§13-91-14 - Judicial review of contested cases.

§13-91-14 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         (b) [2004 amendment repealed June 30, 2010.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 1151 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 §13-91-14; 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]


         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.

         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 §13-91-13 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 §13-91-8 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 plaintiffs 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.

         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 Hawaii 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.

         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.

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