Arbitration and Awards
Reestablishes certain provisions of chapter 658, Hawaii Revised Statutes, that were repealed in 2002.
TWENTY-SECOND LEGISLATURE, 2003
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO PUBLIC EMPLOYMENT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The purpose of this Act is to maintain the process used by public employers and employees to summon employees as witnesses and procure relevant information and documents; confirm, vacate, modify or correct arbitration awards; file notices of motion to vacate, modify, or correct an arbitration award; and enter judgment of arbitration awards with the court and record motions, by incorporating certain provisions of chapter 658, Hawaii Revised Statutes, that had been in effect since 1925 but were repealed in 2002. In 2002, a revised version of the Uniform Arbitration Act, codified as chapter 658A, Hawaii Revised Statutes, replaced chapter 658, Hawaii Revised Statutes, without sufficient notice and opportunity for public employers and employees to provide meaningful discussion. Chapter 658A significantly altered the arbitration process mutually agreed upon by the public employers and employees and utilized by the parties with few problems for over thirty years. Chapter 658A takes on the characteristics of a litigation practice and will tend to exclude non-lawyers, such as labor relation specialists and union business agents, from advocating grievances at arbitration; provides for numerous challenges and delays in obtaining a final and binding arbitration award; and will make arbitration proceedings more costly. Chapter 658A seriously erodes the intent of the legislature that recognized that the modern way of administering government is to allow public employees the right to share in the decision making process.
SECTION 2. Chapter 89, Hawaii Revised Statutes, is amended by adding nine new sections to be appropriately designated and to read as follows:
"§89-A Witnesses; attendance. An arbitrator or performance judge may issue a subpoena for the attendance of a witness and for the production of records and other evidence at any hearing and may administer oaths. The fees for attendance shall be the same as the fees for witnesses before circuit courts. The summons shall be:
(1) Issued in the name of the arbitrator or performance judge;
(2) Signed by the arbitrator or performance judge;
(3) Directed to the witness; and
(4) Served in the same manner as subpoenas to testify before a court of record.
If any person so summoned to testify refuses or neglects to obey the summons, upon petition, the circuit court may compel attendance of the person before the arbitrator or performance judge or punish the person for contempt in the same manner provided for the attendance or punishment of witnesses in circuit court.
§89-B Award; confirming award. The award shall be in writing and acknowledged or provided in the same manner as a deed for the conveyance of real estate, and delivered to one of the parties or the party’s attorney. A copy of the award shall be served by the arbitrator or performance judge on each of the other parties to the arbitration, personally or by registered or certified mail. At any time within one year after the award is made and served, any party to the arbitration may apply to the circuit court specified in the agreement, or if none is specified, to the circuit court of the judicial circuit in which the arbitration was had, for an order confirming the award. Thereupon the court shall grant an order, unless the award is vacated, modified, or corrected, pursuant to sections 89-C and 89-D. The record shall be filed with the motion as provided for in section 89-G, and notice of the motion shall be served upon the adverse party, or the adverse party’s attorney, as provided for service of notice of a motion in an action in the same court.
§89-C Vacating award. In any of the following cases, the court may make an order vacating the award, upon the application of any party to the arbitration where:
(1) The award was procured by corruption, fraud, or undue means;
(2) There was evident partiality or corruption in the arbitrator or performance judge;
(3) The arbitrator or performance judge was guilty of: misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or any other misbehavior by which the rights of any party have been prejudiced; or
(4) The arbitrator or performance judge exceeded the judge's powers or so imperfectly executed them, that a mutual, final, and definite award upon the subject matter submitted was not made.
Where an award is vacated and the time within which the agreement required the award to be made has not expired, the court in its discretion may direct a rehearing by the arbitrator or performance judge.
§89-D Modifying or correcting award. In any of the following cases, the court may make an order modifying or correcting the award, upon the application of any party to the arbitration where:
(1) There was an evident miscalculation of figures or an evident mistake in the description of any person, thing, or property referred to in the award;
(2) The arbitrator or performance judge has awarded upon a matter not submitted to them, unless it is a matter not affecting the merits of the decision upon the matters submitted; or
(3) The award is imperfect in a manner of form, not affecting the merits of the controversy.
The order may modify and correct the award to effect the intent of the award and promote justice between the parties.
§89-E Notice of motion to vacate, modify, or correct; stay. Notice of a motion to vacate, modify, or correct an award shall be served in the manner provided for service of notice of a motion in an action, upon an adverse party or the adverse party’s attorney, within ten days after the award is made and served. For the purposes of the motion, any judge who might make an order to stay the enforcement of a judgment in an action brought in the same court may make an order to be served with the notice of motion, staying the proceedings of the adverse party to enforce the award. The record shall be filed with the motion as provided in section 89-G.
§89-F Entry of judgment. Upon the granting of an order confirming, modifying, or correcting an award, the order shall be filed in the office of the clerk of the circuit court and shall constitute the entry of judgment. An appeal may be taken from the judgment as provided in section 89-I.
§89-G Record to be filed with motion. (a) The party moving for an order confirming, vacating, modifying, or correcting an award shall file, at the time the motion is filed with the clerk, the following papers with the clerk:
(1) The agreement; the selection or appointment, if any, of an additional arbitrator, performance judge, or umpire; and each written extension of the time, if any, within which to make the award; and
(2) The award.
(b) Each notice, affidavit, or other paper used or to be used upon an application to confirm, vacate, modify, or correct the award, and a copy of each order of the court upon an application, shall be filed with the clerk the same as in a civil action.
§89-H Effect of judgment. The judgment entered pursuant to section 89-F shall have the same force and effect and is subject to all the provisions of law relating to a judgment in an action and may be enforced as if it had been rendered in an action in the court in which it is entered.
§89-I Appeal when. Unless the agreement for award provides that no appeal may be taken, an appeal may be taken from an order vacating an award, or from a judgment entered upon an award, as from an order or judgment in an action; otherwise no appeal may be had."
SECTION 3. In codifying the new sections added by section 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.
SECTION 4. New statutory material is underscored.
SECTION 5. This Act shall take effect upon its approval.