Report Title:

Crime Victim Compensation

Description:

Allows nonpayable restitution to be used for crime victim compensation, rather than escheating to the State; allows commission to transfer compensation awards to minors under the Uniform Transfers to Minors Act; gives commission authority to expand coverage for mental health services; allows commission to retain private counsel to pursue repayment of crime victim special funds; renames "pain and suffering" award to more clearly reflect the purpose of the award; and requires the judiciary to transmit an annual report to the legislature per progress in meeting the requirements of Act 206, Session Laws 1998. (SD1)

THE SENATE

S.B. NO.

618

TWENTY-SECOND LEGISLATURE, 2003

S.D. 1

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to crime victim compensation.

 

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

 

SECTION 1. The purpose of this Act is to amend the law relating to the crime victim compensation commission as follows:

(1) Provide that restitution collected by the judiciary on behalf of the commission for a victim who cannot be located shall be deposited to the credit of the crime victim compensation fund;

(2) Allow the commission to transfer a minor's compensation award to an appropriate state agency, adult, or trust company as custodian for the benefit of the minor under the Uniform Transfers to Minors Act;

(3) Give the commission the authority to pay for mental health services for surviving relatives in cases involving a death or sexual assault, and for child witnesses or witnesses who are sixty years of age or older in cases involving domestic abuse and other violent crimes;

(4) Allow the commission to retain private counsel to pursue repayment of crime victim compensation special funds when a victim to whom compensation was paid subsequently receives moneys from related civil law suits, court ordered restitution, or insurance proceeds;

(5) Amend the law relating to awards of compensation made by the commission for "pain and suffering" to victims and private persons, to instead be made as "acknowledgment awards" to those persons; and

(6) Require that the judiciary provide an annual report to the legislature detailing their progress in meeting the requirements of Act 206, Session Laws of Hawaii 1998, which provides for the mandatory assessment of a compensation fee, the proceeds of which are used to fund the crime victim compensation commission.

SECTION 2. Chapter 553A, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"553A- Transfer by the crime victim compensation commission. Notwithstanding any law to the contrary, if the crime victim compensation commission has ordered the payment of an award of compensation to a minor pursuant to chapter 351, the commission may make an irrevocable transfer of that award to an appropriate state agency, adult, or trust company as custodian for the benefit of the minor pursuant to section 553A-9."

SECTION 3. Section 28-8.3, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) No department of the State other than the attorney general may employ or retain any attorney, by contract or otherwise, for the purpose of representing the State or the department in any litigation, rendering legal counsel to the department, or drafting legal documents for the department; provided that the foregoing provision shall not apply to the employment or retention of attorneys:

(1) By the public utilities commission, the labor and industrial relations appeals board, and the Hawaii labor relations board;

(2) By any court or judicial or legislative office of the State;

(3) By the legislative reference bureau;

(4) By any compilation commission that may be constituted from time to time;

(5) By the real estate commission for any action involving the real estate recovery fund;

(6) By the contractors license board for any action involving the contractors recovery fund;

(7) By the trustees for any action involving the travel agency recovery fund;

(8) By the office of Hawaiian affairs;

(9) By the department of commerce and consumer affairs for the enforcement of violations of chapters 480 and 485;

(10) As grand jury counsel;

(11) By the Hawaiian home lands trust individual claims review panel;

(12) By the Hawaii health systems corporation or any of its facilities;

(13) By the auditor;

(14) By the office of ombudsman;

(15) By the insurance division;

(16) By the University of Hawaii;

(17) By the Kahoolawe island reserve commission;

(18) By the division of consumer advocacy; [or]

(19) By the crime victim compensation commission for any action to recover repayment of crime victim compensation special funds; or

[(19)](20)By a department, in the event the attorney general, for reasons deemed by the attorney general good and sufficient, declines, to employ or retain an attorney for a department; provided that the governor thereupon waives the provision of this section."

