REPORT TITLE:
Hawaiian Homes Commission


DESCRIPTION:
Authorizes the election of the members of the Hawaiian homes
commission by Hawaiian voters and provides a salary for the
members.  Authorizes the Hawaiian homes commission to employ or
retain an attorney. (HB235 HD2)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        235
HOUSE OF REPRESENTATIVES                H.B. NO.           H.D. 2
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT

RELATING TO THE HAWAIIAN HOMES COMMISSION.



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

 1      SECTION 1.  The purpose of this Act is to authorize the
 
 2 election of the members of the Hawaiian homes commission by
 
 3 Hawaiian voters.
 
 4      SECTION 2.  Chapter 17, Hawaii Revised Statutes, is amended
 
 5 by adding a new section to be appropriately designated and to
 
 6 read as follows:
 
 7      "17-      Hawaiian homes commission; vacancies.  (a)
 
 8 Whenever any vacancy in the membership of the Hawaiian homes
 
 9 commission occurs, the term of which vacancy ends at the next
 
10 succeeding special election held in conjunction with the general
 
11 election, the vacancy shall be filled by a two-thirds vote of the
 
12 remaining members of the commission.  If the board fails to fill
 
13 the vacancy within sixty days after it occurs, the governor shall
 
14 fill the vacancy within ninety days after the vacancy occurs.
 
15 The person so appointed shall reside in the area from which the
 
16 vacancy occurred, and shall serve for the duration of the
 
17 unexpired term.
 
18      (b)  In the case of a vacancy, the term of which does not
 
19 end at the next succeeding special election held in conjunction
 
20 with the general election:
 

 
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 1      (1)  If the vacancy occurs not later than on the sixtieth
 
 2           day prior to the next succeeding special election held
 
 3           in conjunction with the general election, the vacancy
 
 4           shall be filled for the unexpired term at the next
 
 5           succeeding special election held in conjunction with
 
 6           the general election.  The chief election officer shall
 
 7           issue a proclamation designating the election for
 
 8           filling the vacancy.  All candidates for the unexpired
 
 9           term shall file nomination papers not later than 4:30
 
10           p.m. on the fiftieth day prior to the special election
 
11           (but if such day is a Saturday, Sunday, or holiday then
 
12           not later than 4:30 p.m. on the first working day
 
13           immediately preceding) and shall be elected in
 
14           accordance with this title.  Pending the election, the
 
15           commission shall make a temporary appointment to fill
 
16           the vacancy in the manner prescribed under subsection
 
17           (a).  The person so appointed shall:
 
18           (A)  Reside in the area from which the vacancy
 
19                occurred;
 
20           (B)  Serve for the duration of the unexpired term; and
 
21           (C)  Serve until the election of the person duly
 
22                elected to fill such vacancy;
 
23           or
 

 
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 1      (2)  If the vacancy occurs after the sixtieth day prior to
 
 2           the next succeeding special election held in
 
 3           conjunction with the general election, the commission
 
 4           or the governor shall make an appointment to fill the
 
 5           vacancy in the manner prescribed under subsection (a).
 
 6           The person so appointed shall reside in the area from
 
 7           which the vacancy occurred, and shall serve for the
 
 8           duration of the unexpired term.
 
 9      (c)  All appointments made by the commission under this
 
10 section shall be made without consideration of the appointee's
 
11 party preference or nonpartisanship status.
 
12      This section shall apply only to vacancies which are not
 
13 filled by the method provided in section 202 of the Hawaiian
 
14 Homes Commission Act, 1920, as amended."
 
15      SECTION 3.  Section 11-15, Hawaii Revised Statutes, is
 
16 amended by amending subsection (b) to read as follows:
 
17      "(b)  Any person qualified to and desiring to register as a
 
18 voter for the election of members of the board of trustees of the
 
19 office of Hawaiian affairs or of members of the Hawaiian homes
 
20 commission shall make and subscribe to an application in the form
 
21 of an affidavit which shall state that the person is Hawaiian and
 
22 which shall contain the information required under subsection
 
23 (a).  The affidavit shall also apply to all elections, primary,
 

 
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                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1 special primary, general, special general, special, or county,
 
 2 held in the State, under all voting systems used within the
 
 3 State, so far as applicable and not inconsistent with this
 
 4 title."
 
