DUE PROCESS AND EQUAL PROTECTION


Section 5.  No person shall be deprived of life, liberty or property without due process of law, nor be denied the equal protection of the laws, nor be denied the enjoyment of the person's civil rights or be discriminated against in the exercise thereof because of race, religion, sex or ancestry. [Ren and am Const Con 1978 and election Nov 7, 1978]


Attorney General Opinions


  See also notes to U.S. Const. Amend. 14.

  Equal protection--extra tax on liquid fuel imposed only in city and county of Honolulu would not be invalid.  Att. Gen. Op. 63-23.

  Student regulations at state universities are subject to the vagueness standard but do not require the same specificity required of criminal statutes.  Att. Gen. Op. 71-9.


Law Journals and Reviews


  The Hawaii Supreme Court's Criminal Law Decisions 1997-1998:  Fair Use of the Doctrine of Plain Error?  II HBJ No. 13, at pg. 49.

  Res Judicata and Collateral Estoppel in Hawaii:  One of These Things is Not Like The Other.  III HBJ No. 13, at pg. 1.

  Sandy Beach Defense Fund v. City and County of Honolulu:  The Sufficiency of Legislative Hearings in an Administrative Setting.  12 UH L. Rev. 499.

  State v. Levinson:  Limitations on a Criminal Defendant's Use of Peremptory Challenges.  13 UH L. Rev. 279.

  Employee Rights Under Judicial Scrutiny:  Prevalent Policy Discourse and the Hawai'i Supreme Court.  14 UH L. Rev. 189.

  Burdick v. Takushi:  Yes to Equal Voice in Voting, No to a Fundamental Right to Vote for Any Particular Candidate.  14 UH L. Rev. 715.

  Hawai'i's New Administrative Driver's License Revocation Law:  A Preliminary Due Process Inquiry.  14 UH L. Rev. 853.

  For Better or for Worse, in Sickness and in Health, Until Death Do Us Part:  A Look at Same Sex Marriage in Hawaii.  16 UH L. Rev. 447.

  The Kamehameha Schools/Bishop Estate and the Constitution.  17 UH L. Rev. 413.

  Criminal Procedure Rights Under the Hawaii Constitution Since 1992.  18 UH L. Rev. 683.

  Justice Ruth Bader Ginsburg And Gender Discrimination.  20 UH L. Rev. 699.

  Re-Identifying  American State Democracy:  Implications for Same-Sex Marriage and the Nonfungibility of Hawai'i in the Exotic 1950 Statehood Constitution.  22 UH L. Rev. 1.

The Defense of Marriage Act:  Sex and the Citizen.  24 UH L. Rev. 279.

  Prudent Use of Judicial Minimalism:  Why Minimalism May Not be Appropriate in the Context of Same-Sex Marriage.  27 UH L. Rev. 501.


Case Notes


  See also notes to U.S. Const. Amends. 5, 14.


Civil rights.

  Employer's policy of denying any extended leave during employee's first year of employment violated Hawaii administrative rule §12-46-108, which was adopted to enforce the legislative mandate of §378-2(1)(A) and Hawaii's constitutional prohibition against sex discrimination in the exercise of a person's civil rights in employment.  89 H. 269, 971 P.2d 1104.


Due process.

  Where landowners argued that ordinance creating mechanism through which condominium owners could convert their leasehold interests into fee simple interests was arbitrary and irrational, landowners could not meet burden of showing irrationality.  124 F.3d 1150.

  Applicable only to state action not private action.  698 F. Supp. 1496.

  Where plaintiff alleged that condominium lease-to-fee ordinance violated plaintiff's substantive due process rights, ordinance was a rational exercise of legislative power.  832 F. Supp. 1404.

  Ordinance proscribing "presence" at cockfight is too vague to satisfy requirement of due process.  50 H. 384, 441 P.2d 333.

  HRS §634-69 providing for service of summons on motorist by publication does not violate due process clause.  50 H. 484, 443 P.2d 155.

  Public employees seeking accidental disability retirement benefits are entitled to hearing on contested issues before the board of trustees.  52 H. 212, 473 P.2d 866.

  HRS §772-1 making criminal one's wandering about at night without visible business was unconstitutional for vagueness.  52 H. 527, 480 P.2d 148.

  HRS §709-33, together with other sections of Part II, Chapter 709, was invalid for failing to require proof of guilt beyond reasonable doubt.  53 H. 40, 487 P.2d 283.

  HRS §621-22, allowing introduction of prior convictions to impeach credibility of defendant in criminal case was unconstitutional.  53 H. 254, 492 P.2d 657.

  HRS §712-1214(1)(a), with definitions in §712-1210(5), was not void for vagueness.  58 H. 440, 573 P.2d 945.

  Procedure followed did not deprive defendant of defendant's right not to be tried while incompetent.  60 H. 17, 586 P.2d 1028.

