, 319 P.3d 382 (2014).

  To prevent future misunderstandings over the significance and effect of the planning director's statements and correspondence, it would be beneficial for the planning director to clearly indicate when an appealable decision has been made and how an interested person may challenge the decision.  131 H. 513, 319 P.3d 432 (2014).

  Where the district court's ultimate Tachibana colloquy was defective because it incompletely advised defendant of defendant's right to testify and because it did not establish that defendant understood defendant's rights, the district court did not obtain an on-the-record waiver of the right to testify from defendant; defendant demonstrated a constitutional violation of defendant's right to testify, which could not be considered harmless.  132 H. 85, 319 P.3d 1093 (2014).

  Where the defendant presented extensive evidence, called four expert witnesses, submitted two scientific studies, and presented multiple lay witnesses, the defendant was not deprived of due process because the defendant had a meaningful opportunity to present arguments and evidence at the contested case hearing.  132 H. 247, 320 P.3d 912 (2014).

  Deprivation of property solely on basis of substituted service in adverse possession action violates due process, where, with due diligence, actual notice possible.  6 H. App. 241, 718 P.2d 1109.

  Does not require agency hearing before tax director issues notices of tax assessment.  6 H. App. 260, 718 P.2d 1122.

  In paternity action, due process not violated by exclusion of sexual access information and preclusion of cross-examination of mother regarding her earlier pregnancy.  6 H. App. 629, 736 P.2d 448.

  Act of state witness leaving witness stand in presence of security personnel was not so prejudicial as to deny defendant's right to fair trial; jury is presumed to adhere to court's cautionary instruction to draw no inference from event.  8 H. App. 624, 817 P.2d 130.

  Violated where court imposed attorney sanctions pursuant to its powers under §603-21.9 without adequate prior notice and reasonable opportunity to be heard.  9 H. App. 249, 833 P.2d 85.

  Because the constitutional right of allocution is one afforded "pre-sentence", manifestly, the defendant must be given the opportunity to be heard before the court imposes sentence; defendant had right of allocution before being sentenced for misdemeanor offense of driving with revoked license and for violation charge of illegal turn.  77 H. 241 (App.), 883 P.2d 663.

  Defendant's constitutional and statutory right to testify in defendant's own defense was violated where judge reproached defendant to follow defendant's attorney's advice and thus refrain from testifying, and the violation was plain error; denial of the right to testify was prejudicial and not harmless beyond a reasonable doubt.  78 H. 115 (App.), 890 P.2d 702.

  Defendant's right to an impartial judge was violated where nature and extent of the court's questioning of one of the complainants demonstrated that the court assumed the role of a prosecutor, thus failing to act impartially.  When the court assumes the role of a prosecutor, it violates the fundamental due process requirement that the tribunal be impartial, and such an error, by definition, is inherently prejudicial and not harmless.  78 H. 115 (App.), 890 P.2d 702.

  Motions court's order denying defendant's pre-trial motion to dismiss for pre-indictment delay affirmed, where, inter alia, motions court was correct in concluding that defendant failed to establish that defendant's claimed inability to recollect events prior to defendant's indictment, even with the aid of others, amounted to substantial prejudice to defendant's right to a fair trial.  79 H. 165 (App.), 880 P.2d 217.

  Violated where trial court's exclusion of gun-like cigarette lighter prejudiced defendant by precluding jury from properly evaluating essential defense evidence.  79 H. 385 (App.), 903 P.2d 690.

  Violated where petitioner whose driver's license was administratively revoked denied right to cross-examine director's representative regarding basis for continuance of administrative hearing.  80 H. 358 (App.), 910 P.2d 129.

  Defendant entitled to elicit evidence of complainant's past sexual behavior, not to attack complainant's character, but to determine whether complainant was mentally defective and whether defendant knew that complainant was mentally defective.  81 H. 447 (App.), 918 P.2d 254.

  Where discussion that defendant was subject to mandatory minimum terms of imprisonment pursuant to §706-660.1 was conducted at bench outside of defendant's hearing, defendant was not given reasonable notice of intended application of mandatory minimum term statute.  82 H. 158 (App.), 920 P.2d 372.

  Section 291C-112, which prohibits the use of a vehicle "for purposes of human habitation", not unconstitutionally vague.  82 H. 269 (App.), 921 P.2d 1170.

  "Reasonable grounds" standard of §709-906(4) not unconstitutionally vague where standard is an objective standard requiring a trial court to independently assess facts and circumstances which responding officers had before them in determining to issue warning citations.  82 H. 381 (App.), 922 P.2d 994.

  Section 709-906(4) not overbroad as issuance of warning citation must be based on objective facts and circumstances, other than merely a complainant's claim, which would lead a reasonable police officer to believe recent physical abuse was inflicted on family or household member.  82 H. 381 (App.), 922 P.2d 994.

  Violated where claimant failed to serve employer and insurer with motion and summons; circuit court thus did not acquire personal jurisdiction over employer and insurer and judgment and garnishee summons issued pursuant to §386-91 in absence of personal jurisdiction void.  82 H. 405 (App.), 922 P.2d 1018.

  Procedural due process right not denied when guardian ad litem not appointed for mother where mother was provided with court-appointed attorney and, pursuant to §587-34(d), court determined mother was capable of comprehending legal significance of issues.  85 H. 119 (App.), 938 P.2d 178.

  Application of preponderance of the evidence standard as appropriate judicial basis for issuance of protective order under §586-5.5 does not violate right.  85 H. 197 (App.), 940 P.2d 404.

  Where building addition was permitted structure under zoning ordinance in existence at time subsequent land use ordinance was adopted, requiring landowner to remove addition and pay daily fines until addition was removed constituted interference with landowner's vested property rights under this clause.  86 H. 343 (App.), 949 P.2d 183.

  Right violated where circuit court's instruction to jury regarding the statutory presumption created by §708-801(4) failed to further instruct jury pursuant to HRE rule 306(a) that the presumption is merely a permissible inference of fact and that in order to apply the presumption, the jury must find that the presumed fact exists beyond a reasonable doubt.  88 H. 216 (App.), 965 P.2d 149.

  As no Hawaii statute governing parole requires a parolee's parole to be automatically revoked upon the parolee's conviction and sentence to imprisonment for a crime committed while on parole, and §353-62 appears to vest Hawaii paroling authority with discretion to revoke parole, parolee's right violated when authority summarily revoked parole without giving parolee a final revocation hearing.  88 H. 229 (App.), 965 P.2d 162.

  Section 852-1 not void for vagueness as:  (1) a person of ordinary intelligence would have a reasonable opportunity to know that it is unlawful to refuse or wilfully fail to move as directed by an officer; (2) person may then choose between the lawful and unlawful conduct; and (3) the statute provides sufficiently explicit standards for those who apply it.  89 H. 27 (App.), 968 P.2d 194.

  Under the due process clause of the Hawaii constitution, entrapment by estoppel defense may be raised against the State in criminal cases and clause would be violated if the facts established the defense.  89 H. 27 (App.), 968 P.2d 194.

  Section 52D-8 provides officers with a constitutionally protected property interest--the right to legal representation for acting within the scope of their duty; due process thus entitles an officer to a contested case hearing under chapter 91 before the officer can be deprived of this interest.  89 H. 221 (App.), 971 P.2d 310.

  Right violated where jury instruction failed to correctly  convey proof beyond a reasonable doubt standard to jury; instruction that jury must be "firmly convinced" of defendant's guilt diminished this very high standard by which jury must abide in order to convict.  90 H. 113 (App.), 976 P.2d 427.

  Right violated by trial court entering free-standing restitution order where no notice was provided to defendant that defendant's original sentence might be modified at the hearing on the probation officer's motion to revoke restitution.  92 H. 36 (App.), 986 P.2d 987.

  Where trial court did not apply clear and convincing standard of proof on complainant as required by §604-10.5, applied a subjective rather than objective reasonable person standard in evaluating whether defendant's conduct caused complainant emotional distress, and violated defendant's due process rights, court erred by denying defendant's motion for reconsideration of injunction order.  92 H. 330 (App.), 991 P.2d 840.

  Where there was a distinct and reasonable possibility that trial court's error in commenting upon the location of the incriminating items contributed to the conviction of the defendants, error materially impinged upon defendants' right to trial by jury, and error was not harmless beyond a reasonable doubt.  92 H. 675 (App.), 994 P.2d 607.

  The conditions for eligibility for parole under the Hawaii sex offender treatment program, which includes admitting to committing a sexual offense, implicate a protected liberty interest under this section; this section of the Hawaii constitution provides an independent basis for the due process right to a sex offender classification hearing before such requirements may be imposed.  93 H. 298 (App.), 1 P.3d 768.

  Where there was no genuine possibility that the jurors were not unanimous as to the conduct for which defendant was found culpable, trial court's failure to give specific unanimity instruction as to the methamphetamine manufacturing offense did not violate defendant's substantial due process right to a unanimous jury verdict.  95 H. 365 (App.), 22 P.3d 1012.

  Section 711-1102 not unconstitutionally vague under this section as its language is specific and clear, it is narrowly tailored to a person's failure to disperse pursuant to a law enforcement order to leave the immediate vicinity of disorderly conduct, and citizens of this State should thus have no difficulty in understanding §711-1102.  101 H. 153 (App.), 64 P.3d 282.

  Defendant's right violated where, based on the specific facts of the case, trial court abused its discretion in directing, over defendant's objection, that defendant testify before defendant's other defense witness; error not harmless beyond a reasonable doubt as there was a reasonable possibility that trial court's error contributed to defendant's conviction.  102 H. 369 (App.), 76 P.3d 612.

  Having been previously convicted of driving without motor vehicle insurance, driver was clearly on notice that driving without motor vehicle insurance was a criminal offense; thus, revocation of driver's suspended sentence for commission of the same offense during the period of suspension did not implicate driver's due process rights.  106 H. 391 (App.), 105 P.3d 1197.

  Where father was not appointed counsel until sixteen days prior to the permanent custody trial of father's two biological sons, applying the case-by-case balancing test of Lassiter--(1) the private interests at stake, (2) the government's interest, and (3) the risk that the failure to appoint counsel will lead to an erroneous decision--father was deprived of father's due process right.  119 H. 28 (App.), 193 P.3d 1228.

  Defendant's right to due process not violated where the record in the case did not indicate that juror was incompetent, unable to understand the proceedings, and unable to participate in deliberations.  120 H. 94 (App.), 201 P.3d 607.

  If a family court determines that an emergency situation requires an immediate change of custody, then an ex parte order changing custody must include notice of: (1) a post-deprivation hearing, promptly set; and (2) the grounds for this extraordinary measure; a parent deprived of custody in this manner must be given a prompt and meaningful opportunity to address the allegations supporting the immediate change in custody.  120 H. 149 (App.), 202 P.3d 610.

  Under the Hawaii constitution, absent express findings of exigent or emergency circumstances, due process requires that a parent be given notice and an opportunity to be heard prior to a change in primary physical or legal custody in family court custody matters; absent evidence that harm is likely to result from the delay necessary to set a hearing, no parent involved in a custody dispute should have his or her child removed by police, without notice of the grounds for removal and an opportunity to be heard on the charges.  120 H. 149 (App.), 202 P.3d 610.

  Where mother had a fundamental liberty interest in her right of care, custody, and control of child, and under the Fourteenth Amendment of the U.S. Constitution and this section, the State could not deprive mother of this interest without providing a fair procedure for deprivation, family court's ex parte order awarding father sole custody of child deprived mother of custody of child without the constitutionally required procedural protections.  120 H. 149 (App.), 202 P.3d 610.

  Where effect of the default sanction was to divest mother of mother's parental rights--mother's fundamental liberty interest in the care, custody, and control of her child--without affording mother the opportunity to contest the department of human services' permanent custody motion on the merits, family court abused its discretion in imposing the harsh and drastic sanction of default against mother based upon mother's single non-appearance; record did not show wilful or contemptuous behavior on mother's part or that the court considered the availability of less drastic sanctions.  124 H. 468 (App.), 248 P.3d 234 (2011).

  Chapter 586 is not unconstitutional, as the right of parents to discipline their children is not unlimited; as parents do not possess a fundamental right to inflict force or harm upon a child that the legislature has deemed to be excessive and harmful to the child's welfare, a rational basis review applied to that chapter; under that review, ex parte TROs under chapter 586 were rationally related to the legitimate state interest in protecting minors from physical and psychological harm.  125 H. 330 (App.), 260 P.3d 1148 (2011).

  The process for obtaining an ex parte temporary restraining order under chapter 586 did not fall short of the constitutional requirements of procedural due process where the strength of the State's and petitioner's interests, the "emergency nature of the decision", and the "practical difficulties inherent in convening an immediate evidentiary hearing" mitigated against requiring further procedural protections.  125 H. 330 (App.), 260 P.3d 1148 (2011).

  Defendant's right to due process not violated where defendant's waiver of defendant's right to a termination hearing from the drug court program (program) was voluntarily and intelligently undertaken under the totality of the circumstances.  Defendant was advised at three different hearings about the legal rights defendant would give up and the consequences of self-termination from the program, signed an admission agreement acknowledging that defendant understood what would happen upon termination from the program, and was warned repeatedly by the trial court regarding the consequences of termination from the program.  129 H. 135 (App.), 295 P.3d 1005 (2013).

 

Equal protection.

  See also notes to U.S. Const. Amend 14.

  Ordinance creating mechanism through which condominium owners could convert their leasehold interests into fee simple interests was constitutional.  124 F.3d 1150.

  Applicable only to state action not private action.  698 F. Supp. 1496.

  Not violated where city ordinance providing mechanism for transfer of fee simple interest from condominium lessors to lessees did not intentionally discriminate against Native Hawaiians.  802 F. Supp. 326.

  Condominium lease-to-fee ordinance did not violate plaintiff's equal protection rights.  832 F. Supp. 1404.

  No violation, where plaintiff argued that §490:2-725 discriminated among two classes of warranty claimants, and appeared to argue that UCC arbitrarily discriminated among differing classes of defendants, insofar as it granted partial immunity to those in commercial sales without similarly limiting the liability of others potentially liable for industrial diseases.  854 F. Supp. 702.

  Inmates' motion for preliminary injunction regarding inmates' prayer objects denied, where inmates argued that the deprivation of the prayer objects violated inmates' rights to equal protection under the U.S. and state Constitutions.  One inmate failed to exhaust available administrative remedies as to the destruction of the prayer object, and even if the inmate had exhausted administrative remedies, the inmate had not established that the inmate was likely to suffer irreparable harm in the absence of a preliminary injunction.  The other inmate, among other things, did not establish that the correctional center treated inmates who practiced the Native Hawaiian religion less favorably than it treated inmates of other religions, and was unlikely to prevail on the equal protection claims.  903 F. Supp. 2d 975 (2012).

  Where plaintiffs filed motion for preliminary injunction regarding Act 359 of 1993 Hawaii legislature (relating to Hawaiian sovereignty), as amended in 1994 and 1996, plaintiffs not likely to prevail on constitutional claims under Fourteenth and Fifteenth Amendments of U.S. Constitution, article II, §1 and this section of Hawaii constitution, or Voting Rights Act with regards to native Hawaiian vote.  941 F. Supp. 1529.

  In view of underlying differences between cars and motorcycles, §286-81(1)(A), requiring motorcycle safety helmets, does not violate the equal protection clause.  55 H. 138, 516 P.2d 709.

  Requirement that a woman visitor to an all-male prison wear a brassiere is not invalid.  59 H. 346, 581 P.2d 1164.

  The protection of this section is not necessarily limited to that provided by the Fourteenth Amendment.  60 H. 71, 588 P.2d 394.

  Constitutionality of statute regulating taking of nehu upheld.  60 H. 662, 594 P.2d 130.

  In context of equal protection analysis, right to work does not invoke application of strict scrutiny.  60 H. 662, 594 P.2d 130.

  Rational basis exists for compulsory retirement age for state employees.  63 H. 501, 630 P.2d 629.

  No rational basis for disparate treatment of classes in establishing statute of limitations.  65 H. 26, 647 P.2d 276.

  Certain provisions of motor vehicle insurance law denied equal protection.  65 H. 623, 656 P.2d 736.

  Right to privacy does not invoke strict scrutiny; rational basis for county to require financial disclosure by "regulatory employees".  68 H. 140, 706 P.2d 814.

  Public policy against racial discrimination.  69 H. 238, 738 P.2d 1205.

  Sex is suspect category for purposes of equal protection analysis under this section; §572-1 is presumed to be unconstitutional unless defendant, as agent of State, can show that statute's sex-based classification is justified by compelling state interests, and statute is narrowly drawn to avoid unnecessary abridgments of applicant couples' constitutional rights.  74 H. 530, 852 P.2d 44.

  Where county imposed impermissibly discriminatory tax, county must be given certain options to correct the impermissible discrimination.  81 H. 248, 915 P.2d 1349.

  Section 704-415 does not violate equal protection; State may place burden on insanity acquittee to prove by preponderance of evidence that acquitee should be released.  84 H. 269, 933 P.2d 606.

  Not violated by trial court's redaction of home street addresses and home and work telephone numbers on juror qualification forms where redaction procedure was not administered differently against other similarly situated criminal defendants having jury trials in the first circuit.  85 H. 258, 942 P.2d 522.

  Where violation of misdemeanor offense under §712-1248(1)(d) also constituted violation of felony offense under §712-1247(1)(h), conviction of felony offense would have constituted violation of defendant's due process and equal protection rights.  86 H. 48, 947 P.2d 360.

  Not violated by §431:10C-306 (pre-1997) as applied to persons ineligible for no-fault benefits.  87 H. 297, 955 P.2d 90.

  As chapter 671 rationally furthers legitimate state interest of assuring the provision of affordable health care to Hawaii's citizens by requiring  participation in medical malpractice dispute resolution such that the high cost of  litigation may be avoided, plaintiff not denied equal protection of the laws.  89 H. 188, 970 P.2d 496.

  Not violated by county ordinance classifying time share units into "hotel resort" category where classification was reasonably related to ordinance's stated purpose of eliminating disproportionate tax burdens within that category and classification applied to properties whose actual use was transient or short-term, regardless of whether the units were used personally. 90 H. 334, 978 P.2d 772.

  Clause not violated by §709-906 as State has a legitimate interest in protecting the health, safety, and welfare of its citizens, enactment of §709-906 to address family violence within the community is "legitimate" in protecting Hawaii's citizens, and as including family and household members within scope of §709-906 may reduce or deter family violence by imposing upon violators greater criminal punishment than criminal assault, it is rationally related to the State's interest in preventing incidents of family violence.  93 H. 63, 996 P.2d 268.

  Search warrant did not violate appellant's rights under the U.S. and Hawaii Constitutions although it was not issued against any other bettors; to raise the selective prosecution defense, appellant needed to present sufficient evidence as to why appellant was prosecuted while the other seven bettors were not; reason provided by appellant that detective arbitrarily "classified" appellant as part of a conspiracy did not explain why only appellant was subject to the search warrant nor did it distinguish appellant from other bettors.  104 H. 323, 89 P.3d 823.

  As the imposition of a rent trust fund--requiring tenants to pay rent in exchange for possession for the duration of the dispute--appears rationally related to achieving the purpose of providing landlords with an expeditious alternative to eviction proceedings and tenants with an opportunity to maintain possession so long as rent is paid when properly due, §666-21 does not violate this clause.  107 H. 73, 110 P.3d 397.

  Chapter 584 did not implicate father's fundamental privacy right to procreational autonomy, but rather father's economic interest in not supporting his child, and although father had standing to raise an equal protection challenge to chapter 584, that standing was based on a non-suspect classification, i.e., the biological relationship of fathers to their children; thus, because chapter 584 bears a rational relation to the public welfare, the statute survives rational basis review and father's privacy and equal protection arguments failed.  109 H. 240, 125 P.3d 461.

  Where §46-72 (2006) created a class of tort claimants, injured by the conduct of a county, who were subject to a six-month statute of limitations period for filing their complaint, and victims of injuries caused by the State under §662-4 had a two-year limitation period, and there was no rational basis to support such disparate treatment, §46-72 (2006) was unconstitutional under this section.  115 H. 1, 165 P.3d 247.

  Where insurance commissioner imposed a substantial portion of the administrative cost of operating the insurance division and its supporting offices and divisions upon insurers pursuant to §431:2-215, and the insurance division's regulatory costs were necessitated by the business of insurers, §431:2-215 did not violate this section or the Fourteenth Amendment of the U.S. Constitution.  120 H. 51, 201 P.3d 564.

 

 

  Petitioner's right not violated as nothing in chapter 103F prohibited judicial review; judicial review was available by way of a declaratory action under §632-1.  127 H. 76, 276 P.3d 645 (2012).

  State's exercise of prosecutorial discretion in the case was not constitutionally infirm where defendant failed to meet the burden of demonstrating that defendant was prosecuted based on an arbitrary classification; defendant was prosecuted under §§707-730 and 707-732 based on allegations that defendant was significantly older than child #1, had initiated the prohibited sexual activities with child #1 and child #2, and had engaged in multiple instances of prohibited sexual contact with more than one child.  121 H. 92 (App.), 214 P.3d 1082 (2009).

  No procedural due process violation where prisoner was placed and retained in administrative segregation.  7 H. App. 502, 753 P.2d 816.

  Not violated by §291C-112, which rationally furthers legitimate state interest in protecting health and welfare of public at large by prohibiting use of vehicles parked on public property as places of habitation during certain hours.  82 H. 269 (App.), 921 P.2d 1170.

  Not violated by use of preponderance of evidence standard of proof for §586-5.5 as family and household members not suspect class and rational basis underlying this standard adopted by legislature under chapter 571 for chapter 586 was to facilitate and expedite judicial issuance of protective orders.  85 H. 197 (App.), 940 P.2d 404.

  As a suspect classification or fundamental right was not involved, and based upon dissimilar statutory treatment generally accorded to possession of marijuana as opposed to alcohol, where there was a rational basis for dissimilar punishment, §710-1022 did not violate defendant's right because it imposed a more severe penalty for a prisoner's marijuana possession than for alcohol possession under §710-1023.  92 H. 217 (App.), 990 P.2d 115.

  1998 Amended Child Support Guidelines classification challenged by father was constitutional as it reasonably calculated the child support payable for child without regard to child support owed by the non-custodial parent to other children, whether by a previous court order or a non-adjudicated legal obligation, and reasonably imposed upon the non-custodial parent the burden of proving that exceptional circumstances warrant deviation from the calculated amount.  104 H. 449 (App.), 91 P.3d 1092.

  Amounts assessed by the state insurance division against insurers for payment into the insurance regulation fund under §431:2-215 did not violate this section where the regulatory fees were rationally related to the statutory objective of defraying any administrative costs and costs incurred by supporting offices and divisions.  117 H. 454 (App.), 184 P.3d 769.

  State's exercise of prosecutorial discretion in the case was not constitutionally infirm where defendant failed to meet the burden of demonstrating that defendant was prosecuted based on an arbitrary classification; defendant was prosecuted under §§707-730 and 707-732 based on allegations that defendant was significantly older than child #1, had initiated the prohibited sexual activities with child #1 and child #2, and had engaged in multiple instances of prohibited sexual contact with more than one child.  121 H. 92 (App.), 214 P.3d 1082 (2009).

 

 

RIGHT TO PRIVACY

 

     Section 6.  The right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest.  The legislature shall take affirmative steps to implement this right. [Add Const Con 1978 and election Nov 7, 1978]

 

Attorney General Opinions

 

  Bargained for random drug testing program for public school teachers with appropriate procedural protections is constitutional and would not violate either the federal or state Constitution.  If a court were to find such a program to violate either the federal or state Constitution, the doctrine of qualified immunity would bar personal liability for any state official; if a court were to impose personal liability, based upon past history and practice, the legislature would fund payment of the claims.  Att. Gen. Op. 08-1.

 

Law Journals and Reviews

 

  State v. Kam:  The Constitutional Status of Obscenity in Hawaii.  11 UH L. Rev. 253.

  State v. Rothman:  Expanding the Individual's Right to Privacy Under the Hawaii Constitution.  13 UH L. Rev. 619.

  Employee Rights Under Judicial Scrutiny:  Prevalent Policy Discourse and the Hawai‘i Supreme Court.  14 UH L. Rev. 189.

  The Lum Court and the First Amendment.  14 UH L. Rev. 395.

  For Better or for Worse, in Sickness and in Health, Until Death Do Us Part:  A Look at Same Sex Marriage in Hawaii.  16 UH L. Rev. 447.

  Vernonia Sch. Dist. v. Acton:  Now Children Must Shed Their Constitutional Rights at the Schoolhouse Gate.  18 UH L. Rev. 869.

  Should The Right To Die Be Protected?  Physician Assisted Suicide And Its Potential Effect On Hawai‘i.  19 UH L. Rev. 783.

  When Children Prey on Children:  A Look at Hawai‘i's Version of Megan's Law and its Application to Juvenile Sex Offenders.  20 UH L. Rev. 477.

  Privacy Outside of the Penumbra:  A Discussion of Hawai‘i's Right to Privacy After State v. Mallan.  21 UH L. Rev. 273.

  Emergency Contraception in Religious Hospitals:  The Struggle Between Religious Freedom and Personal Autonomy.  27 UH L. Rev. 65.

  Your Body, Your Choice:  How Mandatory Advance Health-Care Directives Are Necessary to Protect Your Fundamental Right to Accept or Refuse Medical Treatment.  27 UH L. Rev. 201.

  Don't Smile, Your Image Has Just Been Recorded on a Camera-Phone:  The Need For Privacy in the Public Sphere.  27 UH L. Rev. 377.

  Reconsidering Hawai‘i's HIV Statute:  The Need to Protect an Individual's Basic Liberties.  28 UH L. Rev. 169.

  Physician Assisted Suicide:  Expanding the Laboratory to the State of Hawai‘i.  29 UH L. Rev. 269.

  Prostitution:  Protected in Paradise?  30 UH L. Rev. 193.

  The Privacy Rights of Public School Students.  32 UH L. Rev. 305 (2010).

  Hawai‘i's Right to Privacy.  33 UH L. Rev. 669 (2011).

  Baehr v. Lewin and the Long Road to Marriage Equality.  33 UH L. Rev. 705 (2011).

  Homeless Property Rights:  An Analysis of Homelessness, Honolulu's "Sidewalk Law," and Whether Real Property is a Condition Precedent to the Full Enjoyment of Rights under the U.S. Constitution.  35 UH L. Rev. 197 (2013).

  2013 Law and Administrative Rules Governing Appeal Procedures of Hawaii's Office of Information Practices.  36 UH L. Rev. 271 (2014).

 

Case Notes

 

  Parents' right to give their child any name they wish.  466 F. Supp. 714.

  Count alleging violations of the state constitution failed to state a claim in a 42 U.S.C. §1983 civil rights lawsuit brought by a former state prisoner and other allegedly similarly-situated plaintiffs primarily seeking damages for "over detention".  678 F. Supp. 2d 1061 (2010).

  Right of privacy does not encompass sex for a fee in a private apartment.  66 H. 616, 671 P.2d 1351.

  Public officials' expectation of financial privacy qualified by constitution's code of ethics.  68 H. 140, 706 P.2d 814.

  A person has a right to read or view pornographic material in the privacy of one's own home, along with this right is the right to purchase such materials for personal use; section affords much greater privacy right than federal right to privacy; State must show a compelling state interest to infringe upon the right of privacy.  69 H. 483, 748 P.2d 372.

  A person using a private telephone line has a reasonable expectation of privacy; pen register warrant required the signature of a circuit court judge.  70 H. 546, 779 P.2d 1.

  Not violated by police drug testing program.  71 H. 568, 799 P.2d 953.

  There is no fundamental right to marriage for same-sex couples under this section.  74 H. 530, 852 P.2d 44.

  Information that must be disclosed pursuant to §92F-14(b)(4)(B) regarding a public employee's employment-related misconduct and resulting discipline not "highly personal and intimate information" and thus not within scope of Hawaii's constitutional right to privacy.  83 H. 378, 927 P.2d 386.

  Purported right to possess and use marijuana not a fundamental right; where defendant failed to prove §712-1249 lacked any rational basis, section constitutional.  86 H. 440, 950 P.2d 178.

  Right to privacy in this section does not encompass right to possess and use marijuana for recreational purposes.  86 H. 440, 950 P.2d 178.

  The right to privacy under this section does not encompass the right to view adult material in an enclosed booth within a commercial establishment.  107 H. 314, 113 P.3d 190.

  Chapter 584 did not implicate father's fundamental privacy right to procreational autonomy, but rather father's economic interest in not supporting his child, and although father had standing to raise an equal protection challenge to chapter 584, that standing was based on a non-suspect classification, i.e., the biological relationship of fathers to their children; thus, because chapter 584 bears a rational relation to the public welfare, the statute survives rational basis review and father's privacy and equal protection arguments failed.  109 H. 240, 125 P.3d 461.

  Petitioners' health information was "highly personal and intimate" information that was protected by the informational privacy prong of this section; this section protected petitioners' health information produced in discovery from disclosure outside of the underlying litigation.  113 H. 424, 153 P.3d 1109.

  In prostitution case, application of §712-1200 (2006) to defendant was not unconstitutional.  114 H. 1, 155 P.3d 1102.

  Where petitioner was not a party to plaintiff's dog bite lawsuit against defendant, petitioner's health information in petitioner's medical records at hospital was protected under this section and under the physician-patient privilege of HRE rule 504.  125 H. 31, 251 P.3d 594 (2011).

  The respondent judge erred in requiring the petitioner to sign a stipulated qualified protective order (SQPO) because the contested provisions of the SQPO allowed the petitioner's health information to be used for purposes outside the underlying litigation without any showing of a compelling state interest.  132 H. 408, 322 P.3d 948 (2014).

  The respondent judge's order requiring the petitioner to sign an authorization that would allow the disclosure of the petitioner's health information outside of the underlying litigation without the petitioner's consent was a violation of the petitioner's constitutional right to informational privacy.  132 H. 408, 322 P.3d 948 (2014).

  Not violated by firefighters drug testing program.  8 H. App. 571, 816 P.2d 306.

  Section 711-1102 does not violate the right to privacy under this section as it is not a "sweeping infringement on the freedom of movement and privacy"; to prevent the substantial harm or serious inconvenience, annoyance or alarm to the public, it is reasonably necessary for law enforcement to order those participating in the disorderly conduct and those in the immediate vicinity to disperse until the disorderly conduct comes to an end.  101 H. 153 (App.), 64 P.3d 282.

  Sections 707-730(1)(b) and 707-732(1)(b), as applied to private consensual acts between two persons, including minors, did not violate minor's right to privacy as the State has at least a significant interest in regulating the sexual activities of children under the age of fourteen; in addition, there is no fundamental personal privacy right for minors under the age of fourteen to engage in sexual activities with other children under the age of fourteen; this applies to young boys, as well as to young girls, and is not strictly dependent on an age differential between the children.  121 H. 92 (App.), 214 P.3d 1082 (2009).

 

 

SEARCHES, SEIZURES AND INVASION OF PRIVACY

 

     Section 7.  The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches, seizures and invasions of privacy shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized or the communications sought to be intercepted. [Am Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978]

 

Law Journals and Reviews

 

  Suppression of Evidence Without the Aid of the Fourth, Fifth and Sixth Amendments.  8 HBJ 109.

  State v. Sherlock:  Police Use of a Controlled Purchase of Contraband to Corroborate an Informant's Tip.  12 UH L. Rev. 237.

  State v. Rothman:  Expanding the Individual's Right to Privacy Under the Hawaii Constitution.  13 UH L. Rev. 619.

  Employee Rights Under Judicial Scrutiny:  Prevalent Policy Discourse and the Hawai‘i Supreme Court.  14 UH L. Rev. 189.

  State v. Quino:  The Hawai‘i Supreme Court Pulls Out All the "Stops".  15 UH L. Rev. 289.

  Criminal Procedure Rights Under the Hawaii Constitution Since 1992.  18 UH L. Rev. 683.

  Wyoming v. Houghton:  The Bright Line Search Includes Passengers' Belongings.  22 UH L. Rev. 645.

  Don't Smile, Your Image Has Just Been Recorded on a Camera-Phone:  The Need For Privacy in the Public Sphere.  27 UH L. Rev. 377.

  Drunk, Driving, and Untouchable:  The Implications of State v. Heapy on Reasonable Suspicion in Hawai‘i.  31 UH L. Rev. 607 (2009).

  State v. Spillner:  An Investigatory Traffic Stop Based on Unreasonable Suspicion.  31 UH L. Rev. 631 (2009).

  The Privacy Rights of Public School Students.  32 UH L. Rev. 305 (2010).

  Hawai‘i's Right to Privacy.  33 UH L. Rev. 669 (2011).

  Chief Justice Moon's Criminal Past.  33 UH L. Rev. 755 (2011).

  Homeless Property Rights:  An Analysis of Homelessness, Honolulu's "Sidewalk Law," and Whether Real Property is a Condition Precedent to the Full Enjoyment of Rights under the U.S. Constitution.  35 UH L. Rev. 197 (2013).

 

Case Notes

 

  See also notes to U.S. Const. Amends. 1, 4.

 

Generally.

  Section incorporates the Fourth Amendment of the federal Constitution and is intended to give the State the benefit of federal decisions construing the language.  45 H. 295, 309, 367 P.2d 499.

  State supreme court may extend greater protection than is extended by federal decisions, if deemed appropriate.  50 H. 138, 433 P.2d 593.

  Investigative encounter "consensual" only if, prior to start of questioning, person informed of right to decline participation and that person could leave at any time, and person thereafter voluntarily participates.  75 H. 558, 867 P.2d 903.

  No violation of defendant's due process right to a fair trial by prosecution's refusal to reveal exact dates of confidential informant's observations as exact dates were not necessary in order for defendant to challenge district court's findings of probable cause.  88 H. 396, 967 P.2d 228.

  Investigative stop lawful where officer articulated specific facts, including defendant's profuse perspiring and rapidly approaching officer with hands moving in pocket, to establish officer's objectively reasonable belief that "criminal activity was afoot"; subsequent pat down search by officer which was limited to defendant's outer clothing was lawful where it was objectively reasonable for officer to believe that defendant was armed with a knife and presently dangerous.  93 H. 502 (App.), 6 P.3d 374.

 

Privacy.

  Arrest of defendants sunbathing nude on public beach did not violate their right of privacy.  52 H. 226, 475 P.2d 684.

  Where government secret agent is invited to private home to purchase marijuana and later goes there and makes purchase, agent's activities do not constitute unreasonable invasion of privacy.  54 H. 513, 510 P.2d 1066.

  This provision does not elevate right of privacy to equivalent of First Amendment right.  56 H. 271, 535 P.2d 1394.

  Helicopter observation of open marijuana patch was not "an invasion of privacy".  58 H. 412, 570 P.2d 1323.

  Words "invasion of privacy" were designed to protect against extensive governmental use of electronic surveillance techniques and undue governmental intrusion into areas of a person's life necessary to insure individuality and human dignity.  58 H. 412, 570 P.2d 1323.

  Use by police of ruse to effect voluntary opening of door and subsequent entry without use of force for purpose of executing lawful arrest warrant reasonable under this section.  83 H. 13, 924 P.2d 181.

  Regardless of the number of times that the police tested defendant's blood sample for its DNA, no violation of defendant's constitutional right to privacy occurred because the analyses did not exceed the objective for which the original warrant was sought--DNA testing for the purpose of identification.  103 H. 38, 79 P.3d 131.

  Under this section, a guest of a home dweller is entitled to a right of privacy while in his or her host's home; defendant thus had a reasonable expectation of privacy in defendant's host's garage washroom; police were not justified, under either an "open view" or a "plain view" exception to the warrant requirement, in searching the area behind the washing machine.  104 H. 109, 85 P.3d 634.

