REPORT TITLE:
University of Hawaii
DESCRIPTION:
Requires service of process on the University to be made by
delivering a copy of the complaint to the University General
Counsel or to an Associate General Counsel. Requires all
settlements and judgments to be paid from State general fund.
(SD1)
2060
HOUSE OF REPRESENTATIVES H.B. NO. H.D. 2
TWENTIETH LEGISLATURE, 2000 S.D. 1
STATE OF HAWAII
________________________________________________________________
________________________________________________________________
A BILL FOR AN ACT
RELATING TO THE UNIVERSITY OF HAWAII.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
1 SECTION 1. Act 115, Session Laws of Hawaii 1998, authorized
2 the University of Hawaii to appoint its own attorneys. Based on
3 this authorization, the university has established the Office of
4 the Senior Vice President for Legal Affairs and University
5 General Counsel. The purpose of this Act is threefold:
6 (1) As a housekeeping measure, amend those sections of the
7 Hawaii Revised Statutes that require legal services to
8 be performed by the attorney general to clarify that
9 legal services to the university shall be provided by
10 the university general counsel;
11 (2) Establish a new provision relating to service of
12 process on the university; and
13 (3) Amend sections 304-6 and 304-6.5, Hawaii Revised
14 Statutes, to ensure the preservation of sovereign
15 immunity to the university.
16 SECTION 2. Chapter 304, Hawaii Revised Statutes, is amended
17 by adding a new section to be appropriately designated and to
18 read as follows:
19 "�4- Service of process. (a) Service of process upon
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H.B. NO. H.D. 2
S.D. 1
1 the University of Hawaii shall be made by delivering a filed and
2 certified copy of the summons and of the complaint to the
3 university general counsel or to any attorney in the office of
4 the university general counsel.
5 (b) Service of process upon an officer or employee of the
6 University of Hawaii shall be made by serving the University of
7 Hawaii and by delivering a copy of the summons and of the
8 complaint to such officer or employee."
9 SECTION 3. Section 26-35.5, Hawaii Revised Statutes, is
10 amended by amending subsections (e) and (f) to read as follows:
11 "(e) The attorney general, or in the case of the board of
12 regents of the University of Hawaii, its university general
13 counsel, shall represent and defend a member in any civil action
14 for which immunity is conferred under subsection (b), or when the
15 attorney general, or, if the action involves a member of the
16 board of regents, the university general counsel, determines that
17 indemnification is available to the member under subsection (c),
18 and the member against whom the action is brought has submitted a
19 written request for representation and has provided the attorney
20 general, or the university general counsel in the case of an
21 action involving a member of the board of regents, with all
22 process or complaint served upon the member within a reasonable
23 period of time, but not more than five days after being served
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H.B. NO. H.D. 2
S.D. 1
1 with the process or complaint. The attorney general, or the
2 university general counsel, may terminate the representation and
3 defense of the member at any time if, after representation and
4 defense is accepted, the attorney general, or the university
5 general counsel, determines that indemnification would not be
6 available to the member under subsection (c).
7 (f) A member may retain counsel of the member's own choice
8 at the member's own expense. If the member chooses to retain
9 counsel at the member's own expense, the State shall not
10 indemnify the member even though the member would have been
11 entitled to indemnification under subsection (c). The attorney
12 general, or the university general counsel in the case of a
13 member of the board of regents, may enter an appearance in any
14 action in which the member is represented by counsel of the
15 member's own choice, even though no request for the appearance
16 has been made by the member."
17 SECTION 4. Section 26-35.5, Hawaii Revised Statutes, is
18 amended by amending subsections (h) and (i) to read as follows:
19 "(h) If the attorney general, or the university general
20 counsel in the case of a member of the board of regents, denies
21 representation to the member under subsection (e) and the member
22 proceeds to judgment in the action for which representation was
23 denied, the member may commence an action against the State or
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H.B. NO. H.D. 2
S.D. 1
1 the University of Hawaii in the case of a member of the board of
2 regents, in the circuit court to recover reasonable costs and
3 fees incurred by the member in defending against that action,
4 including attorney's fees, court costs, investigative costs, and
5 expert witness fees. The State or the University of Hawaii in
6 the case of a member of the board of regents, shall pay the
7 judgment or reimburse the member if the member has satisfied the
8 judgment in an action for which representation was denied;
9 provided that the member was found not liable in that action or
10 the member establishes by a preponderance of the evidence that
11 the member is entitled to indemnification under subsection (c).
12 A finding of negligence against the member in the civil action
13 for which representation was denied shall not be binding upon the
14 circuit court in any action brought under this subsection. The
15 member shall commence any action under this subsection no later
16 than two years after entry of judgment in the action for which
17 the member was denied representation if no appeal is filed, or
18 two years after the conclusion of the final appeal from that
19 judgment if an appeal is filed.
20 (i) If the attorney general, or the university general
21 counsel in the case of a member of the board of regents, denies
22 representation to the member under subsection (e) and the member
23 negotiates a compromise or settlement without an entry of
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1 judgment in the action for which representation was denied, the
2 member may seek to introduce a bill in the legislature to secure
3 an appropriation to reimburse the member for the amount of the
4 settlement or that portion which constitutes a reasonable
5 settlement, and for reasonable costs and fees incurred by the
6 member in defending against that action, including attorney's
7 fees, court costs, investigative costs, and expert witness fees."
