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The Honolulu Advertiser
Posted on: Tuesday, January 31, 2006

Hiring law troubling, judge in lawsuit says

By Ken Kobayashi
Advertiser Courts Writer

A federal judge yesterday called a state law requiring applicants for state and city jobs to be Hawai'i residents "troublesome."

But U.S. District Judge David Ezra also said he gives "substantial deference" to state lawmakers who pass the laws.

"The court should not place itself in a position of acting like an elected official," Ezra told lawyers at a hearing on whether the law should be struck down as unconstitutional.

The American Civil Liberties Union of Hawai'i is challenging the law on behalf of two men who didn't qualify to apply for the jobs because they aren't Hawai'i residents.

The lawsuit alleges the state law is unconstitutional because its resident requirement discriminates against out-of-state applicants for state and city jobs.

Attorney General Mark Bennett defended the law and urged Ezra to reject the ACLU's request for a temporary injunction preventing enforcement of the statute.

At the end of the hearing, Ezra said he will rule in a week or so on the request.

The state law was adopted to discourage newcomers from moving here in the 1970s when state officials feared the influx of new residents would deplete state resources. After legal challenges, it was modified so that it now requires that job applicants be Hawai'i residents.

The law, however, has exemptions for police officers and University of Hawai'i employees. It also allows authorities to make other exemptions for such jobs as teachers, clinical psychologists and veterinarians.

The suit was filed in behalf of Kevin Walsh of Florida, who says he was rejected for three city data processing and computer programmer positions because he wasn't a Hawai'i resident. The other plaintiff is Blane Wilson, a retired military man who moved here from Florida and was not allowed to apply last year because his legal residency still remained in Florida, according to the ACLU.

The 76,000 state jobs and 17,000 municipal jobs represents about 16 percent of the state's jobs, according to the ACLU.

"This law sends a message contrary to the aloha spirit," Lois Perrin, legal director of the ACLU Hawai'i, told Ezra.

Ezra told the lawyers one troubling aspect of the law is that positions in the Honolulu Police Department and at the UH are exempt. The judge indicated an argument could be made to justify the police exemption, but it would be "very, very hard" to find a rationale for UH employees. "This statute is a troubled one with a troubled history," the judge said.

Bennett argued state lawmakers might have had a legitimate basis for the law because a study showed newcomers are less likely to remain in government jobs than Hawai'i residents. A study showed 44 percent of the newcomers who got exempted government jobs quit within 21 months, while 18 percent of the applicants who were Hawai'i resident quit, Bennett said.

After the hearing, Bennett also said the UH would be at a "significant competitive disadvantage" if it didn't get the exemption because almost all instructors earn degrees elsewhere and are not residents when they apply.

Perrin, however, said thousands, if not tens of thousands, of people see government Web sites that tell applicants they must be Hawai'i residents. At the same time, there are about 450 job vacancies, including guard positions at the Hawai'i Youth Correctional Facility. "We are being harmed because our government is not functioning at 100 percent," she said.

Ezra noted the court case will likely continue for a while to allow the state Legislature to give the law "a good hard look."

Asked if he will suggest any changes to Gov. Linda Lingle or state lawmakers, Bennett said he will discuss Ezra's comments with the governor. Perrin said her advice to lawmakers is that they should repeal the law.

Reach Ken Kobayashi at kkobayashi@honoluluadvertiser.com.