Honorable Calvin K.Y. Say

Speaker, House of Representatives

Twenty-Second State Legislature

Regular Session of 2004

State of Hawaii

Sir:

Your Committee on Judiciary, to which was referred S.B. No. 2278 entitled:

begs leave to report as follows:

The purpose of this bill is to amend various provisions of the Hawaii Revised Statutes and the Session Laws of Hawaii pursuant to chapter 23G, Hawaii Revised Statutes, to correct errors, update references, clarify language, and delete obsolete or unnecessary provisions.

The Legislative Reference Bureau testified in support of this measure.

Your Committee finds that all of the statutory amendments proposed by this measure are of a purely technical nature and either contain no substantive changes to the law, or, if they have any substantive effect, are done simply to correct the types of errors noted in this report.

Your Committee finds the reasons for the respective technical amendments made in this bill are as follows:

Section 1. The last paragraph of section 39A-256, HRS, as enacted by L 2002, c 257, §1, refers to "article I, section IV, of the Constitution of the State of Hawaii." The sections in the state constitution, however, are numbered in Arabic numerals, not Roman numerals.

Section 39A-256, HRS, should be amended by deleting the brackets around "4" to ratify the Revisor's substitution of "4" for "IV" to make the reference to the section consistent with the current section numbering of the Hawaii constitution.

Section 2. Effective July 1, 2003, L 2001, c 88, repealed Chapter 87, HRS, the Hawaii "public employees health fund" law and replaced it with Chapter 87A, HRS, relating to the "Hawaii employer-union health benefits trust fund". Section 88-103.5(a), HRS, still contains references to the repealed "Hawaii public employees health fund" and also makes a specific reference to repealed section 87-27.

Section 88-103.5(a), HRS, should be amended to change the references of the repealed "Hawaii public employees health fund" to the "Hawaii employer-union health benefits trust fund" and to replace the repealed "section 87-27" reference with "section 87A-23".

Section 3. As enacted by L 2003, c 109, §2, section 88D-3(d), HRS, incoherently read "The employer shall reimburse employees under the age of fifty-five who elect a withdrawal their entire account balance from the special pay plan within sixty days from the date that the employee separated from service...."

Section 88D-3(d), HRS, should be amended by deleting the brackets around the word "of" to ratify the Revisor's insertion of this word to make the sentence coherent.

Section 4. L 2002, c 232, §3 amended section 89-11(c), HRS, to delete the "April 16" impasse date and replaced it with "February 1". Section 89-9(a), HRS, still refers to "the April 16 impasse date under section 89-11". Section 89-9(a), HRS, should be amended to refer to the "February 1" impasse date.

Effective July 1, 2003, L 2001, c 88 repealed Chapter 87, HRS, the Hawaii "public employees health fund" law and replaced it with Chapter 87A, relating to the "Hawaii employer-union health benefits trust fund". Section 89-9(a), (d), and (e), HRS, still contain references to the repealed "Hawaii public employees health fund". Section 89-9(a), (d), and (e), HRS, should be amended to change the references of the repealed "Hawaii public employees health fund" to the "Hawaii employer-union health benefits trust fund".

Section 5. As amended by L 2002, c 232, §3(1), section 89-11(d)(3)(B), HRS, states that the Hawaii labor relations board shall promptly report "The ratification or failure or ratification of a tentative agreement", which is incoherent. Section 89-11(d)(3)(B), HRS, should be amended by deleting the brackets around the word "of" after the word "failure" to ratify the Revisor's substitution of the word "of" for the word "or".

Additionally, effective July 1, 2003, L 2001, c 88 repealed Chapter 87, HRS, the Hawaii "public employees health fund" law and replaced it with Chapter 87A, HRS, the "Hawaii employer-union health benefits trust fund" law. Section 89-11(g), HRS, still contains references to the repealed "Hawaii public employees health fund". Section 89-11(g), HRS, should be amended to change the reference of the repealed "Hawaii public employees health fund" to the "Hawaii employer-union health benefits trust fund".

Section 6. L 2003, c 35, §4(1) amended section 195D-21(b), HRS, and in so doing, created two sets of paragraphs, numbered (1) through (3) and (1) through (8). Referencing or citing the paragraphs is ambiguous because, for example, a reference to "section 195D-21(b)(1)" could mean either of the two paragraphs that are numbered (1).

Section 195D-21(b), HRS, should be amended to eliminate the two sets of numbered paragraphs, by designating the first paragraph in subsection (b) as paragraph (1) and the existing paragraphs (1) through (3) as subparagraphs (A) through (C), and designating the second paragraph in subsection (b) as paragraph (2) and designating the existing paragraphs (1) through (8) as subparagraphs (A) through (H).

