§91-14 - Judicial review of contested cases.

§91-14 Judicial review of contested cases.
(a) Any person aggrieved by a final decision and order in a contested case or
by a preliminary ruling of the nature that deferral of review pending entry of
a subsequent final decision would deprive appellant of adequate relief is
entitled to judicial review thereof under this chapter; but nothing in this
section shall be deemed to prevent resort to other means of review, redress,
relief, or trial de novo, including the right of trial by jury, provided by law.
Notwithstanding any other provision of this chapter to the contrary, for the
purposes of this section, the term "person aggrieved" shall include
an agency that is a party to a contested case proceeding before that agency or
another agency.

(b) [L 2004, c 202, §8 amendment repealed
June 30, 2010. L 2006, c 94, §1.] Except as otherwise provided herein,
proceedings for review shall be instituted in the circuit court within thirty
days after the preliminary ruling or within thirty days after service of the
certified copy of the final decision and order of the agency pursuant to rule
of court, except where a statute provides for a direct appeal to the
intermediate appellate court, subject to chapter 602. In such cases, the
appeal shall be treated in the same manner as an appeal from the circuit court
to the intermediate appellate court, including payment of the fee prescribed by
section 607-5 for filing the notice of appeal (except in cases appealed under
sections 11-51 and 40-91). The court in its discretion may permit other
interested persons to intervene.

(c) The proceedings for review shall not stay
enforcement of the agency decisions or the confirmation of any fine as a
judgment pursuant to section 92-17(g); but the reviewing court may order a stay
if the following criteria have been met:

(1) There is likelihood that the subject person will
prevail on the merits of an appeal from the administrative proceeding to the
court;

(2) Irreparable damage to the subject person will
result if a stay is not ordered;

(3) No irreparable damage to the public will result
from the stay order; and

(4) Public interest will be served by the stay order.

(d) Within twenty days after the determination
of the contents of the record on appeal in the manner provided by the rules of
court, or within such further time as the court may allow, the agency shall
transmit to the reviewing court the record of the proceeding under review. The
court may require or permit subsequent corrections or additions to the record
when deemed desirable.

(e) If, before the date set for hearing,
application is made to the court for leave to present additional evidence
material to the issue in the case, and it is shown to the satisfaction of the
court that the additional evidence is material and that there were good reasons
for failure to present it in the proceeding before the agency, the court may
order that the additional evidence be taken before the agency upon such
conditions as the court deems proper. The agency may modify its findings, decision,
and order by reason of the additional evidence and shall file with the
reviewing court, to become a part of the record, the additional evidence,
together with any modifications or new findings or decision.

(f) The review shall be conducted by the
appropriate court without a jury and shall be confined to the record, except
that in the cases where a trial de novo, including trial by jury, is provided
by law and also in cases of alleged irregularities in procedure before the
agency not shown in the record, testimony thereon may be taken in court. The
court shall, upon request by any party, hear oral arguments and receive written
briefs.

(g) Upon review of the record the court may
affirm the decision of the agency or remand the case with instructions for
further proceedings; or it may reverse or modify the decision and order if the
substantial rights of the petitioners may have been prejudiced because the
administrative findings, conclusions, decisions, or orders are:

(1) In violation of constitutional or statutory
provisions; or

(2) In excess of the statutory authority or
jurisdiction of the agency; or

(3) Made upon unlawful procedure; or

(4) Affected by other error of law; or

(5) Clearly erroneous in view of the reliable,
probative, and substantial evidence on the whole record; or

(6) Arbitrary, or capricious, or characterized by
abuse of discretion or clearly unwarranted exercise of discretion.

(h) Upon a trial de novo, including a trial by
jury as provided by law, the court shall transmit to the agency its decision
and order with instructions to comply with the order. [L 1961, c 103, §14;
Supp, §6C-14; HRS §91-14; am L 1973, c 31, §5; am L 1974, c 145, §1; am L 1979,
c 111, §9; am L 1980, c 130, §2; am L 1983, c 160, §1; am L 1986, c 274, §1; am
L 1993, c 115, §1; am L 2004, c 202, §8]

Note

L 2004, c 202, §82 provides:

"SECTION 82. Appeals pending in the supreme court as of
the effective date of this Act [July 1, 2006] may be transferred to the
intermediate appellate court or retained at the supreme court as the chief
justice, in the chief justice's sole discretion, directs."