  Where police forcibly entered petitioner's home in pursuit of petitioner's son without a warrant and in the absence of any exigent circumstances, there was no conceivable basis in the law to uphold the entry as valid; thus, trial court's conclusion to the contrary reversed.  121 H. 74, 214 P.3d 613 (2009).

 

Search and seizure.

  Plaintiffs challenging city and county of Honolulu's practice of charging nonresidents a $3 fee to enter bay designated a marine life conservation district and nature preserve were not "seized" in violation of the Fourth Amendment to the U.S. Constitution or this section; stopping to pay $3 entrance fee at turnstile did not constitute an impermissible seizure.  215 F. Supp. 2d 1098.

  Count alleging violations of the state constitution failed to state a claim in a 42 U.S.C. §1983 civil rights lawsuit brought by a former state prisoner and other allegedly similarly-situated plaintiffs primarily seeking damages for "over detention".  678 F. Supp. 2d 1061 (2010).

  Use of flashlight by police officer in scanning interior of automobile lawfully stopped for traffic offense is not per se unreasonable search and seizure.  50 H. 461, 443 P.2d 149.

  Scope of pre-incarceration search.  55 H. 361, 520 P.2d 51.

  Scope of search incident to lawful arrest; can be no broader than necessary; in construing Hawaii constitution, need not follow U.S. Supreme Court (U.S. v. Robinson, 94 S. Ct. 467 and Gustafson v. Florida, 94 S. Ct. 488).  55 H. 361, 520 P.2d 51.

  Warrantless search and seizure of property in area open to public not unreasonable; in area not open to public unreasonable absent exigent circumstances.  60 H. 197, 587 P.2d 1224.

  Elements of legitimate expectation of privacy.  61 H. 117, 596 P.2d 773.

  Pre-incarceration search is justified.  61 H. 291, 602 P.2d 933.

  Stop and frisk, justified.  63 H. 553, 632 P.2d 1064.

  Warrantless search.  Exigent circumstances lacking.  63 H. 553, 632 P.2d 1064.

  Procedural requirements for seizure of materials in obscenity prosecutions.  63 H. 596, 634 P.2d 80.

  Standard for suppression of evidence where seizure violated freedom of speech or expression.  63 H. 596, 634 P.2d 80.

  City policy requiring inspection prior to entering concert, of all containers or clothing capable of concealing bottles or cans held unreasonable.  64 H. 17, 635 P.2d 946.

  Illegal arrest or seizure of evidence, without more, does not bar prosecution.  Exclusion of tainted evidence is appropriate remedy; purchase of allegedly obscene material from "willing sellers" by private citizen under police direction prior to arrest was actually "preconceived seizure" designed to evade warrant procedures; warrantless arrest for promoting pornography and seizure of material cannot be premised on ad hoc determination by police officer that material was obscene.  64 H. 109, 637 P.2d 1095.

  Evidence inadequate to support probable cause for issuance of warrant.  64 H. 399, 641 P.2d 1341.

  No reasonable expectation of privacy in conversation recorded by participant.  64 H. 659, 649 P.2d 346; 67 H. 197, 682 P.2d 79; 67 H. 307, 686 P.2d 816.

  No reasonable expectation of privacy shown.  65 H. 22, 649 P.2d 363; 65 H. 159, 649 P.2d 737.

  In order to conduct the more intrusive body searches in nonemergency, noncontact visit situations, prison officials must have reasonable basis to conclude that contraband is being concealed by inmates on their person.  66 H. 21, 656 P.2d 1330.

  Based on record, defendant did not abandon bag and therefore warrantless search was unconstitutional.  66 H. 543, 669 P.2d 152.

  Any co-inhabitant of commonly held property has right to consent to search of property; no expectation of privacy in property abandoned; abandonment primarily a question of intent.  67 H. 644, 701 P.2d 171.

  Reasonable expectation of privacy in trash bags.  67 H. 658, 701 P.2d 1274.

  Warrantless seizure of album for ten days to install beeper was unreasonable.  68 H. 213, 708 P.2d 820.

  Use of binoculars to observe activities in open view in automobile not unreasonable; warrantless search of handbag in automobile was unreasonable.  68 H. 221, 708 P.2d 825.

  Under the facts, warrantless search held not justified by "exigent circumstances" and not "incident to arrest".  68 H. 253, 710 P.2d 1197.

  Police must have reasonable basis to believe crime committed to order driver out of car after traffic stop.  68 H. 286, 711 P.2d 1291.

  Reasonable expectation of privacy in closed public toilet stall; no probable cause to search stall.  68 H. 404, 716 P.2d 493.

  Warrantless search of defendant beyond protective search for weapons was unreasonable, where there was no evidence to indicate defendant had contraband or instrumentalities of the crime.  68 H. 509, 720 P.2d 1012.

  Warrantless seizure for thirty minutes was not unreasonable or avoidable where police were informed of criminal activity ten minutes prior to the seizure.  69 H. 132, 736 P.2d 438.

  Airport searches, discussed.  69 H. 589, 752 P.2d 102.

  Search warrant was valid although informant had no history of reliability because other corroborated information indicated informant was reliable.  70 H. 271, 768 P.2d 1290.

  Warrant was considered a general warrant.  70 H. 546, 779 P.2d 1.

  Not violated by police drug testing program.  71 H. 568, 799 P.2d 953.

  Warrant to search multiple occupancy dwelling was reasonable.  71 H. 638, 802 P.2d 478.

  Affidavit which contained misstated and omitted information was insufficient to show probable cause to justify a search warrant.  72 H. 141, 808 P.2d 848.

  Warrantless search of contents of wallet after defendant surrendered it for inventory was unreasonable.  72 H. 290, 814 P.2d 914.

  Constitutional right was not voluntarily waived by defendant's consent to search car where waiver was predicated on prior illegal search and State failed to meet burden of showing that taint of illegal search had been dissipated or that there was an independent source inducing defendant to waive right.  72 H. 505, 824 P.2d 833.

  Although no force was used, officers' show of authority and questioning constituted seizure under Hawaii constitution.  74 H. 161, 840 P.2d 358.

  District court's findings of fact, conclusions of law, and suppression orders affirmed, where, inter alia, defendants had actual, subjective expectations of privacy that society would recognize as objectively reasonable that they would not be objects of covert video surveillance in employee break room, and recorded observations of activities in the break room were not obtained by third party consent.  75 H. 124, 856 P.2d 1265.

  Seizure occurs when police approach a person for the express or implied purpose of investigating that person for possible criminal violations and begins to ask for information.  75 H. 558, 867 P.2d 903.

  Children in school have legitimate expectations of privacy that are protected by this section and the Fourth Amendment to the U.S. Constitution.  77 H. 435, 887 P.2d 645.

  High school principal's search of student's purse was lawfully conducted.  77 H. 435, 887 P.2d 645.

  Investigative stop can be justified based on objectively reasonable suspicion of any offense, provided that the offense for which reasonable suspicion exists is related to offense articulated by officer involved.  78 H. 86, 890 P.2d 673.

  Where handgun on floor of defendant's truck under corner of driver's seat was observed in plain view, presence of exigent circumstances was not required to justify a warrantless seizure.  78 H. 308, 893 P.2d 159.

  Defendants were induced to make inculpatory statements and to consent to search of their hotel room in violation of article I, §§7 and [10] of Hawai‘i constitution.  78 H. 433, 896 P.2d 889.

  In order for a consent to search to be valid under this section, the individual consenting must actually possess the authority to do so; detective's search of defendants' house violated this section.  78 H. 433, 896 P.2d 889.

  Clear plastic packets not "closed" containers as contents were within plain view of officer conducting search under warrant; defendant thus could not claim any reasonable expectation of privacy in the packets' contents.  80 H. 382, 910 P.2d 695.

  Obtaining warrant as precondition to testing suspected cocaine in clear plastic bags unnecessary where defendant could not have reasonable expectation of privacy in clear plastic bags.  80 H. 382, 910 P.2d 695.

  Valid search incident to lawful arrest where there was probable cause to make an arrest prior to and independent of search of defendant's pants, search was limited to finding narcotics bindles, and arrest was made immediately after search.  80 H. 419, 910 P.2d 732.

  Determination of probable cause for issuance of search warrant warrants de novo review on appeal.  81 H. 113, 913 P.2d 39.

  Upon de novo review, based on facts set forth in officer's affidavit, probable cause existed to issue search warrant.  81 H. 113, 913 P.2d 39.

  Defendant lacked standing to challenge seizure of search warrant evidence where evidence seizure did not violate defendant's personal rights; defendant was not owner of any of items seized and did not allege any reasonable expectation of privacy in items.  82 H. 474, 923 P.2d 891.

  No "seizure" where private individual, acting on own initiative, secured videotape and voluntarily transferred possession to police.  82 H. 474, 923 P.2d 891.

  Drug evidence admissible and wrongly suppressed where police intrusion into hotel room pursuant to valid arrest warrant was justified and evidence seizure was permissible under plain view doctrine.  83 H. 13, 924 P.2d 181.

  "Totality of the circumstances test" correct test to determine whether private individual's search and seizure of evidentiary items was as a government agent, and subjective motivation of individual irrelevant to this determination.  83 H. 124, 925 P.2d 294.

  Circuit court erred in granting defendants' motion to suppress evidence where none of the three rationales for exclusionary rule--judicial integrity, individual privacy, and deterrence--supported suppression of evidence in case.  83 H. 187, 925 P.2d 357.

  Provisions of chapter 803, part IV and this section not relevant to question of legality of electronic eavesdropping activities conducted in California.  83 H. 187, 925 P.2d 357.

  Warrantless seizure justified where witness' identification of defendant as person who terrorized witness with gun gave officers probable cause to believe defendant committed a crime and officer's observation of defendant sleeping with gun in immediate reach presented sufficient exigent circumstances for officer to board boat and seize gun.  83 H. 229, 925 P.2d 797.

  Based on totality of circumstances, officer placed defendant in inherently coercive position by asking "pretexual" questions specifically designed to elicit responses that would either vindicate or implicate defendant; consent to "pat down" was thus not "voluntary and uncoerced".  83 H. 250, 925 P.2d 818.

  Officer lacked specific and articulable facts sufficient to warrant a person of reasonable caution in believing that defendant was engaged in criminal activity; officer was thus unjustified in initiating investigative "encounter" at airport with defendant.  83 H. 250, 925 P.2d 818.

  Where officer's questions were designed to investigate defendant for drug possession and defendant was expressly made aware of that from the outset, defendant had been effectively seized by the time officer asked "to take a look" at defendant's airline ticket and driver's license.  83 H. 250, 925 P.2d 818.

  Where nothing in objective facts available to police at time they obtained search warrant for house suggested defendant's bedroom was separate residential unit completely secured against access by other dwelling occupants, search warrant not overbroad and search of bedroom reasonable.  84 H. 462, 935 P.2d 1007.

  Where no exigent circumstances existed, forced entry by police two seconds after knock and announcement was insufficient to give occupants reasonable opportunity to respond.  85 H. 282, 943 P.2d 908.

  Defendant not victim of unlawful seizure where, under totality of circumstances, reasonable person would have felt free to terminate encounter by refusing to accompany police and return into home.  86 H. 195, 948 P.2d 1036.

  Where defendant voluntarily offered to accompany police to station and walked to and entered van voluntarily, even if there was a "seizure", seizure was with defendant's consent.  86 H. 195, 948 P.2d 1036.

  Police may not prolong the detention of individuals subjected to brief, temporary investigative stops, once such stops have failed to substantiate the reasonable suspicion that initially justified them, solely for the purpose of performing a check for outstanding warrants.  91 H. 80, 979 P.2d 1106.

  Although lawfully "seized" within the meaning of this section, defendant was not "in custody" at the time defendant responded to officer's question regarding defendant's age; thus officer was not required to give Miranda warnings prior to asking the question and trial court improperly suppressed defendant's answer.  94 H. 207, 10 P.3d 728.

  When an officer lawfully "seizes" a person in order to conduct an investigative stop, the officer is not required to inform that person of the person's Miranda rights before posing questions that are reasonably designed to confirm or dispel--as briefly as possible and without any coercive connotation by either word or conduct--the officer's reasonable suspicion that criminal activity is afoot.  94 H. 207, 10 P.3d 728.

  When an airline passenger consents to a search of his or her effects at an airport security checkpoint, the scope of the search reasonably extends to those receptacles, the contents of which cannot be identified, contained in luggage.  97 H. 71, 34 P.3d 1.

  A mandatory blood test, pursuant to §286-163, absent an arrest, violates neither the Fourth Amendment nor this section, so long as the police have probable cause to believe that the driver has committed one of the enumerated offenses and that the driver's blood contains evidence of intoxication or drug influence, exigent circumstances excuse a warrant, and the test is performed in a reasonable manner.  98 H. 221, 47 P.3d 336.

  An officer is not prohibited from requesting a warrant check incident to the issuance of a citation for a traffic violation when the check does not prolong the length of time needed to issue a citation.  98 H. 337, 48 P.3d 584.

  Where detective's affidavit in support of search warrant lacked probable cause and warrant was thus unlawfully obtained, firearms that detective found in tool shed and defendant's subsequent inculpatory statement, given in response to detective's questions regarding the firearms, were inadmissible at trial because they constituted evidence derived from the exploitation of an unlawful search warrant, and therefore, were tainted by that prior illegality.  98 H. 387, 49 P.3d 353.

  Assuming arguendo that, because drug detection dog jumped into the truck's passenger compartment, this canine screening constituted a "search" within the meaning of either the Fourth Amendment or this article, defendant did not have a reasonable expectation of privacy in the truck (or specifically in the airspace within the cab of the truck); thus, neither the dog's nor police handler's conduct violated defendant's rights.  98 H. 426, 49 P.3d 1227.

  In detaining defendant for the purpose of determining if defendant was impaired and if defendant would consent to a search of defendant's vehicle, officer did not exceed the scope of a temporary investigative stop premised upon circumstances that gave rise to a reasonable suspicion that defendant was driving while impaired or that defendant's vehicle might contain illicit substances.  99 H. 370, 56 P.3d 138.

  Red and glassy eyes, a criminal record, and imperfect driving, standing alone, were insufficient to establish probable cause to arrest a person for driving under the influence of drugs; as officer did not have probable cause to arrest defendant and did not subject defendant to sustained and coercive questioning, Miranda warnings were not warranted when defendant was questioned about defendant's alcohol consumption.  99 H. 370, 56 P.3d 138.

  Based on the totality of the circumstances, pool hall owner's actions in searching and detaining defendant were as a private citizen, not as a government agent; thus, owner's search and/or seizure of defendant was not constrained by this section nor the Fourth Amendment.  100 H. 195, 58 P.3d 1242.

  Section 803-37 does not apply to the interior office door of a store; however, as an objectively reasonable expectation of privacy exists at the interior office door of a store, police are required to provide reasonable notification of their presence and authority before making a forced entry; police satisfied this requirement by knocking three times, announcing "police department, search warrant", and waiting fifteen seconds before forcibly entering the locked interior office door of the store.  100 H. 210, 58 P.3d 1257.

  Search warrant was not supported by probable cause where credibility and reliability of anonymous tip concerning marijuana growing was not established; thus, trial court erred in denying defendant's motion to suppress items seized in the execution of the warrant.  102 H. 13, 72 P.3d 485.

  Use of thermal imager device to detect heat emanating from defendant's apartment constituted an unreasonable warrantless search; thus, information gained should have been excluded in the establishment of probable cause.  102 H. 13, 72 P.3d 485.

  Officer's additional observations, considered in concert with the reasonable inferences arising from defendant's screeching of tires, warranted an objectively reasonable suspicion that defendant had, at a minimum, committed the offense of reckless driving of a vehicle, in violation of §291-2; thus, officer's investigative stop was within the parameters of permissible police conduct.  102 H. 228, 74 P.3d 980.

  Police may act on an anonymous tip of reckless driving, but only under very narrow circumstances; based on the totality of the circumstances, including the reliability of the tip and the imminence of the harm, an anonymous tip was sufficiently reliable to justify an investigatory stop.  103 H. 451, 83 P.3d 714.

  Under this section, a guest of a home dweller is entitled to a right of privacy while in his or her host's home; defendant thus had a reasonable expectation of privacy in defendant's host's garage washroom; police were not justified, under either an "open view" or a "plain view" exception to the warrant requirement, in searching the area behind the washing machine.  104 H. 109, 85 P.3d 634.

  Even assuming the crime stoppers' anonymous tip was not "tainted" as a result of it being relayed to school officials via a police officer, the anonymous tip failed to provide even reasonable suspicion, much less probable cause, to justify the search of minor; the anonymous tip bore no indicia of reliability--the identity or status of the informant, the time the tip came in, the basis, if any, for the informant's knowledge, and the reliability of its assertion of illegality.  104 H. 403, 91 P.3d 485.

  Where police had no specific or articulable basis to believe that prior arrestee was in defendant's vehicle, police lacked reasonable suspicion to stop defendant's vehicle.  106 H. 177, 102 P.3d 1075.

  Where, solely on the ground that defendant turned off the road to avoid the sobriety checkpoint, officer did not possess specific and articulable facts before the stop giving rise to a "reasonable suspicion" that defendant was at the time operating a vehicle while intoxicated, stop of defendant's vehicle violated this section.  113 H. 283, 151 P.3d 764.

  Where vice-officer's drug investigation constituted a seizure separate and distinct from the traffic investigation stop inasmuch as it was not "reasonably related in scope to the circumstances which justified the interference in the first place", and the prosecution failed to adduce specific and articulable facts to reasonably warrant the intrusion, the drug investigation was unsupported by reasonable suspicion and constituted an unconstitutional seizure; thus, all the evidence recovered as a result had to be suppressed as fruit of the poisonous tree.  121 H. 261, 218 P.3d 749 (2009).

  Searches of petitioner's vehicle were valid under the Hawaii constitution, notwithstanding that they were lawful under the U.S. Constitution, where petitioner's conduct of driving onto the Pearl Harbor Naval Base demonstrated that petitioner consented to a search of petitioner's person and property under petitioner's control.  125 H. 52, 252 P.3d 1229 (2011).

  Where evidence sought to be admitted in state court is the product of acts that occurred on federal property or in another state, by Hawaii law enforcement officers or officers of another jurisdiction, such evidence can only be admitted in a state prosecution if obtained in a manner consistent with the Hawaii constitution and applicable case law.  125 H. 52, 252 P.3d 1229 (2011).

  Where evidence sought to be admitted in state court is the product of acts that occurred on federal property or in another state, by Hawaii law enforcement officers or officers of another jurisdiction, due consideration must be given to the Hawaii constitution and applicable case law.  125 H. 382, 262 P.3d 1006 (2011).

  Where petitioner's conduct of driving onto the Pearl Harbor Naval Base demonstrated that petitioner consented to a search of petitioner's person and property under petitioner's control, searches of petitioner's vehicle were valid under the Hawaii constitution, notwithstanding that they were lawful under the U.S. Constitution.  125 H. 382, 262 P.3d 1006 (2011).

  Officer did not have reasonable suspicion to seize defendant where officer did not have evidence that defendant, rather than other members of defendant's group, had committed or was about to commit a crime; officer did not observe defendant drinking, arguing, fighting or making unreasonable amounts of noise; thus, appeals court erred in affirming the district court's judgment.  126 H. 68, 266 P.3d 1122 (2011).

  Where defendant was seized without reasonable suspicion when officer told defendant to exit the vehicle, and continued when officer subsequently chased defendant, officer's stop was a single illegal seizure; thus, officer's continuing attempt to improperly seize defendant placed officer in the position from which officer could observe the beer bottles in defendant's car and was thus evidence obtained as a result of an illegal seizure.  126 H. 68, 266 P.3d 1122 (2011).

  Where officer did not have reasonable suspicion to stop defendant when officer told defendant to exit car, and after officer chased defendant and subsequently discovered probable cause to arrest defendant when officer observed the beer bottles in defendant's car, the evidence obtained after the initial stop was the fruit of the poisonous tree as it was discovered by exploiting the officer's prior illegal seizure.  126 H. 68, 266 P.3d 1122 (2011).

  Circuit court properly suppressed evidence obtained by the State during unlawful search of defendant where State failed to present clear and convincing evidence that the plastic methamphetamine packet obtained in violation of this section would inevitably have been discovered by lawful means during an inventory search; thus, evidence was not admissible under the inevitable discovery exception to Hawaii's exclusionary rule.  128 H. 200, 286 P.3d 809 (2012).

  The evidence obtained pursuant to the search warrant should not have been suppressed, where the clerical error (misdating) by the issuing judge did not render the search warrant invalid, and suppressing evidence seized pursuant to the warrant would not further the purposes of the exclusionary rule where the warrant was supported by probable cause, the evidence demonstrated the actual date of issuance, and the warrant was executed within the time frame specified in HRPP rule 41.  131 H. 379, 319 P.3d 298 (2013).

  Warrant to search premises does not authorize search of identified possessions of visitors present during execution of warrant; defendant had reasonable expectation of privacy in plastic beach bag on floor near defendant.  5 H. App. 29, 677 P.2d 471.

  Investigatory stop justified by circumstances.  5 H. App. 127, 681 P.2d 573.

  Reasonable for police officers to order defendant to exit automobile based upon totality of circumstances.  7 H. App. 28, 742 P.2d 388.

  Suspicionless drug testing of firefighters by urinalysis in conjunction with annual physical examination is not an unreasonable search.  8 H. App. 571, 816 P.2d 306.

  Reasonable for police officer to assume that personal property of non-resident of premises being searched under search warrant was property of premises where there was no notice of ownership.  8 H. App. 610, 822 P.2d 23.

  Warrantless seizure of defendant at sobriety roadblock was unreasonable where State failed to prove that officer in charge had authority to move roadblock's location due to traffic congestion.  9 H. App. 98, 825 P.2d 1068.

  Section 803-37 violates Hawai‘i constitution to the extent that it permits the police to break into the place to be searched if "bars" to their entrance are not immediately opened.  77 H. 461 (App.), 887 P.2d 671.

  In situations where defendant was the focus of a narcotics investigation, was seized illegally, had defendant's bag detained for a canine narcotics screening, and had defendant's subsequent movements secured by the police pending completion of the screening, a reasonable person would believe he or she was not free to leave.  78 H. 475 (App.), 896 P.2d 931.

  Insofar as indictment related to resisting arrest charge, indictment could not be treated as a "product or fruit" of any illegal seizure or arrest of defendant.  78 H. 475 (App.), 896 P.2d 931.

  Seizure violated reasonable seizure requirement in this section because defendant was initially seized without probable cause, without reasonable suspicion, and without defendant's consent.  78 H. 475 (App.), 896 P.2d 931.

  Officer's order for defendant to exit vehicle was unlawful; thus, subsequent plain view of, search for, and seizure of incriminating evidence was tainted and should have been suppressed.  80 H. 75 (App.), 905 P.2d 50.

  Probable cause existed for issuance of warrant based on officer's affidavit that relied on police investigation as well as on informant's information.  81 H. 29 (App.), 911 P.2d 1101.

  Where warrant only authorized search of specific room of business and another subsequently discovered room of business separated by a hallway and other numbered and unnumbered rooms was also searched, other room was not within scope of warrant and constituted illegal search.  82 H. 162 (App.), 920 P.2d 376.

  Evidence found in defendant's living room illegally seized where no exigent circumstances or search warrant to enter living room and person consenting to police entering living room did not have "actual authority" to consent.  82 H. 394 (App.), 922 P.2d 1007.

  Hawaii constitution does not permit validation of searches pursuant to search warrants that are facially expired when the searches are made.  83 H. 87 (App.), 924 P.2d 581.

  Where defendant was seated in driver's seat of parked car, key was in ignition and engine was not running, defendant was "seized" when officer asked defendant for driver's license, vehicle registration card, and vehicle reconstruction permit.  87 H. 487 (App.), 960 P.2d 157.

  Where Hawaii county did not require posting of reconstructed vehicle permit decal on vehicle and no evidence that defendant actually operated vehicle, officer's suspicion that defendant operated a reconstructed vehicle without a valid permit was not reasonable; thus, evidence of DUI and no reconstruction permit was illegally obtained through a warrantless seizure.  87 H. 487 (App.), 960 P.2d 157.

  Where State established by clear and convincing evidence that contents of defendant's pockets would have been revealed in an inventory search of defendant upon arrival and booking at police station, drug pipe and packet properly admitted under the inevitable discovery exception to the exclusionary rule.  91 H. 111 (App.), 979 P.2d 1137.

  Right not violated where defendant did not have a reasonable expectation of privacy on busy public street, defendant took no precautions to insure privacy by screening defendant's presence or defendant's drug dealing activity from public view, and no objectively reasonable expectation of privacy for persons, objects, or activities which were visible to the public and captured by non-intrusive video camera.  92 H. 454 (App.), 992 P.2d 723.

  Seizure of motorist justified where report of the hazardous driving matched both the area the motorist was driving in and the make, model, color, and license number of the vehicle being allegedly hazardously driven.  93 H. 337 (App.), 3 P.3d 503.

  Although initial seizure was justified, once officers determined that no weapon was involved and no one wanted to make a complaint, and thus dispelled the reasonable suspicion that justified the initial seizure, defendant should have been released; by further detaining defendant and demanding identification, officer subjected defendant to an illegal seizure.  93 H. 502 (App.), 6 P.3d 374.

  Where officer made plain to defendant that defendant was the focus of a criminal investigation, demanded to see defendant's hands, and a reasonable person would not have felt free to leave, defendant was seized for purposes of this section; seizure continued throughout ensuing physical seizure, takedown and handcuffing, and continued after the removal of the handcuffs.  93 H. 502 (App.), 6 P.3d 374.

  Conduct of officer who had been directing traffic, in walking behind motorist's vehicle, from the passenger's side to the driver's side, after motorist had been stopped for three to five seconds and had failed to follow officer's hand instructions, was not an investigative stop, as reasonable person would not have believed person was not free to leave. 95 H. 270 (App.), 21 P.3d 475.

  Defendant had a constitutionally protected expectation of privacy not only in the general premises of the house, but also in the specific area that was defendant's bedroom; defendant's lack of property interest in defendant's parents' house was not a bar to a claim that defendant had a protected privacy interest in that house.  96 H. 472 (App.), 32 P.3d 116.

  Exigent circumstances did not exist to justify warrantless police entry into and search of house, where, by securing the house believed to hold their quarry, the police had eliminated the perceived threat posed by a free-roaming, allegedly armed suspect, and by closing off the street, the police were in control of the situation, thus having sufficient time to consider their options, plan and obtain a search warrant.  96 H. 472 (App.), 32 P.3d 116.

  Warrantless search of defendant's bedroom in defendant's parents' house unreasonable where mother did not have actual authority to consent to search of son's bedroom; son had, by implicit agreement and in practice, exclusive possession of bedroom, and there was no indication that son gave mother access to room or permission to allow others access.  96 H. 472 (App.), 32 P.3d 116.

  Where defendant exhibited an actual, subjective expectation of privacy in defendant's bedroom by keeping door locked at all times, and no other person had the key or access to the room, and as an adult child living with parents is not uncommon in this State, defendant's expectation was one that society was prepared to recognize as objectively "reasonable"; thus, defendant's privacy interests in common areas of parents' house and in defendant's bedroom were constitutionally protected.  96 H. 472 (App.), 32 P.3d 116.

  Where neither consent nor exigent circumstances justified warrantless police entry into and search of defendant's bedroom, based on the "adequate and independent state grounds" of this section, police search was unlawful and sawed-off shotgun seized as a result should have been suppressed.  96 H. 472 (App.), 32 P.3d 116.

  The federal and state regulatory schemes, which establish security and screening procedures at airports governed by both the Federal Aviation Administration and the state department of transportation, made private security employee's search of passenger's toolbox a governmental search for purposes of the Fourth Amendment and this section.  97 H. 77 (App.), 34 P.3d 7.

  Warrantless search of passenger's toolbox at airport by private security company employee was reasonable under the Fourth Amendment and this section.  97 H. 77 (App.), 34 P.3d 7.

  Where totality of circumstances clearly showed that store asset protection agent conducted a purely private search of defendant with no governmental involvement, trial court did not err in denying defendant's motion to suppress evidence.  97 H. 247 (App.), 35 P.3d 764.

  Right not violated where police officer's search of defendant's fanny pack found by hotel guest and already inventoried by hotel security fell under the lost property inventory exception to the warrant requirement.  101 H. 112 (App.), 63 P.3d 420.

  Warrantless seizure of plaintiff's vehicle not unconstitutional where seizure was from a public place and officers had probable cause to believe it was forfeitable contraband.  101 H. 422 (App.), 70 P.3d 648.

  Applying the totality of the circumstances test, trial court correctly determined that adult video store clerk was not acting as a "government agent"; clerk was not actively recruited, directed, or paid by the police, and clerk's actions were for a private purpose--to make sure defendant was complying with video store's no-smoking policy and not doing anything that would harm the store.  103 H. 11 (App.), 78 P.3d 1159.

  Warrantless seizure of defendant's glass pipe and its contents justified where police had probable cause to arrest defendant after viewing defendant smoking glass pipe in video booth, and exigent circumstances existed as defendant was lawfully observed ingesting an illegal drug and any delay would allow more, if not all, of the drugs to be consumed, and as defendant rented video booth for only half an hour, defendant would likely have finished defendant's "business" long before police could have obtained a warrant.  103 H. 11 (App.), 78 P.3d 1159.

  Where defendant took no steps to cover up "glory hole" in adult video preview booth, defendant could not have reasonably expected that defendant's conduct would not be viewed through the glory hole; thus, defendant could not have had a subjective expectation of privacy in the video preview booth that society would recognize as objectively reasonable.  103 H. 11 (App.), 78 P.3d 1159.

  Defendant was not subject to a de facto arrest not supported by probable cause where officers' use or display of force was reasonably necessary to protect their personal safety, was in response to defendant's erratic and hostile behavior, and defendant's conduct made it reasonable for the officers to insist that defendant submit to a pat-down search for weapons.  107 H. 144 (App.), 111 P.3d 39.

  When police officers encounter someone while lawfully at a residence to execute an arrest warrant, the officers may detain that person and perform a pat-down search for weapons if the officers have a reasonable and articulable basis to suspect that the person may possess a weapon and pose a danger; the officers may compel such person to submit to a pat-down search for weapons even if the officers have no reasonable suspicion that the person is involved in criminal activity.  107 H. 144 (App.), 111 P.3d 39.

  Authorization in search warrant to search any personal, rental, or borrowed vehicle that defendant was operating or occupying was not unconstitutionally overbroad, and was sufficiently particularized where authorization was based on probable cause that defendant would be in possession of ice, and would be transporting it in any number of different vehicles in which defendant was either the operator or an occupant.  108 H. 361 (App.), 120 P.3d 260.

  Under this section, and contrary to the United States Supreme Court's holding in New York v. Harris, a statement taken at the police station after an unlawful arrest in the suspect's home remains subject to suppression as the "fruit of the poisonous tree", even though the police had probable cause to arrest all along.  114 H. 271 (App.), 160 P.3d 1258.

 Where defendant removed defendant's fanny pack from waist and attempted to discard it four different times, defendant did not exhibit a subjective expectation of privacy in the fanny pack; even assuming defendant did, defendant's expectation of privacy was not objectively reasonable where defendant failed to establish that defendant had a privacy interest in the places defendant attempted to throw the fanny pack; thus, where defendant voluntarily threw the fanny pack onto a building roof top, defendant abandoned defendant's expectation of privacy.  116 H. 29 (App.), 169 P.3d 981.

  Where defendant spontaneously denied ownership of nylon bag in response to a request to sign a consent to search form, rather than in response to police interrogation, defendant's unequivocal disclaimer of ownership showed defendant's intent to abandon the bag, thus relinquishing any expectation of privacy defendant had in the contents of the bag; thus, warrantless search of the bag by police did not violate this section.  119 H. 15 (App.), 193 P.3d 1215.

  Where police consent form stated that search of defendant's automobile and its contents was expressly confined to evidence of "firearms, ammunition", and officer acknowledged that the wallet was lying closed on the seat and that officer searched the wallet for ammunition but that officer was not nervous because officer could not "feel anything", officer's observations did not reasonably suggest the presence of ammunition in the wallet; thus, the continued search of the wallet that uncovered another person's license was objectively unreasonable and exceeded the scope of defendant's consent.  121 H. 533 (App.), 221 P.3d 511 (2009).

  Where officer turned defendant's pockets inside out during a pat down search incident to arrest, the search was not limited in scope to what was "reasonably necessary to discover the fruits or instrumentalities of the crime for which defendant was arrested, to protect the officer from attack, or to prevent the offender from escaping"; thus, officer's actions violated this section.  122 H. 229 (App.), 225 P.3d 671 (2010).

  The misdating of a search warrant did not require suppression of the search warrant evidence where, under the circumstances of the case, the government agent obtained a search warrant supported by probable cause, the only basis for challenging the warrant was it being misdated by the issuing judge, and the actual date of issuance could be established by irrefutable evidence.  128 H. 328 (App.), 289 P.3d 964 (2012).

  Cited:  56 H. 366, 537 P.2d 8.

  Mentioned:  53 H. 327, 493 P.2d 306.

 

 

RIGHTS OF CITIZENS

 

     Section 8.  No citizen shall be disfranchised, or deprived of any of the rights or privileges secured to other citizens, unless by the law of the land. [Ren Const Con 1978 and election Nov 7, 1978]

 

Case Notes

 

  Not violated by disqualification of recalled officials from running for vacancy created by recall.  68 H. 263, 711 P.2d 723.

 

 

ENLISTMENT; SEGREGATION

 

     Section 9.  No citizen shall be denied enlistment in any military organization of this State nor be segregated therein because of race, religious principles or ancestry. [Ren and am Const Con 1978 and election Nov 7, 1978]

 

 

INDICTMENT; PRELIMINARY HEARING; INFORMATION;

DOUBLE JEOPARDY; SELF-INCRIMINATION

 

     Section 10.  No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury or upon a finding of probable cause after a preliminary hearing held as provided by law or upon information in writing signed by a legal prosecuting officer under conditions and in accordance with procedures that the legislature may provide, except in cases arising in the armed forces when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy; nor shall any person be compelled in any criminal case to be a witness against oneself. [Ren and am Const Con 1978 and election Nov 7, 1978; am HB 150 (1981) and election Nov 2, 1982; am SB 2851 (2004) and election Nov 2, 2004]

 

Attorney General Opinions

 

  Cited in holding that a constitutional amendment is necessary to eliminate the function and scope of the grand jury.  Att. Gen. Op. 68-10.

 

Law Journals and Reviews

 

  Included Offenses in Hawaii Case Law and the Rights to Trial by Jury:  Coherence or Confusion.  II HBJ No. 13, at pg. 77.

  Fitness to Proceed:  Compassion or Prejudice?  II HBJ No. 13, at pg. 135.

  Administering Justice or Just Administration:  The Hawaii Supreme Court and the Intermediate Court of Appeals.  14 UH L. Rev. 271.

  State v. Lessary:  The Hawaii Supreme Court's Contribution to Double Jeopardy Law.   17 UH L. Rev. 269.

  Criminal Procedure Rights Under the Hawaii Constitution Since 1992.  18 UH L. Rev. 683.

  State v. Rogan:  Racial Discrimination and Limits of the Color-blind Approach.  24 UH L. Rev. 821.

  How to Transfer Venue When You Only Have One:  The Problem of High Profile Criminal Jury Trials in American Samoa.  29 UH L. Rev. 325.

 

Case Notes

 

Former jeopardy.

  See also notes to U.S. Const. Amend. 5.

  Retrial not barred though prosecutor's comments caused mistrial, where no showing that prosecution intended to provoke mistrial.  69 H. 44, 731 P.2d 1261.

