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The Honolulu Advertiser
Posted on: Friday, February 3, 2006

Hiring law struck down

By Curtis Lum
Advertiser Staff Writer

A federal judge has ruled that a law that requires applicants for state and city jobs to be Hawai'i residents is "discriminatory on its face" and ordered the state to stop enforcing the statute.

In a 32-page order issued late Wednesday, U.S. District Judge David Ezra granted a preliminary injunction to the American Civil Liberties Union of Hawai'i, which asked that the law be declared unconstitutional. The ACLU filed the complaint on behalf of two men who were not allowed to apply for jobs here because they weren't Hawai'i residents.

Ezra heard arguments Monday from the ACLU and state Attorney General Mark Bennett. In his order, Ezra said the plaintiffs "have a strong likelihood of success on the merits of their claim" and granted the injunction.

Ezra wrote that he was "deeply concerned" with the law, which he characterized as "constitutionally suspect and virtually indefensible." He said the prohibition would be similar to an employer displaying a sign proclaiming discrimination.

"This application is analogous to a sign on the hiring office door explicitly stating an employer's policy of discrimination," Ezra wrote. "In both cases, the applicant is informed explicitly and unequivocally that because he falls into a disfavored group it is impossible for him to obtain employment."

Ezra also said the state's arguments that residency would prevent "quick turnover" is "not rationally related to a pre-employment residency requirement." He said, however, that the state could require that a new employee obtain residency "within a reasonable period of time" after a person is hired.

Bennett yesterday said he disagreed with Ezra's ruling.

"We are pleased that Judge Ezra agreed with our legal analysis that the relevant question in the case is whether the law is rational. But we disagree with Judge Ezra's conclusion that the law is irrational," Bennett said.

But Bennett said Gov. Linda Lingle "believes the law does not make sense for Hawai'i" and has included a measure in her legislative package that would remove the residency requirement from the law. He said he will meet with legislative leaders to see if the proposal has a chance of passing.

"If the Legislature indicates that it is going to change the law, then the lawsuit will ultimately be mooted out," Bennett said. "If the Legislature decides that it is not going to change the law, then the lawsuit will continue."

Meanwhile, Bennett said he has instructed state agencies to begin accepting job applications from out-of-state residents.

Lois Perrin, ACLU of Hawai'i legal director, applauded Ezra's ruling.

"A lot of jurisdictions say that as a condition of your job, you need to live here. That's not what this was about. This was about you can't even apply without moving, and very few people are going to pick up and move without some sort of assurance that they have employment when they arrive, particularly since we're so far away and it's expensive," Perrin said.

The lawsuit was filed on behalf of Kevin Walsh, a Florida resident who was rejected for three city jobs last year because he wasn't a resident, and Blane Wilson, a retired military man who moved here from Florida but was not allowed to apply for a job because his legal residency was Florida.

Walsh said in a written statement that Ezra's ruling eliminates "an unfair barrier."

"Now, individuals like me have an equal opportunity to be considered for public employment based on our talents," Walsh said.

The law was enacted in the 1970s as a way to discourage people from moving to Hawai'i. Lawmakers feared an influx of new residents would deplete the state's resources.

The original law called for three years of residency to be eligible for public jobs. The law was amended over the years to its current form of requiring residency at the time of application.

The law allows for exemptions for police officers, University of Hawai'i employees, teachers, clinical psychologists and veterinarians.

Perrin guessed the law could have affected "tens of thousands" over the years.

Reach Curtis Lum at culum@honoluluadvertiser.com.