§78-1 - Citizenship and residence; exceptions. - Hawaii Statutes

     §78-1  Citizenship and residence; exceptions.  (a)  All elective officers in the service of the government of the State or any county shall be citizens of the United States and residents of the State for at least three years immediately preceding assumption of office.

     (b)  All appointive officers in the service of the government of the State or any county who are employed as department heads and deputies or assistants to a department head shall be citizens of the United States and residents of the State for at least one year immediately preceding their appointment.  All others appointed in the service of the government of the State or in the service of any county or municipal subdivision of the State shall be citizens, nationals, or permanent resident aliens of the United States and residents of the State at the time of their appointment.  A national or permanent resident alien appointee shall not be eligible for continued employment unless such person diligently seeks citizenship upon becoming eligible to apply for United States citizenship.

     (c)  All persons seeking employment with the government of the State or in the service of any county shall be citizens, nationals, or permanent resident aliens of the United States, or eligible under federal law for unrestricted employment in the United States, and shall become residents of the State within thirty days after beginning their employment and as a condition of eligibility for continued employment.

     "Resident" means a person who is physically present in the State at the time the person claims to have established the person's domicile in the State and shows the person's intent is to make Hawaii the person's primary residence.

     (d)  The appointing authority may approve the appointment of persons without consideration of the requirements under subsection (c) when services essential to the public interest require highly specialized technical and scientific skills or knowledge for critical-to-fill and labor shortage positions.

     (e)  For the positions involved in the performance of services in planning and executing measures for the security of Hawaii and the United States, the employees shall be citizens of the United States in addition to meeting the requirement of residency in subsection (c).

     (f)  This section shall not apply to persons recruited by the University of Hawaii under the authority of section [304A-1001]. [L 1909, c 32, §1; am L 1923, c 19, §1; RL 1935, §86; am L 1935, c 211, §1; am L 1939, c 216, §§1, 2; RL 1945, §451; am L 1949, c 190, §§1, 2; am L 1951, c 319, §3; RL 1955, §5-1; am L 1961, c 82, §1; am L 1965, c 170, §1 and c 175, §1; am L 1967, c 5, §1 and c 220, §1; HRS §78-1; am L 1969, c 206, §1; am L 1970, c 36, §1; am L 1976, c 162, §1; am L 1977, c 211, §1; am L 1978, c 101, §1; am L 1980, c 250, §1; gen ch 1985; am L 1987, c 295, §2; am L 1994, c 56, §21; am L 1998, c 2, §25 and c 115, §11; am L 2000, c 253, §75; am L 2002, c 90, §2; am L 2006, c 75, §5; am L 2007, c 52, §1]

 

Cross References

 

  Constitutional provisions on residency, see Const. Art. V, §6.

 

Attorney General Opinions

 

  Residency of president of University of Hawaii.  Att. Gen. Op. 61-84.

  A noncitizen may be given a probationary appointment to a state civil service position provided that all prescribed conditions are met.  Att. Gen. Op. 66-21.

  Promotion of a nonresident appointee following completion of probationary period.  Att. Gen. Op. 66-22.

  The superintendent of education's position is exempt from the three-year residency law.  Att. Gen. Op. 66-27.

 

Law Journals and Reviews

 

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

 

Case Notes

 

  Durational residency requirement for public employment violated equal protection clause of 14th Amendment.  443 F. Supp. 228.

  As to alien employment under former laws.  See 5 H. 167.

  Durational residence requirement, set forth in prior law, did not have a rational relation to public employment and violated the equal protection clause of the U.S. Constitution.  53 H. 557, 498 P.2d 644.

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

  Plaintiffs had standing to challenge the constitutionality of this section; subsection (c) violated plaintiffs' fundamental constitutional right to interstate migration.  460 F. Supp. 2d 1207.