Date: Tue, 18 Jul 95 14:29:23 PDT From: bjb@macsch.com (Bryan J. Blumberg) HAWAII CODE ANNOTATED Copyright (c) 1988 - 1994 by The Michie Company All rights reserved *** THIS SECTION IS CURRENT THROUGH THE 1994 SUPPLEMENT *** *** (1994 REGULAR SESSION) *** DIVISION 1. GOVERNMENT TITLE 5. STATE FINANCIAL ADMINISTRATION CHAPTER 42D. GRANTS, SUBSIDIES, AND PURCHASES OF SERVICE PART I. GENERAL PROVISIONS HRS @ 42D-3 (1994) FIRST OF TWO VERSIONS OF THIS SECTION @ 42D-3. Conditions for grants, subsidies, and purchase of service agreements. [Effective until July 1, 1996.] Organizations to which a grant, subsidy, or a purchase of service agreement has been awarded, shall agree to comply with the following conditions before receiving the grant, subsidy, or purchase of service agreement: (1) Employ or have under contract persons qualified to engage in the activity to be funded in whole or in part by the State or the judiciary, as the case may be; provided that for nonprofit organizations, no two or more members of a family or kin of the first or second degree shall be employed or under contract by the organization unless specifically permitted in writing by the director of the expending agency for the appropriation; provided further that no salary or benefit increases by the organization shall be funded with public funds unless the increases are agreed to by the director of the expending agency in the contract with the organization; (2) Comply with applicable federal and state laws prohibiting discrimination against any person on the basis of race, color, national origin, religion, creed, sex, age, or physical handicap; (3) Agree not to use public funds for purposes of entertainment or perquisites; (4) Comply with any other requirement as the director may prescribe to ensure adherence by the provider or recipient with federal, state, and county laws; and (5) Allow the expending agency, the director, the committees of the legislative bodies and their staffs, and the legislative auditor full access to records, reports, files, and other related documents in order that the program, management, and fiscal practices of the providers or recipients may be monitored and evaluated to assure the proper and effective expenditure of public funds. HISTORY: L 1991, c 335, pt of @ 1; am L 1992, c 194, @ 4 NOTES: SECTION SET OUT TWICE. --The section above is effective until July 1, 1996. For this section as reenacted effective July 1, 1996, see the following section, also numbered @ 42D-3. EDITOR'S NOTE. --1992 Haw. Sess. Laws, Act 194, @ 20, provided that: "This Act shall take effect on July 1, 1992, and shall be repealed on July 1, 1996; provided that sections 42D-1, 42D-2, 42D-3, 42D-4, 42D-5, 42D-6, 42D-7(a), 42D-8, 42D-9, 42D-12(a), 42D-21(b) and (c), 42D-23, 42D-24(a), 42D-25, 42D-31, 42D-32, 42D-33, and 42D-34 shall be reenacted in the form in which they read on the day before the approval of this Act [approved June 12, 1992]." However, @@ 42D-2, 42D-7(a), 42D-32, 42D-33, and 42D-34 were not amended or repealed by this Act. THE 1992 AMENDMENT, effective July 1, 1992, in paragraph (2) added " " preceding "or physical handicap;". USER NOTE: For more generally applicable notes, see notes under the first section of this subpart, part, chapter, or title. ------------------------------ SECOND OF TWO VERSIONS OF THIS SECTION [@ 42D-3]. Conditions for grants, subsidies, and purchase of service agreements. [Effective July 1, 1996.] Organizations to which a grant, subsidy, or a purchase of service agreement has been awarded, shall agree to comply with the following conditions before receiving the grant, subsidy, or purchase of service agreement: (1) Employ or have under contract persons qualified to engage in the activity to be funded in whole or in part by the State or the judiciary, as the case may be; provided that for nonprofit organizations, no two or more members of a family or kin of the first or second degree shall be employed or under contract by the organization unless specifically permitted in writing by the director of the expending agency for the appropriation; provided further that no salary or benefit increases by the organization shall be funded with public funds unless the increases are agreed to by the director of the expending agency in the contract with the organization; (2) Comply with applicable federal and state laws prohibiting discrimination against any person on the basis of race, color, national origin, religion, creed, sex, age, or physical handicap; (3) Agree not to use public funds for purposes of entertainment or perquisites; (4) Comply with any other requirement as the director may prescribe to ensure adherence by the provider or recipient with federal, state, and county laws; and (5) Allow the expending agency, the director, the committees of the legislative bodies and their staffs, and the legislative auditor full access to records, reports, files, and other related documents in order that the program, management, and fiscal practices of the providers or recipients may be monitored and evaluated to assure the proper and effective expenditure of public funds. HISTORY: L 1991, c 335, pt of @ 1; am L 1992, c 194, @ 4 LEVEL 1 - 2 OF 9 SECTIONS HAWAII CODE ANNOTATED Copyright (c) 1988 - 1994 by The Michie Company All rights reserved *** THIS SECTION IS CURRENT THROUGH THE 1994 SUPPLEMENT *** *** (1994 REGULAR SESSION) *** DIVISION 1. GOVERNMENT TITLE 20. SOCIAL SERVICES [CHAPTER 368]. CIVIL RIGHTS COMMISSION PART I. GENERAL PROVISIONS HRS @ 368-1 (1994) @ 368-1. Purpose and intent The legislature finds and declares that the practice of discrimination because of race, color, religion, age, sex, marital status, national origin, ancestry, or disability in employment, housing, public accommodations, or access to services receiving State financial assistance is against public policy. It is the purpose of this chapter to provide a mechanism which provides for a uniform procedure for the enforcement of the State's discrimination laws. It is the legislature's intent to preserve all existing rights and remedies under such laws. HISTORY: L 1988, c 219, pt of @ 1; am L 1989, c 387, @ 1; am L 1991, c 2, @ 1; am L 1992, c 33, pt of @ 5 NOTES: EDITOR'S NOTE. --Section 2 of 1988 Haw. Sess. Laws, Act 219, provides: "It is the intent of this Act to preserve all existing rights and remedies relating to the enforcement of current discrimination laws, and to this end, this Act shall not be construed to impair any contractual agreement currently in force between the State and the federal Equal Employment Opportunities Commission under Title VII of the Civil Rights Act of 1964." 1991 Haw. Sess. Laws, Act 2, which amended this section, in @ 4 provides: "This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date." The act became effective March 21, 1991. THE 1992 AMENDMENT, effective April 22, 1992, substituted the word "disability" for "handicapped status" in the first sentence. CASE NOTES CLAIM BASED ON HYPOTHETICAL FUTURE CLAIM WAS NOT RIPE. --Plaintiffs were, in effect, asking the court to rule on the constitutionality of the Hawaii Law prohibiting discrimination with regard to @ 378-2, based on a hypothetical future event that may never occur. Therefore, the court dismissed plaintiffs' claims as not ripe. Voluntary Ass'n of Religious Leaders v. Waihee, 800 F. Supp. 882 (D. Haw. 1992). CITED in Foster v. Richardson, 843 F. Supp. 625 (D. Haw. 1994). RESEARCH REFERENCES ALR4th. What constitutes handicap under state legislation forbidding job discrimination on account of handicap. 82 A.L.R.4th 26. LEGAL PERIODICALS UNIVERSITY OF HAWAII LAW REVIEW. Sexual Harassment in the Workplace: Remedies Available to Victims in Hawai"i, 15 U. Haw. L. Rev. 453 (1993). LEVEL 1 - 3 OF 9 SECTIONS HAWAII CODE ANNOTATED Copyright (c) 1988 - 1994 by The Michie Company All rights reserved *** THIS SECTION IS CURRENT THROUGH THE 1994 SUPPLEMENT *** *** (1994 REGULAR SESSION) *** DIVISION 1. GOVERNMENT TITLE 21. LABOR AND INDUSTRIAL RELATIONS CHAPTER 378. EMPLOYMENT PRACTICES PART I. [NEW] DISCRIMINATORY PRACTICES HRS @ 378-1 (1994) THIS SECTION HAS MORE THAN ONE DOCUMENT WITH VARYING EFFECTIVE DATES. @ 378-1. Definitions As used herein: "Arrest and court record" includes any information about an individual having been questioned, apprehended, taken into custody or detention, held for investigation, charged with an offense, served a summons, arrested with or without a warrant, tried, or convicted pursuant to any law enforcement or military authority. "Because of sex" shall include, but is not limited to, because of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other individuals not so affected but similar in their ability or inability to work. "Commission" means the civil rights commission. "Disability" means the state of having a physical or mental impairment which substantially limits one or more major life activities, having a record of such an impairment, or being regarded as having such an impairment. "Employer" means any person, including the State or any of its political subdivisions and any agent of such person, having one or more employees, but shall not include the United States. "Employment" means any service performed by an individual for another person under any contract of hire, express or implied, oral or written, whether lawfully or unlawfully entered into. Employment does not include services by an individual employed as a domestic in the home of any person. "Employment agency" means any person engaged in the business of providing employment information, procuring employment for applicants, or providing employees for placement with employers upon request. "Labor organization" means any organization which exists and is constituted for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, terms or conditions of employment, or of other mutual aid or protection. "Marital status" means the state of being married or being single. "Person" means one or more individuals, and includes, but is not limited to, partnerships, associations, or corporations, legal representatives, trustees, trustees in bankruptcy, receivers, or the State or any of its political subdivisions. " means having a preference for heterosexuality, homosexuality, or bisexuality, having a history of any one or more of these preferences, or being identified with any one or more of these preferences. " shall not be construed to protect conduct otherwise proscribed by law. HISTORY: L 1981, c 94, pt of @ 2; am L 1986, c 223, @@ 1, 2; am L 1989, c 386, @@ 3, 17; am L 1991, c 2, @ 2; am L 1992, c 33, pt of @ 5 NOTES: EDITOR'S NOTE. --Section 27 of 1989 Haw. Sess. Laws, Act 386, provides: "It is the intent of this Act to preserve all existing rights and remedies relating to the enforcement of discriminatory practices under current laws, and to this end, this Act shall not be construed to impair any contractual agreement currently in force between the State and the federal Equal Employment Opportunities Commission under Title VII of the Civil Rights Act of 1964, or to affect any rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date [January 1, 1991]." Section 28 of 1989 Haw. Sess. Laws, Act 386, provides: "It is the intent of the legislature that the civil rights commission share overlapping jurisdiction over complaints filed under chapters 489 and 515 and part I of chapter 378, Hawaii Revised Statutes, with the agencies which currently perform enforcement functions under this part. Jurisdiction and enforcement responsibilities shall be transferred after July 1, 1990, according to the transition plan developed by the commission and the departments and rules to be promulgated." Section 29 of 1989 Haw. Sess. Laws, Act 386, provides: "The civil rights commission shall begin its operations by hiring its director, deputy director, and professional and necessary clerical staff. During the 1989-90 fiscal year, the commission shall adopt rules and draft a transition plan for the transfer of jurisdiction, functions, and records from the current enforcement agencies. Those agencies shall work with the civil rights commission on the transition plan." Section 30 of 1989 Haw. Sess. Laws, Act 386, provides: "The civil rights commission shall assume jurisdiction over complaints filed under chapter 368 only upon the transfer of jurisdiction pursuant to the transition plan, agreements between the commission and the current enforcement agencies, and rules adopted by the commission. Until that time, all complaints shall be processed by those agencies pursuant to chapters 489 and 515 and part I of chapter 378. It is the intent of the legislature that after July 1, 1990, and until the transfer of enforcement jurisdiction to the commission, that the commission staff shall assist the department of labor and industrial relations where possible in processing complaints and eliminating backlog." Section 31 of 1989 Haw. Sess. Laws, Act 386, provides: "The civil rights commission, prior to the convening of the 1990 regular session, shall prepare and submit to the legislature, a transition plan which includes specifications for the transfer of all permanent positions within the employment practices branch of the department of labor and industrial relations." 