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The Constitution
of the
State of Hawaii

Incorporating the November 2006 election changes,
and including the annotation.

 Introduction
 Revision Note
 Preamble
 Federal Constitution Adopted

Articles

IBill of Rights
IISuffrage and Elections
IIIThe Legislature
IVReapportionment
VThe Executive
VIThe Judiciary
VIITaxation and Finance
VIIILocal Government
IXPublic Health and Welfare
XEducation
XIConservation, Control and Development of Resources
XIIHawaiian Affairs
XIIIOrganization; Collective Bargaining
XIVCode of Ethics
XVState Boundaries; Capital; Flag; Language and Motto
XVIGeneral and Miscellaneous Provisions
XVIIRevision and Amendment
XVIIISchedule

Introduction

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 ... is dependent 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

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.

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Article I
Bill of Rights

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Sections

1Political power
2Rights of individuals
3Equality of rights
4Freedom of religion, speech, press, assembly and petition
5Due process and equal protection
6Right to privacy
7Searches, seizures and invasion of privacy
8Rights of citizens
9Enlistment; segregation
10Indictment; preliminary hearing; information; double jeopardy; self-incrimination
11Grand jury counsel
12Bail; excessive punishment
13Trial by jury, civil cases
14Rights of accused
15Habeas corpus and suspension of laws
16Supremacy of civil power
17Right to bear arms
18Quartering of soldiers
19Imprisonment for debt
20Eminent domain
21Limitations of special privileges
22Construction
23Marriage
24Public access to information concerning persons convicted of certain offenses against children and certain sexual offenses
25Sexual assault crimes against minors

Note:

For proposed constitutional amendment to this article adding a new section on sexual assault crimes against minors, see SB 2246, L 2006, pg. 1268.

Law Journals and Reviews:

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

1.1
Political power

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]

1.2
Rights of individuals

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.

HRS §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.

HRS §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.

1.3
Equality of rights

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.

1.4
Freedom of religion, speech, press, assembly and petition

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.

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.

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.

Freedom of religion.

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.

Freedom of speech.

In lawsuit involving a challenge to city and county of Honolulu's practice of charging nonresidents a $3.00 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.

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.

Hawaii Legal Reporter Citations:

Due process. 77-2 HLR 77-793.

1.5
Due process and equal protection

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.

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.

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.

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.

Ordinance proscribing "presence" at cockfight is too vague to satisfy requirement of due process. 50 H. 384, 441 P.2d 333.

HRS §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.

HRS §772-1 making criminal one's wandering about at night without visible business was unconstitutional for vagueness. 52 H. 527, 480 P.2d 148.

HRS §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.

HRS §621-22, allowing introduction of prior convictions to impeach credibility of defendant in criminal case was unconstitutional. 53 H. 254, 492 P.2d 657.

HRS §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.

Rule 412, Hawaii rules of evidence, 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.

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.

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.

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.

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.

Hawaii Legal Reporter Citations:

Due process.

Mooring permit. 80-1 HLR 800249.

Vagueness. 81-1 HLR 810147.

Equal protection.

Beverage containers. 78-2 HLR 78-1478.

1.6
Right to privacy

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]

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.

Case Notes:

Parents' right to give their child any name they wish. 466 F. Supp. 714.

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.

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.

1.7
Searches, seizures and invasion of privacy

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.

Case Notes:

See also notes to U.S. Const. Amends. 1, 4.

Section incorporates the 4th 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.

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.

Search and seizure.

Plaintiffs challenging city and county of Honolulu's practice of charging nonresidents a $3.00 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 $3.00 entrance fee at turnstile did not constitute an impermissible seizure. 215 F. Supp. 2d 1098.

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.

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.

Cited: 56 H. 366, 537 P.2d 8.

Mentioned: 53 H. 327, 493 P.2d 306.

Hawaii Legal Reporter Citations:

Electronic surveillance. 81-2 HLR 810715.

Photographs and videotapes. 81-2 HLR 810715.

1.8
Rights of citizens

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.

1.9
Enlistment; segregation

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]

1.10
Indictment; preliminary hearing; information; double jeopardy; self-incrimination

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.

Case Notes:

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.

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 Hawaii Rules of Penal Procedure 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.

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.

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, cert. den. 112 S.Ct. 194.

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.

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.

1.11
Grand jury counsel

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.

1.12
Bail; excessive punishment

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 (1979), 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:

Cruel and unusual punishment.

See notes to U.S. Const. Amend. 8.

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.

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.

1.13
Trial by jury, civil cases

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]

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.

Case Notes:

Section does not prohibit use of 6-member jury by federal district court in diversity personal injury action. 487 F.2d 957.

Language of U.S. Constitution 7th 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.

1.14
Rights of accused

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 14th 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.

Case Notes:

Section modeled after the 6th 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.

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.

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 to accused his 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.

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.

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 rule 57, Hawaii rules of penal procedure. 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.

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.

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.

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 6th 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.

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.

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.

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.

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.

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.

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.

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.

1.15
Habeas corpus and suspension of laws

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]

1.16
Supremacy of civil power

The military shall be held in strict subordination to the civil power.  [Ren Const Con 1978 and election Nov 7, 1978]

1.17
Right to bear arms

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.

1.18
Quartering of soldiers

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]

1.19
Imprisonment for debt

There shall be no imprisonment for debt.  [Ren Const Con 1978 and election Nov 7, 1978]

1.20
Eminent domain

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.

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.

1.21
Limitations of special privileges

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]

1.22
Construction

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.

1.23
Marriage

The legislature shall have the power to reserve marriage to opposite-sex couples.  [Add HB 117 (1997) and election Nov 3, 1998]

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: Hawai`i'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.

1.24
Public access to information concerning persons convicted of certain offenses against children and certain sexual offenses

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]

1.25
Sexual assault crimes against minors

 [This section will be printed in the 2007 HRS supplement.]

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 SB2246 (2006) and election Nov 7, 2006]

Cross References:

Continuous sexual assault of a minor under the age of fourteen years, see §707-733.6.

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Article II
Suffrage and Elections

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Sections

1Qualifications
2Disqualification
3Residence
4Registration; voting
5Campaign fund, spending limit
6Campaign contributions limits
7Resignation from public office
8General, special and primary elections
9Presidential preference primary
10Contested Elections

2.1
Qualifications

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.

2.2
Disqualification

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.

2.3
Residence

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]

2.4
Registration; voting

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.

2.5
Campaign fund, spending limit

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]

2.6
Campaign contributions limits

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]

2.7
Resignation from public office

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.

2.8
General, special and primary elections

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.

2.9
Presidential preference primary

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]

2.10
Contested Elections

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.

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Article III
The Legislature

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Sections

1Legislature power
2Composition of senate
3Composition of house of representatives
4Election of members; term
5Vacancies
6Qualifications of members
7Privileges of members
8Disqualifications of members
9Legislative allowance
10Sessions
11Adjournment
12Organization; discipline; rules; procedure
13Quorum; compulsory attendance
14Bills; enactment
15Passage of bills
16Approval or veto; reconsideration after adjournment
17Procedures upon veto
18Punishment of nonmembers
19Impeachment

3.1
Legislature power

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.

Case Notes:

Question of delegation of state power to federal agency discussed. 44 H. 651, 361 P.2d 390.

Question of unconstitutional delegation of legislative power considered. 49 H. 651, 426 P.2d 626.

Penal sanctions, effect on requirement of legislative standards for administrative agencies in adoption of regulations. 49 H. 651, 657-58, 426 P.2d 626.

Legislature has power to establish the subject matter jurisdiction of state court system. 63 H. 55, 621 P.2d 346.

Hawaii Legal Reporter Citations:

Unconstitutional delegation of authority. 78-2 HLR 78-781.

3.2
Composition of senate

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 (1979). The revisor has deleted the textual changes under the authority of Resolution No. 29 of the 1978 Constitutional Convention.

Attorney General Opinions:

Under prior law, apportionment of Senate held improper under the 14th Amendment to U.S. Constitution. Att. Gen. Op. 64-33.

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.

3.3
Composition of house of representatives

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 (1979). 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. 418, 240 F. Supp. 724.

3.4
Election of members; term

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 terms 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.

3.5
Vacancies

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 HRS §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 HRS §17-3 would be invalid as violative of equal protection. 327 F. Supp. 745.

3.6
Qualifications of members

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 ‘s senate 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.

3.7
Privileges of members

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.

3.8
Disqualifications of members

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.

Hawaii Legal Reporter Citations:

Legislative immunity. 78-1 HLR 78-431.

Article unconstitutional. 82-1 HLR 820523.

3.9
Legislative allowance

 [This section supersedes the section printed in the HRS.]

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]

Note:

Salary of legislators: members, $34,200; presiding officers, $41,700.

Cross References:

Allowances, see chapter 24.

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.

3.10
Sessions

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.

3.11
Adjournment

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]

3.12
Organization; discipline; rules; procedure

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 section 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.

3.13
Quorum; compulsory attendance

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]

3.14
Bills; enactment

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 section 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.

3.15
Passage of bills

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 24-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.

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.

3.16
Approval or veto; reconsideration after adjournment

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.

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.

3.17
Procedures upon veto

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]

3.18
Punishment of nonmembers

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]

3.19
Impeachment

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]

C+ 1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  
C - 1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  

Article IV
Reapportionment

A+ 1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18
A - 1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18

Sections

1Reapportionment years
2Reapportionment commission
3Chief election officer
4Apportionment among basic island units
5Minimum representation for basic island units
6Apportionment within basic island units
7Election of senators after reapportionment
8Staggered terms for the senate
9Congressional redistricting for United States House of Representatives
10Mandamus and judicial review

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.

For current plan, see the 1991 Report and Reapportionment Plan submitted to the lieutenant governor.

Cross References:

Statutory provisions, see chapter 25.

Law Journals and Reviews:

A History of Recent Reapportionment in Hawaii. 22 HBJ 171.

4.1
Reapportionment years

The year 1973, the year 1981, and every tenth year thereafter shall be reapportionment years.  [Add Const Con 1978 and election Nov 7, 1978]

4.2
Reapportionment commission

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]

4.3
Chief election officer

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]

4.4
Apportionment among basic island units

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]

4.5
Minimum representation for basic island units

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 (1979). 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.

4.6
Apportionment within basic island units

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 (1979). 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:

"Compact and contiguous" districts discussed in context of council district reapportionment plan under city charter. 75 H. 463, 868 P.2d 1183.

4.7
Election of senators after reapportionment

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]

Note:

Revision Note: Renumbered from section 6 under the authority of Resolution No. 29 of the 1978 Constitutional Convention.

4.8
Staggered terms for the senate

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]

Note:

Revision Note: Renumbered from section 7 under the authority of Resolution No. 29 of the 1978 Constitutional Convention.

4.9
Congressional redistricting for United States House of Representatives

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]

Note:

Revision Note: Renumbered from section 8 under the authority of Resolution No. 29 of the 1978 Constitutional Convention.

4.10
Mandamus and judicial review

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]

Note:

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.

Method of equal proportions is constitutionally permissible; so is use of registered voters as basis of apportionment. 316 F. Supp. 1285. Last clause providing for minimum representation is invalid. 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 sections 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.

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Article V
The Executive

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Sections

1Establishment of the executive
2Lieutenant Governor
3Compensation: Governor, Lieutenant Governor -- Repealed
4Succession to governorship; absence or disability of governor
5Executive powers
6Executive and administrative offices and department

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.

5.1
Establishment of the executive

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.

