Nehring v. Ariyoshi, Civ. No. 77-0276.

• Decision Date: 16 December 1977
• Docket Number: Civ. No. 77-0276.
• Citation: 443 F. Supp. 228
• Parties: Reverend David L. NEHRING, Margo M. Brower, Dennis Donavon and Margaret Pitts, Individually and on behalf of all other persons similarly situated, Plaintiffs, v. George R. ARIYOSHI, Individually and in his capacity as the Governor, State of Hawaii, Defendant.
• Court: U.S. District Court — District of Hawaii

443 F. Supp. 228

Reverend David L. NEHRING, Margo M. Brower, Dennis Donavon and Margaret Pitts, Individually and on behalf of all other persons similarly situated, Plaintiffs, v. George R. ARIYOSHI, Individually and in his capacity as the Governor, State of Hawaii, Defendant.

Civ. No. 77-0276.

United States District Court, D. Hawaii.

December 16, 1977.

Robert Gilbert Johnston, Clayton C. Ikei, Honolulu, Hawaii, for plaintiffs.

Lawrence D. Kumabe, Glenn S. Hara, Deputy Attys. Gen., Ronald Y. Amemiya, Atty. Gen., State of Hawaii, Honolulu, Hawaii, for defendant.

DECISION ON MOTIONS TO ABSTAIN AND FOR PRELIMINARY INJUNCTION

SAMUEL P. KING, Chief Judge.

I. FACTUAL BACKGROUND

A. History of the Residency Requirement.

Mark Twain once described the Hawaiian islands as "the loveliest fleet of islands that lies anchored in any ocean. . . ."¹ This feeling has certainly been shared by large numbers of people from every racial, ethnic, and cultural background. For over a thousand years people have been travelling to Hawaii, and they have stayed here in ever-increasing numbers. As with almost all good things which are not in limitless supply in this world, many of the "haves" do not particularly wish to share their good fortune with the "have-nots."

In order to dissuade people from continuing to settle in Hawaii, several years ago the legislature enacted a durational residency requirement for public employment.² This law provided that with certain exceptions no one could be employed by the State or any county or municipal subdivision of the State without having been a resident of Hawaii for three years immediately preceding his or her appointment. In 1972, the Hawaii Supreme Court declared that this statute created a classification which was not supported by any rational basis.³ It therefore held that the statute violated the Equal Protection Clause of the Constitution. York v. State, 53 Haw. 557, 498 P.2d 644 (1972). The enforcement of the statute was enjoined and there matters rested until early this year.

In January of 1977, defendant Ariyoshi, the Governor of Hawaii, expressed his willingness to "put this State in direct confrontation with the present laws of this land and possibly even the Constitution of the United States."⁴ He called for "bold . . ideas and action" to combat the problem of potential overpopulation in Hawaii. In response, the Legislature enacted a new, one-year durational residency requirement for public employment. Although no survey was ever made to ascertain the number of public employees who were residents of the state for less than a year, the Governor signed the law and it became effective on June 21, 1977.

The new version of Hawaii Revised Statutes section 78-1 provides in part:

(b) All employees in the service of the government of the State or in the service of any county or municipal subdivision of the State shall be citizens, nationals or permanent resident aliens of the United States and residents of the State for at least one year immediately preceding their application for employment. . . .

. . . . .

(f) The requirement of residency, as defined under subsection (b) . . shall not apply to persons recruited by the University of Hawaii under the authority of Chapter 304-11; provided, however, that all persons recruited as Administrative/Professional/Technical personnel of the University of Hawaii shall be subject to the requirement of residency; provided further that appointment of persons to positions requiring highly specialized technical and scientific skills and knowledge may be made without consideration of residency.

Act 211, 1977 Haw.Sess.Laws. The state immediately began to enforce this new statute.

B. The Named Plaintiffs.

This action was brought by four individual plaintiffs. In December, 1976, plaintiff David L. Nehring moved from Connecticut to Hawaii because his wife accepted employment heading up the nursing program at the University of Hawaii, Hilo. Reverend Nehring had never been to Hawaii before this time. In July, 1977, he applied for a job as a resident dorm manager at the Hilo campus of the University of Hawaii. Although before the residency law had been enacted, university authorities had encouraged Reverend Nehring to apply for this job, he was told that no interview would be forthcoming because he had not been a resident of Hawaii for more than a year.

Plaintiff Margo M. Brower arrived in Hawaii on June 2, 1977, after travelling from New York with her husband. Ms. Brower is trained as a teacher of English as a second language. She applied for jobs at all of the community colleges on Oahu. David Luke, the Assistant Personnel Director at the University of Hawaii, informed her that she could not qualify for an interview because of her residency status.

