THE SENATE

S.B. NO.

1182

TWENTY-SEVENTH LEGISLATURE, 2013

S.D. 1

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO THE SERVICE OF PROCESS.

 

 

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

 


     SECTION 1. The legislature finds that process servers play an important role in facilitating a timely judicial process and protecting public safety.  Civil process servers in Hawaii are not required to obtain a license.

     In light of ongoing concerns regarding service of process, the legislature finds that the department of public safety should more clearly define and delineate the duties and responsibilities of process servers under its jurisdiction and examine ways of certifying and registering its process servers.

     The purpose of this Act is to require the department of public safety to convene a working group to clarify the duties and responsibilities of process servers under the department's jurisdiction, create a process of registration and certification of process servers, and address other relevant issues.

     SECTION 2.  The department of public safety shall convene a working group with the following objectives:

     (1)  Defining and delineating the duties and responsibilities of process servers under its jurisdiction;

     (2)  Creating a process to obtain certification for the sheriff division from the Commission on Accreditation for Law Enforcement Agencies, Inc., to ensure that proper law enforcement policies and procedures are enacted and followed;

     (3)  Creating a process of registration for process servers in the State; and

     (4)  Addressing other issues deemed relevant by the working group or by the department of public safety.

     SECTION 3.  The working group established under section 2 shall be composed of ten members as follows:

     (1)  Three current process servers to be appointed by the governor;

     (2)  Two current employees of the sheriff division to be appointed by the director of public safety;

     (3)  Two employees of the judiciary to be appointed by the chief justice;

     (4)  Two members of the Hawaii state bar association to be appointed by the president of the Hawaii state bar association;

     (5)  One member of the department of commerce and consumer affairs; and

     (6)  The director of public safety, as an ex officio member, to serve as chair.

     SECTION 4.  Members of the working group shall serve without compensation for their service on the working group.

     SECTION 5. The working group established by this Act shall report its findings and recommendations to the legislature no later than twenty days prior to the convening of the regular session of 2014. The working group shall meet at least four times.

     SECTION 6.  Section 501-154, Hawaii Revised Statutes, is amended to read as follows:

     "§501-154  Writ of possession, service, time limit for registration.  When in any action in the nature of an action of ejectment an execution or writ of possession has been issued and served by the [officer,] sheriff, deputy sheriff, or police officer, the [officer] sheriff, deputy sheriff, or police officer shall cause a copy of the writ, with a return of the [officer's] doings of the sheriff, deputy sheriff, or police officer thereon, to be filed and registered within three months after the service and before the return of the writ into the clerk's office.  The plaintiff, in case the judgment was that the plaintiff was entitled to an estate in fee simple in the demanded premises, or in any part thereof, and for which execution or writ of possession issued, is thereupon entitled to the entry of a new certificate of title."

     SECTION 7.  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, deputy sheriff, police officer, or person authorized by the rules of court, commanding the sheriff, deputy sheriff, police officer, or other person authorized by the rules of court 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 8.  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, deputy sheriff, police officer, or other person authorized by the rules of court commanding the sheriff, deputy sheriff, police officer, or [a] other person authorized by the rules of court 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 9.  Section 607-4, Hawaii Revised Statutes, is amended by amending subsection (d) to read as follows:

     "(d)  Fees of sheriff, deputy sheriff, police officer, or other person authorized by the rules of court:

     (1)  For serving any criminal summons, warrant, attachment, or other criminal process, $30 effective July 1, 2001.  This fee is payable to a sheriff, deputy sheriff, or a police officer.  Service of criminal summons, warrant, attachment, or other criminal process shall be made only by persons authorized to serve criminal summons in accordance with the rules of court.

     (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 individual uses a conveyance furnished the serving individual by the State, or any political or municipal subdivision thereof;

         (B)  Where the serving individual serves more than one person in the course of one trip, the serving individual 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 police officers, or other person authorized by the rules of court, 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 the sheriff, deputy sheriff, the chief of police, a person authorized by the rules of court, or other serving individual 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 individual actually making the service or to the individual'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, deputy sheriff, police officer, or other person authorized by the rules of court performing the service."