Rules of Court

Appeal to circuit court, see HRCP rule 72; appeal to
appellate courts, see Hawaii Rules of Appellate Procedure.

Attorney General Opinions

Cost of record transmitted to the reviewing court is borne by
the agency. Att. Gen. Op. 64-4.

Law Journals and Reviews

Standing to Challenge Administrative Action in the Federal
and Hawaiian Courts. 8 HBJ 37.

Appellate Standards of Review in Hawaii. 7 UH L. Rev. 273.
(See also 7 UH L. Rev. 449.)

An Analysis of the Standing and Jurisdiction Prerequisites
for Direct Appeal of Agency Actions to the Circuit Court Under the Hawaii
Administrative Procedure Act After Bush v. Hawaiian Homes Commission and Pele
Defense Fund v. Puna Geothermal Venture. 17 UH L. Rev. 375.

Hawai‘i Appellate Standards of Review Revisited. 18 UH L.
Rev. 645.

Case Notes

Section contained appropriate statute of limitations for
State to file action in federal court under Education For All Handicapped
Children Act. 695 F.2d 1154.

Plaintiff's 42 U.S.C. §1983 action against dental board
barred by res judicata as plaintiff failed to seek state court judicial review
of dental board's order failing plaintiff on dental exam. 60 F.3d 626.

Review of decision of civil service commission is on the
record. 48 H. 278, 398 P.2d 155.

Question whether provision for appeal of preliminary ruling
overrides provisions of specific statutes governing administrative agencies,
raised but not decided. 50 H. 22, 428 P.2d 411.

Procedure applicable to grant of summary judgment after
appeal to circuit court. 50 H. 169, 434 P.2d 312.

Subsection (g) referred to: 50 H. 426, 442 P.2d 61.

Where zoning variance is granted after public hearing, owner
of land adjoining the property subject to variance is "person
aggrieved." 52 H. 518, 479 P.2d 796.

"Person aggrieved", to be entitled to judicial
review, must have been involved in the contested case. 53 H. 431, 495 P.2d
1180.

"Person aggrieved." 56 H. 260, 535 P.2d 1102; 64
H. 451, 643 P.2d 73.

Test under "clearly erroneous" standard is whether
appellate court has a firm and definite conviction mistake was made. 56 H.
552, 545 P.2d 692; 4 H. App. 26, 659 P.2d 77.

Where tenure hearing not required, application did not create
"contested case". 56 H. 680, 548 P.2d 253.

"Clearly erroneous" standard applies to review of
labor and industrial relations appeals board decisions. 57 H. 296, 555 P.2d
855.

Nature of appeal to circuit court under this section
discussed. 58 H. 292, 568 P.2d 1189.

Appeal from decision of administrative agency acting without
jurisdiction confers no jurisdiction on appellate court. 60 H. 65, 587 P.2d
301.

Paragraph (g) cited as authority to remand a cause to the
public utilities commission to make appropriate findings to support its order. 60
H. 166, 590 P.2d 524.

"Clearly erroneous" standard of review discussed.
60 H. 166, 590 P.2d 524; 66 H. 401, 664 P.2d 727; 67 H. 212, 685 P.2d 794; 2 H.
App. 421, 633 P.2d 564.

Final order means an order ending the proceedings.
Appellee's actions were not clearly erroneous or arbitrary and capricious where
appellant's filing of a grievance was untimely. 60 H. 513, 591 P.2d 621.

Standard of review under subsection (g) for decisions of
administrative agencies acting within sphere of expertise. 60 H. 625, 594 P.2d
612; 5 H. App. 71, 678 P.2d 584.

Organization opposing reclassification of properties and
which is composed of members who live in vicinity of properties is a
"person aggrieved" under subsection (a). 61 H. 3, 594 P.2d 1079.

"Participation in contested case" discussed. 61 H.
3, 594 P.2d 1079.

