Hawaiʻi Senate Leadership (SB1437)
Subject
To:
President of the Senate
Majority and Minority Leadership
Members of the Hawaiʻi State Senate
Re: SB1437 – Memorandum of Law on Constitutional, Human Rights, and Due Process Implications
Aloha President and Members of the Senate,
Please accept the enclosed Memorandum of Law regarding Senate Bill 1437 (SB1437), submitted for inclusion in the legislative record and for consideration by the Senate, its committees, and staff.
This memorandum is advisory in nature and is intended to assist in evaluating potential Constitutional, human rights, and due process implications associated with SB1437. It outlines legal principles relevant to fundamental rights, informed consent, parental authority, and limits on enforcement authority, with the goal of supporting careful and informed legislative review.
The memorandum references a publicly issued Notice, Declaration, and Resolution of the People of Hawaiʻi solely to acknowledge that notice of Constitutional concerns has been placed on the public record in advance of legislative action. No action is demanded, and no authority is asserted beyond the provision of legal analysis for consideration.
We offer this memorandum in the spirit of transparency, respect for the legislative process, and commitment to lawful governance that serves the long-term interests of the people of Hawaiʻi.
Mahalo for your consideration and continued service.
Respectfully submitted, Print Name Authorization Signature Date City/Island
MEMORANDUM OF LAW
Re: Constitutional, Human Rights, and Due Process Implications of SB1437
I. PURPOSE OF THIS MEMORANDUM
This memorandum is submitted to provide legal and Constitutional analysis regarding Senate Bill 1437 (SB1437) and its potential implications for fundamental rights, bodily autonomy, parental authority, medical consent, due process, and related protections recognized under federal and state law.
This memorandum is advisory in nature and is intended to assist Senators, committees, and staff in evaluating legal risk, Constitutional compliance, and long-term consequences associated with SB1437.
II. BACKGROUND, PUBLIC NOTICE, AND RECORD PRESERVATION
Members of the public have placed on the open record a publicly accessible Notice, Declaration, and Resolution of the People of Hawaiʻi (the “Hawaiʻi People’s Scroll”) addressing concerns regarding the infringement and usurpation of unalienable God-given, natural, medical, and human rights potentially implicated by SB1437. The Public Scroll serves as a formal and continuing record of notice and non-consent and clarifies that silence, participation, or compliance must not be construed as consent, and that fundamental rights exist prior to and independent of policy, statute, or office.
The Public Scroll operates as a complete and independent public notice and does not require incorporation of any other document to be effective. This memorandum does not restate the public declaration. It references the Public Scroll solely to acknowledge that notice has been given and that the People’s position has been clearly articulated and preserved in advance of legislative action on SB1437.
In addition to the publicly issued Scroll, the People maintain a separate custodial record preserving the original declaration and attestations. This custodial record is not a public petition, is not a legislative proposal, and is not required for the effectiveness of public notice or for legislative consideration of SB1437. It exists solely for purposes of preservation, continuity, and internal governance. Any reference to the custodial record herein is provided for contextual clarity only and is not intended to incorporate that record into legislative deliberation, enactment, or enforcement.
III. GOVERNING LEGAL PRINCIPLES
A. Fundamental Rights Pre-Exist Government Action
Courts have long recognized that fundamental rights are not created by legislatures but are instead recognized and protected by law. Legislative acts that burden such rights are subject to heightened scrutiny and must demonstrate compelling justification, narrow tailoring, and proportionality.
B. Due Process and Informed Consent
Legislation affecting bodily autonomy, medical decision-making, parental authority, or compelled compliance raises due process concerns when it:
- Removes meaningful consent
- Penalizes refusal
- Conditions access to services on waiver of rights
- Substitutes policy for individualized determination
C. Limits of “Following Policy”
Public officials and institutions may not rely solely on policy or statute to justify actions that exceed Constitutional boundaries. Legislative enactment does not immunize subsequent enforcement from judicial review, particularly where notice of rights-based objections has been placed on the public record prior to enactment.
IV. LEGAL AND PRACTICAL RISKS OF PROCEEDING
If legislation proceeds without addressing these concerns, the following risks may arise:
- Increased litigation exposure, including claims alleging knowing or willful infringement following public notice.
- Challenges to enforcement actions taken in reliance on the statute, particularly in schools, medical settings, or administrative proceedings.
- Individual-capacity liability exposure where discretion is exercised beyond lawful authority.
- Long-term invalidation risk, resulting in sunk implementation costs and policy reversals.
Courts routinely consider whether legislatures were placed on notice of Constitutional defects prior to enactment when evaluating remedies, intent, and scope of relief.
V. RECOMMENDATIONS
To mitigate risk and promote lawful governance, legislators may wish to consider:
- Narrowing scope to avoid overbreadth
- Including explicit protections for consent and due process
- Providing opt-out or accommodation provisions
- Delaying enactment pending further study or hearings
- Clarifying limits on enforcement authority
- Including Freedom of Choice and Religious Exemption
Such measures serve both Constitutional integrity and public trust.
VI. CONCLUSION
This memorandum is offered in good faith to assist legislative deliberation concerning SB1437. It does not demand action, assert authority, or substitute for legislative judgment. It does, however, place lawmakers on clear notice of significant Constitutional and human rights concerns associated with the proposed legislation.