Public-jobs law disturbs judge
A suit claims the law barring nonresidents from government jobs is discriminatory
A federal judge said he is troubled by a state law that prohibits out-of-state residents from applying for public employment, suggesting that the state Legislature review it.
U.S. District Judge David Ezra is expected to rule by next week on the American Civil Liberties Union of Hawaii's motion seeking an injunction to prohibit the state from enforcing its pre-employment residency requirement, enacted in the 1970s under then-Gov. George Ariyoshi.
The ACLU and Honolulu attorneys Anne Williams and Michael Livingston, who filed suit on behalf of two Florida residents who were turned down when they tried to apply for government jobs here, contend the law is unconstitutional and discriminatory.
"It sends a message that nonresidents are not welcome," said Lois Perrin, legal director for the ACLU.
State attorneys disagree, saying it is constitutional and that the state has the right to require those who apply for public employment here to be residents before they apply.
Ezra said he was very disturbed at the long and troubled history of the statute, which at one time was struck down by the U.S. District Court and Hawaii Supreme Court before being amended.
In response to the lawsuit, state officials repealed just last week a regulation in the statute that allowed former Hawaii residents who are currently not living here to apply -- creating two categories of nonresidents. In November the city removed a similar exemption in its policies.
"This statute is a troubled one with a troubled history and certainly deserves, if nothing else, careful attention by the Hawaii state Legislature and the governor," Ezra said.
The suit was filed last July on behalf of Kevin R. Walsh of Tallahassee, and Blane M. Wilson of Pensacola, seeking to overturn the statute, upon which the county's hiring policies are based.
The law currently requires that applicants have to be Hawaii residents to apply for state or county jobs, with some exceptions.
State Attorney General Mark Bennett said the state expends a lot of resources and training and should have the right to reserve employment to those who commit to becoming residents before they can receive public money or employment.
According to a study, nonresidents who were hired under exemptions quit two times more often than residents, Bennett said. "I believe that is the experience of most employers in this state -- that someone with no connection to Hawaii and takes a job tends to remain as an employee a lot less than somebody who made the commitment to be a resident."
It is not for the court to decide the wisdom of the law, which the state feels is irrelevant, Bennett said.
"The only relevant constitutional question to me is whether the Legislature when it passed it could have believed that it was rational and furthered a permissible purpose," he said.
According to Perrin, the law was enacted "with the express purpose to ask people not to move to Hawaii to make this state their home."
"The Constitution does not allow for that kind of discrimination -- citizens choose their state; states do not choose their citizens -- and that's what this case all about," Perrin said.
The law exempts certain positions, including police officers, University of Hawaii employees or positions requiring scientific or technical expertise.
And that is part of the problem, Perrin said. "The fact that it's not being uniformly applied and that we only respect constitutional rights unless we're in need is exactly what is wrong with this law."