  A nolle prosequi entered over the defendant's objection, after jeopardy has attached, terminates the prosecution and bars any subsequent trial for the same offense.  69 H. 618, 753 P.2d 806.

  Jeopardy attached where defendant had no notice or opportunity to testify on nolle prosequi motion.  71 H. 260, 787 P.2d 692.

  No double jeopardy where defendant was acquitted of one of the counts.  72 H. 56, 806 P.2d 402.

  Jeopardy attached for criminal charges in circuit court when defendant was sentenced for criminal contempt in family court where charges were based on same conduct supporting contempt conviction.  72 H. 164, 811 P.2d 815.

  Subsequent retrial of murder conviction reversed on appeal not barred by double jeopardy clause where lower court acted outside scope of its mandate in dismissing indictment and defendant was acquitted of another charge involving proof of conduct that was neither an element of the murder charge of which defendant was convicted nor conduct on which liability was found.  72 H. 480, 825 P.2d 64.

  Retrial not barred by double jeopardy clause where there was no prosecutorial intent to goad defendant into moving for mistrial.  73 H. 289, 834 P.2d 275.

  Reprosecution barred because defendant was subjected to former jeopardy in first trial and trial court erroneously declared mistrial without defendant's consent or a showing of manifest necessity.  75 H. 195, 857 P.2d 585.

  Hawaii constitution provides greater protection against multiple prosecutions than U.S. Constitution; requires application of "same conduct" test.  75 H. 446, 865 P.2d 150.

  Circuit court not clearly erroneous in finding that prosecutor did not intentionally provoke defendants into moving for mistrial; thus, court correctly concluded retrial not prohibited by double jeopardy.  77 H. 351, 884 P.2d 729.

  Appellant's new sentence did not contravene right against double jeopardy even if it potentially affected appellant's future eligibility for parole.  79 H. 281, 901 P.2d 481.

  Reprosecution not barred by double jeopardy where trial court's declaration of mistrial supported by manifest necessity; court sufficiently considered alternatives available.  79 H. 461, 903 P.2d 1282.

  As §286-261(d) did not require defendant to submit to needs assessment nor undergo any treatment for alcohol dependence, application of that section with DUI conviction under §291-4 not "multiple punishments for same offense".  80 H. 8, 904 P.2d 893.

  Remanding case for retrial on lesser included offenses following appellate determination that insufficient evidence was presented at trial to support conviction of greater offense did not violate clause.  80 H. 126, 906 P.2d 612.

  Defendant not subjected to multiple punishments as a result of administrative driver's license revocation under §286-261 and DUI conviction under §291-4 as administrative revocation non-punitive and purely remedial in nature.  81 H. 226, 915 P.2d 700.

  Because counseling and assessment, as consequence of administrative driver's license revocation under §286-261(d), not punitive but purely remedial, subsequent DUI conviction did not expose defendant to multiple "punishments"; defendant's motion to dismiss on double jeopardy grounds thus properly denied.  82 H. 446, 923 P.2d 388.

  Denial of defendant's motion to dismiss on double jeopardy grounds, premised on protection against multiple punishments for same offense, not effectively unreviewable on appeal and thus not immediately appealable under collateral order exception.  82 H. 446, 923 P.2d 388.

  Jeopardy did not attach where defendant failed to file a timely claim for forfeited property under §712A-10(4).  83 H. 141, 925 P.2d 311.

  Where defendant's conviction on non-existent attempted reckless manslaughter charge vacated, remand for retrial on original charge of attempted first degree murder unconstitutional and also violation of §701-110(1).  83 H. 335, 926 P.2d 1258.

  Section bars retrial for a charge when the government's deliberate trial strategy, which was completely incompatible with another approach it could have pursued, but expressly chose not to, accompanied the termination of the first trial without the jury passing upon that charge.  85 H. 128, 938 P.2d 559.

  Not violated by prosecution's appeal from judgment of acquittal following jury's verdict of guilty pursuant to §641-13(9).  87 H. 108, 952 P.2d 865.

  As conviction for manslaughter due to an extreme mental or emotional disturbance under §707-702(2) is deemed an acquittal of murder, double jeopardy barred defendant's reprosecution for second degree murder under §707-701.5.  88 H. 356, 966 P.2d 1082.

  Prosecution not barred from reprosecuting defendant for offense of reckless manslaughter under §707-702(1)(a) as reckless manslaughter is a lesser included offense of murder and remanding a case for retrial on lesser included offenses not barred by double jeopardy.  88 H. 356, 966 P.2d 1082.

  Where, upon defendant's own motion, place to keep firearms count under §134-6 was dismissed on a basis unrelated to factual guilt or innocence, retrial on the place to keep firearms charge not barred by double jeopardy clauses of U.S. and Hawaii Constitutions.  88 H. 389, 967 P.2d 221.

  As family court's "judgment of acquittal" was, in fact, an acquittal "in substance as well as form", clause violated where family court granted prosecution's motion for reconsideration and denied defendant's motion to dismiss complaint.  91 H. 206, 982 P.2d 340.

  Reprosecution of a defendant after a mistrial or reversal on appeal as a result of prosecutorial misconduct is barred where the prosecutorial misconduct is so egregious that, from an objective standpoint, it clearly denied a defendant his or her right to a fair trial.  91 H. 405, 984 P.2d 1231.

  Given that any improper remarks in opening statement, closing and rebuttal arguments by prosecutor were harmless beyond a reasonable doubt, and their cumulative effect was similarly harmless and did not deprive defendant of a fair trial, prosecutor's misconduct did not warrant reversal of any of defendant's convictions and did not implicate the double jeopardy clauses of either the U.S. or Hawaii Constitutions.  95 H. 465, 24 P.3d 661.

  Trial court abused its discretion in concluding there was manifest necessity for mistrial as circumstances creating apparent need for mistrial did not make it impossible for trial to proceed; in absence of manifest necessity, defendant should have been allowed to choose between continuing with trial or consenting to a mistrial; defendant did not "consent" to the mistrial by moving for dismissal with prejudice; retrial thus barred by double jeopardy.  97 H. 238, 35 P.3d 755.

  Where, by implying that defendant had information defendant was withholding from jury, prosecution intended jury to note that defendant did not testify, no curative court instruction was given to disregard improper prosecution comments, and evidence did not clearly demonstrate defendant's guilt, prosecution improperly commented on defendant's failure to testify; defendant was thus entitled to a new trial, but prosecutorial misconduct was not so egregious that double jeopardy should attach to prevent retrial.  102 H. 504, 78 P.3d 317.

  The double jeopardy clause does not constrain the legislature from intentionally imposing multiple punishments upon a defendant for separate offenses arising out of the same conduct; the protections afforded by the U.S. Constitution, as set forth in the Blockburger "same elements" test, adequately protect against double jeopardy in "multiple punishments" cases.  107 H. 469, 115 P.3d 648.

  The trial court did not violate this clause by convicting defendant of attempted murder in the second degree under §707-701.5, and place to keep, and use of a firearm under §134-6, as each of the offenses contains elements which the others do not.  107 H. 469, 115 P.3d 648.

  Where legislature intended to punish defendant under both §§134-6(a) and 706-660.1 for use of a firearm in shooting victim, the double jeopardy clause was not violated when the trial court imposed a mandatory minimum term sentence under §706-660.1 for attempted second  degree murder when defendant was also convicted of, and sentenced for, use of a firearm in the commission of the separate felony of attempted second degree murder.  107 H. 469, 115 P.3d 648.

  Where all of the evidence was discovered subsequent to and as a result of the illegal entry and was thus inadmissible, it should have not been relied upon in measuring the sufficiency of the evidence supporting the convictions; because there wasn't any other admissible evidence against defendant, the evidence was insufficient to support defendant's convictions; thus, jeopardy attached and defendant may not be retried.  108 H. 436, 121 P.3d 901.

  Double jeopardy did not bar retrial with regard to defendant's failure to disperse from the first floor of a shopping mall under §711-1102, for which there was clearly sufficient evidence to support a conviction, where defendant was not expressly acquitted by the jury, defendant's conviction could not be assumed to include an implied acquittal on either of the acts offered by the prosecution to support the conviction, defendant was not convicted on a lesser included offense, and the jury did not refuse to convict defendant on the basis of either act on the first or second floor or choose between them.  124 H. 43, 237 P.3d 1109 (2010).

  The principle of collateral estoppel, which is embodied in the double jeopardy clause of this section, barred the respondent State from seeking to have the jury decide for the second time whether petitioner had in fact committed the acts of sexual assault for which petitioner had been acquitted in petitioner's first trial.  129 H. 1, 292 P.3d 205 (2012).

  A prior judgment of acquittal on a §291E-61(a)(3) method of proof in an operating a vehicle under the influence of an intoxicant trial is "in form only", but it serves as a factual finding that the State has not met its burden of proving breath alcohol content.  As such, the collateral estoppel principle embodied in the double jeopardy clause of this section and the Fifth Amendment of the U.S. Constitution prohibits the State from re-litigating breath alcohol content, whether in a re-prosecution of the defendant on the §291E-61(a)(3) method of proof, or as part of the State's evidence in a subsequent trial on the §291E-61(a)(1) method of proof.  129 H. 146, 296 P.3d 359 (2013).

  Where substantial evidence supported defendant's conviction, the prohibition against double jeopardy did not preclude a remand of the case to the district court for a new trial.  132 H. 85, 319 P.3d 1093 (2014).

  If guilty plea is validly set aside, subsequent trial does not violate prohibition against double jeopardy.  4 H. App. 566, 670 P.2d 834.

  No prohibition from charging a defendant with having committed one crime in two different ways.  8 H. App. 506, 810 P.2d 672.

  No double jeopardy for convictions under §§707-734 and 712-1217.  8 H. App. 535, 813 P.2d 335.

  Retrial barred where reversal of DUI conviction based on improperly admitted test result from breath-testing instrument was for insufficiency of evidence, not trial error.  9 H. App. 130, 828 P.2d 813.

  Retrial not barred where defendant moved for dismissal and was successful in having the charge dismissed before a determination was made of whether defendant was guilty or not guilty and where defendant did not make any showing that prosecutor intended to provoke a mistrial.  10 H. App. 491, 878 P.2d 739.

  Clause violated where defendant, upon being resentenced for same offense, not given credit for imprisonment already served and fines already paid.  82 H. 83 (App.), 919 P.2d 995.

  Prosecutor's reference to defendants' race in opening statement was not the "exceptional circumstance" in which prosecutorial misconduct rose to the level of egregiousness that bars reprosecution; thus, case vacated and remanded.  98 H. 358 (App.), 48 P.3d 605.

  As attempted assault in the first degree is an included offense of assault in the first degree, under §701-109(4), the trial court properly instructed the jury on the included offense of attempted assault in the first degree; as trial court's instructing the jury on the included offense of attempted assault in the first degree only placed defendant in jeopardy once, defendant's double jeopardy rights not violated.  112 H. 278 (App.), 145 P.3d 821.

  Where district court's dismissal of the charges against defendant was not based on a resolution in defendant's favor of some or all of the factual elements of the offenses charged, and was not based on a decision on the merits of the case or a decision as to the guilt of defendant, the protection against double jeopardy did not apply; because the district court's dismissal of the charges did not constitute an acquittal, the court had the authority to reconsider and overturn its dismissal ruling without violating the protection against double jeopardy.  128 H. 449 (App.), 290 P.3d 519 (2012).

 

Indictment.

  Where indictment mechanism is employed, it must be through an unprejudiced grand jury.  53 H. 226, 491 P.2d 1089.

  Although an accused is guaranteed the right to presentment or indictment by a fair and impartial grand jury, the mere absence of an independent grand jury counsel does not establish that the due process rights of the accused were violated.  63 H. 412, 629 P.2d 1111; 63 H. 633, 633 P.2d 1113.

  Not violated by indictment which specifies all necessary elements of crime of burglary but does not allege specific crime intended to be committed.  66 H. 312, 660 P.2d 39.

  Count of complaint did not allege all of the essential elements of a §134-6(a) offense, thereby failing to ensure that district court had before it all facts necessary to find probable cause on that charge and violating defendant's rights under this section.  78 H. 66, 890 P.2d 303.

  Section 485-21 provides an essential element of offense charged, when a defendant is charged with a criminal violation of Uniform Securities Act; counts of indictment, which cited to §485-21, were insufficient, as counts did not include essential elements of offenses charged. 78 H. 373, 894 P.2d 70.

  Grand jury was presented with sufficient information to determine the existence of probable cause that material distributed to minor by defendant was pornographic for minors under §712-1210(7)(a).  82 H. 474, 923 P.2d 891.

  A charging instrument, be it an indictment, complaint, or information, must include all "allegations, which if proved, would result in the application of a statute enhancing the penalty of the crime committed"; where the prosecution and the courts would be substantially prejudiced by the retroactive application of this new rule, it was accorded purely prospective application.  117 H. 381, 184 P.3d 133.

  Sufficiency of for credit card offenses.  4 H. App. 52, 659 P.2d 83.

 

Self-incrimination.

  See also notes to U.S. Const. Amend. 5.

  State may go beyond federal requisites in protecting right under state constitution.  52 H. 527, 480 P.2d 148; 53 H. 254, 492 P.2d 657.

  Unless Miranda warnings are given, defendant's statement cannot be used either as evidence in prosecution's case or to impeach defendant's testimony.  53 H. 254, 492 P.2d 657.

  Miranda warnings apply only where person is being subjected to custodial interrogation.  58 H. 94, 564 P.2d 1271.

  Miranda fails to restrict State's use of voluntary statement not resulting from custodial interrogation.  58 H. 323, 568 P.2d 1200.

  Custodial interrogation for Miranda purposes.  59 H. 357, 581 P.2d 752.

  Use immunity conferred by statute is not adequate to supplant constitutional privilege.  62 H. 269, 614 P.2d 915.

  Compulsion to produce handwriting examples does not constitute unreasonable search and seizure nor does it violate self-incrimination clause.  62 H. 364, 616 P.2d 193.

  Default judgment for failure to make an accounting did not violate privilege where no evidence that information sought by accounting would incriminate defendant.  68 H. 608, 726 P.2d 254.

  Violated by introduction of evidence that defendant invoked right, where whether defendant had done so not at issue.  69 H. 68, 733 P.2d 690.

  Defendant did not waive right to counsel; second interrogation was not "same interrogation" for purposes of Miranda warnings.  69 H. 461, 748 P.2d 365.

  Drug testing does not infringe upon the privilege against self-incrimination.  72 H. 67, 806 P.2d 407.

  Defendant's statement to police, made while wearing blanket during custodial interrogation, was not coerced under totality of circumstances.  72 H. 327, 817 P.2d 1054.

  Constitutional right was not voluntarily waived by defendant's confession to theft where waiver was predicated on prior illegal search and State failed to meet burden of showing that taint of illegal search had been dissipated or that there was an independent source inducing defendant to waive right.  72 H. 505, 824 P.2d 833.

  Not violated where court requested defendant to identify self for purposes of identification in compliance with HRPP 43(a) (requiring presence of defendant at trial).  72 H. 573, 827 P.2d 648.

  Use at sentencing of statements previously obtained in violation of a defendant's privilege against self-incrimination violates that defendant's privilege against self-incrimination and right to due process.  74 H. 424, 848 P.2d 376.

  Defendant's mental and physical condition at time of defendant's interview with detective did not render defendant's statement involuntary; where defendant complained detective repeatedly exhorted defendant to tell the whole story and wheedled a confession out of defendant through misrepresentations, detective's tactics did not amount to mental or psychological coercion, rendering defendant's consequent statement involuntary and inadmissible.  74 H. 479, 849 P.2d 58.

  Circuit court's error in failing to expressly state findings of fact and conclusions of law with respect to alleged violation of appellant's right against self-incrimination was harmless error; reversal of appellant's original conviction was not based on prosecution's use of illegally obtained confessions and appellant had never alleged that appellant was in any way compelled to testify at first trial.  76 H. 237, 873 P.2d 775.

  When a suspect makes an ambiguous or equivocal request for counsel during custodial interrogation, the police must either cease all questioning or seek non-substantive clarification of the suspect's request, and if, upon clarification, the defendant unambiguously and unequivocally invokes right to counsel, all substantive questioning must cease until counsel is present.  77 H. 17, 881 P.2d 504.

  Coercive conduct of a private person may be sufficient to render a confession inadmissible based on article I, §5 and this section of Hawai'i constitution.  77 H. 51, 881 P.2d 538.

  Defendants were induced to make inculpatory statements and to consent to search of their hotel room in violation of article I, §§7 and [10] of Hawai'i constitution.  78 H. 433, 896 P.2d 889.

  To protect the right to testify under Hawai'i constitution, trial courts must advise criminal defendants of their right to testify and must obtain on-the-record waiver of that right in every case in which the defendant does not testify.  79 H. 226, 900 P.2d 1293.

  Court properly accepted witness' claim of privilege where witness' testimony in proceeding might have had some tendency to provide a "link in the chain" of evidence against witness in another killing.  80 H. 307, 909 P.2d 1122.

  Right to remain silent waived where defendant, after being properly given Miranda warnings and additionally being told that everything defendant said was "on the record", initiated dialogue with officer.  80 H. 439, 911 P.2d 74.

  "Public safety" exception to Miranda not formally adopted by Hawaii supreme court to apply to this section and was inapplicable to case; thus statements by defendant subjected to custodial interrogation without Miranda warnings inadmissible in evidence.  87 H. 71, 951 P.2d 934.

  Where Miranda warnings not first given to defendant in custody, defendant's statements to officer regarding device found in defendant's truck and device's purpose were unlawfully obtained and thus inadmissible.  87 H. 71, 951 P.2d 934.

  A trial court must pass on a defendant's attempted withdrawal of the prior waiver of his or her right to testify, tendered before the commencement of closing arguments, pursuant to the "liberal approach", whereas such an attempted withdrawal tendered thereafter is subject to the "manifest injustice" standard.  88 H. 407, 967 P.2d 239.

  Where defendant did not meet burden of establishing plausible and legitimate reasons for withdrawal of defendant's prior waiver of defendant's right to testify, defendant failed to present "fair and just reasons" for defendant's request to exercise defendant's right to testify in defendant's own behalf; thus trial court did not abuse discretion by ruling that it would not reopen case.  88 H. 407, 967 P.2d 239.

  Where trial court's denial of defendant's post-verdict motion for a new trial--based on defendant's claim that defendant's attempt to withdraw defendant's waiver of right to testify in defendant's own behalf should have been allowed--was not "manifestly unjust", no abuse of discretion.  88 H. 407, 967 P.2d 239.

  Where no evidence that defendant felt compelled to give statement to police because defendant feared defendant would be beaten, felt dizzy and in pain, and had not slept in four days prior to defendant's arrest, trial court erred in concluding statement was not voluntarily and freely given.  92 H. 135, 988 P.2d 200.

  Although lawfully "seized" within the meaning of article I, §7 of the Hawaii constitution, defendant was not "in custody" at the time defendant responded to officer's question regarding defendant's age; thus officer was not required to give Miranda warnings prior to asking the question and trial court improperly suppressed defendant's answer.  94 H. 207, 10 P.3d 728.

  When an officer lawfully "seizes" a person in order to conduct an investigative stop, the officer is not required to inform that person of the person's Miranda rights before posing questions that are reasonably designed to confirm or dispel--as briefly as possible and without any coercive connotation by either word or conduct--the officer's reasonable suspicion that criminal activity is afoot.  94 H. 207, 10 P.3d 728.

  A person is "in custody" for purposes of this section if an objective assessment of the totality of the circumstances reflects either that (1) the person has become impliedly accused of committing a crime due to the sustained and coercive nature of police questions or (2) the point of arrest has arrived because either probable cause to arrest has developed or the police have subjected the person to an unlawful "de facto" arrest without probable cause to do so.  97 H. 107, 34 P.3d 1006.

  Officer subjected defendant to "interrogation" where officer admitted that officer was aware that defendant's residential address was relevant to establishing whether defendant constructively possessed any drug contraband that might be found anywhere in the residence such that officer reasonably knew or should have known that asking defendant defendant's residential address, after discovering defendant, early in the morning, in bed in the residence, was likely to yield an incriminating response.  97 H. 107, 34 P.3d 1006.

  Where "booking" officer was presumably aware of the concept of constructive possession, search warrant authorized a search for drugs, defendant was found in the bedroom, and raid was early in the morning, officer should have known that asking defendant for defendant's address was likely to elicit an incriminating response; "booking" officer thus obtained defendant's address as a result of "custodial interrogation" without Miranda warnings and waiver and address was thus  inadmissible at trial.  97 H. 107, 34 P.3d 1006.

  Where detective was fully aware that defendant's address was relevant to prosecuting defendant at the time that detective requested defendant provide defendant's residential address on a form indicating that defendant understood defendant's constitutional rights, detective "interrogated" defendant despite defendant's invocation of defendant's right to remain silent.  97 H. 107, 34 P.3d 1006.

  Where totality of the circumstances reflected that an innocent person in defendant's shoes could reasonably have believed that he or she was not free to go and was being taken into custody indefinitely, the point of "de facto" arrest had arrived and, for purposes of this section, defendant was "in custody"; officer thus subjected defendant to custodial interrogation without Miranda warnings rendering defendant's responses inadmissible at trial.  97 H. 107, 34 P.3d 1006.

  Trial court violated defendant's constitutional privilege against self-incrimination by imposing an enhanced sentence pursuant to §706-662(4) based solely on defendant's refusal to admit defendant's guilt with respect to the offenses of which defendant was convicted by the jury.  103 H. 315, 82 P.3d 401.

  Where defendant's statements were not the product of "interrogation", but, rather, were "volunteered confessions or admissions, obtained independent of express police questioning or its functional equivalent", defendant's constitutional rights against self-incrimination and due process of law not violated.  104 H. 224, 87 P.3d 893.

  Although refusal to sign a waiver form or a written statement, was some evidence of the absence of waiver, it was outweighed by affirmative conduct indicative of a knowingly and intelligently made decision not to remain silent and to waive the right to counsel, and circumstances evinced that defendant's undisputed willingness to speak constituted an explicit, affirmative act evidencing a knowing, intelligent, and voluntary waiver; prosecution thus satisfied its burden of proving such waiver.  105 H. 131, 94 P.3d 1275.

  Defendant failed to sustain burden of proving custody, where totality of the circumstances failed to reflect either that (1) defendant had become impliedly accused of committing a crime because officer's questions became sustained and coercive, such that they were no longer reasonably designed briefly to confirm or dispel their reasonable suspicion; or (2) the point of arrest had arrived because defendant was subjected to unlawful de facto arrest without probable cause to do so.  105 H. 131, 94 P.3d 1275.

  Defendant was not in custody for purposes of triggering Miranda protections where defendant voluntarily approached officers to talk about vehicle, defendant's liberty of movement was not curtailed in any significant manner, no force was used during the encounter, defendant was not moved to a different location or physically restrained, and neither officer displayed a show of authority beyond that inherent in the mere presence of a police officer.  105 H. 131, 94 P.3d 1275.

  The presence of an attorney does not constitute an implied waiver of the right to remain silent; defense counsel's presence was not germane to the personal waiver envisioned under this section; a defendant must be advised of his or her right to remain silent even if there is an attorney present; thus, the police had an obligation to advise defendant that defendant had the right to remain silent.  109 H. 482, 128 P.3d 795.

  Where detectives met with defendant and counsel in an interview room at the police station for the purpose of interviewing defendant and obtaining defendant's statement for approximately twenty-two minutes without providing defendant with Miranda warnings, this pre-interview constituted interrogation and Miranda warnings were required prior to the pre-interview.  109 H. 482, 128 P.3d 795.

  Where (1) prosecutor argued the unreasonable inference that defendant was guilty in light of defendant's post-arrest silence, (2) the trial court declined to give a curative instruction when defendant objected to prosecutor's comments, and (3) the evidence against defendant was not so overwhelming that prosecutor's intrusion into defendant's right to remain silent may not have contributed to defendant's conviction, prosecutor's improper comments were not harmless beyond a reasonable doubt, and defendant was entitled to a new trial.  117 H. 235, 178 P.3d 1.

  Defendant's right against self-incrimination under this section and right to due process under article I, §5 violated by police practice of inviting an arrestee to make a statement and to give his or her "side of the story" or similar entreaties in a "pre-interview" before Miranda warnings were given; under the circumstances of the case, where the Mirandized statement offered into evidence at trial resulted from the exploitation of this pre-interview practice, the subsequent Miranda warnings given did not remove the "taint" of the practice; trial court's conviction and sentence vacated. 126 H. 510, 273 P.3d 1196 (2012).

  Court's ruling that evidence of defendant's juvenile proceedings could be admissible violated §571-84(h) and constituted reversible error, where ruling was a reason defendant decided not to testify, infringed on defendant's constitutional right to testify, and there was a reasonable possibility that the court's error might have contributed to defendant's conviction.  127 H. 432, 279 P.3d 1237 (2012).

  Defendant's waiver of the right to counsel was not voluntary, and defendant's statement was obtained in violation of defendant's rights under this section, where the totality of the circumstances established that defendant did not reinitiate contact with agent, and defendant's subsequent waiver of Miranda rights was not voluntarily given.  In addition to failing to make a reasonable effort to contact an attorney, agent's conduct and agent's comment about executing a search warrant on defendant's residence were reasonably likely to elicit an incriminating response.  131 H. 379, 319 P.3d 298 (2013).

  Where the district court's ultimate Tachibana colloquy was defective because it incompletely advised defendant of defendant's right to testify and because it did not establish that defendant understood defendant's rights, the district court did not obtain an on-the-record waiver of the right to testify from defendant; defendant demonstrated a constitutional violation of defendant's right to testify, which could not be considered harmless.  132 H. 85, 319 P.3d 1093 (2014).

  Prosecutor's statements not improper comment upon defendant's failure to testify.  3 H. App. 107, 643 P.2d 807.

  Defendant's constitutional and statutory right to testify in defendant's own defense was violated where judge reproached defendant to follow defendant's attorney's advice and thus refrain from testifying, and the violation was plain error; denial of the right to testify was prejudicial and not harmless beyond a reasonable doubt.  78 H. 115 (App.), 890 P.2d 702.

  Because defendant's refusal to take the field sobriety test was neither testimonial nor compelled, the Fifth Amendment and this section were not offended.  94 H. 17 (App.), 7 P.3d 193.

  Where detective made clear to defendant that "in accordance with the mandate of Miranda, the right to counsel may be invoked at any point, and when invoked, all substantive questioning must cease unless and until counsel is provided," trial court did not err in denying defendant's motion to suppress statement defendant made to detective.  101 H. 97 (App.), 63 P.3d 405.

  Where defendant was properly informed of defendant's Miranda rights against self-incrimination, and expressly waived this right and the right to counsel prior to being examined and prior to giving the suppressed statements, defendant's rights not violated.  101 H. 344 (App.), 68 P.3d 618.

  Defendant's right violated where, based on the specific facts of the case, trial court abused its discretion in directing, over defendant's objection, that defendant testify before defendant's other defense witness; error not harmless beyond a reasonable doubt as there was a reasonable possibility that trial court's error contributed to defendant's conviction.  102 H. 369 (App.), 76 P.3d 612.

  Although Miranda warnings were not given to defendant who was in custody, police officer's inquiry into whether defendant would sign a form consenting to a search of the nylon bag, which required a simple "yes or no" answer, was not the type of question reasonably likely to elicit an incriminating response; thus, because officer's inquiry regarding the consent to search form did not constitute interrogation, trial court erred in ruling that defendant's response to that inquiry, disclaiming ownership of the bag, should be suppressed.  119 H. 15 (App.), 193 P.3d 1215.

  Where Miranda warnings were not given to defendant who was in custody, under the totality of the circumstances, police officer should have known that defendant's answers to officer's inquiries were likely to elicit an incriminating response regarding defendant's relationship to the vehicle and its contents; thus, trial court correctly suppressed defendant's statements made in response to police officer's inquiries.  119 H. 15 (App.), 193 P.3d 1215.

  Although the police department form signed by defendant advising defendant of defendant's constitutional rights only referenced a single incident, where (1) defendant was clearly advised that defendant was going to be questioned about the other three incidents before defendant was questioned about any of those incidents, (2) officer repeatedly reminded defendant that defendant's constitutional rights were still available to defendant, and (3) defendant reiterated that defendant wanted to give a statement without a lawyer present, defendant knowingly, voluntarily, and intelligently waived those rights.  121 H. 513 (App.), 221 P.3d 491 (2009).

 

 

GRAND JURY COUNSEL

 

     Section 11.  Whenever a grand jury is impaneled, there shall be an independent counsel appointed as provided by law to advise the members of the grand jury regarding matters brought before it.  Independent counsel shall be selected from among those persons licensed to practice law by the supreme court of the State and shall not be a public employee.  The term and compensation for independent counsel shall be as provided by law. [Add Const Con 1978 and election Nov 7, 1978]

 

Cross References

 

  Statutory provisions, see §§612-51 to 60.

 

Case Notes

 

  Section is not self-executing, and it required a subsequent implementing legislation.  63 H. 412, 629 P.2d 1111; 63 H. 488, 630 P.2d 619; 63 H. 633, 633 P.2d 1113; 63 H. 640, 633 P.2d 545; 65 H. 22, 649 P.2d 363.

  Failure to appoint grand jury counsel does not require dismissal of indictment.  63 H. 488, 630 P.2d 619.

  Section did not create substantive right for accused.  63 H. 640, 633 P.2d 545.

  Grand jury counsel need not be physically present throughout proceeding.  64 H. 197, 638 P.2d 309.

  Grand jury counsel created for benefit of grand jury.  Not a substantive right of criminal defendant.  64 H. 427, 642 P.2d 534.

 

 

BAIL; EXCESSIVE PUNISHMENT

 

     Section 12.  Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.  The court may dispense with bail if reasonably satisfied that the defendant or witness will appear when directed, except for a defendant charged with an offense punishable by life imprisonment. [Am Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978]

 

Note

 

  A proposal of the 1978 Constitutional Convention deleted the former section 12, which read:  "No person shall be disqualified to serve as a juror because of sex."  This deletion appears to be one of the unspecified changes submitted for ratification under Question 34.  On whether any of the changes submitted under Question 34 was in fact approved by the electorate, see Kahalekai v. Doi, 60 H. 324, 590 P.2d 543, excerpted in the note preceding the Preamble to the Constitution.

 

Law Journals and Reviews

 

  State v. Kumukau:  A Case for the Application of Eighth Amendment Proportionality Analysis.  13 UH L. Rev. 577.

  Risky Business:  Assessing Dangerousness in Hawai‘i.  24 UH L. Rev. 63.

 

Case Notes

 

Bail.

  Section also protects persons from unreasonable or arbitrary denial of bail.  64 H. 527, 644 P.2d 968.

  Judicial discretion provided for in section applies only during pre-conviction stage.  66 H. 82, 657 P.2d 464.

  Cited:  56 H. 447, 539 P.2d 1197.

 

Cruel and unusual punishment.

  See also notes to U.S. Const. Amend. 8.

  Count alleging violations of the state constitution failed to state a claim in a 42 U.S.C. §1983 civil rights lawsuit brought by a former state prisoner and other allegedly similarly-situated plaintiffs primarily seeking damages for "over detention".  678 F. Supp. 2d 1061 (2010).

  Given heinous character of offenses committed and primacy of retributive, incapacitative, and deterrent objectives, prescribed punishment not so disproportionate to proscribed conduct and of such duration as to shock conscience of reasonable persons or outrage moral sense of the community.  83 H. 335, 926 P.2d 1258.

  Not violated by ninety-day suspension of driver's license under §291-4 for drunken bicyclist where:  (1) no showing that disparity of risk between drunken bicyclists and drunken automobile drivers is so great; and (2) suspension not disproportionately onerous compared to more serious crimes in same jurisdiction and for the same offense in different jurisdictions.  87 H. 249, 953 P.2d 1347.

  Not violated by trial court's refusal to find strong mitigating circumstances pursuant to §706-606.5(4) (1998) and imposition of concurrent mandatory minimum ten-year terms where defendant could have reasonably been deemed to pose a danger to society, more serious crimes by repeat offenders may be punished in Hawaii by longer mandatory minimum terms, and other jurisdictions permitted significantly lengthier sentences for repeat offenders.  93 H. 87, 997 P.2d 13.

  Registration requirements under chapter 846E not cruel and unusual punishment under this section as registration requirements are not so punitive in nature as to overcome legislature's remedial purpose.  105 H. 222, 96 P.3d 242.

  As imposition of one-year term of probation, subject to condition that defendant undergo sex offender evaluation and treatment, for tying up and hitting nephew with belt (1) fell within the range of punishment prescribed by the applicable statutory provisions, (2) did not shock the conscience of reasonable persons, and (3) did not outrage the moral sense of the community, the family court did not violate this section by imposing this sentence.  107 H. 117, 111 P.3d 12.

  Given the destructive, deceitful, and wasteful, albeit nonviolent, character of defendant's offenses and the primacy of the retributive, incapacitative, and deterrent objectives, five consecutive ten-year terms of imprisonment did not reflect a plain and manifest abuse of discretion on the part of the trial court; such a sentence was not so disproportionate to defendant's crimes nor of such duration as to shock the conscience of reasonable persons or to outrage the moral sense of the community, in light of the developing concepts of decency and fairness.  111 H. 267, 141 P.3d 440.

 

 

TRIAL BY JURY, CIVIL CASES

 

     Section 13.  In suits at common law where the value in controversy shall exceed five thousand dollars, the right of trial by jury shall be preserved.  The legislature may provide for a verdict by not less than three-fourths of the members of the jury. [Ren and am Const Con 1978 and election Nov 7, 1978; am SB 107 (1987) and election Nov 8, 1988]

 

Note

 

  For proposed constitutional amendment to this section, see SB 143, L 2015, pg. 733.

 

Attorney General Opinions

 

  The jury referred to is a jury of twelve.  Att. Gen. Op. 68-10.

  Constitutional amendment must be made to this section before a jury of less than twelve persons may be used for civil matters when parties do not stipulate to a smaller jury panel.  Att. Gen. Op. 97-2.

 

Law Journals and Reviews

 

  Hawai‘i 2000 Report Regarding Lawyers' Opinion Letters in Mortgage Loan Transactions.  22 UH L. Rev. 347.

  Blast It All: Allen Charges and the Dangers of Playing With Dynamite.  32 UH L. Rev. 323 (2010).

 

Case Notes

 

  Section does not prohibit use of six-member jury by federal district court in diversity personal injury action.  487 F.2d 957.

  Language of U.S. Constitution Seventh Amendment preserved in order to preserve also the judicial interpretation.  50 H. 528, 445 P.2d 376.

  Right under the procedural rules considered.  50 H. 528, 445 P.2d 376.

  Noncompliance with statute and court rules regulating manner of exercising right of jury trial constitutes waiver of right. 53 H. 372, 493 P.2d 1032.

  Although court may set aside jury verdict, respect for the jury's assessment of the evidence is mandated.  57 H. 378, 557 P.2d 788.

  Question of whether right of jury trial applies to summary possession proceeding raised but not decided.  58 H. 276, 567 P.2d 1239.

  Right of jury trial applies to actions involving dower claims. 61 H. 236, 602 P.2d 521.

  Appellant had right to jury trial on issue of damages in action arising out of breach of lease agreement where claim was in excess of jurisdictional limit.  72 H. 373, 818 P.2d 1177.

  A statutory cause of action, such as a suit under §92E-11(c), is a "suit at common law" under the Hawai‘i constitution.  76 H. 101, 869 P.2d 1320.

  Sanctions awarded pursuant to rule 26 of Hawai‘i arbitration rules did not violate due process or this section.  76 H. 494, 880 P.2d 169.

