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Thread: Process Server Laws: Hawaii

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    Darin Biddle's Avatar
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    Licensing Laws: Hawaii

    Rule 3. COMMENCEMENT OF ACTION.
    A civil action is commenced by filing a complaint with the court. "Complaint" includes any initial pleading required by statute.
    (Amended October 11, 1999, effective January 1, 2000.)

    Rule 4. PROCESS.
    (a) Summons: Issuance. Upon the filing of the complaint, the clerk shall forthwith issue a summons and deliver it to the plaintiff for service by a person authorized to serve process. Upon request of the plaintiff, separate or additional summons shall issue against any defendant.

    (b) Summons: Form. The summons shall

    (1) be signed by the clerk under the seal of the court,

    (2) contain the name of the court, the names of the parties, and the date when issued.

    (3) be directed to the defendant or cross-defendant,

    (4) state the name and address of the plaintiff's attorney, if any, otherwise the plaintiff's address,

    (5) state the time within which these rules require the defendant or cross-defendant to appear and defend, and shall notify the defendant or cross-defendant that in case of the defendant's or cross-defendant's failure to do so judgment by default will be rendered against the defendant or cross-defendant for the relief demanded in the complaint,

    (6) contain a prohibition against personal delivery of the summons between 10:00 p.m. and 6:00 a.m. on premises not open to the public, unless a judge of the family or circuit courts permits, in writing on the summons, personal delivery during those hours, and

    (7) contain a warning to the person summoned that failure to obey the summons may result in an entry of default and default judgment.

    When, under Rule 4(e), service is made pursuant to a statute or rule of court, the summons or notice, or order in lieu of summons, shall correspond as nearly as may be to that required by the statute or rule.

    (c) Summons: By Whom Served. Service shall be made: (1) anywhere in the State by the sheriff or the sheriff's deputy, by some other person specially appointed by the court for that purpose, or by any person who is not a party and is not less than 18 years of age; or (2) in any county by the chief of police of that county or the chief's duly authorized subordinate. Subpoena, however, may be served as provided in Rule 45.

    (d) Summons: Personal Service. The summons and complaint shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Service shall be made as follows:

    (1) Upon an individual other than a child or an incompetent person,

    (A) by delivering a copy of the summons and of the complaint to the individual personally or in case the individual cannot be found by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or

    (B) by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process.

    (2) Upon a child, by delivering a copy of the summons and of the complaint personally

    (A) to the parent or parents, custodian, or guardian of the minor or as provided by order of the court and

    (B) except as required by statute, if the child is 16 years or over, also to the child; and

    (3) Upon an incompetent person, by delivering a copy of the summons and of the complaint personally

    (A) to the guardian of the incompetent person or to the guardian of the incompetent person's property, or if the incompetent person is living in an institution then to the director or chief executive officer of the institution, or if service cannot be made upon either of them, then as provided by order of the court, and

    (B) unless the court otherwise orders, also to the incompetent person.

    (4) Upon a domestic or foreign corporation or upon a partnership or other unincorporated association which is subject to suit under a common name, by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by mailing a copy to the defendant.

    (5) Upon the State, by delivering a copy of the summons and of the complaint to the attorney general of the State or to the assistant attorney general or to any deputy attorney general who has been appointed by the attorney general.

    (6) Upon an officer or agency of the State, by serving the State and by delivering a copy of the summons and of the complaint to such officer or agency. If the agency is a corporation, the copies shall be delivered as provided in paragraph (4) of this subdivision of this rule.

    (7) Upon a county, as provided by statute or the county charter, or by delivering a copy of the summons and of the complaint to the corporation counsel or county attorney or any of the deputies.

    (8) Upon an officer or agency of a county, by serving the county and by delivering a copy of the summons and of the complaint to such officer or agency. If the agency is a corporation the copies shall be delivered as provided in paragraph (4) of this subdivision of this rule.

    (9) Upon a defendant of any class referred to in paragraph (1) or (3) of this subdivision of this rule, it is also sufficient if the summons and complaint are served in the manner prescribed by any statute.

    (e) Summons: Other Service. Whenever a statute or an order of court provides for service upon a party not an inhabitant of or found within the State of a summons, or of a notice, or of an order in lieu of summons, service shall be made under the circumstances and in the manner prescribed by the statute or order. Whenever a statute or an order of court requires or permits service by publication of a summons, or of a notice, or of an order in lieu of summons, any publication pursuant thereto shall be made under the circumstances and in the manner prescribed by the statute or order.