5.2
Lieutenant Governor

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:

Chief election officer, see §11-2.

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.

5.3
Compensation: Governor, Lieutenant Governor -- Repealed

REPEALED.  [Repeal HB 1917 (2006) and election Nov 7, 2006]

5.4
Succession to governorship; absence or disability of governor

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.

5.5
Executive powers

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.

5.6
Executive and administrative offices and department

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 or 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.

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.

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Article VI
The Judiciary

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Sections

1Judicial power
2Supreme court; intermediate appellate court; circuit courts
3Appointment of justices and judges; qualifications for appointment; tenure; retirement
4Judicial selection commission
5Retirement; removal; discipline
6Administration
7Rules

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.

6.1
Judicial power

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.

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.

6.2
Supreme court; intermediate appellate court; circuit courts

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.

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.

6.3
Appointment of justices and judges; qualifications for appointment; tenure; retirement

 [This section supersedes the section printed in the HRS.]

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.

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]

Cross References:

Circuit courts, see chapter 603.

Compensation, see §§602-2, 603-5, and 604-2.5.

Judicial salary commission, see §608-1.5.

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.

Law Journals and Reviews:

Administering Justice or Just Administration: The Hawaii Supreme Court and the Intermediate Court of Appeals. 14 UH L. Rev. 271.

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.

Hawaii Legal Reporter Citations:

Qualifications for judicial appointment. 79 HLR 79-0385.

6.4
Judicial selection commission

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]

Note:

Rules of Court: See Judicial Selection Commission Rules.

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.

6.5
Retirement; removal; discipline

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]

6.6
Administration

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.

6.7
Rules

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]

Note:

Rules of Court: See Rules of the Supreme Court; Code of Professional Responsibility; 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; Rules of the Family Court; Rules of the Tax Appeal Court; Rules of the Land Court.

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.

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.

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Article VII
Taxation and Finance

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Sections

1Taxing power inalienable
2Income taxation
3Tax review commission
4Appropriations for private purposes prohibited
5Expenditure controls
6Disposition of excess revenues
7Council on revenues
8The budget
9Legislative appropriations; procedures; expenditure ceiling; general fund expenditure ceiling
10Auditor
11Lapsing of appropriations
12Definitions; issuance of indebtedness
13Debt limit; exclusions

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.

7.1
Taxing power inalienable

The power of taxation shall never be surrendered, suspended or contracted away.  [Ren Const Con 1978 and election Nov 7, 1978]

Attorney General Opinions:

HRS §248-2, authorizing the counties to set real property tax rate, does not contravene this section, since Art. VII, §3, expressly authorizes delegation of taxing power to political subdivisions. Att. Gen. Op. 68-25.

7.2
Income taxation

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.

7.3
Tax review commission

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.

7.4
Appropriations for private purposes prohibited

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.

7.5
Expenditure controls

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, see §§37-31 to 37-43.

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.

7.6
Disposition of excess revenues

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 provide for a tax refund or tax credit to the taxpayers of the State, as provided by law.  [Add Const Con 1978 and election Nov 7, 1978]

7.7
Council on revenues

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 references, see §§37-111, 112.

7.8
The budget

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 references, 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.

7.9
Legislative appropriations; procedures; expenditure ceiling; general fund expenditure ceiling

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 references, 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.

7.10
Auditor

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.

7.11
Lapsing of appropriations

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.

7.12
Definitions; issuance of indebtedness

 [This section supersedes the section printed in the HRS.]

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:
    1. 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
    2. 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 "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.
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. 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; or
  7. Agricultural enterprises serving important agricultural lands, 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 not-for-profit private nonsectarian and sectarian elementary schools, secondary schools, colleges, and universities, separately authorized as aforesaid, in the total amount of 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]

Cross References:

Assisting agricultural enterprises serving important agricultural lands, see §§39A-311 to 332.

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.

7.13
Debt limit; exclusions

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.

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Article VIII
Local Government

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Sections

1Creation; powers of political subdivisions
2Local self-government; charter
3Taxation and finance
4Mandates; accrued claims
5Transfer of mandated programs
6Statewide laws

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.

8.1
Creation; powers of political subdivisions

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:

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, SL 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 section 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.

8.2
Local self-government; charter

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.

Hawaii Legal Reporter Citations:

Charter provisions superior to statutory provisions. 79 HLR 79-0027.

8.3
Taxation and finance

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, HRS §248-2, authorizing counties to set real property tax rate, is not in violation of Art. VI, §1. Att. Gen. Op. 68-25.

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.

Cited: 73 H. 449, 834 P.2d 1302.

8.4
Mandates; accrued claims

No law shall be passed mandating any political subdivision to pay any previously accrued claim.  [Ren Const Con 1978 and election Nov 7, 1978]

Case Notes:

Cited: 50 H. 277, 439 P.2d 206.

8.5
Transfer of mandated programs

If any new program or increase in the level of service under an existing program shall be mandated to any of the political subdivisions by the legislature, it shall provide that the State share in the cost.  [Add Const Con 1978 and election Nov 7, 1978]

Cross References:

Interpretation of county functions under state water code, see §174C-4.

Attorney General Opinions:

State not required to share cost of maintaining public highways. Att. Gen. Op. 86-15.

If extending survey and reporting requirements to new enterprise zone (EZ) created by the legislature would result in an increase in the level of service under city and county's existing program, then, unless department was willing to share in the cost, city and county was not required to submit initial survey or annual report on new EZ. Att. Gen. Op. 98-1.

8.6
Statewide laws

This article shall not limit the power of the legislature to enact laws of statewide concern.  [Ren and am Const Con 1978 and election Nov 7, 1978]

Attorney General Opinions:

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, §2 of state constitution. Att. Gen. Op. 97-6.

Law Journals and Reviews:

Marsland v. First Hawaiian Bank: Home Rule and the Scope of the County Prosecutor's Power. 12 UH L. Rev. 261.

Case Notes:

Did not preempt ordinance relating to residential condominium leasehold conversion. 76 H. 46, 868 P.2d 1193.

The power to set exemptions from real property taxation is not a matter of statewide concern reserved to the legislature under this section. 99 H. 508, 57 P.3d 433.

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Article IX
Public Health and Welfare

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Sections

1Public health
2Care of handicapped persons
3Public assistance
4Economic security of the elderly
5Housing, slum clearance, development and rehabilitation
6Management of state population growth
7Public sightliness and good order
8Preservation of a healthful environment
9Cultural resources
10Public safety

Note:

This article was renumbered from Article VIII to be Article IX by Const Con 1978 and election Nov 7, 1978. The former Article IX now appears as Article X.

Law Journals and Reviews:

Environmental Protection Based on State Constitutional Law: A Call for Reinterpretation. 12 UH L. Rev. 123.

9.1
Public health

The State shall provide for the protection and promotion of the public health.  [Ren Const Con 1978 and election Nov 7, 1978]

Attorney General Opinions:

Enumeration of certain powers by this section was not intended to restrict the Legislature. Att. Gen. Op. 68-17.

9.2
Care of handicapped persons

The State shall have the power to provide for the treatment and rehabilitation of handicapped persons.  [Ren and am Const Con 1978 and election Nov 7, 1978]

9.3
Public assistance

The State shall have the power to provide financial assistance, medical assistance and social services for persons who are found to be in need of and are eligible for such assistance and services as provided by law.  [Ren and am Const Con 1978 and election Nov 7, 1978]

9.4
Economic security of the elderly

The State shall have the power to provide for the security of the elderly by establishing and promoting programs to assure their economic and social well-being.  [Add Const Con 1978 and election Nov 7, 1978]

9.5
Housing, slum clearance, development and rehabilitation

The State shall have the power to provide for, or assist in, housing, slum clearance and the development or rehabilitation of substandard areas. The exercise of such power is deemed to be for a public use and purpose.  [Am HB 54 (1975) and election Nov 2, 1976; ren and am Const Con 1978 and election Nov 7, 1978]

Case Notes:

Did not preempt ordinance relating to residential condominium leasehold conversion. 76 H. 46, 868 P.2d 1193.

9.6
Management of state population growth

The State and its political subdivisions, as provided by general law, shall plan and manage the growth of the population to protect and preserve the public health and welfare; except that each political subdivision, as provided by general law, may plan and manage the growth of its population in a more restrictive manner than the State.  [Add Const Con 1978 and election Nov 7, 1978]

9.7
Public sightliness and good order

The State shall have the power to conserve and develop objects and places of historic or cultural interest and provide for public sightliness and physical good order. For these purposes private property shall be subject to reasonable regulation.  [Ren and am Const Con 1978 and election Nov 7, 1978]

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.

Case Notes:

Applies to regulation of sign in industrial area. 50 H. 33, 429 P.2d 825.

Cited: 59 H. 65, 576 P.2d 1029.

9.8
Preservation of a healthful environment

The State shall have the power to promote and maintain a healthful environment, including the prevention of any excessive demands upon the environment and the State's resources.  [Add Const Con 1978 and election Nov 7, 1978]

9.9
Cultural resources

The State shall have the power to preserve and develop the cultural, creative and traditional arts of its various ethnic groups.  [Add Const Con 1978 and election Nov 7, 1978]

9.10
Public safety

The law of the splintered paddle, mamala-hoe kanawai, decreed by Kamehameha I--Let every elderly person, woman and child lie by the roadside in safety--shall be a unique and living symbol of the State's concern for public safety.

The State shall have the power to provide for the safety of the people from crimes against persons and property.  [Add Const Con 1978 and election Nov 7, 1978]

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Article X
Education

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Sections

1Public education
2Board of Education
3Power of the Board of Education
4Hawaii Education Program
5University of Hawaii
6Board of Regents; powers

Note:

This article was renumbered from Article IX to be Article X by Const Con 1978 and election Nov 7, 1978. The former Article X now appears as Article XI.

10.1
Public education

The State shall provide for the establishment, support and control of a statewide system of public schools free from sectarian control, a state university, public libraries and such other educational institutions as may be deemed desirable, including physical facilities therefor. There shall be no discrimination in public educational institutions because of race, religion, sex or ancestry; nor shall public funds be appropriated for the support or benefit of any sectarian or nonsectarian private educational institution, except that proceeds of special purpose revenue bonds authorized or issued under section 12 of Article VII may be appropriated to finance or assist:

  1. Not-for-profit corporations that provide early childhood education and care facilities serving the general public; and
  2. Not-for-profit private nonsectarian and sectarian elementary schools, secondary schools, colleges and universities.  [Ren and am Const Con 1978 and election Nov 7, 1978; am L 1994, c 280, §4 (HB 2692-94) and election Nov 8, 1994; am HB 2848 (2002) and election Nov 5, 2002]

Cross References:

Admission Act provisions, see §5(f).

Department of education, see §26-12.

Attorney General Opinions:

Policy regarding use of buses during release-time religious instruction not prohibited. Att. Gen. Op. 66-24.

The Church College of Hawaii is a private educational institution and cannot receive an appropriation of public funds. Att. Gen Op. 67-13.

Appropriation of public funds for transporting both private and public school children is not invalid. Att. Gen. Op. 67-13. See also Att. Gen. Op. 58-59.

Appropriation of public funds to provide insurance for JPOs at nonpublic schools is precluded. Att. Gen. Op. 73-15.

Department of education may use appropriated funds to contract with private language schools to provide language skills as alternative to enrolling in DOE language courses. Att. Gen. Op. 77-2.

A publicly-funded school voucher program would violate this section. Att. Gen. Op. 03-1.

