HB1003 CD1

Report Title:

Crime Victim Compensation

Description:

Allows funds from 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; and gives commission authority to expand coverage for mental health services. (HB1003 CD1)

HOUSE OF REPRESENTATIVES	H.B. NO.	1003
TWENTY-SECOND LEGISLATURE, 2003		H.D. 1
STATE OF HAWAII		S.D. 2
		C.D. 1

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 following public notification;

(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 counseling 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) Amend the law relating to awards of compensation made by the commission by repealing "pain and suffering" awards and instead awarding "acknowledgment of harm" moneys;

(5) Require that the judiciary provide information to the commission detailing their compliance with section 351-62.6, Hawaii Revised Statutes, which provides for the mandatory assessment of a compensation fee, the proceeds of which are used to fund the crime victim compensation commission;

(6) Amend the definition of "victim" to include a child or a person who is sixty years of age or older who is a witness to a crime enumerated in section 351-32, Hawaii Revised Statutes, and is in need of mental health counseling services; and

(7) Provide that except for persons already employed by the commission in civil service positions, persons appointed to the commission are appointed without regard to the civil service laws, and upon those civil service positions becoming vacant, the positions are to be filled by noncivil service appointments.

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 351-2, Hawaii Revised Statutes, is amended by amending the definition of "victim" to read as follows:

""Victim" means:

(1) A person who is injured or killed by any act or omission of any other person coming within the criminal jurisdiction of the State;

(2) Any resident of the State who is injured or killed in another state by an act or omission of another person, which act or omission is within the description of any of the crimes specified in section 351-32; [or]

(3) A person who is a 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[.]; or

(4) A child or a person who is sixty years of age or older who is:

(A) A witness to a crime enumerated in section 351-32; and

(B) In need of mental health counseling services."

SECTION 4. 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

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 counseling services for the surviving relatives; provided that these services address a mental health problem caused by the death or sexual assault; or

(7) In cases involving a crime enumerated in section 351-32, for mental health counseling services to or for the benefit of a child witness or a witness who is sixty years of age or older; provided that these services address a mental health problem caused by witnessing the crime; provided further 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 5. 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 of harm 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 counseling services for the surviving relatives in cases involving a death or sexual assault; provided that these services address a mental health problem caused by the death or sexual assault; and

(8) Expenses actually and reasonably incurred for mental health counseling services for a child witness or a witness who is sixty years of age or older; provided that these services address a mental health problem caused by witnessing the crime, in cases involving a crime enumerated in section 351-32."

SECTION 6. 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 of harm 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 7. 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 8. Section 351-69, Hawaii Revised Statutes, is amended to read as follows:

"§351-69 Commission staff. Supervisory, administrative, and clerical personnel necessary for the efficient functioning of the commission shall be appointed as provided in section 26-35[.] without regard to chapter 76; provided that no position filled as of the effective date of this Act by an employee appointed pursuant to chapter 76 shall be affected by this section; provided further that upon becoming vacant, any position filled as of the effective date of this Act by an employee appointed pursuant to chapter 76 shall be filled by an employee appointed without regard to chapter 76. An executive director and an administrative assistant shall be appointed, without regard to [[]chapter 76[]], for the proper administration and enforcement of this chapter."

SECTION 9. 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) To facilitate the requirements of subsection (a), the judiciary shall provide information showing its compliance with section 351-62.6 to the commission."

SECTION 10. 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 any law to the contrary, if a victim, as defined in section 351-2, cannot be located through any address contained in the records of the police, judiciary, Hawaii paroling authority, or crime victim compensation commission, and the victim has not been in contact with any of these institutions for at least one year, any restitution moneys ordered pursuant to section 706-646 or section 712A-18 may be deposited to the credit of the crime victim compensation special fund established in section 351-62.5; provided that a notification of the proposed deposit is made at least once a week for two consecutive weeks in a newspaper of general circulation in this State, and the victim has at least sixty days after the last date of publication to file a claim for the restitution."

SECTION 11. 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

(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

(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, if the victim cannot be located through any address contained in the records of the police, judiciary, Hawaii paroling authority, or crime victim compensation commission, and the victim has not been in contact with any of these institutions for at least one year, the restitution moneys may be deposited to the credit of the crime victim compensation special fund established in section 351-62.5; provided that a notification of the proposed deposit is made at least once a week for two consecutive weeks in a newspaper of general circulation in this State, and the victim has at least sixty days after the last date of publication to file a claim for the restitution."

SECTION 12. 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, if the victim cannot be located through any address contained in the records of the police, judiciary, Hawaii paroling authority, or crime victim compensation commission, and the victim has not been in contact with any of these institutions for at least one year, the restitution moneys may be deposited to the credit of the crime victim compensation special fund established in section 351-62.5; provided that a notification of the proposed deposit is made at least once a week for two consecutive weeks in a newspaper of general circulation in this State, and the victim has at least sixty days after the last date of publication to file a claim for the restitution."

SECTION 13. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 14. This Act shall take effect upon its approval.