Section 10.  No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

     No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws:  and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress.

     No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Attorney General Opinions

Ex post facto law.

  Law requiring reporting of campaign contributions made before effective date of Act was not an ex post facto law.  Att. Gen. Op. 73-17.

Import-export.

  Hawaii's general excise and use taxes do not constitute an improper "Impost or Duty" under the import-export clause.  Att. Gen. Op. 94-2.

Obligation of contracts.

  Milk control legislation enacted within the proper exercise of a State's police powers will not be declared unconstitutional even though it may impair the obligation of a pre-existing contract.  Att. Gen. Op. 67-10.

Title of nobility.

  Section prohibits the states from granting titles of royalty upon their citizens.  Att. Gen. Op. 68-20.

Law Journals and Reviews

  For discussion of contracts clause, see Hawaii's Land Reform Act:  Is it Constitutional?  6 HBJ 31.

  The Contract Clause:  The "Regulated Industry" Exception.  8 UH L. Rev. 135.

  Kapiolani Park Preservation Society v. City and County of Honolulu:  The Lease of Public Park Land as a Breach of a Charitable Trust.  11 UH L. Rev. 199.

Case Notes

Bill of attainder.

  Plaintiffs, owners of leasehold interests in a condominium complex, did not meet the burden of establishing that the savings clause of the ordinance which repealed chapter 38 of the Revised Ordinances of Honolulu constituted a bill of attainder.  378 F. Supp. 2d 1258.

  Chapter 134 is not an impermissible bill of attainder with respect to plaintiff.  548 F. Supp. 2d 1151.

Duty of tonnage.

  Mooring and anchoring fees imposed by state regulations not a duty of tonnage.  42 F.3d 1185.

  Where plaintiffs argued that mooring and anchoring fees charged by State were duty of tonnage in violation of this section, plaintiffs' Article I challenge denied.  823 F. Supp. 766.

  Division of boating and ocean recreation's assessment of a two per cent ocean recreation management area fee against vessel was an impermissible tax in violation of prohibition against tonnage duties; two per cent use fee assessed other vessel was not a prohibited duty of tonnage.  195 F. Supp. 2d 1157.

Ex post facto law.

  Not violated by rule that, for purposes of criminal history calculation, state conviction for conduct which occurred after defendant's federal offense, but for which defendant was sentenced before defendant's sentencing on the federal offense, is counted as a prior sentence.  44 F.3d 749.

  Inmates' claim that sex offender treatment program violated ex post facto clause was ripe; sex offender treatment program did not violate ex post facto clause.  131 F.3d 818.

  Prison's policy of not placing untreated sex offenders in minimum custody did not violate ex post facto clause.  905 F. Supp. 813.

  General definition of.  50 H. 351, 440 P.2d 528.

  1964 amendments to the negligent homicide statute, as applied to prior wrongdoers, were not ex post facto.  50 H. 351, 440 P.2d 528.

  Law providing for increased punishment for repeat offenders, was not violative of the ex post facto clause.  61 H. 262, 602 P.2d 914.

  Retrospective application of §291-4, as amended by Act 128, L 1993, did not violate ex post facto clause.  76 H. 360, 878 P.2d 699.

  Chapter 846E not violative of this clause as legislature's express purpose was for chapter to be remedial rather than punitive and statutory scheme is not so punitive as to negate the State's remedial purpose.  105 H. 222, 96 P.3d 242.

  The constitutional prohibition against ex post facto measures was not offended by the plain language of Act 1, L Sp 2007 2d, amending §§706-661, 706-662, and 706-664 regarding sentencing or resentencing for extended terms of imprisonment, where it was clear that the new jury provisions did not (1) increase criminal liability for conduct previously innocent, (2) aggravate the degree of defendant's crimes, (3) increase the punishment available at the time defendant committed defendant's crimes, or (4) alter evidentiary standards to defendant's detriment.  117 H. 381, 184 P.3d 133.

  Where the department of public safety's (DPS) written policy for computing presentence credit for consecutive sentences merely adopted and enforced the holding of Tauiliili, which set forth the proper interpretation of §706-671, any change in the DPS's or the Hawaii paroling authority's internal policies regarding the calculation of presentence credit was irrelevant for purposes of an ex post facto analysis.  125 H. 429, 263 P.3d 709 (2010).

  The constitutional prohibition against ex post facto measures was not offended by the retrospective application to defendant of Act 1, L Sp 2007 2d, amending §§706-661, 706-662, and 706-664, where Act 1 did not punish as a crime an act previously committed which was innocent when done, make more burdensome the punishment for the crime after its commission, nor deprive one charged with the crime of any defense available according to the law when the act was committed.  118 H. 68 (App.), 185 P.3d 816.

Import-export.

  No violation in exempting certain locally produced products from liquor tax.  65 H. 566, 656 P.2d 724.

Obligation of contracts.

  District court did not abuse its discretion in granting plaintiffs' motion for a preliminary injunction, where court granted a preliminary injunction against operation of Act 355, L 1997  (which amended §78-13), State's "pay lag" law, on the ground that it impaired the obligations of the employees' collective bargaining agreement in violation of the contract clause.  183 F.3d 1096.

  Where lessees claimed that the ordinance that repealed chapter 38 of the Revised Ordinances of Honolulu impaired their contracts with the city and county of Honolulu in violation of the contracts clause, the reserved powers doctrine did not apply and U.S. Trust Co. v. New Jersey's heightened scrutiny test provided the mandatory analysis.  512 F.3d 1148.