Case Notes:

Mentioned in 403 U.S. 602 at 647, concerning provision prohibiting use of public funds to aid sectarian schools.

"Support or benefit" construed; provision prohibits appropriations to provide bus transportation subsidies to nonpublic school students. 51 H. 1, 449 P.2d 130.

First sentence encompasses the selection and location of public schools and university sites. 56 H. 582, 545 P.2d 684.

10.2
Board of Education

There shall be a board of education composed of members who shall be elected in a nonpartisan manner by qualified voters, as provided by law, from two at-large school board districts. The first school board district shall be comprised of the island of Oahu and all other islands not specifically enumerated. The second school board district shall be comprised of the islands of Hawaii, Maui, Lanai, Molokai, Kahoolawe, Kauai and Niihau. Each at-large school board district shall be divided into departmental school districts, as may be provided by law. There shall be at least one member residing in each departmental school district. The Hawaii State Student Council shall select a public high school student to serve as a nonvoting member on the board of education.  [Am HB 4 (1963) and election Nov 3, 1964; ren and am Const Con 1978 and election Nov 7, 1978; am HB 2688 (1988) and election Nov 8, 1988]

Cross References:

Election provisions, see chapter 13.

Statutory provisions, see §26-12.

Attorney General Opinions:

Legislature may require public officers to resign before running for board of education. Att. Gen. Op. 75-22.

Case Notes:

Act proposing alternative constitutional amendments concerning changes in school governance directed amendment to state constitution in violation of Article XVII, §3. 73 H. 536, 836 P.2d 1066.

10.3
Power of the Board of Education

The board of education shall have the power, as provided by law, to formulate statewide educational policy and appoint the superintendent of education as the chief executive officer of the public school system.  [Am HB 421 (1964) and election Nov 3, 1964; ren and am Const Con 1978 and election Nov 7, 1978; am L 1994, c 272, §15 (HB 3657-94) and election Nov 8, 1994]

Cross References:

Statutory provisions, see §26-12 and chapter 296.

Attorney General Opinions:

Board has authority to formulate policy, so long as policy does not contravene any legislative act; board may set school lunch prices and parking rates. Att. Gen. Op. 73-14.

Superintendent cannot be hired for period beyond term of office of members who hire him. Att. Gen. Op. 75-20.

Case Notes:

Board has broad discretionary powers and did not require specific legislative authorization to establish sex education program. 52 H. 436, 478 P.2d 314.

Formulation of policy and control over schools rest with board. 59 H. 388, 583 P.2d 313.

Budget expenditures of the department of education, discussed. 70 H. 253, 768 P.2d 1279.

Act proposing alternative constitutional amendments concerning changes in school governance directed amendment to state constitution in violation of Article XVII, §3. 73 H. 536, 836 P.2d 1066.

10.4
Hawaii Education Program

The State shall promote the study of Hawaiian culture, history and language.

The State shall provide for a Hawaiian education program consisting of language, culture and history in the public schools. The use of community expertise shall be encouraged as a suitable and essential means in furtherance of the Hawaiian education program.  [Add Const Con 1978 and election Nov 7, 1978]

10.5
University of Hawaii

The University of Hawaii is hereby established as the state university and constituted a body corporate. It shall have title to all the real and personal property now or hereafter set aside or conveyed to it, which shall be held in public trust for its purposes, to be administered and disposed of as provided by law.  [Ren and am Const Con 1978 and election Nov 7, 1978]

Attorney General Opinions:

The university is a constitutionally independent corporation and is not an administrative or executive agency within the meaning of section. Att. Gen. Op. 61-84.

Power of legislature over property vested in the university discussed. Att. Gen. Op. 74-5.

Board of regents' trust duties; standard of care for investment policy. Att. Gen. Op. 85-26.

Case Notes:

The University is agency of State. 355 F. Supp. 789.

10.6
Board of Regents; powers

There shall be a board of regents of the University of Hawaii, the members of which shall be nominated and, by and with the advice and consent of the senate, appointed by the governor from pools of qualified candidates presented to the governor by the candidate advisory council for the board of regents of the University of Hawaii, as provided by law. At least part of the membership of the board shall represent geographic subdivisions of the State. The board shall have the power to formulate policy, and to exercise control over the university through its executive officer, the president of the university, who shall be appointed by the board. The board shall also have exclusive jurisdiction over the internal structure, management, and operation of the university. This section shall not limit the power of the legislature to enact laws of statewide concern. The legislature shall have the exclusive jurisdiction to identify laws of statewide concern.  [Am HB 253 (1964) and election Nov 3, 1964; ren and am Const Con 1978 and election Nov 7, 1978; am SB 539 (2000) and election Nov 7, 2000; am SB 1256 (2005) and election Nov 7, 2006]

Cross References:

Composition of board, see §26-11.

Attorney General Opinions:

President need not satisfy the three-year residence requirement. Att. Gen. Op. 61-84.

Board may delegate to the president the authority to set student activity fees. Att. Gen. Op. 73-16.

Board of regents can delegate limited investment authority to external investment managers. Att. Gen. Op. 78-1.

Limitations on board of regents' power to set compensation of university president. Att. Gen. Op. 85-1.

Case Notes:

Board may delegate to president the authority to make negative decisions in tenure cases. 56 H. 680, 548 P.2d 253.

Board's mandatory retirement policy which conflicted with §§78-3 and 304-11 violated this section. 63 H. 366, 628 P.2d 1026.

Does not preclude the university from agreeing to submit tenure or promotion disputes to arbitration or preclude an arbitrator from granting promotion or tenure. 66 H. 214, 659 P.2d 720.

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Article XI
Conservation, Control and Development of Resources

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Sections

1Conservation and development of resources
2Management and disposition of natural resources
3Agricultural lands
4Public land banking
5General laws required; exceptions
6Marine resources
7Water resources
8Nuclear energy
9Environmental rights
10Farm and home ownership
11Exclusive Economic Zone

Note:

This article was redesignated from "Article X Conservation and Development of Resources" to be "Article XI Conservation, Control and Development of Resources" by Const Con 1978 and election Nov 7, 1978. The former Article XI now appears as Article XII.

Law Journals and Reviews:

Environmental Protection Based on State Constitutional Law: A Call for Reinterpretation. 12 UH L. Rev. 123.

11.1
Conservation and development of resources

For the benefit of present and future generations, the State and its political subdivisions shall conserve and protect Hawaii's natural beauty and all natural resources, including land, water, air, minerals and energy sources, and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the self-sufficiency of the State.

All public natural resources are held in trust by the State for the benefit of the people.  [Add Const Con 1978 and election Nov 7, 1978]

Note:

A proposal of the 1978 Constitutional Convention deleted the former section 1 of the old Article X, which read: "Section 1. The legislature shall promote the conservation, development and utilization of agricultural resources, and fish, mineral, forest, water, land, game and other natural resources." 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 (1979), excerpted in the note preceding the Preamble to the Constitution.

Law Journals and Reviews:

Residential Use of Hawai'i's Conservation District. 14 UH L. Rev. 633.

Hawai`i Constitution, Article XI, Section 1: The Conservation, Protection, and Use of Natural Resources. 19 UH L. Rev. 177.

Proceedings of the 2001 Symposium on Managing Hawai`i's Public Trust Doctrine. 24 UH L. Rev. 21.

Wiping Out the Ban on Surfboards at Point Panic. 27 UH L. Rev. 303.

Case Notes:

Although the public trust doctrine and the state water code share similar core principles, the code does not supplant the protections of the public trust doctrine. 94 H. 97, 9 P.3d 409.

The maintenance of waters in their natural state constitutes a distinct "use" under the water resources trust. 94 H. 97, 9 P.3d 409.

The state water resources trust embodies the following fundamental principles: the State has both the authority and duty to preserve the rights of present and future generations in the waters of the State; and the State bears an affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible. 94 H. 97, 9 P.3d 409.

This section and article XI, §7 of the Hawaii constitution adopt the public trust doctrine as a fundamental principle of constitutional law in Hawaii. 94 H. 97, 9 P.3d 409.

Under this section, article XI, §7 of the Hawaii constitution and the sovereign reservation, the public trust doctrine applies to all water resources, unlimited by any surface-ground distinction. 94 H. 97, 9 P.3d 409.

Pursuant to this section and §7 of the Hawaii constitution, §220(d) of the Hawaiian Homes Commission Act, and §174C-101(a), a reservation of water constitutes a public trust purpose. 103 H. 401, 83 P.3d 664.

Where commission on water resource management failed to render the requisite findings of fact and conclusions of law with respect to whether applicant had satisfied its burden as mandated by the state water code, it violated its public trust duty to protect the department of Hawaiian home lands' reservation rights under the Hawaiian Homes Commission Act, the state water code, the state constitution, and the public trust doctrine in balancing the various competing interests in the state water resources trust. 103 H. 401, 83 P.3d 664.

11.2
Management and disposition of natural resources

The legislature shall vest in one or more executive boards or commissions powers for the management of natural resources owned or controlled by the State, and such powers of disposition thereof as may be provided by law; but land set aside for public use, other than for a reserve for conservation purposes, need not be placed under the jurisdiction of such a board or commission.

The mandatory provisions of this section shall not apply to the natural resources owned by or under the control of a political subdivision or a department or agency thereof.  [Ren and am Const Con 1978 and election Nov 7, 1978]

Cross References:

Executive board, see §26-15.

Attorney General Opinions:

Not applicable to agriculture department. Att. Gen. Op. 64-14.

Not applicable to Hawaiian home lands department. Att. Gen. Op. 64-15.

Hawaii Legal Reporter Citations:

Conservation lands. 77-2 HLR 77-793.

11.3
Agricultural lands

The State shall conserve and protect agricultural lands, promote diversified agriculture, increase agricultural self-sufficiency and assure the availability of agriculturally suitable lands. The legislature shall provide standards and criteria to accomplish the foregoing.

Lands identified by the State as important agricultural lands needed to fulfill the purposes above shall not be reclassified by the State or rezoned by its political subdivisions without meeting the standards and criteria established by the legislature and approved by a two-thirds vote of the body responsible for the reclassification or rezoning action.  [Add Const Con 1978 and election Nov 7, 1978]

Law Journals and Reviews:

Maha'ulepu v. Land Use Commission: A Symbol of Change; Hawaii's Land Use Law Allows Golf Course Development on Prime Agricultural Land by Special Use Permit. 13 UH L. Rev. 205.

Is Agricultural Land in Hawai‘i "Ripe" for a Takings Analysis? 24 UH L. Rev. 121.

"Urban Type Residential Communities in the Guise of Agricultural Subdivisions:" Addressing an Impermissible Use of Hawai‘i's Agricultural District. 25 UH L. Rev. 199.

Avoiding the Next Hokuli‘a: The Debate over Hawai‘i's Agricultural Subdivisions. 27 UH L. Rev. 441.

Case Notes:

Unconstitutional if applied to deny importation of out-of-state goods for no reason other than goods traveled in interstate commerce. 590 F. Supp. 778.

This section requires legislative action to become operative; the nature of the required legislative action, at the least, is the adoption of standards and criteria; because this section is not "complete in itself", it requires implementing legislation. 102 H. 465, 78 P.3d 1.

Until standards and criteria for the preservation of agricultural lands are adopted by the legislature, this section is legally inoperative; thus, developer's lands could be rezoned without a two-thirds majority vote of the city council; trial court correctly ruled that passage of council rezoning bill by simple majority did not violate this section. 102 H. 465, 78 P.3d 1.

