Report Title:

Hawaiian Home Lands Trust Claims; Special Master

Description:

Replaces the individual claims review panel with a special master to expedite the settlement of remaining claims.

THE SENATE

S.B. NO.

610

TWENTY-SECOND LEGISLATURE, 2003

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO INDIVIDUAL CLAIMS RESOLUTION UNDER THE HAWAIIAN HOME LANDS TRUST.

 

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

SECTION 1. Chapter 674, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§674- Special master to resolve claims; appointment. The governor shall appoint a special master to resolve claims as described in section 674-1. The special master shall be compensated in accordance with the discretion of the governor and shall be exempt from chapters 76 and 89."

SECTION 2. Section 674-1, Hawaii Revised Statutes, is amended to read as follows:

"§674-1 Purpose. The purpose of this chapter is to establish a process under which individual beneficiaries under the Hawaiian home lands trust may resolve claims for actual damages arising out of or resulting from a breach of trust, which occurred between August 21, 1959, and June 30, 1988, and was caused by an act or omission of an employee of the State in the management and disposition of trust resources:

(1) By [establishing a Hawaiian home lands trust individual claims review panel which] appointing a special master under section , who shall:

(A) Receive, review, and evaluate the merits of an individual beneficiary's claim;

(B) Render findings and issue an advisory opinion regarding the merits of each claim filed with the panel, including an estimate of the probable award of actual damages or recommended corrective action that may be implemented to resolve each claim;

(C) Prepare and transmit a report to the governor and legislature, at least twenty days prior to the convening of each regular legislative session, and a final report, at least twenty days prior to the convening of the [1997] 2005 regular legislative session, on the activities of the [panel] special master, including a summary of each claim brought before the panel, the [panel's] findings and advisory opinion regarding the merits of each claim, and an estimate of the probable compensation or any recommended corrective action for legislative action;

(D) Disburse any compensation awarded by the legislature in regular session or undertake other actions as provided by law which are acceptable to a claimant; and

(2) By providing an individual beneficiary claimant the right to bring an action to recover actual damages for a breach of trust, in the circuit courts of the State of Hawaii, if the action taken by the legislature in regular session on each claim brought before the [panel] special master is not acceptable to an individual beneficiary claimant."

SECTION 3. Section 674-5, Hawaii Revised Statutes, is amended to read as follows:

"§674-5 [Panel] Special master's staff; power to contract. (a) Supervisory, administrative, investigatory, hearings, and clerical personnel necessary for the efficient functioning [of the panel] by the special master shall be appointed by the [panel and the director of commerce and consumer affairs] special master on a temporary exempt basis. There shall be a special assistant to the chairperson of the Hawaiian homes commission, to be hired by the commission, for the purposes of this chapter.

(b) Upon application by a claimant, the [panel,] special master under appropriate circumstances and in accordance with section 103D-209(b), may provide for legal services to assist a claimant in the preparation and presentation of a claim for review by the [panel] special master under this chapter.

(c) The [panel] special master shall have the power to make and execute contracts and all other instruments necessary or convenient for the exercise of its powers and functions under this chapter."

SECTION 4. Section 674-6, Hawaii Revised Statutes, is amended to read as follows:

"§674-6 Rulemaking powers. The [panel] special master shall adopt rules in accordance with chapter 91 prescribing the procedures to be followed in the filing of claims and in the proceedings for review of claims under this chapter, and any other rules as the [panel] special master deems necessary to carry out the purposes of this chapter."

SECTION 5. Section 674-7, Hawaii Revised Statutes, is amended to read as follows:

"§674-7 Review by [panel] special master required. Any individual beneficiary under the trust claiming actual damages arising out of or resulting from a breach of trust, which occurred between August 21, 1959, and June 30, 1988, and which was caused by an act or omission of an employee of the State in the management and disposition of trust resources under the trust, shall file a claim therefor for review by the [panel] special master no later than August 31, [1995,] 2004, or shall forever be barred."

SECTION 6. Section 674-8, Hawaii Revised Statutes, is amended to read as follows:

"[[]§674-8[]] Powers and procedures of the [panel.] special master. (a) The [panel] special master may hold hearings or such other proceedings as it deems necessary, sit and act at such times and places, and take such testimony as the panel deems advisable. The [panel] special master shall fix a time and place for hearings or other proceedings on such claim and shall cause notice thereof to be given to the claimant, the department and commission. The [panel] special master may, for good cause, allow claims to be consolidated for review.

[(b) A majority of all members to which the panel is entitled, which shall include the chairperson, shall constitute a quorum for the panel to meet and review any claim, and the concurrence of a majority of all the members to which the panel is entitled shall be necessary for any findings and advisory opinion issued by the panel to be valid.