     SECTION 10.  Section 607-8, Hawaii Revised Statutes, is amended by amending the title and subsection (a) to read as follows:

     "§607-8  Fees of sheriff, police officer, serving or levying officer, or other person authorized by the rules of court in circuit court, intermediate appellate court, or supreme court.  (a)  For all necessary travel in making the service, per mile for every mile more than one...40 cents provided that:

     (1)  No allowance shall be made where the serving individual uses a conveyance furnished the serving individual by the State, or any political or municipal subdivision thereof; and

     (2)  Where the serving individual serves more than one person in the course of one trip, the serving individual shall not charge, in the aggregate for all services more than the mileage for the entire trip; and

     (3)  As far as practicable, in order to minimize the mileage fees for the service, the sheriff or [other] chief of police of the serving officers, or other person authorized by the rules of court 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 the sheriff, deputy sheriff, the chief of police, other person authorized by the [rules of] court, or other serving individual 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 individual actually making the service or to the individual's superior.

     For serving criminal summons or any other criminal process except a subpoena, for each person served therewith .................... $30 effective July 1, 2001.  Service of criminal summons or any other criminal process shall be made only by persons authorized to serve criminal summons in accordance with rules of court.

     For serving civil summons or any other civil process,

except a subpoena or a garnishee summons, for each person served therewith .............. $25 effective July 1, 2001.

     For serving: subpoena, for each person, $25; and subpoena duces tecum or garnishee summons, for each person ....................... $15 effective July 1, 2001.

     For returning as unserved after due and diligent search any process when it has been found that the person to be served has left the State ................ $5 effective July 1, 2001.

     For serving any execution or other process for the collection of money, for every dollar collected up

to $1,000 ....................................... 5 cents.

     And for every dollar over $1,000 ....... 2-1/2 cents.

     All fees paid to any printer for publishing an advertisement of the sale of any property.

     For every bill of sale .......................... $2.

     For executing and acknowledging a deed pursuant to a sale of real estate to be paid by the grantee in the deed............................ ..................... $8.

     For drawing any bond required by law............. $2.

     For serving writ of possession or restitution, putting any person entitled into the possession of premises, and removing a tenant pursuant to order of court................................................ $25.

     Together with all necessary expenses incurred by the individual serving the writ, incident to the eviction.

     For selling any property on an order from the court other than an execution, the same allowance as for service and sales by execution.

     The fees for service of executions, attachments, and collection of judgments, together with all costs incurred after judgment rendered, not included in the judgment, in all courts of the State, shall be collected in addition to the sum directed to be levied and collected in the writ.

     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, deputy sheriff, police officer, or other person authorized by the rules of court performing the service."

     SECTION 11.  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, deputy sheriff, police officer, or other person authorized by the rules of court commanding the sheriff, deputy sheriff, police officer, or other person authorized by the rules of court 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 12.  Section 634-11, Hawaii Revised Statutes, is amended to read as follows:

     "§634-11  Interpleader; application for order by sheriff, chief of police, or other person authorized by the rules of court.  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 sheriff, deputy sheriffs, [other] police officers, or persons authorized by the rules of court are 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, deputy sheriff, [other] police officer, or other person authorized by the rules of court, made before or after the return of such process, and as well before as after any action brought against the sheriff, deputy sheriff, [other] police officer, or other person authorized by the rules of court, 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, deputy sheriff, [other] police officer, or other person authorized by the rules of court, 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 13.  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, deputy sheriff, [other] police officer, or other person authorized by the rules of court, 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 14.  Section 634-22, Hawaii Revised Statutes, is amended to read as follows:

     "§634-22  Return.  In all cases where any process or order of a court is served by any officer of the court or of the police force or the sheriff, deputy sheriff, or any investigator appointed and commissioned by the director of commerce and consumer affairs pursuant to section 26-9(j), a record thereof shall be endorsed upon the back of the process, complaint, order, or citation.  The record shall state the name of the person served and the time and place of service and shall be signed by the sheriff, deputy sheriff, or police officer making the service.  If the sheriff, deputy sheriff, or police officer fails to make service, the sheriff, deputy sheriff, or police officer, in like manner, shall endorse the reason for the officer's failure and sign this record.  When service is made by a person specially appointed by the court, or a person authorized by the rules of court, the person shall make affidavit of that service.

     The record or the affidavit shall be prima facie evidence of all it contains, and no further proof thereof shall be required unless either party desires to examine the officer or person making service, in which case the officer or person shall be notified to appear for examination."