  Apart from the past or present terms of the relevant statutes, as between the common-law practice of England, and its analogue developed under this jurisdiction, the latter controls for purposes of this section.  91 H. 81, 979 P.2d 1107.

  Based on the established common law convention of this jurisdiction at the time of adoption of the state constitution, as a general matter, a right to jury trial exists in state eminent domain proceedings.  91 H. 81, 979 P.2d 1107.

  Condemnation proceedings constitute "suits at common law" for purposes of this section.  91 H. 81, 979 P.2d 1107.

  The "substance" of the jury trial right existing in 1959 does not include the jury determination of blight of summons damages; thus, no right to a jury determination of blight of summons damages exists under this section.  91 H. 81, 979 P.2d 1107.

  Employer was entitled to a jury trial, under this section, with respect to employees' allegation of sexual discrimination and retaliation, as §368-17(a) empowered the Hawaii civil rights commission to award legal forms of relief, and, in proceedings before the commission, the employees and executive director claimed legal relief in the form of monetary damages of $400,000 for each employee.  101 H. 438, 71 P.3d 389.

  Where third party leasing agents were not parties to lease agreement between landlord and tenant, express waiver of right to jury trial in agreement did not apply to those third parties.  85 H. 300 (App.), 944 P.2d 97.

  By entering an order of default against defendant on the issue of liability in an automobile accident case because defendant refused to make an offer of monetary settlement, trial court deprived defendant not only of defendant's right to a trial de novo to appeal the arbitration award, but also of defendant's right under this section to have the liability issue determined by a jury.  99 H. 432 (App.), 56 P.3d 734.

  Defendants were not denied their right to a jury trial by virtue of the trial court's imposing an unjust enrichment award against them; because plaintiffs' damages were not ascertainable or remediable by reference to the contractual remedies provided for, equitable remedies were appropriate; thus, trial court did not abuse its discretion by considering the jury's verdict to be only advisory or by imposing an equitable remedy.  116 H. 42 (App.), 169 P.3d 994.

  A fundamental constitutional right to a jury trial exists when a person is faced with substantial legal damages in a statutory discrimination action; where there was no reasoned basis for concluding that a person has a fundamental constitutional right if the Hawaii civil rights commission awards such damages, but no fundamental constitutional right if a court awards such damages, landlord was entitled to a jury trial with respect to tenant's demand for substantial compensatory and punitive damages.  128 H. 159 (App.), 284 P.3d 932 (2012).

  Although reasonable conditions may be placed upon the fundamental right to a jury trial in civil cases, including rules and procedures affecting its exercise, where, under the circumstances of the case, the Hawaii civil rights commission (HCRC) executive director's opposition to removal to court and declaration that landlord's procedural rights had been waived made the right "practically unavailable" to landlord because there was no method to remove the case absent the executive director doing so, landlord did not waive landlord's right to a jury trial during the HCRC proceedings.  128 H. 159 (App.), 284 P.3d 932 (2012).

 

 

RIGHTS OF ACCUSED

 

     Section 14.  In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the district wherein the crime shall have been committed, which district shall have been previously ascertained by law, or of such other district to which the prosecution may be removed with the consent of the accused; to be informed of the nature and cause of the accusation; to be confronted with the witnesses against the accused, provided that the legislature may provide by law for the inadmissibility of privileged confidential communications between an alleged crime victim and the alleged crime victim's physician, psychologist, counselor or licensed mental health professional; to have compulsory process for obtaining witnesses in the accused's favor; and to have the assistance of counsel for the accused's defense.  Juries, where the crime charged is serious, shall consist of twelve persons.  The State shall provide counsel for an indigent defendant charged with an offense punishable by imprisonment. [Am Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978; am SB 2846 (2004) and election Nov 2, 2004]

 

Cross References

 

  Jury of the "district", see §806-17.

 

Attorney General Opinions

 

  Constitutional amendment eliminating jury trial for serious criminal cases will not be consistent with the due process clause of the Fourteenth Amendment.  Att. Gen. Op. 68-10.

  The jury referred to is a jury of twelve.  Att. Gen. Op. 68-10.

  Last sentence took effect upon ratification of proposal by voters on election day and not upon certification of result by lieutenant governor.  Att. Gen. Op. 68-31.

  Proposed legislation did not conflict with mandates of this section with regard to permitting a jury of six persons in cases involving "non-serious crimes".  Att. Gen. Op. 97-2.

 

Law Journals and Reviews

 

  Suppression of Evidence Without the Aid of the Fourth, Fifth and Sixth Amendments.  8 HBJ 109.

  The Hawaii Supreme Court's Criminal Law Decisions 1997-1998:  Fair Use of the Doctrine of Plain Error?  II HBJ No. 13, at pg. 49.

  Included Offenses in Hawaii Case Law and the Rights to Trial by Jury:  Coherence or Confusion.  II HBJ No. 13, at pg. 77.

  State v. Smith:  The Standard of Effectiveness of Counsel in Hawaii Following Strickland v. Washington.  9 UH L. Rev. 371.

  State v. Furutani:  Hawai‘i's Protection of a Defendant's Right to a Fair Trial--Verdict Impeachment Made Easy.  17 UH L. Rev. 307.

  State v. Lindsey:  "Petty" Offenses and the Right to Jury Trial under the Hawai‘i Constitution.  17 UH L. Rev. 331.

  Criminal Procedure Rights Under the Hawaii Constitution Since 1992.  18 UH L. Rev. 683.

  State v. Sinagoga:  The Collateral Use of Uncounseled Misdemeanor Convictions in Hawai‘i.  19 UH L. Rev. 813.

  Blast It All:  Allen Charges and the Dangers of Playing With Dynamite.  32 UH L. Rev. 323 (2010).

  State v. Fields:  Should a Declarant's Professed Memory Loss at Trial Satisfy the "Unavailability" Requirement Under Hawaii's Confrontation Clause?  34 UH L. Rev. 329 (2012).

 

Case Notes

 

Generally.

  Section modeled after the Sixth Amendment of the federal constitution and was intended to incorporate it and to give the State the benefit of federal decisions construing the same language.  47 H. 361, 385, 389 P.2d 439.

 

Compulsory process.

  Defendant only afforded right to compel attendance and testimony of witnesses who can give relevant and beneficial testimony for defense.  64 H. 217, 638 P.2d 324; 67 H. 59, 677 P.2d 465.

  Evidence did not show that testimony would have been relevant and beneficial to defense.  64 H. 217, 638 P.2d 324.

  Violated by prohibition of witnesses' description testimony, though their identification testimony suppressed.  67 H. 123, 680 P.2d 253.

  To protect the right to testify under Hawai‘i constitution, trial courts must advise criminal defendants of their right to testify and must obtain on-the-record waiver of that right in every case in which the defendant does not testify.  79 H. 226, 900 P.2d 1293.

  A trial court must pass on a defendant's attempted withdrawal of the prior waiver of his or her right to testify, tendered before the commencement of closing arguments, pursuant to the "liberal approach", whereas such an attempted withdrawal tendered thereafter is subject to the "manifest injustice" standard.  88 H. 407, 967 P.2d 239.

  Where defendant did not meet burden of establishing plausible and legitimate reasons for withdrawal of defendant's prior waiver of defendant's right to testify, defendant failed to present "fair and just reasons" for defendant's request to exercise defendant's right to testify in defendant's own behalf; thus trial court did not abuse discretion by ruling that it would not reopen case.  88 H. 407, 967 P.2d 239.

  Where trial court's denial of defendant's post-verdict motion for a new trial--based on defendant's claim that defendant's attempt to withdraw defendant's waiver of right to testify in defendant's own behalf should have been allowed--was not "manifestly unjust", no abuse of discretion.  88 H. 407, 967 P.2d 239.

  Defendant's right to testify violated where trial court failed to establish on the record that defendant's decision not to testify was made knowingly and voluntarily.  91 H. 275, 982 P.2d 904.

  The Tachibana colloquy to advise a defendant that he or she has a right not to testify is required only in cases in which the defendant does not testify; it is not required in a situation where the defendant has decided to testify.  94 H. 292, 12 P.3d 1233.

  To minimize the scope of any post-conviction claim by a testifying defendant that he or she was not aware of his or her right to testify, trial court must give prior-to-start-of-trial advisement informing defendant of his or her right to testify or not to testify, and that if defendant has not testified by the end of trial, the court will briefly question defendant to ensure that the decision not to testify was defendant's own decision.  94 H. 292, 12 P.3d 1233.

  Where witness appeared, exercised witness' right to remain silent, and defendant failed to offer proof beyond conjecture that witness' testimony would be helpful to defendant, defendant's right not violated.  100 H. 210, 58 P.3d 1257.

  Where prosecutor discussed statements by potential members of the jury elicited during voir dire that prosecutor did not offer in evidence, prosecutor impermissibly commented on matters outside the evidence.  125 H. 271, 260 P.3d 350 (2011).

  Where prosecutor's comments that respondent had benefited from listening to all the other witnesses before testifying plainly conveyed to the jury that respondent's testimony therefore should be discredited were based solely on respondent's presence at trial, they were prohibited generic tailoring comments.  125 H. 271, 260 P.3d 350 (2011).

  Court's ruling that evidence of defendant's juvenile proceedings could be admissible violated §571-84(h) and constituted reversible error, where ruling was a reason defendant decided not to testify, infringed on defendant's constitutional right to testify, and there was a reasonable possibility that the court's error might have contributed to defendant's conviction.  127 H. 432, 279 P.3d 1237 (2012).

  Advisement by the family court did not adequately ascertain whether petitioner understood petitioner's constitutional right to testify or not to testify, as required by the Hawaii supreme court in Tachibana v. State.  Moreover, petitioner's need for an interpreter during the trial was a "salient fact" heightening the necessity for the court to insure that petitioner understood the rights petitioner waived.  Accordingly, the court did not obtain a valid on-the-record waiver of petitioner's right to testify.  130 H. 83, 306 P.3d 128 (2013).

  Where the district court's ultimate Tachibana colloquy was defective because it incompletely advised defendant of defendant's right to testify and because it did not establish that defendant understood defendant's rights, the district court did not obtain an on-the-record waiver of the right to testify from defendant; defendant demonstrated a constitutional violation of defendant's right to testify, which could not be considered harmless.  132 H. 85, 319 P.3d 1093 (2014).

  Not violated by trial court's refusal to allow further examination of witness.  5 H. App. 127, 681 P.2d 573.

  Defendant's constitutional and statutory right to testify in defendant's own defense was violated where judge reproached defendant to follow defendant's attorney's advice and thus refrain from testifying, and the violation was plain error; denial of the right to testify was prejudicial and not harmless beyond a reasonable doubt.  78 H. 115 (App.), 890 P.2d 702.

  Trial court's failure to obtain on-the-record waivers from co-defendants of their right to testify was not harmless beyond a reasonable doubt where, if co-defendants' testimony had been added to version of events, jury's decision may have been different.  92 H. 148 (App.), 988 P.2d 667.

  Where trial court violated defendant's right to testify by failing to advise defendant of that right and obtain a waiver on the record, and it could not be said beyond a reasonable doubt that if defendant's testimony had been added to the eyewitness' version of the incident, the verdict would not have been different, trial court's error not harmless beyond a reasonable doubt.  93 H. 513 (App.), 6 P.3d 385.

  As right to testify is personal to defendant, to be relinquished only by defendant, court erred in failing to obtain waiver of right directly from defendant; defense counsel's remark that "he has elected not to testify" did not constitute a voluntary and knowing waiver by defendant of that right. 94 H. 271 (App.), 12 P.3d 371.

  Where decisive issue in case was credibility, and there was extensive contradiction between State's witnesses and defendant's witness, a reasonable possibility existed that violation of defendant's right to testify contributed to defendant's conviction; court's error was thus not harmless beyond a reasonable doubt and defendant's conviction and sentence had to be vacated. 94 H. 271 (App.), 12 P.3d 371.

  Failure to advise defendant who testified that defendant had a right not to testify during trial was harmless error, rather than plain error.  94 H. 309 (App.), 12 P.3d 1250.

  Where the prosecutor's remarks during closing argument constituted a "generic accusation" that defendant tailored defendant's testimony based solely on defendant's presence at trial, and the evidence against defendant was not overwhelming, and as a result, the pivotal issue in the case was the credibility of the witnesses, defendant's rights under this section were violated as it could not be concluded that the prosecutor's conduct did not contribute to defendant's conviction.  123 H. 284 (App.), 231 P.3d 1001 (2010).

 

Confrontation of witnesses.

  See also notes to U.S. Const. Amend. 6.

  Compulsory process provision construed; witness violating order excluding witnesses from courtroom should still be allowed to testify to guarantee accused's constitutional right.  51 H. 581, 465 P.2d 560.

  No violation where the State made a good faith effort to locate witness.  70 H. 343, 771 P.2d 509.

  No violation where witness is unavailable and former testimony is used.  71 H. 274, 789 P.2d 497.

  Lower court's failure to issue bench warrant for complaining witness in family abuse case, and denial of motion for dismissal without prejudice, violated appellant's right to confrontation.  72 H. 469, 822 P.2d 519.

  Criminal defendant's right to be present at all stages of trial cannot be waived by counsel.  73 H. 97, 828 P.2d 280.

  Error for trial court to refuse to permit a defense witness to testify as penalty for violating witness exclusion rule.  73 H. 331, 832 P.2d 269.

  Right not violated by defendant's absence from conference settling jury instructions as conference does not involve jury's presence or witness testimony.  74 H. 141, 838 P.2d 1374.

  Appellant's right violated; trial court improperly admitted witness' testimony under excited utterance exception to hearsay rule where prosecution failed to issue trial subpoena to declarant and failed to make showing of declarant's unavailability.  74 H. 343, 845 P.2d 547.

  Admission of co-defendant's testimony concerning incriminatory out-of-court statements made against defendant did not violate defendant's rights to confront defendant's accuser under the U.S. or Hawai‘i Constitutions.  76 H. 148, 871 P.2d 782.

  Circuit court's limitation of appellant's cross-examination of witness did not violate appellant's right to confront witnesses against appellant where appellant adequately raised issue of witness' possible bias.  78 H. 383, 894 P.2d 80.

  Defendant's right of confrontation under this section was violated by the admission of complainant's videotaped interview in lieu of direct examination.  79 H. 128, 900 P.2d 135.

  Prior to introduction of videotaped interview, cross-examination of complainant sex assault victim regarding complainant's conversation with police officer satisfied defendant's right of confrontation.  80 H. 107, 905 P.2d 613.

  Not violated by admission of declarant's former testimony under HRE rule 804(b)(1) where prosecution established declarant's unavailability, that it had made good faith efforts to secure declarant's presence, and reliability of statement was shown.  82 H. 202, 921 P.2d 122.

  Abuse of discretion where trial court excluded evidence of complainant's prior conviction, by prohibiting cross-examination of complainant, from which jury could have inferred that complainant had a motive to bring false charges against defendant and give false testimony at trial.  83 H. 109, 924 P.2d 1215.

  Right violated as prosecution witness not "unavailable" under HRE rule 804(a)(5); prosecution's good faith efforts require a search equally as vigorous as that which it would undertake to find a critical witness if it had no prior testimony to rely upon in the event of unavailability.  83 H. 267, 925 P.2d 1091.

  Right not violated where trial court allowed defense adequate opportunity to raise issue of witness' possible bias while imposing modest restriction on defense's cross-examination of witness to avoid risk of prejudicing jury.  83 H. 335, 926 P.2d 1258.

  Admission into evidence of witness' grand jury testimony under HRE rule 802.1(4), past recollection recorded hearsay exception, did not violate defendant's right where witness' testimony was supported by numerous guarantees of trustworthiness, and defendant was able to cross-examine witness on witness' subsequent failure to remember alleged incident.  92 H. 61, 987 P.2d 959.

  Admission into evidence of witness' handwritten statement on the bottom of an identification form, under HRE rule 802.1(4), past recollection recorded hearsay exception, did not violate defendant's right where witness' statement was supported by numerous guarantees of trustworthiness.  92 H. 61, 987 P.2d 959.

  Right not violated by trial court's imposition of certain restrictions on scope of defense counsel's cross-examination where (1) there was no reasonable possibility that the cross-examination would have changed the outcome of defendant's trial; (2) witness' second forgery conviction on recross examination was beyond the scope of redirect examination; and (3) defense counsel's inquiring into the location of a map given to witness by defendant was not relevant.  99 H. 390, 56 P.3d 692.

  When a statutory privilege interferes with a defendant's constitutional right to cross-examine, then, upon a sufficient showing by the defendant, the witness' statutory privilege must, in the interest of the truth-seeking process, bow to the defendant's constitutional rights.  101 H. 172, 65 P.3d 119.

  As there is no exception under HRE rule 804(b)(8) for pending or anticipated litigation, such that statements by victim-wife would have been admissible even if a divorce proceeding had actually been underway, trial court did not abuse discretion in determining hearsay statements were trustworthy; however, trial court abused discretion in admitting statements in violation of defendant's constitutional right to confront and cross-examine adverse witnesses.  103 H. 89, 79 P.3d 1263.

  Where trial court prohibited all inquiry into the complainant's alleged motive or bias for faking injury, petitioner's right of confrontation under the Sixth Amendment and this section was violated; appellate court erred and case remanded for new trial.  106 H. 116, 102 P.3d 360.

  Defendant's right of confrontation was not violated by trial court's admission of girlfriend's statement to officer as Hawaii's confrontation clause, like its federal  counterpart, is not implicated where the hearsay declarant attends trial and is cross-examined about his or her prior out-of-court statement.  115 H. 503, 168 P.3d 955.

  Where, pursuant to HRE rule 404(b), defendant was required to give prosecution reasonable notice prior to introducing rule 404(b) evidence, it did not violate defendant's constitutional right to present a defense and examine witnesses; rule 404(b) is not per se unconstitutional even though it may restrict a defendant's constitutional right to confront an adverse witness and rule 404(b)'s policy of reducing surprise and promoting early resolution on the issue of admissibility justified the limitation imposed on the defendant's constitutional right to testify.   118 H. 452, 193 P.3d 368.

  Where trial court did not err in its evidentiary rulings, and defendant had alternative means available of cross-examining police officer, the trial court did not deny defendant the opportunity to challenge the credibility and veracity of officer, in violation of defendant's constitutional right of confrontation.  118 H. 493, 193 P.3d 409.

  Where trial court erroneously ruled on whether complainant's review of complainant's statement would refresh complainant's recollection by sustaining prosecution's objection on the basis that the complainant had answered defendant's question, this erroneous ruling inhibited defendant from confronting the complainant with a potential prior inconsistent statement under HRE rule 613(b), adversely affected defendant's substantial right to confrontation, and was reversible error.  118 H. 493, 193 P.3d 409.

  It is improper, under this section, for the prosecution to make generic accusations during closing argument that the defendant tailored defendant's testimony based solely on the exercise of defendant's right to be present during the trial, which could discourage a defendant from exercising defendant's constitutional right to testify on one's own behalf.  122 H. 312, 226 P.3d 482 (2010).

  Where prosecution referred to specific evidence presented at trial in addition to referring to defendant's presence at trial, it could not be said that the prosecutor's remarks during closing argument constituted a "generic accusation" that defendant tailored defendant's testimony based solely on defendant's presence at trial; thus, prosecutor's comments did not violate defendant's right to be present at trial under this section and prosecutor's comments therefore did not constitute prosecutorial misconduct.  122 H. 312, 226 P.3d 482 (2010).

  Admission of officer's testimony regarding complainant's statement that "my boyfriend beat me up" as an excited utterance did not violate defendant's right under this section where complainant appeared for cross-examination at trial.  124 H. 130, 238 P.3d 162 (2010).

  Where prosecutor's comments that respondent had benefited from listening to all the other witnesses before testifying plainly conveyed to the jury that respondent's testimony therefore should be discredited were based solely on respondent's presence at trial, they were prohibited generic tailoring comments.  125 H. 271, 260 P.3d 350 (2011).

  Defendant's right violated where court did not allow defendant to cross-examine complainant about complainant's alleged theft of defendant's credit cards; had defendant been allowed to cross-examine, defendant might have succeeded in eliciting testimony from complainant tending to show that complainant was biased or had a motive to fabricate or exaggerate the story about harassment and to testify falsely in court, which in turn could have affected the court's view of complainant's credibility and that the State had not proven its case.  128 H. 34, 282 P.3d 576 (2012).

  Not violated in DUI case by admission into evidence of log showing breath-testing instrument had been tested for accuracy.  9 H. App. 130, 828 P.2d 813.

  Admission into evidence of redacted confessions of defendants-spouses violated defendants-spouses' confrontational rights.  10 H. App. 43, 861 P.2d 24.

  Defendant's confrontation rights were not violated by admission of "hearsay" statements.  79 H. 175 (App.), 900 P.2d 172.

  Defendant entitled to elicit evidence of complainant's past sexual behavior, not to attack complainant's character, but to determine whether complainant was mentally defective and whether defendant knew that complainant was mentally defective.  81 H. 447 (App.), 918 P.2d 254.

  Not violated by complainant's failure to testify at trial because complainant's statements were not hearsay and actual truth or falsity of statements were irrelevant to defendant's conviction for violating warning citation under §709-906.  82 H. 381 (App.), 922 P.2d 994.

  Clause not violated where questions defendant wanted to ask police officer regarding officer's "motive" and "knowledge of how much cocaine a drug addict would consume" were not relevant to any issue in case.  82 H. 499 (App.), 923 P.2d 916.

  Trial court erred by not allowing defendant to introduce evidence of, and cross-examine victim as to victim's drug use and addiction at or near the time of the incident to the extent that it affected victim's perception or recollection of the alleged event, and defendant was not required to present expert testimony to that effect.  108 H. 102 (App.), 117 P.3d 834.

  Where, even in the absence of a plea agreement, witness' pending sentencing in two other criminal matters were relevant and probative of a potential bias or motive for testifying in favor of the State, trial court erred in denying defendant's motion in limine with respect to evidence of witness' pending sentencing, and error was not harmful beyond a reasonable doubt as State's case was based on jury finding that witness' testimony was credible and believing the witness over the defendant.  108 H. 102 (App.), 117 P.3d 834.

  As the right of confrontation is not absolute, circuit court properly ruled that defendant was not entitled to introduce selected portions of witness' statement that were favorable to defendant's defense and at the same time preclude the State from introducing other portions of witness' statement that were necessary to prevent the jury from being misled; thus, circuit court did not abuse its discretion in ruling that the responsive portions of witness' statement offered by the State were admissible under HRE rule 106 and rule 403.  125 H. 462 (App.), 264 P.3d 40 (2011).

 

Impartial jury.

  See also notes to U.S. Const. Amend 6.

  Violated by foreperson's statement to other jurors, based on own experience, that minors' claims of sexual molestation were reliable.  68 H. 575, 722 P.2d 1039.

  Defendant's right to a fair trial was violated when it was found that a juror had a bias to defendant's refusal to take the witness stand.  71 H. 389, 791 P.2d 1266.

  Questioning only the jury foreperson does not resolve the matter of jury misconduct.  72 H. 97, 807 P.2d 593.

  Jury was not tainted by anonymous phone calls to some of the jurors where no threat was made or where there was no actual reference to the trial.  72 H. 106, 807 P.2d 1264.

  Trial court's supplemental instruction to deadlocked jury that it must unanimously decide that it was unable to reach verdict was prejudicial.  72 H. 327, 817 P.2d 1054.

  Consideration of non-evidentiary materials by jury during deliberations and failure to rebut presumption of prejudice resulted in denial of right to fair trial.  72 H. 475, 823 P.2d 152.

  Trial court must insure that defendant's right to fair trial is not compromised and at the least prevent or reduce prejudicial pretrial publicity; order imposing restrictions on extrajudicial statements of trial participants was impermissible.  73 H. 499, 835 P.2d 637.

  Circuit court did not commit an abuse of discretion in granting defendant's motion for new trial; circuit court's conclusions of law that possible juror misconduct at voir dire and juror misconduct during deliberations deprived defendant of a trial by twelve fair and impartial jurors not clearly erroneous.  76 H. 172, 873 P.2d 51.

  Newscast concerning appellants and their alleged involvement in a burglary other than those charged and prospective juror's account of the newscast and the effect it had on prospective juror that was given in presence of jury panel, discussed as "outside influences".  78 H. 383, 894 P.2d 80.

  Not violated by empaneling of anonymous jury where there was strong reason to believe jury needed protection and trial court took reasonable steps to minimize any prejudicial effect on defendant and ensure that defendant's fundamental rights were protected.  83 H. 507, 928 P.2d 1.

  Purpose of §612-18(c) is to uphold a criminal defendant's constitutional guarantees of a presumption of innocence and an impartial jury.  83 H. 507, 928 P.2d 1.

  The right of an accused to a unanimous verdict in a criminal prosecution, tried before a jury in a court of this State, is guaranteed by this section and §5 of this article of the Hawaii constitution.  84 H. 1, 928 P.2d 843.

  When separate and distinct culpable acts are subsumed within a single count charging a sexual assault, the trial court must either (1) require the prosecution to elect the specific act upon which the prosecution is relying to establish the "conduct" element of the charged offense, or (2) give the jury a specific unanimity instruction.  84 H. 1, 928 P.2d 843.

  Defendant's right not violated by having husband and wife serve on same jury; both expressly stated during voir dire that they would each make their own decisions and would not automatically go along with the other person.  88 H. 19, 960 P.2d 1227.

  Where trial court failed to correct prosecution's erroneous interpretation of "remains unlawfully" under §708-810, defendant's constitutional rights to due process and a unanimous jury verdict violated.  89 H. 284, 972 P.2d 287.

  Where trial court erred by ruling that evidence of defendant's eligibility for HUD assistance was irrelevant under HRE rule 401 and thus inadmissible under rule 402 when evidence was probative of and relevant to defendant's requisite intent, defendant's right to present a complete defense violated.  91 H. 275, 982 P.2d 904.

  References to race that do not have an objectively legitimate purpose constitute a particularly egregious form of prosecutorial misconduct.  91 H. 405, 984 P.2d 1231.

  Where there was a reasonable possibility that prosecutor's comment during closing argument might have contributed to defendant's conviction, prosecutor's comment constituted prosecutorial misconduct that denied defendant right to a fair trial.  91 H. 405, 984 P.2d 1231.

  Defendant's constitutional right to unanimous verdict not violated as §707-715 defines a single criminal offense; subsections (1) and (2) constitute alternative means of establishing the mens rea of the offense of terroristic threatening--either one giving rise to the same criminal culpability.  92 H. 577, 994 P.2d 509.

  Where evidence concerned only a single incident of culpable conduct, trial court was not required to read the jury a specific unanimity instruction; right to unanimous verdict thus not violated.  93 H. 199, 998 P.2d 479.

  Given that any improper remarks in opening statement, closing and rebuttal arguments by prosecutor were harmless beyond a reasonable doubt, and their cumulative effect was similarly harmless and did not deprive defendant of a fair trial, prosecutor's misconduct did not warrant reversal of any of defendant's convictions and did not implicate the double jeopardy clauses of either the U.S. or Hawaii Constitutions.  95 H. 465, 24 P.3d 661.

  Juror questioning of witnesses did not deprive defendant of fair and impartial trial where questions posed by jurors were carefully reviewed by the trial court and questions tending to elicit improper or inadmissible evidence were excluded.  97 H. 206, 35 P.3d 233.

  Although prosecutor's remark that the reasonable doubt standard "was never meant to provide a shield for a guilty man" had the potential to invite the jury to misapply and erode the standard, and was thus improper, where the trial court immediately corrected the prosecutor and issued a curative instruction, and verdicts suggested that the jury was not unduly swayed by the isolated remark in the two week trial and gave proper consideration to all relevant circumstances, improper comment not reversible error.  98 H. 1, 41 P.3d 157.

  Defendant's right not violated where defendant did not assert or show that a "distinctive group" was underrepresented in the pool of potential jurors initially selected in the case.  98 H. 1, 41 P.3d 157.

  Defendant's right to a unanimous jury verdict not violated by trial court's refusal to give a specific unanimity instruction as defendant's actual and constructive possession of the methamphetamine comprised a continuing course of conduct.  99 H. 198, 53 P.3d 806.

  Where negativing of defendant's mitigating extreme mental or emotional distress defense by prosecution was a material element of the offense of first degree murder such that jury unanimity was a prerequisite to returning any verdict, and trial court's special instruction expressly directed the jury to convict defendant of manslaughter if a single juror believed that the prosecution had failed to negative the mitigating defense, right to unanimous jury verdict violated.  99 H. 542, 57 P.3d 467.

  The alternative states of mind potentially requisite to the charged offense of second degree theft by shoplifting, as prescribed by the definition of "intent to defraud" set forth in §708-800, does not implicate a defendant's constitutional right to a unanimous jury verdict, as guaranteed by article I, §5 and this section of the Hawaii constitution; a proper elements instruction, which sets forth the alternative states of mind prescribed by the "intent to defraud" component of second degree theft by shoplifting, does not violate defendant's constitutional right.  101 H. 389, 69 P.3d 517.

  Where defendant failed to satisfy defendant's burden of establishing a prima facie showing that the possibility of juror misconduct could have substantially prejudiced defendant's right to a fair trial by an impartial jury, the trial court did not abuse its discretion by denying defendant an evidentiary hearing on defendant's motion for a new trial.  103 H. 285, 81 P.3d 1200.

  Where, even if juror was sleeping and did not hear a portion of defense counsel's closing argument, juror was given correct instruction, and presumably juror followed it; thus, based on the totality of circumstances, the prosecution met its burden in establishing that the alleged deprivation of the right to a fair trial was harmless beyond a reasonable doubt.  108 H. 474, 122 P.3d 254.

  A specific unanimity (jury) instruction is not required where (1) the offense is not defined in such a manner as to preclude it from being proved as a continuous offense and (2) the prosecution alleges, adduces evidence of, and argues that the defendant's action constituted a continuous course of conduct; thus, a specific unanimity instruction was not required where prosecution alleged a continuous course of conduct with respect to defendant's kidnapping charge under §707-720, but was required for defendant's attempted first degree sexual assault charge under §707-730.  121 H. 339, 219 P.3d 1126 (2009).

  Where jury was not given a specific unanimity instruction with respect to the first degree terroristic threatening offense under §707-716, was never informed which act committed by defendant coincided with the two terroristic threatening counts, and convicted defendant of one count and acquitted defendant of the other, there was a genuine possibility that different jurors concluded that defendant committed different acts; thus, to correct any potential confusion in the case, a specific unanimity jury instruction should have been given to insure that the jury understood its duty to unanimously agree to a particular set of facts.  121 H. 339, 219 P.3d 1126 (2009).

  Appeals court did not err in concluding that theft of state property by deception under §708-830(2) constituted a continuing offense where petitioner acted "under one general impulse" and had "but one intention and plan" to unlawfully procure public assistance from the government through a "series of acts" all directed towards the same overarching goal; thus, a specific unanimity instruction for the jury under the Hawaii constitution, article I, §5 and this section was unnecessary.  122 H. 271, 226 P.3d 441 (2010).

  Where juror nine's statement that defendant had "been in trouble before" concerned a highly inflammatory and prejudicial prior crime that had been ruled inadmissible, and the circuit court had instructed the jury to disregard the statement, the evidence was not so overwhelming as to outweigh the prejudice of juror nine's statement; thus, when viewed with the trial evidence and statements of other jurors during voir dire, juror nine's statements were insurmountably prejudicial, there was a reasonable possibility that it contributed to defendant's conviction, and the circuit court abused its discretion in denying a motion for a new trial.  126 H. 383, 271 P.3d 1142 (2012).

  Where record did not reflect that the jury was informed of the act that corresponded to each count, and the family court was required to provide the jury with a specific unanimity instruction, and its failure to do so constituted error, because the one-to-one relationship between counts and acts was made clear to the jury, and the jury found defendant guilty on nineteen counts for which nineteen exhibits were presented at trial, there was no genuine possibility that different jurors concluded that the defendant committed different acts; thus, error was harmless beyond a reasonable doubt.  127 H. 20, 276 P.3d 589 (2012).

  Where defendant was present when the trial court read the newspaper publicity statement to prospective jurors, and could have, but did not, object to the court's reading of the statement, appeals court did not err in concluding that defendant forfeited defendant's objection concerning the publicity statement.  127 H. 91, 276 P.3d 660 (2012).

  Where, (1) as an officer of the court, counsel was bound to respect the law as embodied in the jury instructions, and counsel's argument to the jurors encouraged disdain for the law, (2) no curative instruction was given by the court, and (3) the evidence in the case was not so overwhelming as to outweigh the effect of the misconduct, there was a reasonable possibility that prosecutor's improper remarks might have contributed to defendant's conviction and were thus not harmless beyond a reasonable doubt.  127 H. 432, 279 P.3d 1237 (2012).

  Where prosecutor advised the jury during closing argument that the jury instructions were "mumbo jumbo", that the jury instructions could be "put aside", and that the jurors could decide the question of guilt based on their "gut feeling", prosecutor's remarks constituted prosecutorial misconduct as the prosecutor reinforced the proposition that the jurors could disregard the law embodied in the instructions and improperly invited the jury to base its verdict on considerations other than the evidence in the case.  127 H. 432, 279 P.3d 1237 (2012).

  Circuit court's failure to give a specific unanimity instruction that the jury was required to agree unanimously as to the person against whom defendant used force constituted plain error and there was at least a reasonable possibility that the circuit court's error contributed to defendant's conviction; thus, the error was not harmless beyond a reasonable doubt.  131 H. 19, 313 P.2d 708 (2013).

  Failure to inquire into circumstances of statement overheard by juror, and reliance on juror's own determination of ability to remain impartial while unaware of influences is reversible error.  2 H. App. 643, 639 P.2d 413.

  Not violated by bailiff's statement to jury foreperson that jurors should all agree with verdict if polled.  6 H. App. 320, 721 P.2d 718.

  Where trial court found statements of jurors on voir dire credible, statements were sufficient to establish beyond reasonable doubt that defendant was not denied an impartial jury.  85 H. 49 (App.), 936 P.2d 1297.

  Where State failed to rebut presumption of prejudice to defendant resulting from juror's improper investigation of details concerning defendant's welfare status, court properly granted motion for new trial.  89 H. 215 (App.), 971 P.2d 304.

  Plain error where trial court's answer to jury communication was prejudicially insufficient, misleading and affected defendant's constitutional right to a unanimous verdict as jury may have wrongly believed based on court's answer that if they failed to reach unanimous agreement as to the affirmative defense of entrapment, the defense was not applicable and a guilty verdict was required.  90 H. 489 (App.), 979 P.2d 85.

  Where there was a distinct and reasonable possibility that trial court's error in commenting upon the location of the incriminating items contributed to the conviction of the defendants, error materially impinged upon defendant's right to trial by jury, and error was not harmless beyond a reasonable doubt.  92 H. 675 (App.), 994 P.2d 607.

  Where there was no genuine possibility that the jurors were not unanimous as to the conduct for which defendant was found culpable, trial court's failure to give specific unanimity instruction as to the methamphetamine manufacturing offense did not violate defendant's substantial due process right to a unanimous jury verdict.  95 H. 365 (App.), 22 P.3d 1012.

  Where prosecutor referred to defendants' race in opening statement, there was no curative instruction given to address the inflammatory comment, trial court overruled defense counsel's timely objection, and the case against defendants, which hinged on the credibility of complainant, was not so overwhelming as to outweigh the inflammatory comment, prosecutor's references to race might have contributed to the convictions of defendants; thus,  convictions set aside.  98 H. 358 (App.), 48 P.3d 605.

  Defendant's right to a fair trial not violated where the record in the case did not indicate that juror was incompetent, unable to understand the proceedings, and unable to participate in deliberations.  120 H. 94 (App.), 201 P.3d 607.

