Report Title:

Civil Process Service

Description:

To elimate the unnecessary expenditure of state resources in civil process server oversight function of the Sheriff Division, Department of Public Safety.

HOUSE OF REPRESENTATIVES

H.B. NO.

724

TWENTY-THIRD LEGISLATURE, 2005

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO CIVIL PROCESS SERVICE.

 

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

SECTION 1. Section 603-29, Hawaii Revised Statutes, is amended to read as follows:

"§603-29 Order to show cause. Whenever a complaint has been filed in circuit court alleging leased or rented personal property the value of which is $5,000 or more, has been retained by the defendant fourteen days after the termination of the lease or rental contract, either by passage of time or by reason of any default under the terms and conditions of the lease or rental contract, the plaintiff may petition the court for an order to show cause.

Upon the filing of the petition with a copy of the lease or rental contract and an affidavit sworn to by the plaintiff or some competent affiant setting forth a statement of facts sufficient to show the termination of the lease or rental contract, the court may issue an order directing the defendant to either return the leased or rented personal property to the plaintiff or to appear and show cause for the possession at such time as the court shall direct but not later than ten days from the date of service of the order to show cause. The order to show cause shall also provide that if the leased or rented personal property is not returned to the plaintiff prior to the hearing, the defendant shall, if reasonably feasible, produce the property at the hearing. If, at the hearing, it is proved to the satisfaction of the court that the plaintiff is entitled to possession of the leased or rented personal property, it shall issue an order directed to [the sheriff, or the sheriff's deputy,] any person authorized to serve process pursuant to section 634-21, commanding [the sheriff or deputy] that person to seize the personal property therein described and to deliver the same to the plaintiff or the plaintiff's agent. Service of the order to show cause shall be as provided by law or rule of court for cases in the circuit courts, or by registered mail or by certified mail with return receipt showing delivery within the circuit."

SECTION 2. Section 604-6.2, Hawaii Revised Statutes, is amended to read as follows:

"§604-6.2 Order to show cause. Upon the filing of a complaint with a copy of a lease or rental contract and an affidavit sworn to by the plaintiff or some competent affiant setting forth a statement of facts sufficient to show that the leased or rented personal property has been in the defendant's possession at least fourteen days after the termination of the lease or rental contract, either by passage of time or by reason of any default under the terms and conditions of the lease or rental contract, the court may issue an order directing the defendant to either return the leased or rented personal property to the plaintiff or to appear and show cause for the possession at such time as the court shall direct, but not later than ten days from the date of service of the order to show cause. The order to show cause shall also provide that, if the leased or rented personal property is not returned to the plaintiff prior to the hearing, the defendant shall, if reasonably feasible, produce the property at the hearing. If, at the hearing, it is proved to the satisfaction of the court that the plaintiff is entitled to possession of the leased or rented personal property, it shall issue an order directed to [the sheriff, or the sheriff's deputy,] any person authorized to serve process pursuant to section 634-21, commanding [the sheriff or deputy] that person to seize the personal property therein described and to deliver the same to the plaintiff or the plaintiff's agent. Service of the order to show cause shall be as provided by law or rule of court for cases in the district courts, or by registered mail or by certified mail with return receipt showing delivery within the State."

SECTION 3. Section 607-4, Hawaii Revised Statutes, is amended by amending subsection (d) to read as follows:

"(d) [Sheriff's or police officer's] Process server's fees:

(1) For serving any criminal summons, warrant, attachment, or other criminal process, $30 effective July 1, 2001.

(2) For serving any civil summons, warrant, attachment, or other civil process, $25 effective July 1, 2001.

(3) For every copy of an attachment and inventory of the property attached, served upon the defendant, $2.

(4) For serving any execution, 12 cents for every $1 collected up to $500, and 7 cents for every $1 over $500.

(5) For serving: subpoena, $25; and subpoena duces tecum or garnishee summons, $15 effective July 1, 2001.

(6) For every mile of travel, more than one, in serving any process, 40 cents; provided that (A) no allowance shall be made where the serving officer uses a conveyance furnished the serving officer by the State, or any political or municipal subdivision thereof; (B) where the serving officer serves more than one person in the course of one trip, the serving officer shall not charge, in the aggregate for all services, more than the mileage for the entire trip; and (C) as far as practicable, in order to minimize the mileage fees for the service, the sheriff or other chief of the serving officers, where service of process is to be made upon an island other than that upon which is situated the court issuing the process, shall cause the process to be transmitted to a deputy, the chief of police or other serving officer upon the island of service, who shall make the service upon receipt of the process; and the service shall be valid, notwithstanding that the process may not be addressed to the officer actually making the service or to the officer’s superior.

In lieu of any fee under this subsection, the fee may be an hourly rate of not less than $50 per hour agreed upon in advance between the party requesting the service and the [sheriff or police officer] process server performing the service."