    (f) Territorial Limits of Effective Service. All process may be served anywhere within the State and, when a statute or order so provides, beyond the limits of the State.

    (g) Return. The person serving the process shall make proof of service thereof to the court promptly and in any event within the time during which the person served must respond to process. When service is made by any person specially appointed by the court, that person shall make affidavit of such service.

    (h) Amendment. At any time in its discretion and upon such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.
    (Amended July 1, 1982, effective July 1, 1982; further amended March 19, 1986, effective March 19, 1986; further amended September 14, 1993, effective September 14, 1993; further amended May 12, 1995, effective June 1, 1995; further amended October 11, 1999, effective January 1, 2000.)

    Rule 5. SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS.
    (a) Service: When Required. Every order required by its terms to be served, every pleading subsequent to the original complaint unless the court otherwise orders because of numerous defendants, every paper relating to discovery required to be served upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, brief or memorandum of law, offer of judgment, bill of costs, designation of record on appeal, and similar paper shall be served upon each of the parties, except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in Rule 4.

    (b) Service: How Made. Whenever under these rules service is required or permitted to be made upon a party represented by an attorney the service shall be made upon the attorney unless service upon the party is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to the attorney or party or by mailing it to the attorney or party at the attorney's or party's last known address or, if no address is known, by leaving it with the clerk of the court. Delivery of a copy within this rule means: handing it to the attorney or to the party; or leaving it at the attorney's or party's office with a clerk or other person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at the person's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. Service by mail is complete upon mailing.

    (c) Service: Numerous Defendants. In any action in which there are unusually large numbers of defendants, the court, upon motion or of its own initiative, may order that service of the pleadings of the defendants and replies thereto need not be made as between the defendants and that any cross-claim, counterclaim, or matter constituting an avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other parties and that the filing of any such pleading and service thereof upon the plaintiff constitutes due notice of it to the parties. A copy of every such order shall be served upon the parties in such manner and form as the court directs.

    (d) Filing. Except as otherwise provided in subdivision (f) of this rule, all papers after the complaint required to be served upon a party shall be filed with the court either before service or within a reasonable time thereafter.

    (e) Filing With the Court Defined. The filing of pleadings and other papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with the judge, in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk. Any other rule to the contrary notwithstanding, the clerk shall not refuse to accept for filing any paper presented for that purpose solely because it is not presented in proper form as required by these rules. Proposed findings, conclusions, orders, or judgments submitted for signature shall be dated and stamped "lodged" or "received" by the clerk and transmitted to the court for consideration.

    (f) Nonfiling of Discovery Materials. A deposition, interrogatory, request for discovery production or inspection, request for documents, request for admissions, and answers and responses thereto shall not be filed automatically with the court; provided that on a motion or at trial any such document shall be filed when offered in evidence or submitted as an exhibit; and further provided that a deposition taken outside this state or a deposition taken by an officer who is discontinuing the occupation of taking depositions shall be promptly filed pursuant to Rule 30(f)(1). In addition the court may at any time, on ex parte request or sua sponte, order the filing of any discovery material.
    (Amended July 1, 1982, effective July 1, 1982; further amended March 16, 1984, partly effective March 16, 1984, fully effective May 1, 1984; further amended June 23, 1997, effective August 1, 1997; further amended July 2, 1997, effective July 2, 1997; further amended October 11, 1999, effective January 1, 2000; further amended November 5, 1999, effective November 5, 1999.)

    Rule 6. TIME.
    (a) Computation. In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, a Sunday or a holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday or a holiday. When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays and holidays shall be excluded in the computation. As used in this rule, "holiday" includes any day designated as such pursuant to section 8-1 of the Hawai`i Revised Statutes.

    (b) Enlargement. When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under Rules 52(b), 59(b), (d) and (e) and 60(b) of these rules and Rule 4(a) of the Hawai`i Rules of Appellate Procedure, except to the extent and under the conditions stated in them.

    (c) (Deleted)

    (d) For Motions; Affidavits. A written motion, other than a motion pursuant to Rule 56 and one which may be heard ex parte, and notice of the hearing thereof, shall be served not later than 48 hours before the time specified for hearing, provided that whenever a motion which seeks relief pendente lite is served on the adverse party by mail in a circuit other than where the motion is filed, such service shall be made not later than 5 days before the time specified for the hearing, unless a different period is fixed by these rules or by order of the court, and provided further that whenever the motion is served upon the adverse party outside of the State, such service shall be made not later than 20 days before the time specified for hearing, unless a different period is fixed by these rules or by order of the court. Such an order may for cause shown be made on ex parte application. When a motion is supported by affidavit, the affidavit shall be served with the motion; and, except as otherwise provided in Rule 59(c), opposing affidavits may be served not later than the day preceding the hearing, unless the court permits them to be served at some other time.