1991 Haw. Sess. Laws, Act 2, which amended this section, in @ 4 provided: "This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date." The Act became effective March 21, 1991. THE 1992 AMENDMENT, effective April 22, 1992, substituted the word "Disability" for "Handicapped status" in the present definition of "Disability". CASE NOTES CITED in Johnson v. United Airlines, 680 F. Supp. 1425 (D. Haw. 1987); Hall v. State, 7 Haw. App. 274, 756 P.2d 1048 (1988). RESEARCH REFERENCES ALR4th. Discrimination "because of handicap" or "on the basis of handicap" under state statutes prohibiting job discrimination on account of handicap. 81 A.L.R.4th 144. LEGAL PERIODICALS UNIVERSITY OF HAWAII LAW REVIEW. Sexual Harassment in the Workplace: Remedies Available to Victims in Hawai"i, 15 U. Haw. L. Rev. 453 (1993). NOTES APPLICABLE TO ENTIRE TITLE EDITOR'S NOTE. --As to a four-year job-sharing pilot project to be conducted by the executive branch, the judicial branch, the department of education, the University of Hawaii, the legislative reference bureau, the legislative auditor and the office of ombudsman, see 1989 Haw. Sess. Laws, Act 244. NOTES APPLICABLE TO ENTIRE CHAPTER CROSS REFERENCES. --As to group life insurance for labor unions, see @ 431:10D-204. RESEARCH REFERENCES ALR4th. What constitutes unfair labor practice under state public employee relations acts. 9 A.L.R.4th 20. At-will employee, modern status of rule. 12 A.L.R.4th 544, 32 A.L.R.4th 1221, 33 A.L.R.4th 120. Labor union's liability for injury or death allegedly resulting from unsafe working conditions. 14 A.L.R.4th 1161. Employee's refusal to take lie detector test as barring unemployment compensation. 18 A.L.R.4th 307. Who are employees forbidden to strike under state enactments or state common law rules prohibiting strikes by public employees or stated classes of public employees. 22 A.L.R.4th 1103. Loss of qualified privilege to publish employee's work record. 24 A.L.R.4th 144. Validity, construction, and application of statute requiring employer to provide written statement of employee's service record and reason for termination. 24 A.L.R.4th 1115. Discharge of employee for complaining about wages, hours, or working conditions. 35 A.L.R.4th 1031. Right of employee to injunction preventing employer from exposing employee to tobacco smoke in workplace. 37 A.L.R.4th 480. Modern status of rule that acceptance of check purporting to be final settlement of disputed amount constitutes accord and satisfaction. 42 A.L.R.4th 12. Retaliatory discharge: right to jury trial in action for retaliatory discharge from employment. 52 A.L.R.4th 1141. Accommodation requirement under state legislation forbidding job discrimination on account of handicap. 76 A.L.R.4th 310. Handicap as job disqualification under state legislation forbidding job discrimination on account of handicap. 78 A.L.R.4th 265. Damages and other relief under state legislation forbidding job discrimination on account of handicap. 78 A.L.R.4th 435. Admissibility of lie detector test results, or of offer or refusal to take test, in attorney disciplinary proceeding. 79 A.L.R.4th 576. LEGAL PERIODICALS HAWAII BAR JOURNAL. Article, Canadian Pacific Cases: Kinoshita & Nakashima: What Really Happened to the Employer?, 22 Haw. B.J. 75 (1989). NOTES APPLICABLE TO ENTIRE PART CROSS REFERENCES. --As to the Civil Rights Commission, see Chapter 368. LEVEL 1 - 4 OF 9 SECTIONS HAWAII CODE ANNOTATED Copyright (c) 1988 - 1994 by The Michie Company All rights reserved *** THIS SECTION IS CURRENT THROUGH THE 1994 SUPPLEMENT *** *** (1994 REGULAR SESSION) *** DIVISION 1. GOVERNMENT TITLE 21. LABOR AND INDUSTRIAL RELATIONS CHAPTER 378. EMPLOYMENT PRACTICES PART I. [NEW] DISCRIMINATORY PRACTICES HRS @ 378-2 (1994) @ 378-2. Discriminatory practices made unlawful; offenses defined It shall be an unlawful discriminatory practice: (1) Because of race, sex, age, religion, color, ancestry, disability, marital status, or arrest and court record: (A) For any employer to refuse to hire or employ or to bar or discharge from employment, or otherwise to discriminate against any individual in compensation or in the terms, conditions, or privileges of employment; (B) For any employment agency to fail or refuse to refer for employment, or to classify or otherwise to discriminate against, any individual; (C) For any employer or employment agency to print, circulate, or cause to be printed or circulated any statement, advertisement, or publication or to use any form of application for employment or to make any inquiry in connection with prospective employment, which expresses, directly or indirectly, any limitation, specification, or discrimination; (D) For any labor organization to exclude or expel from its membership any individual or to discriminate in any way against any of its members, employer, or employees; or (E) For any employer or labor organization to refuse to enter into an apprenticeship agreement as defined in section 372-2; provided that no apprentice shall be less than sixteen years of age; (2) For any employer, labor organization, or employment agency to discharge, expel, or otherwise discriminate against any individual because the individual has opposed any practice forbidden by this part or has filed a complaint, testified, or assisted in any proceeding respecting the discriminatory practices prohibited under this part; (3) For any person whether an employer, employee, or not, to aid, abet, incite, compel, or coerce the doing of any of the discriminatory practices forbidden by this part, or to attempt to do so; (4) For any employer to violate the provisions of section 121-43 relating to nonforfeiture for absence by members of the national guard; (5) For any employer to refuse to hire or employ or to bar or discharge from employment, any individual because of assignment of income for the purpose of satisfying the individual's child support obligations as provided for under section 571-52; or (6) For any employer, labor organization, or employment agency to exclude or otherwise deny equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association. HISTORY: L 1981, c 94, pt of @ 2; am L 1985, c 177, @ 1; am L 1986, c 223, @ 3; am L 1991, c 2, @ 3; am L 1992, c 33, pt of @ 5; am L 1994, c 88, @ 1 NOTES: EDITOR'S NOTE. --1991 Haw. Sess. Laws, Act 2, which amended this section, in @ 4 provided: "This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date." The Act became effective March 21, 1991. 1994 Haw. Sess. Laws, Act 88, @ 4, provides that the Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before June 7, 1994. THE 1992 AMENDMENT, effective April 22, 1992, substituted the word "disability" for "handicapped status" in the introductory paragraph of subsection (1). THE 1994 AMENDMENT, effective June 7, 1994, added paragraph (6), and made minor changes in style. CROSS REFERENCES. --As to employment agency prohibitions, see @ 373-11. As to unlawful lie detector test, see @ 378-26.5. CASE NOTES AGE DISCRIMINATION. --University's employment policy, which provided an elaborate procedure for determining that persons were the most qualified individuals for the job, but, after so determining, foreclosed employment to them solely because they had reached age 65, was not reasonably related to any cognizable state interest. Nelson v. Miwa, 56 Haw. 601, 546 P.2d 1005 (1976) (decided under prior law). DISCRIMINATION WITH REGARD TO --Where plaintiffs were, in effect, asking the court to rule on the constitutionality of this section, prohibiting discrimination with regard to based on a hypothetical future event that may never occur, the court dismissed plaintiffs' claims as not ripe. Voluntary Ass'n of Religious Leaders v. Waihee, 800 F. Supp. 882 (D. Haw. 1992). DISCHARGE FOR DRUG ACTIVITY. --An airline did not violate this section when it discharged certain employees following their arrest for conspiracy to promote cocaine. The discharges were not based on the "mere fact" of the arrest and court record, but instead were due to the perception that the employees were involved in drug-related activity. Kinoshita v. Canadian Pac. Airlines, 803 F.2d 471 (9th Cir. 1986). DISCHARGE OF MARRIED COUPLE FOR VIOLATING COMPANY POLICY forbidding employees from engaging in conflicting business transactions did not violate either the Employment Practices Act or the Married Woman's Act, where, although the wife agreed to divest herself of conflicting interests, the husband would not agree. Moore v. Honeywell Information Sys., 558 F. Supp. 1229 (D. Haw. 1983). TERMINATION MUST FALL WITHIN EXCEPTION. --The enforcement of hotel employer policy which provides: "[i]f they [two employees] marry after being employed here, one of the two will be asked to transfer or resign" violates the marital status antidiscrimination provision of this section unless the termination resulting from the policy falls within one of the exceptions set forth in @ 378-3. Ross v. Stouffer Hotel Co., 72 Haw. 350, 816 P.2d 302 (1991). DISMISSAL OF WRONGFUL TERMINATION HELD PROPER. --Plaintiff alleging wrongful termination from her job may have had such a claim based on breach of contract due to statements in employer's handbook; however, where plaintiff's complaint based the wrongful termination claim on only two grounds, breach of the implied duty of good faith and fair dealing and the public policy exception, plaintiff's wrongful termination claims were deficient and were dismissed. Hew-Len v. F.W. Woolworth, 737 F. Supp. 1104 (D. Haw. 1990). CITED in Hyatt Corp. v. Honolulu Liquor Comm'n, 69 Haw. 238, 738 P.2d 1205 (1987); Lui v. Intercontinental Hotels Corp., 634 F. Supp. 684 (D. Haw. 1986); Lapinad v. Pacific Oldsmobile-GMC, Inc., 679 F. Supp. 991 (D. Haw. 1988); Howard v. Daiichiya-Love's Bakery, Inc., 714 F. Supp. 1108 (D. Haw. 1989). RESEARCH REFERENCES ALR4th. Award of front pay under state job discrimination statutes. 74 A.L.R.4th 746. LEGAL PERIODICALS HAWAII BAR JOURNAL. Article, Canadian Pacific Cases: Kinoshita & Nakashima: What Really Happened to the Employer?, 22 Haw. B.J. 75 (1989). UNIVERSITY OF HAWAII LAW REVIEW. Article, Two Growing Procedural Defenses in Common Law Wrongful Discharge Cases--Preemption and Res Judicata, 11 U. Haw. L. Rev. 143 (1989). Note, Judicial Exception to the "Employment-at-Will" Doctrine, 9 U. Haw. L. Rev. 783 (1987). USER NOTE: For more generally applicable notes, see notes under the first section of this subpart, part, chapter, or title. LEVEL 1 - 5 OF 9 SECTIONS HAWAII CODE ANNOTATED Copyright (c) 1988 - 1994 by The Michie Company All rights reserved *** THIS SECTION IS CURRENT THROUGH THE 1994 SUPPLEMENT *** *** (1994 REGULAR SESSION) *** DIVISION 1. GOVERNMENT TITLE 21. LABOR AND INDUSTRIAL RELATIONS CHAPTER 378. EMPLOYMENT PRACTICES PART I. [NEW] DISCRIMINATORY PRACTICES HRS @ 378-3 (1994) @ 378-3. Exceptions Nothing in this part shall be deemed to: (1) Repeal or affect any law, ordinance, or government rule having the force and effect of law; (2) Prohibit or prevent the establishment and maintenance of bona fide occupational qualifications reasonably necessary to the normal operation of a particular business or enterprise, and that have a substantial relationship to the functions and responsibilities of prospective or continued employment; (3) Prohibit or prevent an employer, employment agency, or labor organization from refusing to hire, refer, or discharge any individual for reasons relating to the ability of the individual to perform the work in question; (4) Affect the operation of the terms or conditions of any bona fide retirement, pension, employee benefit, or insurance plan that is not intended to evade the purpose of this chapter; provided that this exception shall not be construed to permit any employee plan to set a maximum age requirement for hiring or a mandatory retirement age; (5) Prohibit or prevent any religious or denominational institution or organization, or any organization operated for charitable or educational purposes, that is operated, supervised, or controlled by or in connection with a religious organization, from giving preference to individuals of the same religion or denomination or from making a selection calculated to promote the religious principles for which the organization is established or maintained; (6) Conflict with or affect the application of security regulations or rules in employment established by the United States or the State; (7) Require the employer to execute unreasonable structural changes or expensive equipment alterations to accommodate the employment of a person with a disability; (8) Prohibit or prevent the department of education or private schools from considering criminal convictions in determining whether a prospective employee is suited to working in close proximity to children; (9) Prohibit or prevent any financial institution in which deposits are insured by a federal agency having jurisdiction over the financial institution from denying employment to or discharging from employment any person who has been convicted of any criminal offense involving dishonesty or a breach of trust, unless it has the prior written consent of the federal agency having jurisdiction over the financial institution to hire or retain the person; (10) Preclude any employee from bringing a civil action for sexual harassment or sexual assault and infliction of emotional distress or invasion of privacy related thereto; provided that notwithstanding section 368-12, the commission shall issue a right to sue on a complaint filed with the commission if it determines that a civil action alleging similar facts has been filed in circuit court; or (11) Require the employer to accommodate the needs of a nondisabled person associated with or related to a person with a disability in any way not required by Title I of the Americans with Disabilities Act. HISTORY: L 1981, c 94, pt of @ 2; am L 1984, c 85, @ 4; am L 1985, c 162, @ 1; am L 1990, c 257, @ 3; am L 1990, c 262, @ 2; am L 1992, c 33, @ 3; am L 1992, c 275, @ 1; am L 1994, c 88, @ 2 NOTES: EDITOR'S NOTE. --1990 Haw. Sess. Laws, Act 257, which amended this section, in @ 7 provides that the act shall be implemented to the extent resources are available. Both 1990 Haw. Sess. Laws, Act 257, @ 3 and 1990 Haw. Sess. Laws, Act 262, @ 2 added a paragraph (8). The paragraph added by Act 262 was designated paragraph (9) and "or" was added at the end of the paragraph added by Act 257. 