 5      SECTION 4.  Section 11-25, Hawaii Revised Statutes, is
 
 6 amended by amending subsections (a) and (b) to read as follows:
 
 7      "(a)  Challenging prior to election day.  Any registered
 
 8 voter may challenge the right of a person to be or to remain
 
 9 registered as a voter in any precinct for any cause not
 
10 previously decided by the board of registration or the supreme
 
11 court in respect to the same person; provided that in an election
 
12 of members of the board of trustees of the office of Hawaiian
 
13 affairs, the voter making the challenge must be registered to
 
14 vote in that election[.]; and provided further that in an
 
15 election of members of the Hawaiian homes commission, the voter
 
16 making the challenge shall be registered to vote in that
 
17 election.  The challenge shall be in writing, setting forth the
 
18 grounds upon which it is based, and be signed by the person
 
19 making the challenge.  The challenge shall be delivered to the
 
20 clerk who shall forthwith serve notice thereof on the person
 
21 challenged.  The clerk [shall], as soon as possible, shall
 
22 investigate and rule on the challenge.
 

 
 
 
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 1      (b)  Challenging on election day.  Any voter rightfully in
 
 2 the polling place may challenge the right to vote of any person
 
 3 who comes to the precinct officials for voting purposes.  The
 
 4 challenge shall be on the grounds that the voter is not the
 
 5 person the voter alleges to be, or that the voter is not entitled
 
 6 to vote in that precinct; provided that only in an election of
 
 7 members of the board of trustees of the office of Hawaiian
 
 8 affairs[,] or members of the Hawaiian homes commission, a person
 
 9 registered to vote in that election may also challenge on the
 
10 grounds that the voter is not Hawaiian.  No other or further
 
11 challenge shall be allowed.  Any person thus challenged shall
 
12 first be given the opportunity to make the relevant correction
 
13 pursuant to section 11-21.  The challenge shall be considered and
 
14 decided immediately by the precinct officials and the ruling
 
15 shall be announced."
 
16      SECTION 5.  Section 12-5, Hawaii Revised Statutes, is
 
17 amended by amending subsection (c) to read as follows:
 
18      "(c)  Nomination papers for candidates for members of the
 
19 board of trustees of the office of Hawaiian affairs and for
 
20 members of the Hawaiian homes commission shall be signed by [not
 
21 less] no fewer than twenty-five persons registered as prescribed
 
22 under section 11-15(b)."
 

 
 
 
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 1      SECTION 6.  Section 12-6, Hawaii Revised Statutes, is
 
 2 amended by amending subsection (a) to read as follows:
 
 3      "(a)  Nomination papers shall be filed as follows:  for
 
 4 members of Congress, state, and county offices, the Hawaiian
 
 5 homes commission, and the board of trustees of the office of
 
 6 Hawaiian affairs, with the chief election officer, or clerk in
 
 7 case of county offices, not later than 4:30 p.m. on the sixtieth
 
 8 calendar day prior to the primary, special primary, or special
 
 9 election; provided that if such day is a Saturday, Sunday, or
 
10 holiday then not later than 4:30 p.m. on the first working day
 
11 immediately preceding.  A state candidate from the counties of
 
12 Hawaii, Maui, and Kauai may file the declaration of candidacy
 
13 with the respective clerk.  The clerk shall transmit to the
 
14 office of the chief election officer the state candidate's
 
15 declaration of candidacy without delay.  However, if a special
 
16 primary or special election is to be held by a county and the
 
17 county charter requires that the council shall issue a
 
18 proclamation calling for the election to be held within a
 
19 specified period of time, and if that requirement would not allow
 
20 the filing of nomination papers with the appropriate office by
 
21 the sixtieth calendar day prior to the day for holding the
 
22 special primary or special election, the council shall establish
 
23 the deadline for the filing of nomination papers in the
 
24 proclamation calling for the election."
 