    (e) Additional Time After Service by Mail. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail, 2 days shall be added to the prescribed period.
    (Amended July 1, 1982, effective July 1, 1982; further amended April 23, 1985, effective April 23, 1985; further amended October 11, 1999, effective January 1, 2000.)


    Rule 71. PROCESS IN BEHALF OF AND AGAINST PERSONS NOT PARTIES.
    When an order is made in favor of a person who is not a party to the action, that person may enforce obedience to the order by the same process as if a party; and, when obedience to an order may be lawfully enforced against a person who is not a party, that person is liable to the same process for enforcing obedience to the order as if a party.
    (Amended October 11, 1999, effective January 1, 2000)


    http://www.state.hi.us/jud/hfcr.htm
    What you don't know can, and usually does hurt you!
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  2. #2
    Edward Taguba's Avatar
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    Darin,

    Thanks so much to post this. I need to find out who here in Hawaii does this.

    Mahalo,


    Edward Taguba, MBA, Ph.D.

    Professional Global Technology Consultant
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    Darin Biddle's Avatar
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    You're very welcome, Ed! A good place to start would be your local court house.
    What you don't know can, and usually does hurt you!
    ~ Darin Biddle ~



  4. #4
    Edward Taguba's Avatar
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    Darin,

    I am scheduled to go in September 18, 2002 to get all my fingerprinting done and abstract done for my application for License.

    Thanks a lot

    Aloha,


    Edward Taguba, MBA, Ph.D.

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  5. #5
    Darin Biddle's Avatar
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    I'm very glad to hear that, Ed. I hope it all goes well. Good luck & best wishes!
    What you don't know can, and usually does hurt you!
    ~ Darin Biddle ~



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    Originally posted by Edward Taguba
    Darin,

    I am scheduled to go in September 18, 2002 to get all my fingerprinting done and abstract done for my application for License.

    Thanks a lot

    Aloha,
    If you obtain a license as a process server, please provide us with a copy so that we may upgrade your file and User Title.

  7. #7
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    Talking Hawaii Process Server Update

    Report Title:

    Hawaii Civil Process Servers



    Description:

    Creates the office of civil process and a commission to oversee the functions of civil process servers and civil court officers; prescribes qualifications of civil process servers and civil court officers; appropriates funds. (SD1)

    THE SENATE
    S.B. NO.
    2400

    TWENTY-FIRST LEGISLATURE, 2002
    S.D. 1

    STATE OF HAWAII



    --------------------------------------------------------------------------------


    A BILL FOR AN ACT



    RELATING TO PROCESS SERVERS.



    BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

    SECTION 1. Chapter 634D, Hawaii Revised Statutes, relating to service of process, was repealed by Act 9, Session Laws of Hawaii 1994, in favor of delegating the matter to the Hawaii rules of civil procedure. The legislature finds that the repeal has resulted in an unforeseeable and unintended vacuum in the regulation of civil process servers, who are currently administratively attached to the department of public safety. The legislature further finds that professional standards are necessary because process serving has become a dangerous undertaking in many instances, and requires a minimum level of skill and knowledge.

    The purpose of this Act is to restore the regulation of civil process servers, including court officers, and prescribe standards of qualification and performance.

    SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

    "Chapter

    HAWAII CIVIL PROCESS SERVERS

    § -1 Service of civil process; where made. Service of civil process shall be made:

    (1) Anywhere in the State by a civil court officer;

    (2) Anywhere in the State by a private process server;

    (3) By any other person specially appointed by the court for that purpose; or

    (4) By any person who is not a party to the action, and is not less than eighteen years of age.

    § -2 Service of subpoenas. A subpoena may be served:

    (1) In the State by the sheriff or deputy sheriff, civil court officer, or private process server;

    (2) In any county by the chief of police or duly authorized subordinate of that county; and

    (3) By any other person who is not a party to the action related to the document being served and is not less than eighteen years of age.