  Hearings on applications for staff privileges at hospitals.  63 H. 430, 629 P.2d 1116.

  Irrebuttable presumption created by compulsory retirement age has a rational basis and therefore does not violate due process.  63 H. 501, 630 P.2d 629.

  Notice provisions of tax lien statute failed to meet minimum standards of due process.  64 H. 4, 635 P.2d 938.

  Ordinance prohibiting distribution of commercial handbills in Waikiki was void for vagueness.  64 H. 148, 637 P.2d 1117.

  No violation in denial by trial court of defendant's request to examine witnesses where claim was impermissibly suggestive identification.  64 H. 217, 638 P.2d 324.

  Portion of election fraud law void for vagueness.  67 H. 398, 688 P.2d 1152.

  Due process denied where lessee's property seized without proper service of process, time to answer, evidence presented by lessor, and opportunity to contest case.  68 H. 466, 719 P.2d 397.

  Violated by court's failure to inform defendant of penalties for offense to which defendant pled guilty.  68 H. 498, 720 P.2d 1010.

  Defendant denied fair trial when prosecutor expressed personal view to jury that defendant was guilty and defendant's witnesses were not credible.  68 H. 659, 728 P.2d 1301.

  One year limitation on right to former spouse's property does not violate due process.  69 H. 1, 730 P.2d 338.

  Not violated by proceedings conducted by city council when acting upon Shoreline Management Act permit.  70 H. 361, 773 P.2d 250.

  Judge who lodges complaint for criminal contempt may not decide the outcome if there is no jury trial.  70 H. 459, 776 P.2d 1182.

  Rule 412, Hawaii rules of evidence, cannot override the constitutional rights of the accused.  71 H. 115, 785 P.2d 157.

  Rape victim's clothing was not crucial evidence as to result in an unfair trial.  71 H. 183, 787 P.2d 671.

  Ethnical exclusion by prosecution.  71 H. 300, 788 P.2d 841.

  Defendant's right to a fair trial was denied due to State's suppression of evidence.  71 H. 347, 791 P.2d 392.

  Mandatory sentences are not unconstitutional; there is no constitutional right to probation.  71 H. 485, 795 P.2d 842.

  In criminal cases, peremptory challenges cannot be based solely on race, religion, sex, or ancestry.  71 H. 492, 795 P.2d 845.

  Violated where there were unreasonable delays by administrative malfunctions of prosecutor's office and loss of tapes by police.  71 H. 537, 797 P.2d 1312.

  Right to fair trial denied where sum of prosecutor's conduct was prejudicial.  72 H. 278, 815 P.2d 428.

  Police tactics designed to detect drug-related offenses, including officer posing as drug dealer and supplying and selling drugs in "reverse buy" operation, were not so outrageous as to deprive defendant of right to due process.  73 H. 179, 830 P.2d 492.

  Claim for relief against state officials based on alleged illegality of exchange of ceded lands was barred by State's sovereign immunity.  73 H. 578, 837 P.2d 1247.

  Right not violated by defendant's absence from conference settling jury instructions as conference does not involve jury's presence or witness testimony.  74 H. 141, 838 P.2d 1374.

  Requires unbiased administrative adjudicators; no violation where §88-77 trustees not shown to have pecuniary or institutional disqualifying interest in adjudication.  74 H. 181, 840 P.2d 367.

  Written notice of specific charges not required for §710-1077(1)(a) direct summary criminal contempt case; contemnor's misconduct and judge's response did not require contempt trial before different judge.  74 H. 267, 842 P.2d 255.

  Use at sentencing of statements previously obtained in violation of a defendant's privilege against self-incrimination violates that defendant's privilege against self-incrimination and right to due process.  74 H. 424, 848 P.2d 376.

  Third-party agreements homestead lessees entered into with third party non-Hawaiian farmers could not be considered property interests.  76 H. 128, 870 P.2d 1272.

  Appellant had a right under the due process clause, to be given reasonable notice of the circuit court's intention to apply §706-660.1(a) (1985) in sentencing appellant in connection with kidnapping conviction and to be afforded the opportunity to be heard with respect thereto.  76 H. 517, 880 P.2d  192.

  Coercive conduct of a private person may be sufficient to render a confession inadmissible based on this section and article I, §10 of Hawai'i constitution.  77 H. 51, 881 P.2d 538.

  Because appellants had been afforded an adequate opportunity to challenge the fine assessed by department of land utilization on appeal--at both administrative and judicial levels--before they incurred any obligation to pay it, the application of the procedural mechanism set forth in section of land use ordinance had not violated their right to due process of law.  77 H. 168, 883 P.2d 629.

  Supreme court declined to hold that State must tape record a custodial interrogation in order to establish a valid waiver of a criminal defendant's constitutional rights.  77 H. 403, 886 P.2d 740.