Plaintiff Dennis Donavon came to Hawaii for the first time in early 1977. He sought employment and was eventually hired as a vending facility specialist by Hoopono, the State agency for the blind. He began work on April 26, 1977, but was terminated on July 15, 1977. His supervisor informed him that his termination was due to the recent enactment of the durational residency statute. Hoopono has continued to accept Mr. Donavon's services as an unpaid volunteer.

Plaintiff Margaret Pitts came to Hawaii with her two children on August 1, 1976. Ms. Pitts is trained as a social worker and eventually obtained a job with the Child Protective Services Unit of the State Department of Social Services. She worked from May 26, 1977, until June 24, 1977, when her employment was terminated. As with Mr. Donavon, Ms. Pitts was informed by her supervisor that she was fired because of her residency status. Immediately upon her becoming a resident for a year (August 2, 1977), she was rehired for the same job.⁵

On August 1, 1977, these four individual plaintiffs filed a complaint under 42 U.S.C. § 1983 naming the Governor of Hawaii as the sole defendant. Representing the class of all residents of Hawaii who had not resided in the State for more than one year prior to the enactment of the residency requirement,⁶ the plaintiffs challenged the statute as violative of the Due Process and Equal Protection Clauses of the Fifth and Fourteenth Amendments.⁷ They simultaneously moved for a preliminary injunction restraining the defendant from enforcing the durational residency requirement for public employment. The defendant filed a counter-motion requesting that this Court abstain from decision so that the plaintiffs could pursue their claims in state court. Both motions were heard by the Court on August 25, 1977. For the reasons set forth below, I am of the opinion that the motion to abstain should be denied and that the preliminary injunction should issue.

II. THE MOTION TO ABSTAIN

The defendant asks that this Court defer to the state courts of Hawaii so that they will have the first opportunity to hear and decide the constitutional validity of the durational residency requirement. The defendant suggests that either of two forms of abstention would be appropriate in this case. These two types of abstention are commonly denominated as Pullman abstention and Burford abstention.

A. Pullman Abstention.

The Pullman doctrine requires a federal court to consider abstaining from decision in order to avoid unnecessary conflict with state policies whenever a federal constitutional issue may be avoided or presented in a different posture by a state court determination of an issue of relevant state law. Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941); Harrison v. N.A.A.C.P., 360 U.S. 167, 176-77, 79 S.Ct. 1025, 3 L.Ed.2d 1152 (1959). See generally P. Bator, P. Mishkin, D. Shapiro, & H. Wechsler, Hart & Wechsler's The Federal Courts and the Federal System 988-94 (2d ed. 1973) hereinafter cited as Hart & Wechsler; C. Wright, Law of Federal Courts § 52, at 218-21 (3d ed. 1976). The Court has made it clear that Pullman abstention should only be invoked in "special circumstances." Harris County Comm'rs v. Moore, 420 U.S. 77, 83, 95 S.Ct. 870, 43 L.Ed.2d 32 (1975). Abstention is the exception to the general rule that a court must decide any case or controversy properly presented to it. Only if the state statute is "fairly susceptible" to a construction which avoids or limits the constitutional question is abstention appropriate. Kusper v. Pontikes, 414 U.S. 51, 55, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973); Zwickler v. Koota, 389 U.S. 241, 251 n. 14, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967) (obviously susceptible). See also Carey v. Sugar, 425 U.S. 73, 96 S.Ct. 1208, 47 L.Ed.2d 587 (1976); Boehning v. Indiana Employees Ass'n, 423 U.S. 6, 96 S.Ct. 168, 46 L.Ed.2d 148 (1975); Steffel v. Thompson, 415 U.S. 452, 475 n. 22, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974).

In this case, it is helpful to consider two different factual situations which may call for abstention. First, a state statute may be ambiguous, with one possible construction of the statute avoiding or substantially limiting the federal constitutional question. Alternatively, a clear statute may possibly violate an unconstrued state constitutional provision. If the state constitutional provision nullifies the statute, there is no need to reach the federal question.

Turning to the first problem, the defendant argues that three things are unclear in the challenged statute: the term "residents," the phrase "all employees," and the exception in subsection (f) of the statute for certain persons recruited by the University of Hawaii. The defendant reasons that the term "residents" is ambiguous since it is not actually defined within the statute. The term is not ambiguous, however, just because someone says it is so. The defendant has never offered any reasonable definition of the word which would include the plaintiffs within the group of state residents entitled to seek public employment. For example, plaintiff Donavon came to Hawaii from Wisconsin six months prior to...