1994 Haw. Sess. Laws, Act 88, @ 4, provides that the Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before June 7, 1994. THE 1992 AMENDMENTS. --1992 Haw. Sess. Laws, Act 33, @ 3, effective April 22, 1992, combined the former subparagraph (4)(A) with present paragraph (4) by deleting a colon following "provided that" and substituting "this" for "This"; deleted former subparagraph (4)(B) which read: "Any existing bona fide retirement, pension, employee benefit, or insurance plan or existing bargaining agreement shall be exempt from this paragraph for two years after April 30, 1984, or until the termination of the plan or agreement, whichever occurs first;"; in paragraph (6) added "or rules" following "the application of security regulations"; at the end of paragraph (7) substituted "person with a disability;" for "handicapped persons;" and made minor changes in punctuation and style. 1992 Haw. Sess. Laws, Act 275, @ 1, effective June 19, 1992, deleted former subparagraph (4)(B); added paragraph (10); and made minor changes in punctuation and style. THE 1994 AMENDMENT, effective June 7, 1994, added paragraph (11), and made minor changes in style. CASE NOTES TERMINATION MUST FALL WITHIN EXCEPTION. --The enforcement of hotel employer policy which provides: "[i]f they [two employees] marry after being employed here, one of the two will be asked to transfer or resign" violates the marital status antidiscrimination provision of @ 378-2 unless the termination resulting from the policy falls within one of the exceptions set forth in this section. Ross v. Stouffer Hotel Co., 72 Haw. 350, 816 P.2d 302 (1991). CLAIM BASED ON HYPOTHETICAL FUTURE CLAIM WAS NOT RIPE. --Where plaintiffs were, in effect, asking the court to rule on the constitutionality of the Hawaii law prohibiting discrimination with regard to @ 378-2, based on a hypothetical future event that may never occur, the court dismissed plaintiffs' claims as not ripe. Voluntary Ass'n of Religious Leaders v. Waihee, 800 F. Supp. 882 (D. Haw. 1992). OPINIONS OF ATTORNEY GENERAL MANDATORY RETIREMENT AGE. --Section 88-73 and paragraph (4) of this section, which in essence eliminate mandatory retirement in public and private employment, necessarily reflect a statewide concern. Therefore, a board of regents' policy setting forth mandatory retirement for university employees would be unconstitutional under Haw. Const., Art. X, @ 6, since it would necessarily conflict with the retirement rights afforded to public employees under @ 88-73 and would constitute a discriminatory employment practice prohibited by this chapter. Op. Att'y Gen. No. 84-6 (1984). Even negotiated provisions on mandatory retirement age in employee plans or bargaining agreements are prohibited. Op. Att'y Gen. No. 84-6 (1984). The board of regents did not exceed its authority under Haw. Const., Art. X, @ 6, in negotiating the mandatory retirement age provision in the 1983-1985 collective bargaining agreement since this agreement set a mandatory retirement age of 70 for faculty members and therefore was consistent with state law as it existed at the time the contract was executed on March 30, 1984. Op. Att'y Gen. No. 84-6 (1984). USER NOTE: For more generally applicable notes, see notes under the first section of this subpart, part, chapter, or title. LEVEL 1 - 6 OF 9 SECTIONS HAWAII CODE ANNOTATED Copyright (c) 1988 - 1994 by The Michie Company All rights reserved *** THIS SECTION IS CURRENT THROUGH THE 1994 SUPPLEMENT *** *** (1994 REGULAR SESSION) *** DIVISION 3. PROPERTY; FAMILY TITLE 31. FAMILY CHAPTER 572. MARRIAGE PART I. REQUISITES, PROCEDURES HRS @ 572-1 (1994) @ 572-1. Requisites of valid marriage contract In order to make valid the marriage contract, which shall be only between a man and a woman, it shall be necessary that: (1) The respective parties do not stand in relation to each other of ancestor and descendant of any degree whatsoever, brother and sister of the half as well as to the whole blood, uncle and niece, aunt and nephew, whether the relationship is legitimate or illegitimate; (2) Each of the parties at the time of contracting the marriage is at least sixteen years of age; provided that with the written approval of the family court of the circuit within which the minor resides, it shall be lawful for a person under the age of sixteen years, but in no event under the age of fifteen years, to marry, subject to section 572-2; (3) The man does not at the time have any lawful wife living and that the woman does not at the time have any lawful husband living; (4) Consent of neither party to the marriage has been obtained by force, duress, or fraud; (5) Neither of the parties is a person afflicted with any loathsome disease concealed from, and unknown to, the other party; (6) The man and woman to be married in the State shall have duly obtained a license for that purpose from the agent appointed to grant marriage licenses; and (7) The marriage ceremony be performed in the State by a person or society with a valid license to solemnize marriages and the man and the woman to be married and the person performing the marriage ceremony be all physically present at the same place and time for the marriage ceremony. HISTORY: L 1872, c 23, @ 1; am L 1903, c 28, @ 1; am L 1907, c 42, @ 1; am L 1913, c 8, @ 1; RL 1925, @ 2943; RL 1935, @ 4630; am L 1935, c 185, @ 1; am L 1937, c 59, @ 1; am L 1939, c 122, @ 1; RL 1945, @ 12351; am L 1949, c 53, @ 29; am L 1953, c 79, @ 1; RL 1955, @ 323-1; am L 1965, c 232, @ 1; HRS @ 572-1; am L 1969, c 152, @ 1; am L 1970, c 9, @ 1; am L 1972, c 182, @ 1 and c 192, pt of @ 1; am L 1978, c 74, @ 1; am L 1981, c 202, @ 1; am L 1984, c 119, @ 1; am L 1994, c 217, @ 3 NOTES: EDITOR'S NOTE. --1994 Haw. Sess. Laws, Act 217, @ 1, 6, and 8 provide: "SECTION 1. Legislative findings and purpose. The legislature finds that Hawaii's marriage licensing laws were originally and are presently intended to apply only to male-female couples, not same-sex couples. This determination is one of policy. Any change in these laws must come from either the legislature or a constitutional convention, not the judiciary. The Hawaii supreme court's recent plurality opinion in Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993), effaces the recognized tradition of marriage in this State and, in so doing, impermissibly negates the constitutionally mandated role of the legislature as a co-equal, coordinate branch of government. "In Baehr v. Lewin, the Hawaii supreme court was asked to review whether the refusal of the department of health to issue marriage licenses to same-sex couples violated the couples' constitutional rights, inter alia, the right to equal protection of the laws under Article I, section 5 of the Hawaii Constitution. The court, in analyzing section 572-1, declared that its plain language restricted the marital relation to a male and a female. The court held that section 572-1, on its face, discriminated on the basis of sex against the same-sex couples in the exercise of the civil rights of marriage, thereby implicating the equal protection clause of the Hawaii Constitution. "The court in Baehr further held that sex was a suspect category for purposes of equal protection analysis, thereby subjecting section 572-1 to strict scrutiny. Under strict scrutiny analysis, a statute is presumed to be unconstitutional unless compelling state interests are shown which justify the statute's impermissible classification. The court therefore held that section 572-1 is presumed to be unconstitutional unless the State can show that: (1) the statute's sex-based classification is justified by compelling state interests; and (2) the statute is narrowly drawn to avoid unnecessary abridgments of the same-sex couple's constitutional rights. "Although the Hawaii supreme court has the right to pass on the constitutionality of section 572-1, Hawaii Revised Statutes, the question before the court in Baehr was and is essentially one of policy, thereby rendering it inappropriate for judicial response. Policy determinations of this nature are clearly for nonjudicial discretion, and are more properly left to the legislature or the people of the State through a constitutional convention. Contrary to the plurality's assertion that it was not engaging in judicial legislation, the court's intervention in this matter encroached on the functions of the legislature in its law-making function, thereby impinging on the separation of powers of the respective branches of government. "Separation of powers is necessary for the functional division of governmental power that is the foundation of our constitutional democracy. The Hawaii state legislature, as the elected representatives of the people of the State of Hawaii, is, along with the executive branch, the appropriate source of major policy initiatives. The Hawaii supreme court in Baehr has in effect substituted its own judgment for the will of the people of this State. Deferral of this matter to the legislature therefore would have expressed the respect due a coordinate branch of government. "In addition to the plurality's failure to defer to the policy judgment of the legislature, the court also failed to afford sufficient weight to the strong presumption that every statute is constitutional. In the view of the legislature, the parties in Baehr challenging the constitutionality of section 572-1, Hawaii Revised Statutes, failed to overcome this presumption. "The plurality in Baehr relied on the observation in Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967), that any state's powers to regulate marriage are subject to the constraints imposed by the constitutional right to the equal protection of the laws. However, as the dissent in Baehr correctly points out, the plaintiff in Loving was not claiming a right to same-sex marriage, but instead involved a marriage between a white male and a black female whose marriage was refused recognition under Virginia's miscegenation laws. The United States Supreme Court in Loving relied on the Fourteenth Amendment to the United States Constitution in holding that Virginia's statute containing a race-based classification violated the equal protection of the laws. "The Fourteenth Amendment, a post-Civil War amendment added to the Constitution in 1868, was designed to expand the Thirteenth Amendment as the basis for federal civil rights authority, and was also aimed at forcing southern compliance with newly established political rights for blacks. The language of the Fourteenth Amendment not only reversed the citizenship holding in Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 15 L. Ed. 691 (1857), but allowed federal authority to be used to protect and advance the civil rights of black citizens. The Supreme Court later held in Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 2d 873 (1954), that racial segregation in public schools imposed by law violated the Fourteenth Amendment's equal protection clause. "The United States Supreme Court in Loving made clear that the Fourteenth Amendment was intended to eliminate racial discrimination, and that restricting the freedom to marry solely because of racial classifications violated the central meaning of the equal protection clause. In contrast, the Hawaii supreme court in Baehr has interpreted Article I, section 5 in a manner not intended by the framers of Hawaii's Constitution, by analyzing the equal protection issue presented in that case in terms of or preference classification in place of gender classifications. The plurality's reliance on the Loving decision in Baehr is therefore inapposite to its interpretation of Article I, section 5, of the Hawaii Constitution with respect to same-sex marriages. Although the State of Hawaii clearly has the power to regulate marriages in the State, which in turn is subject to the constraints imposed by the right to equal protection of the laws, the invalidation of the race-based classification in Loving is simply not parallel to the sex-based classification in Baehr. "The Hawaii Constitution's equal protection clause differs from that of the United States Constitution in part by the former's inclusion of the word "sex'. Article I, section 5 provides in pertinent part that "[n]o person shall 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...sex....' The