  City ordinance that repealed an existing ordinance that allowed condominium lessees to convert their leasehold interests into fee interests through city's power of eminent domain was not in violation of the contracts clause because it did not impair the city's contractual relationships with lessees, who at the time, did not have the condemnation of their property approved by the city council prior to the effective date of the repealing ordinance.  639 F.3d 907 (2011).

  Zoning regulations did not impair development contract but only affected property which was subject matter of contract.  649 F. Supp. 926.

  Plaintiffs' motion for a preliminary injunction granted, where plaintiffs filed motion seeking to enjoin defendants from delaying payroll under Act 355, L 1997 (which amended §78-13), with respect to University of Hawaii faculty members, arguing that Act 355 violated the contract clause because a five-day delay in pay violated the collective bargaining agreement between the State and the faculty members at the University.  16 F. Supp. 2d 1242.

  Where there was no existing contract that Act 355, L 1997 (amending §78-13), impaired, no contracts clause violation possible and injunction no longer needed; the case was moot.  125 F. Supp. 2d 1237.

  Chapter 134 imposes no impairment of a contractual right possessed by plaintiff.  548 F. Supp. 2d 1151.

  Ordinance that repealed chapter 38, Revised Ordinances of Honolulu, which allowed owners of long-term leasehold interests to convert them into fee interests through the city and county of Honolulu's eminent domain power, did not violate the contracts clause.  630 F. Supp. 2d 1233 (2009).

  Contract clause violated where Act 189 of the 2009 Hawaii legislature (relating to real property) did not provide for "reasonable conditions" for meeting the legitimate purpose of Act 189 and was not "of a character appropriate to the public purpose".  715 F. Supp. 2d 1115 (2010).

  Retroactive application of §§437-52(3) and 437-58 did not violate the contracts clause; plaintiff distributor was granted leave to amend to allege claims based on violation of those sections, where, among other things, §§437-52(3) and 437-58 substantially impaired the parties' contractual relationship.  81 F. Supp. 3d 993 (2014).

  Where defendant manufacturer argued that the retroactive application of §437-52(1) to the distributorship agreement to alter the forum selection clause of the agreement violated the contracts clause, §437-52(1) did not substantially impair the parties' contractual relationship, and the retroactive application of §437-52(1) did not violate the contracts clause.  81 F. Supp. 3d 993 (2014).

  Although plaintiff argued that Act 103, Session Laws of Hawaii 2015, violated the contract clause because it interfered with the collective bargaining agreement (CBA) between unions representing public employees and the state Hawaii Health Systems Corporation (HHSC), court found that the transfer of management and operation of three state-owned medical facilities to a private entity did not substantially impair the CBA.  The CBA did not guarantee employment for the duration of the CBA, contained no explicit or implicit term that required the HHSC to operate any facility for the duration of the CBA, and explicitly contemplated possibility of employer-wide layoff, as well as layoffs due to a lack of work, needs, or funds.  166 F. Supp. 3d 1159 (2016).

  Plaintiff did not demonstrate that Act 103, Session Laws of Hawaii 2015, which directed the governor to transfer management and operation of three state-owned medical facilities to a private entity, conflicted with a provision of Act 262, Session Laws of Hawaii 1996, which established the state Hawaii Health Systems Corporation (HHSC), that prohibited the agency to enter into contractual or business relations, so as to impair, in violation of the contract clause, collective bargaining agreement between state and union representing public employees who worked for HHSC.  166 F. Supp. 3d 1159 (2016).

  Plaintiff did not show that Act 103, Session Laws of Hawaii 2015, substantially impaired any collective bargaining agreement provisions by depriving public employee union members, employed by the Hawaii Health Systems Corporation, of statutory protections concerning the State's civil service system and merit principle or public employees' bargaining rights.  Thus, there was no violation of the contract clause since civil service positions were creations of state law and could be eliminated by legislative act without violating statutory protections.  166 F. Supp. 3d 1159 (2016).

  Court found that Act 282, Session Laws of Hawaii 2019, which amended the nonjudicial foreclosure process as it related to condominium associations in chapter 667, violated the contracts clause of the United States Constitution.  Where condominium association was not legally permitted to foreclose upon plaintiff's condominium apartment because it lacked an agreed upon power of sale provision or other contractual agreement authorizing it to conduct nonjudicial foreclosures, Act 282, enacted after the foreclosure, retroactively validated the nonjudicial foreclosure of plaintiffs' condominium apartment and extinguished plaintiffs' ability to recover for their wrongful foreclosure claim.  And the Act, which benefited a favored group and not a basic societal interest, did not address a significant and legitimate public purpose.  453 F. Supp. 3d 1334 (2020).

  The legislature may alter or abolish public positions.  48 H. 370, 405 P.2d 772.

  State law requiring lessor to purchase leasehold improvements upon termination of lease unconstitutionally impairs obligation of preexisting lease contract.  69 H. 112, 736 P.2d 55.

  Clause does not prohibit execution of state laws on Hawaiian home lands merely because Congress has not expressed its consent to the exercise of such enforcement power.  80 H. 168, 907 P.2d 754.

  No violation by repeal of court reporter temporary certification rule where repeal did not substantially impair plaintiff's contractual relationships, repeal served a significant and legitimate public purpose, and was reasonably and narrowly drawn.  82 H. 329, 922 P.2d 942.