REPORT TITLE:
Individual Claims Resolution


DESCRIPTION:
Provides that the Office of Administrative Hearings of the DCCA
shall resolve claims timely filed with the Hawaiian Home Lands
Trust Individual Claims Resolution Panel under Chapter 674, using
panel procedures.  DCCA is to determine the question of breach,
and award fixed compensation.  Gives claimants the right to
chapter 91 review of DCCA decisions.  Repeals individual
claimants' right action for breach of trust in state circuit
court.  Repeals the waiver of sovereign immunity.  Repeals
jurisdiction of state and federal courts over individual claims
of breach of trust under the Hawaiian homes commission act or
state constitution.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        2733
HOUSE OF REPRESENTATIVES                H.B. NO.           
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT

RELATING TO THE HAWAIIAN HOME LANDS TRUST.



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

 1      SECTION 1.  The purpose of this Act is to expedite
 
 2 resolution of claims filed with the Hawaiian home lands trust
 
 3 individual claims resolution panel (panel) under chapter 674,
 
 4 Hawaii Revised Statutes.
 
 5      This Act modifies the individual claims process by replacing
 
 6 the panel with the office of administrative hearings (hearings
 
 7 office) of the department of commerce and consumer affairs, and
 
 8 patterning the process after the federal Civil Liberties Act of
 
 9 1988, that provided redress for Americans of Japanese ancestry
 
10 who were interned during World War II.  The Act limits
 
11 adjudications of the hearings office to those claims that were
 
12 timely filed with the panel on or before August 31, 1995.  The
 
13 hearings office is to make a determination of liability, i.e., a
 
14 breach of trust by the department of Hawaiian home lands.  Pure
 
15 waiting list claims involving the length of time it takes to
 
16 receive a developed homestead, shall be considered by the
 
17 hearings office.  Once liability has been found, claimants, are
 
18 to be awarded a fixed amount of compensation.  This Act repeals
 
19 the individual right of action in state circuit court for breach
 

 
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 1 of trust, and limits judicial review of individual breach of
 
 2 trust claims to chapter 91, Hawaii Revised Statutes review of the
 
 3 decisions of the office of administrative hearings.
 
 4      The legislature finds that the procedure under this Act
 
 5 streamlines the adjudicative process and avoids unwarranted
 
 6 relitigation of claims.  The process finally resolves individual
 
 7 claims of breach of trust.
 
 8      SECTION 2.  The passage of this Act is in full satisfaction
 
 9 and resolution of all controversies at law and in equity, known
 
10 or unknown, now existing or hereafter arising, established or
 
11 inchoate, brought or claimed by individuals, arising out of or in
 
12 any way connected with the management, administration,
 
13 supervision of the trust, or disposition by the State or any
 
14 government agency of any lands or interests of land that are, or
 
15 were, or are alleged to have been, Hawaiian home lands, or to
 
16 have been covered by the Hawaiian Home Lands Commission Act
 
17 arising between August 21, 1959, and July 1, 1988.
 
18      It is the intention of the legislature to repeal, under this
 
19 Act, the right of individual claimants to bring an action in
 
20 state or federal court for breach of trust under the Hawaiian
 
21 Homes Commission Act or the Constitution of the State of Hawaii,
 
22 and to withdraw any and all jurisdiction that may have been
 
23 conferred by the State on the state and federal courts to hear
 

 
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 1 and decide all pending or future individual claims for breach of
 
 2 trust, other than the right to chapter 91 judicial review
 
 3 conferred under this Act.
 
 4      SECTION 3.  Chapter 674, Hawaii Revised Statutes, is amended
 
 5 by adding five new sections to be appropriately designated and to
 
 6 read as follows:
 
 7      "§674-    Pending claims.  Claims timely filed for review by
 
 8 the Hawaiian home lands trust individual claims review panel
 
 9 pursuant to section 674-7, and pending review, shall be heard by
 
10 the office of administrative hearings as provided under this
 
11 chapter.
 