SECTION 4. Section 351-13, Hawaii Revised Statutes, is amended to read as follows:

"351-13 Powers and procedures of commission. (a) Except for cases assigned to the administrator pursuant to subsection (c), upon an application for compensation under this chapter, the commission shall fix a time and place for a hearing on the application and shall cause notice thereof to be given to the applicant. The commission may hold hearings, sit and act at times and places, and take testimony as it may deem advisable. Any two members shall constitute a quorum, but the concurring vote of the two members shall be necessary to take any action. Any member may administer oaths or affirmations to witnesses appearing before the commission. The commission shall have the same powers of subpoena and compulsion of attendance of witnesses and production of documents and of examination of witnesses as a circuit court. Subpoenas shall be issued under the signature of the chairperson or by majority vote of the commission members. 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 commission, 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 criminal cases in the circuit courts and shall be payable from funds appropriated for expenses of administration. The orders shall be signed by the chairperson or, in the absence of the chairperson, by the other two members.

(b) Notwithstanding any other provision, the commission may delegate to the administrator the authority to sign any order.

(c) The commission shall assign cases to the administrator for determination of eligibility and any order of compensation.

(d) If the applicant is dissatisfied with the determination by the administrator, the applicant may appeal to the commission for a hearing; provided that to be considered, the written appeal shall be received by the commission within sixty days of the mailing of a certified copy of the decision and order, and the commission shall review the case as if it was not heard before and as if no decision had been previously rendered. In such an event, the commission's decision shall be final.

(e) The commission may hire private counsel to pursue repayment of crime victim compensation special funds from victims, dependents, or private citizens to whom compensation was paid and who, subsequent to receiving compensation from the crime victim compensation special fund, receive moneys from a related civil law suit, court ordered restitution, or insurance proceeds."

SECTION 5. Section 351-31, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) In the event any private citizen is injured or killed by any act or omission of any other person coming within the criminal jurisdiction of the State after June 6, 1967, or any state resident is injured or killed by any act or omission of any other person after July 1, 1989, in another state, which act or omission is within the description of the crimes enumerated in section 351-32, or any resident of this State who is injured or killed by an act of terrorism occurring outside the United States, as defined in Title 18 United States Code section 2331, the commission in its discretion, upon an application, may order the payment of compensation in accordance with this chapter:

(1) To or for the benefit of the victim;

(2) To any person responsible for the maintenance of the victim, if that person has suffered pecuniary loss or incurred expenses as a result of the victim's injury or death;

(3) In the case of the death of the victim, to or for the benefit of any one or more of the dependents of the deceased victim;

(4) To any person who has incurred expenses on account of hospital, medical, funeral, and burial expenses as a result of the deceased victim's injury and death; [or]

(5) In cases involving a mass casualty incident, for mental health services to or for the benefit of:

(A) A relative of the deceased victim;

(B) A witness to the mass casualty; or

(C) An individual engaged in business or educational activities at the scene of the mass casualty incident;

provided that compensation to a victim shall have priority over compensation to a relative, a witness, or another individual under this paragraph, and provided further that this paragraph shall not apply to a member of a public or private agency responding to or providing services as a result of a mass casualty incident[.];

(6) In cases involving a death or sexual assault, for mental health services for the surviving relatives; or

(7) In cases involving a crime enumerated in section 351-32, for mental health services to or for the benefit of a child witness or a witness who is sixty years of age or older; provided that compensation to a victim shall have priority over compensation to a witness under this paragraph; and provided further that this paragraph shall not apply to a member of a public or private agency responding to or providing services as a result of a violent crime."

SECTION 6. Section 351-33, Hawaii Revised Statutes, is amended to read as follows:

"351-33 Award of compensation. The commission may order the payment of compensation under this part for:

(1) Expenses actually and reasonably incurred during the period of the injury or death of the victim;

(2) Loss to the victim of earning power as a result of total or partial incapacity;

(3) Pecuniary loss to the dependents of the deceased victim;

(4) [Pain and suffering] Acknowledgment award to the victim;

(5) Any other pecuniary loss directly resulting from the injury or death of the victim that the commission determines to be reasonable and proper; [and]

(6) Expenses actually and reasonably incurred for mental health services in the case of a mass casualty incident[.];

(7) Expenses actually and reasonably incurred for mental health services for the surviving relatives in cases involving a death or sexual assault; and

(8) Expenses actually and reasonably incurred for mental health services for a child witness or a witness who is sixty years of age or older in cases involving a crime enumerated in section 351-32."