 
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                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1      SECTION 7.  Section 26-17, Hawaii Revised Statutes, is
 
 2 amended to read as follows:
 
 3      "26-17  Department of Hawaiian home lands.  The department
 
 4 of Hawaiian home lands shall be headed by an executive board to
 
 5 be known as the Hawaiian homes commission.
 
 6      The commission shall be composed of nine members.  The
 
 7 [appointment,] election, tenure, and removal of the members and
 
 8 the filling of vacancies on the commission shall be in accordance
 
 9 with [section 26-34 and section 202(a)] section 17-   and section
 
10 202 of the Hawaiian Homes Commission Act of 1920, as amended.
 
11 [The governor shall appoint the chairperson of the commission
 
12 from among the members thereof.]
 
13      The commission may delegate to the [chairperson] director of
 
14 Hawaiian home lands such duties, powers, and authority, or so
 
15 much thereof as may be lawful or proper, for the performance of
 
16 the functions vested in the commission.
 
17      The [chairperson of the board] director of Hawaiian home
 
18 lands shall serve in a [full time] full-time capacity and shall
 
19 perform such duties, and exercise such powers and authority, or
 
20 so much thereof as may be delegated to the [chairperson] director
 
21 of Hawaiian home lands by the board.
 
22      The department shall administer the Hawaiian Homes
 
23 Commission Act of 1920 as set forth in the Constitution of the
 
24 State and by law.
 

 
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                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1      The functions and authority heretofore exercised by the
 
 2 Hawaiian homes commission as heretofore constituted are
 
 3 transferred to the department of Hawaiian home lands established
 
 4 by this chapter."
 
 5      SECTION 8.  Section 26-34, Hawaii Revised Statutes, is
 
 6 amended by amending subsection (a) to read as follows:
 
 7      "(a)  The members of each board and commission established
 
 8 by law, except the Hawaiian homes commission, shall be nominated
 
 9 and, by and with the advice and consent of the senate, appointed
 
10 by the governor.  Unless otherwise provided by this chapter or by
 
11 law hereafter enacted, the terms of the members shall be for four
 
12 years; provided that the governor may reduce the terms of those
 
13 initially appointed so as to provide, as nearly as can be, for
 
14 the expiration of an equal number of terms at intervals of one
 
15 year for each board and commission.  Unless otherwise provided by
 
16 law, each term shall commence on July 1 and expire on June 30,
 
17 except that the terms of the chairpersons of the board of
 
18 agriculture, and the board of land and natural resources[, and
 
19 the Hawaiian homes commissions] shall commence on January 1 and
 
20 expire on December 31.  No person shall be appointed
 
21 consecutively to more than two terms as a member of the same
 
22 board or commission; provided that membership on any board or
 
23 commission shall not exceed eight consecutive years."
 

 
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                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1      SECTION 9.  Section 28-8.3, Hawaii Revised Statutes, is
 
 2 amended by amending subsection (a) to read as follows:
 
 3      "(a)  No department of the State other than the attorney
 
 4 general may employ or retain any attorney, by contract or
 
 5 otherwise, for the purpose of representing the State or the
 
 6 department in any litigation, rendering legal counsel to the
 
 7 department, or drafting legal documents for the department;
 
 8 provided that the foregoing provision shall not apply to the
 
 9 employment or retention of attorneys:
 
10      (1)  By the public utilities commission, the labor and
 
11           industrial relations appeals board, and the Hawaii
 
12           labor relations board;
 
13      (2)  By any court or judicial or legislative office of the
 
14           State;
 
15      (3)  By the legislative reference bureau;
 
16      (4)  By any compilation commission that may be constituted
 
17           from time to time;
 
18      (5)  By the real estate commission for any action involving
 
19           the real estate recovery fund;
 
20      (6)  By the contractors license board for any action
 
21           involving the contractors recovery fund;
 
22      (7)  By the trustees for any action involving the travel
 
23           agency recovery fund;
 

 
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                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1      (8)  By the office of Hawaiian affairs;
 