11.4
Public land banking

The State shall have the power to acquire interests in real property to control future growth, development and land use within the State. The exercise of such power is deemed to be for a public use and purpose.  [Add Const Con 1978 and election Nov 7, 1978]

11.5
General laws required; exceptions

The legislative power over the lands owned by or under the control of the State and its political subdivisions shall be exercised only by general laws, except in respect to transfers to or for the use of the State, or a political subdivision, or any department or agency thereof.  [Ren and am Const Con 1978 and election Nov 7, 1978]

11.6
Marine resources

The State shall have the power to manage and control the marine, seabed and other resources located within the boundaries of the State, including the archipelagic waters of the State, and reserves to itself all such rights outside state boundaries not specifically limited by federal or international law.

All fisheries in the sea waters of the State not included in any fish pond, artificial enclosure or state-licensed mariculture operation shall be free to the public, subject to vested rights and the right of the State to regulate the same; provided that mariculture operations shall be established under guidelines enacted by the legislature, which shall protect the public's use and enjoyment of the reefs. The State may condemn such vested rights for public use.  [Ren and am Const Con 1978 and election Nov 7, 1978]

Case Notes:

Private fishing rights not established under §96 of the Organic Act continue to be free to the public under this section. 48 H. 152, 192, 397 P.2d 593.

11.7
Water resources

The State has an obligation to protect, control and regulate the use of Hawaii's water resources for the benefit of its people.

The legislature shall provide for a water resources agency which, as provided by law, shall set overall water conservation, quality and use policies; define beneficial and reasonable uses; protect ground and surface water resources, watersheds and natural stream environments; establish criteria for water use priorities while assuring appurtenant rights and existing correlative and riparian uses and establish procedures for regulating all uses of Hawaii's water resources.  [Add Const Con 1978 and election Nov 7, 1978]

Cross References:

State water code, see chapter 174C.

Law Journals and Reviews:

Private Hopes and Public Values in the "Reasonable Beneficial Use" of Hawaii's Water: Is Balance Possible? 18 UH L. Rev. 1.

Cultures in Conflict in Hawai‘i: The Law and Politics of Native Hawaiian Water Rights. 18 UH L. Rev. 71.

Proceedings of the 2001 Symposium on Managing Hawai‘i's Public Trust Doctrine. 24 UH L. Rev. 21.

Native Hawaiian Homestead Water Reservation Rights: Providing Good Living Conditions for Native Hawaiian Homesteaders. 25 UH L. Rev. 85.

Case Notes:

Although the public trust doctrine and the state water code share similar core principles, the code does not supplant the protections of the public trust doctrine. 94 H. 97, 9 P.3d 409.

In denying water use permit application, water resource management commission did not wrongfully ignore and abridge petitioner's "ali‘i rights" where, to the extent that the ali‘i exercised sovereign authority over water, they received such authority by delegation from the sovereign; pursuant to constitutional and statutory mandate, final delegated authority presently resides in the commission, to be exercised for the benefit of the people of the State. 94 H. 97, 9 P.3d 409.

The maintenance of waters in their natural state constitutes a distinct "use" under the water resources trust. 94 H. 97, 9 P.3d 409.

The rule of correlative rights applies to all ground waters of the State. 94 H. 97, 9 P.3d 409.

The state water resources trust embodies the following fundamental principles: the State has both the authority and duty to preserve the rights of present and future generations in the waters of the State; and the State bears an affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible. 94 H. 97, 9 P.3d 409.

This section and article XI, §1 of the Hawaii constitution adopt the public trust doctrine as a fundamental principle of constitutional law in Hawaii. 94 H. 97, 9 P.3d 409.

Under this section, article XI, §1 of the Hawaii constitution and the sovereign reservation, the public trust doctrine applies to all water resources, unlimited by any surface-ground distinction. 94 H. 97, 9 P.3d 409.

Pursuant to this section and §1 of the Hawaii constitution, §220(d) of the Hawaiian Homes Commission Act, and §174C-101(a), a reservation of water constitutes a public trust purpose. 103 H. 401, 83 P.3d 664.

Where commission on water resource management failed to render the requisite findings of fact and conclusions of law with respect to whether applicant had satisfied its burden as mandated by the state water code, it violated its public trust duty to protect the department of Hawaiian home lands' reservation rights under the Hawaiian Homes Commission Act, the state water code, the state constitution, and the public trust doctrine in balancing the various competing interests in the state water resources trust. 103 H. 401, 83 P.3d 664.

11.8
Nuclear energy

No nuclear fission power plant shall be constructed or radioactive material disposed of in the State without the prior approval by a two-thirds vote in each house of the legislature.  [Add Const Con 1978 and election Nov 7, 1978]

11.9
Environmental rights

Each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources. Any person may enforce this right against any party, public or private, through appropriate legal proceedings, subject to reasonable limitations and regulation as provided by law.  [Add Const Con 1978 and election Nov 7, 1978]

Law Journals and Reviews:

Enforcement of Environmental Laws in Hawai`i. 16 UH L. Rev. 85.

A Suggested Framework for Judicial Review of Challenges to the Adequacy of an Environmental Impact Statement Prepared under the Hawaii Environmental Policy Act. 18 UH L. Rev. 719.

Hawai`i Constitution, Article XI, Section 1: The Conservation, Protection, and Use of Natural Resources. 19 UH L. Rev. 177.

Case Notes:

Section does not enlarge subject matter jurisdiction of federal courts. 714 F.2d 77.

11.10
Farm and home ownership

The public lands shall be used for the development of farm and home ownership on as widespread a basis as possible, in accordance with procedures and limitations prescribed by law.

Note:

This is the former section 5 of the old Article X. A proposal of the 1978 Constitutional Convention deleting this provision from the Constitution was not validly ratified. Kahalekai v. Doi, 60 H. 324 (1979). In view of the holding, the revisor has restored the provision and designated it as section 10 of this article under the authority of Resolution No. 29 of the 1978 Constitutional Convention.

11.11
Exclusive Economic Zone

The State of Hawaii asserts and reserves its rights and interest in its exclusive economic zone for the purpose of exploring, exploiting, conserving and managing natural resources, both living and nonliving, of the seabed and subsoil, and superadjacent waters.  [Add SB 2021 (1988) and election Nov 8, 1988]

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Article XII
Hawaiian Affairs

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Sections

1Hawaiian Homes Commission Act
2Acceptance of compact
3Compact adoption; procedures after adoption
4Public trust
5Office of Hawaiian Affairs; establishment of board of trustees
6Powers of board of trustees
7Traditional and customary rights

This article was redesignated from "Article XI Hawaiian Home Lands" to "Article XII Hawaiian Affairs" by Const Con 1978 and election Nov 7, 1978. The former Article XII now appears as Article XIII.

Law Journals and Reviews:

The Constitutionality of the Office of Hawaiian Affairs. 7 UH L. Rev. 63.

The Office of Hawaiian Affairs and the Issue of Sovereign Immunity. 7 UH L. Rev. 95.

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

The Native Hawaiian Trusts Judicial Relief Act: The First Step in an Attempt to Provide Relief. 14 UH L. Rev. 889.

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

Case Notes:

Appellants who claimed that this article and the statutes implementing it violated the equal protection clause of the Fourteenth Amendment because it restricted benefits to only those classified as "native Hawaiians" or "Hawaiians", lacked standing. 342 F.3d 934.

Plaintiff challenging constitutionality of this article 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.

12.1
Hawaiian Homes Commission Act

Anything in this constitution to the contrary notwithstanding, the Hawaiian Homes Commission Act, 1920, enacted by the Congress, as the same has been or may be amended prior to the admission of the State, is hereby adopted as a law of the State, subject to amendment or repeal by the legislature; provided that if and to the extent that the United States shall so require, such law shall be subject to amendment or repeal only with the consent of the United States and in no other manner; provided further that if the United States shall have been provided or shall provide that particular provisions or types of provisions of such Act may be amended in the manner required for ordinary state legislation, such provisions or types of provisions may be so amended. The proceeds and income from Hawaiian home lands shall be used only in accordance with the terms and spirit of such Act. The legislature shall make sufficient sums available for the following purposes: (1) development of home, agriculture, farm and ranch lots; (2) home, agriculture, aquaculture, farm and ranch loans; (3) rehabilitation projects to include, but not limited to, educational, economic, political, social and cultural processes by which the general welfare and conditions of native Hawaiians are thereby improved; (4) the administration and operating budget of the department of Hawaiian home lands; in furtherance of (1), (2), (3) and (4) herein, by appropriating the same in the manner provided by law.

Thirty percent of the state receipts derived from the leasing of cultivated sugarcane lands under any provision of law or from water licenses shall be transferred to the native Hawaiian rehabilitation fund, section 213 of the Hawaiian Homes Commission Act, 1920, for the purposes enumerated in that section. Thirty percent of the state receipts derived from the leasing of lands cultivated as sugarcane lands on the effective date of this section shall continue to be so transferred to the native Hawaiian rehabilitation fund whenever such lands are sold, developed, leased, utilized, transferred, set aside or otherwise disposed of for purposes other than the cultivation of sugarcane. There shall be no ceiling established for the aggregate amount transferred into the native Hawaiian rehabilitation fund.  [Ren and am Const Con 1978 and election Nov 7, 1978]

Note:

Reference to "effective date of this section" in last paragraph of section apparently refers to effective date of section as amended November 7, 1978.

Attorney General Opinions:

This and next section may be deleted without consent of Congress. Att. Gen. Op. 68-18.

Law Journals and Reviews:

Native Hawaiian Homestead Water Reservation Rights: Providing Good Living Conditions for Native Hawaiian Homesteaders. 25 UH L. Rev. 85.

Case Notes:

Plaintiff challenging article XII insofar as it implemented Hawaiian Homes Commission Act lacked standing, where court was unable to redress plaintiff's injury as alleged in any meaningful way, in the absence of the United States as a party to the action. 188 F. Supp. 2d 1219.

Hawaiian Homes Commission Act is part of Hawai'i constitution and does not constitute federal law; thus, federal preemption principles did not apply to case where there was no relevant federal law at issue and conflict between Act and state statute was matter of state constitutional law. 87 H. 91, 952 P.2d 379.

12.2
Acceptance of compact

The State and its people do hereby accept, as a compact with the United States, or as conditions or trust provisions imposed by the United States, relating to the management and disposition of the Hawaiian home lands, the requirement that section 1 hereof be included in this constitution, in whole or in part, it being intended that the Act or acts of the Congress pertaining thereto shall be definitive of the extent and nature of such compact, conditions or trust provisions, as the case may be. The State and its people do further agree and declare that the spirit of the Hawaiian Homes Commission Act looking to the continuance of the Hawaiian homes projects for the further rehabilitation of the Hawaiian race shall be faithfully carried out.  [Ren and am Const Con 1978 and election Nov 7, 1978]

Attorney General Opinions:

This and preceding section may be deleted without consent of Congress. Att. Gen. Op. 68-18.

Prevents transfer to counties of title to highways on Hawaiian home lands. Att. Gen. Op. 86-15.

Law Journals and Reviews:

Native Hawaiian Homestead Water Reservation Rights: Providing Good Living Conditions for Native Hawaiian Homesteaders. 25 UH L. Rev. 85.

Case Notes:

In setting aside Hawaiian home lands, federal government undertook trust obligation benefitting aboriginal people. State assumed fiduciary obligation upon being admitted as a state. Commission's considerations gave undue weight to interests of State, county, and citizens or taxpayers generally, thus breaching fiduciary duty. 64 H. 327, 640 P.2d 1161.