Timely appeal. 61 H. 3, 594 P.2d 1079.

Mere failure to include name of agency (which rendered
decision being appealed) in caption of notice of appeal does not render appeal
defective. 62 H. 444, 616 P.2d 1368.

Finality of order, what determines. 63 H. 85, 621 P.2d 361.

So long as requirements of subsection (a) are met, the
circuit court is vested with jurisdiction to hear appeal. 63 H. 85, 621 P.2d
361.

Land use commission. Final order. 63 H. 529, 631 P.2d 588.

Court did not abuse discretion in refusing to allow expert
witnesses to testify in court, or refusing to require transcript of oral
comments before agency. 64 H. 27, 636 P.2d 158.

Decision of administrative agency was clearly erroneous. 65
H. 146, 648 P.2d 1107.

Department of education was not a "person" with
standing to appeal administrative action. 65 H. 219, 649 P.2d 1140.

Granting of special management area permit by county planning
commission. 65 H. 506, 654 P.2d 874.

Agency's decision to reduce welfare benefits is reviewable
only by appeal under this section and not by declaratory judgment action. 66
H. 485, 666 P.2d 1133.

Agency's procedural irregularities did not prejudice
appellant's substantial rights. 67 H. 342, 686 P.2d 831.

Board's denial of a motion for reconsideration is a
"final order". 67 H. 603, 699 P.2d 26.

Police chief is a "person" with a standing to
appeal civil service commission's ruling. 68 H. 432, 718 P.2d 1076.

Apprenticeship committee was not "person aggrieved"
by labor director's rejection of its recommendation; apprentice denied back
wages and attorney's fees and costs upon reinstatement was "person
aggrieved". 68 H. 605, 723 P.2d 753.

Unincorporated association was "person aggrieved"
by decision to grant special management area permit, but association did not
participate in a "contested case". 69 H. 81, 734 P.2d 161.

Judicial review of an agency determination must be confined
to issues properly raised in the record of the administrative proceedings. 69
H. 135, 736 P.2d 1271.

Does not give administrative agencies the right to take an
appeal from an administrative action, but the agency may support an appeal
taken by an aggrieved party. 71 H. 545, 798 P.2d 442.

Standard used by appellate court when reviewing circuit
court's review of agency decision. 74 H. 599, 851 P.2d 311; 78 H. 21, 889 P.2d
705; 79 H. 154, 900 P.2d 161; 9 H. App. 198, 828 P.2d 1284.

Subsection (g)(1) applied under right/wrong standard in
review of circuit court's review of employees' retirement system declaratory
order, where issue presented to circuit court concerned a question of statutory
interpretation. 75 H. 42, 856 P.2d 1227.

Without a statutory, rule-based, or constitutional mandate
for a hearing, the Hawaiian homes commission hearing that took place was not
required by law and therefore did not constitute a contested case for the
purposes of obtaining appellate review pursuant to subsection (a);
consequently, judicial review by circuit court of commission's denial of
appellants' request for a contested case hearing as well as review of
commission's approval of third- party agreements was unattainable due to lack
of subject matter jurisdiction. 76 H. 128, 870 P.2d 1272.

Supreme court could not conclude that board of land and
natural resources' findings regarding application for conservation district use
permit were clearly erroneous. 76 H. 259, 874 P.2d 1084.

Circuit court properly concluded that it was vested with
appellate jurisdiction pursuant to subsection (a). With respect to issue of
standing, certain appellees demonstrated sufficient participation and potential
injury in fact to seek judicial review of agency decision; other appellees who
did not sufficiently participate in contested case were precluded from seeking
judicial review under subsection (a). 77 H. 64, 881 P.2d 1210.

"Clearly erroneous" standard applies to appeals
from findings in decisions of labor and industrial relations appeals board. 77
H. 100, 881 P.2d 1246.

Appeal to circuit court of zoning board of appeals' final
decision and order was timely, and circuit court properly exercised
jurisdiction over the matter. 77 H. 168, 883 P.2d 629.

Supreme court lacked appellate jurisdiction where there was
no final decision with respect to claimant's workers' compensation benefits for
incident which labor and industrial relations appeals board determined to be
compensable. 77 H. 305, 884 P.2d 368.