(c) Any member of the panel] (b) The special master may administer oaths or affirmations to witnesses appearing before the [panel.] special master. The [panel] special master shall have powers of subpoena and compulsion of attendance of witnesses and production of documents and of examination of witnesses as are conferred upon a circuit court. Subpoenas shall be issued under the signature of the [chairperson] special master or any person designated by the [chairperson.] special master. The circuit court of any circuit in which a subpoena is issued or served or in which the attendance or production is required, upon the application of the [panel,] special master, may enforce the attendance and testimony of any witness and the production of any document so subpoenaed. Subpoena and witness fees and mileage shall be the same as in the circuit courts, and shall be payable from funds appropriated for expenses of administration. Notwithstanding such provisions, the [panel] special master shall attempt to secure the voluntary appearance, testimony and cooperation of parties, witnesses and other persons appearing before the [panel] special master without coercion.

[(d)] (c) The [panel] special master may appoint a hearings officer or officers, not subject to chapter 76, to hear any claims and render recommended findings. The hearings officer or officers shall have the same authority as the [panel] special master in conducting hearings or proceedings under this chapter. The recommended findings of the hearings officer or officers shall be subject to review and redetermination by the [panel.] special master.

[(e)] (d) Upon written acceptance by a claimant or an acceptance as provided in section 674-17, the [panel] special master shall disburse any compensation awarded by the legislature and undertake such other action as may be provided by law."

SECTION 7. Section 674-9, Hawaii Revised Statutes, is amended to read as follows:

"§674-9 [Panel] Special master hearing or review proceedings; fact-finding; evidence. No persons other than the [panel] special master or hearings officer, the claimant, representatives of the concerned state agency, legal counsel, witnesses, and persons called by the [panel] special master to assist in its review, shall be present during any hearing or other proceedings conducted by the [panel,] special master, except with the permission of the chairperson. For every claim filed, the department shall be notified and shall be entitled to be present during any hearing or other proceeding conducted by the [panel.] special master. The [panel] special master may, in its discretion, conduct an inquiry of a party, witness, or any other person without the presence of any or all parties.

All proceedings shall be informal. Except as otherwise provided in this chapter, chapters 91 and 92 shall not apply. For the purpose of this chapter, the [panel] special master shall [prepare] caused to be prepared a record of each claim. The record shall include:

(1) All correspondence, pleadings, motions, and rulings;

(2) Evidence received or considered, including oral or written testimony, exhibits, and a statement of any matters officially noticed;

(3) Offers of proof and rulings thereon;

(4) Proposed findings and exceptions;

(5) Staff memoranda, including investigative reports, submitted to [members of] the [panel] special master in connection with [their] the special master's review of the claim;

(6) Recommended or proposed findings of the hearings officer who presided at the hearing; and

(7) The [panel] special master findings and advisory opinion.

No matters outside the record shall be considered by the [panel] special master in reviewing and evaluating a claim. Unless otherwise provided by chapter 92F, the record of each claim shall be public and open for public inspection, except that staff memoranda, including investigative reports, shall be confidential and shall be made public only after a hearing has been held on the claim pursuant to the [panel's] special master's rules. At the discretion of the [panel] special master, staff memoranda, including investigative reports, may be disclosed to the parties prior to a hearing on the claim. Any party to whom a staff memorandum or investigative report is disclosed shall maintain its confidentiality and may make public its contents only after a hearing has been held on the claim.

The [panel] special master may require a stenographic record of all or part of its proceedings for the use of the panel, but the stenographic record shall not be made available to the parties. The [panel] special master may receive any oral or documentary evidence, or any matter that, in the opinion of the [panel,] special master, may contribute to its function under this chapter, whether or not the statement, document, information or matter would be admissible in a court of law. Questioning of parties, and witnesses may be conducted by the [panel,] special master and the [panel] special master may, in its discretion, permit any party, or any counsel for a party to question other parties, witnesses, or other persons appearing before the [panel.] special master. Discovery by the parties shall not be allowed."

SECTION 8. Section 674-10, Hawaii Revised Statutes, is amended to read as follows:

"§674-10 Findings and advisory opinion. (a) The [panel] special master shall prepare findings and an advisory opinion concerning the probable merits of a claim, probable award of compensation, or recommended corrective action by the State.

(b) The findings and advisory opinion shall be signed by [all members of the panel; provided that any member of the panel may file a written concurring or dissenting advisory opinion.] the special master.