12.3
Compact adoption; procedures after adoption

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 this State, as provided in section 7, subsection (b), of the Admission 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 2l2 and other provisions relating to the powers and duties of officers other than those charged with the administration of such 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 such 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 such Act, shall be used only in carrying out the provisions of such Act.  [Add 73 Stat 4 and election June 27, 1959; ren and am Const Con 1978 and election Nov 7, 1978]

Law Journals and Reviews:

Native Hawaiian Homestead Water Reservation Rights: Providing Good Living Conditions for Native Hawaiian Homesteaders. 25 UH L. Rev. 85.

12.4
Public trust

The lands granted to the State of Hawaii by Section 5(b) of the Admission Act and pursuant to Article XVI, Section 7, of the State Constitution, excluding therefrom lands defined as "available lands" by Section 203 of the Hawaiian Homes Commission Act, 1920, as amended, shall be held by the State as a public trust for native Hawaiians and the general public.  [Add Const Con 1978 and election Nov 7, 1978]

Attorney General Opinions:

Power and authority to generate proceeds from, or power to alienate, lands held in public trust, exist under this section; history of this section indicates that section was intended to reiterate the trust contained in Admission Act. Att. Gen. Op. 95-3.

Law Journals and Reviews:

Courts and the Cultural Performance: Native Hawaiians' Uncertain Federal and State Law Rights to Sue. 16 UH L. Rev. 1.

Case Notes:

Does not violate section 5 of the Admission Act. 921 F.2d 950.

Where plaintiffs claimed standing to challenge the department of Hawaiian home lands (DHHL)/Hawaiian homes commission (HHC) leases as land trust beneficiaries and as state taxpayers, district court properly dismissed all claims against the United States and DHHL/HHC. 423 F.3d 954.

Section imposes fiduciary duty on Hawaii's officials to hold ceded lands in accordance with trust provisions of §5(f) of Admission Act; citizens of State must have means to mandate compliance. 73 H. 578, 837 P.2d 1247.

12.5
Office of Hawaiian Affairs; establishment of board of trustees

There is hereby established an Office of Hawaiian Affairs. The Office of Hawaiian Affairs shall hold title to all the real and personal property now or hereafter set aside or conveyed to it which shall be held in trust for native Hawaiians and Hawaiians. There shall be a board of trustees for the Office of Hawaiian Affairs elected by qualified voters who are Hawaiians, as provided by law. The board members shall be Hawaiians. There shall be not less than nine members of the board of trustees; provided that each of the following Islands have one representative: Oahu, Kauai, Maui, Molokai and Hawaii. The board shall select a chairperson from its members.  [Add Const Con 1978 and election Nov 7, 1978]

Cross References:

Statutory provisions, see chapters 10 and 13D.

Attorney General Opinions:

A voter must qualify as a Hawaiian in his or her own right, not on the basis of the racial descent of the adoptive parents. Att. Gen. Op. 80-6.

The requirement that trustees be Hawaiians is not violative of the equal protection clauses; also the restriction to Hawaiians of the right to vote for trustees is not impermissible. Att. Gen. Op. 80-8.

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.

Native Hawaiians, Self-Determination, and the Inadequacy of the State Land Trusts. 14 UH L. Rev. 519.

Native Hawaiian Entitlement to Sovereignty: An Overview. 17 UH L. Rev. 427.

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.

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 to the U.S. Constitution. 528 U.S. 495.

Does not violate section 5 of the Admission Act. 921 F.2d 950.

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; plaintiffs lacked standing to challenge the restriction that appointed trustees be Hawaiian. 314 F.3d 1091.

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.

12.6
Powers of board of trustees

The board of trustees of the Office of Hawaiian Affairs shall exercise power as provided by law: to manage and administer the proceeds from the sale or other disposition of the lands, natural resources, minerals and income derived from whatever sources for native Hawaiians and Hawaiians, including all income and proceeds from that pro rata portion of the trust referred to in section 4 of this article for native Hawaiians; to formulate policy relating to affairs of native Hawaiians and Hawaiians; and to exercise control over real and personal property set aside by state, federal or private sources and transferred to the board for native Hawaiians and Hawaiians. The board shall have the power to exercise control over the Office of Hawaiian Affairs through its executive officer, the administrator of the Office of Hawaiian Affairs, who shall be appointed by the board.  [Add Const Con 1978 and election Nov 7, 1978]

Attorney General Opinions:

Language expressly acknowledges the continued viability of the power to alienate ceded lands, first conferred upon State by §5(f) of Admission Act. Att. Gen. Op. 95-3.

Receipts derived from ceded lands apportioned for native Hawaiians pursuant to this section 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.

Law Journals and Reviews:

Native Hawaiians, Self-Determination, and the Inadequacy of the State Land Trusts. 14 UH L. Rev. 519.

Native Hawaiian Entitlement to Sovereignty: An Overview. 17 UH L. Rev. 427.

Case Notes:

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.

12.7
Traditional and customary rights

The State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua'a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights.  [Add Const Con 1978 and election Nov 7, 1978]

Note:

A proposal of the 1978 Constitutional Convention adding a section 7 defining the terms "Hawaiian" and "native Hawaiian" was not validly ratified. Kahalekai v. Doi, 60 H. 324 (1979). In view of the holding, the revisor has deleted the section and renumbered section 8 as section 7 under the authority of Resolution No. 29 of the 1978 Constitutional Convention.

Cross References:

Miscellaneous rights of the people, see chapter 7.

Law Journals and Reviews:

Beach Access: A Public Right? 23 HBJ 65.

Native Hawaiian Cultural Practices Under Threat. I HBJ No. 13, at pg. 1.

Pele Defense Fund v. Paty: Exacerbating the Inherent Conflict Between Hawaiian Native Tenant Access and Gathering Rights and Western Property Rights. 16 UH L. Rev. 207.

Public Access Shoreline Hawaii v. Hawaii County Planning Commission: The Affirmative Duty to Consider the Effect of Development on Native Hawaiian Gathering Rights. 16 UH L. Rev. 303.

The Reassertion of Native Hawaiian Gathering Rights Within the Context of Hawai`i's Western System of Land Tenure. 17 UH L. Rev. 165.

Private Hopes and Public Values in the "Reasonable Beneficial Use" of Hawai`i's Water: Is Balance Possible? 18 UH L. Rev. 1.

Cultures in Conflict in Hawai`i: The Law and Politics of Native Hawaiian Water Rights. 18 UH L. Rev. 71.

Customary Revolutions: The Law of Custom and the Conflict of Traditions in Hawai`i. 20 UH L. Rev. 99.

The Backlash Against PASH: Legislative Attempts To Restrict Native Hawaiian Rights. 20 UH L. Rev. 321.

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

Native Hawaiian Homestead Water Reservation Rights: Providing Good Living Conditions for Native Hawaiian Homesteaders. 25 UH L. Rev. 85.

Wiping Out the Ban on Surfboards at Point Panic. 27 UH L. Rev. 303.

Case Notes:

Appellants' contention that native Hawaiian rights were exclusive and possessory was unsupported in the law. 76 F.3d 280.

Plaintiff lacked standing to challenge this section, where plaintiff clearly had not suffered any "injury" as a result of the section. 188 F. Supp. 2d 1219.

Native Hawaiian rights protected by section may extend beyond the ahupua`a in which a native Hawaiian resides where such rights have been customarily and traditionally exercised in this manner. 73 H. 578, 837 P.2d 1247.

Descendants of native Hawaiians who inhabited islands prior to 1778 who assert valid customary and traditional Hawaiian rights under §1-1 entitled to protection regardless of their blood quantum. 79 H. 425, 903 P.2d 1246.

Section requires county planning commission to "preserve and protect" reasonable exercise of customary or traditional native Hawaiian rights to the extent feasible when issuing special management area use permits. 79 H. 425, 903 P.2d 1246.

While unreasonable or non-traditional uses of land by non-owner Hawaiians not permitted, western concept of exclusivity as owner's property right not universally applicable in Hawaii; State however retains ability to reconcile competing interests under this section. 79 H. 425, 903 P.2d 1246.

If property is deemed "fully developed", i.e., lands zoned and used for residential purposes with existing dwellings, improvements, and infrastructure, it is always "inconsistent" to permit the practice of traditional and customary native Hawaiian rights on such property. 89 H. 177, 970 P.2d 485.

It is the obligation of the person claiming the exercise of a native Hawaiian right to demonstrate that the right is constitutionally protected. 89 H. 177, 970 P.2d 485.

To establish the existence of a traditional or customary native Hawaiian practice, there must be an adequate foundation in the record connecting the claimed right to a firmly rooted traditional or customary native Hawaiian practice. 89 H. 177, 970 P.2d 485.

Where defendant failed to adduce sufficient evidence to support claim of the exercise of a constitutionally protected native Hawaiian right and knowingly entered landowner's property which was fenced in a manner to exclude others, trial court properly concluded that defendant was unlawfully on property in violation of §708-814(1). 89 H. 177, 970 P.2d 485.

To fulfill its duty to preserve and protect customary and traditional native Hawaiian rights to the extent feasible, the land use commission, in its review of a petition for reclassification of district boundaries, must, at a minimum, make specific findings and conclusions as to the identity and scope of the valued resources, the extent those resources will be affected or impaired by the proposed action, and any feasible action the commission may take to reasonably protect such rights. 94 H. 31, 7 P.3d 1068.

Where land use commission allowed petitioner to direct the manner in which customary and traditional native Hawaiian practices would be preserved and protected by the proposed development, prior to any specific findings and conclusions by the commission as to the effect of the proposed reclassification on such practices, the commission failed to satisfy its statutory and constitutional obligations; in delegating its duty to protect native Hawaiian rights, the commission delegated a non-delegable duty and thereby acted in excess of its authority. 94 H. 31, 7 P.3d 1068.

Where land use commission failed to enter any definitive findings or conclusions as to the extent of the native Hawaiian practitioners' exercise of customary and traditional practices in the subject area nor made any specific findings or conclusions regarding the effects on or the impairment of any uses under this section, or the feasibility of the protection of those uses, the commission, as a matter of law, failed to satisfy its statutory and constitutional obligations. 94 H. 31, 7 P.3d 1068.

Where commission on water resource management refused to permit cross examination of water use applicant's oceanography expert regarding the limu population along the shoreline, in effect precluding the commission from effectively balancing the applicant's proposed private commercial use of water against an enumerated public trust purpose, the commission failed adequately to discharge its public trust duty to protect native Hawaiians' traditional and customary gathering rights, as guaranteed by this section, the Hawaiian Homes Commission Act, §220, and §174C-101. 103 H. 401, 83 P.3d 664.

Where to be entitled to intervention, appellee organization was required to show that gathering of opae was customarily and traditionally practiced on the subject land and that some of organization's native Hawaiian members exercised those rights, the record contained sufficient evidence to establish those requisites; [individual] appellee did not show that appellee's interest was "personal", i.e., that it was clearly distinguishable from that of the general public, where appellee did not assert that appellee or other native Hawaiians had engaged in any activities that might be protected under this section. 79 H. 246 (App.), 900 P.2d 1313.

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Article XIII
Organization; Collective Bargaining

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Sections

1Private employees
2Public employees

Note:

This article was renumbered from Article XII to be Article XIII by Const Con 1978 and election Nov 7, 1978. The former Article XIII now appears as Article XV.