SECTION 7. Section 351-52, Hawaii Revised Statutes, is amended to read as follows:

"351-52 Award of compensation. The commission may order the payment of compensation under this part for:

(1) Expenses actually and reasonably incurred during the period of the injury of the private citizen;

(2) [Pain and suffering] Acknowledgment award to the private citizen;

(3) Loss to the private citizen of earning power as a result of total or partial incapacity; and

(4) Pecuniary loss to the private citizen directly resulting from damage to the citizen's property."

SECTION 8. Section 351-62.5, Hawaii Revised Statutes, is amended by amending subsection (d) to read as follows:

"(d) Funds received pursuant to section 354D-12(b)(1) and amounts received pursuant to sections 351-35, 351-62.6, 351-63, 706-605, 706-646, 712A-18, and 853-1 shall be deposited into the crime victim compensation special fund. Moneys received shall be used for compensation payments, operating expenses, salaries of positions as authorized by the legislature, and collection of fees. The commission may enter into memorandums of agreement with the judiciary for the collection of fees by the judiciary; provided that no funds shall be deposited by the judiciary into the crime victim compensation special fund until collected."

SECTION 9. Section 351-64.5, Hawaii Revised Statutes, is amended to read as follows:

"351-64.5 Recovery of compensation paid. (a) Any person who has received under this chapter any amount as compensation to which the person was not entitled shall be liable for that amount unless the overpayment was received without fault on the part of the recipient and its recovery would be against equity and good conscience. The order or decision shall specify that the person is liable to repay to the fund the amount of overpaid compensation and the basis of the overpayment.

(b) The person liable shall, in the discretion of the commission, either repay any amount to the crime victim compensation special fund or have such amount deducted from any future compensation payable to the person under this chapter.

(c) Failure to comply with the provisions of this section by the person liable to repay overpaid compensation may at the discretion of the commission, result in civil action in the name of the State by the attorney general[.] or private counsel retained by the commission."

SECTION 10. Section 351-70, Hawaii Revised Statutes, is amended to read as follows:

"351-70 Annual report. (a) The commission shall transmit annually to the governor and to the director of public safety, at least thirty days prior to the convening of the legislature a report of its activities under this chapter [including a brief description of the facts in each case, and the amount, if any, of compensation awarded, and the names of attorneys and health care providers where they are the applicants. The director of public safety shall, within five days after the opening of the legislative session, transmit the report, together with a tabulation of the total amount of compensation awarded during the prior fiscal year and an estimate of the amount that is reasonably estimated to be required for the next fiscal year, and a legislative bill to appropriate funds for the crime victim compensation special fund for the next fiscal year. The commission shall provide upon request of the governor, the director of public safety, or the legislature, the relevant data, including the names of all applicants for compensation, under this chapter].

(b) The judiciary shall transmit annually to the governor and to the director of public safety, at least thirty days prior to the convening of the legislature, a report detailing the progress of the judiciary in meeting the requirements of Act 206, Session Laws of Hawaii 1998, including specific information regarding:

(1) Actual versus estimated compensation fee collections and the method of estimation;

(2) The number of eligible cases in which the fee was ordered;

(3) The number of eligible cases in which the fee was collected;

(4) The number of eligible cases in which the fee was waived; and

(5) In eligible cases in which the fee was waived, the criteria used for waiving the fee."

SECTION 11. Section 523A-3.5, Hawaii Revised Statutes, is amended to read as follows:

"523A-3.5 Escheat process. (a) Any property in custody of the State pursuant to this chapter at the close of a fiscal year ending June 30, shall escheat to the State as follows:

(1) If the value of the property is greater than $10,000, the property shall escheat six years after the end of the fiscal year in which the property was paid or delivered to the director;

(2) If the value of the property is greater than $5,000 but less than or equal to $10,000, the property shall escheat five years after the end of the fiscal year in which the property was paid or delivered to the director;

(3) If the value of the property is greater than $1,000 but less than or equal to $5,000, the property shall escheat four years after the end of the fiscal year in which the property was paid or delivered to the director;

(4) If the value of the property is greater than $100 but less than or equal to $1,000, the property shall escheat three years after the end of the fiscal year in which the property was paid or delivered to the director; and

(5) If the value of the property is less than or equal to $100, the property shall escheat two years after the end of the fiscal year in which the property was paid or delivered to the director;

provided that the property for which a timely claim has been filed with the director pursuant to section 523A-24, or a timely action has been filed pursuant to section 523A-26, shall not escheat until the disposition of the claim or action.

