§91-1 - Definitions.

§91-1  Definitions.  For the purpose ofthis chapter:

(1)  "Agency" means each state or countyboard, commission, department, or officer authorized by law to make rules or toadjudicate contested cases, except those in the legislative or judicialbranches.

(2)  "Persons" includes individuals,partnerships, corporations, associations, or public or private organizations ofany character other than agencies.

(3)  "Party" means each person or agencynamed or admitted as a party, or properly seeking and entitled as of right tobe admitted as a party, in any court or agency proceeding.

(4)  "Rule" means each agency statement ofgeneral or particular applicability and future effect that implements,interprets, or prescribes law or policy, or describes the organization,procedure, or practice requirements of any agency.  The term does not includeregulations concerning only the internal management of an agency and notaffecting private rights of or procedures available to the public, nor does theterm include declaratory rulings issued pursuant to section 91-8, norintra-agency memoranda.

(5)  "Contested case" means a proceeding inwhich the legal rights, duties, or privileges of specific parties are requiredby law to be determined after an opportunity for agency hearing.

(6)  "Agency hearing" refers only to suchhearing held by an agency immediately prior to a judicial review of a contestedcase as provided in section 91-14. [L 1961, c 103, §1; Supp, §6C-1; HRS §91-1]

Law Journals and Reviews

  The Protection of Individual Rights Under Hawai`i'sConstitution.  14 UH L. Rev. 311.

Case Notes

Agency.

  Generally.  55 H. 538, 524 P.2d 84.

  Administrative agency is not a "person" under CivilRights Act, 42 USCA 1983.  396 F. Supp. 375.

  City council is not subject to the procedural requirements of Hawaii administrative procedure act when acting in either a legislative ornonlegislative capacity.  70 H. 361, 773 P.2d 250.

  Executive director of Hawaii civil rights commission was notan "agency" because the director neither made rules nor adjudicatedcontested cases.  104 H. 158, 86 P.3d 449.

  County of Hawai`i department of finance was an"agency" within the meaning of chapter 91, and was not a"person" entitled to appeal under §91-14 (prior to 1993 amendment). 77 H. 396 (App.), 885 P.2d 1137.

Agency hearing.

  Hearing concerning transfer of prisoner to mainland prisonnot an "agency hearing".  63 H. 138, 621 P.2d 976.

  Hearing before zoning board of appeals was properlydenominated as the "agency hearing", as contemplated by thedefinition of "contested case" in paragraph (5), where appellanttemple was permitted to introduce relevant evidence and cross-examinewitnesses.  87 H. 217, 953 P.2d 1315.

Contested case.

  Generally.  55 H. 538, 524 P.2d 84.

  A hearing "required by law" includes those requiredby due process.  55 H. 478, 522 P.2d 1255.

  "Contested case" construed.  56 H. 680, 548 P.2d253.

  Hearing "required by law" includes constitutionaland statutory law.  58 H. 386, 570 P.2d 563.

  Public hearing conducted pursuant to public notice has beendeemed a contested case.  65 H. 506, 654 P.2d 874.

  "Fair hearing" regarding the reduction of welfarebenefits was a "contested case".  66 H. 485, 666 P.2d 1133.

  Evidentiary hearing under PURPRA was contested case ratherthan rulemaking.  66 H. 538, 669 P.2d 148.

  Granting of special management area permit did not involve a"contested case".  69 H. 81, 734 P.2d 161.

  Because the subject matter of the underlying hearing did notinvolve the homestead lessees’ property interests, the Hawaiian homescommission hearing that transpired was not required by law and therefore wasnot a contested case as defined by paragraph (5). 76 H. 128, 870 P.2d 1272.

  Public hearings held by department were "contestedcases".  77 H. 64, 881 P.2d 1210.

  Revocation of mooring permit not contested case.  3 H. App.91, 641 P.2d 991.

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

Rules.

  Generally.  55 H. 538, 524 P.2d 84.

  Defendant's approval of use of wood preservative for treatingstructural lumber in Hawaii, together with defendant's conditions of approval,would appear to be rulemaking.  939 F. Supp. 746.

  "General applicability;" "implement law orpolicy;" "internal management."  55 H. 478, 522 P.2d 1255.

  Manual of instructions to personnel of department of socialservices and housing covering welfare fraud investigations dealt only with"internal management".  58 H. 94, 564 P.2d 1271.

  Policy decisions governing transfer of prisoners from stateto federal prison do not require publication.  58 H. 386, 570 P.2d 563.

  Internal management; rule covering dress standards ofvisitors to prison.  59 H. 346, 581 P.2d 1164.

  Hawaii administrative procedure act held not applicable toadvisory functions of the county planning commission.  60 H. 428, 591 P.2d 602.

  "Descriptive words and phrases" distributed bydepartment to unemployment compensation appeals referees are rules.  62 H. 286,614 P.2d 380.

  Contract in which board of land and natural resources rentedexcess transmission capacity in Molokai Irrigation System is not a rule.  Concernedonly internal management because it dealt with a matter within the custodialmanagement of the board.  62 H. 546, 617 P.2d 1208.

  Internal management.  63 H. 117, 621 P.2d 957.

  Agency's requirement that no-fault claimants submit toinsurer-ordered medical exams is a "rule".  67 H. 148, 682 P.2d 73.

  Approval of use of specific breath testing apparatus was notrulemaking.  67 H. 451, 691 P.2d 365.

  State hospital's bylaws regarding corrective action against adoctor are not "rules".  68 H. 422, 717 P.2d 1029.

  Circular was sent only to other state agencies and did notcommand or prohibit any action by any member of the public or any publicemployee; by the clear language of paragraph (4), therefore, Hawaiiadministrative procedure act did not apply, and conclusion of law stating thatcircular was not a rule or regulation, but was merely a guideline and was notsubject to provisions of Hawaii administrative procedure act was not wrong.  76H. 332, 876 P.2d 1300.

  Water resource management commission's distinctive treatmentof "nonagricultural uses", such as golf course irrigation,  in itswater use permit and policy decision did not constitute "illegalrulemaking" where commission did not propose any general rules automaticallyapplicable in all circumstances, but instead devised a principled solution to aspecific dispute based on "facts applied to rules that have already beenpromulgated by the legislature".  94 H. 97, 9 P.3d 409.

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

  Where city appraiser’s unwritten methodology for determining imparted valuefell within definition of a rule for purposes of paragraph (4), city needed tofollow rulemaking procedures set forth in §91-3 prior to applying impartedvalue deductions toward golf course assessments.  89 H. 381, 974 P.2d 21.

  Agency's decision not a "rule" where it was made ina contested hearing that was accusatory in nature; distinction betweenrulemaking and adjudication discussed.  4 H. App. 463, 667 P.2d 850.

  Police department regulation establishing procedures aimed atprescribing officers' activities regarding sobriety roadblocks was internaldepartment regulation.  9 H. App. 98, 825 P.2d 1068.

  Hawai`i county police department's field sobriety testingprocedures are not "rules" subject to Hawaii administrative procedureact's rulemaking requirements.  9 H. App. 406, 844 P.2d 679.

  Where Kauai police department's general order establishingauthority and procedures at sobriety checkpoints concerned only the internalmanagement of an agency and did not affect the private rights of or proceduresavailable to the public, the general order was not required to be promulgatedpursuant to this chapter.  111 H. 59 (App.), 137 P.3d 373.

Hawaii Legal Reporter Citations

  Issuance of building permit.  79 HLR 79-0579.