HB1036 HD1

SECTION 1. Chapter 353C, Hawaii Revised Statutes, is amended by adding a new section to be designated and to read as follows:

"§353C- Service of process; list. (a) For service of process, the director shall maintain a list of independent civil process servers to process:

(1) Orders to show cause pursuant to chapters 603, 604, and 633;

(2) Garnishment pursuant to chapter 652;

(3) Writs of replevin and attachment pursuant to chapter 634;

(4) Writs of possession pursuant to chapters 501 and 666;

(5) Orders for examination pursuant to chapter 636; and

(6) Writs of attachment or execution pursuant to chapter 651.

(b) Any independent civil process server may submit the server's name to the director to be placed on the list;

provided that a person shall not be placed on the list if the person:

(1) Is serving a criminal sentence;

(2) Has been convicted of a crime within the previous ten years;

(3) Is required to register as a sex offender;

(4) Is subject to any other legal restriction, including a temporary restraining order, that prevents the person from serving process; or

(5) Cannot provide a copy of a current State of Hawaii general excise tax license.

(c) The department, the State, and the agencies, officers, and employees of the department or the State shall not be responsible or liable for the actions of any independent civil process servers on the list. The maintenance of the list shall not create a private cause of action against the department, the State, or the agencies, officers, and employees of the department or the State.

(d) Placement of a person's name on the list shall not make the person a law enforcement officer, sheriff or deputy sheriff, or an employee or agent of the State."

SECTION 2. 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 sheriff, deputy sheriff, police officer, or independent civil process server from the department of public safety's list under section 353C- , the [~~officer~~] sheriff, deputy sheriff, police officer, or independent civil process server shall cause a copy of the writ, with a return of the [~~officer's~~] doings of the sheriff, deputy sheriff, police officer, or independent civil process server 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 3. 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~~] no 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~~] before 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, [~~or person authorized by the rules of court,~~] police officer, or independent civil process server from the department of public safety's list under section 353C- commanding the sheriff, deputy sheriff, [~~or other person authorized by the rules of court~~] police officer, or independent civil process server 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 4. 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~~] no 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~~] before 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, [~~or other person authorized by the rules of court~~] police officer, or independent civil process server from the department of public safety's list under section 353C- commanding the sheriff, deputy sheriff, [~~or a person authorized by the rules of court~~] police officer, or independent civil process server 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 5. 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~~] independent civil process server from the department of public safety's list under section 353C- shall be as provided under section 607‑8(a)."

SECTION 6. Section 607-8, Hawaii Revised Statutes, is amended by amending its title and subsection (a) to read as follows:

"§607-8 Fees of sheriff, deputy 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.~~] independent civil process server. (a) For all necessary travel in making the service, per mile for every mile more than one........60 cents; provided that:

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

(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 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,~~] independent civil process server from the department of public safety's list under section 353C‑ shall cause the process to be transmitted to the sheriff, a deputy sheriff, the chief of police, [~~other person authorized by the rules of court, or other serving individual~~] a police officer, or an independent civil process server 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, subpoena, subpoena duces tecum, or any other civil process, except a subpoena or a garnishee summons, for each person served therewith....................$43 effective July 1, 2015.

For serving: garnishee summons, for each person.........................$30 effective July 1, 2015.

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....................$10 effective July 1, 2015.

For serving any execution or other process for the collection of money, for every dollar collected up to $10,000... .................5 cents.

And for every dollar over $10,000......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.................$4.

For executing and acknowledging a deed pursuant to a sale of real estate to be paid by the grantee in the deed....$10.

For drawing any bond required by law..........$4.

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.............$40.

Together [~~will~~] 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~~] no 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~~] independent civil process server performing the service."

SECTION 7. 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~~] no 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~~] before 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, [~~or other person authorized by the rules of court~~] police officer, or independent civil process server from the department of public safety's list under section 353C- commanding the sheriff, deputy sheriff, [~~or other person authorized by the rules of court~~] police officer, or independent civil process server 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 8. Section 634-11, Hawaii Revised Statutes, is amended to read as follows:

"§634-11 Interpleader; application for order by sheriff [~~or other person authorized by the rules of court.~~], deputy sheriff, police officer, or independent civil process server. 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~~] independent civil process servers from the department of public safety's list under section 353C- 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,~~] independent civil process server 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,~~] independent civil process server 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,~~] independent civil process server, 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 9. 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~~] a police officer, or [~~other person authorized by the rules of court,~~] an independent civil process server from the department of public safety's list under section 353C- 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 10. 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, a deputy sheriff, an independent civil process server from the department of public safety's list under section 353C- , 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, police officer, independent civil process server, or investigator making the service. If the [~~officer~~] sheriff, deputy sheriff, police officer, independent civil process server, or investigator fails to make service, the [~~officer,~~] sheriff, deputy sheriff, police officer, independent civil process server, or investigator in like manner, shall endorse the reason for the [~~officer's~~] sheriff's, deputy sheriff's, police officer's, independent civil process server's, or investigator'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~~] an independent civil process server, that person shall make declaration or affidavit of that service.