    § -3 Service of writs and other orders. A writ of execution, writ of replevin, writ of possession, writ of attachment, and other civil court orders may be served anywhere in the State by a civil court officer or by a licensed private investigator.

    § -4 Private process servers; certificate of registration. (a) A natural person who makes more that ten services of process within this State during one calendar year, for specific compensation or in expectation of specific compensation, where such compensation is directly attributable to the service of process, shall file and maintain a verified certificate of registration as a process server with the office of civil process commission.

    (b) A corporation or partnership that derives or expects to derive compensation from service of process with this State shall file and maintain a verified certificate of registration as a process server with the office of civil process commission.

    § -5 Private process servers; certificate; identification. (a) A private process server shall have been granted a certificate of registration by the office of civil process commission to act as a process server.

    (b) To be granted a certificate of registration, a person shall:

    (1) Be a citizen of the United States;

    (2) Have earned a high school diploma or equivalent;

    (3) Be at least twenty-one years of age;

    (4) Possess a valid driver’s license;

    (5) Qualify to be bonded;

    (6) Have no felony convictions;

    (7) Have knowledge and application of the Hawaii rules of civil procedures, as demonstrated by passing a twenty-five question examination;

    (8) Be registered with the office of civil process commission, including being current with payment of an annual registration fee of $100; and

    (9) Be bonded for not less that $25,000, proof of which shall be filed with the office of civil process commission.

    (c) A holder of a certificate of registration shall be issued a private process server photograph identification card. The photograph identification card shall be worn during service of process.

    § -6 Civil court officers. (a) Any person that is a certified civil deputy in the department of public safety, civil branch and is listed with the judiciary as a civil deputy as of November 1, 2001, shall be recognized as a civil court officer. The person shall register with the office of civil process commission and be assessed an annual registration fee of $100.

    (b) A person holding a certificate of registration as a private process server may qualify to become a civil court officer by meeting the following requirements:

    (1) Demonstrate knowledge of state statutes relating to service of process, writ of execution, writ of possession, exempt property, writ of replevin, writ of attachment, etc.;

    (2) Have served as apprentice with a professional enforcement process server trainer for a period determined by office of civil process commission. The trainer shall be liable for the apprentice’s actions during apprenticeship; and

    (3) Pass a written examination prepared by the office of civil process commission, after the trainer verifies that the candidate is ready to take the examination.

    (c) All candidates that meet the requirements under subsections (a) and (b) shall be issued a certificate of registration and a civil court officer badge and identification card.

    § -7 Office of civil process commission. (a) There is established an office of civil process commission placed in the judiciary for administrative purposes to carry out the duties of this chapter.

    (b) The office of civil process commission shall have an administrator, appointed by the chief justice, and a clerk and an investigator hired by the administrator.

    (c) The civil process commission shall have three commissioners, to be appointed in accordance with section 26-34, from nominees submitted to the governor, as follows:

    (1) One commissioner to be nominated by the Hawaii State Bar Association;

    (2) One commissioner to be nominated by the judiciary; and

    (3) One commissioner to be nominated by the Hawaii Deputy Sheriffs Association.

    (d) The civil process commission shall:

    (1) Administer the certificate of registration for private process server and civil court officer, issue badges, collect fees, administer written examinations, and keep on file all bonds from process servers;

    (2) Investigate all notarized complaints;

    (3) Meet monthly and review operations and complaints; provided that a hearing on a complaint shall be conducted as needed;

    (4) Enforce standards of conduct, including suspensions and termination from serving process in the State of Hawaii.

    (e) Monthly reports for operations and collection of fees shall be made to the commission by each holder of a certificate of registration for private process server.

    § -8 Surcharge on service. There shall be a surcharge of $1 on each civil document filed in the circuit and district court. The judiciary shall collect the surcharge upon filing of any document requiring service of process. Moneys collected shall be placed in a separate account by the judiciary for the expenses of the office of civil process commission.

    § -9 Standards of conduct. The commissioners of the office of civil process commission shall adopt rules in accordance with chapter 91 to specify the standards of conduct for process servers in the performance of their duties, including skills and knowledge, professionalism, and ethics.

    § -10 Applicability of chapter. This chapter shall not apply to:

    (1) Any sheriff, police officer, or government employee acting within the course and scope of employment;

    (2) An attorney, or an employee of an attorney acting on behalf of the attorney;

    (3) Any person that is specifically appointed by the court to serve process; and

    (4) A person licensed as a private investigator under chapter 463, or an employee acting on behalf of the private investigator."