12      §674-    Liability for breach of trust; completion of agency
 
13 adjudications.  (a)  The office of administrative hearings, with
 
14 regard to each individual claimant or class of claimants,
 
15 including those claims involving the length of time it takes to
 
16 receive a developed homestead, or "pure waiting list claims,"
 
17 shall decide the question of liability for breach of trust
 
18 occurring between August 21, 1959, and June 30, 1988, that was
 
19 caused by an act or omission by an employee of the State in the
 
20 management and disposition of trust resources.
 
21      (b)  The office of administrative hearings shall adjudicate
 
22 all remaining claims by June 30, 2001.
 

 
 
 
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 1      §674-    Hearing procedures.  To the extent consistent with
 
 2 this chapter, the office of administrative hearings shall apply
 
 3 the procedures set forth in rules adopted by the Hawaiian home
 
 4 lands trust individual claims review panel.
 
 5      §674-    Compensation.  (a)  Upon finding liability for
 
 6 breach of trust, the claimant shall:
 
 7      (1)  Receive a letter of apology signed by the governor; and
 
 8      (2)  Be eligible for a fixed award of compensation in the
 
 9           amount of $    .
 
10      §674-    Appeal from department decision.  Judicial review
 
11 under this chapter shall be limited to review under chapter 91 of
 
12 the final decisions and orders of the office of administrative
 
13 hearings adjudicating claims timely filed with the individual
 
14 claims review panel under section 674-4.  Only individual
 
15 claimants shall be entitled to bring an appeal pursuant to
 
16 chapter 91."
 
17      SECTION 4.  Section 674-1, Hawaii Revised Statutes, is
 
18 amended to read as follows:
 
19      "§674-1 Purpose.  The purpose of this chapter is to
 
20 establish a process under which individual beneficiaries under
 
21 the Hawaiian home lands trust may resolve claims for [actual]
 
22 damages arising out of or resulting from a breach of trust, which
 
23 occurred between August 21, 1959, and June 30, 1988, and was
 

 
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                                     H.B. NO.           
                                                        
                                                        

 
 1 caused by an act or omission of an employee of the State in the
 
 2 management and disposition of trust resources[:] by providing
 
 3 that:
 
 4      [(1) By establishing a Hawaiian home lands trust individual
 
 5           claims review panel which shall:
 
 6           (A)  Receive, review, and evaluate the merits of an
 
 7                individual beneficiary's claim;
 
 8           (B)  Render and issue an the merits of each claim filed
 
 9                with the panel, including an estimate of the
 
10                probable award of actual damages or recommended
 
11                corrective action that may be implemented to
 
12                resolve each claim;
 
13           (C)  Prepare and transmit a report to the governor and
 
14                legislature, at least twenty days prior to the
 
15                convening of each regular legislative session, and
 
16                a final report, at least twenty days prior to the
 
17                convening of the 1997 regular legislative session,
 
18                on the activities of the panel including a summary
 
19                of each claim brought before the panel, the
 
20                panel's findings and advisory opinion regarding
 
21                the merits of each claim, and an estimate of the
 
22                probable compensation or any recommended
 
23                corrective action for legislative action;
 

 
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 1           (D)  Disburse any compensation awarded by the
 
 2                legislature in regular session or undertake other
 
 3                actions as provided by law which are acceptable to
 
 4                a claimant; and
 
 5      (2)  By providing an individual beneficiary claimant the
 
 6           right to bring an action to recover actual damages for
 
 7           a breach of trust, in the circuit courts of the State
 
 8           of Hawaii, if the action taken by the legislature in
 
 9           regular session on each claim brought before the panel
 
10           is not acceptable to an individual beneficiary
 
11           claimant.]
 