 

Jury of the district.

  Requirements of HRPP rule 18 and this section having been satisfied, venue was proven beyond a reasonable doubt.   78 H. 185, 891 P.2d 272.

  Referred to:  51 H. 195, 456 P.2d 805.

 

Jury trials.

  Jury trials not required in "petty" offenses.  51 H. 612, 466 P.2d 422.

  Section modeled after Sixth Amendment of federal constitution.  51 H. 612, 466 P.2d 422.

  Driving under influence is serious crime entitling accused persons right to jury trial; statutory amendment limiting incarceration periods did not reduce seriousness of crime.  72 H. 597, 825 P.2d 1065.

  Waiver of right to jury trial cannot be presumed by silent record.  73 H. 217, 830 P.2d 512.

  Defendant charged with driving after license suspended for driving under influence of intoxicating liquor in violation of §291-4.5 (1985), not entitled to jury trial.  75 H. 68, 856 P.2d 1240.

  Because the record was silent as to any colloquy between court and defendant, counsel's waiver of client's right was invalid, violating defendant's right to trial by jury under this section and Sixth Amendment to U.S. Constitution.  75 H. 118, 857 P.2d 576.

  Charge of first-offense DUI under §291-4, as amended by Act 128, L 1993 was constitutionally petty; being a constitutionally petty offense, no right to a jury trial attached to first-offense DUI. 76 H. 360, 878 P.2d 699.

  Defendant did not have a right to jury trial on prostitution charges.  77 H. 162, 883 P.2d 83.

  Offense is presumptively a petty offense to which right to a jury trial does not attach, if maximum authorized term of imprisonment for offense does not exceed thirty days.  77 H. 162, 883 P.2d 83.

  Where no term of imprisonment was authorized under §266-25 for violation of administrative rule regulating boat moorings, violation a presumptively petty offense for which right to jury trial did not attach; consideration of other relevant factors failed to overcome presumption.  84 H. 65, 929 P.2d 78.

  Findings under §706-662(5) regarding (a) the age or handicapped status of the victim and (b) whether "such disability is known or reasonably should be known to the defendant" entail "intrinsic" facts; Hawaii constitution requires these findings to be made by the trier of fact, not the sentencing court.  91 H. 261, 982 P.2d 890.

  When a fact susceptible to jury determination is a predicate to the imposition of an enhanced sentence, the Hawaii constitution requires that such factual determinations be made by the trier of fact.  91 H. 261, 982 P.2d 890.

  Under totality of facts and circumstances, defendant knowingly and voluntarily waived right to jury trial; defendant was aware of right, articulated to trial court the difference between a jury trial and judge trial, defendant's counsel stated counsel had explained difference to defendant, and defendant affirmatively indicated to trial court that waiver was voluntary and a result of defendant's own reflection.  93 H. 63, 996 P.2d 268.

  There is no constitutional right to a jury trial for a first-time driving under the influence of drugs offense under §291-7 (1993) as the offense is a "petty" and not "serious" offense.  97 H. 259, 36 P.3d 803.

  Where record indicated that trial court conducted a colloquy with defendant regarding defendant's right to a trial by jury and that defendant orally waived this right, defendant subsequently failed to overcome burden of proving by a preponderance of the evidence that defendant's waiver of right to jury trial was involuntary.  99 H. 312, 55 P.3d 276.

  Defendant must personally give oral or written waiver of right to jury trial; waiver by defense counsel not valid in absence of any colloquy between court and defendant.  80 H. 372 (App.), 910 P.2d 143.

  Right not erroneously denied where plaintiff missed ten-day jury demand deadline under DCRCP rule 38(b) without adequate excuse.  83 H. 50 (App.), 924 P.2d 544.

  Where trial judge failed to engage in a colloquy with defendant to ensure that the waiver of jury trial was intelligent, knowing and voluntary, and defendant's counsel did not represent in open court that defendant was aware of defendant's right to a jury trial, under the totality of circumstances, trial court failed to obtain a valid waiver of defendant's right to a jury trial.  98 H. 77 (App.), 42 P.3d 654.

  Under the totality of the circumstances, where defendant's express waiver of a jury trial was consistently clear, direct, and unequivocal throughout the entire colloquy, defendant orally waived right to trial by jury, and failed to demonstrate by a preponderance of the evidence that this  waiver was involuntary.  105 H. 160 (App.), 95 P.3d 14.

  Where maximum time in jail for a violation of a Hawaii administrative rule was thirty days and notwithstanding that defendant was subject to a possible maximum fine of $18,000, defendant's offense was "petty"; thus, defendant had no right to a jury trial under the Hawaii constitution.  105 H. 342 (App.), 97 P.3d 418.

  Based on the totality of the circumstances, defendant failed to establish that the waiver of defendant's right to a jury trial was involuntary or improper; the family court's mass advisement, in conjunction with the family court's individualized colloquy of defendant, sufficiently apprised defendant of defendant's constitutional right to a jury trial, and defendant knowingly, intelligently, and voluntarily waived this right.  108 H. 300 (App.), 119 P.3d 608.

  Defendant did not have a constitutional right to a jury trial for a violation of §852-1, refusal to provide ingress or egress while walking a labor picket line, where the maximum punishment was thirty days in jail or a $200 fine, or both, and violation was thus a petty misdemeanor under §701-107(4).  110 H. 139 (App.), 129 P.3d 1167.

 

Public trial.

  Manner in which defendant's family was excluded from courtroom violated defendant's right to a public trial.  91 H. 181, 981 P.2d 1127.

  The right to a public trial is not implicated by the exclusion of a potential witness pursuant to the witness exclusionary rule; both the witness exclusionary rule and the right to a public trial ensure the appearance of fairness at trial; thus, defendant's right not violated by exclusion of defendant's father from the courtroom as a potential prosecution rebuttal  witness.  97 H. 206, 35 P.3d 233.

  Defendant's constitutional rights to a public trial were not implicated when the jury was allowed to deliberate, communicate, and return its verdict after normal business hours, when the courthouse was closed to the public, because the closure "was too trivial to implicate the constitutional guarantees".  112 H. 343 (App.), 145 P.3d 886.

 

Right to be informed.

  Not violated where burglary indictment alleged all elements of the crime and record indicated the specific crime intended to be committed, though specific crime not alleged.  66 H. 312, 660 P.2d 39.

  Accomplice instruction improper where each defendant was charged separately and charges did not inform them of circumstances in which they acted as accomplices.  72 H. 278, 815 P.2d 428.

  State failed to adequately inform defendant of nature and cause of the §134-6(a) charge.  78 H. 66, 890 P.2d 303.

  Section 485-21 provides an essential element of offense charged, when a defendant is charged with a criminal violation of Uniform Securities Act; counts of indictment, which cited to §485-21, were insufficient, as counts did not include essential elements of offenses charged.  78 H. 373, 894 P.2d 70.

  Although prosecution's oral charge failed to include the word "bodily" to modify "injury", the omission did not alter the nature and cause of the accusation such that a person of common understanding would fail to comprehend it; thus, the oral charge was not so obviously defective that by no reasonable construction could it be said to charge the offense for which conviction was had; because omission of the word "bodily" did not constitute an essential element of the offense, harmless error.  99 H. 312, 55 P.3d 276.

  Where the oral charge, when liberally construed, stated the offense of illegal camping and provided defendant with notice that defendant was being charged with camping in a "park" not designated as a campground, there was no evidence that the prosecution's use of the word "area" instead of "park" substantially prejudiced defendant, and the record indicated that defendant had actual knowledge of the nature of the charges against defendant, the oral charge was not defective; thus, defendant's rights were not violated.  123 H. 369, 235 P.3d 365 (2010).

  Where the definition of "animal nuisance" in the Revised Ordinances of Honolulu §7-2.2 did not create an additional essential element of the offense, and the definition of "animal nuisance" was consistent with its commonly understood meaning, defendant had fair notice of the offense charged; thus, the oral charge against defendant, which tracked the language of §7-2.3, sufficiently alleged all of the essential elements of the offense of animal nuisance.  124 H. 385, 245 P.3d 458 (2010).

  A charge of operating a vehicle under the influence of an intoxicant (OVUII) under §291E-61(a)(1) must allege the requisite mens rea in order to fully define the offense in unmistakable terms readily comprehensible to persons of common understanding, whereas an OVUII charge under §291E-61(a)(3) is an absolute liability offense for which mens rea need not be alleged or proven.  127 H. 48, 276 P.3d 617 (2012).

  Where defendant charged with harassment in violation of §711-1106(1)(a) claimed that the disjunctively worded complaint left defendant unsure of how to prepare a defense:  (1) because defendant was charged with violating only one subsection of the statute, codifying a single category of harassing behavior, the complaint did not violate the Jendrusch rule; and (2) when charging a defendant under a single subsection of a statute, the charge may be worded disjunctively in the language of the statute as long as the acts charged are reasonably related so that the charge provides sufficient notice to the defendant.  131 H. 220, 317 P.3d 664 (2013).

  Violated where minutes before trial was to commence, complaint against defendant amended from driving while license suspended to driving without a license.  81 H. 76 (App.), 912 P.2d 573.

 

Right to counsel.

  See also notes to U.S. Const. Amend. 6.

  Applied.  56 H. 23, 525 P.2d 1108.

  There is no right to counsel at a post-arrest photographic display.  59 H. 167, 578 P.2d 236.

  Effective assistance of counsel.  64 H. 62, 636 P.2d 742.

  Effective assistance of counsel denied where defense counsel caused introduction of highly prejudicial and otherwise inadmissible evidence.  68 H. 304, 712 P.2d 496.

  Violated where questioning continued after right invoked; use of defendant's unsuppressed statements not harmless beyond a reasonable doubt.  69 H. 51, 731 P.2d 1264.

  Violated by introduction of evidence that defendant invoked right, where whether defendant had done so not at issue.  69 H. 68, 733 P.2d 690.

  Claim that failure to call expert witnesses to rebut State's DNA profiling evidence introduced at motion in limine constituted ineffective assistance of counsel was meritless.  73 H. 130, 828 P.2d 1274.

  Counsel was not ineffective in failing to raise contention that defendant had not waived right to be present at trial where defendant had voluntarily absented oneself after trial had begun.  73 H. 147, 828 P.2d 281.

  Defendant has burden to establish ineffective assistance of counsel and meet two-part test; under Hawaii constitution, defendant afforded greater protection of right to effective assistance of counsel than under U.S. Constitution.  74 H. 54, 837 P.2d 1298.

  No denial of effective assistance of counsel where counsel waived defendant's presence at conference settling jury instructions, withdrew insanity defense, and failed to object to examiner's testimony.  74 H. 141, 838 P.2d 1374.

  Where petitioner's convictions on counts I (attempted first degree murder), II (second degree murder), and III (attempted second degree murder) violated §701-109(1)(c)'s clear prohibition against inconsistent factual findings, the failure to raise this issue, both at trial and on appeal, resulted in withdrawal of not only a potentially meritorious defense, but a defense that would have altered the outcome.  74 H. 442, 848 P.2d 966.

  Post-conviction ineffective assistance of counsel HRPP rule 40 petition not prejudiced where defendant alleges facts that, if proven, would entitle defendant to relief and claim is not patently frivolous and without trace of support in the record.  75 H. 419, 864 P.2d 583.

  Trial counsel's alleged errors did not constitute ineffective assistance of counsel where defendant argued, inter alia, that trial counsel should have obtained expert analysis of white powder defendant provided to undercover police officer to determine how much "pure" cocaine it contained; rejection of defendant's claim that trial counsel's failure to interview and subpoena defendant's girlfriend amounted to ineffective assistance was without prejudice to a subsequent HRPP rule 40 petition.  77 H. 72, 881 P.2d 1218.

  Knowing, intelligent and voluntary waiver of right to counsel where, inter alia, defendant persistently refused legal assistance despite court's repeated invitation and amply demonstrated capacity to proceed pro se.  81 H. 198, 915 P.2d 672.

  No ineffective assistance of counsel where defense counsel's failure to object to prosecution witnesses' testimony did not result in the withdrawal or substantial impairment of a meritorious defense.  81 H. 293, 916 P.2d 703.

  Where attorney-client privilege was not applicable to communications because they were not "confidential" but "voluntarily disclosed" in known presence of third party who was neither co-defendant nor representative of the client or of the lawyer and in a place accessible to the general public, right to effective assistance not violated.  84 H. 229, 933 P.2d 66.

  A defense counsel's representation is constitutionally ineffective under the Hawaii constitution if:  (1) a relationship giving rise to a conflict of interest existed between defense counsel and his/her clients; and (2) either the relationship adversely affected defense counsel's performance, or the client did not consent to the relationship.  88 H. 19, 960 P.2d 1227.

  No ineffective assistance of counsel based on various grounds, including conflict of interest and failure of counsel to: file pre-trial motion to dismiss indictment based on insufficient evidence; investigate and obtain testimony of witnesses; call certain witnesses; object to admission of certain evidence; and challenge selection of jurors or composition of jury.  88 H. 19, 960 P.2d 1227.

  Where defendant could have challenged the validity of the search warrant if given a range of dates of the observations by prosecution's confidential informant and defendant's attorney could file the appropriate pre-trial motions and prepare for trial without the exact dates, right to effective assistance of counsel not violated by defendant not knowing the exact dates of the observations.  88 H. 396, 967 P.2d 228.

  Right to assistance of counsel and to present a defense not violated by trial court's refusal to allow defendant to present oral argument on motion for judgment of acquittal; no constitutional right to argue a motion for judgment of acquittal.  91 H. 288, 983 P.2d 189.

  An attorney "employed and paid by the county" for the benefit of a police officer, to defend the officer in a criminal case pursuant to §52D-8 and in related civil cases, in which the county has asserted claims adverse to the officer, is not per se, by virtue of such employment and payment, deemed ineffective counsel.  95 H. 9, 18 P.3d 871.

  Defendant was entitled to a hearing on question of whether counsel who filed motion to withdraw guilty plea should have been substituted as counsel of record before trial court summarily denied defendant's motion on the ground that a withdrawal and substitution of counsel had not been filed under HRPP rule 57.  95 H. 177, 19 P.3d 1289.

  Defendant's trial counsel provided defendant with ineffective assistance in failing to seek suppression of defendant's confession on the ground that defendant's inculpatory statement was induced by detective's use of evidence that detective had obtained as a result of executing an unlawful search warrant.  98 H. 387, 49 P.3d 353.

  Ineffective assistance of counsel when defense counsel's errors and omissions resulted in the possible impairment of a potentially meritorious defense; defense counsel failed to object to prosecution's rebuttal argument commenting on defendant's failure to testify and counsel intentionally elicited detective's opinion that defendant had murdered defendant's wife.  102 H. 504, 78 P.3d 317.

  A criminal defendant has a constitutional right to confer with his or her counsel during a routine recess taken during trial proceedings, even when such recess is taken in the middle of defendant's testimony, except when a request for a non-routine recess for the purposes of conferring with counsel would, in the discretion of the trial court, interfere with the orderly and expeditious progress of the trial; thus, trial court erred when it ordered defendant not to speak to defendant's standby counsel during the 15-minute recess taken during defendant's cross examination.  121 H. 339, 219 P.3d 1126 (2009).

  Although trial court erred when it ordered defendant not to speak to defendant's standby counsel during the 15-minute recess taken during defendant's cross examination, trial court's constitutional error was harmless beyond a reasonable doubt where (1) trial court communicated the advice that defendant's counsel wanted to impart to defendant during the 15-minute recess; (2) there was no evidence that defendant wished to speak to counsel or requested a recess for that purpose; (3) defendant did not object to trial court's order; and (4) defendant chose to represent defendant's self and acted pro se both before and during trial.  121 H. 339, 219 P.3d 1126 (2009).

  Petitioner was denied petitioner's right to privately retained counsel of petitioner's choice under this section where circuit court merely considered only the timeliness of the request in making its determination to deny the motion for substitution and continuance; record did not reflect that the circuit court considered, for example, the length of the delay requested, the impact of the delay on the prosecution, witnesses or the court, and whether the delay was for a dilatory purpose; consideration of these factors supported the conclusion that the circuit court abused its discretion in denying the motion.  129 H. 296, 299 P.3d 756 (2013).

  A defendant who expressly requests counsel for post-verdict motions has a right to counsel, notwithstanding a prior waiver of counsel during trial.  Defendant's pre-trial track record of firing counsel was insufficient to establish that defendant's post-verdict request for counsel was made in bad faith.  131 H. 537, 319 P.3d 456 (2014).

  Defendant's right to counsel was violated when the circuit court denied defendant's motion for appointment of counsel for sentencing.  131 H. 537, 319 P.3d 456 (2014).

  Not violated where imprisonment authorized but not imposed.  3 H. App. 673, 657 P.2d 1062.

  No showing of knowing and intelligent waiver; infringement of right presumed prejudicial and State must rebut presumption and prove error was harmless beyond a reasonable doubt.  4 H. App. 614, 672 P.2d 1036.

  Standard for effective assistance of appellate counsel; right not violated.  6 H. App. 331, 720 P.2d 1015.

  No right to hybrid representation.  8 H. App. 330, 802 P.2d 482.

  Where an accused has been arrested and interrogated by police and has not been specifically advised by court or accused's counsel that accused has constitutional right to counsel at every stage of proceeding following that arrest, accused cannot be held to have knowingly and intelligently waived that right, and any statements made by accused to police absent the advice are inadmissible.  9 H. App. 447, 845 P.2d 1194.

  Where defendant contended that defendant was denied constitutional right to effective assistance of counsel at trial because defendant's trial counsel, deputy public defender, concurrently represented defendant's brother in another criminal case and defendant's defense at trial was that brother was the actual perpetrator of offenses for which defendant was convicted, case remanded for evidentiary hearing to determine whether conflict of interest actually existed when trial counsel represented defendant and, if so, whether the conflict prejudiced defendant's right.  77 H. 374 (App.), 884 P.2d 1150.

  The court's assumption of defense counsel's role by persuading defendant to relinquish defendant's right to testify was an interference with the attorney-client relationship protected by Sixth Amendment to U.S. Constitution and this section; the intervention by the court constituted plain error; the error was prejudicial and not harmless beyond a reasonable doubt.  78 H. 115 (App.), 890 P.2d 702.

  Indigent defendant charged with offense punishable by term of imprisonment entitled at trial to be assisted by appointed counsel.  80 H. 246 (App.), 909 P.2d 574.

  Defendant did not waive right to court-appointed counsel where defendant requested substitute court-appointed counsel and was not afforded reasonable opportunity to show good cause for a substitute court-appointed counsel.  80 H. 262 (App.), 909 P.2d 590.

  Absent valid waiver of right, use of prior uncounseled felony convictions to enhance prison sentence violates defendant's right to counsel.  81 H. 421 (App.), 918 P.2d 228.

  If sentencing court gives consideration to defendant's previous convictions in choosing to impose consecutive terms of imprisonment, court must ensure that any prior felony, misdemeanor, and petty misdemeanor conviction relied on was with defendant receiving assistance of counsel.  81 H. 421 (App.), 918 P.2d 228.

  No ineffective assistance of counsel where counsel's failure to request trial continuance when police officer was unavailable to testify at trial did not result in prejudice to defendant.  82 H. 394 (App.), 922 P.2d 1007.

  No ineffective assistance where, inter alia, defendant's counsel adequately prepared for trial, did not fail to offer motion to sever trials, and no evidence that fact that defendant's counsel was not lead counsel was prejudicial to defendant's entrapment defense.  82 H. 499 (App.), 923 P.2d 916.

  Right not violated by trial court's denial of defendant's motion to withdraw and substitute counsel as there was no good cause to warrant substitution where, despite being advised of its inadmissible nature, defendant insisted attorney proffer character evidence and character witnesses at trial, there was no "complete breakdown of trust and confidence" between attorney and defendant, and defendant elected to continue with attorney, without further protest, and did not aver that defendant wanted to go to trial pro se.  101 H. 112 (App.), 63 P.3d 420.

  Where defendant had not been charged with any crime when defendant gave defendant's statement, defendant's right not violated.  101 H. 344 (App.), 68 P.3d 618.

  Ineffective assistance of counsel where public defender (PD) mistakenly concluded that HRPP rule 16 required PD to turn over defendant's toxicology report to the State and failed to realize that by doing so, PD was waiving defendant's physician-patient privilege, and PD's errors substantially impaired defendant's potentially meritorious defense as evidence that defendant tested positive for cocaine undermined the credibility of the defendant.  107 H. 282 (App.), 112 P.3d 768.

  Where record showed that trial court judge was extraordinarily patient and accommodating with defense counsel and that if defense counsel had wanted to make a closing argument, the judge would not have denied that request, defendant waived defendant's right to make a closing argument and court's failure to affirmatively offer defendant's counsel the opportunity to present a closing argument at trial did not deprive defendant of right to present a closing argument.  110 H. 284 (App.), 132 P.3d 852.

  No ineffective assistance of counsel where consideration of all the circumstances, including a waiver by client of a conflict of interest on the part of client's attorney and a power of attorney to pay for attorney's legal services, showed that attorney did not have an actual conflict of interest between client's interest and attorney's interest.  126 H. 247 (App.), 269 P.3d 782 (2012).

 

Self-representation.

  Right of self-representation is guaranteed by this section.  Mere appointment of standby counsel over a defendant's objection does not per se violate this section; the level of standby counsel's participation determines whether a defendant's constitutional right of self-representation has been violated. 75 H. 307, 861 P.2d 11.

 

Speedy trial.

  See also notes to U.S. Const. Amend. 6.

  Factors considered in determining deprivation of speedy trial. 64 H. 65, 637 P.2d 407.

  In consenting to be tried with co-defendants, defendant could not claim that co-defendant's motions were not attributable to defendant.  64 H. 65, 637 P.2d 407.

  One year and three week delay between arrest and trial is presumptively prejudicial.  64 H. 65, 637 P.2d 407.

  HRPP rule 48 (dismissal) has broader purpose than constitutional right to speedy trial.  73 H. 352, 833 P.2d 66.

  Defendant not deprived of right, where although the reason for the delay leaned marginally in defendant's favor, the weight attributed to that factor was offset by defendant's eleventh-hour assertion of defendant's right and defendant's failure to even attempt to demonstrate that defendant was actually prejudiced by the delay in the commencement of trial.  76 H. 415, 879 P.2d 520.

  Defendants not deprived of constitutional right to speedy trial where although the reason for the delay factor weighed in favor of the defendants, it was outweighed by the facts that defendants failed to assert their right and failed to demonstrate that they were actually prejudiced by the delay in bringing them to trial.  78 H. 54, 890 P.2d 291.

  Where defendant was substantially responsible for pretrial delay and failed to assert right to speedy trial, allowing defendant's case to proceed to trial after eleven-month delay was not error.  92 H. 192, 990 P.2d 90.

  Where trial court rejected pro se defendant's motions without prejudice, giving defendant the opportunity to re-file and "correct defects", even if trial court's rejection of defendant's non-conforming motions impaired defendant's ability to proceed to trial, any resulting delay or request for continuance had to be attributed to defendant based on defendant's failure to comply with the rules of court; as the trial court properly calculated the six-month time period as defined in HRPP rule 48(b) within which the trial commenced, defendant was not deprived of defendant's right to due process or a speedy trial.  121 H. 339, 219 P.3d 1126 (2009).

  Defendant not deprived of right to speedy trial; nineteen-month delay between arrest and trial is presumptively prejudicial; defendant's right to speedy trial accrued when arrested.  4 H. App. 222, 665 P.2d 165.

  Defendant's right to a speedy trial was not violated.  8 H. App. 284, 800 P.2d 623.

  Among factors to be considered is prejudice to defendant caused by oppressive pretrial incarceration, ignominy occasioned by pending criminal charges, and difficulty of preparing for trial.  9 H. App. 232, 832 P.2d 737.

  Right not violated where delay was caused by defendant's own absence from Hawaii and consequent unavailability for trial, and defendant failed to produce evidence that defendant suffered any prejudice.  83 H. 496 (App.), 927 P.2d 1379.

  Right not violated where, although the prejudice prong of the Barker analysis weighed in favor of defendant, this prejudice was outweighed by the delay attributable to defendant and defendant's failure to demand a speedy trial; that the unavailability of victim as a witness caused the "possibility of prejudice" to defendant's defense did not support defendant's position that defendant's speedy trial right was violated.  103 H. 490 (App.), 83 P.3d 753.

  Cited:  56 H. 378, 537 P.2d 1187.

 

 

HABEAS CORPUS AND SUSPENSION OF LAWS

 

     Section 15.  The privilege of the writ of habeas corpus shall not be suspended unless, when in cases of rebellion or invasion, the public safety may require it.

     The power of suspending the privilege of the writ of habeas corpus, and the laws or the execution thereof, shall never be exercised except by the legislature, or by authority derived from it to be exercised in such particular cases only as the legislature shall expressly prescribe. [Ren and am Const Con 1978 and election Nov 7, 1978]

 

 

SUPREMACY OF CIVIL POWER

 

     Section 16.  The military shall be held in strict subordination to the civil power. [Ren Const Con 1978 and election Nov 7, 1978]

 

 

RIGHT TO BEAR ARMS

 

     Section 17.  A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. [Ren Const Con 1978 and election Nov 7, 1978]

 

Case Notes

 

  Right to bear arms may be regulated by the State in a reasonable manner.  82 H. 143, 920 P.2d 357.

 

 

QUARTERING OF SOLDIERS

 

     Section 18.  No soldier or member of the militia shall, in time of peace, be quartered in any house, without the consent of the owner or occupant, nor in time of war, except in a manner provided by law. [Ren and am Const Con 1978 and election Nov 7, 1978]

 

 

IMPRISONMENT FOR DEBT

 

     Section 19.  There shall be no imprisonment for debt. [Ren Const Con 1978 and election Nov 7, 1978]

 

 

EMINENT DOMAIN

 

     Section 20.  Private property shall not be taken or damaged for public use without just compensation. [Am Const Con 1968 and election Nov 5, 1968; ren Const Con 1978 and election Nov 7, 1978]

 

Attorney General Opinions

 

  Section 486H-10 prohibiting manufacturers and jobbers of petroleum products from operating a retail service station for retail sale of petroleum products did not violate eminent domain clause of Hawaii constitution.  Att. Gen. Op. 95-4.

 

Law Journals and Reviews

 

  The Amended Just Compensation Provision of the Hawaii Constitution:  A New Basis for Indemnification of the Condemnee.  6 HBJ 55.

  Extending Land Reform to Leasehold Condominiums in Hawai‘i.  14 UH L. Rev. 681.

  The Constitutionality of a Naked Transfer:  Mandatory Lease-to-Fee Conversion's Failure To Satisfy a Requisite Public Purpose in Hawai‘i Condominiums.  25 UH L. Rev. 561.

  The Wash of the Waves: How the Stroke of a Pen Recharacterized Accreted Lands as Public Property.  34 UH L. Rev. 525 (2012).

 

Case Notes

 

  Even assuming provision is sufficiently clear to waive State's immunity under Eleventh Amendment, provision would confer jurisdiction only upon state courts.  693 F.2d 928.

  Inverse condemnation action discussed.  840 F.2d 678.

  Where landowners argued that ordinance creating mechanism through which condominium owners could convert their leasehold interests into fee simple interests violated public use clause of U.S. and Hawaii Constitutions, ordinance was constitutional; landowners' claim under just compensation clause not ripe for federal adjudication.  124 F.3d 1150.

  Courts are immune from prohibition against taking without compensation.  402 F. Supp. 95.

  Where provision was made for just compensation, city ordinance providing mechanism for transfer of fee interest from condominium lessors to lessees was constitutional.  802 F. Supp. 326.

  Condominium lease-to-fee ordinance did not effect an impermissible taking.  832 F. Supp. 1404.

  Attorney's fees and expenses are not embraced within "just compensation".  53 H. 582, 499 P.2d 663.

  "Damaged" provision discussed.  55 H. 226, 517 P.2d 7.

  Taking under Land Reform Act is for a public use; act's valuation scheme does not deprive landowners of just compensation.  68 H. 55, 704 P.2d 888.

  Just compensation in leasehold condemnation under chapter 516.  72 H. 383, 819 P.2d 82.

  Condemnation of leased fee interests in residential houselots continued to satisfy "public use" prerequisite of Fifth Amendment to U.S. Constitution and this section.  79 H. 64, 898 P.2d 576.

  As Hawaiian custom and usage have always been part of the laws of the State, court's recognition of customary and traditional Hawaiian rights did not constitute judicial taking.  79 H. 425, 903 P.2d 1246.

  As water is a state public trust resource to which no individual, including Waiahole Ditch water use permittees, could claim an exclusive right, permittees being required to fund subsequent stream studies and monitoring activities was not an unconstitutional "regulatory leveraging".  94 H. 97, 9 P.3d 409.

  No unconstitutional taking of petitioner's property without just compensation by water resource management commission's denying petitioner's request to use the ground water underlying its lands and allocating it instead to other leeward parties where the right to absolute ownership of water exclusive of the public trust never accompanied the "bundle of rights" conferred in the Mahele.  94 H. 97, 9 P.3d 409.

  Under the Hawaii constitution, courts may consider the validity of the public purpose asserted by the government in a condemnation action and, under appropriate circumstances, consider whether a purported public purpose is pretextual; thus, under the circumstances of the case, where it appeared that the trial court erred in declining to expressly examine the pretext issue in the condemnation, the trial court's judgment in the condemnation vacated and case remanded.  119 H. 352, 198 P.3d 615.

  Although a contract that delegates a county's eminent domain powers raises well-founded concerns that a private purpose is afoot, a per se rule of pretext would threaten the established rule of deference given to the government's findings and declarations; by allowing a defendant to present evidence of pretext beyond the government's findings and declarations, the fact that a legislative body may not admit that the purpose is for a private benefit does not alleviate the defendant's burden to show pretext or necessitate a per se rule of pretext.  124 H. 281, 242 P.3d 1136 (2010).

  Where record reflected that the developer was not the only entity that stood to benefit from the construction of the bypass road and the fact that the bypass allowed the developer to develop its property did not detract or destroy the public character of the bypass or render the condemnation invalid.  124 H. 281, 242 P.3d 1136 (2010).

  Act 73, L 2003, by declaring accreted land to be "public land" and prohibiting littoral owners from registering existing accretion under chapter 501 and/or quieting title under chapter 669, permanently divested a littoral owner of his or her ownership rights to any existing accretions to oceanfront property that were unregistered or unrecorded as of the effective date of Act 73 or for which no application for registration or petition to quiet title was pending; thus, Act 73 effectuated a permanent taking of such accreted lands without just compensation in violation of this section.  122 H. 34 (App.), 222 P.3d 441 (2009).

  Act 73, L 2003, by declaring accreted land to be "public land" and prohibiting littoral owners from registering future accretion under chapter 501 and/or quieting title under chapter 669, did not effectuate a taking of future accreted lands without just compensation in violation of this section where plaintiffs had no vested right to future accretions to their oceanfront land that may never materialize.  122 H. 34 (App.), 222 P.3d 441 (2009).

  As a community plan amendment is not an administrative act, it cannot reasonably be required as a step in reaching a final agency determination for ripeness purposes; ripeness requires only that landowners take advantage of any available variances or waivers under existing law, it does not require them to undertake changing the law itself; thus, appellants were not required to seek a change in the applicable law, i.e., the community plan, in order to satisfy the ripeness requirements for their takings claim.  128 H. 183 (App.), 284 P.3d 956 (2012).

 

 

LIMITATIONS OF SPECIAL PRIVILEGES

 

     Section 21.  The power of the State to act in the general welfare shall never be impaired by the making of any irrevocable grant of special privileges or immunities. [Ren and am Const Con 1978 and election Nov 7, 1978]

 

 

CONSTRUCTION

 

     Section 22.  The enumeration of rights and privileges shall not be construed to impair or deny others retained by the people. [Ren Const Con 1978 and election Nov 7, 1978]

 

Case Notes

 

  Hawaii constitution can afford criminal defendants greater protection than those given by federal constitution.  53 H. 254, 492 P.2d 657.

 

 

MARRIAGE

 

     Section 23.  The legislature shall have the power to reserve marriage to opposite-sex couples. [Add HB 117 (1997) and election Nov 3, 1998]

 

Attorney General Opinions

 

  This section does not require that marriages be limited to opposite-sex couples.  Instead the section provides that the legislature possesses the authority to limit marriages to opposite-sex couples by statute, should it choose to do so.  Att. Gen. Op. 13-1.

 

Law Journals and Reviews

 

  The Hawai‘i Marriage Amendment:  Its Origins, Meaning and Fate.  22 UH L. Rev. 19.

  The Future of Same-Sex Marriage.  22 UH L. Rev. 119.

  The Fine Line Between Love and the Law:  Hawaii's Attempt to Resolve the Same-Sex Marriage Issue.  22 UH L. Rev. 149.

  The Defense of Marriage Act:  Sex and the Citizen.  24 UH L. Rev. 279.

  The Recognition of Same-Sex Relationships:  Comparative Institutional Analysis, Contested Social Goals, and Strategic Institutional Choice.  28 UH L. Rev. 23.

  Free Exercise and Hybrid Rights:  An Alternative Perspective on the Constitutionality of Same-Sex Marriage Bans.  29 UH L. Rev. 23.

  Judicial Review and Sexual Freedom.  30 UH L. Rev. 1.

  The State Marriage Cases:  Implications for Hawai‘i's Marriage Equality Debate in the Post-Lawrence and Romer Era.  31 UH L. Rev. 653 (2009).

  Tax Justice and Same-Sex Domestic Partner Health Benefits:  An Analysis of the Tax Equity For Health Plan Beneficiaries Act.  32 UH L. Rev. 73 (2009).

 

Case Notes

 

  Hawaii's marriage laws (this section and §572-1) are rationally related to legitimate government interests; thus, they do not violate the equal protection clause or the due process clause of the U.S. Constitution.  884 F. Supp. 2d 1065 (2012).

 

 

PUBLIC ACCESS TO INFORMATION CONCERNING PERSONS CONVICTED OF CERTAIN OFFENSES AGAINST CHILDREN AND CERTAIN SEXUAL OFFENSES

 

     Section [24].  The public has a right of access to registration information regarding persons convicted of certain offenses against children and persons convicted of certain sexual offenses.  The legislature shall determine which offenses are subject to this provision, what information constitutes registration information to which the public has a right of access, the manner of public access to the registration information and a period of time after which and conditions pursuant to which a convicted person may petition for termination of public access. [Add SB 2843 (2004) and election Nov 2, 2004]

 

 

SEXUAL ASSAULT CRIMES AGAINST MINORS

 

     Section [25].  In continuous sexual assault crimes against minors younger than fourteen years of age, the legislature may define:

     1.  What behavior constitutes a continuing course of conduct; and

     2.  What constitutes the jury unanimity that is required for a conviction.  [Add SB 2246 (2006) and election Nov 7, 2006]

 

Cross References

 

  Continuous sexual assault of a minor under the age of fourteen years, see §707-733.6.

 

 

ARTICLE II

 

SUFFRAGE AND ELECTIONS

 

QUALIFICATIONS

 

     Section 1.  Every citizen of the United States who shall have attained the age of eighteen years, have been a resident of this State not less than one year next preceding the election and be a voter registered as provided by law, shall be qualified to vote in any state or local election. [Am Const Con 1968 and election Nov 5, 1968; am SB 41 (1971) and election Nov 7, 1972; am Const Con 1978 and election Nov 7, 1978]

 

Case Notes

 

  Where plaintiffs filed motion for preliminary injunction regarding Act 359 of 1993 Hawaii legislature (relating to Hawaiian sovereignty), as amended in 1994 and 1996, plaintiffs not likely to prevail on constitutional claims under Fourteenth and Fifteenth Amendments of U.S. Constitution, article I, §5 and this section of Hawaii constitution, or Voting Rights Act with regards to native Hawaiian vote.  941 F. Supp. 1529.