Baehr Court correctly points out that, by its plain language, this section "prohibits state-sanctioned discrimination against any person in the exercise of his or her civil rights on the basis of sex'. Id., slip op. at 29. However, the plurality's subsequent interpretation of the word "sex' in this context demonstrated that although the opinion purports to express the word "sex' in terms of "gender', in reality the court misinterprets the word "sex', in the context of Article I, section 5, in terms of " . This interpretation was not intended by the framers of Hawaii's Constitution. "The word "sex' was included in the equal protection clause in Hawaii's Constitution as adopted by the people of the State in 1950. No discussion was made regarding inclusion of this word in the testimony or other minutes of the first Constitutional Convention. The only other reference to "Sex' in the Constitution is in Article I, section 3 of the Hawaii Constitution, Hawaii's version of the equal amendment adopted in 1972, which provides in relevant part that "[e]quality of rights under the law shall not be denied or abridged by the State on account of sex.' The legislative history of this amendment analyzes this word in terms of gender rather than Your Committee believes all persons are free by nature and are equal in their inherent and inalienable rights. ...These rights cannot endure unless women along with men recognize and possess their corresponding obligations, responsibilities, and privileges equally. It is the affirmative duty of the people through their elected representative to ensure that no person shall be discriminated for so long as the precept of our government, the equality of all people, outweighs the purpose of distinguishing the person by class. "Standing Committee Report No. 394-72 (Judiciary) on S.B. No. 1408-72. During the latest Constitutional Convention in 1978, there was no debate regarding the word "sex' in Article I, section 5. If the delegates to the respective conventions had intended "sex' to mean ", there most likely would have been a lively discussion on this issue. The fact that there is no debate at all on this issue lends strong credence to the implication that "sex' meant "gender'. "In addition, in enacting legislation prohibiting the discrimination on the basis of sex, the legislature distinguished between sex (in the sense of "gender') and For example, in section 368-1, Hawaii Revised Statutes, the legislature found that the practice of discrimination because of "race, color, religion, age, sex, marital status, national origin, ancestry, or disability in employment, housing, public accommodations, or access to services receiving state financial assistance is against public policy.' See also sections 42D-3(2) and 378-2(1), Hawaii Revised Statutes. "Viewed from this context, it is apparent that section 572-1, Hawaii Revised Statutes, and all of Hawaii's marriage licensing statutes, do not deny equal protection of the laws under Article I, section 5 of the Hawaii Constitution. There simply is no class of individuals under that section that have been discriminated against in relation to another group of similarly situated individuals. Because all men and all women are treated alike by section 572-1, there is no sex- (i.e., gender-) based classification. "The legislature finds that the prohibition against discrimination on the basis of sex in Article I, section 5 of the Hawaii Constitution is for the purpose of protecting gender equality. In other words, "sex' means gender, not for purposes of both the marriage licensing statutes and Article I of the Hawaii Constitution. The court in Baehr, in analyzing the equal protection issue presented in that case in terms of or preference classifications rather than gender classifications, impermissibly expanded the intention of that word as it appears both in the marriage statutes and the Constitution. This interpretation was not the intent of the framers of Hawaii's Constitution in 1950, nor has it ever been the intent of the Hawaii legislature. Any change in this purely policy determination lies wholly within the province of the legislature or a constitutional convention. "The legislature further finds that section 572-1, Hawaii Revised Statutes, and all of Hawaii's marriage licensing statutes, as originally enacted, were intended to foster and protect the propagation of the human race through male-female marriages. This original intent was acknowledged by the court in Baehr in its discussion of the fundamental right to marry: The United States Supreme Court first characterized the right of marriage as fundamental in Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S. Ct. 110, 86 L. Ed. 1655 (1942). In Skinner, the right to marry was inextricably linked to the right of procreation. The dispute before the Court arose out of an Oklahoma statute that allowed the state to sterilize "habitual criminals" without their consent. In striking down the statute, the Skinner court indicated that it was dealing . . . with legislation which involve[d] one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race." Id. at 5441, 62 S. Ct. at 1113.... "Baehr v. Lewin, slip op. at 18-19 (emphasis added). In addition, the Hawaii supreme court expressed the same sentiments by quoting with approval from the United States Supreme Court's opinion in Zablocki v. Redhail, 434 U.S. 374, 98 S. Ct. 673, 54 L. Ed. 2d 618) (1978): Long ago, in Maynard v. Hill, 125 U.S. 190, 8 S. Ct. 723, 31 L. Ed. 654 (1888), the Court characterized marriage as "the most important relation in life," id., at 205, 8 S. Ct., at 726, and as "the foundation of the family and of society, without which there would be neither civilization nor progress," id., at 211, 8 S. Ct., at 729. In Meyer v. Nebraska, 262 U.S. 390, 434 S. Ct. 625, 67 L. Ed. 1042 (1923), the Court recognized that the right "to marry, establish a home and bring up children" is a central part of the liberty protected by the Due Process Clause .... Id., slip op. at 20 (citations omitted). "Although the Court in Baehr cited these United States Supreme Court opinions in the context of rejecting the contention that the right to marry, as protected by Article I, section 6 of the Hawaii Constitution, extends to same-sex couples, the United States Supreme Court's underlying rationale for the enactment of marriage licensing laws in general applies equally to Hawaii's marriage licensing statutes. As the plurality in Baehr stated, "the least that can be said is that [the Skinner Court] was obviously contemplating unions between men and women when it ruled that the right to marriage was fundamental." Id., slip op. at 19. "Consistent with the traditional definition of marriage -- man and woman -- as acknowledged in Baehr, at the present time neither this State, nor any of the other states, sanctions by statute any marriage configuration other than unions between men and women. "The legislature notes that section 572-1 was amended by Act 119, Session Laws 1984, by deleting the requirement that marriage applicants show that they are not impotent or not physically incapable of entering into a marriage. The intent of this amendment was to remove any impediment that may have prevented persons who were physically handicapped or elderly, or who had temporary physical limitations, from entering into a valid marriage. This amendment, however, does not detract from the original purpose of section 572-1. As such, the statute's sex-based classification is clearly designed to promote this legislative purpose and bears a reasonable relationship to that purpose. "The legislature finds that Hawaii's marriage licensing statutes, both as originally enacted and at present, are intended to apply only to male-female couples, not same-sex couples. The Court in Baehr has effectively usurped the role of the Hawaii state legislature on this issue by substituting its own policy judgment for that of the people of Hawaii. The legislature stresses that since the determination of the nature of the marital relationship, together with its rights and benefits, falls more appropriately within the province of the legislature as one of policy, this issue is more properly dealt with in the legislative rather than judicial forum. Under the principle of separation of powers, the Court therefore should have deferred to the legislature in its determination and interpretation of the marriage contract. The purpose of this Act is to: (1) Emphasize that expanding the definitions of "sex" in Article I, section 5, of the Hawaii Constitution and "marriage" in chapter 572, Hawaii Revised Statutes, is a policy question within the exclusive purview of legislative bodies, to wit, the legislature or the constitutional convention and not the courts; (2) Expressly reiterate the original intent of the legislature in enacting section 572-1, Hawaii Revised Statutes, that that section, and all of Hawaii's marriage licensing statutes, both originally and presently are intended to apply only to male-female, not same-sex couples, and that this application of the statute is consistent with Article I, section 5, of the Hawaii Constitution; and (3) Understanding that same-sex relationships do exist: (A) Provide assurances consistent with Article I, section 4, of the Hawaii Constitution that the laws of the State do not prohibit religious organizations from solemnizing same-sex relationships; and (B) Provide for the establishment of a commission on and the law to conduct a study and present a report of its findings to the legislature prior to the convening of the regular session of 1955. "In reviewing or interpreting section 572-1, or any of Hawaii's marriage licensing statutes, the judiciary is directed to review and interpret those statutes in light of these legislative findings". "SECTION 6. There is created, effective upon approval of this Act, a commission on and the law. The commission shall consist of eleven members, ten appointed by the governor of the State of Hawaii, of which two shall be representatives from the Hawaii Civil Rights Commission; two shall be representatives from the American Friends Service Committee; two shall be representatives from the Catholic Church diocese; two shall be representatives from the Church of Latter-Day Saints; two shall be representatives from the Hawaii Equal Rights Marriage Project; and an eleventh member, who shall be the chairperson of the family law section of the Hawaii State Bar Association as of January 1, 1994, who shall serve as chairperson of the commission. Should the chairperson of the family law section of the Hawaii State Bar Association decline to serve, the president of the senate and the speaker of the house of representatives shall choose, at their joint discretion, a person with expertise in the law of domestic relations to serve as chairperson of the commission. The members of the commission shall serve without compensation and the commission shall be attached for administrative purposes to the legislative reference bureau, which shall provide staff support to the commission. The purpose of the commission shall be to: "(1) Examine the precise legal and economic benefits extended to opposite-sex couples, but not to same-sex couples; "(2) Examine whether substantial public policy reasons exist to extend such benefits to same-sex couples and the reasons therefore; and "(3) Recommend appropriate action which may be taken by the legislature no later than twenty days prior to the convening of the 1995 regular session. "The commission shall submit a report on its findings to the legislature no later than twenty days prior to the convening of the 1995 regular session. "SECTION 8. This Act shall apply retroactively to any marriage license application pending on the effective date of this Act, or which has been rejected by the department of health before the effective date of this Act". THE 1994 AMENDMENT, effective June 22, 1994, in the first paragraph inserted "which shall be only between a man and a woman,", and in paragraph (6) substituted "The man and woman to be married in the State shall have duly obtained" for "It shall in no case be lawful for any person to marry in the State without", and deleted "duly obtained" following "purpose". CASE NOTES MARRIAGE HAS POSITIVE AND NEGATIVE LEGAL CONSEQUENCES for each party. A person who is not legally married does not qualify for positive legal consequences of marriage. Aehegma v. Aehegma, 8 Haw. App. 215, 797 P.2d 74 (1990). MARRIAGE LICENSE REQUIRED. --There is no valid marriage unless a license has been obtained for the purpose of marriage from the agent duly appointed to grant licenses to marry. Halsey v. Keau, 295 F. 636 (9th Cir. 1924). COMMON-LAW MARRIAGES ARE VOID. --A license is a prerequisite to a valid marriage, and marriages as recognized by the common law are void. Parke v. Parke, 25 Haw. 397 (1920). MUTUAL UNDERTAKING AND CONSENT PREREQUISITE TO VALID MARRIAGE. --An essential element of a valid marriage is the mutual undertaking and consent of the parties to be and become husband and wife. Leong ex rel. Zen v. Leong, 28 Haw. 581 (1925). PARENTAL CONSENT TO MARRY. --It was not the intention of the legislature to enable females (now parties) over 15 (now 16) years of age to marry at will, but rather, to prevent the marriage of one over 15 (16) but under 18 years of age unless consummated with the consent of the parent, guardian or other person having her care and government. Such a marriage, contracted in contravention of the statutory provisions prohibiting the same, is voidable, and the same may be annulled. Sakakihara ex rel. Aoki v. Sakakihara, 26 Haw. 89 (1921) (decided under prior law). MARRIAGE VOIDABLE FROM NONAGE CANNOT BE MADE VOID BY PARTY OF AGE, and it may be confirmed by the minor. The defect is curable. In re Estate of Gordon, 6 Haw. 289 (1881). SAME-SEX MARRIAGES: CONSTITUTIONALITY. --Although denial of marriage licenses to same-sex couples under this section (prior to its 1994 amendment) did not violate plaintiffs' right to privacy as guaranteed by Article I, @ 6, of the Hawaii Constitution, as there is no fundamental right to such marriages under it, because sex is a "suspect category" for purposes of equal protection analysis under Article I, @ 5, strict scrutiny exacts that this section be presumed unconstitutional unless the State can show that (a) the statute's sex-based classification is justified by compelling state interests and (b) the statute is narrowly drawn to avoid unnecessary abridgements of applicant couples' constitutional rights. Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993). STATE LAW DICTATES THAT A VALID MARRIAGE IS INDISPENSABLE TO AN ACTION FOR LACK OF CONSORTIUM. Kiesel v. Peter Kiewit & Sons' Co., 638 F. Supp. 1251 (D. Haw. 1986). PROOF OF SUBSEQUENT MARRIAGE DESTROYS PRESUMPTION OF LEGAL MARRIAGE. --When the legality of a marriage depends wholly upon a presumption, such presumption is destroyed by proof of a subsequent marriage in which the statutory requirements necessary to its validity are affirmatively shown to have been complied with. In re Estate of Lau Ah Leong, 34 Haw. 161 (1937). PROOF OF VALID MARRIAGE FROM COHABITATION, REPUTATION, ETC. --In civil cases other than actions for seduction, marriage may be proved by the fact that the parties have cohabited as husband and wife and that such cohabitation has been attended with the reputation in the community in which the parties have resided and made their home that they were married. In re Estate of Kalamau, 26 Haw. 81 (1921). In all civil cases, marriage may be proved by reputation, declarations, and the conduct of the parties, and other circumstances usually accompanying that relation. Such evidence is not conclusive, but it is admissible to the jury as testimony from which marriage may be inferred. Apong v. Marks, 1 Haw. 83 (1851). PUTATIVE WIFE. --While this section covers only a case where a woman has been deceived into contracting an illegal marriage with a man already married, and hence is not specifically applicable to a putative marriage, the plight of a woman in such a case is not essentially different from that of a putative wife, and hence the relief there authorized furnishes a standard which, while not controlling, may be helpful by way of analogy. Ah Leong v. Ah Leong, 27 F.2d 582 (9th Cir.), cert. denied, 278 U.S. 636, 49 S. Ct. 33, 73 L. Ed. 552 (1928). In determining the rights of a putative wife to property accumlated by the joint efforts of the parties during years of void marriage, each case must be adjudged in the light of its own peculiar facts and the local laws. It will be proper for the court to take into consideration the relative contributions of property and of personal service in point of value made by the two parties in the accumulation of the property standing in the "husband's" name, the amount and value of such property at the time their de facto marital relations ceased, the amount of property accummulated by the "wife" during the same period and standing in her name, the local statutes affecting the marital relation and divorce, and alimony and dower, or other pecuniary interests of the wife, whether absolute or contigent, present or in expectancy. Ah Leong v. Ah Leong, 27 F.2d 582 (9th Cir.), cert. denied, 278 U.S. 636, 49 S. Ct. 33, 73 L. Ed. 552 (1928). MARRIAGE ESTABLISHED BY REPUTATION PRESUMED VALID. --Where the marriage is established by reputation, it will be presumed, in the absence of any showing that would repel such conclusions, that the parties were legally competent to marry, and that they first secured a license and complied with all other requirements necessary to make valid the marriage contract. In re Estate of Kalamau, 26 Haw. 81 (1921). IN A SUIT FOR THE ANNULMENT OF A MARRIAGE, THE PRESUMPTION IS THAT THE MARRIAGE IS VALID and the burden is upon the libelant to prove the incompetency of the libelee to enter into the marriage. Okubo v. Sato, 29 Haw. 716 (1927). EVIDENCE OF MARRIAGE. --Celebration of a marriage is generally proved by the record thereof or by the witnesses present. The latter is considered stronger evidence, but it is not necessary to produce the record or the celebrant, unless perhaps the other evidence is purely circumstantial. Republic of Haw. v. Kuhia, 10 Haw. 440 (1896). CERTIFICATE OF MARRIAGE RECORD AS EVIDENCE OF VALID MARRIAGE. --Where the certificate of the marriage record was admissible, it was not necessary to produce the license to marry nor to prove that the agent who granted it had the requisite authority. Republic of Haw. v. Waipa, 10 Haw. 442 (1896) (decided under prior law). THE SUPREME COURT HAS REJECTED THE THEORY OF MATRIMONIAL ACTION OF AN EQUITABLE NATURE. Aehegma v. Aehegma, 8 Haw. App. 215, 797 P.2d 74 (1990). COHABITATION DOES NOT ESTABLISH AGREEMENT FOR SUPPORT. --Cohabitation, no matter for how long, does not by itself prove the existence of an express agreement for post-cohabitation rehabilitative support or equitable division of separate property acquired or improved during cohabitation. Aehegma v. Aehegma, 8 Haw. App. 215, 797 P.2d 74 (1990). OR IMPLIED CONTRACT. --Cohabitation, no matter for how long, does not by itself prove the existence of a contract implied in fact. Aehegma v. Aehegma, 8 Haw. App. 215, 797 P.2d 74 (1990). JOINT CHECKING ACCOUNTS DID NOT PROVE THE EXISTENCE OF AN EXPRESS AGREEMENT between a cohabiting nonmarried couple for post-cohabitation support or equitable division of separate property acquired or improved during cohabitation. Aehegma v. Aehegma, 8 Haw. App. 215, 797 P.2d 74 (1990). EQUITABLE ESTOPPEL NOT SHOWN. --The material elements of equitable estoppel require one person to wilfully cause another person to erroneously believe a certain state of things and the other person to reasonably rely on his or her erroneous belief to his or her detriment. Where plaintiff failed to prove the material elements of equitable estoppel, the court would decline to decide whether and to what extent equitable estoppel could be applied to cohabitants. Aehegma v. Aehegma, 8 Haw. App. 215, 797 P.2d 74 (1990). QUASI-ESTOPPEL NOT SHOWN. --Quasi-estoppel precludes a party from asserting, to another's disadvantage, a right inconsistent with a position previously taken by him. Where defendant never took the position that plaintiff was or would be entitled to support from her and a share of her property, the court would decline to determine whether and to what extent quasi-estoppel could be applied to cohabitants. Aehegma v. Aehegma, 8 Haw. App. 215, 797 P.2d 74 (1990). OPINIONS OF ATTORNEY GENERAL ABSENCE OF FILED MARRIAGE CERTIFICATE DOES NOT AFFECT THE VALIDITY OF THE MARRIAGE, if the requirements of this section have been met. Op. Att'y Gen. No. 84-10 (1984). COMMON LAW MARRIAGES INVALID. --Because a marriage license is a prerequisite to a valid marriage under paragraph (7), common law marriages are invalid in Hawaii. Op. Att'y Gen. No. 73-5 (1973). COUPLE THAT DIVORCED BUT LATER LIVED AS MARRIED WERE NOT MARRIED. --Since common-law marriages contracted in Hawaii are void under the state statutes, where a husband and wife were divorced in Hawaii but later reconciled and lived together ostensibly as husband and wife until the husband died, the woman was not the wife of the man under Hawaiian law, was not a "wife" under Hawaiian Homes Commission Act @ 209(1), and was not a qualified successor to the man's Hawaiian home lands homestead. Op. Att'y Gen. No. 73-5 (1973). EFFECT OF ADOPTION ON FIRST COUSIN'S ABILITY TO MARRY. --The relationship between natural first cousins is not changed to that of uncle or aunt and niece and nephew by the fact that one of the first cousins is adopted by the common grandparents so as to prohibit marriage. Op. Att'y Gen. No. 62-49 (1962). LEGAL PERIODICALS UNIVERSITY OF HAWAII LAW REVIEW. Comment, Post-Majority Educational Support: Is There an Equal Protection Violation?, 6 U. Haw. L. Rev. 225 (1983). Note, "To Waive All Rights and Interests" -- The Problem With Antenuptial Agreements in Hawaii: Rossiter v. Rossiter, 7 U. Haw. L. Rev. 521 (1985). NOTES APPLICABLE TO ENTIRE CHAPTER CROSS REFERENCES. --As to community property, see Chapter 510. As to dower and curtesy, see Chapter 533. As to the offense of abuse of family and household members, see @ 709-906. RESEARCH REFERENCES ALR4th. Legal authority of person solemnizing marriage. 13 A.L.R.4th 1323. False light invasion of privacy -- cognizability and elements. 57 A.L.R.4th 22. NOTES APPLICABLE TO ENTIRE PART EDITOR'S NOTE. --This part was designated by 1984 Haw. Sess. Laws, Act 79, @ 1. LEVEL 1 - 7 OF 9 SECTIONS HAWAII REVISED STATUTES ANNOTATED -- COURT RULE Copyright (c) 1988-1994 by The Michie Company All rights reserved. *** (THIS DOCUMENT CURRENT THROUGH JANUARY 1, 1994) *** EXHIBIT B CODE OFJUDICAL CONDUCT HI Code Jud. Cond. Canon 3 (1994) 3. A Judge Shall Perform the Duties of Judicial Office Impartially and Diligently. A. Judicial Duties in General. The judicial duties of a judge take precedence over all the judge's other activities. The judge's judicial duties include all the duties of the judge's office prescribed by law. In the performance of these duties, the following standards apply. B. Adjudicative Responsibilities. (1) A judge shall hear and decide matters assigned to the judge except those in which disqualification is required. (2) A judge shall be faithful to the law and maintain professional competence in it. A judge shall not be swayed by partisan interests, public clamor or fear of criticism. (3) A judge shall require order and decorum in proceedings before the judge. (4) A judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, and of staff, court officials and others subject to the judge's direction and control. Commentary The duty to hear all proceedings fairly and with patience is not inconsistent with the duty to dispose promptly of the business of the court. Judges can be efficient and businesslike while being patient and deliberate. A judge must refrain from speech, gestures or other conduct that could reasonably be perceived as sexual harassment and must require the same standard of conduct of others subject to the judge's direction and control. (5) A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, or socioeconomic status, and shall not permit staff, court officials and others subject to the judge's direction and control to do so. Commentary A judge must perform judicial duties impartially and fairly. A judge who manifests bias on any basis in a proceeding impairs the fairness of the proceeding and brings the judiciary into disrepute. Facial expression and body language, in addition to oral communication, can give to parties or lawyers in the proceeding, jurors, the media and others an appearance of judicial bias. A judge must be alert to avoid behavior that may be perceived as prejudicial. (6) A judge shall require lawyers in proceedings before the judge to refrain from manifesting, by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, or socioeconomic status, against parties, witnesses, counsel or others. This Section 3B(6) does not preclude legitimate advocacy when race, sex, religion, national origin, disability, age, or socioeconomic status, or other similar factors, are issues in the proceeding. (7) A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding except that: (a) Where circumstances require, ex parte communications for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits are authorized; provided: (i) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and (ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond. (b) A judge may obtain the advice of a disinterested expert on the law applicable to a proceeding before the judge if the judge gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond. (c) A judge may consult with court personnel whose function is to aid the judge in carrying out the judge's adjudicative responsibilities or with other judges. (d) A judge may initiate or consider any ex parte communications when expressly authorized by law to do so. Commentary The proscription against communications concerning a proceeding includes communications from lawyers, law teachers, and other persons who are not participants in the proceeding, except to the limited extent permitted. It does not preclude a judge with the consent of the parties from conferring separately with the parties and lawyers in an effort to mediate or settle matters pending before the judge. Whenever presence of a party or notice to a party is required by Section 3B(7), it is the party's lawyer, or if the party is unrepresented the party, who is to be