Section 7. L 2002, c 143, §2, amended section 201B-2, HRS, relating to the Hawaii tourism authority. Subsection (g) was amended to provide that "The authority may employ persons not subject to chapters 76[, 77,] and 78 to perform and execute the functions of the authority." Subsection (f), however, was amended to provide that "The board shall appoint an executive director, exempt from chapters 76 and [77,] 88, who shall oversee the authority staff...." Chapter 77, HRS, pertained to the repealed civil service compensation law and chapter 88, HRS, pertains to the pension and retirement systems.

Based on the amendment made to subsection (g), the Revisor mistakenly believed that the amendment made in subsection (f), changing chapter "77" to "88" was a typographical error, and that the reference instead should have been to chapter 78, relating to public service, (which would have made the reference consistent with the changes made to subsection (g)). Because of this, the 2003 statute revision bill (L 2003, c 3, §3) made the "correction" by changing chapter "88" to "78".

Subsequent to the passage of the 2003 statute revision bill, the Revisor was apprised of the error, as Conference Committee Report No. 113-02 (on L 2002, c 143), page 3, subparagraph (4) of the second paragraph, makes it clear that the legislature specifically intended to exempt the executive director from the employees' retirement system (chapter 88).

Thus, section 201B-2(f), HRS, should be amended to provide that "The board shall appoint an executive director, exempt from chapters 76 and [78,] 88, ...."

Section 8. When section 302A-482, HRS, was enacted by L 2003, c 99, §1, the term "department of social services and housing" was used in subsection (a)(11). The "department of social services and housing" was changed to the "department of human services" by L 1987, c 339. Section 302A-482(a)(11), HRS, should be amended by deleting the brackets around "human services" to ratify the Revisor's substitution of this term for "social services and housing" to conform to the department's current name.

Section 9. In section 302A-805(a) and (b), HRS, the last sentence of each subsection provides that "This subsection shall be repealed on June 30, 2002." Section 302A-805, HRS, has not been subsequently amended to delete or extend this repeal. Thus, section 302A-805, HRS, should be amended by deleting subsections (a) and (b), which are now functus, and, as the section will no longer pertain to credentials, the section heading should be amended by deleting reference to "credential".

Section 10. L 1999, c 115, §4 amended section 662-15(8), HRS, by providing an exception from the State Tort Liability Act for "Any claim arising out of a year 2000 error produced ... by a government computer system." L 1999, c 115, §11 provides for the repeal of section 662-15(8), HRS, on December 31, 2003. Since neither L 1999, c 115 nor section 662-15, HRS, was amended to extend this repeal date, section 662-15(8), HRS, is repealed by operation of law on that date, and is now functus. Section 662-15, HRS, should be amended by formally repealing paragraph (8).

Section 11. L 2003, c 179, §§1, 2 amended sections 36-27 and 36-30, HRS, by removing the exemption of certain special funds from paying the costs of central service operations of government and administrative expenses incurred by the departments responsible for the operations supported by these special funds. The Committee on Finance stated in House Standing Committee Report No. 1422 that the purpose of Act 179 was to ensure that special funds that benefit from central service operations of government or administrative expenses incurred by the departments responsible for the operations supported by these special funds "pay their fair share of these costs by removing the exemption enjoyed by these special funds." Among the special funds removed from exemption under sections 36-27 and 36-30, HRS, was the "probation services special fund under section 706-649". However, section 706-649, HRS, establishing the probation services special fund, was not amended and still contains language exempting the fund from these expenses.

Section 706-649, HRS, should therefore be amended to remove the reference to the probation services special fund's exemption under sections 36-27 and 36-30, HRS, to make this section consistent with the amendments made to sections 36-27 and 36-30, HRS, by L 2003, c 179, §§1, 2.

Section 12. In section 846-2.7(b)(7), HRS, as enacted by L 2003, c 95, §7, the department of human services is authorized to conduct criminal history record checks on prospective adoptive parents, as established under "chapter 346". Section 346-19.7 requires the department to develop procedures to obtain criminal history information about prospective adoptive parents, which shall include criminal history record checks "in accordance with section 846-2.7." Subsection (b)(7) should be amended by deleting the brackets around the phrase "section 346-19.7" to ratify the Revisor's substitution of this phrase for the phrase "chapter 346".

