TITLE 8.  PUBLIC PROCEEDINGS AND

RECORDS

 

Chapter

    91 Administrative Procedure

    92 Public Agency Meetings and Records

   92E Fair Information Practice (Confidentiality of Personal

       Record)--Repealed

   92F Uniform Information Practices Act (Modified)

   92J Department of Hawaiian Home Lands Records

    93 Government Publications

    94 Public Archives; Disposal of Records

    95 Destroying or Defacing Official Notices--Repealed

    96 The Ombudsman

    97 Lobbyists

    98 Uniform Electronic Legal Material Act

 

Cross References

 

  Alternative dispute resolution center, see chapter 613.

  Uniform electronic legal material act, see chapter 98.

 

CHAPTER 91

ADMINISTRATIVE PROCEDURE

 

Section

     91-1 Definitions

     91-2 Public information

   91-2.5 Fees for proposed and final rules

   91-2.6 Proposed rulemaking actions and rules; posting on

          the lieutenant governor's internet website

     91-3 Procedure for adoption, amendment, or repeal of

          rules

     91-4 Filing and taking effect of rules

   91-4.1 Rulemaking actions; copies in Ramseyer format

   91-4.2 Rule format; publication of index

   91-4.3 Price

   91-4.4 Form of publication

     91-5 Publication of rules

     91-6 Petition for adoption, amendment or repeal of rules

     91-7 Declaratory judgment on validity of rules

     91-8 Declaratory rulings by agencies

   91-8.5 Mediation in contested cases

     91-9 Contested cases; notice; hearing; records

   91-9.5 Notification of hearing; service

    91-10 Rules of evidence; official notice

    91-11 Examination of evidence by agency

    91-12 Decisions and orders

    91-13 Consultation by officials of agency

  91-13.1 Administrative review of denial or refusal to issue

          license or certificate of registration

  91-13.5 Maximum time period for business or

          development-related permits, licenses, or

          approvals; automatic approval; extensions

    91-14 Judicial review of contested cases

    91-15 Appeals

    91-16 Severability

    91-17 Federal aid

    91-18 Short title

 

Note

 

  Judiciary report to 2019 legislature on change in judicial proceedings made by L 2016, c 48.  L 2016, c 48, §11.

 

Cross References

 

  Small business regulatory flexibility act, see chapter 201M.

  Uniform electronic legal material act, see chapter 98.

 

Attorney General Opinions

 

  Because this chapter provides for a decision in a contested case to be rendered by an agency, a decision rendered by an official who is not within that agency would be the exception and not the rule.  This chapter does not require a hearings officer from outside the department for administrative hearings.  Att. Gen. Op. 98-6.

 

Law Journals and Reviews

 

  Sandy Beach Defense Fund v. City and County of Honolulu:  The Sufficiency of Legislative Hearings in an Administrative Setting.  12 UH L. Rev. 499.

  The Lum Court, Land Use, and the Environment:  A Survey of Hawai‘i Case Law 1983 to 1991.  14 UH L. Rev. 119.

  Residential Use of Hawai‘i's Conservation District.  14 UH L. Rev. 633.

 

Case Notes

 

  Statutory authority is necessary for administrative body to reconsider prior quasi-judicial decisions on its own initiative.  54 H. 621, 513 P.2d 1001.

  Under doctrine of necessity, official otherwise disqualified can act if jurisdiction is exclusive and substitution is not provided.  54 H. 621, 513 P.2d 1001.

  University rules do not have force of law unless Hawaii administrative procedure act is complied with.  56 H. 680, 548 P.2d 253.

  Rehearings before administrative bodies are addressed to their own discretion and only the clearest abuse of discretion could sustain an exception to rule.  60 H. 166, 590 P.2d 524.

  Where health department did not have rules adopted under this chapter governing the standards of emissions of hydrogen sulfide into the air as required by §342B-32 (1991) at the time geothermal well developer was issued permit, department was required to refuse the issuance of the permit. 73 H. 56, 828 P.2d 801.

  Department did not violate Hawaii administrative procedure act when it circulated a memorandum interpreting "sole source" provisions of Hawaii purchasing law to other state agencies.  76 H. 332, 876 P.2d 1300.

  Giving precedential effect to prior commission decisions does not constitute rule-making.  81 H. 459, 918 P.2d 561.

  Public utilities commission did not violate Hawaii administrative procedure act by not promulgating rules to establish when transmission lines will be placed underground.  81 H. 459, 918 P.2d 561.

  Public utilities commission's reliance on adjudication to develop underground transmission line policy not abuse of discretion where commission did not circumvent requirements of Hawaii administrative procedure act and appellants did not suffer undue hardship relying on past commission policy.  81 H. 459, 918 P.2d 561.

  A water management area designation is not the product of a contested case hearing, under this chapter, from which a direct appeal to the supreme court may be brought under §174C-60.  83 H. 484, 927 P.2d 1367.

  Where administrative rules failed to set forth the method by which department determined general assistance amounts, and the method used by department to determine amounts was adopted without compliance with this chapter, administrative rules contravened statutory mandate of §346-71(f) (1996) and were thus void and unenforceable.  88 H. 307, 966 P.2d 619.

  Where a public hearing pertaining to the issuance of a liquor license was statutorily required under §§281-52 and 281-57, and petitioner's legal rights, duties, and privileges were determined based on the public hearing regarding the decision to grant or deny a liquor license to petitioner, the public hearing was a "contested case" hearing governed by this chapter; thus, (1) petitioner was entitled to judicial review under §91-14, (2) §91-11 applied to proceedings on petitioner's application for liquor license, and (3) the liquor commission did not comply with §91-11.  118 H. 320, 189 P.3d 432.

  Planning and permitting department's policy of refusing to publicly disclose developer's engineering reports prior to their approval constituted a "rule"; as this policy was not "published or made available for public inspection" nor did plaintiff have actual knowledge of the policy prior to its initial request for the reports, department did not comply with this chapter and was proscribed from invoking this policy; thus, department violated this chapter by refusing to publicly disclose any unaccepted engineering reports and written comments, and all of department's files, including developer's file, were public records that could be examined upon request.  119 H. 90, 194 P.3d 531.

  Right to appeal from administrative agency's decision is limited by this chapter.  9 H. App. 298, 837 P.2d 311.

  Section 52D-8 provides officers with a constitutionally protected property interest – the right to legal representation for acting within the scope of their duty; due process thus entitles an officer to a contested case hearing under this chapter before an officer can be deprived of this interest.  89 H. 221 (App.), 971 P.2d 310.

  In the context of parole hearings, the Hawaii paroling authority does not "adjudicate contested cases" because a Hawaii paroling authority parole proceeding is not a "contested case" as defined under this chapter.  93 H. 298 (App.), 1 P.3d 768.

  Since the addition of two extra hunting days to each week of the hunting season concerned "conditions for entry into game management areas, and public hunting areas designated by the department of land and natural resources" and "open seasons" for hunting, the express language of §183D-3 mandated that in order to add the two weekdays for bird hunting, the department had to amend Hawaii administrative rule 13-122-4 pursuant to this chapter.  117 H. 16 (App.), 175 P.3d 126.

  Cited:  125 F. Supp. 3d 1051 (2015).

 

 

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