 2      (9)  By the department of commerce and consumer affairs for
 
 3           the enforcement of violations of chapters 480 and 485;
 
 4     (10)  As grand jury counsel;
 
 5     (11)  By the Hawaiian home lands trust individual claims
 
 6           review panel;
 
 7     (12)  By the Hawaii health systems corporation or any of its
 
 8           facilities;
 
 9     (13)  By the auditor;
 
10     (14)  By the office of ombudsman;
 
11     (15)  By the Hawaiian homes commission;
 
12    [(15)] (16)  By the insurance division;
 
13    [(16)] (17)  By the University of Hawaii; or
 
14    [(17)] (18)  By a department, in the event the attorney
 
15           general, for reasons deemed by the attorney general
 
16           good and sufficient, declines[,] to employ or retain an
 
17           attorney for a department; provided that the governor
 
18           thereupon waives the provision of this section."
 
19      SECTION 10.  Section 202, Hawaiian Homes Commission Act,
 
20 1920, as amended, is amended to read as follows:
 
21      "202.  Department officers, staff, commission, members,
 
22 compensation.(a)  There shall be a department of Hawaiian home
 
23 lands which shall be headed by an executive board to be known as
 

 
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                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1 the Hawaiian homes commission.  The members of the commission
 
 2 shall be [nominated and appointed in accordance with section
 
 3 26-34,] elected in accordance with this Act and chapters 11, 12,
 
 4 15, 16, 17, and 19, Hawaii Revised Statutes.  The commission
 
 5 shall be composed of nine members, as follows:  [three shall be
 
 6 residents of the city and county of Honolulu; two shall be
 
 7 residents of the county of Hawaii one of whom shall be a resident
 
 8 of east Hawaii and the other a resident of west Hawaii; two shall
 
 9 be residents of the county of Maui one of whom shall be a
 
10 resident from the island of Molokai; one shall be a resident of
 
11 the county of Kauai; and the ninth member shall be the chairman
 
12 of the Hawaiian homes commission.  All members shall have been
 
13 residents of the State at least three years prior to their
 
14 appointment and at least four of the members shall be descendants
 
15 of not less than one-fourth part of the blood of the races
 
16 inhabiting the Hawaiian islands previous to 1778.]
 
17      (1)  Voters on the island of Oahu shall elect four members,
 
18           all of whom shall be residents and registered voters on
 
19           the island of Oahu;
 
20      (2)  Voters in the districts of Puna, South Hilo, North
 
21           Hilo, and Hamakua shall elect one member who shall be a
 
22           resident and registered voter in one of those
 
23           districts;
 

 
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                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1      (3)  Voters in the districts of North Kohala, South Kohala,
 
 2           North Kona, South Kona, and Ka`u shall elect one member
 
 3           who shall be a resident and registered voter in one of
 
 4           those districts;
 
 5      (4)  Voters on the island of Maui shall elect one member who
 
 6           shall be a resident and registered voter on the island
 
 7           of Maui;
 
 8      (5)  Voters on the islands of Lanai and Molokai shall elect
 
 9           one member who shall be a resident and registered voter
 
10           either on the island of Lanai or Molokai; and
 
11      (6)  Voters on the island of Kauai shall elect one member
 
12           who shall be a resident and registered voter on the
 
13           island of Kauai.
 
14 The members of the commission shall [serve without pay, but shall
 
15 receive actual expenses incurred by them in the discharge of
 
16 their duties as such members.] receive salaries, benefits,  and
 
17 expenses in the same amount and manner as is provided by law for
 
18 members of the board of the office of Hawaiian affairs.  The
 
19 [governor shall appoint the chairman] chairperson of the
 
20 commission [from among the] shall be selected by the  members
 
21 [thereof.] of the commission.  The governor shall, with the
 
22 advice and consent of the commission, appoint the director of the
 
23 department.  
 