 

 

DISQUALIFICATION

 

     Section 2.  No person who is non compos mentis shall be qualified to vote.  No person convicted of a felony shall be qualified to vote except upon the person's final discharge or earlier as provided by law. [Am Const Con 1968 and election Nov 5, 1968; am Const Con 1978 and election Nov 7, 1978]

 

Attorney General Opinions

 

  Effective date of amendment; ratification by voters.  Att. Gen. Op. 69-2.

  "Final discharge" construed.  Att. Gen. Op. 69-2.

 

 

RESIDENCE

 

     Section 3.  No person shall be deemed to have gained or lost residence simply because of the person's presence or absence while employed in the service of the United States, or while engaged in navigation or while a student at any institution of learning. [Am Const Con 1978 and election Nov 7, 1978]

 

 

REGISTRATION; VOTING

 

     Section 4.  The legislature shall provide for the registration of voters and for absentee voting and shall prescribe the method of voting at all elections.  Secrecy of voting shall be preserved; provided that no person shall be required to declare a party preference or nonpartisanship as a condition of voting in any primary or special primary election.  Secrecy of voting and choice of political party affiliation or nonpartisanship shall be preserved. [Am Const Con 1978 and election Nov 7, 1978]

 

Cross References

 

  Absentee voting, see chapter 15.

  Registration, see chapter 11, pt II.

  Voting methods, see chapter 16.

 

Attorney General Opinions

 

  Referred to in passing on method of voting by absentee ballot.  Att. Gen. Op. 68-8.

 

Case Notes

 

  Where plaintiff claimed provisions requiring an open primary were facially unconstitutional because allowing voters to associate anonymously with a political party violated a party's First Amendment right of free association:  (1) plaintiff's purely facial challenge to the open primary failed; and (2) the court could not assess whether plaintiff's associational rights were burdened without considering evidence as to the extent, if any, of that burden.  982 F. Supp. 2d 1166 (2013).

 

 

CAMPAIGN FUND, SPENDING LIMIT

 

     Section 5.  The legislature shall establish a campaign fund to be used for partial public financing of campaigns for public offices of the State and its political subdivisions, as provided by law.  The legislature shall provide a limit on the campaign spending of candidates. [Add Const Con 1978 and election Nov 7, 1978]

 

 

CAMPAIGN CONTRIBUTIONS LIMITS

 

     Section 6.  Limitations on campaign contributions to any political candidate, or authorized political campaign organization for such candidate, for any elective office within the State shall be provided by law. [Add Const Con 1978 and election Nov 7, 1978]

 

 

RESIGNATION FROM PUBLIC OFFICE

 

     Section 7.  Any elected public officer shall resign from that office before being eligible as a candidate for another public office, if the term of the office sought begins before the end of the term of the office held. [Add Const Con 1978 and election Nov 7, 1978]

 

Attorney General Opinions

 

  The "another public office" refers to another elective, not appointive, public office.  Att. Gen. Op. 80-2.

  Applies to elected state or county officer seeking federal elective office; not self-executing.  Att. Gen. Op. 86-4.

  Does not require officeholders to resign if their successors would be elected at same election in which officeholders are candidates for other offices.  Att. Gen. Op. 86-17.

  Members of neighborhood boards are not public officers, therefore section is not applicable to them.  Att. Gen. Op. 88-7.

 

Law Journals and Reviews

 

  Fasi v. Cayetano:  Challenging Hawaii's "Resign-to-Run" Amendment.  13 UH L. Rev. 327.

  The Protection of Individual Rights Under Hawai‘i's Constitution.  14 UH L. Rev. 311.

 

Case Notes

 

  Resign-to-run requirement does not apply to candidates for federal office.  68 H. 564, 722 P.2d 1032.

  Under this section, a public officer becomes "eligible as a candidate for another public office" at the time he or she files nomination papers for the second office; therefore, he or she must resign from his or her present office before filing nomination papers for the second office, if the term of the office sought begins before the end of the term of office held.  98 H. 176, 45 P.3d 798.

 

 

GENERAL, SPECIAL AND PRIMARY ELECTIONS

 

     Section 8.  General elections shall be held on the first Tuesday after the first Monday in November in all even-numbered years.  Special and primary elections may be held as provided by law; provided that in no case shall any primary election precede a general election by less than forty-five days. [Am Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978]

 

Attorney General Opinions

 

  Special elections as authorized hereunder require specific legislation.  Att. Gen. Op. 70-26.

 

Case Notes

 

  For special elections to be held, there must be specific legislative authorization.  52 H. 410, 477 P.2d 625.

 

 

PRESIDENTIAL PREFERENCE PRIMARY

 

     Section 9.  A presidential preference primary may be held as provided by law. [Add Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978]

 

 

CONTESTED ELECTIONS

 

     Section 10.  Contested elections shall be determined by a court of competent jurisdiction in such manner as shall be provided by law. [Part of §5, ren Const Con 1968 and election Nov 5, 1968; ren Const Con 1978 and election Nov 7, 1978]

 

Cross References

 

  Election contests, see chapter 11, pt XI.

 

Case Notes

 

  The courts are the final arbiter in election contest for house seat.  51 H. 354, 461 P.2d 221.

 

 

ARTICLE III

 

THE LEGISLATURE

 

LEGISLATIVE POWER

 

     Section 1.  The legislative power of the State shall be vested in a legislature, which shall consist of two houses, a senate and a house of representatives.  Such power shall extend to all rightful subjects of legislation not inconsistent with this constitution or the Constitution of the United States.

 

Attorney General Opinions

 

  Referendum not authorized, but local option law permissible. Advisory referendum also permissible.  Att. Gen. Op. 63-11.

  A legislature though elected under an improper apportionment scheme, is empowered to reapportion itself without constitutional amendment.  Att. Gen. Op. 64-33.

  Utilization of single-member districts, multi-member districts or combination thereof held proper so long as equality of representation is attained.  Att. Gen. Op. 64-36.

  This section grants the legislature the power to consider and enact the marriage equality bill.  Att. Gen. Op. 13-1.

  Cited, in determining that the ten per cent deduction of the county surcharge for the costs of assessment, collection, and disposition of the county surcharge on state general excise tax into the state general fund is neither unconstitutional nor illegal.  Att. Gen. Op. 15-1.

 

Law Journals and Reviews

 

  How to Transfer Venue When You Only Have One:  The Problem of High Profile Criminal Jury Trials in American Samoa.  29 UH L. Rev. 325.

 

Case Notes

 

  Question of delegation of state power to federal agency discussed.  44 H. 651, 361 P.2d 390.

  Penal sanctions, effect on requirement of legislative standards for administrative agencies in adoption of regulations.  49 H. 651, 657-58, 426 P.2d 626.

  Question of unconstitutional delegation of legislative power considered.  49 H. 651, 426 P.2d 626.

  Legislature has power to establish the subject matter jurisdiction of state court system.  63 H. 55, 621 P.2d 346.

 

 

COMPOSITION OF SENATE

 

     Section 2.  The senate shall be composed of twenty-five members, who shall be elected by the qualified voters of the respective senatorial districts.  Until the next reapportionment the senatorial districts and the number of senators to be elected from each shall be as set forth in the Schedule. [Am Const Con 1968 and election Nov 5, 1968; am Const Con 1978 and election Nov 7, 1978]

 

Note

 

  A proposal of the 1978 Constitutional Convention rewriting this section was not validly ratified.  Kahalekai v. Doi, 60 H. 324, 590 P.2d 543.  The revisor has deleted the textual changes under the authority of Resolution No. 29 of the 1978 Constitutional Convention.

 

Attorney General Opinions

 

  Question of severability of certain provisions from invalid portion of the section discussed.  Att. Gen. Op. 64-35.

 

Case Notes

 

  Whether senatorial districts may be multi-member, 384 U.S. 73, 86 et seq., upon review of 238 F. Supp. 468, 240 F. Supp. 724.

 

 

COMPOSITION OF HOUSE OF REPRESENTATIVES

 

     Section 3.  The house of representatives shall be composed of fifty-one members, who shall be elected by the qualified voters of the respective representative districts.  Until the next reapportionment, the representative districts and the number of representatives to be elected from each shall be as set forth in the Schedule. [Am Const Con 1978 and election Nov 7, 1978]

 

Note

 

  A proposal of the 1978 Constitutional Convention rewriting this section was not validly ratified.  Kahalekai v. Doi, 60 H. 324, 590 P.2d 543.  The revisor has deleted the textual changes under the authority of Resolution No. 29 of the 1978 Constitutional Convention.

 

Case Notes

 

  Consideration of validity of apportionment of senate entails validity of apportionment of house, and legislature in dealing with former must be free to deal with latter.  384 U.S. 73, 83, upon review of 238 F. Supp. 468, 240 F. Supp. 724.

 

 

ELECTION OF MEMBERS; TERM

 

     Section 4.  Each member of the legislature shall be elected at an election.  If more than one candidate has been nominated for election to a seat in the legislature, the member occupying that seat shall be elected at a general election.  If a candidate nominated for a seat at a primary election is unopposed for that seat at the general election, the candidate shall be deemed elected at the primary election.  The term of office of a member of the house of representatives shall be two years and the term of office of a member of the senate shall be four years.  The term of a member of the legislature shall begin on the day of the general election at which elected or if elected at a primary election, on the day of the general election immediately following the primary election at which elected.  For a member of the house of representatives, the term shall end on the day of the general election immediately following the day the member's term commences.  For a member of the senate, the term shall end on the day of the second general election immediately following the day the member's term commences. [Ren Const Con 1978 and election Nov 7, 1978; am HB 572 (1987) and election Nov 8, 1988]

 

Attorney General Opinions

 

  Generally accepted that officer has right to resign.  Att. Gen. Op. 62-23.

  New term begins at the point of time older term ends.  Att. Gen. Op. 62-43.

  Term of office of holdover senators may be terminated by a new reapportionment plan.  Att. Gen. Op. 64-37.

 

Case Notes

 

  Implicit in provision is requirement that legislator be available for service at all times during the legislator's elected term.  52 H. 251, 473 P.2d 872.

 

 

VACANCIES

 

     Section 5.  Any vacancy in the legislature shall be filled for the unexpired term in such manner as may be provided by law, or, if no provision be made by law, by appointment by the governor for the unexpired term. [Ren and am Const Con 1978 and election Nov 7, 1978]

 

Cross References

 

  Statutory provisions, see §§17-3 and 4.

 

Case Notes

 

  Before enactment of §17-5, held that vacancy in senate resulting from death of candidate must be filled by governor by appointment.  52 H. 410, 477 P.2d 625.  But such appointment viewed in its relationship to §17-3 would be invalid as violative of equal protection.  327 F. Supp. 745.

 

 

QUALIFICATIONS OF MEMBERS

 

     Section 6.  No person shall be eligible to serve as a member of the senate unless the person has been a resident of the State for not less than three years, has attained the age of majority and is, prior to filing nomination papers and thereafter continues to be, a qualified voter of the senatorial district from which the person seeks to be elected; except that in the year of the first general election following reapportionment, but prior to the primary election, an incumbent senator may move to a new district without being disqualified from completing the remainder of the incumbent senator's term.  No person shall be eligible to serve as a member of the house of representatives unless the person has been a resident of the State for not less than three years, has attained the age of majority and is, prior to filing nomination papers and thereafter continues to be, a qualified voter of the representative district from which the person seeks to be elected; except that in the year of the first general election following reapportionment, but prior to the primary election, an incumbent representative may move to a new district without being disqualified from completing the remainder of the incumbent representative's term. [Am Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978; am HB 1012 (2002) and election Nov 5, 2002]

 

Attorney General Opinions

 

  Eligibility of county supervisor for election to legislature.  Att. Gen. Op. 62-53.

  Legislation imposing six months residence in district for candidates being additional and different qualifications from that in the Constitution is violative thereof.  Att. Gen. Op. 65-10.

  Residency requirement is not in violation of the federal Constitution.  Att. Gen. Op. 70-15.

  Legislature may require public officers to resign before seeking nomination or election to legislature.  Att. Gen. Op. 75-22.

  Eligibility of person living temporarily out-of-district.  Att. Gen. Op. 86-10.

 

Case Notes

 

  Qualifications stated must be met by the date of the general election.  52 H. 251, 473 P.2d 872.

  Residency requirement is not invalid under the federal Constitution; "compelling state interest" test is not applicable.  52 H. 251, 473 P.2d 872.

 

 

PRIVILEGES OF MEMBERS

 

     Section 7.  No member of the legislature shall be held to answer before any other tribunal for any statement made or action taken in the exercise of the member's legislative functions; and members of the legislature shall, in all cases except felony or breach of the peace, be privileged from arrest during their attendance at the sessions of their respective houses, and in going to and returning from the same. [Ren and am Const Con 1978 and election Nov 7, 1978]

 

Attorney General Opinions

 

  Traffic violation excluded from the grant of legislative immunity under this section.  Att. Gen. Op. 87-5.

 

Case Notes

 

  Order denying motion for summary judgment based on legislative privilege is final appealable order.  54 H. 376, 507 P.2d 719.

  "Exercise of legislative functions" construed.  55 H. 595, 525 P.2d 594.

  Based on the record, not indisputable that legislator's remarks were constitutionally privileged.  66 H. 133, 658 P.2d 312.

 

 

DISQUALIFICATIONS OF MEMBERS

 

     Section 8.  No member of the legislature shall hold any other public office under the State, nor shall the member, during the term for which the member is elected or appointed, be elected or appointed to any public office or employment which shall have been created, or the emoluments whereof shall have been increased, by legislative act during such term.  The term "public offices," for the purposes of this section, shall not include notaries public, reserve police officers or officers of emergency organizations for civilian defense or disaster relief.  The legislature may prescribe further disqualifications. [Ren and am Const Con 1978 and election Nov 7, 1978]

 

Attorney General Opinions

 

  Legislator may seek election to federal office without resigning before election.  Att. Gen. Op. 62-23.

  Senator whose term extends beyond next general election is disqualified to seek election at the next general election to office the salary of which has been increased.  Att. Gen. Op. 62-23.

  As public office has reference to a permanent trust and not to transient or incidental duties, legislators may be appointed to the temporary New York World's Fair Committee.  Att. Gen. Op. 62-26.

  Representative whose term ends on election day is eligible for election to office of lieutenant governor, the salary of which has been increased during the representative's term.  Att. Gen. Op. 62-43.

  Eligibility of county supervisor for election to legislature. Att. Gen. Op. 62-53.

  A professor at the University of Hawaii does not occupy a public office.  Att. Gen. Op. 66-20.

  Appointment of legislator to circuit court, before expiration of term as legislator, will not preclude legislature from raising salaries of circuit judges.  Att. Gen. Op. 69-10.

  Provision not applicable to legislator who is appointed or elected to a civil office which is created or whose emoluments are increased during the legislator's legislative term but after the legislator's appointment or election to the civil office.  Att. Gen. Op. 69-10.

  Legislator may serve on board, though created during legislator's term, where functions of board are confined to advising legislature on legislative matters.  Att. Gen. Op. 69-12.

  Public office, what constitutes; legislator may serve on board which is advisory in nature and whose functions do not involve exercise of sovereign powers.  Att. Gen. Op. 69-12.

  Member whose term ends on general election day could be elected at the general election to an office created during member's term of office.  Att. Gen. Op. 70-18.

  Aside from the prohibition against holding any other "public office", legislator may not hold incompatible positions.  Att. Gen. Op. 70-29.

  Members of legislature may be members in a constitutional convention.  Att. Gen. Op. 75-10.

  Legislature may require those running for legislative offices to resign from their present offices and may require legislators to resign before running for other offices.  Att. Gen. Op. 75-22.

  A representative appointed to the circuit court cannot be considered to be "holding" a judicial office until representative has taken a judicial oath and assumed the obligations of that office. Att. Gen. Op. 80-2.

 

Case Notes

 

  Act providing for filling vacancy in office of county chairperson does not "create" office, and emoluments are not "increased" by a worker's compensation amendment of general application.  50 H. 61, 430 P.2d 327.

 

 

LEGISLATIVE ALLOWANCE

 

     Section 9.  The members of the legislature shall receive allowances reasonably related to expenses as provided by law. [Am Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978; am SB 2072 (1984) and election Nov 6, 1984; am HB 1917 (2006) and election Nov 7, 2006]

 

Cross References

 

  Allowances, see chapter 24.

  Commission on salaries, see §26-56.

 

Attorney General Opinions

 

  Legislature may make changes in allowances, applicable to the legislature enacting the changes.  Att. Gen. Op. 75-1.

  Legislature may increase its salary by enactment of law; since a legislature exists from date of one general election to date of next, increase enacted by one legislature may be made applicable to the next legislature notwithstanding that the senate consists of holdovers.  Att. Gen. Op. 75-2.

  Legislators elected as delegates to constitutional convention are entitled to retain their full legislative salary.  Att. Gen. Op. 77-3.

  Cited as authorizing legislators to retain their salaries as legislators while serving as delegates to the constitutional convention.  Att. Gen. Op. 77-6.

 

 

SESSIONS

 

     Section 10.  The legislature shall convene annually in regular session at 10:00 o'clock a.m. on the third Wednesday in January.

     At the written request of two-thirds of the members to which each house is entitled, the presiding officers of both houses shall convene the legislature in special session.  At the written request of two-thirds of the members of the senate, the president of the senate shall convene the senate in special session for the purpose of carrying out its responsibility established by Section 3 of Article VI.  The governor may convene both houses or the senate alone in special session.

     Regular sessions shall be limited to a period of sixty days, and special sessions shall be limited to a period of thirty days.  Any session may be extended a total of not more than fifteen days.  Such extension shall be granted by the presiding officers of both houses at the written request of two-thirds of the members to which each house is entitled or may be granted by the governor.

     Each regular session shall be recessed for not less than five days at some period between the twentieth and fortieth days of the regular session.  The legislature shall determine the dates of the mandatory recess by concurrent resolution.  Any session may be recessed by concurrent resolution adopted by a majority of the members to which each house is entitled.  Saturdays, Sundays, holidays, the days in mandatory recess and any days in recess pursuant to a concurrent resolution shall be excluded in computing the number of days of any session.

     All sessions shall be held in the capital of the State.  In case the capital shall be unsafe, the governor may direct that any session be held at some other place. [Am Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978; am SB 1973 (1980) and election Nov 4, 1980]

 

Cross References

 

  Applicability of open meeting requirements, see §92-10.

  Capital, see Art. XV, §2.

  Holidays, see §§8-1 and 2.

 

Attorney General Opinions

 

  Urgency measure.  Matters foreign to urgency statement cannot be inserted in bill.  Att. Gen. Op. 62-17.

  Statement of urgency relating to pay raises for public officers and employees held sufficient.  Att. Gen. Op. 62-19.

  When national holiday falls on Saturday, the Saturday and the preceding Friday are considered holidays and are excluded in computing the number of days in a session.  Att. Gen. Op. 64-1.

  Bills to change fees payable to state agencies held to be revenue bills.  Att. Gen. Op. 64-8.

  Bills affecting the distribution of a portion of the general excise tax, consumption tax, compensating tax to the counties and thereby increasing the revenues to the State held to be revenue bills.  Att. Gen. Op. 64-10.

  No prohibition against the legislature passing an appropriation bill in which the proposed expenditures may exceed the anticipated state revenues.  Att. Gen. Op. 64-16.

  A special session may not run concurrently with a budget session; although it may run during a period of recess or adjournment.  Att. Gen. Op. 64-17.

  The provisions of this section apply only when the legislature acts as a whole or when the senate is acting on judicial nominations, and do not limit the prerogatives conferred upon each house by article III, §12 to choose its officers or amend its rules.  Att. Gen. Op. 05-1.

 

Case Notes

 

  The proposal of the 1978 Constitutional Convention amending the fourth paragraph of the section to read as set forth above was validly ratified.  60 H. 324, 590 P.2d 543.

 

 

ADJOURNMENT

 

     Section 11.  Neither house shall adjourn during any session of the legislature for more than three days, or sine die, without the consent of the other. [Ren Const Con 1978 and election Nov 7, 1978]

 

 

ORGANIZATION; DISCIPLINE; RULES; PROCEDURE

 

     Section 12.  Each house shall be the judge of the elections, returns and qualifications of its own members and shall have, for misconduct, disorderly behavior or neglect of duty of any member, power to punish such member by censure or, upon a two-thirds vote of all the members to which such house is entitled, by suspension or expulsion of such member.  Each house shall choose its own officers, determine the rules of its proceedings and keep a journal.  The ayes and noes of the members on any question shall, at the desire of one-fifth of the members present, be entered upon the journal.

     Twenty days after a bill has been referred to a committee in either house, the bill may be recalled from such committee by the affirmative vote of one-third of the members to which such house is entitled.

     Every meeting of a committee in either house or of a committee comprised of a member or members from both houses held for the purpose of making decision on matters referred to the committee shall be open to the public.

     By rule of its proceedings, applicable to both houses, each house shall provide for the date by which all bills to be considered in a regular session shall be introduced. [Ren and am Const Con 1978 and election Nov 7, 1978; am HB 1947 (1984) and election Nov 6, 1984]

 

Cross References

 

  Standards of conduct for legislators, see chapter 84.

 

Attorney General Opinions

 

  Right of recall cannot be nullified by rules of the legislature such as motion to table.  Att. Gen. Op. 76-5.

  The provisions of article III, §10 apply only when the legislature acts as a whole or when the senate is acting on judicial nominations, and do not limit the prerogatives conferred upon each house by this section to choose its officers or amend its rules.  Att. Gen. Op. 05-1.

 

Case Notes

 

  Each house judge of elections, see similar provision in §15 of Organic Act, construed and compared with provisions of Hawaiian Constitution.  14 H. 145; 15 H. 323.

  "Each house shall be the judge of the elections" construed; the court, not the legislature, is final arbiter in election contest, pursuant to article II, §7 of the Constitution.  51 H. 354, 461 P.2d 221.

  Power of each house to judge the qualifications of its members does not include power to construe provisions on qualifications contrary to construction by court.  52 H. 251, 473 P.2d 872.

  Violation of own rules by legislature will not be inquired into in absence of a constitutional mandate or unless it constitutes a deprivation of constitutionally guaranteed rights.  58 H. 25, 564 P.2d 135.

 

 

QUORUM; COMPULSORY ATTENDANCE

 

     Section 13.  A majority of the number of members to which each house is entitled shall constitute a quorum of such house for the conduct of ordinary business, of which quorum a majority vote shall suffice; but the final passage of a bill in each house shall require the vote of a majority of all the members to which such house is entitled, taken by ayes and noes and entered upon its journal.  A smaller number than a quorum may adjourn from day to day and may compel the attendance of absent members in such manner and under such penalties as each house may provide. [Ren Const Con 1978 and election Nov 7, 1978]

 

 

BILLS; ENACTMENT

 

     Section 14.  No law shall be passed except by bill.  Each law shall embrace but one subject, which shall be expressed in its title.  The enacting clause of each law shall be, "Be it enacted by the legislature of the State of Hawaii." [Ren Const Con 1978 and election Nov 7, 1978]

 

Attorney General Opinions

 

  The combining of the operating budget, capital improvement budget, salary increase and revenue measure or any two of them in one bill violates this section.  Att. Gen. Op. 65-7.

  Bill may be entitled "Relating to Taxation."  Att. Gen. Op. 65-14.

  Cited in passing on effect of resolution.  Att. Gen. Op. 68-6.

  Discussed in holding §7 of Act 202, Session Laws 1972, invalid because not germane to the subject of the act.  Att. Gen. Op. 72-16.

  Invalidity of part does not necessarily invalidate entire act.  Att. Gen. Op. 72-16.

  If contents of bill are germane to original statute, reference in title to sections of statute to be amended is sufficient indication of subject of legislation.  Att. Gen. Op. 74-8.

  Purpose of section.  Att. Gen. Op. 74-8.

  Title does not contain more than one subject if all its details relate to same subject.  Att. Gen. Op. 74-8.

  Violated by budget proviso concerning subject not expressed in title of budget act.  Att. Gen. Op. 86-8.

 

Case Notes

 

  For annotations relating to similar provisions of prior law, see notes to Organic Act, §45.

  Provision pertaining to subject is to be liberally construed.  58 H. 25, 564 P.2d 135.

  Purposes of one-subject requirement are to prevent logrolling legislation, to prevent surprise or fraud upon the legislature, to apprise the people.  58 H. 25, 564 P.2d 135.

  Section is mandatory and a violation would render an enactment nugatory, but an enactment is presumptively constitutional.  58 H. 25, 564 P.2d 135.

  Prohibition against legislation with more than one subject does not apply to constitutional amendments.  60 H. 324, 590 P.2d 543.

  This article and article XVII of the Hawaii constitution require that (1) a proposal to amend the constitution must be reflected in the title of the bill and (2) a proposed constitutional amendment must be read three times in each house of the legislature to be validly adopted; where bill failed to fulfill these requirements, it was not constitutionally adopted.  108 H. 245, 118 P.3d 1188.

  Cited:  48 H. 152, 160, 397 P.2d 593; 53 H. 327, 493 P.2d 306.

 

 

PASSAGE OF BILLS

 

     Section 15.  No bill shall become law unless it shall pass three readings in each house on separate days.  No bill shall pass third or final reading in either house unless printed copies of the bill in the form to be passed shall have been made available to the members of that house for at least forty-eight hours.

     Every bill when passed by the house in which it originated, or in which amendments thereto shall have originated, shall immediately be certified by the presiding officer and clerk and sent to the other house for consideration.

     Any bill pending at the final adjournment of a regular session in an odd-numbered year shall carry over with the same status to the next regular session.  Before the carried-over bill is enacted, it shall pass at least one reading in the house in which the bill originated. [Am Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978]

 

Attorney General Opinions

 

  Twenty-four hour period begins when bill is first printed and made available in the form in which it is passed on third reading, irrespective of when such form is attained; committee reports are not included in twenty-four hour requirement.  Att. Gen. Op. 70-7.

  Requirement applies to carry-over bills in the same manner.  Att. Gen. Op. 70-10.

  A bill which does not pass in the same form in both houses cannot become law.  Att. Gen. Op. 81-7.

  Senate Bill No. 1394 (Act 172, L 2003) passed three readings in the senate and was validly enacted; even if the bill did not pass second reading in the senate, it did pass three readings on separate days in the senate.  Att. Gen. Op. 03-6.

  This section requires a separate forty-eight-hour period in the senate after the house has passed, certified, and transmitted the final version of the bill to the senate; the purpose of the forty-eight-hour review period is to allow legislators and constituents to be able to review bills before third or final reading so as to avoid hasty decisions and surprises.  Att. Gen. Op. 11-1.

  If the legislature is considering possible amendments to a bill returned by the governor, final actions on an amended bill cannot be taken on the first day of the forty-fifth-day special session.  Att. Gen. Op. 16-4.

 

Case Notes

 

  This article and article XVII of the Hawaii constitution require that (1) a proposal to amend the constitution must be reflected in the title of the bill and (2) a proposed constitutional amendment must be read three times in each house of the legislature to be validly adopted; where bill failed to fulfill these requirements, it was not constitutionally adopted.  108 H. 245, 118 P.3d 1188.

 

 

APPROVAL OR VETO

 

     Section 16.  Every bill which shall have passed the legislature shall be certified by the presiding officers and clerks of both houses and shall thereupon be presented to the governor.  If the governor approves it, the governor shall sign it and it shall become law.  If the governor does not approve such bill, the governor may return it, with the governor's objections to the legislature.  Except for items appropriated to be expended by the judicial and legislative branches, the governor may veto any specific item or items in any bill which appropriates money for specific purposes by striking out or reducing the same; but the governor shall veto other bills, if at all, only as a whole.

     The governor shall have ten days to consider bills presented to the governor ten or more days before the adjournment of the legislature sine die, and if any such bill is neither signed nor returned by the governor within that time, it shall become law in like manner as if the governor had signed it.

 

RECONSIDERATION AFTER ADJOURNMENT

 

     The governor shall have forty-five days, after the adjournment of the legislature sine die, to consider bills presented to the governor less than ten days before such adjournment, or presented after adjournment, and any such bill shall become law on the forty-fifth day unless the governor by proclamation shall have given ten days' notice to the legislature that the governor plans to return such bill with the governor's objections on that day.  The legislature may convene at or before noon on the forty-fifth day in special session, without call, for the sole purpose of acting upon any such bill returned by the governor.  In case the legislature shall fail to so convene, such bill shall not become law.  Any such bill may be amended to meet the governor's objections and, if so amended and passed, only one reading being required in each house for such passage, it shall be presented again to the governor, but shall become law only if the governor shall sign it within ten days after presentation.

     In computing the number of days designated in this section, the following days shall be excluded:  Saturdays, Sundays, holidays and any days in which the legislature is in recess prior to its adjournment as provided in section 10 of this article. [Am Const Con 1968 and election Nov 5, 1968; am SB 1943-74 (1974) and election Nov 5, 1974; ren and am Const Con 1978 and election Nov 7, 1978]

 

Cross References

 

  Computation of time, see §1-29.

  Holidays, see §§8-1 and 2.

  Publication of session laws by revisor of statutes, see §23G-13.

 

Attorney General Opinions

 

  An item in an appropriation bill vetoed in toto has no legal existence; excess funds from another item therein cannot be transferred to it.  Att. Gen. Op. 64-3.

  Effective date of an act.  Absence of specific provision not fatal defect.  Att. Gen. Op. 86-12.

  Governor's proclamations for five bills, where the last paragraph of the proclamation for each bill referenced "House Bill No. 85", rather than the correct bill numbers mentioned in the prior two clauses of the respective proclamations, satisfied this section's requirement that "the governor by proclamation shall have given ten days' notice to the legislature that the governor plans to return such bill", such that the governor had authority to veto those bills.  Att. Gen. Op. 05-2.

  During the forty-fifth-day special session, the legislature, in considering bills returned by the governor, may vote pursuant to §17 to override the veto, may amend the bill pursuant to this section to meet the governor's objections, or may take no further action on a returned bill.  The pertinent constitutional provisions do not require that the legislature must take final actions by the end of the first day of the forty-fifth-day special session.  The option to vote to override the veto would not be available only when the bill has already been amended, passed, and presented to the governor pursuant to the third paragraph of this section.  Att. Gen. Op. 16-4.

 

Case Notes

 

  Oahu Transportation Plan memorandum of agreement held not in violation of constitution.  389 F. Supp. 1102.

  Provisions of section relating to governor's veto power do not require the legislature to enact separate bills for the legislative, judicial and executive branches.  58 H. 25, 564 P.2d 135.

  Act applied from the day governor approved and signed it; no notification required.  59 H. 430, 583 P.2d 955.

  The plain language of this section requires the governor to (1) give notice at any time before midnight on the tenth day prior to the forty-fifth day after adjournment sine die, and (2) return the bills he or she intends to veto no later than the forty-fifth day after adjournment sine die.  105 H. 28, 93 P.3d 670.

  During the forty-fifth-day special session, the legislature, in considering bills returned by the governor, may vote pursuant to §17 to override the veto, may amend the bill pursuant to this section to meet the governor's objections, or may take no further action on a returned bill.  The pertinent constitutional provisions do not require that the legislature must take final actions by the end of the first day of the forty-fifth-day special session.  The option to vote to override the veto would not be available only when the bill has already been amended, passed, and presented to the governor pursuant to the third paragraph of this section.  Att. Gen. Op. 16-4.

 

 

PROCEDURES UPON VETO

 

     Section 17.  Upon the receipt of a veto message from the governor, each house shall enter the same at large upon its journal and proceed to reconsider the vetoed bill, or the item or items vetoed, and again vote upon such bill, or such item or items, by ayes and noes, which shall be entered upon its journal.  If after such reconsideration such bill, or such item or items, shall be approved by a two-thirds vote of all members to which each house is entitled, the same shall become law. [Ren Const Con 1978 and election Nov 7, 1978]

 

Attorney General Opinions

 

  During the forty-fifth-day special session, the legislature, in considering bills returned by the governor, may vote pursuant to this section to override the veto, may amend the bill pursuant to §16 to meet the governor's objections, or may take no further action on a returned bill.  The pertinent constitutional provisions do not require that the legislature must take final actions by the end of the first day of the forty-fifth-day special session.  The option to vote to override the veto would not be available only when the bill has already been amended, passed, and presented to the governor pursuant to the third paragraph of §16 of this article.  Att. Gen. Op. 16-4.

 

 

PUNISHMENT OF NONMEMBERS

 

     Section 18.  Each house may punish by fine, or by imprisonment not exceeding thirty days, any person not a member of either house who shall be guilty of disrespect of such house by any disorderly or contemptuous behavior in its presence or that of any committee thereof; or who shall, on account of the exercise of any legislative function, threaten harm to the body or estate of any of the members of such house; or who shall assault, arrest or detain any witness or other person ordered to attend such house, on the witness' or other person's way going to or returning therefrom; or who shall rescue any person arrested by order of such house.

     Any person charged with such an offense shall be informed in writing of the charge made against the person and have opportunity to present evidence and be heard in the person's own defense. [Ren and am Const Con 1978 and election Nov 7, 1978]

 

 

IMPEACHMENT

 

     Section 19.  The governor and lieutenant governor, and any appointive officer for whose removal the consent of the senate is required, may be removed from office upon conviction of impeachment for such causes as may be provided by law.

     The house of representatives shall have the sole power of impeachment of the governor and lieutenant governor and the senate the sole power to try such impeachments, and no such officer shall be convicted without the concurrence of two-thirds of the members of the senate.  When sitting for that purpose, the members of the senate shall be on oath or affirmation and the chief justice shall preside.  Subject to the provisions of this paragraph, the legislature may provide for the manner and procedure of removal by impeachment of such officers.

     The legislature shall by law provide for the manner and procedure of removal by impeachment of the appointive officers.

     Judgments in cases of impeachment shall not extend beyond removal from office and disqualification to hold and enjoy any office of honor, trust or profit under the State; but the person convicted may nevertheless be liable and subject to indictment, trial, judgment and punishment as provided by law. [Ren and am Const Con 1978 and election Nov 7, 1978]

 

 

ARTICLE IV

 

REAPPORTIONMENT

 

Note

 

  This article, entitled "Reapportionment," is new, added by Const Con 1978 and election Nov 7, 1978.  The former Article IV, entitled "The Executive," now appears as Article V.

 

Cross References

 

  Statutory provisions, see chapter 25.

 

Law Journals and Reviews

 

  A History of Recent Reapportionment in Hawaii.  22 HBJ 171.

 

REAPPORTIONMENT YEARS

 

     Section 1.  The year 1973, the year 1981, and every tenth year thereafter shall be reapportionment years. [Add Const Con 1978 and election Nov 7, 1978]

 

 

REAPPORTIONMENT COMMISSION

 

     Section 2.  A reapportionment commission shall be constituted on or before May 1 of each reapportionment year and whenever reapportionment is required by court order.  The commission shall consist of nine members.  The president of the senate and the speaker of the house of representatives shall each select two members.  Members of each house belonging to the party or parties different from that of the president or the speaker shall designate one of their number for each house and the two so designated shall each select two members of the commission.  The eight members so selected, promptly after selection, shall be certified by the selecting authorities to the chief election officer and within thirty days thereafter, shall select, by a vote of six members, and promptly certify to the chief election officer the ninth member who shall serve as chairperson of the commission.

     Each of the four officials designated above as selecting authorities for the eight members of the commission, at the time of the commission selections, shall also select one person from each basic island unit to serve on an apportionment advisory council for that island unit.  The councils shall remain in existence during the life of the commission and each shall serve in an advisory capacity to the commission for matters affecting its island unit.