  Presumption of nonconsent imposed on appellant a burden of persuasion of the nonexistence of an essential element of the crime with which appellant was charged; so construed, the presumption would violate due process clauses of Fourteenth Amendment to U.S. Constitution and this section by virtue of improperly shifting burden of proof to appellant.  78 H. 262, 892 P.2d 455.

  To protect the right to testify under Hawai'i constitution, trial courts must advise criminal defendants of their right to testify and must obtain on-the-record waiver of that right in every case in which the defendant does not testify.  79 H. 226, 900 P.2d 1293.

  Reversible error where jury may have reached verdict by improperly shifting burden of proof from prosecution to defense by concluding that defendant had not established defendant's claim of extreme mental or emotional distress before considering whether prosecution had disproved that defense beyond a reasonable doubt. 80 H. 172, 907 P.2d 758.

  Defendant received adequate notice that consecutive sentences may be imposed by sentencing court where court had that discretion by statute, and plain language of §706-668.5 informed defendant that defendant may be sentenced to consecutive sentences.  81 H. 309, 916 P.2d 1210.

  The right of an accused to a unanimous verdict in a criminal prosecution, tried before a jury in a court of this State, is guaranteed by this section and §14 of this article of the Hawaii constitution.  84 H. 1, 928 P.2d 843.

  When separate and distinct culpable acts are subsumed within a single count charging a sexual assault, the trial court must either (1) require the prosecution to elect the specific act upon which the prosecution is relying to establish the "conduct" element of the charged offense, or (2) give the jury a specific unanimity instruction.  84 H. 1, 928 P.2d 843.

  Section 704-415 does not violate due process principles; at release hearing, insanity acquittee bears burden of proving by preponderance of evidence freedom from mental illness and dangerous propensities.  84 H. 269, 933 P.2d 606.

  Where violation of misdemeanor offense under §712-1248(1)(d) also constituted violation of felony offense under §712-1247(1)(h), conviction of felony offense would have constituted violation of defendant's due process and equal protection rights.  86 H. 48, 947 P.2d 360.

  In products liability action, cumulative effect of three alleged errors by trial court did not deny defendants right to fair trial where overwhelming and substantial evidence supported jury's verdict.  86 H. 214, 948 P.2d 1055.

  Although appellant was not afforded an opportunity to cross-examine witnesses who had testified at a public hearing but not before the zoning board of appeals, error was harmless beyond a reasonable doubt.  87 H. 217, 953 P.2d 1315.

  Director's exposure to materials outside the record constitutionally harmless beyond a reasonable doubt as director expressly declined to consider material in rendering decision.  87 H. 217, 953 P.2d 1315.

  A trial court must pass on a defendant's attempted withdrawal of the prior waiver of his or her right to testify, tendered before the commencement of closing arguments, pursuant to the "liberal approach", whereas such an attempted withdrawal tendered thereafter is subject to the "manifest injustice" standard.  88 H. 407, 967 P.2d 239.

  Where defendant did not meet burden of establishing plausible and legitimate reasons for withdrawal of defendant's prior waiver of defendant's right to testify, defendant failed to present "fair and just reasons" for defendant's request to exercise defendant's right to testify in defendant's own behalf; thus trial court did not abuse discretion by ruling that it would not reopen case.  88 H. 407, 967 P.2d 239.

  Where trial court's denial of defendant's post-verdict motion for a new trial--based on defendant's claim that defendant's attempt to withdraw defendant's waiver of right to testify in defendant's own behalf should have been allowed--was not "manifestly unjust", no abuse of discretion.  88 H. 407, 967 P.2d 239.

  Where trial court failed to correct prosecution's erroneous interpretation of "remains unlawfully" under §708-810, defendant's constitutional rights to due process and a unanimous jury verdict violated.  89 H. 284, 972 P.2d 287.

  A vessel and its accompanying mooring and live-aboard permits are constitutionally protected "property", of which an individual may not be deprived without notice and an opportunity to be heard.  91 H. 1, 979 P.2d 586.

  Procedural due process violated where State informed boat owner by letter of impoundment and possible disposal of vessel, but made no mention of any procedures available for challenging that action, administrative or otherwise, and boat owner was never provided with an opportunity to be heard on matter of vessel's impoundment.  91 H. 1, 979 P.2d 586.

  Findings under §706-662(5) regarding (a) the age or handicapped status of the victim and (b) whether "such disability is known or reasonably should be known to the defendant" entail "intrinsic" facts; Hawaii constitution requires these findings to be made by the trier of fact, not the sentencing court.  91 H. 261, 982 P.2d 890.

  For purposes of this section, due process requires that an order for the nonemergency involuntary administration of antipsychotic medications to a criminal defendant must be based upon facts found by clear and convincing evidence.  91 H. 319, 984 P.2d 78.

  Three separate findings required by trial court before  criminal defendant may constitutionally be involuntarily medicated with antipsychotic drugs, where it is alleged that the medication is necessary because the defendant poses a danger to himself or herself or others.  91 H. 319, 984 P.2d 78.