13.1
Private employees

Persons in private employment shall have the right to organize for the purpose of collective bargaining.  [Ren Const Con 1978 and election Nov 7, 1978]

13.2
Public employees

Persons in public employment shall have the right to organize for the purpose of collective bargaining as provided by law.  [Am Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978]

Cross References:

Civil servants, see §76-101.

Collective bargaining in public employment, see chapter 89.

Attorney General Opinions:

Scope of right of collective bargaining is for the legislature to decide. Att. Gen. Op. 68-27.

Case Notes:

Section 2 of Act 100, L 1999 violated the rights of public employees under this section by amending §89-9 to prohibit public employers and public employees' unions from collectively bargaining over cost items for the biennium 1999 to 2001. 100 H. 138, 58 P.3d 649.

Section 2 of Act 100, L 1999 (which amended §89-9(a)) violated this section because it withdrew from the collective bargaining process core subjects such as wages, hours, and other conditions of employment that the voters contemplated would be part of the bargaining process when they ratified this section. 101 H. 46, 62 P.3d 189

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Article XIV
Code of Ethics

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The people of Hawaii believe that public officers and employees must exhibit the highest standards of ethical conduct and that these standards come from the personal integrity of each individual in government. To keep faith with this belief, the legislature, each political subdivision and the constitutional convention shall adopt a code of ethics which shall apply to appointed and elected officers and employees of the State or the political subdivision, respectively, including members of the boards, commissions and other bodies.

Each code of ethics shall be administered by a separate ethics commission, except the code of ethics adopted by the constitutional convention which shall be administered by the state ethics commission. The members of ethics commissions shall be prohibited from taking an active part in political management or in political campaigns. Ethics commissioners shall be selected in a manner which assures their independence and impartiality.

Each code of ethics shall include, but not be limited to, provisions on gifts, confidential information, use of position, contracts with government agencies, post-employment, financial disclosure and lobbyist registration and restriction. The financial disclosure provisions shall require all elected officers, all candidates for elective office and such appointed officers and employees as provided by law to make public financial disclosures. Other public officials having significant discretionary or fiscal powers as provided by law shall make confidential financial disclosures. All financial disclosure statements shall include, but not be limited to, sources and amounts of income, business ownership, officer and director positions, ownership of real property, debts, creditor interests in insolvent businesses and the names of persons represented before government agencies.  [Add Const Con 1978 and election Nov 7, 1978]

Note:

This article, entitled "Code of Ethics," is new, added by Const Con 1978 and election Nov 7, 1978. The former Article XIV, entitled "General and Miscellaneous Provisions," now appears as Article XVI.

Cross References:

Statutory provisions, see chapter 84.

Law Journals and Reviews:

Employee Rights Under Judicial Scrutiny: Prevalent Policy Discourse and the Hawai`i Supreme Court. 14 UH L. Rev. 189.

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

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

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

Case Notes:

"Regulatory employees" were "officials having significant discretionary or fiscal powers"; county financial disclosure requirements consistent with constitutional requirements. 68 H. 140, 706 P.2d 814.

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Article XV
State Boundaries; Capital; Flag; Language and Motto

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Sections

1Boundaries
2Capital
3State flag
4Official languages
5Motto

Note:

This article was redesignated from "Article XII State Boundaries, Capital, Flag" to "Article XV State Boundaries; Capital; Flag; Language and Motto" by Const Con 1978 and election Nov 7, 1978. The former Article XV now appears as Article XVII.

15.1
Boundaries

The State of Hawaii shall consist of all the islands, together with their appurtenant reefs and territorial and archipelagic waters, included in the Territory of Hawaii on the date of enactment of the Admission Act, except the atoll known as Palmyra Island, together with its appurtenant reefs and territorial waters; but this State shall not be deemed to include the Midway Islands, Johnston Island, Sand Island (offshore from Johnston Island) or Kingman Reef, together with their appurtenant reefs and territorial waters.  [Am 73 Stat 4 and election June 27, 1959; ren and am Const Con 1978 and election Nov 7, 1978]

Note:

Date of enactment of Admission Act: March 18, 1959.

At election of June 27, 1959, in amending this section to conform to the Admission Act, Public Law 86-3 (73 Stat 4), pursuant to sections 2 and 7(b) of the Admission Act, State also relinquished to the United States "all claims of this State to any areas of land or sea outside the boundaries so prescribed...."

Legislative history of section 2 of Admission Act, see 196 F. Supp. 564.

Language adopted to describe boundaries in section 2 of the Admission Act first was used in H.R. 3575 as passed by the Senate, 83d Congress, 2d Session, April 7, 1954. See explanation of Senator Cordon, Chairman of Senate Committee on Interior and Insular Affairs, March 8, 1954, on consideration of S. 49 for which H.R. 3575 later was substituted, 100 Cong. Rec. p. 2789, cols. 1-2; and see Senate hearings on S. 49, S. 51, and H.R. 3575, 83d Congress, 1st and 2d Sessions, June 29, 1953--January 8, 1954, including materials on islands and reefs comprising Territory of Hawaii.

When Admission Act finally was enacted by 86th Congress, 1st Session, committee report stated that "the boundaries of the new State will include all of the islands and territorial waters of the Territory of Hawaii, except the Island of Palmyra." Other islands treated as excluded were "not considered to be part of the Territory." Sen. Rep. 80, H.R. Rep. No. 32, 86th Congress, 1st Session.

Report of the Commission which prepared the Hawaiian Organic Act, transmitted to Congress by message of the President, Sen. Doc. 16, 55th Congress, 3d Session, 1898, listed in addition to the eight principal islands and Palmyra, ten others. But this listing has not been deemed to be complete. See note to §2 of Hawaiian Organic Act.

As to federal reservations, see note to §1-4.

Cross References:

Coastal zone management area, see §205A-1.

State marine waters, see §§187A-1.5, 188-22.5, 189-1.5, 190-1.5, 190D-3, and 195D-2.

Waters of the State, see §200-23.

Case Notes:

Territorial waters extend only three miles from each island. 352 F.2d 735, aff. 235 F. Supp. 990.

Question of jurisdiction over channels between islands raised but not decided. 47 H. 87, 384 P.2d 536.

15.2
Capital

Honolulu, on the island of Oahu, shall be the capital of the State.  [Ren and am Const Con 1978 and election Nov 7, 1978]

15.3
State flag

The Hawaiian flag shall be the flag of the State.  [Ren Const Con 1978 and election Nov 7, 1978]

Cross References:

Other state symbols, see chapter 5.

15.4
Official languages

English and Hawaiian shall be the official languages of Hawaii, except that Hawaiian shall be required for public acts and transactions only as provided by law.  [Add Const Con 1978 and election Nov 7, 1978]

Cross References:

Statutory provisions, see §§1-13 and 13.5.

Law Journals and Reviews:

Judicial Enforcement of "Official" Indigenous Languages: A Comparative Analysis of the Maori and Hawaiian Struggles for Cultural Language Rights. 26 UH L. Rev. 495.

Case Notes:

Court rejected plaintiff's contention that the Hawaii constitution prohibited the court from mandating that plaintiff give deposition testimony in English. 843 F. Supp. 630.

15.5
Motto

The motto of the State shall be, "Ua mau ke ea o ka aina i ka pono."  [Add Const Con 1978 and election Nov 7, 1978]

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Article XVI
General and Miscellaneous Provisions

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Sections

1Civil service
2Employees' retirement system
3Disqualifications from public office or employment
3.5Salary Commission
4Oath of office
5Intergovernmental relations
6Federal lands
7Compliance with trust
8Administration of undisposed lands
9Tax exemption of federal property
10Hawaii National Park
11Judicial rights
12Quieting title
13Plain language
14Titles, subtitles; construction
15General power
16Provisions are self-executing

Note:

This article was renumbered from Article XIV to be Article XVI by Const Con 1978 and election Nov 7, 1978. The former Article XVI now appears as Article XVIII.

For proposed constitutional amendment to this article adding a new section on the salary commission, see HB 1917, L 2006, pg. 1272.

16.1
Civil service

The employment of persons in the civil service, as defined by law, of or under the State, shall be governed by the merit principle.  [Ren Const Con 1978 and election Nov 7, 1978]

Cross References:

Civil service, see chapter 76.

Case Notes:

Hawaii constitution does not establish an independently enforceable right to the protection of merit principles. 85 H. 61, 937 P.2d 397.

Where, under §76-77, landfill worker positions were within civil service, and thus governed by merit principles under this section, county violated Hawaii constitution and civil service statutes when it privatized new landfill operation. 85 H. 61, 937 P.2d 397.

16.2
Employees' retirement system

Membership in any employees' retirement system of the State or any political subdivision thereof shall be a contractual relationship, the accrued benefits of which shall not be diminished or impaired.  [Ren Const Con 1978 and election Nov 7, 1978]

Cross References:

Employees' retirement system, see chapter 88.

Attorney General Opinions:

Board of trustees may periodically change and adopt new option factor tables applicable to all members who have not retired prior to effective date of tables. Att. Gen. Op. 82-3.

16.3
Disqualifications from public office or employment

No person shall hold any public office or employment who has been convicted of any act to overthrow, or attempt to overthrow, or conspiracy with any person to overthrow the government of this State or of the United States by force or violence.  [Am Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978]

Cross References:

Convicted persons, see chapter 831.

16.3.5
Salary Commission

 [This section will be printed in the 2007 HRS supplement.]

There shall be a commission on salaries as provided by law, which shall review and recommend salaries for the justices and judges of all state courts, members of the legislature, department heads or executive officers of the executive departments and the deputies or assistants to department heads of the executive departments as provided by law, excluding the University of Hawaii and the department of education. The commission shall also review and make recommendations for the salary of the administrative director of the State or equivalent position and the salary of the governor and the lieutenant governor.

Any salary established pursuant to this section shall not be decreased during a term of office, unless by general law applying to all salaried officers of the State.

Not later than the fortieth legislative day of the 2007 regular legislative session and every six years thereafter, the commission shall submit to the legislature its recommendations and then dissolve.

The recommended salaries submitted shall become effective as provided in the recommendation, unless the legislature disapproves the entire recommendation as a whole by adoption of a concurrent resolution prior to adjournment sine die of the legislative session in which the recommendation is submitted; provided that any change in salary which becomes effective shall not apply to the legislature to which the recommendation for the change in salary was submitted.  [Add HB 1917 (2006) and election Nov 7, 2006]

Cross References:

Commission on salaries, see §26-56.

16.4
Oath of office

All eligible public officers, before entering upon the duties of their respective offices, shall take and subscribe to the following oath or affirmation: "I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States, and the Constitution of the State of Hawaii, and that I will faithfully discharge my duties as to best of my ability." As used in this section, "eligible public officers" means the governor, the lieutenant governor, the members of both houses of the legislature, the members of the board of education, the members of the national guard, State or county employees who possess police powers, district court judges, and all those whose appointment requires the consent of the senate.  [Ren and am Const Con 1978 and election Nov 7, 1978; am SB 1440 (1992) and election Nov 3, 1992]

Attorney General Opinions:

Elfbrandt v. Russell, 384 U.S. 11, 86 S. Ct. 1238, does not invalidate the oath of office. Att. Gen. Op. 66-18.

When board of education members can assume official duties. Att. Gen. Op. 86-21.