(b) The director shall cause notice to be given no later than April 1 of the fiscal year ending June 30 in which the property shall escheat to the State at least once statewide.

(c) The notice shall be entitled, "Notice to Declare Certain Abandoned Property Escheated to the State of Hawaii" and contain:

(1) A statement that any property presumed abandoned and paid or delivered to the director that remains unclaimed as of June 30 of the year the notice is given and that meets the escheat criteria established in subsection (a)(1), (2), (3), (4), or (5) shall escheat to the State on June 30, and all rights, title, or interest of the owner shall be terminated and all claims of the owner shall be forever barred;

(2) A statement listing the names of owners of abandoned property with a value greater than $5,000 scheduled to escheat to the State; and

(3) A statement identifying the location where a list of names and last known addresses, if any, of persons appearing to be owners of abandoned property subject to escheat on June 30 of the year the notice is given; and stating that this list shall be made available as a government record.

(d) This section shall not apply to sums payable on:

(1) Travelers checks, money orders, and other written instruments presumed abandoned under section 523A-4;

(2) Checks, drafts, or similar instruments on which a banking or financial organization is directly liable, including a cashier's check and a certified check presumed abandoned under section 523A-5; and

(3) Unpaid debt service payments on Hawaii state and county bonds.

(e) Notwithstanding subsection (a), any funds collected for payment of restitution under sections 706-646 or 712A-18 shall be deposited to the credit of the crime victim compensation special fund established under section 351-62.5."

SECTION 12. Section 706-646, Hawaii Revised Statutes, is amended to read as follows:

"706-646 Victim restitution. (1) As used in this section, "victim" includes any of the following:

(a) The direct victim of a crime including a business entity, trust, or governmental entity;

(b) If the victim dies as a result of the crime, a surviving relative of the victim as defined in chapter 351; or

(c) A governmental entity [which] that has reimbursed the victim for losses arising as a result of the crime.

(2) The court may order the defendant to make restitution for losses suffered by the victim or victims as a result of the defendant's offense. The court may order restitution to be paid to the crime victim compensation commission in the event that the victim has been given an award for compensation under chapter 351.

(3) Restitution shall be a dollar amount that is sufficient to reimburse any victim fully for losses including but not limited to:

(a) Full value of stolen or damaged property, as determined by replacement costs of like property, or the actual or estimated cost of repair, if repair is possible;

(b) Medical expenses; and

(c) Funeral and burial expenses incurred as a result of the crime.

(4) The restitution ordered shall not affect the right of a victim to recover under section 351-33 or in any manner provided by law; provided that any amount of restitution actually recovered by the victim under this section shall be deducted from any award under section 351-33.

(5) Notwithstanding any law to the contrary, any amount of restitution collected pursuant to this section that is not payable to the victim because the victim cannot be located shall be deposited to the credit of the crime victim compensation fund established in section 351-62.5."

SECTION 13. Section 712A-18, Hawaii Revised Statutes, is amended to read as follows:

"[[]712A-18[]] Victim restitution. (1) Nothing [herein] in this chapter precludes a court from ordering restitution or reparation to a victim by the defendant as part of a sentence imposed for a violation of a covered offense. [The] Except as provided in subsection (2), the State shall not be compelled to provide funds for victim restitution or reparation under this chapter.

(2) Notwithstanding any law to the contrary, any amount of restitution collected pursuant to this section that is not payable to the victim because the victim cannot be located shall be deposited to the credit of the crime victim compensation fund established in section 351-62.5."

SECTION 14. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 15. This Act shall take effect upon its approval.