present or to whom notice is to be given. An appropriate and often desirable procedure for a court to obtain the advice of a disinterested expert on legal issues is to invite the expert to file a brief amicus curiae. Certain ex parte communication is approved by Section 3B(7) to facilitate scheduling and other administrative purposes and to accommodate emergencies. In general, however, a judge must discourage ex parte communication and allow it only if all the criteria stated in Section 3B(7) are clearly met. A judge must disclose to all parties all ex parte communications described in Sections 3B(7)(a) and 3B(7)(b) regarding a proceeding pending or impending before the judge. A judge must not independently investigate facts in a case and must consider only the evidence presented. A judge must make reasonable efforts, including the provision of appropriation supervision, to ensure that Section 3B(7) is not violated through law clerks or other personnel on the judge's staff. If communication between the trial judge and the appellate court with respect to a proceeding is permitted, a copy of any written communication or the substance of any oral communication should be provided to all parties. (8) A judge shall dispose of all judicial matters promptly, efficiently and fairly. Commentary In disposing of matters promptly, efficiently and fairly, a judge must demonstrate due regard for the rights of the parties to be heard and to have issues resolved without unnecessary cost or delay. Containing costs while preserving fundamental rights of parties also protects the interests of witnesses and the general public. A judge should monitor and supervise cases so as to reduce or eliminate dilatory practices, avoidable delays and unnecessary costs. A judge should encourage and seek to facilitate settlement, but parties should not feel coerced into surrendering the right to have their controversy resolved by the courts. Prompt disposition of the court's business requires a judge to devote adequate time to judicial duties, to be punctual in attending court and expeditious in determining matters under submission, and to insist that court officials, litigants and their lawyers cooperate with the judge to that end. (9) A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing. The judge shall require similar abstention on the part of court personnel subject to the judge's direction and control. This Section does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court. This Section does not apply to proceedings in which the judge is a litigant in a personal capacity. Commentary The requirement that judges abstain from public comment regarding a pending or impending proceeding continues during any appellate process and until final disposition. This Section does not prohibit a judge from commenting on proceedings in which the judge is a litigant in a personal capacity, but in cases such as a writ of mandamus where the judge is a litigant in an official capacity, the judge must not comment publicly. (10) A judge shall not commend or criticize jurors for their verdict other than in a court order or opinion in a proceeding, but may express appreciation to jurors for their service to the judicial system and the community. Commentary Commending or criticizing jurors for their verdict may imply a judicial expectation in future cases and may impair a juror's ability to be fair and impartial in a subsequent case. (11) A judge shall not disclose or use, for any purpose unrelated to judicial duties, nonpublic information acquired in a judicial capacity. C. Administrative Responsibilities. (1) A judge shall diligently discharge the judge's administrative responsibilities without bias or prejudice and maintain professional competence in judicial administration, and should cooperate with other judges and court officials in the administration of court business. (2) A judge shall require staff, court officials and others subject to the judge's direction and control to observe the standards of fidelity and diligence that apply to the judge and to refrain from manifesting bias or prejudice in the performance of their official duties. (3) A judge with supervisory authority for the judicial performance of other judges shall take reasonable measures to assure the prompt disposition of matters before them and the proper performance of their other judicial responsibilities. (4) A judge shall not make unnecessary appointments. A judge shall exercise the power of appointment impartially and on the basis of merit. A judge shall avoid nepotism and favoritism. A judge shall not approve compensation of appointees beyond the fair value of services rendered. Commentary Appointees of a judge include assigned counsel, officials such as referees, commissioners, special masters, receivers and guardians and personnel such as clerks, secretaries and bailiffs. Consent by the parties to an appointment or an award of compensation does not relieve the judge of the obligation prescribed by Section 3C(4). D. Disciplinary Responsibilities. (1) A judge who receives information indicating a substantial likelihood that another judge has committed a violation of this Code should take appropriate action. A judge having knowledge that another judge has committed a violation of this Code that raises a substantial question as to the other judge's fitness for office shall inform the appropriate authority. (2) A judge who receives information indicating a substantial likelihood that a lawyer has committed a violation of the Hawaii Code of Professional Responsibility should take appropriate action. A judge having knowledge that a lawyer has committed a violation of the Hawaii Code of Professional Responsibility that raises a substantial question as to the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects shall inform the appropriate authority. (3) Acts of a judge, in the discharge of disciplinary responsibilities, required or permitted by Sections 3D(1) and 3D(2) are part of a judge's judicial duties and shall be absolutely privileged, and no civil action predicated thereon may be instituted against the judge. Commentary Appropriate action may include direct communication with the judge or lawyer who has committed the violation, other direct action if available, and reporting the violation to the appropriate authority or other agency or body. E. Disqualification. (1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where: Commentary Under this rule, a judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless whether any of the specific rules in Section 3E(1) apply. For example, if a judge were in the process of negotiating for employment with a law firm, the judge would be disqualified from any matters in which that law firm appeared, unless the disqualification was waived by the parties after disclosure by the judge. A judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification. By decisional law, the rule of necessity may override the rule of disqualification. For example, a judge might be required to participate in judicial review of a judicial salary statute, or might be the only judge available in a matter requiring immediate judicial action, such as a hearing on probable cause or a temporary restraining order. In the latter case, the judge must disclose on the record the basis for possible disqualification and use reasonable efforts to transfer the matter to another judge as soon as practicable. (a) the judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding; (b) The judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge has been a material witness concerning it; Commentary A lawyer in a government agency does not ordinarily have an association with other lawyers employed by that agency within the meaning of Section 3E(1)(b); a judge formerly employed by a government agency, however, should disqualify himself or herself in a proceeding if the judge's impartiality might reasonably be questioned because of such association. (c) the judge knows that he or she, individually or as a fiduciary, or the judge's spouse, parent or child wherever residing, or any other member of the judge's family residing in the judge's household, has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis interest that could be substantially affected by the proceeding; (d) the judge or the judge's spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person: (i) is a party to the proceeding, or an officer, director or trustee of a party; (ii) is acting as a lawyer in the proceeding; (iii) is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding; (iv) is to the judge's knowledge likely to be a material witness in the proceeding. Commentary The fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not of itself disqualify the judge. Under appropriate circumstances, the fact that "the judge's impartiality might reasonably be questioned" under Section 3E(1), or that the relative is known by the judge to have an interest in the law firm that could be "substantially affected by the outcome of the proceeding" under Section 3E(1)(d)(iii) may require the judge's disqualification. (2) A judge shall keep informed about the judge's personal and fiduciary economic interests, and make a reasonable effort to keep informed about the personal economic interests of the judge's spouse, parent or child wherever residing, or any other member of the judge's family residing in the judge's household. F. Remittal of Disqualification. A judge disqualified by the terms of Section 3E may disclose on the record the basis of the judge's disqualification. If following disclosure of any basis for disqualification other than personal bias or prejudice concerning a party, the parties and lawyers, without participation by the judge, all agree that the judge should not be disqualified, and the judge is then willing to participate, the judge may participate in the proceeding. The agreement shall be incorporated in the record of the proceeding. Commentary A remittal procedure provides the parties an opportunity to proceed without delay if they wish to waive the disqualification. To assure that consideration of the question of remittal is made independently of the judge, a judge must not solicit, seek or hear comment on possible remittal or waiver of the disqualification unless the lawyers jointly propose remittal after consultation as provided in the rule. A party may act through counsel if counsel represents on the record that the party has been consulted and consents. As a practical matter, a judge may wish to have all parties and their lawyers sign the remittal agreement. CASE NOTES A judge who is biased against an attorney should not sit in a case involving that attorney. State v. Mata, 71 Haw. 319, 789 P.2d 1122 (1990) (decided under prior rule). Establishing bias against an attorney. -- Bias against an attorney is not established by the fact that there have been clashes of personality between the judge and the attorney, or that the judge is acquainted with the attorney's track record. State v. Mata, 71 Haw. 319, 789 P.2d 1122 (1990) (decided under prior rule). The fact that a judge has referred instances of an attorney's conduct to Disciplinary Counsel, and has responded to further inquiries from Disciplinary Counsel in connection therewith, does not establish bias by the judge against the attorney. State v. Mata, 71 Haw. 319, 789 P.2d 1122 (1990) (decided under prior rule). Criminal contempt should not be tried by accuser. -- When criminal contempt is charged, it signifies that the accuser believes the defendant's conduct was contemptuous, and such a charge should be tried by someone other than the accuser, since a procedure whereby the trial, if any, upon the charge shall be by the judge who lodged it, without a jury, denies the accused due process; it offers a temptation to the judge to forget that proof beyond a reasonable doubt shall be required for conviction. State v. Brown, 70 Haw. 459, 776 P.2d 1182 (1989) (decided under prior rule). Previous representation by attorney. -- The fact that an attorney, as a special deputy attorney general, previously represented the judge as a judge and not as an individual did not disqualify the judge from hearing subsequent cases in which the attorney represented one of the parties. Yorita v. Okumoto, 3 Haw. App. 148, 643 P.2d 820 (1982) (decided under prior rule). The mere fact that a judicial officer was formerly represented by a law firm presently appearing before him does not, per se, require disqualification based on an appearance of impropriety. McKeague v. Talbert, 3 Haw. App. 646, 658 P.2d 898 (1983) (decided under prior rule). CASE NOTES Cited in State v. Meafou, 67 Haw. 41, 677 P.2d 459 (1984); Partington v. Gedan, 880 F.2d 116 (9th Cir. 1989); Evans v. Takao, 74 Haw. 267, 842 P.2d 255 (1992). RESEARCH REFERENCES ALR4th. Disciplinary action against judge for engaging in ex parte communication with attorney, party, or witness. 