§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 orby a preliminary ruling of the nature that deferral of review pending entry ofa subsequent final decision would deprive appellant of adequate relief isentitled to judicial review thereof under this chapter; but nothing in thissection 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 thepurposes of this section, the term "person aggrieved" shall includean agency that is a party to a contested case proceeding before that agency oranother agency.

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

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

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

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

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

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

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

(e)  If, before the date set for hearing,application is made to the court for leave to present additional evidencematerial to the issue in the case, and it is shown to the satisfaction of thecourt that the additional evidence is material and that there were good reasonsfor failure to present it in the proceeding before the agency, the court mayorder that the additional evidence be taken before the agency upon suchconditions as the court deems proper.  The agency may modify its findings, decision,and order by reason of the additional evidence and shall file with thereviewing 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 theappropriate court without a jury and shall be confined to the record, exceptthat in the cases where a trial de novo, including trial by jury, is providedby law and also in cases of alleged irregularities in procedure before theagency not shown in the record, testimony thereon may be taken in court.  Thecourt shall, upon request by any party, hear oral arguments and receive writtenbriefs.

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

(1)  In violation of constitutional or statutoryprovisions; or

(2)  In excess of the statutory authority orjurisdiction 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 byabuse of discretion or clearly unwarranted exercise of discretion.

(h)  Upon a trial de novo, including a trial byjury as provided by law, the court shall transmit to the agency its decisionand 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; amL 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 ofthe effective date of this Act [July 1, 2006] may be transferred to theintermediate appellate court or retained at the supreme court as the chiefjustice, in the chief justice's sole discretion, directs."

Rules of Court

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

Attorney General Opinions

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

Law Journals and Reviews

  Standing to Challenge Administrative Action in the Federaland 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 Prerequisitesfor Direct Appeal of Agency Actions to the Circuit Court Under the HawaiiAdministrative Procedure Act After Bush v. Hawaiian Homes Commission and PeleDefense 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 forState to file action in federal court under Education For All HandicappedChildren Act.  695 F.2d 1154.

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

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

  Question whether provision for appeal of preliminary rulingoverrides 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 afterappeal 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, ownerof land adjoining the property subject to variance is "personaggrieved."  52 H. 518, 479 P.2d 796.

  "Person aggrieved", to be entitled to judicialreview, must have been involved in the contested case.  53 H. 431, 495 P.2d1180.

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

  Test under "clearly erroneous" standard is whetherappellate 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.

  Test under "clearly erroneous" standard is whetherappellate 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 oflabor and industrial relations appeals board decisions.  57 H. 296, 555 P.2d855.

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

  Appeal from decision of administrative agency acting withoutjurisdiction confers no jurisdiction on appellate court.  60 H. 65, 587 P.2d301.

  Paragraph (g) cited as authority to remand a cause to thepublic utilities commission to make appropriate findings to support its order.  60H. 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 whereappellant's filing of a grievance was untimely.  60 H. 513, 591 P.2d 621.

  Standard of review under subsection (g) for decisions ofadministrative agencies acting within sphere of expertise.  60 H. 625, 594 P.2d612; 5 H. App. 71, 678 P.2d 584.

  Organization opposing reclassification of properties andwhich 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 rendereddecision being appealed) in caption of notice of appeal does not render appealdefective.  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, thecircuit court is vested with jurisdiction to hear appeal.  63 H. 85, 621 P.2d361.

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

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

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

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

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

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

  Agency's procedural irregularities did not prejudiceappellant'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 toappeal 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 backwages and attorney's fees and costs upon reinstatement was "personaggrieved".  68 H. 605, 723 P.2d 753.

  Unincorporated association was "person aggrieved"by decision to grant special management area permit, but association did notparticipate in a "contested case".  69 H. 81, 734 P.2d 161.

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

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

  Standard used by appellate court when reviewing circuitcourt's review of agency decision. 74 H. 599, 851 P.2d 311; 78 H. 21, 889 P.2d705; 79 H. 154, 900 P.2d 161; 9 H. App. 198, 828 P.2d 1284.

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

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

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

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

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

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

  Supreme court lacked appellate jurisdiction where there wasno final decision with respect to claimant's workers' compensation benefits forincident which labor and industrial relations appeals board determined to becompensable.  77 H. 305, 884 P.2d 368.

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

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

  Where director's violation of §91-13 by consulting materialsand 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'sproposed action was inconsistent with community plan did not meet any of thestandards for reversal under subsection (g), circuit court erred in reversingdecision.  88 H. 108, 962 P.2d 367.

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

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

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

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

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

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

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

  A contested case hearing pursuant to subsection (a) was notrequired in the determination by the labor director to register anapprenticeship program pursuant to §372-4.  104 H. 275, 88 P.3d 647.

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

  The agency-specific appellate procedure prescribed in §232-17precluded appellants' resort to judicial review under subsection (a);jurisdiction to hear appellants' tax appeal rested exclusively with the taxappeal 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 boardorder.  107 H. 178, 111 P.3d 587.

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

  Where appellants failed to comply with the specificprocedures promulgated by the department of land and natural resources,specifically, Hawaii administrative rule §13-1-29, in requesting a contestedcase 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 liquorlicense was statutorily required under §§281-52 and 281-57, and petitioner'slegal rights, duties, and privileges were determined based on the publichearing regarding the decision to grant or deny a liquor license to petitioner,the public hearing was a "contested case" hearing governed by chapter91; thus, (1) petitioner was entitled to judicial review under this section,(2) §91-11 applied to proceedings on petitioner's application for liquorlicense, 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 relationsappeal board.  1 H. App. 350, 619 P.2d 516.

  In overturning agency's order, court was required to makedetailed 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 whetherappellate 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 remandsa case to determine service-connected issue.  4 H. App. 526, 669 P.2d 638.

  Review of agency decision confined to issues properly raisedin 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 wassufficient "adversary participation"; standard used by appellatecourt 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 itsfindings; sufficient if findings supported by reliable, probative, andsubstantial evidence.  6 H. App. 540, 735 P.2d 950.

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

  Service of certified copy of agency decision under thissection 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. 9H. 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 1993amendment).  77 H. 396 (App.), 885 P.2d 1137.

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

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

  Because appellant did not demonstrate that it sufferedconcrete 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 homescommission's decision to cancel lease, as required under this section,commission was left without jurisdiction to act on lessee's subsequent requestsfor reconsideration.  106 H. 246 (App.), 103 P.3d 406.

  Where department of planning and permitting director's declaratoryruling--that surfing instructor's use of hotel shop was a proper change innonconforming use so long as that use remained within certain limits--wasreasonably based on the evidence before the director, and constituted areasonable application of the applicable zoning ordinance and the department'sprevious interpretation of that ordinance, director's ruling was not an abuseof 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.