It turns out that the residency requirement goes back a long way, in various forms.
I’m not sure when the residency provision was made part of the State Constitution, but it could have come with Statehood. I was able to find the “Manual on Constitutional Provisions” prepared for the 1950 Constitutional Convention, which lays out the qualifications for serving in various offices in states across the country. At that time, it seems, residency requirements were the norm. The rundown of requirements in the different states at that time begins on page 162.
And both the 1968 and 1978 Constitutional Conventions appear to have left that particular provision in place, although with amendments.
And the residency requirements appears to have spread out broadly from the Hawaii constitution into various laws and rules, some of which have been successfully challenged in court over time.
The constitutional provision that derailed the Labor Department nominee doesn’t only impact department heads, but the heads of other offices as well.
And a reader emailed me to suggest that residency requirements are still imposed on certain board and commission appointments, as well as certain professional and vocational licenses, which certainly deserves a closer look to confirm (which I won’t attempt today).
I did try to check on the challenges to residency requirements, which seem to site either the right to travel between the states, and the right to equal treatment. In either case, to survive the challenges, the restrictions must either stem from a compelling state interest, or be “rationally related” to a legitimate government interest, depending on the level of legal scrutiny required.
The 1977, then Gov. George Ariyoshi backed a new law imposing a 1-year residency requirement for all public employment. Ariyoshi viewed it as a necessary move to slow population growth. It was immediately challenged in federal court and found to be unconstitutional. The case is Nehring v. Ariyoshi. Click on the link to read the decision.
A 1977 article in the Hastings Constitutional Law Quarterly described the legal issues in Hawaii at that time regarding residency (“Selected Constitutional Issues Related to Growth Management in the State of Hawaii“).
But that wasn’t the end of it. In 2005, the Hawaii Chapter of the ACLU had to go to court again “to stop enforcement of Section 78- 1(c) of the Hawaii Revised Statutes, which barred out-of-state residents from applying for government jobs.”
The court again struck down the law as unconstitutional (Walsh v City and County of Honolulu).
So what is the government interest, whether “compelling” or not, that justifies residency requirements for department heads nominated by the governor and confirmed by the Senate? Can someone articulate it?
Discover more from i L i n d
Subscribe to get the latest posts sent to your email.
you an outsider; you easily confused by stuffz that no make sense. now get in the back of my pickup with my keeeeeeedz.
I suggest that the reasons for or against a residency requirement for cabinet members or department heads, and the length of time required for residency, are based on similar reasons for or against a residency requirement for people to vote in an election. I’m unaware of any political entity which allows people to simply arrive in its territory one day and vote the following day. In most cases there’s a requirement of residency for 30 days, 90 days, or perhaps a year or several years. In the case of an election regarding political status — for example the Hawaii statehood election or the numerous statehood/independence plebiscites taken in Puerto Rico over the years, the period of residency required for voter eligibility tends to be longer than for ordinary elections to the legislature or school board.
The commonsense reason for a requirement for length of residency for appointment to public office or for voting is pretty obvious. We expect the candidate or voter to know what’s going on — to have knowledge of the social/political/cultural customs and background of the people being served. After the Civil War, the people of the South didn’t appreciate it when a carpetbagger from the North was suddenly imposed upon them as a governor or sheriff or mayor.
I have lived for at least several years in each of Chicago, Detroit, Atlanta, Boston, and Honolulu. In every one of those places there is an established social/political power structure where “old money” is more powerful than “new money”, where blue-bloods or ali’i are more powerful than commoners or maka’ainana. It’s understood that people whose families have been on the scene for generations are “entitled” to greater deference than newcomers. And of course here in Hawaii we have such things to consider as native vs. non-native, kama’aina vs. newcomer, etc. A residency requirement solely based on length of residency for appointment to a government position might be struck down by a court as having no rational basis to serve the public interest; but a requirement to pass a test of “local knowledge” might very will meet the rational basis requirement, and would be a good substitute for a requirement merely for a length of residency, because a candidate for public office should be expected to know the wishes and expectations of the people to be served.
Whoa, slow down.
There need not be a “compelling government interest” for a provision of our state constitution. Unless it runs afoul of the the US constitution, a state may include almost anything in its own constitution.
Even then, I think it would require a non-resident to be nominated, confirmed and then removed before he or she could (eventually) challenge our state constitution language at SCOTUS.
“Even then, I think it would require a non-resident to be nominated, confirmed and then removed before he or she could (eventually) challenge our state constitution language at SCOTUS.”
This sounds wrong. Doug, please see the Nehring case that Ian cites: “This action was brought by four individual plaintiffs. In December, 1976, plaintiff David L. Nehring moved from Connecticut to Hawaii because his wife accepted employment heading up the nursing program at the University of Hawaii, Hilo. Reverend Nehring had never been to Hawaii before this time. In July, 1977, he applied for a job as a resident dorm manager at the Hilo campus of the University of Hawaii. Although before the residency law had been enacted, university authorities had encouraged Reverend Nehring to apply for this job, he was told that no interview would be forthcoming because he had not been a resident of Hawaii for more than a year.”
Right, “t,” the difference being that SCOTUS will not grant certiorari for a case until THERE IS a case. A mere hypothetical or possibility is not enough for them to waste their valuable time.
You’ll also notice that Nehring was challenging a policy established by a legislative body, it was not a challenge to the state constitution. Different legal beasts.