Constitution of Hawaii — Article 16

ARTICLE XVI

GENERAL AND MISCELLANEOUS PROVISIONS

Note

  This article was renumbered from Article XIV to be Article XVI by Const Con 1978 and election Nov 7, 1978.  The former Article XVI now appears as Article XVIII.

CIVIL SERVICE

     Section 1.  The employment of persons in the civil service, as defined by law, of or under the State, shall be governed by the merit principle. [Ren Const Con 1978 and election Nov 7, 1978]

Cross References

  Civil service, see chapter 76.

Case Notes

  Hawaii constitution does not establish an independently enforceable right to the protection of merit principles.  85 H. 61, 937 P.2d 397.

  Where, under §76-77, landfill worker positions were within civil service, and thus governed by merit principles under this section, county violated Hawaii constitution and civil service statutes when it privatized new landfill operation.  85 H. 61, 937 P.2d 397.

  County's decision to terminate, and thereby privatize, refuse collection services violated constitutional merit principles and civil service laws and deprived civil servants of the protections guaranteed in this section and chapter 76.  137 H. 409, 375 P.3d 188 (2016).

EMPLOYEES' RETIREMENT SYSTEM

     Section 2.  Membership in any employees' retirement system of the State or any political subdivision thereof shall be a contractual relationship, the accrued benefits of which shall not be diminished or impaired. [Ren Const Con 1978 and election Nov 7, 1978]

Cross References

  Employees' retirement system, see chapter 88.

Attorney General Opinions

  Board of trustees may periodically change and adopt new option factor tables applicable to all members who have not retired prior to effective date of tables.  Att. Gen. Op. 82-3.

Case Notes

  The non-impairment clause of this section protects not only system member accrued benefits, but also as a necessary implication, the sources for those benefits; because of this implied protection, Act 100, L 1999 violated this section by impairing the sources used to fund the constitutionally protected "accrued benefits".  114 H. 302, 162 P.3d 696.

  Where employees' retirement system (ERS) trustees were alleging in lawsuit that Act 100, L 1999 was unconstitutional as being violative of this section, their claims were not "founded upon any statute of the State; or upon any regulation of an executive department; or upon any contract" and were not referred to the court by the legislature; thus, trustees' claims were not cognizable under chapter 661, and, therefore, were not subject to the statute of limitations set forth in §661-5.  114 H. 302, 162 P.3d 696.

  A retired employee's health benefits that are included in a health benefits plan falls within the constitutional protection contemplated by this section inasmuch as §87A-21(b) clearly and unambiguously conditions a retired state or county government employee's eligibility for health benefits on, inter alia, being a retired member of the employees' retirement system.  122 H. 402, 228 P.3d 282 (2010).

  This section evinces an intent to protect a state or county government employee's "accrued benefits" that are derived from that employee's membership in an employees' retirement system (ERS); although this section provides protection for any additional benefits that the legislature may decide to provide to state and county government employees as members of an ERS, consistent with the framers' intent, the legislature may also "reduce benefits as to persons already in the system in so far as their future services were concerned, but it could not, however, reduce the benefits attributable to past services".  122 H. 402, 228 P.3d 282 (2010).

  Appellants' constitutionally protected retirement health benefits were not an exact package of health benefits, fixed as of a certain date, unchanged and unchangeable over time, and such benefits remained subject to legislative changes, so long as those changes did not result in a diminishment or impairment of the benefits that had been accrued.  139 H. 39, 383 P.3d 1177 (2016).

  Benefits arising from membership in a Hawaii employees' retirement system (ERS), including retiree health benefits, accrue upon an employee's enrollment in the ERS, subject to any conditions precedent in place at the time of enrollment that must be satisfied before receiving the benefits.  139 H. 39, 383 P.3d 1177 (2016).

  There was a genuine issue of material fact precluding an award of summary judgment as to whether the retirement health benefits that appellants received or were eligible to receive under the employer-union health benefits trust fund were the same or substantially the same as the health benefits retirees received under the public employees health fund.  139 H. 39, 383 P.3d 1177 (2016).

  The starting place for a determination of appellants' accrued health benefits was the retiree health benefits, included in a public employees health fund benefits plan, that were promised to appellants at the time of their enrollment in the employees' retirement system (ERS), as these were the benefits that, in the first instance, arose from their membership in the ERS.  139 H. 39, 383 P.3d 1177 (2016).

  This section protects accrued retiree health benefits, not parity of health benefits between active employees and retirees.  139 H. 39, 383 P.3d 1177 (2016).

  Where parties each presented substantial evidence in the form of expert opinions and supporting evidence, there existed genuine issues of material fact precluding an award of summary judgment that active employee and retiree state health plans offered substantially equivalent health benefits.  139 H. 39, 383 P.3d 1177 (2016).