12      (1)  The office of administrative hearings of the department
 
13           of commerce and consumer affairs shall hear only those
 
14           claims timely filed with the individual claims
 
15           resolution panel on or before August 31, 1995, and make
 
16           a determination of liability for breach of trust;
 
17      (2)  Claims involving the length of time it takes to receive
 
18           a developed homestead or "pure waiting list claims"
 
19           shall be adjudicated, and pure waiting list claimants
 
20           shall be eligible for awards;
 
21      (3)  The office of administrative hearing shall adjudicate
 
22           all remaining claims by June 30, 2001;
 

 
 
 
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 1      (4)  Successful claimants shall receive a letter of apology
 
 2           signed by the governor and a fixed award of
 
 3           compensation;
 
 4      (5)  The office of administrative hearings' decisions may be
 
 5           appealed by claimants under chapter 91; and
 
 6      (6)  The right of individual claimants to bring an action in
 
 7           state circuit court for breach of trust is repealed,
 
 8           and the basis for the jurisdiction of both state and
 
 9           federal courts to hear and decide all pending or future
 
10           individual claims for breach of trust is withdrawn."
 
11      SECTION 5.  Section 674-2, Hawaii Revised Statutes, is
 
12 amended as follows:
 
13      1.  By adding the definition of "office of administrative
 
14 hearings", to be appropriately inserted and to read:
 
15      ""Office of administrative hearings" means the office
 
16 established by the department of commerce consumer affairs under
 
17 section 26-9 for the purposes of adjudicating claims and other
 
18 cases falling with the jurisdiction of the department."
 
19      2.  By amending the definition of "compensation" to read:
 
20      "Compensation" means [an award of actual damages to a
 
21 claimant.] a monetary award in the amount of $    .
 
22      3.  By repealing the definition of "actual damages", "native
 
23 Hawaiian", and "panel".
 

 
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                                     H.B. NO.           
                                                        
                                                        

 
 1      [""Actual damages" means direct, monetary out-of-pocket
 
 2 loss, excluding noneconomic damages as defined in section 663-8.5
 
 3 and consequential damages, sustained by the claimant individually
 
 4 rather than the beneficiary class generally, arising out of or
 
 5 resulting from a breach of trust, which occurred between
 
 6 August 21, 1959, and June 30, 1988, and was caused by an act or
 
 7 omission by an employee of the State with respect to an
 
 8 individual beneficiary in the management and disposition of trust
 
 9 resources.
 
10      "Native Hawaiian" means any descendant of not less than one-
 
11 half part of the blood of the races inhabiting the Hawaiian
 
12 islands previous to 1778.
 
13      "Panel" means the Hawaiian home lands trust individual
 
14 claims review panel."]
 
15      SECTION 6.  Section 674-7, Hawaii Revised Statutes, is
 
16 amended to read as follows:
 
17      "§674-7 Review by panel required.  Any individual
 
18 beneficiary under the trust claiming actual damages arising out
 
19 of or resulting from a breach of trust, which occurred between
 
20 August 21, 1959, and June 30, 1988, and which was caused by an
 
21 act or omission of an employee of the State in the management and
 
22 disposition of trust resources under the trust, shall file a
 
23 claim therefor for review by the Hawaiian home lands trust
 

 
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                                     H.B. NO.           
                                                        
                                                        

 
 1 individual claims review panel no later than August 31, 1995, or
 
 2 shall forever be barred.  A claim by an individual beneficiary
 
 3 that has not been filed for review by the Hawaiian home lands
 
 4 trust individual claims review panel by August 31, 1995, shall
 
 5 forever be barred, regardless of whether the claim is for
 
 6 compensation other than actual damages."
 
 7      SECTION 7.  Sections 674-5, 674-6, 674-8, 674-9, 674-11,
 
 8 674-12, and 674-13 are amended by substituting the word "office
 
 9 of administrative hearings", or like term, wherever the word
 
10 "panel", or like term, appears, as the context requires.
 
11      SECTION 8.  Sections 674-3 and 674-4, Hawaii Revised
 
12 Statutes, are repealed.
 
13      ["[§674-3]  Establishment of the board of individual claims
 
14 resolution.  There shall be a Hawaiian home lands trust
 
15 individual claims review panel to be composed of five members and
 
16 appointed as follows:  the chairperson shall be appointed by the
 
17 governor and shall be a former federal or state court judge,
 
18 where possible, or an attorney licensed to practice law in the
 
19 courts of the State.  The governor shall appoint the remaining
 
20 four members, all of whom shall be from nominations submitted by
 
21 native Hawaiian organizations as defined in section 673-2.  No
 
22 more than two of the members shall be residents of the same
 
23 island.
 

