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

(b)  All appointive officers in the service ofthe government of the State or any county who are employed as department headsand 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 theirappointment.  All others appointed in the service of the government of theState or in the service of any county or municipal subdivision of the Stateshall be citizens, nationals, or permanent resident aliens of the United States and residents of the State at the time of their appointment.  A national orpermanent resident alien appointee shall not be eligible for continuedemployment unless such person diligently seeks citizenship upon becomingeligible to apply for United States citizenship.

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

"Resident" means a person who isphysically present in the State at the time the person claims to haveestablished the person's domicile in the State and shows the person's intent isto make Hawaii the person's primary residence.

(d)  The appointing authority may approve theappointment of persons without consideration of the requirements undersubsection (c) when services essential to the public interest require highlyspecialized technical and scientific skills or knowledge for critical-to-filland labor shortage positions.

(e)  For the positions involved in theperformance 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 personsrecruited 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, c211, §1; am L 1939, c 216, §§1, 2; RL 1945, §451; am L 1949, c 190, §§1, 2; amL 1951, c 319, §3; RL 1955, §5-1; am L 1961, c 82, §1; am L 1965, c 170, §1 andc 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, c101, §1; am L 1980, c 250, §1; gen ch 1985; am L 1987, c 295, §2; am L 1994, c56, §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 astate civil service position provided that all prescribed conditions are met. Att. Gen. Op. 66-21.

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

  The superintendent of education's position is exempt from thethree-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 employmentviolated 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, didnot have a rational relation to public employment and violated the equalprotection clause of the U.S. Constitution.  53 H. 557, 498 P.2d 644.

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

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