     A vacancy in the commission or a council shall be filled by the initial selecting authority within fifteen days after the vacancy occurs.  Commission and council positions and vacancies not filled within the times specified shall be filled promptly thereafter by the supreme court.

     The commission shall act by majority vote of its membership and shall establish its own procedures, except as may be provided by law.

     Not more than one hundred fifty days from the date on which its members are certified, the commission shall file with the chief election officer a reapportionment plan for the state legislature and a reapportionment plan for the United States congressional districts which shall become law after publication as provided by law.  Members of the commission shall hold office until each reapportionment plan becomes effective or until such time as may be provided by law.

     No member of the reapportionment commission or an apportionment advisory council shall be eligible to become a candidate for election to either house of the legislature or to the United States House of Representatives in either of the first two elections under any such reapportionment plan.

     Commission and apportionment advisory council members shall be compensated and reimbursed for their necessary expenses as provided by law.

     The chief election officer shall be secretary of the commission without vote and, under the direction of the commission, shall furnish all necessary technical services.  The legislature shall appropriate funds to enable the commission to carry out its duties. [Add Const Con 1978 and election Nov 7, 1978; am HB 2322 (1992) and election Nov 3, 1992]

 

 

CHIEF ELECTION OFFICER

 

     Section 3.  The legislature shall provide for a chief election officer of the State, whose responsibilities shall be as provided by law and shall include the supervision of state elections, the maximization of registration of eligible voters throughout the State and the maintenance of data concerning registered voters, elections, apportionment and districting. [Add Const Con 1978 and election Nov 7, 1978]

 

 

APPORTIONMENT AMONG BASIC ISLAND UNITS

 

     Section 4.  The commission shall allocate the total number of members of each house of the state legislature being reapportioned among the four basic island units, namely:  (1) the island of Hawaii, (2) the islands of Maui, Lanai, Molokai and Kahoolawe, (3) the island of Oahu and all other islands not specifically enumerated, and (4) the islands of Kauai and Niihau, using the total number of permanent residents in each of the basic island units and computed by the method known as the method of equal proportions; except that no basic island unit shall receive less than one member in each house. [Add Const Con 1978 and election Nov 7, 1978; am HB 2327 (1992) and election Nov 3, 1992]

 

Case Notes

 

  Plaintiff citizens had not shown a likelihood of succeeding on their claim that Hawaii's legislative reapportionment plan's use of a permanent resident base, coupled with extraction of military personnel, their dependents, and students, constituted an equal protection violation for the purpose of a preliminary injunction; further, the equities and public interest tipped overwhelmingly in defendant reapportionment commission's favor, as any preliminary relief at this stage would significantly upend the election process; plaintiff's motion for preliminary injunction denied.  878 F. Supp. 2d 1124 (2012).

  Where the final reapportionment plan included thousands of non-permanent university student residents and non-permanent active duty military residents, as well as thousands of other non-permanent residents who were the dependents of the non-permanent active duty military residents, the plan disregarded the express mandate of this section that only permanent residents be counted in the population base for the purpose of reapportionment of the state legislature; the inclusion of non-permanent residents was an error in the plan rendering the plan constitutionally invalid under this section.  126 H. 283, 270 P.3d 1013 (2012).

 

 

MINIMUM REPRESENTATION FOR BASIC ISLAND UNITS

 

     Section 5.  The representation of any basic island unit initially allocated less than a minimum of two senators and three representatives shall be augmented by allocating thereto the number of senators or representatives necessary to attain such minimums which number, notwithstanding the provisions of Sections 2 and 3 of Article III shall be added to the membership of the appropriate body until the next reapportionment.  The senators or representatives of any basic island unit so augmented shall exercise a fractional vote wherein the numerator is the number initially allocated and the denominator is the minimum above specified. [Am Const Con 1968 and election Nov 5, 1968; ren Const Con 1978 and election Nov 7, 1978]

 

Note

 

  A proposal of the 1978 Constitutional Convention deleting this provision from the Constitution was not validly ratified. Kahalekai v. Doi, 60 H. 324, 590 P.2d 543.  In view of the holding, the revisor has restored this provision (formerly a part of section 4 of the old Article III), with a necessary change in reference, and renumbered it as section 5 under the authority of Resolution No. 29 of the 1978 Constitutional Convention.

 

 

APPORTIONMENT WITHIN BASIC ISLAND UNITS

 

     Section 6.  Upon the determination of the total number of members of each house of the state legislature to which each basic island unit is entitled, the commission shall apportion the members among the districts therein and shall redraw district lines where necessary in such manner that for each house the average number of permanent residents per member in each district is as nearly equal to the average for the basic island unit as practicable.

     In effecting such redistricting, the commission shall be guided by the following criteria:

     1.  No district shall extend beyond the boundaries of any basic island unit.

     2.  No district shall be so drawn as to unduly favor a person or political faction.

     3.  Except in the case of districts encompassing more than one island, districts shall be contiguous.

     4.  Insofar as practicable, districts shall be compact.

     5.  Where possible, district lines shall follow permanent and easily recognized features, such as streets, streams and clear geographical features, and, when practicable, shall coincide with census tract boundaries.

     6.  Where practicable, representative districts shall be wholly included within senatorial districts.

     7.  Not more than four members shall be elected from any district.

     8.  Where practicable, submergence of an area in a larger district wherein substantially different socio-economic interests predominate shall be avoided. [Add Const Con 1978 and election Nov 7, 1978; am HB 2327 (1992) and election Nov 3, 1992]

 

Note

 

  A proposal of the 1978 Constitutional Convention adding to the second paragraph an item 9 reading:  "9.  No consideration shall be given to holdover senators in effecting redistricting." was not validly ratified.  Kahalekai v. Doi, 60 H. 324, 590 P.2d 543.  In view of the holding, the revisor has deleted the provision under the authority of Resolution No. 29 of the 1978 Constitutional Convention.

  In view of the addition to this article of a new section 5, the revisor has renumbered this section as section 6 under the authority of Resolution No. 29.

 

Case Notes

 

  Plaintiff citizens had not shown a likelihood of succeeding on their claim that Hawaii's legislative reapportionment plan's use of a permanent resident base, coupled with extraction of military personnel, their dependents, and students, constituted an equal protection violation for the purpose of a preliminary injunction; further, the equities and public interest tipped overwhelmingly in defendant reapportionment commission's favor, as any preliminary relief at this stage would significantly upend the election process; plaintiff's motion for preliminary injunction denied.  878 F. Supp. 2d 1124 (2012).

  "Compact and contiguous" districts discussed in context of council district reapportionment plan under city charter.  75 H. 463, 868 P.2d 1183.

 

 

ELECTION OF SENATORS AFTER REAPPORTIONMENT

 

     Section 7.  Regardless of whether or not a senator is serving a term that would have extended past the general election at which an apportionment plan becomes effective, the term of office of all senators shall end at that general election.  The staggered terms of senators in each district shall be recomputed as established by the next section in this article, and the number of senators in a senatorial district under the reapportionment plan of the commission. [Add Const Con 1978 and election Nov 7, 1978; am SB 2234 (1992) and election Nov 3, 1992; am HB 1 (2000 2d) and election Nov 7, 2000]

 

Revision Note

 

  Renumbered from section 6 under the authority of Resolution No. 29 of the 1978 Constitutional Convention.

 

 

STAGGERED TERMS FOR THE SENATE

 

     Section 8.  The reapportionment commission shall, as part of the reapportionment plan, assign two-year terms for twelve senate seats for the election immediately following the adoption of the reapportionment plan.  The remaining seats shall be assigned four-year terms.  Insofar as practicable, the commission shall assign the two-year terms to senate seats so that the resident population of each senate district shall have no more than two regular senate elections for a particular senate seat within the six-year period beginning in the even-numbered year prior to the reapportionment year; provided that in the event of a multi-member senate district, the senators elected with the highest number of votes in that district in the election immediately following the adoption of the reapportionment plan shall fill the senate seats in that district which were assigned the four-year terms by the commission. [Add Const Con 1978 and election Nov 7, 1978; am HB 572 (1987) and election Nov 8, 1988; am SB 2234 (1992) and election Nov 3, 1992; am HB 1 (2000 2d) and election Nov 7, 2000]

 

Revision Note

 

  Renumbered from section 7 under the authority of Resolution No. 29 of the 1978 Constitutional Convention.

 

 

CONGRESSIONAL REDISTRICTING FOR

UNITED STATES HOUSE OF REPRESENTATIVES

 

     Section 9.  The commission shall, at such times as may be required by this article and as may be required by law of the United States, redraw congressional district lines for the districts from which the members of the United States House of Representatives allocated to this State by Congress are elected. [Add Const Con 1978 and election Nov 7, 1978]

 

Revision Note

 

  Renumbered from section 8 under the authority of Resolution No. 29 of the 1978 Constitutional Convention.

 

Case Notes

 

  Plaintiff citizens had not shown a likelihood of succeeding on their claim that Hawaii's legislative reapportionment plan's use of a permanent resident base, coupled with extraction of military personnel, their dependents, and students, constituted an equal protection violation for the purpose of a preliminary injunction; further, the equities and public interest tipped overwhelmingly in defendant reapportionment commission's favor, as any preliminary relief at this stage would significantly upend the election process; plaintiff's motion for preliminary injunction denied.  878 F. Supp. 2d 1124 (2012).

 

 

MANDAMUS AND JUDICIAL REVIEW

 

     Section 10.  Original jurisdiction is vested in the supreme court of the State to be exercised on the petition of any registered voter whereby it may compel, by mandamus or otherwise, the appropriate person or persons to perform their duty or to correct any error made in a reapportionment plan, or it may take such other action to effectuate the purposes of this section as it may deem appropriate.  Any such petition shall be filed within forty-five days of the date specified for any duty or within forty-five days after the filing of a reapportionment plan. [Add Const Con 1978 and election Nov 7, 1978]

 

Revision Note

 

  Renumbered from section 9 under the authority of Resolution No. 29 of the 1978 Constitutional Convention.

 

Attorney General Opinions

 

  Delegates to convention devising reapportionment plan are not prohibited from becoming candidates under the new plan.  Att. Gen. Op. 77-3.

 

Case Notes

 

  Use of registered voters as basis of apportionment.  384 U.S. 73, 84, 90, upon review of 238 F. Supp. 468, 240 F. Supp. 724.

  Whether reapportionment can be as infrequent as every ten years if registered voters used as basis raised but not decided.  384 U.S. 73, 96, upon review of 238 F. Supp. 468, 240 F. Supp. 724.

  Last clause providing for minimum representation is invalid.  316 F. Supp. 1285.

  Method of equal proportions is constitutionally permissible; so is use of registered voters as basis of apportionment.  316 F. Supp. 1285.

  Provisions for minimum representation and fractional voting are invalid.  316 F. Supp. 1285.

  Direction for first reapportionment held applicable to initial state elections held pursuant to §§6 and 7(a) of Hawaii Admission Act, 73 Stat 4.  43 H. 261.

  Departure from strict adherence to allocation under method of equal proportions permitted to balance off inequities.  55 H. 85, 515 P.2d 1253.

  Determination that first senatorial district shall consist of the whole island of Hawaii does not violate criterion that "insofar as practicable, districts shall be compact".  55 H. 89, 515 P.2d 1249.

 

 

ARTICLE V

 

THE EXECUTIVE

 

Note

 

  This article was renumbered from Article IV to be Article V by Const Con 1978 and election Nov 7, 1978.  The former Article V now appears as Article VI.

 

ESTABLISHMENT OF THE EXECUTIVE

 

     Section 1.  The executive power of the State shall be vested in a governor.  The governor shall be elected by the qualified voters of this State at a general election.  The person receiving the highest number of votes shall be the governor.  In case of a tie vote, the selection of the governor shall be determined as provided by law.

     The term of office of the governor shall begin at noon on the first Monday in December next following the governor's election and end at noon on the first Monday in December, four years thereafter.

     No person shall be elected to the office of governor for more than two consecutive full terms.

     No person shall be eligible for the office of governor unless the person shall be a qualified voter, have attained the age of thirty years and have been a resident of this State for five years immediately preceding the person's election.

     The governor shall not hold any other office or employment of profit under the State or the United States during the governor's term of office. [Am Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978]

 

Cross References

 

  Tie vote, see §11-157.

 

Attorney General Opinions

 

  It may be impermissible for legislature to require elected officials to resign before running for governor.  Att. Gen. Op. 75-22.

  Political parties must run candidates for both the office of governor and office of lieutenant governor.  Att. Gen. Op. 78-3.

  The office of the governor is a constitutional office established by this section, and is not a principal department of the state executive branch listed in §26-4; thus, any agency that is not temporary and for special purposes cannot be validly placed within the office of the governor.  Att. Gen. Op. 96-1.

 

Case Notes

 

  Durational residency requirement for gubernatorial candidates does not violate equal protection.  639 F. Supp. 1552.

  Budget expenditures of the department of education, discussed.  70 H. 253, 768 P.2d 1279.

 

 

LIEUTENANT GOVERNOR

 

     Section 2.  There shall be a lieutenant governor who shall have the same qualifications as the governor.  The lieutenant governor shall be elected at the same time, for the same term and in the same manner as the governor; provided that the votes cast in the general election for the nominee for governor shall be deemed cast for the nominee for lieutenant governor of the same political party.  No person shall be elected to the office of lieutenant governor for more than two consecutive full terms.  The lieutenant governor shall perform such duties as may be provided by law. [Am HB 19 (1964) and election Nov 3, 1964; ren and am Const Con 1978 and election Nov 7, 1978]

 

Cross References

 

  Functions, generally, see §26-1.

 

Attorney General Opinions

 

  It may be impermissible for legislature to require elected officials to resign before running for lieutenant governor.  Att. Gen. Op. 75-22.

  Political parties must run candidates for both the office of the governor and office of lieutenant governor.  Att. Gen. Op. 78-3.

 

Case Notes

 

  Section requires that partisan candidate for governor seek nomination paired with a candidate for lieutenant governor of same political party.  81 H. 230, 915 P.2d 704.

  Section 26-2 provides order of succession that applies only after respective officers have properly been elected to public office; it does not relieve prospective candidate from compliance with this section during the qualification and nomination process.  81 H. 230, 915 P.2d 704.

 

 

COMPENSATION:  GOVERNOR, LIEUTENANT GOVERNOR

 

     Section 3.  REPEALED.  [Repeal HB 1917 (2006) and election Nov 7, 2006]

 

Cross References

 

  Statutory provision, see §26-51.

 

 

SUCCESSION TO GOVERNORSHIP; ABSENCE OR

DISABILITY OF GOVERNOR

 

     Section 4.  When the office of governor is vacant, the lieutenant governor shall become governor.  In the event of the absence of the governor from the State, or the governor's inability to exercise and discharge the powers and duties of the governor's office, such powers and duties shall devolve upon the lieutenant governor during such absence or disability.

     When the office of lieutenant governor is vacant, or in the event of the absence of the lieutenant governor from the State, or the lieutenant governor's inability to exercise and discharge the powers and duties of the lieutenant governor's office, such powers and duties shall devolve upon such officers in such order of succession as may be provided by law.

     In the event of the impeachment of the governor or of the lieutenant governor, the governor or the lieutenant governor shall not exercise the powers of the applicable office until acquitted. [Ren and am Const Con 1978 and election Nov 7, 1978]

 

Attorney General Opinions

 

  Under section, order of succession must be provided by law and the governor may not, under the governor's emergency powers, provide by executive order for the succession to office.  Att. Gen. Op. 61-87.

  Upon death of governor-elect, lieutenant governor, once qualified, would become governor.  Att. Gen. Op. 75-21.

 

 

EXECUTIVE POWERS

 

     Section 5.  The governor shall be responsible for the faithful execution of the laws.  The governor shall be commander in chief of the armed forces of the State and may call out such forces to execute the laws, suppress or prevent insurrection or lawless violence or repel invasion.  The governor shall, at the beginning of each session, and may, at other times, give to the legislature information concerning the affairs of the State and recommend to its consideration such measures as the governor shall deem expedient.

     The governor may grant reprieves, commutations and pardons, after conviction, for all offenses, subject to regulation by law as to the manner of applying for the same.  The legislature may, by general law, authorize the governor to grant pardons before conviction, to grant pardons for impeachment and to restore civil rights denied by reason of conviction of offenses by tribunals other than those of this State.

     The governor shall appoint an administrative director to serve at the governor's pleasure. [Ren and am Const Con 1978 and election Nov 7, 1978]

 

Cross References

 

  Administrative director, see §26-3.

 

Attorney General Opinions

 

  Pardon for an offense upon conviction of which chauffeur's license is revoked does not restore right to license.  Att. Gen. Op. 61-79.

  Pardoning power extends to offenses against county ordinances.  Att. Gen. Op. 63-38.

 

Case Notes

 

  Cited:  715 F. Supp. 2d 1115 (2010).

 

 

EXECUTIVE AND ADMINISTRATIVE OFFICES

AND DEPARTMENTS

 

     Section 6.  All executive and administrative offices, departments and instrumentalities of the state government and their respective powers and duties shall be allocated by law among and within not more than twenty principal departments in such a manner as to group the same according to common purposes and related functions.  Temporary commissions or agencies for special purposes may be established by law and need not be allocated within a principal department.

     Each principal department shall be under the supervision of the governor and, unless otherwise provided in this constitution or by law, shall be headed by a single executive.  Such single executive shall be nominated and, by and with the advice and consent of the senate, appointed by the governor.  That person shall hold office for a term to expire at the end of the term for which the governor was elected, unless sooner removed by the governor; except that the removal of the chief legal officer of the State shall be subject to the advice and consent of the senate.

     Except as otherwise provided in this constitution, whenever a board, commission or other body shall be the head of a principal department of the state government, the members thereof shall be nominated and, by and with the advice and consent of the senate, appointed by the governor.  The term of office and removal of such members shall be as provided by law.  Such board, commission or other body may appoint a principal executive officer who, when authorized by law, may be an ex officio, voting member thereof, and who may be removed by a majority vote of the members appointed by the governor.

     The governor shall nominate and, by and with the advice and consent of the senate, appoint all officers for whose election or appointment provision is not otherwise provided for by this constitution or by law.  If the manner of removal of an officer is not prescribed in this constitution, removal shall be as provided by law.

     When the senate is not in session and a vacancy occurs in any office, appointment to which requires the confirmation of the senate, the governor may fill the office by granting a commission which shall expire, unless such appointment is confirmed, at the end of the next session of the senate.  The person so appointed shall not be eligible for another interim appointment to such office if the appointment failed to be confirmed by the senate.

     No person who has been nominated for appointment to any office and whose appointment has not received the consent of the senate shall be eligible to an interim appointment thereafter to such office.

     Every officer appointed under the provisions of this section shall be a citizen of the United States and shall have been a resident of this State for at least one year immediately preceding that person's appointment, except that this residency requirement shall not apply to the president of the University of Hawaii. [Am Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978]

 

Cross References

 

  Allocation of departments, see chapter 26.

  Temporary agencies, see §26-41.

  Term of board members, see §26-34.

 

Attorney General Opinions

 

  Residence requirement.  Not applicable to president of University of Hawaii.  Att. Gen. Op. 61-84.  Applicable to superintendent of public instruction.  Att. Gen. Op. 62-5.  The superintendent of education appointed by the elected board of education need not be a resident of the State.  Att. Gen. Op. 66-27.

  Appointment of chairpersons of the various boards by the governor and authorizing delegation of powers to them are not contrary to this section.  Att. Gen. Op. 64-18.

  First paragraph requires that state executive branch agencies be placed within the principal departments of the executive branch of state government, unless they are agencies or commissions that are both temporary and for special purposes.  Att. Gen. Op. 96-1.

  The interim appointments provision of this section is self-executing.  The interim appointments authority granted by this section may be exercised by the governor subject only to the conditions imposed by the constitution itself.  The term "vacancy" in the interim appointments provision includes positions made vacant for purposes of appointment, that is, the end of the established term for the relevant office.  Att. Gen. Op. 16-3.

  The word "appointed" in §26-34(b) does not purport to prevent the governor from exercising the governor's authority to make interim appointments; there is no conflict between §26-34(b) and this section.  Therefore, §26-34(b) is constitutional.  Att. Gen. Op. 16-3.

  The word "qualified" in §269-2 does not purport to prevent the governor from exercising the interim appointments authority in this section; thus, there is no conflict between §269-2 and this section.  Therefore, §269-2 is constitutional.  Att. Gen. Op. 16-3.

 

Case Notes

 

  No unconstitutional delegation of powers was involved in federal-state arrangement for jurisdiction over air carriers.  44 H. 634, 651-53, 361 P.2d 390.

  Not violated by administrative revocation program.  76 H. 380, 878 P.2d 719.

  Article VI, §1 and this section, neither separately nor together prohibit the establishment of the administrative driver’s license revocation office in the judiciary.  91 H. 212 (App.), 982 P.2d 346.

 

 

ARTICLE VI

 

THE JUDICIARY

 

Note

 

  This article was renumbered from Article V to be Article VI by Const Con 1978 and election Nov 7, 1978.  The former Article VI now appears as Article VII.

 

JUDICIAL POWER

 

     Section 1.  The judicial power of the State shall be vested in one supreme court, one intermediate appellate court, circuit courts, district courts and in such other courts as the legislature may from time to time establish.  The several courts shall have original and appellate jurisdiction as provided by law and shall establish time limits for disposition of cases in accordance with their rules. [Ren and am Const Con 1978 and election Nov 7, 1978]

 

Law Journals and Reviews

 

  Judicial Independence:  The Hawaii Experience.  2 UH L. Rev. 1.

  The Price of Precedent:  Anastasoff v. United States.  23 UH L. Rev. 795.

  Hawai‘i's Justiciability Doctrine.  26 UH L. Rev. 537.

  The Development of Hawai‘i's Appellate Courts:  An Organizational Perspective.  33 UH L. Rev. 875 (2011).

 

Case Notes

 

  Where Congress has not expressly set out exclusive jurisdiction, state courts are competent to decide federal claims.  437 F. Supp. 368.

  Section 605-1, concerning bar examinations, does not invade judicial functions.  44 H. 27, 352 P.2d 607.

  Judicial power and venue requirements distinguished.  53 H. 398, 495 P.2d 585.

  Supreme court has jurisdiction over matter relating to incorporation of attorneys.  55 H. 121, 516 P.2d 1267.

  Article V, §6 and this section, neither separately nor together prohibit the establishment of the administrative driver’s license revocation office in the judiciary.  91 H. 212 (App.), 982 P.2d 346.

  Given the mandatory nature of the case-or-controversy requirement in federal courts, it would also be possible to perfect standing during the course of litigation in state courts where the state constitution does not contain case-or-controversy language; by perfecting its interest in appellants' mortgage prior to the order granting summary judgment and entry of the decree of foreclosure in bank's favor, bank effectively cured its lack of standing at the initiation of the lawsuit.  117 H. 506 (App.), 184 P.3d 821.

  As nothing in chapter 103F expressly precluded judicial review, it did not violate the separation of powers doctrine; judicial review was available in connection with chapter 103F by way of a declaratory action under §632-1.  127 H. 76, 276 P.3d 645 (2012).

 

 

SUPREME COURT; INTERMEDIATE APPELLATE COURT;

CIRCUIT COURTS

 

     Section 2.  The supreme court shall consist of a chief justice and four associate justices.  The chief justice may assign a judge or judges of the intermediate appellate court or a circuit court to serve temporarily on the supreme court, a judge of the circuit court to serve temporarily on the intermediate appellate court and a judge of the district court to serve temporarily on the circuit court.  As provided by law, at the request of the chief justice, retired justices of the supreme court also may serve temporarily on the supreme court, and retired judges of the intermediate appellate court, the circuit courts, the district courts and the district family courts may serve temporarily on the intermediate appellate court, on any circuit court, on any district court and on any district family court, respectively.  In case of a vacancy in the office of chief justice, or if the chief justice is ill, absent or otherwise unable to serve, an associate justice designated in accordance with the rules of the supreme court shall serve temporarily in place of the chief justice. [Am Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978; am HB 355 (1985) and election Nov 4, 1986]

 

Cross References

 

  Statutory provisions, see §§602-1, 602-3, and 602-10.

 

Rules of Court

 

  Acting chief justice, see HRAP rule 49(c).

 

Law Journals and Reviews

 

  The Development of Hawai‘i's Appellate Courts:  An Organizational Perspective.  33 UH L. Rev. 875 (2011).

 

Case Notes

 

Assignment of circuit judges.

  Request for appointment of circuit judges by drawing of lots denied; Constitution mandates appointment by the chief justice.  53 H. 174, 488 P.2d 1406.

 

 

APPOINTMENT OF JUSTICES AND JUDGES

 

     Section 3.  The governor, with the consent of the senate, shall fill a vacancy in the office of the chief justice, supreme court, intermediate appellate court and circuit courts, by appointing a person from a list of not less than four, and not more than six, nominees for the vacancy, presented to the governor by the judicial selection commission.

     If the governor fails to make any appointment within thirty days of presentation, or within ten days of the senate's rejection of any previous appointment, the appointment shall be made by the judicial selection commission from the list with the consent of the senate.  If the senate fails to reject any appointment within thirty days thereof, it shall be deemed to have given its consent to such appointment.  If the senate shall reject any appointment, the governor shall make another appointment from the list within ten days thereof.  The same appointment and consent procedure shall be followed until a valid appointment has been made, or failing this, the commission shall make the appointment from the list, without senate consent.

     The chief justice, with the consent of the senate, shall fill a vacancy in the district courts by appointing a person from a list of not less than six nominees for the vacancy presented by the judicial selection commission.  If the chief justice fails to make the appointment within thirty days of presentation, or within ten days of the senate's rejection of any previous appointment, the appointment shall be made by the judicial selection commission from the list with the consent of the senate.  The senate shall hold a public hearing and vote on each appointment within thirty days of any appointment.  If the senate fails to do so, the nomination shall be returned to the commission and the commission shall make the appointment from the list without senate consent.  The chief justice shall appoint per diem district court judges as provided by law.

     The judicial selection commission shall disclose to the public the list of nominees for each vacancy concurrently with the presentation of each list to the governor or the chief justice, as applicable.

QUALIFICATIONS FOR APPOINTMENT

     Justices and judges shall be residents and citizens of the State and of the United States, and licensed to practice law by the supreme court.  A justice of the supreme court, a judge of the intermediate appellate court and a judge of the circuit court shall have been so licensed for a period of not less than ten years preceding nomination.  A judge of the district court shall have been so licensed for a period of not less than five years preceding nomination.

     No justice or judge shall, during the term of office, engage in the practice of law, or run for or hold any other office or position of profit under the United States, the State or its political subdivisions.

TENURE; RETIREMENT

     The term of office of justices and judges of the supreme court, intermediate appellate court and circuit courts shall be ten years.  Judges of district courts shall hold office for the periods as provided by law.  At least six months prior to the expiration of a justice's or judge's term of office, every justice and judge shall petition the judicial selection commission to be retained in office or shall inform the commission of an intention to retire.  If the judicial selection commission determines that the justice or judge should be retained in office, the commission shall renew the term of office of the justice or judge for the period provided by this section or by law.

     Justices and judges shall be retired upon attaining the age of seventy years.  They shall be included in any retirement law of the State. [Am Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978; am SB 2182 (1994) and SB 2294 (1994) and election Nov 8, 1994; am HB 1917 (2006) and election Nov 7, 2006; am HB 420 (2014) and election Nov 4, 2014]

 

Cross References

 

  Circuit courts, see chapter 603.

  Commission on salaries, see §26-56.

  Compensation, see §§602-2, 602-52, 603-5, and 604-2.5.

  Practice of law prohibited, see §601-8.

  Retirement allowance, see §88-74.

 

Attorney General Opinions

 

  A justice of the supreme court whose term has expired may hold over until the justice's successor has been appointed, even beyond the adjournment of the senate considering successors.  Att. Gen. Op. 67-6.

  A member of the legislature who has been appointed to the circuit court but who has not yet qualified for the office is not yet holding judicial office.  Att. Gen. Op. 80-2.

  Any duly appointed district court judge may be temporarily assigned to preside on the circuit court by the chief justice of the supreme court.  Att. Gen. Op. 88-8.

  Where the judicial selection commission presented the chief justice with two lists of nominees for two district court vacancies on March 1, 2007, and the chief justice made the selections on April 2, 2007, under the plain language of this section, the chief justice's nominations were untimely and, thus, the appointments must be made by the judicial selection commission.  Att. Gen. Op. 07-1.

 

Law Journals and Reviews

 

  Politics, Merit and the Selection of Judges.  10 HBJ No. 13, at pg. 61.

  Administering Justice or Just Administration:  The Hawaii Supreme Court and the Intermediate Court of Appeals.  14 UH L. Rev. 271.

  The Life of the Law is Perpetuated in Righteousness:  The Jurisprudence of William S. Richardson.  33 UH L. Rev. 99 (2010).

 

Case Notes

 

  A judge who has made a public announcement of intention to seek public office is a candidate.  53 H. 496, 497 P.2d 549.

  Exercise of testamentary power of appointment by justices not prohibited when there is no remuneration.  55 H. 104, 516 P.2d 1239.

  Appointment as a district family judge does not qualify as being "licensed to practice law by the supreme court".  61 H. 112, 595 P.2d 1080.

  1978 constitutional convention intended by implication that restrictive provision relating to practice of law applied only to full-time justices and judges, thereby excluding per diem judges from its proscription.  Section 604-2, authorizing per diem judges to practice law, was not in violation of Hawaii constitution's provision prohibiting full-time judges from practicing law during their term of office.  74 H. 394, 846 P.2d 894.

  No violation of section where circuit court judge assigned duties as administrative director of courts as newly-assigned duties were addition to existing responsibilities and not creation of additional office or position.  85 H. 258, 942 P.2d 522.

 

 

JUDICIAL SELECTION COMMISSION

 

     Section 4.  There shall be a judicial selection commission that shall consist of nine members.  The governor shall appoint two members to the commission.  No more than one of the two members shall be a licensed attorney.  The president of the senate and the speaker of the house of representatives shall each respectively appoint two members to the commission.  The chief justice of the supreme court shall appoint one member to the commission.  Members in good standing of the bar of the State shall elect two of their number to the commission in an election conducted by the supreme court or its delegate.  No more than four members of the commission shall be licensed attorneys.  At all times, at least one member of the commission shall be a resident of a county other than the City and County of Honolulu.

     The commission shall be selected and shall operate in a wholly nonpartisan manner.  After the initial formation of the commission, elections and appointments to the commission shall be for staggered terms of six years each.  Notwithstanding the foregoing, no member of the commission shall serve for more than six years on the commission.

     Each member of the judicial selection commission shall be a resident of the State and a citizen of the United States.  No member shall run for or hold any other elected office under the United States, the State or its political subdivisions.  No member shall take an active part in political management or in political campaigns.  No member shall be eligible for appointment to the judicial office of the State so long as the person is a member of the judicial commission and for a period of three years thereafter.

     No act of the judicial selection commission shall be valid except by concurrence of the majority of its voting members.

     The judicial selection commission shall select one of its members to serve as chairperson.  The commission shall adopt rules which shall have the force and effect of law.  The deliberations of the commission shall be confidential.

     The legislature shall provide for the staff and operating expenses of the judicial selection commission in a separate budget.  No member of the judicial selection commission shall receive any compensation for commission services, but shall be allowed necessary expenses for travel, board and lodging incurred in the performance of commission duties.

     The judicial selection commission shall be attached to the judiciary branch of the state government for purposes of administration. [Add Const Con 1978 and election Nov 7, 1978; am SB 2513 (1994) and SB 2515 (1994) and election Nov 8, 1994]

 

Rules of Court

 

  See Judicial Selection Commission Rules.

 

Attorney General Opinions

 

  Rule adopted by the commission, authorizing the commission to appoint its administrative assistant and such other staff as it believes necessary for its successful operation and exempting all staff positions it may from time to time create from the civil service and collective bargaining, was valid.  The commission was well within its authority to ask the judiciary to rescind the judiciary's selection of a civil service replacement for its current administrative assistant II, and furnish all administrative support necessary to reestablish its administrative assistant II position as an exempt position effective January 1, 2008, and assist the commission in advertising, interviewing, and selecting a replacement for its incumbent upon the incumbent's retirement.  Att. Gen. Op. 07-3.

 

Law Journals and Reviews

 

  Politics, Merit and the Selection of Judges.  10 HBJ No. 13, at pg. 61.

 

Case Notes

 

  Confidentiality requirement of rule 7 of the rules of the judicial selection commission does not apply to the governor or the chief justice after the judicial selection commission has submitted its lists of judicial nominees for consideration; it is within the sole discretion of appointing authorities whether to make public disclosure of the commission’s lists of judicial nominees.  75 H. 333, 861 P.2d 723.

  Section neither expressly mandates that lists containing the names of the judicial selection commission’s judicial nominees remain confidential nor that they be publicly disclosed.  Petitioner failed to meet burden of demonstrating beyond a reasonable doubt that rule 7 of the rules of the judicial selection commission was a plain, clear, manifest, and unmistakable violation of this section.  75 H. 333, 861 P.2d 723.

 

 

RETIREMENT; REMOVAL; DISCIPLINE

 

     Section 5.  The supreme court shall have the power to reprimand, discipline, suspend with or without salary, retire or remove from office any justice or judge for misconduct or disability, as provided by rules adopted by the supreme court.

     The supreme court shall create a commission on judicial discipline which shall have authority to investigate and conduct hearings concerning allegations of misconduct or disability and to make recommendations to the supreme court concerning reprimand, discipline, suspension, retirement or removal of any justice or judge. [Am Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978]

 

Rules of Court

 

  Misconduct, see Code of Judicial Conduct; judicial conduct commission, see RSC rule 8.

 

 

ADMINISTRATION

 

     Section 6.  The chief justice of the supreme court shall be the administrative head of the courts.  The chief justice may assign judges from one circuit court to another for temporary service.  With the approval of the supreme court, the chief justice shall appoint an administrative director to serve at the chief justice's pleasure. [Ren and am Const Con 1978 and election Nov 7, 1978]

 

Cross References

 

  Administrative director, see §601-3.

  Chief justice, see §601-2.

  Judicial council, see §601-4.

 

 

RULES

 

     Section 7.  The supreme court shall have power to promulgate rules and regulations in all civil and criminal cases for all courts relating to process, practice, procedure and appeals, which shall have the force and effect of law. [Ren Const Con 1978 and election Nov 7, 1978]

 

Rules of Court

 

  See Rules of the Supreme Court; Hawaii Rules of Professional Conduct; Code of Judicial Conduct; Hawaii Rules of Appellate Procedure; Rules of the Intermediate Court of Appeals; Hawaii Rules of Civil Procedure; Hawaii Rules of Penal Procedure; Rules of the Circuit Courts; Hawaii Arbitration Rules; Rules of the District Courts; District Court Rules of Civil Procedure; Rules of the Small Claims Division; Hawaii Family Court Rules; Rules of the Tax Appeal Court; Rules of the Land Court; Hawaii Civil Traffic Rules; Hawaii Probate Rules; Hawaii Rules for Certification of Spoken and Sign Language Interpreters; Rules Governing Court Reporting.

 

Attorney General Opinions

 

  This section does not vest exclusive rule making power in the supreme court so as to preclude legislative action on procedural matters.  Att. Gen. Op. 67-9.

 

Law Journals and Reviews

 

  Ke Kanawai Mamalahoe:  Equality in Our Splintered Profession.  33 UH L. Rev. 249 (2010).

 

Case Notes

 

  Procedural statutes in conflict with rules are ineffective.  48 H. 152, 159, 397 P.2d 593; 48 H. 290, 300, 401 P.2d 449.