  Out-of-state attorneys, who were granted pro hac vice status, not denied procedural due process prior to revocation of status and imposition of sanctions where three separate oral notices were given to one attorney and to local counsel.  91 H. 372, 984 P.2d 1198.

  Defendant's constitutional right to unanimous verdict not violated as §707-715 defines a single criminal offense; subsections (1) and (2) constitute alternative means of establishing the mens rea of the offense of terroristic threatening--either one giving rise to the same criminal culpability.  92 H. 577, 994 P.2d 509.

  Where evidence concerned only a single incident of culpable conduct, trial court was not required to read the jury a specific unanimity instruction; right to unanimous verdict thus not violated.  93 H. 199, 998 P.2d 479.

  In sex assault case, jury instruction as to ineffective consent prejudicially affected defendant's rights because (1) the jury was instructed that it could convict defendant based on the absence of consent under §702-233 or any of the four grounds of ineffective consent under §702-235, (2) there was a reasonable possibility that the verdict was based upon at least one of the four grounds of ineffective consent, and (3) there was legally insufficient evidence to support any of the four grounds of ineffective consent.  96 H. 161, 29 P.3d 351.

  Unanimity is not required where alternative means of establishing an element of an offense are submitted to the jury, provided that there is no reasonable possibility that the jury's verdict was based on an alternative unsupported by sufficient evidence.  96 H. 161, 29 P.3d 351.

  Juror questioning of witnesses did not deprive defendant of fair and impartial trial where questions posed by jurors were carefully reviewed by the trial court and questions tending to elicit improper or inadmissible evidence were excluded.  97 H. 206, 35 P.3d 233.

  As §846E-3 operated to deprive defendant of a protected liberty interest and provided defendant with neither notice nor an opportunity to be heard prior to notifying the public of defendant's status as a convicted sex offender, §846E-3 denied defendant due process under this section; §846E-3 thus void and unenforceable.  97 H. 285, 36 P.3d 1255.

  As the registration requirements of chapter 846E do not interfere with any of a sex offender's protected liberty interests, the protections of procedural due process are not triggered.  97 H. 285, 36 P.3d 1255.

  Defendant's right to a unanimous jury verdict not violated by trial court's refusal to give a specific unanimity instruction as defendant's actual and constructive possession of the methamphetamine comprised a continuing course of conduct.  99 H. 198, 53 P.3d 806.

  As an aspect of procedural due process, individuals must, as needed, be provided an interpreter at family court proceedings where their parental rights are substantially affected.  99 H. 522, 57 P.3d 447.

  Parents have a substantive liberty interest in the care, custody, and control of their children protected by the due process clause of this section.  99 H. 522, 57 P.3d 447.

  Where negativing of defendant's mitigating extreme mental or emotional distress defense by prosecution was a material element of the offense of first degree murder such that jury unanimity was a prerequisite to returning any verdict, and trial court's special instruction expressly directed the jury to convict defendant of manslaughter if a single juror believed that the prosecution had failed to negative the mitigating defense, right to unanimous jury verdict violated.  99 H. 542, 57 P.3d 467.

  Where family court conducted an in camera review of the complainant's child protection services records and produced the relevant portions to defense counsel, defendant's due process rights not violated; and family court's order to seal the remaining portions of the child protection services file for appellate review did not constitute an abuse of discretion.  101 H. 172, 65 P.3d 119.

  The alternative states of mind potentially requisite to the charged offense of second degree theft by shoplifting, as prescribed by the definition of "intent to defraud" set forth in §708-800, does not implicate a defendant's constitutional right to a unanimous jury verdict, as guaranteed by article I, §14 and this section of the Hawaii constitution; a proper elements instruction, which sets forth the alternative states of mind prescribed by the "intent to defraud" component of second degree theft by shoplifting, does not violate defendant's constitutional right.  101 H. 389, 69 P.3d 517.

  Lost opportunities for concurrent sentencing, parole, and loss of parental rights do not affect a defendant's ability to present an effective defense, and thus do not constitute actual substantial prejudice to a defendant's due process right to a fair trial.  102 H. 183, 74 P.3d 6.

  Where there was no evidence that the trial court either reviewed the reasons for the preindictment delay prior to requiring a showing of actual substantial prejudice to the defendant or required a showing of something less than actual substantial prejudice, the trial court did not misapply the correct standard to be used to determine whether charges should be dismissed for preindictment delay.  102 H. 183, 74 P.3d 6.

  Vexatious litigant's due process right not impacted in present or future cases where litigant was only restrained from bringing unmeritorious litigation, which could be restricted in any event; as trial court held a hearing to review litigant's objections to prefiling order, order imposed on litigant under §634J-7 satisfied procedural due process because it afforded litigant notice and an opportunity to be heard.  102 H. 289, 75 P.3d 1180.