    SECTION 3. There is appropriated out of the general revenues of the State of Hawaii the sum of $ , or so much thereof as may be necessary for fiscal year 2002-2003, for start-up costs of the office of civil process commission.

    The sum appropriated shall be expended by the judiciary for the purposes of this Act.

    SECTION 4. This Act shall take effect upon its approval; provided that section 2 shall take effect on July 1, 2002.


    Edward Taguba, MBA, Ph.D.

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    Smile Process Server-Where can I go?

    Originally posted by Edward Taguba
    Darin,

    I am scheduled to go in September 18, 2002 to get all my fingerprinting done and abstract done for my application for License.

    Thanks a lot

    Aloha,
    Hey Ed,

    Who are you doing? You know I've been calling everywhere to get assistance on where to go to licensed as a process server. But for some reason everyone keeps asking me what's a process server and that kind of baffled me. I was wondering if you can give me some advice on where I can go. Your help would be appreciated Ed.

    Mahalo
    Al-Rakeesh Alexander

    Badge# 5417

  10. #10
    Carmen Acai's Avatar
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    Hi, Ed! I just found this:
    OFFICE OF THE AUDITOR

    STATE OF HAWAII

    Sunrise Analysis of Process Servers

    Report No 91-17

    Summary

    We performed a sunrise analysis of whether the State should regulate civil process servers to protect the public. We concluded that the public interest is best served by not regulating them. Usually, sunrise analysis occurs before regulation is enacted, but the 1991 Legislature directed the auditor to perform an after-the-fact sunrise analysis of the regulation of process servers.

    "Process" refers to formal documents issued by a court to obtain jurisdiction over someone. "Service of process" is the delivery of these documents to a person in order to give notice that a civil or criminal case has been filed against him or her. In civil cases, the documents served on a defendant are the plaintiff's complaint and a summons.

    Until recently, Section 634-21, Hawaii Revised Statutes limited service of process in civil cases to sheriffs, police officers, court bailiffs, or other persons specially appointed by the court. Deputy sheriffs in the Department of Public Safety serve most civil process. But Act 123 of 1989 (Chapter 634D) added licensed process servers to those already authorized to serve process under Section 634-21, HRS. The Supreme Court is to develop qualifications for this new category of process servers and to license them. Chapter 634D requires a $25 application fee and a $5,000 bond. The licensing program has not yet been set up.

    We found that a new regulatory program for civil process servers is not warranted. The federal government and most states do not regulate them. True, delays in service of process can harm plaintiffs who seek to obtain a judgment while the defendant still has assets. But the plaintiff's attorney is responsible for proper service. Delays by the sheriffs in serving process have been alleged. But the remedy for this lies more in market competition than in licensing. Defendants could be harmed if the server falsely claims to have made the delivery, but we found no evidence that this is occurring.

    We also found problems in the new licensing law. It requires the Supreme Court to set qualifications for licensed process servers, but no special qualifications or competency are needed to prevent consumer harm. In addition, both the need for a $5,000 bond and the process for recovering on it are unclear. Further, the law does not define improper service or provide for disciplinary action.

    Recommendations and Response

    We recommend that Chapter 634D be repealed. The Hawaii Revised Statutes and the pertinent court rules should be amended to follow Rule 4 of the Federal Rules of Civil Procedure which allows civil process to be served by any person not a party to the case who is at least 18 years old. Federal officials whom we interviewed reported no difficulties with this procedure. This could bring new process servers into the system and foster healthy competition. At most, process servers could be required to register with the Supreme Court so that a list could be posted for the convenience of consumers.

    The Judiciary concurs with our recommendations to repeal Chapter 634D and adopt the federal approach. Concerned with workload demands and possible entanglements with litigation against process servers, however, the Judiciary recommends that any registration be the responsibility of the Department of Commerce and Consumer Affairs. We believe that this proposal has merit.

    The Department of Public Safety approves of repealing Chapter 634D but disapproves of adopting the federal approach. It fears that a "laissez faire" strategy could lead to more costly or less effective service of process.
    This is the link: http://www.state.hi.us/auditor/Overviews/1991/91-17.htm

    Can you help us with an update concerning the Office of Civil Process Commission within the Department of Public Safety? As per the Status below, it seems that the Bill is not in force being carried over to 2004 Regular Session:

    Hawaii State Legislature/Bill Status, Text, and Committee Reports

    Thank you.
    Carmen Acai
    Sr Moderator

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