The record, declaration, 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 sheriff, deputy sheriff, police officer [~~or person~~], independent civil process server, or investigator making service, in which case the sheriff, deputy sheriff, police officer [~~or person~~], independent civil process server, or investigator shall be notified to appear for examination."

SECTION 11. Section 634-29, Hawaii Revised Statutes, is amended to read as follows:

"[[]§634-29[]] In case of attachment, etc., of real property. In all cases of attachment, sequestration, or injunction of real property, the sheriff, deputy sheriff, police officer, or independent civil process server from the department of public safety's list under section 353C- serving the writ shall, in addition to personal delivery of a copy thereof to the defendant, post upon the premises a copy of the process, and a notice of the day and hour when attached, sequestrated, or enjoined, and shall also give notice thereof in a newspaper or newspapers suitable for the advertisement of judicial proceedings. But in all cases where a writ of attachment is issued in accordance with chapter 651 relating to attachments, and the defendant in attachment was never a resident of the State or has departed from the State or secretes oneself so that the writ of attachment cannot be personally served upon the defendant, personal service of the writ upon the defendant may be dispensed with. All after-leases, mortgages, sales, devises, assignments, trusts, or other conveyances of the property, until the dissolution of the process, shall be void in law as against the plaintiff in such cases."

SECTION 12. Section 651-1, Hawaii Revised Statutes, is amended to read as follows:

"§651-1 General provisions. (a) 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.

(b) The department of public safety, the State, and the agencies, officers, and employees of the department of public safety or the State shall not be responsible or liable for the actions of any independent civil process server on the list maintained by the department of public safety pursuant to section 353C- . The maintenance of the list pursuant to section 353C- shall not create a private cause of action against the department of public safety, the State, or the agencies, officers, and employees of the department of public safety or the State.

(c) Nothing in this chapter shall be construed to make an independent civil process server a law enforcement officer, sheriff, or deputy sheriff, or an employee or agent of the department of public safety or the State.

(d) As used in this chapter, "police officer" means the director of public safety or the director's duly authorized representative, any chief of police or subordinate police officer, or an independent civil process server on the list maintained by the department of public safety pursuant to section 353C- ."

SECTION 13. 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; [[]and[]]

(4) A summons directed to [~~a proper officer~~] the sheriff, deputy sheriff, a police officer, or an independent civil process server from the department of public safety's list under section 353C- commanding the [~~officer~~] sheriff, deputy sheriff, police officer, or independent civil process server to serve upon the debtor at least four days [~~prior to~~] before 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 14. Section 652-2, Hawaii Revised Statutes, is amended to read as follows:

"§652-2 Garnishee, rights, duties; collection by [~~levying officer.~~] sheriff, deputy sheriff, police officer, or independent civil process server. (a) The garnishee shall, when summoned before judgment rendered against [~~his~~] the garnishee's principal, if [he] the garnishee desires, be admitted to defend [~~his~~] the garnishee's principal in the action.

(b) 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 sheriff, deputy sheriff, police officer, or independent civil process server from the department of public safety's list under section 353C‑ serving the same to make demand of the garnishee for the goods and effects of the defendant secured in [~~his~~] the garnishee's 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~~] the garnishee's hands or the moneys held by [~~him~~] the garnishee 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 sheriff, deputy sheriff, police officer, or independent civil process server when demanded, the debt or wages or moneys held for safekeeping, the garnishee shall be liable to satisfy the judgment out of [~~his~~] the garnishee's own estate, as [~~his~~] the garnishee's 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~~] the garnishee's hands at the time of service all demands against the defendant of which [he] the garnishee could have availed [~~himself~~] the garnishee's self if [he] the garnishee had not been [~~garnisheed,~~] garnished, 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~~] the garnishee and the defendant, and shall be liable only for the balance after adjustment of all mutual demands between [~~himself~~] the garnishee and the defendant; provided further 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.

(c) 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~~] subsection shall not supersede section 652-9 where the same are applicable."

SECTION 15. 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, police officer, or independent civil process server from the department of public safety's list under section 353C- 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, police officer, or independent civil process server 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 16. 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, police officer, or independent civil process server from the department of public safety's list under section 353C- shall be prima facie proof of the service."

SECTION 17. Section 654-2, Hawaii Revised Statutes, is amended to read as follows:

"§654-2 Bond. (a) 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 person authorized by the rules of court,~~] an independent civil process server from the department of public safety's list under section 353C- to take the property therein described and deliver the same to the plaintiff.

(b) 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.

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

SECTION 18. 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,~~] independent civil process server from the department of public safety's list under section 353C- , commanding the sheriff, deputy sheriff, police officer, or [~~other person authorized by the rules of court~~] independent civil process server to remove all persons from the premises, and to put the plaintiff, or the plaintiff's agent, into the full possession thereof."

SECTION 19. 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,~~] independent civil process server from the department of public safety's list under section 353C- , ordering the sheriff, deputy sheriff, police officer, or [~~other person authorized by the rules of court~~] independent civil process server 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 20. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 21. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 22. This Act shall take effect upon its approval.

HOUSE OF REPRESENTATIVES	H.B. NO.	1036
THIRTY-FIRST LEGISLATURE, 2021		H.D. 1
STATE OF HAWAII