SECTION 4. Section 633-8, Hawaii Revised Statutes, is amended to read as follows:

"§633-8 Order to show cause. Upon the filing of a complaint with a copy of a lease or rental contract and an affidavit sworn to by the plaintiff or some competent affiant setting forth a statement of facts sufficient to show that the leased or rented personal property has been in the defendant's possession at least fourteen days after the termination of the lease or rental contract, either by passage of time or by reason of any default under the terms and conditions of the lease or rental contract, the court may issue an order directing the defendant to either return the leased or rented personal property to the plaintiff or to appear and show cause for the possession at such time as the court shall direct, but not later than five days from the date of service of the order to show cause. The order to show cause shall also provide that, if the leased or rented personal property is not returned to the plaintiff prior to the hearing, the defendant shall, if reasonably feasible, produce the property at the hearing. If, at the hearing, it is proved to the satisfaction of the court that the plaintiff is entitled to possession of the leased or rented personal property, it shall issue an order directed to [the sheriff, or the sheriff's deputy,] any person authorized to serve process pursuant to section 634-21, commanding [the sheriff or deputy] that person to seize the personal property therein described and to deliver the same to the plaintiff or the plaintiff's agent. Service of the order to show cause shall be as provided by law or rule of court for cases in the district courts, or by registered mail or by certified mail with return receipt showing delivery within the circuit."

SECTION 5. Section 634-11, Hawaii Revised Statutes, is amended to read as follows:

"§634-11 Interpleader; [sheriff's] process server's application for order. When, in the execution of process against goods and chattels issued by or under the authority of the courts of the State, by reason of claims made to such goods and chattels by assignees of bankrupts and other persons not being the parties against whom such process had issued, whereby [the sheriffs and other officers are] any person authorized to serve process pursuant to section 634-21 is exposed to the hazard and expense of actions, any such claim shall be made to any goods or chattels taken or intended to be taken in execution under any such process or to the proceeds or value thereof, it shall be lawful for the court, out of which the execution shall have issued, or any judge thereof, upon application of [the sheriff or other officer] any person authorized to serve process pursuant to section 634-21 made before or after the return of such process, and as well before as after any action brought against [the sheriff or other officer,] any person authorized to serve process pursuant to section 634-21, to call before it or the judge by rule, order, or summons, as well the party issuing such process as the party making the claim. Thereupon the court or judge shall, for the adjustment of the claims and the relief and protection of [the sheriff or other officer,] any person authorized to serve process pursuant to section 634-21, make such rules, orders, and decisions as shall appear to be just according to the circumstances of the case. The costs of all such proceedings shall be in the discretion of the court or judge."

SECTION 6. Section 634-12, Hawaii Revised Statutes, is amended to read as follows:

"§634-12 Sale of property seized on execution, when. When goods or chattels have been seized in execution by [the sheriff or other officer] any person authorized to serve process pursuant to section 634-21 under process of any court, and some third person claims to be entitled under a bill of sale, chattel mortgage, or otherwise, to the goods and chattels by way of security for a debt, the court or a judge may order a sale of the whole or part thereof, upon such terms as to the payment of the whole or part of the secured debt or otherwise as it or the judge shall think fit; and may direct the application of the proceeds of sale in such manner and upon such terms as to the court or judge may seem just."

SECTION 7. Section 651-1, Hawaii Revised Statutes, is amended to read as follows:

"§651-1 General provisions. This part shall apply to circuit and district courts. A judge of any court of record may make any order at chambers which may by the provisions of this part be made by the court in term time. When the proceedings are before a district judge, the judge shall be regarded as the clerk of the court for all purposes contemplated herein. The phrase "police officer," as used in this [part,] chapter, means the director of public safety or the director's duly authorized representative, any chief of police or subordinate police officer, or a person authorized by the rules of court. Nothing in this part shall be construed to permit a district judge to issue a writ of attachment to be served out of the circuit in which the judge's court is situated, or to permit an attachment of real estate, or any interest therein, under a writ issued by a district court judge."

SECTION 8. Section 651-51, Hawaii Revised Statutes, is amended to read as follows:

"§651-51 Indemnity bond. [The sheriff, deputy sheriff, or police officer] Any police officer may decline to levy upon or sell the alleged property of any person against whose goods and effects an execution or other similar writ may issue, unless the party beneficially interested in the writ shall, upon request, tender to the officer a sufficient bond of indemnity against all costs and expenses which the officer may sustain in consequence of seizure or sale of the property, and the claims of third parties."

SECTION 9. Section 666-11, Hawaii Revised Statutes, is amended to read as follows:

"§666-11 Judgment; writ of possession. If it is proved to the satisfaction of the court that the plaintiff is entitled to the possession of the premises, the plaintiff shall have judgment for possession, and for the plaintiff's costs. Execution shall issue accordingly. The writ of possession shall issue to [the sheriff or to a police officer of the circuit where the premises are situated,] any person authorized to serve process pursuant to section 634-21, commanding [the sheriff or police officer] that person to remove all persons from the premises, and to put the plaintiff, or the plaintiff's agent, into the full possession thereof."

SECTION 10. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 11. This Act shall take effect upon its approval

INTRODUCED BY:

_____________________________

   

BY REQUEST