82 A.L.R.4th 567. LEVEL 1 - 8 OF 9 SECTIONS HAWAII REVISED STATUTES ANNOTATED -- COURT RULE Copyright (c) 1988-1994 by The Michie Company All rights reserved. *** (THIS DOCUMENT CURRENT THROUGH JANUARY 1, 1994) *** EXHIBIT B CODE OFJUDICAL CONDUCT HI Code Jud. Cond. Canon 4 (1994) 4. A Judge Shall So Conduct the Judge's Extra-judicial Activities as to Minimize the Risk of Conflict with Judicial Obligations. A. Extra-judicial Activities in General. A judge shall conduct all of the judge's extra-judicial activities so that they do not: (1) cast reasonable doubt on the judge's capacity to act impartially as a judge; (2) demean the judicial office; or (3) interfere with the proper performance of judicial duties. Commentary Complete separation of a judge from extra-judicial activities is neither possible nor wise; a judge should not become isolated from the community in which the judge lives. Expressions of bias or prejudice by a judge, even outside the judge's judicial activities, may cast reasonable doubt on the judge's capacity to act impartially as a judge. Expressions which may do so include jokes or other remarks demeaning individuals on the basis of their race, sex, religion, national origin, disability, age, or socioeconomic status. See Section 2C and accompanying Commentary. B. Avocational Activities. A judge may speak, write, lecture, teach and participate in other extra-judicial activities concerning the law, the legal system, the administration of justice and non-legal subjects, subject to the requirements of this Code. Commentary As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice, including revision of substantive and procedural law and improvement of criminal and juvenile justice. To the extent that time permits, a judge is encouraged to do so, either independently or through a bar association, judicial conference or other organization dedicated to the improvement of the law. In this and other Sections of Canon 4, the phrase "subject to the requirements of this Code" is used, notably in connection with a judge's governmental, civic or charitable activities. This phrase is included to remind judges that the use of permissive language in various Sections of the Code does not relieve a judge from the other requirements of the Code that apply to the specific conduct. C. Governmental, Civic or Charitable Activities. (1) A judge shall not appear at a public hearing before, or otherwise consult with, an executive or legislative body or official except on matters concerning the law, the legal system or the administration of justice or except when acting pro se in a matter involving the judge or the judge's interests. Commentary See Section 2B regarding the obligation to avoid improper influence. (2) A judge shall not accept appointment to a governmental committee or commission or other governmental position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system or the administration of justice. A judge may, however, represent a country, state or locality on ceremonial occasions or in connection with historical, educational or cultural activities. Commentary Section 4C(2) prohibits a judge from accepting any governmental position except one relating to the law, legal system or administration of justice as authorized by Section 4C(3). The appropriateness of accepting extra-judicial assignments must be assessed in light of the demands on judicial resources created by crowded dockets and the need to protect the courts from involvement in extra-judicial matters that may prove to be controversial. Judges should not accept governmental appointments that are likely to interfere with the effectiveness and independence of the judiciary. Section 4C(2) does not govern a judge's service in a nongovernmental position. See Section 4C(3) permitting service by a judge with organizations devoted to the improvement of the law, the legal system or the administration of justice and with educational, religious, charitable, fraternal or civic organizations not conducted for profit. For example, service on the board of a public educational institution, unless it were a law school, would be prohibited under Section 4C(2), but service on the board of a public law school or any private educational institution would generally be permitted under Section 4C(3). (3) A judge may serve as an officer, director, trustee or non-legal advisor of an organization or governmental agency devoted to the improvement of the law, the legal system or the administration of justice or of an educational, religious, charitable, fraternal or civic organization not conducted for profit, subject to the following limitations and the other requirements of this Code. Commentary Section 4C(3) does not apply to a judge's service in a governmental position unconnected with the improvement of the law, the legal system or the administration of justice; see Section 4C(2). See Commentary to Section 4B regarding use of the phrase "subject to the following limitations and the other requirements of this Code." As an example of the meaning of the phrase, a judge permitted by Section 4C(3) to serve on the board of a fraternal institution may be prohibited from such service by Sections 2C or 4A if the institution practices invidious discrimination or if service on the board otherwise casts reasonable doubt on the judge's capacity to act impartially as a judge. Service by a judge on behalf of a civic or charitable organization may be governed by other provisions of Canon 4 in addition to Section 4C. For example, a judge is prohibited by Section 4G from serving as a legal advisor to a civic or charitable organization. (a) A judge shall not serve as an officer, director, trustee or non-legal advisor if it is likely that the organization (i) will be engaged in proceedings that would ordinarily come before the judge, or (ii) will be engaged frequently in adversary proceedings in the court of which the judge is a member or in any court subject to the appellate jurisdiction of the court of which the judge is a member. Commentary The changing nature of some organizations and of their relationship to the law makes it necessary for a judge regularly to reexamine the activities of each organization with which the judge is affiliated to determine if it is proper for the judge to continue the affiliation. For example, in many jurisdictions charitable hospitals are now more frequently in court than in the past. Similarly, the boards of some legal aid organizations now make policy decisions that may have political significance or imply commitment to causes that may come before the courts for adjudication. (b) A judge as an officer, director, trustee or non-legal advisor, or as a member or otherwise: (i) may assist such an organization in planning fund-raising and may participate in the management and investment of the organization's funds, but shall not personally participate in the solicitation of funds or other fund-raising activities, except that a judge may solicit funds from other judges over whom the judge does not exercise supervisory or appellate authority; (ii) may make recommendations to public and private fund-granting organizations on projects and programs concerning the law, the legal system or the administration of justice; (iii) shall not personally participate in membership solicitation if the solicitation might reasonably be perceived as coercive or, except as permitted in Section 4C(3)(b)(i), if the membership solicitation is essentially a fund-raising mechanism. (iv) shall not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation. Commentary A judge may solicit membership or endorse or encourage membership efforts for an organization devoted to the improvement of the law, the legal system or the administration of justice or a nonprofit educational, religious, charitable, fraternal or civic organization as long as the solicitation cannot reasonably be perceived as coercive and is not essentially a fund-raising mechanism. Solicitation of funds for an organization and solicitation of memberships similarly involve the danger that the person solicited will feel obligated to respond favorably to the solicitor if the solicitor is in a position of influence or control. A judge must not engage in direct, individual solicitation of funds or memberships in person, in writing or by telephone except in the following cases: 1) a judge may solicit for funds or memberships other judges over whom the judge does not exercise supervisory or appellate authority, 2) a judge may solicit other persons for membership in the organizations described above if neither those persons nor persons with whom they are affiliated are likely ever to appear before the court on which the judge serves and 3) a judge who is an officer of such an organization may send a general membership solicitation mailing over the judge's signature. Use of an organization letterhead for fund-raising or membership solicitation does not violate Section 4C(3)(b) provided the letterhead lists only the judge's name and office or other position in the organization, and, if comparable designations are listed for other persons, the judge's judicial designation. In addition, a judge must also make reasonable efforts to ensure that the judge's staff, court officials and others subject to the judge's direction and control do not solicit funds on the judge's behalf for any purpose, charitable or otherwise. A judge must not be a speaker or guest of honor at an organization's fund-raising event, but mere attendance at such an event is permissible if otherwise consistent with this Code. D. Financial Activities. (1) A judge shall not engage in financial and business dealings that: (a) may reasonably be perceived to exploit the judge's judicial position, or (b) involve the judge in frequent transactions or continuing business relationships with those lawyers or other persons likely to come before the court on which the judge serves. Commentary The Time for Compliance provision of this Code (Application, Section C) postpones the time for compliance with certain provisions of this Section in some cases. When a judge acquires in a judicial capacity information, such as material contained in filings with the court, that is not yet generally known, the judge must not use the information for private gain. See Section 2B; see also Section 3B(11). A judge must avoid financial and business dealings that involve the judge in frequent transactions or continuing business relationships with persons likely to come either before the judge personally or before other judges on the judge's court. In addition, a judge should discourage members of the judge's family from engaging in dealings that would reasonably appear to exploit the judge's judicial position or involve those family members in frequent transactions or continuing business relationships with persons likely to come before the judge. This rule is necessary to avoid creating an appearance of exploitation of office or favoritism and to minimize the potential for disqualification. Participation by a judge in financial and business dealings is subject to the general prohibitions in Section 4A against activities that tend to reflect adversely on impartiality, demean the judicial office, or interfere with the proper performance of judicial duties. Such participation is also subject to the general prohibition in Canon 2 against activities involving impropriety or the appearance of impropriety and the prohibition in Section 2B against the misuse of the prestige of judicial office. In addition, a judge must maintain high standards of conduct in all of the judge's activities, as set forth in Canon 1. See Commentary for Section 4B regarding use of the phrase "subject to the requirements of this Code." (2) A judge may, subject to the requirements of this Code, hold and manage investments of the judge and members of the judge's family, including real estate, and engage in other remunerative activity. Commentary This section provides that, subject to the requirements of this Code, a judge may hold and manage investments owned solely by the judge, investments owned solely by a member or members of the judge's family, and investments owned jointly by the judge and members of the judge's family. (3) A judge shall not serve as an officer, director, manager, general partner, advisor or employee of any business entity except that a judge may, subject to the requirements of this Code, manage and participate in: (a) a business closely held by the judge or members of the judge's family, or (b) a business entity primarily engaged in investment of the financial resources of the judge or members of the judge's family. Commentary Subject to the requirements of this Code, a judge may participate in a business that is closely held either by the judge alone, by members of the judge's family, or by the judge and members of the judge's family. Although participation by the judge in a closely-held family business might otherwise be permitted by Section 4D(3), a judge may be prohibited from participation by other provisions of this Code when, for example, the business entity frequently appears before the judge's court or the participation requires significant time away from judicial duties. Similarly, a judge must avoid participating in a closely-held family business if the judge's participation would involve misuse of the prestige of judicial office. (4) A judge shall manage the judge's investments and other financial interests to minimize the number of cases in which the judge is disqualified. As soon as the judge can do so without serious financial detriment, the judge shall divest himself or herself of investments