  While the accrual and extent of an employee's benefits are governed by the applicable statutory provisions of chapter 88, the duty of the employees' retirement system to pay accrued benefits is deemed to be contractual under this section; thus, a circuit court's jurisdiction under §661-1(1) over such claims is "founded upon contract", as well as statute and the circuit court did not err in rejecting defendant's contention that plaintiffs' claims were barred by sovereign immunity.  121 H. 462 (App.), 220 P.3d 1043 (2009).

DISQUALIFICATIONS FROM PUBLIC OFFICE OR EMPLOYMENT

     Section 3.  No person shall hold any public office or employment who has been convicted of any act to overthrow, or attempt to overthrow, or conspiracy with any person to overthrow the government of this State or of the United States by force or violence. [Am Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978]

Cross References

  Convicted persons, see chapter 831.

SALARY COMMISSION

     Section [3.5].  There shall be a commission on salaries as provided by law, which shall review and recommend salaries for the justices and judges of all state courts, members of the legislature, department heads or executive officers of the executive departments and the deputies or assistants to department heads of the executive departments as provided by law, excluding the University of Hawaii and the department of education.  The commission shall also review and make recommendations for the salary of the administrative director of the State or equivalent position and the salary of the governor and the lieutenant governor.

     Any salary established pursuant to this section shall not be decreased during a term of office, unless by general law applying to all salaried officers of the State.

     Not later than the fortieth legislative day of the 2007 regular legislative session and every six years thereafter, the commission shall submit to the legislature its recommendations and then dissolve.

     The recommended salaries submitted shall become effective as provided in the recommendation, unless the legislature disapproves the entire recommendation as a whole by adoption of a concurrent resolution prior to adjournment sine die of the legislative session in which the recommendation is submitted; provided that any change in salary which becomes effective shall not apply to the legislature to which the recommendation for the change in salary was submitted. [Add HB 1917 (2006) and election Nov 7, 2006]

Cross References

  Commission on salaries, see §26-56.

OATH OF OFFICE

     Section 4.  All eligible public officers, before entering upon the duties of their respective offices, shall take and subscribe to the following oath or affirmation:  "I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States, and the Constitution of the State of Hawaii, and that I will faithfully discharge my duties as ........................ to the best of my ability."  As used in this section, "eligible public officers" means the governor, the lieutenant governor, the members of both houses of the legislature, the members of the board of education, the members of the national guard, State or county employees who possess police powers, district court judges, and all those whose appointment requires the consent of the senate. [Ren and am Const Con 1978 and election Nov 7, 1978; am SB 1440 (1992) and election Nov 3, 1992]

Attorney General Opinions

  Elfbrandt v. Russell, 384 U.S. 11, 86 S. Ct. 1238, does not invalidate the oath of office.  Att. Gen. Op. 66-18.

  When board of education members can assume official duties. Att. Gen. Op. 86-21.

INTERGOVERNMENTAL RELATIONS

     Section 5.  The legislature may provide for cooperation on the part of this State and its political subdivisions with the United States, or other states and territories, or their political subdivisions, in matters affecting the public health, safety and general welfare.  Funds may be appropriated to effect such cooperation. [Ren Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978]

FEDERAL LANDS

     Section 6.  The United States shall be vested with or retain title to or an interest in or shall hold the property in the Territory of Hawaii set aside for the use of the United States and remaining so set aside immediately prior to the admission of this State, in all respects as and to the extent set forth in the act or resolution providing for the admission of this State to the Union. [Ren Const Con 1968 and election Nov 5, 1968; ren Const Con 1978 and election Nov 7, 1978]

Cross References

  Admission Act provisions, see §5.

COMPLIANCE WITH TRUST

     Section 7.  Any trust provisions which the Congress shall impose, upon the admission of this State, in respect of the lands patented to the State by the United States or the proceeds and income therefrom, shall be complied with by appropriate legislation.  Such legislation shall not diminish or limit the benefits of native Hawaiians under Section 4 of Article XII. [Ren Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978]

Note

  A proposal of the 1978 Constitutional Convention added the last sentence of the section.  This addition appears to be one of the unspecified changes submitted for ratification under Question 34.  On whether any of the changes submitted under Question 34 was in fact approved by the electorate, see Kahalekai v. Doi, 60 H. 324, 590 P.2d 543, excerpted in the note preceding the Preamble to the Constitution.

Law Journals and Reviews

  A Litigator's Approach to Issues Concerning Exercise and Protection of Native Hawaiian Traditional and Customary Rights.  43 UH L. Rev. 592 (2021).

Case Notes

  Under section, the State affirmatively assumes trust responsibilities of §5(f) of Admission Act.  73 H. 578, 837 P.2d 1247.