24      The commission may delegate to the [chairman] director such
 

 
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                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1 duties, powers, and authority or so much thereof, as may be
 
 2 lawful or proper for the performance of the functions vested in
 
 3 the commission.  The [chairman of the commission] director shall
 
 4 serve in a full-time capacity[.  He shall, in such capacity,] and
 
 5 shall perform such duties, and exercise such powers and
 
 6 authority, or so much thereof, as may be delegated to [him] the
 
 7 director by the commission [as herein provided above].
 
 8      (b)  The provisions of section 76-16, Hawaii Revised
 
 9 Statutes, shall apply to the positions of first deputy and
 
10 private secretary to the [chairman  of the commission.] director.
 
11 The department may hire temporary staff on a contractual basis
 
12 not subject to chapters 76, 77, and 78, Hawaii Revised Statutes,
 
13 when the services to be performed will assist in carrying out the
 
14 purposes of the Act.  These positions may be funded through
 
15 appropriations for capital improvement program projects and by
 
16 the administration account, operating fund, or native Hawaiian
 
17 rehabilitation fund.  No contract shall be for a period longer
 
18 than two years, but individuals hired under contract may be
 
19 employed for a maximum of six years; provided that the six-year
 
20 limitation shall not apply if the department, with the approval
 
21 of the [governor,] commissioners, determines that such contract
 
22 individuals are needed to provide critical services for the
 
23 efficient functioning of the department.  All other positions in
 

 
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                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1 the department shall be subject to chapters 76 and 77, Hawaii
 
 2 Revised Statutes.
 
 3      All vacancies and new positions which are covered by
 
 4 chapters 76 and 77, Hawaii Revised Statutes, shall be filled in
 
 5 accordance with sections 76-23 and 76-31, Hawaii Revised
 
 6 Statutes[,]; provided that the provisions of these sections shall
 
 7 be applicable first to qualified persons of Hawaiian extraction.
 
 8      (c)  No person shall be eligible for election to the
 
 9 commission unless the person meets the following qualifications:
 
10      (1)  The person is:
 
11           (A)  A "native Hawaiian" as defined in section 201 of
 
12                this Act;
 
13           (B)  A successor to a lessee as defined in section
 
14                209(a) of this Act; or
 
15           (C)  (i)  A descendant of the aboriginal peoples
 
16                     inhabiting the Hawaiian islands previous to
 
17                     1778, that exercised sovereignty and
 
18                     subsisted at that time and thereafter
 
19                     continued to reside in Hawaii; and
 
20               (ii)  Maintains the person's residence on "Hawaiian
 
21                     home lands" as defined in section 201 of this
 
22                     Act;
 

 
 
 
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                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1      (2)  The person has attained the age of eighteen years or
 
 2           will have attained such age within one year of the date
 
 3           of the next election of commission members; and
 
 4      (3)  The person is otherwise qualified to register to vote
 
 5           in the State.
 
 6      No member of the commission shall hold or be a candidate for
 
 7 any other public office under the state or county governments in
 
 8 accordance with article II, section 7, of the Constitution of the
 
 9 State of Hawaii; nor shall a person be eligible for election to
 
10 the commission if that person is also a candidate for any other
 
11 public office under the state or county governments.
 
12      For the purposes of this subsection, the term "public
 
13 office" shall not include notaries public, reserve police
 
14 officers, or officers of emergency organizations for civilian
 
15 defense or disaster, or disaster relief.
 
16      (d)  Members of the commission shall be elected at a special
 
17 election held in conjunction with the general election in every
 
18 even-numbered year.
 
19      Any person wishing to register as a candidate for the
 
20 election as a commission member shall submit to an examination
 
21 under oath by the clerk of the county as to the person's
 
22 qualifications.  In addition, each candidate shall make and
 
23 subscribe to an application in the form of an affidavit verifying
 
24 the candidate's qualifications.
 

 
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                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1      The chief election officer shall prepare the nomination
 
 2 papers in such a manner that a candidate desiring to file for
 
 3 election to the commission shall be able to identify the area in
 
 4 which the candidates resides and seeks to represent.
 
 5      The ballot shall be prepared in such a manner that voters
 
 6 qualified and registered under this Act shall be afforded the
 
 7 opportunity to cast ballots for the candidates seeking election
 
 8 to the seats representing the area in which the voter resides.
 