  Section 663-15.5 adequately protects a non-settling joint tortfeasor's right to procedural due process; subsections (b) and (c) afford a non-settling joint tortfeasor notice and an opportunity to be heard regarding the determination whether a settlement has been given in good faith and, consequently, bars cross-claims for contribution against the settling joint tortfeasor.  102 H. 399, 77 P.3d 83.

  No prosecutorial misconduct by prosecutor's questions and remarks regarding defendant's failure to "explain away" the DNA evidence as questions and remarks were more analogous to legitimate prosecutorial comment on the state of the evidence and not the improper shifting of the burden of proof onto the defendant.  103 H. 38, 79 P.3d 131.

  Where defendant's statements were not the product of "interrogation", but, rather, were "volunteered confessions or admissions, obtained independent of express police questioning or its functional equivalent", defendant's constitutional rights against self-incrimination and due process of law not violated.  104 H. 224, 87 P.3d 893.

  The lifetime registration component of the Hawaii sex offender registration statute implicates a protected liberty interest under this section and requires that minimum requirements of due process--notice and opportunity to be heard--be afforded to convicted sex offenders; such a proceeding may be instituted by a sex offender in a special proceeding.  105 H. 222, 96 P.3d 242.

Under this section, due process requires that a convicted sex offender under §846E-1 be afforded the right to a judicial hearing at which evidence may be offered to demonstrate that continuance of all or part of the lifetime registration requirements are not necessary in a particular case to fulfill the public need to which the sex offender act responded.  105 H. 222, 96 P.3d 242.

  Applying the covered loss deductible under §431:10C-301.5 to plaintiff's recovery of underinsured motorist benefits did not violate plaintiff's right to substantive due process as the legislature's policy determination to enact this section to reduce one of the costs of the motor vehicle insurance system was expressly within the constitutional purview of the legislature.  106 H. 511, 107 P.3d 440.

  Assuming that possession of leased premises and rent to be paid into the trust fund are property interests protected under the due process clause, §666-21 does not offend due process as tenants are afforded an opportunity to challenge summary possession and motions for the establishment of a rent trust fund.  107 H. 73, 110 P.3d 397.

  Right not violated by administrative driver's license revocation hearing procedure where defendant was afforded a hearing where witnesses were called and defendant was represented by counsel, and hearing office advised counsel of the procedure that hearing officer was going to follow.  108 H. 31, 116 P.3d 673.

  Where mother was denied an opportunity to be heard at a meaningful time and in a meaningful manner as to the termination of her parental rights--that is, without a trial concerning her substantive liberty interests in the care, custody, and control of her children--mother was deprived of the custody of her children without a fair hearing.  108 H. 144, 118 P.3d 54.

  Deprivation of property solely on basis of substituted service in adverse possession action violates due process, where, with due diligence, actual notice possible.  6 H. App. 241, 718 P.2d 1109.

  Does not require agency hearing before tax director issues notices of tax assessment.  6 H. App. 260, 718 P.2d 1122.

  In paternity action, due process not violated by exclusion of sexual access information and preclusion of cross-examination of mother regarding her earlier pregnancy.  6 H. App. 629, 736 P.2d 448.

  Act of state witness leaving witness stand in presence of security personnel was not so prejudicial as to deny defendant's right to fair trial; jury is presumed to adhere to court's cautionary instruction to draw no inference from event.  8 H. App. 624, 817 P.2d 130.

  Violated where court imposed attorney sanctions pursuant to its powers under §603-21.9 without adequate prior notice and reasonable opportunity to be heard.  9 H. App. 249, 833 P.2d 85.

  Because the constitutional right of allocution is one afforded "pre-sentence", manifestly, the defendant must be given the opportunity to be heard before the court imposes sentence; defendant had right of allocution before being sentenced for misdemeanor offense of driving with revoked license and for violation charge of illegal turn.  77 H. 241 (App.), 883 P.2d 663.

  Defendant's constitutional and statutory right to testify in defendant's own defense was violated where judge reproached defendant to follow defendant's attorney's advice and thus refrain from testifying, and the violation was plain error; denial of the right to testify was prejudicial and not harmless beyond a reasonable doubt.  78 H. 115 (App.), 890 P.2d 702.

  Defendant's right to an impartial judge was violated where nature and extent of the court's questioning of one of the complainants demonstrated that the court assumed the role of a prosecutor, thus failing to act impartially.  When the court assumes the role of a prosecutor, it violates the fundamental due process requirement that the tribunal be impartial, and such an error, by definition, is inherently prejudicial and not harmless.  78 H. 115 (App.), 890 P.2d 702.

  Motions court's order denying defendant's pre-trial motion to dismiss for pre-indictment delay affirmed, where, inter alia, motions court was correct in concluding that defendant failed to establish that defendant's claimed inability to recollect events prior to defendant's indictment, even with the aid of others, amounted to substantial prejudice to defendant's right to a fair trial.  79 H. 165 (App.), 880 P.2d 217.