16.5
Intergovernmental relations

The legislature may provide for cooperation on the part of this State and its political subdivisions with the United States, or other states and territories, or their political subdivisions, in matters affecting the public health, safety and general welfare. Funds may be appropriated to effect such cooperation.  [Ren Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978]

16.6
Federal lands

The United States shall be vested with or retain title to or an interest in or shall hold the property in the Territory of Hawaii set aside for the use of the United States and remaining so set aside immediately prior to the admission of this State, in all respects as and to the extent set forth in the act or resolution providing for the admission of this State to the Union.  [Ren Const Con 1968 and election Nov 5, 1968; ren Const Con 1978 and election Nov 7, 1978]

Cross References:

Admission Act provisions, see §5.

16.7
Compliance with trust

Any trust provisions which the Congress shall impose, upon the admission of this State, in respect of the lands patented to the State by the United States or the proceeds and income therefrom, shall be complied with by appropriate legislation. Such legislation shall not diminish or limit the benefits of native Hawaiians under Section 4 of Article XII.  [Ren 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 added the last sentence of the section. This addition 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 (1979), excerpted in the note preceding the Preamble to the Constitution.

Case Notes:

Under section, the State affirmatively assumes trust responsibilities of §5(f) of Admission Act. 73 H. 578, 837 P.2d 1247.

16.8
Administration of undisposed lands

All provisions of the Act of Congress approved March 18, 1959 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 the State and its people.  [Am 73 Stat 4 and election June 27, 1959; ren Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978]

Case Notes:

By section, continuance of C.A.B. jurisdiction over air commerce during transitional period was accepted by State; arrangement not unconstitutional. 44 H. 634, 361 P.2d 390.

16.9
Tax exemption of federal property

No taxes shall be imposed by the State upon any lands or other property now owned or hereafter acquired by the United States, except as the same shall become taxable by reason of disposition thereof by the United States or by reason of the consent of the United States to such taxation.  [Ren Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978]

16.10
Hawaii National Park

All provisions of the act or resolution admitting this State to the Union, or providing for such admission, which reserve to the United States jurisdiction of Hawaii National Park, or the ownership or control of lands within Hawaii National Park, are consented to fully by the State and its people.  [Ren Const Con 1968 and election Nov 5, 1968; ren Const Con 1978 and election Nov 7, 1978]

Cross References:

Admission Act provisions, see §16(a).

16.11
Judicial rights

All those provisions of the act or resolution admitting this State to the Union, or providing for such admission, which reserve to the United States judicial rights or powers are consented to fully by the State and its people; and those provisions of such act or resolution which preserve judicial rights and powers for the State are hereby accepted and adopted, and such rights and powers are hereby assumed, to be exercised and discharged pursuant to this constitution and the laws of the State.  [Ren Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978]

Cross References:

Admission Act provisions, see §§12, 13.

Case Notes:

Referred to: 44 H. 634, 650, 361 P.2d 390.

16.12
Quieting title

No person shall be deprived of title to an estate or interest in real property by another person claiming actual, continuous, hostile, exclusive, open and notorious possession of such lands, except to real property of five acres or less. Such claim may be asserted in good faith by any person not more than once in twenty years.  [Add Const Con 1978 and election Nov 7, 1978]

Cross References:

General statutory provisions, see chapter 669.

Law Journals and Reviews:

Adverse Possession and Quiet Title Actions in Hawaii--Recent Constitutional Developments. 19 HBJ 59.

Case Notes:

Section does not bar adverse possession claims to more than five acres of land where claim matured prior to November 7, 1978. 91 H. 545 (App.), 985 P.2d 1112.

16.13
Plain language

Insofar as practicable, all governmental writing meant for the public, in whatever language, should be plainly worded, avoiding the use of technical terms.  [Add Const Con 1978 and election Nov 7, 1978]

16.14
Titles, subtitles; construction

Titles and subtitles shall not be used for purposes of construing this constitution.  [Ren 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 a second paragraph which read: "Whenever any personal pronoun appears in this constitution, it shall be construed to mean either 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 (1979), excerpted in the note preceding the Preamble to the Constitution.

Case Notes:

Words of constitution presumed to be used in their natural sense. 44 H. 159, 352 P.2d 861.

Clear and unambiguous provisions are construed as they are written. 51 H. 1, 449 P.2d 130.

16.15
General power

The enumeration in this constitution of specified powers shall not be construed as limitations upon the power of the State to provide for the general welfare of the people.  [Ren Const Con 1968 and election Nov 5, 1968; ren Const Con 1978 and election Nov 7, 1978]

16.16
Provisions are self-executing

The provisions of this constitution shall be self-executing to the fullest extent that their respective natures permit.  [Ren Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978]

Case Notes:

This provision does not constitute waiver of sovereign immunity for money damages for constitutional deprivations. 61 H. 369, 604 P.2d 1198.

Test for determining whether a constitutional provision is self-executing. 63 H. 412, 629 P.2d 1111.

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Article XVII
Revision and Amendment

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Sections

1Methods of proposal
2Constitutional convention; election of delegates; meeting; organization; procedure; ratification; appropriations
3Amendments proposed by legislature
4Veto
5Conflicting revisions or amendments

Note:

This article was renumbered from Article XV to be Article XVII by Const Con 1978 and election Nov 7, 1978.

17.1
Methods of proposal

Revisions of or amendments to this constitution may be proposed by constitutional convention or by the legislature.  [Ren Const Con 1978 and election Nov 7, 1978]

17.2
Constitutional convention; election of delegates; meeting; organization; procedure; ratification; appropriations

The legislature may submit to the electorate at any general or special election the question, "Shall there be a convention to propose a revision of or amendments to the Constitution?" If any nine-year period shall elapse during which the question shall not have been submitted, the lieutenant governor shall certify the question, to be voted on at the first general election following the expiration of such period.

ELECTION OF DELEGATES

If a majority of the ballots cast upon such a question be in the affirmative, delegates to the convention shall be chosen at the next regular election unless the legislature shall provide for the election of delegates at a special election.

Notwithstanding any provision in this constitution to the contrary, other than Section 3 of Article XVI, any qualified voter of the district concerned shall be eligible to membership in the convention.

The legislature shall provide for the number of delegates to the convention, the areas from which they shall be elected and the manner in which the convention shall convene. The legislature shall also provide for the necessary facilities and equipment for the convention. The convention shall have the same powers and privileges, as nearly as practicable, as provided for the convention of 1978.

MEETING

The constitutional convention shall convene not less than five months prior to the next regularly scheduled general election.

ORGANIZATION; PROCEDURE

The convention shall determine its own organization and rules of procedure. It shall be the sole judge of the elections, returns and qualifications of its members and, by a two-thirds vote, may suspend or remove any member for cause. The governor shall fill any vacancy by appointment of a qualified voter from the district concerned.

RATIFICATION; APPROPRIATIONS

The convention shall provide for the time and manner in which the proposed constitutional revision or amendments shall be submitted to a vote of the electorate; provided that each amendment shall be submitted in the form of a question embracing but one subject; and provided further, that each question shall have designated spaces to mark YES or NO on the amendment.

At least thirty days prior to the submission of any proposed revision or amendments, the convention shall make available for public inspection, a full text of the proposed amendments. Every public library, office of the clerk of each county, and the chief election officer shall be provided such texts and shall make them available for public inspection. The full text of any proposed revision or amendments shall also be made available for inspection at every polling place on the day of the election at which such revision or amendments are submitted.

The convention shall, as provided by law, be responsible for a program of voter education concerning each proposed revision or amendment to be submitted to the electorate.

The revision or amendments shall be effective only if approved at a general election by a majority of all the votes tallied upon the question, this majority constituting at least fifty per cent of the total vote cast at the election, or at a special election by a majority of all the votes tallied upon the question, this majority constituting at least thirty per cent of the total number of registered voters.

The provisions of this section shall be self-executing, but the legislature shall make the necessary appropriations and may enact legislation to facilitate their operation.  [Am Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978; am SB 578 (1979) and SB 1703 (1980) and election Nov 4, 1980]

Attorney General Opinions:

Delegates to convention cannot be elected at the same time the referendum is taken. Att. Gen. Op. 65-16.

The legislature may enact a statute providing that an election will be held on a specified date to ratify the constitutional amendment proposed by the constitutional convention if a date is not provided by the convention; but the legislature alone cannot specify the date the election must be held. Att. Gen. Op. 67-3.

Whether amendments are submitted to electorate for ratification separately or together as a unit is for the convention to determine. Att. Gen. Op. 68-9.

Convention may determine manner of submitting its proposals to the electorate. Att. Gen. Op. 68-23.

A proposal of the convention becomes effective upon ratification by electors on election day, not upon certification of results by lieutenant governor. Att. Gen. Op. 68-31.

Full ten-year period must elapse before question can be placed on ballot by lieutenant governor. Att. Gen. Op. 75-6.

Legislature cannot call constitutional convention without putting question on ballot. Att. Gen. Op. 75-6.

Legislature may not enact statute prohibiting elected officials from being delegates to constitutional convention. Att. Gen. Op. 75-10.

Individual may run both as candidate for public office and as delegate to constitutional convention even though elections are concurrent. Att. Gen. Op. 75-12.

Delegates to convention devising reapportionment plan are not prohibited from becoming candidates under the new plan. Att. Gen. Op. 77-3.

Legislature can provide that public employees elected as delegates shall have leave without pay without loss of other benefits. Att. Gen. Op. 77-3.

Only the legislature may appropriate funds for the convention. Att. Gen. Op. 77-3.

Time limits on convention are set by the delegates, not the legislature. Att. Gen. Op. 77-3.

Provisions of federal Equal Time Law will apply to candidates seeking election as delegates to the Constitutional Convention. Att. Gen. Op. 78-2.

"Total vote cast at the election" includes blank and spoiled ballots. Att. Gen. Op. 82-7.

Case Notes:

Constitutional challenge to 1996 constitutional convention vote rejected and Hawaii vote upheld, where plaintiffs argued, inter alia, that Hawai`i State AFL-CIO v. Yoshina was a totally unforeseeable interpretation of the State's election laws and, therefore, amounted to a denial of substantive due process. 140 F.3d 1218.

Failure to seek preelection relief in federal court barred attempt to invalidate results of November 7, 1978 general election concerning amendments to State Constitution because plaintiffs had knowledge of alleged irregularities prior to election and ample time to seek relief. 470 F. Supp. 1195.

Constitutional amendment ballot found partially defective. 60 H. 324, 590 P.2d 543.

"Ballots cast", within meaning of this section, includes blank ballots and over votes. 84 H. 374, 935 P.2d 89.

The publication and disclosure language of this section and §3 of the Hawaii constitution is clear and unambiguous; thus it must be construed as written; insofar as they clearly regulate amendments to the constitution, these provisions are not merely directory, but mandatory. 104 H. 128, 85 P.3d 1079.

Where state defendants failed to comply with the requirements set forth in the Hawaii constitution regarding publication and disclosure of the text of a proposed constitutional amendment authorizing the initiation of felony prosecutions by written information, the amendment was not validly ratified in accordance with the mandate of this section and §3 of this article. 104 H. 128, 85 P.3d 1079.

17.3
Amendments proposed by legislature

The legislature may propose amendments to the constitution by adopting the same, in the manner required for legislation, by a two-thirds vote of each house on final reading at any session, after either or both houses shall have given the governor at least ten days' written notice of the final form of the proposed amendment, or, with or without such notice, by a majority vote of each house on final reading at each of two successive sessions.

Upon such adoption, the proposed amendments shall be entered upon the journals, with the ayes and noes, and published once in each of four successive weeks in at least one newspaper of general circulation in each senatorial district wherein such a newspaper is published, within the two months' period immediately preceding the next general election.

