HomeMy WebLinkAbout2005-10-04_constitutionality_of_County_Job_Application_Process Harry Kim +.1°`N4y� Lincoln S.T.Ashida
Mayor •�� w;�� Corporation Counsel
Gerald Takase
• z Assistant Corporation
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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
Ms. Gabriella M. Cabanas
October 4, 2005
Page 2
residence. In determining this intent, the following factors shall be
considered:
(1) Maintenance of a domicile or permanent place of residence in the State;
(2)Absence of residency in another state; and
(3) Former residence in the State.
Domicile is generally defined as the place where a person has his true, fixed, and
permanent home and to which, whenever he is absent, he has the intention of returning. None of
the factors mentioned are required to be given more weight than any of the other factors, nor
does a reading of the statute itself provide us with a compelling reason which would support a
restrictive interpretation of "resident."
Accordingly, any reading of this statute requires us to apply the definition given in the
statute in any attempt to define"resident." This is especially true since legislative history offers
no assistance. While the definition is awkward in its application, we must be mindful that since
the legislature provided us with this definition, we must use it in our application to the facts of
any particular case.
Utilizing this definition, as well as keeping in mind that the trend in the courts is to
disfavor residence requirements absent some compelling reason to require a resident
requirement, the following opinion is offered to you.
If a person who formerly resided in the State of Hawaii submits an application for
employment, that person should be considered a resident for purposes of this statute if he had
formed the intent to make Hawaii his permanent home while he was physically present in the
State of Hawaii. This is true regardless of his location at the time the application is filed. I will
admit that the interpretation of this statute,which is suggested, is a liberal interpretation.
However in the absence of any contrary evidence that the applicant does not meet the
criteria set forth in the statute, applications for employment from persons who formerly resided
in this State should be accepted.
YoAirs truly,
Michael J. Udovic
Deputy Corporation Counsel
MJU:mc
cc: Mr. Mike Ben
s:\work 2005\oct\wrk 05-10169\recom to civil svc re residency requirements 101-05 MJUmc