Circuit court's appellate jurisdiction proper where planning
commission rendered its final view, appellant was involved "in" the
contested case and sufficiently demonstrated standing to participate. 79 H.
425, 903 P.2d 1246.

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 director's violation of §91-13 by consulting materials
and individuals outside the record did not prejudice appellant's substantial rights,
harmless error. 87 H. 217, 953 P.2d 1315.

Where county planning director's decision that developer's
proposed action was inconsistent with community plan did not meet any of the
standards for reversal under subsection (g), circuit court erred in reversing
decision. 88 H. 108, 962 P.2d 367.

Where no express procedure provided in Maui charter or Maui
special management area rules for appeal of Maui planning director's decision
on a minor permit application to the Maui planning commission, and commission
delegated authority to render final decision on minor permit applications to
director pursuant to §205A-22, director's decision not to process developer's
application was a final decision equivalent to a denial of the application and
was thus appealable under subsection (a). 88 H. 108, 962 P.2d 367.

A decision that finally adjudicates the matter of medical and
temporary disability benefits under §§386-21, 386-31(b), and 386-32(b) is an
appealable final order under subsection (a), even though the matter of
permanent disability benefits under §§386-31(a) and 386-32(a) has been left for
later determination. 89 H. 436, 974 P.2d 1026.

Where entitlement to permanent disability or disfigurement
benefits is the right of the claimant that remains undetermined and is the
matter for which jurisdiction is retained by the labor director, a decision of
the labor and industrial relations appeals board that otherwise finally
adjudicates the matters of medical and temporary disability benefits is an
appealable final order under subsection (a). 89 H. 436, 974 P.2d 1026.

Where county board of appeals at no time questioned or
disclaimed planning director's action, and director could not have issued
denial of appeal on director's own authority, director acted on behalf of board
when director summarily rejected plaintiffs' appeals as untimely; thus,
director's denial constituted a "final decision" by the board under
subsection (a), which circuit court had jurisdiction to review on appeal. 90
H. 384, 978 P.2d 822.

Where plaintiffs' members, as native Hawaiians who exercised
such rights as were customarily and traditionally exercised for subsistence,
cultural, and religious purposes, sufficiently demonstrated injury to their
interests for purposes of appeal under this chapter, the trial court properly
concluded that plaintiff had standing to invoke judicial resolution of the land
use commission's decision. 94 H. 31, 7 P.3d 1068.

Where plaintiffs sufficiently demonstrated an "injury in
fact" by alleging facts to show that its members were recreational users
of the petition area and that land use commission's action would
"diminish" such use, and also asserted their interests in protecting
West Hawaii's scenic, aesthetic, historic, and biological resources, they were
"persons aggrieved" within the meaning of this section and trial
court did not err in concluding plaintiff had standing to seek judicial review
of the commission's decision. 94 H. 31, 7 P.3d 1068.

An order regarding the award or denial of attorney’s fees and
costs with respect to §386-93(b) is a final order under subsection (a) for
purposes of appeal; this final order rule applies prospectively to prevent
injustice; §386-93(b) allows assessment of attorney’s fees and costs against an
employer if the employer loses the final appeal. 104 H. 164, 86 P.3d 973.

A contested case hearing pursuant to subsection (a) was not
required in the determination by the labor director to register an
apprenticeship program pursuant to §372-4. 104 H. 275, 88 P.3d 647.

District family courts may not exercise judicial review of
administrative proceedings conducted pursuant to the Individuals with
Disabilities Education Act. 105 H. 38, 93 P.3d 1145.

The agency-specific appellate procedure prescribed in §232-17
precluded appellants' resort to judicial review under subsection (a);
jurisdiction to hear appellants' tax appeal rested exclusively with the tax
appeal court. 106 H. 318, 104 P.3d 905.

Orders disposing of petitions for declaratory rulings under
§91-8 are appealable to the circuit court pursuant to this section; thus,
circuit court had proper jurisdiction to review Hawaii labor relations board
order. 107 H. 178, 111 P.3d 587.

