2005-10-04_constitutionality_of_County_Job_Application_Process

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Harry Kim +.1°`N4y� Lincoln S.T.Ashida Mayor •�� w;�� Corporation Counsel Gerald Takase • z Assistant Corporation �'�>:;;•„►+'' Counsel COUNTY OF HAWAII OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street, Suite 325 • Hilo,Hawaii 96720-4262 • (808)961-8251 • Fax(808)961-8622 October 4, 2005 Ms. Gabriella M. Cabanas CONFIDENTIAL: ATTORNEY-CLIENT PRIVILEGE. Civil Service Department NOT TO BE COPIED, RELEASED, OR p CIRCULATED TO THE PUBLIC OR ANYONE 101 Pauahi Street, Suite 2 WITHOUT THE CONSENT OF THE OFFICE OF Hilo, Hawaii 96720 THE CORPORATION COUNSEL. Re: Constitutionality of County's Job Application Process Work Request No. 05-10169 Dear Ms. Cabanas: Over the past years, decisions from all courts in the United States, including the Supreme Court of the State of Hawaii,have reduced or restricted residence requirements for public employment. In those cases where a residence requirement was upheld, the employer had to provide specific information to the court showing there was a compelling reason to require residence for continued employment. The Supreme Court of Hawaii in the case of York v. State (1972) struck down the durational residence requirements for public employment, stating that the statute containing a three-year residency requirement for public employment created an arbitrary classification without rational relation to a public employee applicant's capabilities of performing satisfactorily for the State, operated irrationally without reference to any legitimate state interest, and was unconstitutional, violating the equal protection clause of the United States Constitution. Other courts, including the Supreme Court of the United States, have severely restricted residence requirements because of their chilling effect on a person's constitutional right to travel. In the year 2000, the Legislature of the State of Hawaii enacted the Civil Service Reform Act. A thorough review of this legislation and the committee reports prepared in conjunction with hearings on this reform provides no assistance to the questions regarding a requirement for residency at the time the application for employment is filed pursuant to Section 78-1, HRS. This section of the statutes provides its own definition of residence, stating: "Resident"means a person who is physically present in the State at the time the person claims to have established the person's domicile in the State and shows the person's intent is to make Hawaii the Person's permanent Hawaii County is an Equal Opportunity Provider and Employer