§91-11  Examination of evidence by agency. Whenever in a contested case the officials of the agency who are to render thefinal decision have not heard and examined all of the evidence, the decision,if adverse to a party to the proceeding other than the agency itself, shall notbe made until a proposal for decision containing a statement of reasons andincluding determination of each issue of fact or law necessary to the proposeddecision has been served upon the parties, and an opportunity has been affordedto each party adversely affected to file exceptions and present argument to theofficials who are to render the decision, who shall personally consider thewhole record or such portions thereof as may be cited by the parties. [L 1961,c 103, §11; Supp, §6C-11; HRS §91-11]

 

Case Notes

 

  Deviation fromrequirement that proposed decision be presented where the officials renderingthe decision have not heard and examined all the evidence is not permissible. 52 H. 221, 473 P.2d 573.

  Procedural requirementsof section may be waived pursuant to §91-9(d).  54 H. 10, 501 P.2d 358.

  Requirement thatofficials who are to render the decision personally consider the whole recordor portions thereof cited by the parties is satisfied where the officialsconsidered exceptions to the proposed decision and heard arguments thereon.  54H. 10, 501 P.2d 358.

  Submission ofproposed decision is required whether a single official or a majority of theofficials have not heard the evidence.  54 H. 134, 504 P.2d 1214.

  "Finaldecision" construed.  57 H. 535, 560 P.2d 1292.

  Person filing timelyexceptions is entitled to opportunity to present written and oral arguments,and to have exceptions considered on merits based on record.  65 H. 257, 650P.2d 574.

  Under circumstances,board was not required to issue proposed decision.  65 H. 404, 652 P.2d 1143.

  Transcript of hearingconducted by hearing officer not required for hearing on exceptions heldpursuant to this section.  65 H. 411, 652 P.2d 632.

  Where record reflectedthat the commissioner heard and examined all the evidence, and appellantspointed to no new evidence that the commissioner overlooked, the commissionerdid not violate this section by amending hearing officer's recommended order,powers granted commissioner under Hawaii administrative rule §16-201-46, byfailing to provide appellants yet another opportunity to repeat their previousarguments.  112 H. 90, 144 P.3d 1.

  As it is possible togive effect to §281-59 and this section insofar as a public hearing on alicense application must be regarded as a contested case subject to therequirements of chapter 91, this section does not conflict with §281-59.  118H. 320, 189 P.3d 432.

  Public hearings onliquor license applications held by the liquor commission are contested casehearings such that this section requires any commissioner who is not present atany stage of the public hearing to become familiar with the record beforevoting on a liquor license application, unless the application is automaticallyrejected pursuant to §281-59(a). 118 H. 320, 189 P.3d 432.

  The liquorcommission's failure to comply with this section, requiring that allcommissioners personally consider the entire record before voting on a liquorlicense application, was not a "failure to act" such as would triggerthe automatic approval provision of §91-13.5 where the liquor commission voted,albeit ineffectively, within the fifteen day period prescribed by §281-59.  118H. 320, 189 P.3d 432.

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

  Phrase"officials of the agency who are to render the final decision" refersto all members of the agency.  2 H. App. 672, 638 P.2d 1386.

  Board met minimumrequirements of section by receiving briefs and hearing oral arguments.  5 H.App. 59, 678 P.2d 576.

  Question notpreserved for appeal when party failed to object to denial of claim in agency'sproposed order.  5 H. App. 533, 704 P.2d 917.

 

Hawaii Legal Reporter Citations

 

  Opportunity to fileexceptions.  77-1 HLR 77-63.