Where the purpose of the land use commission's hearing was
not to determine the rights, duties, or privileges of specific parties, the
hearing did not constitute a contested case for the purposes of obtaining
judicial review pursuant to subsection (a), thus, the trial court did not err
in dismissing plaintiff's appeal for lack of subject matter jurisdiction. 111
H. 124, 139 P.3d 712.

Where appellants failed to comply with the specific
procedures promulgated by the department of land and natural resources,
specifically, Hawaii administrative rule §13-1-29, in requesting a contested
case hearing, such failure precluded judicial review pursuant to this section.
112 H. 28, 143 P.3d 1230.

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 chapter
91; thus, (1) petitioner was entitled to judicial review under this section,
(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.

Cited in reviewing decision of the labor and industrial relations
appeal board. 1 H. App. 350, 619 P.2d 516.

In overturning agency's order, court was required to make
detailed findings of fact and conclusions of law. 2 H. App. 92, 626 P.2d 199.

Finality of order. 2 H. App. 219, 629 P.2d 125.

Test under "clearly erroneous" standard is whether
appellate court has a firm and definite conviction mistake was made. 56 H.
552, 545 P.2d 692; 4 H. App. 26, 659 P.2d 77.

Order of board not a "final order" where it remands
a case to determine service-connected issue. 4 H. App. 526, 669 P.2d 638.

Review of agency decision confined to issues properly raised
in record of proceedings leading up to decision. 5 H. App. 115, 678 P.2d 1101.

Public employers directly affected by agency's order were
"aggrieved persons" and their filing of amicus briefs with agency was
sufficient "adversary participation"; standard used by appellate
court when reviewing circuit court's review of agency decision. 5 H. App. 533,
704 P.2d 917.

Does not require that all evidence before agency support its
findings; sufficient if findings supported by reliable, probative, and
substantial evidence. 6 H. App. 540, 735 P.2d 950.

No "contested case" occurred even though there are
situations where a public hearing may be considered a contested case because
department rules established procedures for contested cases. 8 H. App. 16, 791
P.2d 1267.

Service of certified copy of agency decision under this
section is complete when certified copy is deposited in the mail. 9 H. App.
298, 837 P.2d 311.

Standard used in review of administrative agency decision. 9
H. App. 377, 842 P.2d 648.

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 this section (prior to 1993
amendment). 77 H. 396 (App.), 885 P.2d 1137.

Although not titled "Notice of Appeal", where
document fairly communicated appellants' intent to appeal appeals
administrator's decision and record contained no indication that the document
misled or prejudiced department in any way, circuit court had jurisdiction over
appellants' appeal. 98 H. 80 (App.), 42 P.3d 657.

Appellants were not entitled to be compensated for their
costs in defending against department's efforts to recoup benefits allegedly overpaid
to them as pursuant to subsection (g), there is no authority vested in the
hearing officer, the circuit court, or the appellate court to award damages to
appellants for these costs. 98 H. 80 (App.), 42 P.3d 657.

Because appellant did not demonstrate that it suffered
concrete injury, it was not a person "aggrieved" by HLRB decision;
thus, it did not have standing to appeal decision to circuit court. 80 H. 376
(App.), 910 P.2d 147.

Where lessee failed to timely appeal Hawaiian homes
commission's decision to cancel lease, as required under this section,
commission was left without jurisdiction to act on lessee's subsequent requests
for reconsideration. 106 H. 246 (App.), 103 P.3d 406.

Where department of planning and permitting director's declaratory
ruling--that surfing instructor's use of hotel shop was a proper change in
nonconforming use so long as that use remained within certain limits--was
reasonably based on the evidence before the director, and constituted a
reasonable application of the applicable zoning ordinance and the department's
previous interpretation of that ordinance, director's ruling was not an abuse
of discretion. 119 H. 452 (App.), 198 P.3d 715.

Cited: 47 H. 1, 24, 384 P.2d 536; 50 H. 172, 435 P.2d 21.

Mentioned: 904 F. Supp. 1098.

Hawaii Legal Reporter Citations

Timeliness of appeal. 79 HLR 79-0643.