  Violated where trial court's exclusion of gun-like cigarette lighter prejudiced defendant by precluding jury from properly evaluating essential defense evidence.  79 H. 385 (App.), 903 P.2d 690.

  Violated where petitioner whose driver's license was administratively revoked denied right to cross-examine director's representative regarding basis for continuance of administrative hearing.  80 H. 358 (App.), 910 P.2d 129.

  Defendant entitled to elicit evidence of complainant's past sexual behavior, not to attack complainant's character, but to determine whether complainant was mentally defective and whether defendant knew that complainant was mentally defective.  81 H. 447 (App.), 918 P.2d 254.

  Where discussion that defendant was subject to mandatory minimum terms of imprisonment pursuant to §706-660.1 was conducted at bench outside of defendant's hearing, defendant was not given reasonable notice of intended application of mandatory minimum term statute.  82 H. 158 (App.), 920 P.2d 372.

  Section 291C-112, which prohibits the use of a vehicle "for purposes of human habitation", not unconstitutionally vague.  82 H. 269 (App.), 921 P.2d 1170.

  "Reasonable grounds" standard of §709-906(4) not unconstitutionally vague where standard is an objective standard requiring a trial court to independently assess facts and circumstances which responding officers had before them in determining to issue warning citations.  82 H. 381 (App.), 922 P.2d 994.

  Section 709-906(4) not overbroad as issuance of warning citation must be based on objective facts and circumstances, other than merely a complainant's claim, which would lead a reasonable police officer to believe recent physical abuse was inflicted on family or household member.  82 H. 381 (App.), 922 P.2d 994.

  Violated where claimant failed to serve employer and insurer with motion and summons; circuit court thus did not acquire personal jurisdiction over employer and insurer and judgment and garnishee summons issued pursuant to §386-91 in absence of personal jurisdiction void.  82 H. 405 (App.), 922 P.2d 1018.

  Procedural due process right not denied when guardian ad litem not appointed for mother where mother was provided with court-appointed attorney and, pursuant to §587-34(d), court determined mother was capable of comprehending legal significance of issues.  85 H. 119 (App.), 938 P.2d 178.

  Application of preponderance of the evidence standard as appropriate judicial basis for issuance of protective order under §586-5.5 does not violate right.  85 H. 197 (App.), 940 P.2d 404.

  Where building addition was permitted structure under zoning ordinance in existence at time subsequent land use ordinance was adopted, requiring landowner to remove addition and pay daily fines until addition was removed constituted interference with landowner's vested property rights under this clause.  86 H. 343 (App.), 949 P.2d 183.

  Right violated where circuit court's instruction to jury regarding the statutory presumption created by §708-801(4) failed to further instruct jury pursuant to HRE rule 306(a) that the presumption is merely a permissible inference of fact and that in order to apply the presumption, the jury must find that the presumed fact exists beyond a reasonable doubt.  88 H. 216 (App.), 965 P.2d 149.

  As no Hawaii statute governing parole requires a parolee's parole to be automatically revoked upon the parolee's conviction and sentence to imprisonment for a crime committed while on parole, and §353-62 appears to vest Hawaii paroling authority with discretion to revoke parole, parolee's right violated when authority summarily revoked parole without giving parolee a final revocation hearing.  88 H. 229 (App.), 965 P.2d 162.

  Section 852-1 not void for vagueness as:  (1) a person of ordinary intelligence would have a reasonable opportunity to know that it is unlawful to refuse or wilfully fail to move as directed by an officer; (2) person may then choose between the lawful and unlawful conduct; and (3) the statute provides sufficiently explicit standards for those who apply it.  89 H. 27 (App.), 968 P.2d 194.

  Under the due process clause of the Hawaii constitution, entrapment by estoppel defense may be raised against the State in criminal cases and clause would be violated if the facts established the defense.  89 H. 27 (App.), 968 P.2d 194.

  Section 52D-8 provides officers with a constitutionally protected property interest--the right to legal representation for acting within the scope of their duty; due process thus entitles an officer to a contested case hearing under chapter 91 before the officer can be deprived of this interest.  89 H. 221 (App.), 971 P.2d 310.

  Right violated where jury instruction failed to correctly  convey proof beyond a reasonable doubt standard to jury; instruction that jury must be "firmly convinced" of defendant's guilt diminished this very high standard by which jury must abide in order to convict.  90 H. 113 (App.), 976 P.2d 427.

  Right violated by trial court entering free-standing restitution order where no notice was provided to defendant that defendant's original sentence might be modified at the hearing on the probation officer's motion to revoke restitution.  92 H. 36 (App.), 986 P.2d 987.

  Where trial court did not apply clear and convincing standard of proof on complainant as required by §604-10.5, applied a subjective rather than objective reasonable person standard in evaluating whether defendant's conduct caused complainant emotional distress, and violated defendant's due process rights, court erred by denying defendant's motion for reconsideration of injunction order.  92 H. 330 (App.), 991 P.2d 840.