 
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 1      All of these appointments shall be subject to senatorial
 
 2 confirmation.  The panel shall be placed within the department of
 
 3 commerce and consumer affairs for administrative purposes.
 
 4      §674-4 Tenure and compensation of members.  The term of
 
 5 office of each member of the panel shall be until December 31,
 
 6 1999.  Any member appointed to fill a vacancy shall be appointed
 
 7 by the governor for the remainder of the term.  A vacancy in the
 
 8 panel shall not affect its powers.
 
 9      Each member of the panel shall be compensated at the rate of
 
10 $100 per day for each day's actual attendance to the member's
 
11 duties; provided that the compensation shall not exceed a maximum
 
12 of $10,000 per year.  The members of the panel shall be paid
 
13 their necessary traveling and subsistence expenses incurred in
 
14 the discharge of their duties.  Expenses incurred under this
 
15 section shall be paid by the department of commerce and consumer
 
16 affairs."]
 
17      SECTION 9.  Section 674-10, Hawaii Revised Statutes, is
 
18 repealed.
 
19      ["§674-10  Findings and advisory opinion.(a)  The panel
 
20 shall prepare findings and an advisory opinion concerning the
 
21 probable merits of a claim, probable award of compensation, or
 
22 recommended corrective action by the State.
 

 
 
 
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 1      (b)  The findings and advisory opinion shall be signed by
 
 2 all members of the panel; provided that any member of the panel
 
 3 may file a written concurring or dissenting advisory opinion.
 
 4      (c)  The advisory opinion of the panel rendered on each
 
 5 claim shall be incorporated in the reports required by section
 
 6 674-14 for submission to the legislature."]
 
 7      SECTION 10.  Section 674-14, Hawaii Revised Statutes, is
 
 8 repealed.
 
 9      ["§674-14  Annual report.  The panel shall prepare a report
 
10 to be transmitted to the governor and to the legislature, at
 
11 least twenty days prior to the convening of the regular session
 
12 of 1998, and a final report to be transmitted to the governor and
 
13 to the legislature, at least twenty days prior to the convening
 
14 of the regular session of 1999, which summarizes its activities
 
15 in furtherance of this chapter, and shall include a summary of
 
16 each claim brought before the panel, the panel's findings and
 
17 advisory opinion regarding the merits of each claim, and an
 
18 estimate of the probable compensation or recommended corrective
 
19 action by the State, for action by the legislature in regular
 
20 session."]
 
21      SECTION 11.  Chapter 674, part III, Hawaii Revised Statutes,
 
22 is repealed.
 

 
 
 
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 1      SECTION 12.  There is appropriated out of the general
 
 2 revenues of the State of Hawaii the sum of $1 or so much thereof
 
 3 as may be necessary for fiscal year 2000-2001 to defray costs of
 
 4 the department of commerce and consumer affairs in the
 
 5 administration of this Act, and to satisfy awards under this Act.
 
 6      The sum appropriated shall be expended by the department of
 
 7 commerce and consumer affairs for the purposes of this Act.
 
 8      SECTION 13.  If any provision of this Act, or the
 
 9 application thereof to any person or circumstance is held
 
10 invalid, the invalidity does not affect other provisions or
 
11 applications of the Act which can be given effect without the
 
12 invalid provision or application, and to this end the provisions
 
13 of this Act are severable.
 
14      SECTION 14.  The revocation under this Act of part III of
 
15 chapter 674, Hawaii Revised Statutes, and of the State's waiver
 
16 of immunity from liability, shall apply to bar all actions for
 
17 breach of trust under the Hawaiian Homes Commission Act or the
 
18 Constitution of the State of Hawaii in state and federal court
 
19 upon the effective date of this Act, including those pending
 
20 final judgment on the effective date of this Act.
 
21      SECTION 15.  Statutory material to be repealed is bracketed.
 
22 New statutory material is underscored.
 
23      SECTION 16.  This Act shall take effect on July 1, 2000.
 
24 
 
25                           INTRODUCED BY:  _______________________