8 SECTION 5. Section 40-82, Hawaii Revised Statutes, is
9 amended to read as follows:
10 "�-82 Uncollectible accounts.(a) The directors,
11 boards, or executive heads of executive departments may from time
12 to time prepare and submit for the review of the attorney general
13 a list of all uncollectible accounts in their departments. Such
14 accounts as the attorney general finds to be uncollectible shall
15 be entered in a special record and be deleted from the accounts
16 receivable records of the departments, which shall thereupon be
17 relieved from any further accountability for their collection;
18 provided that no account shall be so deleted until it shall have
19 been delinquent for at least two consecutive years. Any account
20 entered in the special record shall be transferred back to the
21 current accounts receivable if the attorney general finds that
22 the facts as alleged and presented to the attorney general were
23 not true, or that the account has become collectible.
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H.B. NO. H.D. 2
S.D. 1
1 As used in this section, "uncollectible account" means an
2 account with regard to which:
3 (1) The debtor or party causing damage to property
4 belonging to the State is no longer within the
5 jurisdiction of the State;
6 (2) The debtor or party causing damage to property
7 belonging to the State cannot be located;
8 (3) The party causing damage to property belonging to the
9 State is unknown or cannot be identified;
10 (4) The debtor has filed bankruptcy and has listed the
11 State as a creditor; or
12 (5) Any other account as may be deemed by the attorney
13 general to be uneconomical or impractical to collect.
14 (b) The judiciary may from time to time prepare lists of
15 all delinquent fines and restitution, which in its judgment are
16 uncollectible. The fines or restitution that the judiciary finds
17 to be uncollectible shall be entered in a special record and be
18 deleted from the other books kept by the judiciary, and the
19 judiciary shall thereupon be released from any further
20 accountability for their collection; provided that no account
21 shall be so deleted until it shall have been delinquent for at
22 least two years. Any fines or restitution so written off may be
23 transferred back to the judiciary's accounts receivable if the
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H.B. NO. H.D. 2
S.D. 1
1 judiciary finds that the alleged facts as previously presented to
2 it were not true, or that the fines or restitution are in fact
3 collectible, or that the fines or restitution have become
4 collectible. Nothing in this section shall preclude a person to
5 whom restitution is owed from pursuing collection of the debt.
6 (c) The judiciary shall submit an annual report to the
7 legislature, no later than twenty days prior to the convening of
8 each regular session, which shall summarize the types and amounts
9 of uncollectible delinquent fines and restitution that either
10 were:
11 (1) Entered in a special record and deleted from the
12 judiciary's other books; or
13 (2) Transferred back to the judiciary's accounts
14 receivable.
15 (d) The University of Hawaii may from time to time prepare
16 for the review of the university general counsel a list of all
17 uncollectible accounts. Such accounts as the university general
18 counsel finds to be uncollectible shall be entered into a special
19 record and be deleted from the accounts receivable records of the
20 university, which shall thereupon be relieved from any further
21 accountability for their collection; provided that no account
22 shall be so deleted until it shall have been delinquent for at
23 least two consecutive years. Any account entered in the special
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H.B. NO. H.D. 2
S.D. 1
1 record shall be transferred back to the current accounts
2 receivable if the university general counsel finds that the
3 account has become collectible."
4 SECTION 6. Section 107-10, Hawaii Revised Statutes, is
5 amended to read as follows:
6 "�7-10 Acquiring of real property; prior approval. No
7 real property or any right, title, or interest therein shall be
8 acquired by agreement, purchase, gift, devise, eminent domain, or
9 otherwise, for any purpose, by the State or any department,
10 agency, board, commission, or officer thereof, without the prior
11 approval of the attorney general as to form, exceptions, and
12 reservations. This section shall not apply to the University of
13 Hawaii."
14 SECTION 7. Section 304-6, Hawaii Revised Statutes, is
15 amended by amending subsection (b) to read as follows:
16 "(b) The board of regents, upon the advice of its attorney,
17 may arbitrate, compromise, or settle any claim, action, or suit
18 brought against the university pursuant to this section. Any
19 claim compromised or settled under this subsection shall be
20 payable [solely] from the moneys [and property of the university
21 and shall not constitute a general obligation of the State, or be
22 secured directly or indirectly by the full faith and credit of
23 the State or the general credit of the State, or by any revenue
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H.B. NO. H.D. 2
S.D. 1
1 or taxes of the State. Nothing in this subsection precludes the]
2 appropriated by the legislature. The board of regents [from
3 requesting and securing] may request and secure legislative
4 appropriations to fund the settlement of any such claim or
5 judgment against the university, its regents, officers,
6 employees, or agents."
7 SECTION 8. Section 304-6.5, Hawaii Revised Statutes, is
8 amended by amending subsection (c) to read as follows:
9 "(c) Indemnification claims authorized by this section
10 shall be payable [solely] from [the] moneys [and property of the
11 university, and shall not constitute a general obligation of the
12 State, or be secured directly or indirectly by the full faith and
13 credit of the State or the general credit of the State, or by any
14 revenues or taxes of the State. The board of regents may obtain
15 loss insurance to cover the liability of the university that may
16 arise under this section; provided that loss insurance for the
17 university shall be at the university's expense.] appropriated by
18 the legislature."
19 SECTION 9. Statutory material to be repealed is bracketed.
20 New statutory material is underscored.
21 SECTION 10. This Act shall take effect upon its approval.