Report Title:

Hawaiian Home Lands Trust Claims; Court-Appointed Special Master

Description:

Replaces the individual claims review panel with a court-appointed special master to expedite the settlement of remaining claims. (SD2)

THE SENATE

S.B. NO.

610

TWENTY-SECOND LEGISLATURE, 2003

S.D. 2

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 three new sections to be appropriately designated and to read as follows:

"§674- Special master to resolve claims; appointment. (a) The department shall apply to the court seeking a court-appointed special master to review, evaluate, and recommend damages for each individual beneficiary claim filed with the Hawaiian home lands trust individual claims review panel prior to its expiration on December 31, 1999, that has not been settled under this chapter.

(b) The department shall request that the court issue an order no later than September 12, 2003, appointing a special master to evaluate individual beneficiary claims filed under this chapter that are not barred by the limitation contained in section 674-19.

(c) The application or petition under subsection (b) shall be solely for the purpose of appointing a special master. No other issues shall be allowed to be presented to the court.

(d) The special master shall be compensated in an amount to be determined by the governor and paid from general funds and shall be exempt from chapters 76 and 89.

§674- Duties of the special master. The special master shall review and evaluate individual beneficiary claims that were received by the Hawaiian home lands trust individual claims review panel prior to its expiration on December 31, 1999, and for those claims that have not been rejected by the Hawaiian home lands trust individual claims review panel or settled under this chapter, the special master shall:

(1) Determine the damages for claims in which the Hawaiian home lands trust individual claims review panel entered findings and recommendations;

(2) Determine the damages, if any, for any individual beneficiary's claim for which no findings or recommendation was made by the Hawaiian home lands trust individual claims review panel, based upon a methodology derived from a review of the recommendations made in other claims by the Hawaiian home lands trust individual claims review panel;

(3) Maintain a record consisting of a summary of claims brought before the special master, the findings and recommendation regarding the merits of each claim, and an explanation of the methodology used to derive the compensation for each claim;

(4) Not later than December 1, 2003, estimate the total amount of damages to resolve all claims, and report that amount with an explanation of the methodology used to make the estimate to the legislature no later than December 5, 2003;

(5) Prepare and transmit a report to the governor and legislature, at least twenty days prior to the convening of the 2004 regular legislative session, on the activities of the special master, an estimate of the total amount of probable compensation including an explanation of the methodology used to derive the total compensation amount, and any recommended corrective action by the State, for action by the legislature; and

(6) Disburse any compensation appropriated by the legislature in regular session; provided that if the claimant rejects the compensation, the claimant may proceed under section 674-17.

The special master, for good cause shown, may allow claims to be consolidated for review.

§674- Effect on pending class action. All claims under the jurisdiction of the special master shall not affect any class action lawsuit pending in court; provided that the damages awarded in the class action, if any, shall not be duplicative of the amount of the damages recommended by the special master and disbursed to the claimant pursuant to legislative appropriation."

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 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 regular legislative session, on the activities of the panel 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 is not acceptable to an individual beneficiary claimant]."

SECTION 3. 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 4. Section 674-17, Hawaii Revised Statutes, is amended to read as follows:

§674-17 Right to sue, individual claims. [(a)] An aggrieved individual claimant shall have the right to bring an action, in accordance with this part, in the circuit courts of the State for recovery of actual damages suffered by the claimant arising out of or resulting from a breach of trust which occurred between August 21, 1959, to June 30, 1988; provided that no action shall be filed until after October 1, 1997.

[(b) "Aggrieved individual claimant", as used in this section, means an individual claimant whose claim was reviewed by the panel 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 5. 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 6. 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 7. 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 8. Section 674-5, Hawaii Revised Statutes, is repealed.

["§674-5 Panel staff; power to contract. (a) Supervisory, administrative, investigatory, hearings, and clerical personnel necessary for the efficient functioning of the panel shall be appointed by the panel and the director of commerce and consumer affairs 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, 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 under this chapter.

(c) The panel 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 9. Section 674-6, Hawaii Revised Statutes, is repealed.

["§674-6 Rulemaking powers. The panel 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 deems necessary to carry out the purposes of this chapter."]

SECTION 10. Section 674-7, Hawaii Revised Statutes, is repealed.

["§674-7 Review by panel 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 no later than August 31, 1995, or shall forever be barred."]

SECTION 11. Section 674-8, Hawaii Revised Statutes, is repealed.

["[§674-8] Powers and procedures of the panel. (a) The panel 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 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 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 may administer oaths or affirmations to witnesses appearing before the panel. The panel 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 or any person designated by the chairperson. 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, 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 shall attempt to secure the voluntary appearance, testimony and cooperation of parties, witnesses and other persons appearing before the panel without coercion.

(d) The panel 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 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.

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

SECTION 12. Section 674-9, Hawaii Revised Statutes, is repealed.

["§674-9 Panel hearing or review proceedings; fact-finding; evidence. No persons other than the panel or hearings officer, the claimant, representatives of the concerned state agency, legal counsel, witnesses, and persons called by the panel to assist in its review, shall be present during any hearing or other proceedings conducted by the panel, 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. The panel 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 shall prepare 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 in connection with their review of the claim;

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

(7) The panel findings and advisory opinion.

No matters outside the record shall be considered by the panel 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 rules. At the discretion of the panel, 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 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 may receive any oral or documentary evidence, or any matter that, in the opinion of the panel, 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, and the panel 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. Discovery by the parties shall not be allowed."]

SECTION 13. Section 674-10, Hawaii Revised Statutes, is repealed.

["§674-10 Findings and advisory opinion. (a) The panel 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.

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

SECTION 14. Section 674-11, Hawaii Revised Statutes, is repealed.

["§674-11 Subsequent litigation; excluded evidence. No statement made in the course of any investigation, hearing, or review proceedings of the panel 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 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 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 15. Section 674-13, Hawaii Revised Statutes, is repealed.

["§674-13 Legal adviser. The panel, 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 16. Section 674-14, Hawaii Revised Statutes, is repealed.

["§674-14 Annual report. The panel 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, 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, which summarizes its activities in furtherance of this chapter, and shall include 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 recommended corrective action by the State, for action by the legislature in regular session."]

SECTION 17. Section 674-15, Hawaii Revised Statutes, is repealed.

["[§674-15] Limitations upon award of compensation or corrective action. No claim shall be made under this chapter for which a remedy was or is provided elsewhere under the laws of this State, which is or was the subject of pending or prior litigation, or which is predicated, in whole or in part, on an act or omission which occurred prior to August 21, 1959."]

SECTION 18. 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.

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

SECTION 19. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 20. This Act shall take effect upon its approval; provided that section 18 shall take effect on July 1, 2003.