ADMINISTRATION OF UNDISPOSED LANDS

     Section 8.  All provisions of the Act of Congress approved March 18, 1959 reserving rights or powers to the United States, as well as those prescribing the terms or conditions of the grants of lands or other property therein made to the State of Hawaii are consented to fully by the State and its people. [Am 73 Stat 4 and election June 27, 1959; ren Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978]

Case Notes

  By section, continuance of C.A.B. jurisdiction over air commerce during transitional period was accepted by State; arrangement not unconstitutional.  44 H. 634, 361 P.2d 390.

TAX EXEMPTION OF FEDERAL PROPERTY

     Section 9.  No taxes shall be imposed by the State upon any lands or other property now owned or hereafter acquired by the United States, except as the same shall become taxable by reason of disposition thereof by the United States or by reason of the consent of the United States to such taxation. [Ren Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978]

HAWAII NATIONAL PARK

     Section 10.  All provisions of the act or resolution admitting this State to the Union, or providing for such admission, which reserve to the United States jurisdiction of Hawaii National Park, or the ownership or control of lands within Hawaii National Park, are consented to fully by the State and its people. [Ren Const Con 1968 and election Nov 5, 1968; ren Const Con 1978 and election Nov 7, 1978]

Cross References

  Admission Act provisions, see §16(a).

JUDICIAL RIGHTS

     Section 11.  All those provisions of the act or resolution admitting this State to the Union, or providing for such admission, which reserve to the United States judicial rights or powers are consented to fully by the State and its people; and those provisions of such act or resolution which preserve judicial rights and powers for the State are hereby accepted and adopted, and such rights and powers are hereby assumed, to be exercised and discharged pursuant to this constitution and the laws of the State. [Ren Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978]

Cross References

  Admission Act provisions, see §§12, 13.

Case Notes

  Referred to:  44 H. 634, 650, 361 P.2d 390.

QUIETING TITLE

     Section 12.  No person shall be deprived of title to an estate or interest in real property by another person claiming actual, continuous, hostile, exclusive, open and notorious possession of such lands, except to real property of five acres or less.  Such claim may be asserted in good faith by any person not more than once in twenty years. [Add Const Con 1978 and election Nov 7, 1978]

Cross References

  General statutory provisions, see chapter 669.

Law Journals and Reviews

  Adverse Possession and Quiet Title Actions in Hawaii--Recent Constitutional Developments.  19 HBJ 59.

Case Note

  Section does not bar adverse possession claims to more than five acres of land where claim matured prior to November 7, 1978.  91 H. 545 (App.), 985 P.2d 1112.

PLAIN LANGUAGE

     Section 13.  Insofar as practicable, all governmental writing meant for the public, in whatever language, should be plainly worded, avoiding the use of technical terms. [Add Const Con 1978 and election Nov 7, 1978]

TITLES, SUBTITLES; CONSTRUCTION

     Section 14.  Titles and subtitles shall not be used for purposes of construing this constitution. [Ren Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978]

Note

  A proposal of the 1978 Constitutional Convention deleted a second paragraph which read:  "Whenever any personal pronoun appears in this constitution, it shall be construed to mean either sex."  This deletion appears to be one of the unspecified changes submitted for ratification under Question 34.  On whether any of the changes submitted under Question 34 was in fact approved by the electorate, see Kahalekai v. Doi, 60 H. 324, 590 P.2d 543, excerpted in the note preceding the Preamble to the Constitution.

Case Notes

  Words of constitution presumed to be used in their natural sense.  44 H. 159, 352 P.2d 861.

  Clear and unambiguous provisions are construed as they are written.  51 H. 1, 449 P.2d 130.

GENERAL POWER

     Section 15.  The enumeration in this constitution of specified powers shall not be construed as limitations upon the power of the State to provide for the general welfare of the people. [Ren Const Con 1968 and election Nov 5, 1968; ren Const Con 1978 and election Nov 7, 1978]

PROVISIONS ARE SELF-EXECUTING

     Section 16.  The provisions of this constitution shall be self-executing to the fullest extent that their respective natures permit. [Ren Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978]

Law Journals and Reviews

  Ala Loop and the Private Right of Action Under Hawai‘i Constitution Article XI, Section 9:  Charting a Path Toward a Cohesive Enforcement Scheme.  33 UH L. Rev. 367 (2010).

  A Self-Executing Article XI, Section 9--The Door For a Bivens Action for Environmental Rights?  34 UH L. Rev. 187 (2012).

Case Notes

  This provision does not constitute waiver of sovereign immunity for money damages for constitutional deprivations.  61 H. 369, 604 P.2d 1198.

  Test for determining whether a constitutional provision is self-executing.  63 H. 412, 629 P.2d 1111.