  Where there was a distinct and reasonable possibility that trial court's error in commenting upon the location of the incriminating items contributed to the conviction of the defendants, error materially impinged upon defendants' right to trial by jury, and error was not harmless beyond a reasonable doubt.  92 H. 675 (App.), 994 P.2d 607.

  The conditions for eligibility for parole under the Hawaii sex offender treatment program, which includes admitting to committing a sexual offense, implicate a protected liberty interest under this section; this section of the Hawaii constitution provides an independent basis for the due process right to a sex offender classification hearing before such requirements may be imposed.  93 H. 298 (App.), 1 P.3d 768.

  Where there was no genuine possibility that the jurors were not unanimous as to the conduct for which defendant was found culpable, trial court's failure to give specific unanimity instruction as to the methamphetamine manufacturing offense did not violate defendant's substantial due process right to a unanimous jury verdict.  95 H. 365 (App.), 22 P.3d 1012.

  Section 711-1102 not unconstitutionally vague under this section as its language is specific and clear, it is narrowly tailored to a person's failure to disperse pursuant to a law enforcement order to leave the immediate vicinity of disorderly conduct, and citizens of this State should thus have no difficulty in understanding §711-1102.  101 H. 153 (App.), 64 P.3d 282.

  Defendant's right violated where, based on the specific facts of the case, trial court abused its discretion in directing, over defendant's objection, that defendant testify before defendant's other defense witness; error not harmless beyond a reasonable doubt as there was a reasonable possibility that trial court's error contributed to defendant's conviction.  102 H. 369 (App.), 76 P.3d 612.

  Having been previously convicted of driving without motor vehicle insurance, driver was clearly on notice that driving without motor vehicle insurance was a criminal offense; thus, revocation of driver's suspended sentence for commission of the same offense during the period of suspension did not implicate driver's due process rights.  106 H. 391 (App.), 105 P.3d 1197.


Equal protection.

  See also notes to U.S. Const. Amend 14.

  Ordinance creating mechanism through which condominium owners could convert their leasehold interests into fee simple interests was constitutional.  124 F.3d 1150.

  Applicable only to state action not private action.  698 F. Supp. 1496.

  Not violated where city ordinance providing mechanism for transfer of fee simple interest from condominium lessors to lessees did not intentionally discriminate against Native Hawaiians.  802 F. Supp. 326.

  Condominium lease-to-fee ordinance did not violate plaintiff's equal protection rights.  832 F. Supp. 1404.

  No violation, where plaintiff argued that §490:2-725 discriminated among two classes of warranty claimants, and appeared to argue that UCC arbitrarily discriminated among differing classes of defendants, insofar as it granted partial immunity to those in commercial sales without similarly limiting the liability of others potentially liable for industrial diseases.  854 F. Supp. 702.

  Where plaintiffs filed motion for preliminary injunction regarding Act 359 of 1993 Hawaii legislature (relating to Hawaiian sovereignty), as amended in 1994 and 1996, plaintiffs not likely to prevail on constitutional claims under Fourteenth and Fifteenth Amendments of U.S. Constitution, article II, §1 and this section of Hawaii constitution, or Voting Rights Act with regards to native Hawaiian vote.  941 F. Supp. 1529.

  In view of underlying differences between cars and motorcycles, §286-81(1)(A), requiring motorcycle safety helmets, does not violate the equal protection clause.  55 H. 138, 516 P.2d 709.

  Requirement that a woman visitor to an all-male prison wear a brassiere is not invalid.  59 H. 346, 581 P.2d 1164.

  The protection of this section is not necessarily limited to that provided by the Fourteenth Amendment.  60 H. 71, 588 P.2d 394.

  Constitutionality of statute regulating taking of nehu upheld.  60 H. 662, 594 P.2d 130.

  In context of equal protection analysis, right to work does not invoke application of strict scrutiny.  60 H. 662, 594 P.2d 130.

  Rational basis exists for compulsory retirement age for state employees.  63 H. 501, 630 P.2d 629.

  No rational basis for disparate treatment of classes in establishing statute of limitations.  65 H. 26, 647 P.2d 276.

  Certain provisions of motor vehicle insurance law denied equal protection.  65 H. 623, 656 P.2d 736.

  Right to privacy does not invoke strict scrutiny; rational basis for county to require financial disclosure by "regulatory employees".  68 H. 140, 706 P.2d 814.

  Public policy against racial discrimination.  69 H. 238, 738 P.2d 1205.

  Sex is suspect category for purposes of equal protection analysis under this section; §572-1 is presumed to be unconstitutional unless defendant, as agent of State, can show that statute's sex-based classification is justified by compelling state interests, and statute is narrowly drawn to avoid unnecessary abridgments of applicant couples' constitutional rights.  74 H. 530, 852 P.2d 44.