At such general election the proposed amendments shall be submitted to the electorate for approval or rejection upon a separate ballot.

The conditions of and requirements for ratification of such proposed amendments shall be the same as provided in section 2 of this article for ratification at a general election.  [Ren and am Const Con 1978 and election Nov 7, 1978]

Cross References:

Notice of proposed constitutional amendments, see §22-6.

Attorney General Opinions:

Passage of constitutional amendment by majority vote may be accomplished at two successive special sessions. Att. Gen. Op. 64-41.

Passage of proposed amendment by two-thirds vote of each house on final reading cannot be accomplished on the tenth day of notice; it may only be done thereafter. Att. Gen. Op. 64-41.

The ten days' written notice to the governor refers to ten calendar days. It is computed by excluding the day on which notice is given and including the last day. Att. Gen. Op. 64-41.

With a two-thirds vote, a proposed amendment passed at a single session may be placed on ballot. Att. Gen. Op. 75-9.

Amendments proposed by the legislature should be printed on a separate ballot, apart and distinct from the ballot containing county charter amendments. Att. Gen. Op. 80-7.

Case Notes:

Signature of governor, whether required to propose amendments, see 8 H. 606.

Act proposing alternative constitutional amendments concerning changes in school governance directed amendment to state constitution in violation of procedure set forth in section. 73 H. 536, 836 P.2d 1066.

Attorney general had standing to raise claims in action regarding notice provisions of this section given significant public importance of issue and likelihood of recurrence. 84 H. 179, 932 P.2d 316.

Governor must receive at least ten days notice, prior to second legislative chamber's vote, of a proposed constitutional amendment's final form; required notice may be given by the Senate, the House, or both. 84 H. 179, 932 P.2d 316.

The publication and disclosure language of this section and §2 of the Hawaii constitution is clear and unambiguous; thus it must be construed as written; insofar as they clearly regulate amendments to the constitution, these provisions are not merely directory, but mandatory. 104 H. 128, 85 P.3d 1079.

Where state defendants failed to comply with the requirements set forth in the Hawaii constitution regarding publication and disclosure of the text of a proposed constitutional amendment authorizing the initiation of felony prosecutions by written information, the amendment was not validly ratified in accordance with the mandate of this section and §2 of this article. 104 H. 128, 85 P.3d 1079.

This article and article III 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.

17.4
Veto

No proposal for amendment of the constitution adopted in either manner provided by this article shall be subject to veto by the governor.  [Ren Const Con 1978 and election Nov 7, 1978]

17.5
Conflicting revisions or amendments

If a revision or amendment proposed by a constitutional convention is in conflict with a revision or amendment proposed by the legislature and both are submitted to the electorate at the same election and both are approved, then the revision or amendment proposed by the convention shall prevail. If conflicting revisions or amendments are proposed by the same body and are submitted to the electorate at the same election and both are approved, then the revision or amendment receiving the highest number of votes shall prevail.  [Add Const Con 1968 and election Nov 5, 1968; ren Const Con 1978 and election Nov 7, 1978]

Case Notes:

Had conflicting alternative amendments been passed by legislature in compliance with Article XVII, §3, it would have been appropriate to submit both alternatives to electorate for ratification at general election pursuant to section. 73 H. 536, 836 P.2d 1066.

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Article XVIII
Schedule

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Sections

1Districting and apportionment
21978 Senatorial elections
3Salaries of legislators--Repealed
4Effective date for term limitations for Governor and Lieutenant Governor
5Judiciary: transition; effective date
6Effective date and application of real property tax transfer
71978 Board of education elections
8Effective date for Office of Hawaiian Affairs
9Continuity of laws
10Debts
11Residence, other qualifications

Note:

This article was renumbered from Article XVI to be Article XVIII by Const Con 1978 and election Nov 7, 1978. The 1978 amendment revised and rewrote this article, substituting present §§1 to 11 for former §§1 to 13 of former Article XVI, and in effecting such revision deleted the following sections of former Article XVI: former §2, relating to the 1968 senatorial elections; former §3, relating to a twenty-sixth senator to be allocated to Kauai; former §4, relating to the application of the 1968 reapportionment and redistricting; former §5, relating to conditional activation of the reapportionment commission; former §6, superseding constitutional amendments proposed by Senate Bill No. 1102 of the Regular Session of 1967; former §8, providing that biennial budgeting and appropriations shall begin July 1, 1971; former §9, relating to the effective date and application of former Article VII, §2; former §13, relating to condemnation of fisheries.

These deletions appear to be part 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 (1979), excerpted in the note preceding the Preamble to the Constitution.

18.1
Districting and apportionment

 [Omitted as obsolete. For current plan, see the 1991 Report and Reapportionment Plan submitted to the Lieutenant Governor.]

Note:

A proposal of the 1978 Constitutional Convention rewriting this section was not validly ratified. Kahalekai v. Doi, 60 H. 324 (1979). In view of the holding, the revisor has restored the former version of the section under the authority of Resolution No. 29 of the 1978 Constitutional Convention.

Cross References:

Reapportionment, see Art. IV.

18.2
1978 Senatorial elections

Article III, Section 4, to the contrary notwithstanding, the terms of office of the members of the senate elected in the 1978 general election shall be as follows: members of the senate shall be divided into two classes. The first class shall consist of the following number elected with the highest number of votes from their respective senatorial districts: first district, one; second district, one; third district, one; fourth district, two; fifth district, two; sixth district, two; seventh district, two; eighth district, one. Members of the first class shall hold office for a term of four years beginning with their election and ending on the day of the second general election held thereafter. The remaining members elected shall constitute the second class and shall hold office for a term of two years beginning with their election and ending on the day of the next general election held thereafter.  [Add Const Con 1978 and election Nov 7, 1978]

18.3
Salaries of legislators--Repealed

 [This section supersedes the printed section in the HRS.]

REPEALED.  [Repeal HB 1917 (2006) and election Nov 7, 2006]

18.4
Effective date for term limitations for Governor and Lieutenant Governor

The amendments to Sections 1 and 2 of Article V shall limit the term of any person elected to the office of Governor or Lieutenant Governor in the 1978 general election to two consecutive full terms commencing from noon on the first Monday in December, 1978.  [Add Const Con 1978 and election Nov 7, 1978]

18.5
Judiciary: transition; effective date

The three members initially appointed to the judicial selection commission by the Governor shall serve for terms of two, four and six years respectively. The members initially appointed to the commission by the president of the senate and the speaker of the house of representatives shall serve for two years. The two members initially appointed to the commission by the chief justice of the supreme court shall serve terms of four and six years respectively. The two members initially elected to the commission by the members of the bar of the State shall serve for terms of four and six years respectively. The current terms of justices and judges in office shall terminate as heretofore provided by law, subject to earlier termination and removal as provided in Article VI. The amendments to Article VI shall take effect upon ratification. The judicial selection commission shall be created no later than April 1, 1979.  [Add Const Con 1978 and election Nov 7, 1978]

18.6
Effective date and application of real property tax transfer

The amendment to Section 3 of Article VIII shall take effect on the first day of July after two full calendar years have elapsed following the ratification of such amendment  [November 7, 1978]; provided that for a period of eleven years following such ratification, the policies and methods of assessing real property taxes shall be uniform throughout the State and shall be established by agreement of a majority of the political subdivisions. Each political subdivision shall enact such uniform policies and methods of assessment by ordinance before the effective date of this amendment  [July 1, 1981], and in the event the political subdivisions fail to enact such ordinances, the uniform policies and methods of assessment shall be established by general law. Any amendments to the uniform policies and methods of assessment established by the political subdivisions may only be made by agreement of a majority of the political subdivisions and enactment thereof by ordinance in each political subdivision.

Real property tax exemptions and dedications of land for specific use for assessment at its value in such use as provided by law and in effect upon ratification of the amendment to Section 3 of Article VIII  [November 7, 1978] shall be enacted by ordinance and shall not be eliminated or diminished for a period of eleven years following such ratification; provided that increases in such exemptions, or the additions of new and further exemptions or dedications of lands, may be established or granted only by agreement of a majority of the political subdivisions, and such increases or additions shall be enacted by ordinance in each political subdivision.  [Add Const Con 1978 and election Nov 7, 1978]

Case Notes:

Any statutory restrictions on the City & County of Honolulu's power to create or repeal real property tax exemptions ceased to have any validity at the end of the eleven-year period specified in this section; thus, Act 227, L 1996, which attempted to extend this period merely through enactment of a state law without amending the Hawaii constitution, was unconstitutional. 99 H. 508, 57 P.3d 433.

Section 246A-2 has lapsed by its own terms and by the terms of this section. 99 H. 508, 57 P.3d 433.

18.7
1978 Board of education elections

Members elected to the board of education in the 1978 general election shall serve for two-year terms.  [Add Const Con 1978 and election Nov 7, 1978]

18.8
Effective date for Office of Hawaiian Affairs

The legislature shall provide for the implementation of the amendments to Article XII in Sections 5 and 6 on or before the first general election following ratification of the amendments to Article XII in Sections 5 and 6.  [Add Const Con 1978 and election Nov 7, 1978]

18.9
Continuity of laws

All laws in force at the time amendments to this constitution take effect that are not inconsistent with the constitution as amended shall remain in force, mutatis mutandis, until they expire by their own limitations or are amended or repealed by the legislature.

Except as otherwise provided by amendments to this constitution, all existing writs, actions, suits, proceedings, civil or criminal liabilities, prosecutions, judgments, sentences, orders, decrees, appeals, causes of action, contracts, claims, demands, titles and rights shall continue unaffected notwithstanding the taking effect of the amendments and may be maintained, enforced or prosecuted, as the case may be, before the appropriate or corresponding tribunals or agencies of or under the State or of the United States, in all respects as fully as could have been done prior to the taking effect of the amendments.  [Ren and am Const Con 1968 and election Nov 5, 1968; ren Const Con 1978 and election Nov 7, 1978]

Cross References:

Admission Act, see §15.

Attorney General Opinions:

All laws, territorial or federal, relating to the public lands of Hawaii, were continued in force upon statehood. Att. Gen. Op. 61-68.

Case Notes:

See also note to Admission Act, §15.

Discussed in connection with bonds. 44 H. 154, 352 P.2d 861.

Intent of constitutional convention; relationship between this section and §15 of the Admission Act. 44 H. 634, 361 P.2d 390.

18.10
Debts

The debts and liabilities of the Territory shall be assumed and paid by the State, and all debts owed to the Territory shall be collected by the State.  [Ren Const Con 1968 and election Nov 5, 1968; ren Const Con 1978 and election Nov 7, 1978]

Case Notes:

All territorial general obligation bonds outstanding and unpaid at time of statehood became state obligations. 44 H. 154, 163, 352 P.2d 861.

18.11
Residence, other qualifications

Requirements as to residence, citizenship or other status or qualifications in or under the State prescribed by this constitution shall be satisfied pro tanto by corresponding residence, citizenship or other status or qualifications in or under the Territory.  [Ren Const Con 1968 and election Nov 5, 1968; ren Const Con 1978 and election Nov 7, 1978]

Effective Date

This constitution shall take effect and be in full force immediately upon the admission of Hawaii into the Union as a State. Done in Convention, at Iolani Palace, Honolulu, Hawaii, on the twenty-second day of July, in the year one thousand nine hundred fifty and of the Independence of the United States of America the one hundred and seventy-fifth.

Index to the Constitution

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