 

 

ARTICLE VII

 

TAXATION AND FINANCE

 

Note

 

  This article was renumbered from Article VI to be Article VII by Const Con 1978 and election Nov 7, 1978.  The former Article VII now appears as Article VIII.

 

TAXING POWER INALIENABLE

 

     Section 1.  The power of taxation shall never be surrendered, suspended or contracted away. [Ren Const Con 1978 and election Nov 7, 1978]

 

Attorney General Opinions

 

  Section 248-2, authorizing the counties to set real property tax rate, does not contravene this section, since article VII, §3, expressly authorizes delegation of taxing power to political subdivisions.  Att. Gen. Op. 68-25.

 

 

INCOME TAXATION

 

     Section 2.  In enacting any law imposing a tax on or measured by income, the legislature may define income by reference to provisions of the laws of the United States as they may be or become effective at any time or from time to time, whether retrospective or prospective in their operation.  The legislature may provide that amendments to such laws of the United States shall become the law of the State upon their becoming the law of the United States.  The legislature shall in any such law set the rate or rates of such tax.  The legislature may in so defining income make exceptions, additions or modifications to any provisions of the laws of the United States so referred to and provide for retrospective exceptions or modifications to those provisions which are retrospective. [Add Const Con 1978 and election Nov 7, 1978]

 

Cross References

 

  General statutory provisions, see chapter 235.

 

 

TAX REVIEW COMMISSION

 

     Section 3.  There shall be a tax review commission, which shall be appointed as provided by law on or before July 1, 1980, and every five years thereafter.  The commission shall submit to the legislature an evaluation of the State's tax structure, recommend revenue and tax policy and then dissolve. [Add Const Con 1978 and election Nov 7, 1978]

 

Cross References

 

  Tax review commission, see chapter 232E.

 

 

APPROPRIATIONS FOR PRIVATE PURPOSES PROHIBITED

 

     Section 4.  No tax shall be levied or appropriation of public money or property made, nor shall the public credit be used, directly or indirectly, except for a public purpose.  No grant shall be made in violation of Section 4 of Article I of this constitution.  No grant of public money or property shall be made except pursuant to standards provided by law. [Ren Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978]

 

Attorney General Opinions

 

  State's appropriation to eleemosynary hospital considered for public purpose.  Att. Gen. Op. 64-51.

  Lease-back arrangement for financing state capitol in which title to state land is conveyed to a public building authority for nominal consideration is not a pledge of state's credit nor a prohibitive appropriation of public property.  Att. Gen. Op. 65-4.

  Subcontracting by the HVB of a part of its work under a contract with the department of planning and economic development to the Maui County Visitors Association, a private nonprofit agency, was not in violation of this section.  Att. Gen. Op. 81-5.

  Use of public funds to obtain permanent/immigrant status for noncitizen employees, not a "public purpose".  Att. Gen. Op. 84-12.

 

Case Notes

 

  It is generally for legislature to decide what is a "public purpose", and courts should not void the determination unless manifestly wrong.  56 H. 566, 545 P.2d 1175.

 

 

EXPENDITURE CONTROLS

 

     Section 5.  Provision for the control of the rate of expenditures of appropriated state moneys, and for the reduction of such expenditures under prescribed conditions, shall be made by law.

     No public money shall be expended except pursuant to appropriations made by law.  General fund expenditures for any fiscal year shall not exceed the State's current general fund revenues and unencumbered cash balances, except when the governor publicly declares the public health, safety or welfare is threatened as provided by law. [Ren Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978]

 

Cross References

 

  Statutory provisions, generally, see chapter 37.

 

Attorney General Opinions

 

  Although express words "balanced budget" are not included in state constitution or statutes relating to state budget, constitutional and statutory provisions do require a balanced budget by requiring a description of proposed expenditures and sources of revenue to pay for them.  Att. Gen. Op. 97-1.

  Receipts derived from ceded lands apportioned for native Hawaiians pursuant to article XII, §6 of the state constitution and §10-13.5 may be transmitted directly to office of Hawaiian affairs by agencies that collect them, without legislative appropriation.  Att. Gen. Op. 03-4.

 

 

Case Notes

 

  Determination of whether damages received by State from illegal sand mining operation was funds derived from a public land trust was a nonjudicial discretion; whether income from sales, leases, or other dispositions of lands surrounding harbors on all major islands, of land on Sand Island, of land on Airport, fell within section was a nonjudicial discretion.  69 H. 154, 737 P.2d 446.

 

 

DISPOSITION OF EXCESS REVENUES

 

     Section 6.  Whenever the state general fund balance at the close of each of two successive fiscal years exceeds five percent of general fund revenues for each of the two fiscal years, the legislature in the next regular session shall:

     (1)  Provide for a tax refund or tax credit to the taxpayers of the State, as provided by law;

     (2)  Make a deposit into one or more funds, as provided by law, which shall serve as temporary supplemental sources of funding for the State in times of an emergency, economic downturn, or unforeseen reduction in revenue, as provided by law; or

     (3)  Appropriate general funds for the pre-payment of either or both of the following, as provided by law:

          (A)  Debt service for general obligation bonds issued by the State; or

          (B)  Pension or other post-employment benefit liabilities accrued for state employees.

          For the purpose of this paragraph, "pre-payment" means a payment for a fiscal year in excess of the minimum payment required for that fiscal year by bond covenant or law. [Add Const Con 1978 and election Nov 7, 1978; am SB 2807 (2010) and election Nov 2, 2010; am SB 2554 (2016) and election Nov 8, 2016]

 

 

COUNCIL ON REVENUES

 

     Section 7.  There shall be established by law a council on revenues which shall prepare revenue estimates of the state government and shall report the estimates to the governor and the legislature at times provided by law.  The estimates shall be considered by the governor in preparing the budget, recommending appropriations and revenues and controlling expenditures.  The estimates shall be considered by the legislature in appropriating funds and enacting revenue measures.  All revenue estimates submitted by the council to the governor and the legislature shall be made public.  If the legislature in appropriating funds or if the governor in preparing the budget or recommending appropriations exceeds estimated revenues due to proposed expenditures, this fact shall be made public including the reasons therefor. [Add Const Con 1978 and election Nov 7, 1978]

 

Cross References

 

  Statutory provisions, see §§37-111 to 37-113.1.

 

 

THE BUDGET

 

     Section 8.  Within such time prior to the opening of each regular session in an odd-numbered year as may be provided by law, the governor shall submit to the legislature a budget in a form provided by law setting forth a complete plan of proposed expenditures of the executive branch, estimates as provided by law of the aggregate expenditures of the judicial and legislative branches, and anticipated receipts of the State for the ensuing fiscal biennium, together with such other information as the legislature may require.  A complete plan of proposed expenditures of the judicial branch for the ensuing fiscal biennium shall be submitted by the chief justice to the legislature in a form and within such time prior to the opening of each regular session in an odd-numbered year as shall be provided by law.  The budget prepared by the governor and the plan of proposed expenditures prepared by the chief justice shall also be submitted in bill form.  The governor shall also, upon the opening of each such session, submit bills to provide for such proposed expenditures and for any recommended additional revenues or borrowings by which the proposed expenditures are to be met.  The proposed general fund expenditures in the plan of proposed expenditures, including estimates of the aggregate expenditures of the judicial and legislative branches, submitted by the governor shall not exceed the general fund expenditure ceiling established by the legislature under section 9 of this article; provided that proposed general fund expenditures in the plan may exceed such ceiling if the governor sets forth the dollar amount and the rate by which the ceiling will be exceeded and the reasons therefor. [Am Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978]

 

Cross References

 

  Statutory provisions, see §§37-91 to 37-94.

 

Attorney General Opinions

 

  Although express words "balanced budget" are not included in state constitution or statutes relating to state budget, constitutional and statutory provisions do require a balanced budget by requiring a description of proposed expenditures and sources of revenue to pay for them.  Att. Gen. Op. 97-1.

 

 

LEGISLATIVE APPROPRIATIONS; PROCEDURES;

EXPENDITURE CEILING

 

     Section 9.  In each regular session in an odd-numbered year, the legislature shall transmit to the governor an appropriation bill or bills providing for the anticipated total expenditures of the State for the ensuing fiscal biennium.  In such session, no appropriation bill, except bills recommended by the governor for immediate passage, or to cover the expenses of the legislature, shall be passed on final reading until the bill authorizing operating expenditures for the ensuing fiscal biennium, to be known as the general appropriations bill, shall have been transmitted to the governor.

     In each regular session in an even-numbered year, at such time as may be provided by law, the governor may submit to the legislature a bill to amend any appropriation for operating expenditures of the current fiscal biennium, to be known as the supplemental appropriations bill, and bills to amend any appropriations for capital expenditures of the current fiscal biennium, and at the same time the governor shall submit a bill or bills to provide for any added revenues or borrowings that such amendments may require.  In each regular session in an even-numbered year, bills may be introduced in the legislature to amend any appropriation act or bond authorization act of the current fiscal biennium or prior fiscal periods.  In any such session in which the legislature submits to the governor a supplemental appropriations bill, no other appropriation bill, except bills recommended by the governor for immediate passage, or to cover the expenses of the legislature, shall be passed on final reading until such supplemental appropriations bill shall have been transmitted to the governor.

 

GENERAL FUND EXPENDITURE CEILING

 

     Notwithstanding any other provision to the contrary, the legislature shall establish a general fund expenditure ceiling which shall limit the rate of growth of general fund appropriations, excluding federal funds received by the general fund, to the estimated rate of growth of the State's economy as provided by law.  No appropriations in excess of such ceiling shall be authorized during any legislative session unless the legislature shall, by a two-thirds vote of the members to which each house of the legislature is entitled, set forth the dollar amount and the rate by which the ceiling will be exceeded and the reasons therefor. [Am Const Con 1968 and election Nov 5, 1968; am SB 1947-72 (1972) and election Nov 7, 1972; ren and am Const Con 1978 and election Nov 7, 1978]

 

Cross References

 

  Statutory provisions, see §§37-91 to 37-94.

 

Attorney General Opinions

 

  Supplemental appropriation bill is one that amends operating expenditures of current biennium; bills authorizing expenditures from general revenues must await passage, if any, of the supplemental appropriation bill; intention by legislature not to pass supplemental bill should be clearly indicated by both houses.  Att. Gen. Op. 72-3.

  Appropriation bill is one that authorizes the expenditure of money and stipulates the amount, manner and purpose of the various items of expenditure.  Att. Gen. Op. 72-6.

  Where appropriations for operating costs and authorization for bond issues are contained in a single bill, the invalidity of one portion will not void the other, the matters being severable.  Att. Gen. Op. 73-3.

  Mandates one expenditure ceiling for all executive, judicial, and legislative appropriations.  Att. Gen. Op. 85-17.

  Discussion of requirements that would have to be met if the legislature were to make appropriations in excess of the general fund expenditure ceiling.  Att. Gen. Op. 89-2.

  Although express words "balanced budget" are not included in state constitution or statutes relating to state budget, constitutional and statutory provisions do require a balanced budget by requiring a description of proposed expenditures and sources of revenue to pay for them.  Att. Gen. Op. 97-1.

 

 

AUDITOR

 

     Section 10.  The legislature, by a majority vote of each house in joint session, shall appoint an auditor who shall serve for a period of eight years and thereafter until a successor shall have been appointed.  The legislature, by a two-thirds vote of the members in joint session, may remove the auditor from office at any time for cause.  It shall be the duty of the auditor to conduct post-audits of the transactions, accounts, programs and performance of all departments, offices and agencies of the State and its political subdivisions, to certify to the accuracy of all financial statements issued by the respective accounting officers and to report the auditor's findings and recommendations to the governor and to the legislature at such times as shall be provided by law.  The auditor shall also make such additional reports and conduct such other investigations as may be directed by the legislature. [Ren Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978]

 

Cross References

 

  Statutory provisions, see chapter 23.

 

 

LAPSING OF APPROPRIATIONS

 

     Section 11.  All appropriations for which the source is general obligation bond funds or general funds shall be for specified periods.  No such appropriation shall be made for a period exceeding three years; provided that appropriations from the state educational facilities improvement special fund may be made for periods exceeding three years to allow for construction or acquisition of public school facilities.  Any such appropriation or any portion of any such appropriation that is unencumbered at the close of the fiscal period for which the appropriation is made shall lapse; provided that no appropriation for which the source is general obligation bond funds nor any portion of any such appropriation shall lapse if the legislature determines that the appropriation or any portion of the appropriation is necessary to qualify for federal aid financing and reimbursement.  Where general obligation bonds have been authorized for an appropriation, the amount of the bond authorization shall be reduced in an amount equal to the amount lapsed. [Add Const Con 1978 and election Nov 7, 1978; am SB 2211 (1996) and election Nov 5, 1996]

 

Attorney General Opinions

 

  Funds may not be appropriated for a biennial appropriation period with a lapse date more than one year beyond the close of the biennial period.  Att. Gen. Op. 81-2.

 

 

DEFINITIONS; ISSUANCE OF INDEBTEDNESS

 

     Section 12.  For the purposes of this article:

     1.  The term "bonds" shall include bonds, notes and other instruments of indebtedness.

     2.  The term "general obligation bonds" means all bonds for the payment of the principal and interest of which the full faith and credit of the State or a political subdivision are pledged and, unless otherwise indicated, includes reimbursable general obligation bonds.

     3.  The term "net revenues" or "net user tax receipts" means the revenues or receipts derived from:

     a.   A public undertaking, improvement or system remaining after the costs of operation, maintenance and repair of the public undertaking, improvement or system, and the required payments of the principal of and interest on all revenue bonds issued therefor, have been made; or

     b.   Any payments or return on security under a loan program or a loan thereunder, after the costs of operation and administration of the loan program, and the required payments of the principal of and interest on all revenue bonds issued therefor, have been made.

     4.  The term "dam and reservoir owner" means any person who has a right to, title to, or an interest in, a dam, a reservoir, or the property upon which a dam, a reservoir, or appurtenant work is located or proposed to be located.

     5.  The term "person" means an individual, firm, partnership, corporation, association, cooperative or other legal entity, governmental body or agency, board, bureau or other instrumentality thereof, or any combination of the foregoing.

     6.  The term "rates, rentals and charges" means all revenues and other moneys derived from the operation or lease of a public undertaking, improvement or system, or derived from any payments or return on security under a loan program or a loan thereunder; provided that insurance premium payments, assessments and surcharges, shall constitute rates, rentals and charges of a state property insurance program.

     7.  The term "reimbursable general obligation bonds" means general obligation bonds issued for a public undertaking, improvement or system from which revenues, or user taxes, or a combination of both, may be derived for the payment of the principal and interest as reimbursement to the general fund and for which reimbursement is required by law, and, in the case of general obligation bonds issued by the State for a political subdivision, general obligation bonds for which the payment of the principal and interest as reimbursement to the general fund is required by law to be made from the revenue of the political subdivision.

     8.  The term "revenue bonds" means all bonds payable from the revenues, or user taxes, or any combination of both, of a public undertaking, improvement, system or loan program and any loan made thereunder and secured as may be provided by law, including a loan program to provide loans to a state property insurance program providing hurricane insurance coverage to the general public.

     9.  The term "special purpose revenue bonds" means all bonds payable from rental or other payments made to an issuer by a person pursuant to contract and secured as may be provided by law.

     10.  The term "user tax" means a tax on goods or services or on the consumption thereof, the receipts of which are substantially derived from the consumption, use or sale of goods and services in the utilization of the functions or services furnished by a public undertaking, improvement or system; provided that mortgage recording taxes shall constitute user taxes of a state property insurance program.

     The legislature, by a majority vote of the members to which each house is entitled, shall authorize the issuance of all general obligation bonds, bonds issued under special improvement statutes and revenue bonds issued by or on behalf of the State and shall prescribe by general law the manner and procedure for such issuance.  The legislature by general law shall authorize political subdivisions to issue general obligation bonds, bonds issued under special improvement statutes and revenue bonds and shall prescribe the manner and procedure for such issuance.  All such bonds issued by or on behalf of a political subdivision shall be authorized by the governing body of such political subdivision.

     Special purpose revenue bonds shall only be authorized or issued to finance facilities of or for, or to loan the proceeds of such bonds to assist:

     1.   Manufacturing, processing or industrial enterprises;

     2.   Utilities serving the general public;

     3.   Health care facilities provided to the general public by not-for-profit corporations;

     4.   Early childhood education and care facilities provided to the general public by not-for-profit corporations;

     5.   Low and moderate income government housing programs;

     6.   Not-for-profit private nonsectarian and sectarian elementary schools, secondary schools, colleges and universities;

     7.   Agricultural enterprises; or

     8.   Dam and reservoir owners; provided that the bonds are issued for and the proceeds are used to offer loans to assist dam and reservoir owners to improve their facilities to protect public safety and provide significant benefits to the general public as important water sources,

each of which is hereinafter referred to in this paragraph as a special purpose entity.

     The legislature, by a two-thirds vote of the members to which each house is entitled, may enact enabling legislation for the issuance of special purpose revenue bonds separately for each special purpose entity, and, by a two-thirds vote of the members to which each house is entitled and by separate legislative bill, may authorize the State to issue special purpose revenue bonds for each single project or multi-project program of each special purpose entity; provided that the issuance of such special purpose revenue bonds is found to be in the public interest by the legislature; and provided further that the State may combine into a single issue of special purpose revenue bonds two or more proposed issues of special purpose revenue bonds to assist:

     (1)  Not-for-profit private nonsectarian and sectarian elementary schools, secondary schools, colleges, and universities;

     (2)  Dam and reservoir owners; or

     (3)  Agricultural enterprises,

separately authorized as aforesaid, in the total amount not exceeding the aggregate of the proposed separate issues of special purpose revenue bonds.  The legislature may enact enabling legislation to authorize political subdivisions to issue special purpose revenue bonds.  If so authorized, a political subdivision by a two-thirds vote of the members to which its governing body is entitled and by separate ordinance may authorize the issuance of special purpose revenue bonds for each single project or multi-project program of each special purpose entity; provided that the issuance of such special purpose revenue bonds is found to be in the public interest by the governing body of the political subdivision.  No special purpose revenue bonds shall be secured directly or indirectly by the general credit of the issuer or by any revenues or taxes of the issuer other than receipts derived from payments by a person or persons under contract or from any security for such contract or contracts or special purpose revenue bonds and no moneys other than such receipts shall be applied to the payment thereof.  The governor shall provide the legislature in November of each year with a report on the cumulative amount of all special purpose revenue bonds authorized and issued, and such other information as may be necessary. [Am Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978; am L 1994, c 280, §2 (HB 2692-94) and election Nov 8, 1994; am HB 4142 (1996) and election Nov 5, 1996; am HB 2848 (2002) and election Nov 5, 2002; am SB 2479 (2006) and election Nov 7, 2006; am HB 748 (2014) and SB 2876 (2014) and election Nov 4, 2014]

 

Revision Note

 

  This section is a blend of the amendments made by HB 748 and SB 2876 (2014) and was reviewed and approved by the Attorney General.

 

Case Notes

 

  It was not necessary for a public project to have been constructed in order for the taxes involved in the financing of the public project to qualify as "user taxes" as that term is defined in paragraph (9); one per cent increase in transient accommodations tax earmarked for financing expenses associated with convention center development and construction qualified as a "user tax".  78 H. 157, 890 P.2d 1197.

  Financing agreements entered into in accordance with chapter 37D are not bonds as that term is used in this section and thus do not count toward the debt ceiling of article VII, §13 of Hawaii constitution.  85 H. 1, 936 P.2d 637.

 

 

DEBT LIMIT; EXCLUSIONS

 

     Section 13.  General obligation bonds may be issued by the State; provided that such bonds at the time of issuance would not cause the total amount of principal and interest payable in the current or any future fiscal year, whichever is higher, on such bonds and on all outstanding general obligation bonds to exceed:  a sum equal to twenty percent of the average of the general fund revenues of the State in the three fiscal years immediately preceding such issuance until June 30, 1982; and thereafter, a sum equal to eighteen and one-half percent of the average of the general fund revenues of the State in the three fiscal years immediately preceding such issuance.  Effective July 1, 1980, the legislature shall include a declaration of findings in every general law authorizing the issuance of general obligation bonds that the total amount of principal and interest, estimated for such bonds and for all bonds authorized and unissued and calculated for all bonds issued and outstanding, will not cause the debt limit to be exceeded at the time of issuance.  Any bond issue by or on behalf of the State may exceed the debt limit if an emergency condition is declared to exist by the governor and concurred to by a two-thirds vote of the members to which each house of the legislature is entitled.  For the purpose of this paragraph, general fund revenues of the State shall not include moneys received as grants from the federal government and receipts in reimbursement of any reimbursable general obligation bonds which are excluded as permitted by this section.

     A sum equal to fifteen percent of the total of the assessed values for tax rate purposes of real property in each political subdivision, as determined by the last tax assessment rolls pursuant to law, is established as the limit of the funded debt of such political subdivision that is outstanding and unpaid at any time.

     All general obligation bonds for a term exceeding two years shall be in serial form maturing in substantially equal installments of principal, or maturing in substantially equal installments of both principal and interest.  The first installment of principal of general obligation bonds and of reimbursable general obligation bonds shall mature not later than five years from the date of issue of such series.  The last installment on general obligation bonds shall mature not later than twenty-five years from the date of such issue and the last installment on general obligation bonds sold to the federal government, on reimbursable general obligation bonds and on bonds constituting instruments of indebtedness under which the State or a political subdivision incurs a contingent liability as a guarantor shall mature not later than thirty-five years from the date of such issue.  The interest and principal payments of general obligation bonds shall be a first charge on the general fund of the State or political subdivision, as the case may be.

     In determining the power of the State to issue general obligation bonds or the funded debt of any political subdivision under section 12, the following shall be excluded:

     1.  Bonds that have matured, or that mature in the then current fiscal year, or that have been irrevocably called for redemption and the redemption date has occurred or will occur in the then fiscal year, or for the full payment of which moneys or securities have been irrevocably set aside.

     2.  Revenue bonds, if the issuer thereof is obligated by law to impose rates, rentals and charges for the use and services of the public undertaking, improvement or system or the benefits of a loan program or a loan thereunder or to impose a user tax, or to impose a combination of rates, rentals and charges and user tax, as the case may be, sufficient to pay the cost of operation, maintenance and repair, if any, of the public undertaking, improvement or system or the cost of maintaining a loan program or a loan thereunder and the required payments of the principal of and interest on all revenue bonds issued for the public undertaking, improvement or system or loan program, and if the issuer is obligated to deposit such revenues or tax or a combination of both into a special fund and to apply the same to such payments in the amount necessary therefor.

     3.  Special purpose revenue bonds, if the issuer thereof is required by law to contract with a person obligating such person to make rental or other payments to the issuer in an amount at least sufficient to make the required payment of the principal of and interest on such special purpose revenue bonds.

     4.  Bonds issued under special improvement statutes when the only security for such bonds is the properties benefited or improved or the assessments thereon.

     5.  General obligation bonds issued for assessable improvements, but only to the extent that reimbursements to the general fund for the principal and interest on such bonds are in fact made from assessment collections available therefor.

     6.  Reimbursable general obligation bonds issued for a public undertaking, improvement or system but only to the extent that reimbursements to the general fund are in fact made from the net revenue, or net user tax receipts, or combination of both, as determined for the immediately preceding fiscal year.

     7.  Reimbursable general obligation bonds issued by the State for any political subdivision, whether issued before or after the effective date of this section, but only for as long as reimbursement by the political subdivision to the State for the payment of principal and interest on such bonds is required by law; provided that in the case of bonds issued after the effective date of this section, the consent of the governing body of the political subdivision has first been obtained; and provided further that during the period that such bonds are excluded by the State, the principal amount then outstanding shall be included within the funded debt of such political subdivision.

     8.  Bonds constituting instruments of indebtedness under which the State or any political subdivision incurs a contingent liability as a guarantor, but only to the extent the principal amount of such bonds does not exceed seven percent of the principal amount of outstanding general obligation bonds not otherwise excluded under this section; provided that the State or political subdivision shall establish and maintain a reserve in an amount in reasonable proportion to the outstanding loans guaranteed by the State or political subdivision as provided by law.

     9.  Bonds issued by or on behalf of the State or by any political subdivision to meet appropriations for any fiscal period in anticipation of the collection of revenues for such period or to meet casual deficits or failures of revenue, if required to be paid within one year, and bonds issued by or on behalf of the State to suppress insurrection, to repel invasion, to defend the State in war or to meet emergencies caused by disaster or act of God.

     The total outstanding indebtedness of the State or funded debt of any political subdivision and the exclusions therefrom permitted by this section shall be made annually and certified by law or as provided by law.  For the purposes of section 12 and this section, amounts received from on-street parking may be considered and treated as revenues of a parking undertaking.

     Nothing in section 12 or in this section shall prevent the refunding of any bond at any time. [Am Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978]

 

Attorney General Opinions

 

  Revenue bonds for University of Hawaii building program; revenue bonds for proposed state capitol.  Att. Gen. Op. 65-4.

  Unaccrued rent (where State is lessee) does not create funded debt within meaning of Article.  Att. Gen. Op. 65-4.

  Revenue bonds for state ferry system.  Att. Gen. Op. 65-19.

  The effective date of the legislative act authorizing the excess debt constitutes the "time of authorization".  Att. Gen. Op. 67-14.

  The tax assessment rolls in effect at the time of authorization of excess debt are the rolls that must be used.  Att. Gen. Op. 67-14.

  Par. 4:  Legislature may determine form and content of bonds issued under this paragraph.  Att. Gen. Op. 72-11.

  The two-thirds vote requirement for issuance of bonds applies to final reading of measure.  Att. Gen. Op. 73-3.

  Where appropriations for operating costs and authorization for bond issues are contained in a single bill, the invalidity of one portion will not void the other, the matters being severable.  Att. Gen. Op. 73-3.

  Item (e):  Reimbursements to general fund need not be restricted to reimbursements from the revenues and user taxes for the "immediately preceding fiscal year".  Att. Gen. Op. 74-9.

 

Case Notes

 

  Certain highway and aviation revenue bonds held not revenue bonds within meaning of Article.  44 H. 154, 352 P.2d 861.

  Funded debt, what constitutes; "total of state indebtedness," how computed.  44 H. 154, 352 P.2d 861.

  Conditions for exclusion of revenue bonds discussed; antipollution revenue bonds under §§39-130 and 131 do not satisfy exclusion requirements.  56 H. 566, 545 P.2d 1175.

  Revenue bonds authorized by 1993 Hawai‘i state legislature pursuant to Act 7, §24 [L Sp 1993] for proposed convention center development and construction qualified for exclusion from debt limit mandated by this section; reimbursable general obligation bonds authorized by the legislature pursuant to Act 7, §23 for proposed convention center development and construction did not qualify for exclusion under paragraph (6).  78 H. 157, 890 P.2d 1197.

  Financing agreements entered into in accordance with chapter 37D are not bonds as that term is used in article VII, §12 of Hawaii constitution and thus do not count toward the debt ceiling of this section.  85 H. 1, 936 P.2d 637.

 

 

ARTICLE VIII

 

LOCAL GOVERNMENT

 

Note

 

  This article was renumbered from Article VII to be Article VIII by Const Con 1978 and election Nov 7, 1978.  The former Article VIII now appears as Article IX.

 

CREATION; POWERS OF POLITICAL SUBDIVISIONS

 

     Section 1.  The legislature shall create counties, and may create other political subdivisions within the State, and provide for the government thereof.  Each political subdivision shall have and exercise such powers as shall be conferred under general laws. [Ren and am Const Con 1978 and election Nov 7, 1978]

 

Attorney General Opinions

 

  Discussion of general laws.  Att. Gen. Op. 61-36.

  Law specifically repealing statute pertaining to single county is void as special law.  Att. Gen. Op. 62-11.

  Pari-mutuel law for a single county would be invalid as special law.  Att. Gen. Op. 63-10.

  Law conferring power on only certain specified counties is a special law.  Att. Gen. Op. 63-22.

  Section has prospective effect only, does not affect special laws enacted prior to statehood.  Att. Gen. Op. 63-22.

  Utilization of classification based upon population for legislation affecting political subdivisions of the State not violative of Constitution.  Att. Gen. Op. 65-9.

  Law that would confer on city and county power not conferred on other counties is a special law.  Att. Gen. Op. 65-20.

  A local option law is a general law if it applies to all counties and every county is given the same option.  Att. Gen. Op. 67-5.

  Repeal of special or local laws and replacing them with grants of general powers having uniform operation in all counties, does not violate Constitution.  Att. Gen. Op. 87-1.

 

Case Notes

 

  Plaintiff fireworks company was unlikely to succeed on the merits in alleging that a Honolulu city ordinance, prohibiting the importation of consumer fireworks into Honolulu, violated this section; the ordinance in question was "more stringent in the control or prohibition of fireworks" enacted within the city's power granted by chapter 132D.  796 F. Supp. 2d 1261 (2011).

  In broadest sense, to be a "general law" must operate in all counties, but a law may apply to less than all counties and still be "general law" if it applies uniformly to a class of counties.  50 H. 51, 430 P.2d 321.

  This provision not violated by Act 47, L 1967, providing for filling vacancy in office of county chairperson.  50 H. 51, 430 P.2d 321.

  Subject to this provision requiring "general laws", the legislature is free to enact any legislation affecting the powers of political subdivisions, including amendment of charter provisions adopted pursuant to §2 of this article.  50 H. 277, 439 P.2d 206.

  Generally on functions of statewide interest, if counties are not given specific authority, they cannot thwart the State.  56 H. 582, 545 P.2d 684.

  Cited:  57 H. 390, 557 P.2d 1334.

 

 

LOCAL SELF-GOVERNMENT; CHARTER

 

     Section 2.  Each political subdivision shall have the power to frame and adopt a charter for its own self-government within such limits and under such procedures as may be provided by general law.  Such procedures, however, shall not require the approval of a charter by a legislative body.

     Charter provisions with respect to a political subdivision's executive, legislative and administrative structure and organization shall be superior to statutory provisions, subject to the authority of the legislature to enact general laws allocating and reallocating powers and functions.

     A law may qualify as a general law even though it is inapplicable to one or more counties by reason of the provisions of this section. [Am Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978]

 

Cross References

 

  General powers, see §46-1.5.

 

Attorney General Opinions

 

  Until section takes effect on January 1, 1972, legislature may by general law amend county charter.  Att. Gen. Op. 70-6.

  Legislature may not require those running for county office to resign from present public office.  Att. Gen. Op. 75-22.

  Counties may provide for nonpartisan election of prosecutor. Att. Gen. Op. 85-7.

  Civil service systems defined in §§76-77 and 46-33 are not substantively so different as to represent special, rather than general laws for purposes of this section and article VIII, §6 of state constitution.  Att. Gen. Op. 97-6.

 

Law Journals and Reviews

 

  Kaiser Hawaii Kai Development Company v. City and County of Honolulu:  Zoning by Initiative in Hawaii.  12 UH L. Rev. 181.

  Marsland v. First Hawaiian Bank:  Home Rule and the Scope of the County Prosecutor's Power.  12 UH L. Rev. 261.

 

Case Notes

 

  A charter framed and adopted as authorized by this section may be amended by the legislature by general law.  50 H. 277, 439 P.2d 206.

  Provisions in charter must be limited to self-government of political subdivisions and within limits of general law.  56 H. 582, 545 P.2d 684.

  Counties not authorized to include charter provisions repugnant to statutes in areas of civil service and compensation.  59 H. 65, 576 P.2d 1029.

  Provisions of Maui Charter on the departments of water supply, police and liquor control relate to executive and administrative structure and organization and are superior to statutory provisions.  59 H. 65, 576 P.2d 1029.

  Power of legislature to enact laws of statewide concern not limited by this section; §§46-21.5 and 78-18.3 not unconstitutional under this section as provisions intended to allow for integrated, equitable, and reasonable salaries among top-level officers of all jurisdictions was a matter of statewide concern and thus was a matter within the powers of the legislature.  67 H. 412, 689 P.2d 757.

  County charter which permitted zoning by initiative was not superior to state statute.  70 H. 480, 777 P.2d 244.

  Challenge to election results regarding proposed amendments to county charter barred by doctrine of laches.  72 H. 499, 823 P.2d 738.

  Ordinance in conflict with express provision in county charter was invalid.  72 H. 513, 823 P.2d 742.

 

 

TAXATION AND FINANCE

 

     Section 3.  The taxing power shall be reserved to the State, except so much thereof as may be delegated by the legislature to the political subdivisions, and except that all functions, powers and duties relating to the taxation of real property shall be exercised exclusively by the counties, with the exception of the county of Kalawao.  The legislature shall have the power to apportion state revenues among the several political subdivisions. [Ren and am Const Con 1978 and election Nov 7, 1978]

 

Attorney General Opinions

 

  As section authorizes delegation of taxing power to political subdivisions, §248-2, authorizing counties to set real property tax rate, is not in violation of article VI, §1.  Att. Gen. Op. 68-25.

  Cited, in determining that the ten per cent deduction of the county surcharge for the costs of assessment, collection, and disposition of the county surcharge on state general excise tax into the state general fund is neither unconstitutional nor illegal.  Att. Gen. Op. 15-1.

 

Law Journals and Reviews

 

  Real Property Tax Litigation in Hawaii.  III HBJ No. 13, at pg. 57.

 

Case Notes

 

  Where city ordinance did not require that funds generated by a "convicted persons" charge be used to defray the city’s investigative and prosecutorial costs associated with the individual payor’s case, leaving open the possibility that the charge could be used for general revenue raising purposes, ordinance was not a "service fee" under §46-1.5(8), but a tax, which the State did not empower the city to impose; thus ordinance was invalid.  89 H. 361, 973 P.2d 736.

  Because this section and §246A-2 cover the whole subject of the counties’ real property taxation power and embrace the entire law on the matter, §248-2, by limiting Maui county’s real property taxation powers, is in conflict and is repealed by implication.  90 H. 334, 978 P.2d 772.

  Waiahole Ditch water use permittees being required to fund subsequent stream studies and monitoring activities was not an illegal "tax" where the studies directly benefited permittees by helping them prove as required under §174C-49 that their uses were "reasonable-beneficial" and "consistent with the public interest" and by also allowing them exclusive use of public resources in the interim, despite the present absence of such proof.  94 H. 97, 9 P.3d 409.

  The constitutional rule of tax immunity did not operate to immunize the State from the contractual obligations it voluntarily assumed through its leases to pay the real property taxes of its lessors.  99 H. 508, 57 P.3d 433.

  "The counties", as referred to in this section, means county or local governments, i.e., county councils.  115 H. 15, 165 P.3d 916.

  Where charter amendment usurped the county government's/county council's "functions, powers and duties relating to the taxation of real property", the charter amendment was unconstitutional pursuant to this section.  115 H. 15, 165 P.3d 916.

  Amounts assessed against insurers for payment into the insurance regulation fund under §431:2-215 was a regulatory fee and not an unconstitutional tax where (1) the charges were assessed by the commissioner; (2) the assessments were placed into a special fund intended to reimburse the division for insurance industry regulating costs; and (3) moneys from the fund to pay for services provided by the departments of commerce and consumer affairs and budget and finance, and to buttress the division's reserve fund were "used for the regulation or benefit of the parties upon whom the assessment was imposed".  120 H. 51, 201 P.3d 564.

  Where regulatory fees assessed against insurers by the insurance commissioner, an officer of the executive branch, for payment into the insurance regulation fund under §431:2-215 were transferred by the legislature via transfer bills from the insurance division into the general fund, and the regulatory fees became available for general purposes as if derived from general tax revenues, the transfers violated the separation of powers doctrine under this section and §26-10(b).  120 H. 51, 201 P.3d 564.

  Cited:  73 H. 449, 834 P.2d 1302.