(c) The advisory opinion of the [panel] special master rendered on each claim shall be incorporated in the reports required by section 674-14 for submission to the legislature."

SECTION 8. Section 674-11, Hawaii Revised Statutes, is amended to read as follows:

"§674-11 Subsequent litigation; excluded evidence. No statement made in the course of any investigation, hearing, or review proceedings of the [panel] special master shall be admissible in evidence either as an admission, to impeach the credibility of a witness, or for any other purpose in any legal proceeding. No opinion, conclusion, finding, or recommendation of the [panel] special master on the issue of liability, or on the issue of compensation, or corrective action shall be admitted into evidence in any legal proceeding, nor shall any party to the [panel] special master hearing, or the counsel, or other representative of the party, refer to or comment thereon in any opening statement, any argument, or at any other time, to any court or jury."

SECTION 9. Section 674-12, Hawaii Revised Statutes, is amended to read as follows:

"[[]§674-12[]] Immunity of [panel members] special master from liability. [No member of the panel shall] The special master shall not be liable in damages for libel, slander, or other defamation of character of any party to a [panel] special master proceeding for any action taken or any opinion, conclusion, finding, or recommendation made by [a panel member] the special master while acting within the [member's] special master's capacity [as a member of the panel] under this chapter."

SECTION 10. Section 674-13, Hawaii Revised Statutes, is amended to read as follows:

"§674-13 Legal adviser. The [panel,] special master, in accordance with section 103D-209(b), shall obtain its own legal counsel to provide legal services necessary to implement the purposes of this chapter."

SECTION 11. Section 674-14, Hawaii Revised Statutes, is amended to read as follows:

"§674-14 Annual report. The [panel] special master shall prepare a report to be transmitted to the governor and to the legislature, at least twenty days prior to the convening of the regular session of [1998,] 2004, and a final report to be transmitted to the governor and to the legislature, at least twenty days prior to the convening of the regular session of [1999,] 2005, which summarizes its activities in furtherance of this chapter, and shall include a summary of each claim brought before the [panel, the panel's] special master, the special master's findings and advisory opinion regarding the merits of each claim, and an estimate of the probable compensation or recommended corrective action by the State, for action by the legislature in regular session."

SECTION 12. Section 674-17, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) "Aggrieved individual claimant", as used in this section, means an individual claimant whose claim was reviewed by the [panel] special master under this chapter and who has filed, no later than October 1, 1999, a written notice with the panel that the claimant does not accept the action taken by the legislature in regular session upon the claim. Any claimant who fails to file a written notice rejecting the action of the legislature upon the claim shall be deemed to have accepted the action taken by the legislature."

SECTION 13. Section 674-2, Hawaii Revised Statutes, is amended by deleting the definition of "panel".

[""Panel" means the Hawaiian home lands trust individual claims review panel."]

SECTION 14. Section 674-3, Hawaii Revised Statutes, is repealed.

["[§674-3] Establishment of the board of individual claims resolution. There shall be a Hawaiian home lands trust individual claims review panel to be composed of five members and appointed as follows: the chairperson shall be appointed by the governor and shall be a former federal or state court judge, where possible, or an attorney licensed to practice law in the courts of the State. The governor shall appoint the remaining four members, all of whom shall be from nominations submitted by native Hawaiian organizations as defined in section 673-2. No more than two of the members shall be residents of the same island.

All of these appointments shall be subject to senatorial confirmation. The panel shall be placed within the department of commerce and consumer affairs for administrative purposes."]

SECTION 15. Section 674-4, Hawaii Revised Statutes, is repealed.

["§674-4 Tenure and compensation of members. The term of office of each member of the panel shall be until December 31, 1999. Any member appointed to fill a vacancy shall be appointed by the governor for the remainder of the term. A vacancy in the panel shall not affect its powers.

Each member of the panel shall be compensated at the rate of $100 per day for each day's actual attendance to the member's duties; provided that the compensation shall not exceed a maximum of $10,000 per year. The members of the panel shall be paid their necessary traveling and subsistence expenses incurred in the discharge of their duties. Expenses incurred under this section shall be paid by the department of commerce and consumer affairs."]

SECTION 16. There is appropriated out of the general revenues of the State of Hawaii the sum of $          , or so much thereof as may be necessary for fiscal year 2003-2004, and the same sum or so much thereof as may be necessary for fiscal year 2004-2005, for the purposes of this Act.

SECTION 17. The sum appropriated shall be expended by the governor for the purposes of this Act.

SECTION 18. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 19. This Act shall take effect upon its approval;

provided that section 16 shall take effect on July 1, 2003.

INTRODUCED BY:

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