     SECTION 15.  Section 651-1, Hawaii Revised Statutes, is amended to read as follows:

     "§651-1  General provisions.  This chapter 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 chapter 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 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 chapter 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 16.  Section 652-1.5, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  Except as provided in subsection (e), any creditor desiring to secure a garnishment process before judgment shall attach the creditor's petition for process, summons, and direction to the following documents:

     (1)  An application, directed to the court to which such action is made returnable, for garnishee process to issue under section 652-1(a);

     (2)  An affidavit sworn to by the creditor or some competent affiant setting forth a statement of facts sufficient to show that probable validity exists to sustain the validity of the creditor's claim;

     (3)  An order that a hearing be held before the court or a judge thereof to determine whether or not the garnishee process should be granted and that notice of such hearing be given to the defendant debtor;

     (4)  A summons directed to [a proper officer] the sheriff, deputy sheriff, or police officer commanding the [officer] sheriff, deputy sheriff, or police officer to serve upon the debtor at least four days prior to the date of the hearing, pursuant to chapter 634, the application, a true and attested copy of the petition, summons, and direction, the affidavit, and the order and notice of hearing."

     SECTION 17.  Section 652-2, Hawaii Revised Statutes, is amended to read as follows:

     "§652-2  Garnishee, rights, duties; collection by [levying officer.] sheriff, deputy sheriff, or police officer by the court.  The garnishee shall, when summoned before judgment rendered against his principal, if he desires, be admitted to defend his principal in the action.

     If judgment is rendered in favor of the plaintiff, and likewise in all cases in which the garnishee is summoned after judgment, the garnishee fund, or such part thereof as may be sufficient for that purpose, shall be liable to pay the same.  The plaintiff on praying out execution shall be entitled to have included in the execution an order directing the [officer] sheriff, deputy sheriff, or police officer serving the same to make demand of the garnishee for the goods and effects of the defendant secured in his hands, whose duty it will be to expose the same to be taken on execution, and also to make demand of the garnishee for the debt or wages secured in his hands or the moneys held by him for safekeeping, or such part thereof as may satisfy the judgment.  It shall be the duty of the garnishee to pay the same.  If the garnishee has in any manner disposed of the goods and effects or does not expose and subject the same to be taken on execution, or if the garnishee does not pay to the [officer,] sheriff, deputy sheriff, or police officer, when demanded, the debt or wages or moneys held for safekeeping, the garnishee shall be liable to satisfy the judgment out of his own estate, as his own proper debt, if the goods or effects or debt or wages or moneys held for safekeeping, be of sufficient value or amount and, if not, then to the value of the same; provided that every garnishee, whether summoned before or after judgment, shall be allowed to retain or deduct from the goods, effects, and credits of the defendant in his hands at the time of service all demands against the defendant of which he could have availed himself if he had not been garnisheed, whether the same are at the time due or not, and whether by setoff on a trial or by setoff of judgments or executions between himself and the defendant, and shall be liable only for the balance after adjustment of all mutual demands between himself and the defendant; provided that in such adjustment no demands for unliquidated damages for wrongs or injuries shall be included, and that the judgment shall show the amount of any setoff.

     No garnishee shall be liable to anyone for the nonpayment of any sum or for the nondelivery of any goods or effects when the garnishee in good faith believes, or has reason to believe, that garnishment or other process affects the same, though such be not the case, but this paragraph shall not supersede section 652-9 where the same are applicable."

     SECTION 18.  Section 652-2.5, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§652-2.5[]]  Service on garnishee.  Service of the copy upon the garnishee may be made in any of the manners here described, namely:

     (1)  If the garnishee lives or has an office in the district in which process is issued, by the [serving officer's] sheriff, deputy sheriff, or police officer handing a copy to the garnishee in person or leaving it in the garnishee's office in charge of some deputy or clerk or other employees or attache of the office; or

     (2)  If the garnishee lives in a district other than that in which the process was issued, by the [serving officer's] sheriff, deputy sheriff, or police officer handing a copy to the garnishee in person, or by mailing it in a sealed envelope, registered or certified, postage prepaid, return receipt requested, and addressed to the garnishee's last known home or business address."