In subsection (b)(8), as enacted, the department of human services is authorized to conduct criminal history record checks on "applicants to operate child care facilities, prospective employees of the applicant, and new employees of the provider after registration or licensure as provided by section 346-19.7". Section 346-19.7, HRS, however, requires the department of human services to develop procedures to obtain criminal history information about prospective adoptive parents, not operators of child care facilities. Section 346-154, HRS, as amended by L 2003, c 95, §9(6), requires the department to conduct criminal history record checks of and obtain criminal history record information about child care facility operator applicants and their new and prospective employees "in accordance with section 846-2.7". Subsection (b)(8) should thus be amended by deleting the brackets around section number "346-154" to ratify the Revisor's substitution of this section number for section "346-19.7".

In subsection (b)(9), as enacted, the department of human services is authorized to conduct criminal history record checks "on persons exempt pursuant to section 346-152 to be eligible to provide child care and receive child care subsidies as provided by section 346-154". As stated in the foregoing discussion of subsection (b)(8), section 346-154, HRS, requires the department to conduct criminal history record checks of and obtain criminal history record information about child care facility operator applicants and their new and prospective employees. Section 346-152.5, HRS, requires persons exempt pursuant to section 346-152, HRS, to agree to a criminal history record check and a child abuse record check by the department, to be eligible to provide child care and receive child care subsidies. Subsection (b)(9) should thus be amended by deleting the brackets around section number "346-152.5" to ratify the Revisor's substitution of this section number for section "346-154."

In subsection (c), the term "criminal record check" was used instead of the term "criminal history record check." Subsection (c) should be amended by deleting the brackets around the word "history" to ratify the Revisor's insertion of this word to make the term consistent with the rest of chapter 846, and the Hawaii Revised Statutes.

Additionally, the Revisor, pursuant to §23G-15, inserted the word "section" in subsection (b)(3) to correct an obvious omission.

Section 13. L 1999, c 137, §3 amended section 431:10C-103, HRS, by adding the definitions of "emergency medical condition", "emergency services", and "stabilize". The amendments were subject to repeal and reenactment by L 1999, c 137, §15 on July 1, 2003. Section 431:10C-103 was to be reenacted in the form it read on June 24, 1999.

L 2000, c 24, §4 subsequently amended section 431:10C-103, HRS, by adding the definitions "alternative care provider", "anesthetist", and "medical fee schedule", but did not exempt these amendments from the repeal and reenactment provisions of L 1999, c 137, §15.

L 2000, c 24, §15 should thus be amended to exempt the amendments that Act 24 made to section 431:10C-103, HRS, from the repeal and reenactment provision of L 1999, c 137, §15.

Section 14. L 1999, c 137, §3 amended section 431:10C-103, HRS, by adding the definitions of "emergency medical condition", "emergency services", and "stabilize". The amendments were subject to repeal and reenactment by L 1999, c 137, §15 on July 1, 2003. Section 431:10C-103 was to be reenacted in the form it read on June 24, 1999.

L 2000, c 66, §1 subsequently amended section 431:10C-103, HRS, by amending the definition of "uninsured motor vehicle", but did not exempt this amendment from the repeal and reenactment provisions of L 1999, c 137, §15.

L 2000, c 66, §3 should thus be amended to exempt the amendment made to section 431:10C-103, HRS, from the repeal and reenactment provision of L 1999, c 137, §15.

Section 15. Sections 707-730(1) and 707-732(1), HRS, were amended by L 2001, 2d Sp, c 1, subject to repeal and reenactment on June 30, 2003. Section 707-732(1) was subsequently amended by L 2002, c 36, §2. L 2002, c 36, §3 amended the repeal and reenactment provisions of L 2001, 2d Sp, c 1, to exempt Act 36's amendment of section 707-732(1) from the repeal and reenactment.

L 2003, c 62, §1 deleted the repeal and reenactment provision by amending L 2001, 2d Sp, c 1, instead of L 2002, c 36. L 2003, c 62, §1 should thus be amended to correct this oversight.

Section 16. L 2003, c 85, §9 amended section 150A-6.1, HRS, making the sale or importation of Salvinia molesta plants, etc., illegal within the State. Section 10 of Act 85 amended section 150A-9.5, HRS, making any interim rules governing the transportation of flora and fauna into and within the State effective for not more than one year, instead of 180 days. Act 85, §3 also established a temporary invasive species council. Finally, Act 85, §12 provided for the repeal of Act 85 on July 1, 2008.

Conference Committee Report No. 82 (on Act 85) states in relevant part:

The amendment in the conference draft, however, added the July 1, 2008 repeal date for the entire Act. L 2003, c 85, §12 should thus be amended by exempting sections 9 and 10 (which amend sections 150A-6.1 and 150A-9.5), from the repeal provisions of Act 85, §12.

As affirmed by the record of votes of the members of your Committee on Judiciary that is attached to this report, your Committee is in accord with the intent and purpose of S.B. No. 2278, and recommends that it pass Second Reading and be placed on the calendar for Third Reading.