  Where county imposed impermissibly discriminatory tax, county must be given certain options to correct the impermissible discrimination.  81 H. 248, 915 P.2d 1349.

  Section 704-415 does not violate equal protection; State may place burden on insanity acquittee to prove by preponderance of evidence that acquitee should be released.  84 H. 269, 933 P.2d 606.

  Not violated by trial court's redaction of home street addresses and home and work telephone numbers on juror qualification forms where redaction procedure was not administered differently against other similarly situated criminal defendants having jury trials in the first circuit.  85 H. 258, 942 P.2d 522.

  Where violation of misdemeanor offense under §712-1248(1)(d) also constituted violation of felony offense under §712-1247(1)(h), conviction of felony offense would have constituted violation of defendant's due process and equal protection rights.  86 H. 48, 947 P.2d 360.

  Not violated by §431:10C-306 (pre-1997) as applied to persons ineligible for no-fault benefits.  87 H. 297, 955 P.2d 90.

  As chapter 671 rationally furthers legitimate state interest of assuring the provision of affordable health care to Hawaii's citizens by requiring  participation in medical malpractice dispute resolution such that the high cost of  litigation may be avoided, plaintiff not denied equal protection of the laws.  89 H. 188, 970 P.2d 496.

  Not violated by county ordinance classifying time share units into "hotel resort" category where classification was reasonably related to ordinance's stated purpose of eliminating disproportionate tax burdens within that category and classification applied to properties whose actual use was transient or short-term, regardless of whether the units were used personally. 90 H. 334, 978 P.2d 772.

  Clause not violated by §709-906 as State has a legitimate interest in protecting the health, safety, and welfare of its citizens, enactment of §709-906 to address family violence within the community is "legitimate" in protecting Hawaii's citizens, and as including family and household members within scope of §709-906 may reduce or deter family violence by imposing upon violators greater criminal punishment than criminal assault, it is rationally related to the State's interest in preventing incidents of family violence.  93 H. 63, 996 P.2d 268.

  Search warrant did not violate appellant's rights under the U.S. and Hawaii Constitutions although it was not issued against any other bettors; to raise the selective prosecution defense, appellant needed to present sufficient evidence as to why appellant was prosecuted while the other seven bettors were not; reason provided by appellant that detective arbitrarily "classified" appellant as part of a conspiracy did not explain why only appellant was subject to the search warrant nor did it distinguish appellant from other bettors.  104 H. 323, 89 P.3d 823.

  As the imposition of a rent trust fund--requiring tenants to pay rent in exchange for possession for the duration of the dispute--appears rationally related to achieving the purpose of providing landlords with an expeditious alternative to eviction proceedings and tenants with an opportunity to maintain possession so long as rent is paid when properly due, §666-21 does not violate this clause.  107 H. 73, 110 P.3d 397.

  Chapter 584 did not implicate father's fundamental privacy right to procreational autonomy, but rather father's economic interest in not supporting his child, and although father had standing to raise an equal protection challenge to chapter 584, that standing was based on a non-suspect classification, i.e., the biological relationship of fathers to their children; thus, because chapter 584 bears a rational relation to the public welfare, the statute survives rational basis review and father's privacy and equal protection arguments failed.  109 H. 240, 125 P.3d 461.

  No procedural due process violation where prisoner was placed and retained in administrative segregation.  7 H. App. 502, 753 P.2d 816.

  Not violated by §291C-112, which rationally furthers legitimate state interest in protecting health and welfare of public at large by prohibiting use of vehicles parked on public property as places of habitation during certain hours.  82 H. 269 (App.), 921 P.2d 1170.

  Not violated by use of preponderance of evidence standard of proof for §586-5.5 as family and household members not suspect class and rational basis underlying this standard adopted by legislature under chapter 571 for chapter 586 was to facilitate and expedite judicial issuance of protective orders.  85 H. 197 (App.), 940 P.2d 404.

  As a suspect classification or fundamental right was not involved, and based upon dissimilar statutory treatment generally accorded to possession of marijuana as opposed to alcohol, where there was a rational basis for dissimilar punishment, §710-1022 did not violate defendant's right because it imposed a more severe penalty for a prisoner's marijuana possession than for alcohol possession under §710-1023.  92 H. 217 (App.), 990 P.2d 115.

  1998 Amended Child Support Guidelines classification challenged by father was constitutional as it reasonably calculated the child support payable for child without regard to child support owed by the non-custodial parent to other children, whether by a previous court order or a non-adjudicated legal obligation, and reasonably imposed upon the non-custodial parent the burden of proving that exceptional circumstances warrant deviation from the calculated amount.  104 H. 449 (App.), 91 P.3d 1092.


Hawaii Legal Reporter Citations


Due process.

  Mooring permit.  80-1 HLR 800249.

  Vagueness.  81-1 HLR 810147.


Equal protection.

  Beverage containers.  78-2 HLR 78-1478.






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