and other financial interests that might require frequent disqualification. (5) A judge shall not accept, and shall urge members of the judge's family residing in the judge's household not to accept, a gift, bequest, favor or loan from anyone except for: Commentary Because a gift, bequest, favor or loan to a member of the judge's family residing in the judge's household might be viewed as intended to influence the judge, a judge must inform those family members of the relevant ethical constraints upon the judge in this regard and discourage those family members from violating them. A judge cannot, however, reasonably be expected to know or control all of the financial or business activities of all family members residing in the judge's household. (a) a gift incident to a public testimonial, books, tapes and other resource materials supplied by publishers on a complimentary basis for official use, or an invitation to the judge and the judge's spouse or guest to attend a bar-related function or an activity devoted to the improvement of the law, the legal system or the administration of justice; Commentary Acceptance of an invitation to a law-related function is governed by Section 4D(5)(a); acceptance of an invitation paid for by an individual lawyer or group of lawyers is governed by Section 4D(5)(h). A judge may accept a public testimonial or a gift incident thereto only if the donor organization is not an organization whose members comprise or frequently represent the same side in litigation, and the testimonial and gift are otherwise in compliance with other provisions of this Code. See Sections 4A(1) and 2B. (b) a gift, award or benefit incident to the business, profession or other separate activity of a spouse or other family member of a judge residing in a judge's household, including gifts, awards and benefits for the use of both the spouse or other family member and the judge (as spouse or family member), provided the gift, award or benefit could not reasonably be perceived as intended to influence the judge in the performance of judicial duties; (c) ordinary social hospitality; (d) a gift from a relative or friend, for a special occasion, such as a wedding, anniversary or birthday, if the gift is fairly commensurate with the occasion and the relationship; Commentary A gift to a judge, or to a member of the judge's family living in the judge's household, that is excessive in value raises questions about the judge's impartiality and the integrity of the judicial office and might require disqualification of the judge where disqualification would not otherwise be required. See, however, Section 4D(5)(e). (e) a gift, bequest, favor or loan from a relative or close personal friend whose appearance or interest in a case would in any event require disqualification under Section 3E; (f) a loan from a lending institution in its regular course of business on the same terms generally available to persons who are not judges; (g) a scholarship or fellowship awarded on the same terms and based on the same criteria applied to other applicants; or (h) any other gift, bequest, favor or loan, only if: the donor is not a party or other person who has come or is likely to come or whose interests have come or are likely to come before the judge; and, if its value exceeds $ 150.00, the judge reports it in the same manner as the judge reports compensation in Section 4H. Commentary Section 4D(5)(h) prohibits judges from accepting gifts, favors, bequests or loans from lawyers or their firms if they have come or are likely to come before the judge; it also prohibits gifts, favors, bequests or loans from clients of lawyers or their firms when the clients' interests have come or are likely to come before the judge. E. Fiduciary Activities. (1) A judge shall not serve as executor, administrator or other personal representative, trustee, guardian, attorney in fact or other fiduciary, except for the estate, trust or person of a member of the judge's family, and then only if such service will not interfere with the proper performance of judicial duties. (2) A judge shall not serve as a fiduciary if it is likely that the judge as a fiduciary will be engaged in proceedings that would ordinarily come before the judge, or if the estate, trust or ward becomes involved in adversary proceedings in the court on which the judge serves or one under its appellate jurisdiction. (3) The same restrictions on financial activities that apply to a judge personally also apply to the judge while acting in a fiduciary capacity. Commentary The Time for Compliance provision of this Code (Application, Section C) postpones the time for compliance with certain provisions of this Section in some cases. The restrictions imposed by this Canon may conflict with the judge's obligation as a fiduciary. For example, a judge should resign as trustee if detriment to the trust would result from divestiture of holdings the retention of which would place the judge in violation of Section 4D(4). F. Service as Arbitrator or Mediator. A judge shall not act as an arbitrator or mediator or otherwise perform judicial functions in a private capacity unless expressly authorized by law. Commentary Section 4F does not prohibit a judge from participating in arbitration, mediation or settlement conferences performed as part of judicial duties. G. Practice of Law. A judge shall not practice law. Notwithstanding this prohibition, a judge may act pro se and may, without compensation, give legal advice to and draft or review documents for a member of the judge's family. Commentary This prohibition refers to the practice of law in a representative capacity and not in a pro se capacity. A judge may act for himself or herself in all legal matters, including matters involving litigation and matters involving appearances before or other dealings with legislative and other governmental bodies. However, in so doing, a judge must not abuse the prestige of office to advance the interests of the judge or the judge's family. See Section 2(B). The Code allows a judge to give legal advice to and draft legal documents for members of the judge's family, so long as the judge receives no compensation. A judge must not, however, act as an advocate or negotiator for a member of the judge's family in a legal matter. H. Compensation, Reimbursement and Reporting. (1) Compensation and Reimbursement. A judge may receive compensation and reimbursement of expenses for the extra-judicial activities permitted by this Code, if the source of such payments does not give the appearance of influencing the judge's performance of judicial duties or otherwise give the appearance of impropriety. (a) Compensation shall not exceed a reasonable amount nor shall it exceed what a person who is not a judge would receive for the same activity. (b) Expense reimbursement shall be limited to the actual cost of travel, food and lodging reasonably incurred by the judge and, where appropriate to the occasion, by the judge's spouse or guest. Any payment in excess of such an amount is compensation. (2) Public Reports. A judge shall report the date, place and nature of any activity for which the judge received compensation, and the name of the payor and the amount of compensation so received. Compensation or income of a spouse attributed to the judge by operation of a community property law is not extra-judicial compensation to the judge. The judge's report shall be made at least annually and shall be filed as a public document in the office of the clerk of the court on which the judge serves or other office designated by law. Commentary See Section 4D(5) regarding reporting of gifts, bequests and loans. The Code does not prohibit a judge from accepting honoraria or speaking fees provided that the compensation is reasonable and commensurate with the task performed. A judge should ensure, however, that no conflicts are created by the arrangement. A judge must not appear to trade on the judicial position for personal advantage. Nor should a judge spend significant time away from court duties to meet speaking or writing commitments for compensation. In addition, the source of the payment must not raise any question of undue influence or the judge's ability or willingness to be impartial. I. Disclosure of a Judge's Income, Debts, Investments or Other Assets is required only to the extent provided in this Canon and in Sections 3E and 3F, or as otherwise required by law. Commentary Section 3E requires a judge to disqualify himself or herself in any proceeding in which the judge has an economic interest. See "economic interest" as explained in the Terminology Section. Section 4D requires a judge to refrain from engaging in business and from financial activities that might interfere with the impartial performance of judicial duties; Section 4H requires a judge to report all compensation the judge received for activities outside judicial office. A judge has the rights of any other citizen, including the right to privacy of the judge's financial affairs, except to the extent that limitations established by law are required to safeguard the proper performance of the judge's duties. CASE NOTES Per diem judges are expressly precluded by the application of the Code of Judicial Conduct from practicing law before the court they serve. Further, the codes of professional responsibility and judicial conduct direct judges to avoid even the appearance of impropriety; therefore, a per diem judge is precluded from sitting on a case in a different court in which his or her impartiality might reasonably be questioned. In re Ferguson, 74 Haw. 394, 846 P.2d 894 (1993). LEVEL 1 - 9 OF 9 SECTIONS HAWAII ADVANCE LEGISLATIVE SERVICE STATENET Copyright (c) 1995 by Information for Public Affairs, Inc. HAWAII 18TH STATE LEGISLATURE (1995) ACT 5 SENATE BILL NO. 888 1995 Hi. ALS 5; 1995 Hi. Act 5; 1995 Hi. SB 888 SYNOPSIS: A BILL FOR AN ACT RELATING TO THE COMMISSION ON AND THE LAW. NOTICE: [D> Text within these symbols is deleted and the law. [*2] SECTION 2. Act 217, Session Laws of Hawaii 1994, section 6, is repealed. [D> "SECTION 6. There is created, effective upon approval of this Act, a commission on and the law. The commission shall consist of eleven members, ten appointed by the governor of the State of Hawaii, of which two shall be representatives from the Hawaii Civil Rights Commission; two shall be representatives from the American Friends Service Committee; two shall be representatives from the Catholic Church diocese; two shall be representatives from the Church of Latter-Day Saints; two shall be representatives from the Hawaii Equal Rights Marriage Project; and an eleventh member, who shall be the chairperson of the family law section of the Hawaii State Bar Association as of January 1, 1994, who shall serve as chairperson of the commission. Should the chairperson of the family law section of the Hawaii State Bar Association decline to serve, the president of the senate and the speaker of the house of representatives shall choose, at their joint discretion, a person with expertise in the law of domestic relations to serve as chairperson of the commission. The members of the commission shall serve without compensation and the commission shall be attached for administrative purposes to the legislative reference bureau, which shall provide staff support to the commission. The purpose of the commission shall be to: (1) Examine the precise legal and economic benefits extended to opposite-sex couples, but not to same-sex couples; (2) Examine whether substantial public policy reasons exist to extend such benefits to same-sex couples and the reasons therefor; and (3) Recommend appropriate action which may be taken by the legislature to extend such benefits to same-sex couples. The commission shall submit a report on its findings to the legislature no later than twenty days prior to the convening of the 1995 regular session." and the law. The commission shall consist of seven members of the general public, appointed by the governor, of which two shall be appointed from a list of nominees submitted by the speaker of the house of representatives and two shall be appointed from a list of nominees submitted by the president of the senate. The governor shall designate the chair of the commission. The members of the commission shall serve without compensation and the commission shall be attached for administrative purposes to the legislative reference bureau, which shall provide staff support to the commission. The purpose of the commission shall be to: (1) Examine the major legal and economic benefits extended to married opposite-sex couples, but not to same-sex couples; (2) Examine the substantial public policy reasons to extend or not to extend such benefits in part or in total to same-sex couples; and (3) Recommend appropriate action which may be taken by the legislature to extend such benefits to same-sex couples. The commission shall submit a report of its findings to the legislature no later than twenty days prior to the convening of the 1996 regular session. The commission shall cease to exist after July 1, 1996." [*4] SECTION 4. Statutory material to be repealed is bracketed. [*5] SECTION 5. This Act shall take effect upon its approval. HISTORY: Approved by the Governor on March 24, 1995 SPONSOR: Mizuguchi