     SECTION 19.  Section 652-2.6, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  In case of service upon the garnishee, the [serving officer's] certificate of service or, if by mail, a copy of the return receipt provided by the sheriff, deputy sheriff, or police officer shall be prima facie proof of the service."

     SECTION 20.  Section 652-5, Hawaii Revised Statutes, is amended to read as follows:

     "§652-5  Successive sequestration of wages, upon change of employment.  Whenever any judgment debtor has left the employ of any garnishee, against whom an order has been duly issued, before the full amount of the judgment has been paid, and has entered the employment of some other person, or of the State, or any political subdivision thereof, then the judgment creditor may sequester any wages due the judgment debtor from the new employer by filing with such person, or the respective government comptroller or other [officer] official a certified copy of the judgment and an affidavit of the judgment creditor, showing the amount remaining due and unpaid on account of the judgment.

     Thereafter, the new garnishee shall proceed to pay the same percentages of wages as required in an original garnishment, on the balance of the judgment, from week to week or month to month, until the balance due, with legal interest, is fully paid; or until such employment of the judgment debtor ceases."

     SECTION 21.  Section 654-2, Hawaii Revised Statutes, is amended to read as follows:

     "§654‑2  Bond.  When the plaintiff desires the immediate delivery of the property, the plaintiff shall execute a bond to the defendant in possession of the property, and to all persons having an interest in the property, of such amount and with such sureties as are approved by the court, conditioned that the plaintiff will prosecute the plaintiff's action to judgment without delay, and deliver the property to the defendant in possession or any other person, if such delivery is adjudged, and pay all costs and damages that may be adjudged against the plaintiff.  Upon the filing of the verified complaint or affidavit with the bond and a motion for immediate consideration of the matter, the court shall forthwith inquire into the matter, ex parte or otherwise, as in its discretion it determines.  If thereupon the court finds that a prima facie claim for relief has been established, it shall issue an order directed to the sheriff, or the sheriff's deputy, or the chief of police, or an authorized police officer of any county, or [a] other person authorized by the [rules of] court, to take the property therein described and deliver the same to the plaintiff.

     Copies of the verified complaint or affidavit, and, if a bond for immediate seizure has been filed, of the bond, and, if an order for the taking has been issued on an ex parte hearing, of the order, shall forthwith be served upon the defendant in possession and each person having or claiming a possessory interest in the property, in the same manner as is provided for service of summons unless the party to be served has appeared in the action, in which case service may be made in the same manner as is provided for service of papers other than the summons.  In a proper case, either before or after issuance of an order for the taking, the required service may be combined with the publication of the summons, in which event the giving of notice of the substance of the proceeding shall be sufficient.

     Upon the application of any party, the proceeding shall be advanced and assigned for hearing at the earliest possible date."

     SECTION 22.  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, deputy sheriff, police officer, or other person authorized by the [rules of] court of the circuit where the premises are situated, commanding the sheriff, deputy sheriff, police officer, or other person authorized by the [rules of] court to remove all persons from the premises, and to put the plaintiff, or the plaintiff's agent, into the full possession thereof."

     SECTION 23.  Section 666-21, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

     "(b)  If the tenant is unable to comply with the court's order under subsection (a) in paying the required amount of rent to the court, the landlord shall have judgment for possession and execution shall issue accordingly.  The writ of possession shall issue to the sheriff, deputy sheriff, police officer, or other person authorized by the rules of court of the circuit where the premises are situated, ordering the sheriff, deputy sheriff, or police officer, or other person authorized by the rules of court to remove all persons and possessions from the premises, and to put the landlord, or the landlord's agent, into full possession of the premises."

     SECTION 24.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 25.  This Act shall take effect upon its approval.

 


 


 

Report Title:

Department of Public Safety; Judiciary; Service of Process

 

Description:

Requires the department of public safety to form a working group to define and delineate the duties and responsibilities of process servers under its jurisdiction, create a process to obtain certification for the sheriff division from the Commission on Accreditation for Law Enforcement Agencies, Inc., to ensure that proper law enforcement policies and procedures are enacted and followed, create a process of registration for process servicers in the state, and address other issues deemed relevant by the working group or by the department of public safety.  Requires a report to the legislature.  Updates the statutes to authorize law enforcement officers, including sheriffs, deputy sheriffs, and police officers to serve legal process.  (SD1)

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.