 9 The ballot shall contain the names of the candidates arranged
 
10 alphabetically.  Each eligible voter shall be entitled to receive
 
11 the commission ballot and to vote for the number of seats
 
12 available in the area on which the voter resides.
 
13      (e)  No person shall be eligible to register as a voter for
 
14 the election of commission members unless the person meets the
 
15 following qualifications:
 
16      (1)  The person is a descendant of the aboriginal peoples
 
17           inhabiting the Hawaiian islands previous to 1778, that
 
18           exercised sovereignty and subsisted at that time and
 
19           thereafter continued to reside in Hawaii;
 
20      (2)  The person has attained the age of eighteen years or
 
21           will have attained such age within one year of the date
 
22           of the next election of commission members; and
 

 
 
 
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                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1      (3)  The person is otherwise qualified to register to vote
 
 2           in the State.
 
 3      The clerk of each county shall register all persons in the
 
 4 county who are eligible and wish to register as voters for the
 
 5 election of commission members.  The register may be maintained
 
 6 in conjunction with the general county register; provided that
 
 7 the clerk shall be able to prepare a separate list of voters for
 
 8 the election of commission members, capable of segregation by
 
 9 precinct and representative district.  The maintenance,
 
10 reproduction, and transmittal of records and affidavits to a
 
11 central file may be in accordance with section 11-14, Hawaii
 
12 Revised Statutes.
 
13      (f)  The term of office of members of the commission shall
 
14 be four years beginning on the day of the special election held
 
15 in conjunction with the general election of the year in which
 
16 they are elected and ending on the day of the special election
 
17 held in conjunction with the second general election after their
 
18 election; except that the term of office of commission members
 
19 elected in 2000 shall be as follows:
 
20      (1)  The four members elected with the highest number of
 
21           votes, not to exceed two members from Oahu, shall serve
 
22           four years; and
 

 
 
 
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                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1      (2)  The remaining members elected shall serve two years.
 
 2 Members of the commission may be re-elected without restriction
 
 3 as to the number of terms.
 
 4      Any vacancy that may occur through any cause other than the
 
 5 expiration of the term of office shall be filled for the duration
 
 6 of the expired term by the candidate who had received the next
 
 7 highest number of votes for that seat.  In the event that this
 
 8 method does not result in filling the vacancy, the vacancy shall
 
 9 be filled in accordance with section 17-   , Hawaii Revised
 
10 Statutes.
 
11      The department of Hawaiian home lands shall be the
 
12 responsible agency for verifying all qualifications imposed on
 
13 candidates and voters by this section and shall, pursuant to
 
14 chapter 91, adopt rules relating to qualification requirements
 
15 imposed by this section and sections 11-15, 11-25, and 12-5."
 
16      SECTION 11.  The terms of the appointed members of the
 
17 Hawaiian homes commission shall expire on the day of the special
 
18 election to elect members of the commission.
 
19      SECTION 12.  The amendments made by this Act to the Hawaiian
 
20 Homes Commission Act, 1920, as amended, are declared to be
 
21 severable and, if any section, sentence, clause, or phrase, or
 
22 the application thereof to any person or circumstance is held
 
23 ineffective because there is a requirement of having the consent
 

 
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                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1 of the United States to take effect, then that portion shall take
 
 2 effect only upon the granting of consent by the United States,
 
 3 and the effectiveness of the remainder of these amendments of the
 
 4 application thereof shall not be affected.
 
 5      SECTION 13.  There is appropriated out of the general
 
 6 revenues of the State of Hawaii the sum of $1 or so much thereof
 
 7 as may be necessary for fiscal year 1999-2000 to defray the
 
 8 salaries, costs and expenses of the Hawaiian homes commission.
 
 9      SECTION 14.  The sum appropriated shall be expended by the
 
10 Hawaiian homes commission for the purposes of this Act.
 
11      SECTION 15.  Statutory material to be repealed is bracketed.
 
12 New statutory material is underscored.
 
13      SECTION 16.  This Act shall take effect upon its approval.