Thursday, November 21, 2019
Hawai'i Free Press

Current Articles | Archives

Sunday, June 21, 2015
Contested Case or Court Case? The Hawaii Supreme Court Decides
By Robert Thomas @ 6:58 PM :: 3732 Views :: Judiciary, Land Use

HAWSCT Clarifies What Qualifies As An Appealable Agency Action Under The Administrative Procedures Act

by Robert Thomas, InverseCondemnation, June 19, 2015

Here's one that isn't about land use, but should be of interest to Hawaii land users, since so much of what we do is tied up in the Administrative Procedures Act.

Hawaii's APA can be a trap for the unwary: if you run to court to challenge what you believe is the agency's appealable action, you may be met with a claim that you picked the wrong action, and you needed to exhaust the agency's own internal administrative appeals process first, and it is now too late to invoke the trial court's original jurisdiction. And if you err on the side of caution and invoke the agency's appeal process, you may end up prematurely challenging all sorts of agency decisions when you really didn't need to. Add to the mix the confusion among many not familiar with this territory -- about what type of agency action triggers the ability to appeal to the courts under the APA (the old "was it a 'contested case' or not" question) -- and you have a recipe for failure. 

It's a fine balance, and until the Hawaii Supreme Court's recent decision in Kellberg v. Yuen, 319 P.3d 432 (2014) and the Intermediate Court of Appeals' decision in Hoku Lele, LLC v. City and County of Honolulu, 296 P.3d 1072 (Haw. App. 2013) [in both of these cases, we represented the prevailing party], state and municipal agencies often played the uncertain terrain to their advantage, and those who challenged agency action frequently ended up being run through the "too soon or too late" game, and faced motions to dismiss that invoked the "primary jurisdiction" doctrine, or which asserted the plaintiff had not exhausted administrative remedies. Kellberg and Hoku Lele put an end to that, and at least in the situation where there is an appeal from a "final agency action," the courts required agencies to tell people which decisions the agencies consider appealable, and give them notice of how to go about appealing. 

In Doe v. Attorney General, No. SCWC-13-0005700 (June 18, 2015), the Hawaii Supreme Court clarified APA jurisdiction in one of the areas where it was still foggy: whether an appellant must have been through a "contested case" (an administrative hearing in the agency) in order to invoke the circuit court's APA jurisdiction. The court held no, and that a letter to the Attorney General was a petition for a declaratory ruling under Haw. Rev. Stat. § 91-8, and the AG's response was appealable to the circuit courts under § 91-14.

The mistake the Court of Appeals made when it concluded the circuit court lacked jurisdiction to hear Doe's appeal because there had not been a contested case  was that you don't always need to have been through a contested case in order to invoke HAPA jurisdiction, such as when an agency makes a ruling in response to a declaratory petition. Those are not as common as contested case rulings by far, but the procedure for asking agencies to make declaratory rulings on a variety of issues is there and should not be overlooked, even if it is not often utilized.

Doe was a registered sex offender in Washington state, and asked the AG what he needed to do under Hawaii's statutory sex offender registry statutes, since he was planning to come over for vacation. He believed he was exempt from Hawaii registration, since the offense for which pleaded guilty in Washington is not an offense in Hawaii. The AG, which is the agency tasked by statute with administering Hawaii's registry, responded that he should register, and if he believed he was exempt, he would have to come to Hawaii first, since the statute allows only "residents" to claim exemption from registration.

Doe appealed under the APA pro se to the Circuit Court, which dismissed because there had been no "contested proceeding" because the AG had not held a hearing. Nor had the AG done anything to actually rule on Doe's inquiry because it lacked the authority to do so because he was not present in Hawaii, and the AG asserted that until he was, it could not make an exception determination. The Intermediate Court of Appeals affirmed.

The Supreme Court relied on Dupree v. Hiraga, 219 P.3d 1084 (Haw. 2009) [another case in which we prevailed, by the way], to conclude that pro se requests such as Doe's should be "construed liberally," and that when so read, was clear Doe was petitioning the AG for a declaratory ruling that he did not have to register. In those cases, an agency with the statutory authorization to make such rulings should treat the request as one under § 91-8, even if the petitioner has not formally invoked the correct statute, regulation, or procedure.

Once the court determined that Doe's letter was a petition for declaratory ruling, the conclusion that he had a the right under § 91-14 to appeal the AG's response flowed easily. The court also concluded that the AG was wrong, and that Doe didn't need to be in Hawaii in order to seek an exemption from registration.

Here are our lessons from this case:

  • As we've noted before, the Hawaii Supreme Court favors use of administrative processes, if those are even arguably available. If you had a hearing, even if it didn't look like a classic contested case, it's likely going to be deemed a contested case. Even your request for a contested case is likely appealable as a contested case.
  • Now under Doe, in those situations where the agency clearly has not held a contested case, you still may get to appeal if the agency has the power to issue declaratory rulings. Which many do. Question: must you appeal, or is this an alternative means of seeking judicial review? No answers yet. 
  • The court also seems to have little patience for agency game playing, and will look with disfavor on situations where it appears that the agency is doing so, or where the process is being used for silly results (like here, where the AG's position was that Doe needed to be in Hawaii before it could make any determination whether he needed to register so he could come to Hawaii).
  • Administrative procedures should be clear and straightforward, and not games of "gotcha." If there's an admin process available, you need to use it. However, the agency has the obligation to make its own processes clear and accessible, especially for citizens acting without lawyers. 

More on the case here, from colleague Rebecca Copeland.

PDF: Doe v. Attorney General, No. SCWC-13-0005700 (Haw. June 18, 2015)

 

Links

TEXT "follow HawaiiFreePress" to 40404

Register to Vote

2aHawaii

808 Silent Majority

808 State Update AM940

ABCDEFG Blog

ACA Signups Hawaii

ACCE

ALEC

Alliance Defending Freedom

Aloha Life Advocates

Aloha Pregnancy Care Center

American Council of Trustees and Alumni

American Mothers of Hawaii

AMVETS-Hawaii

AntiPlanner

Antonio Gramsci Reading List

A Place for Women in Waipio

Audit The Rail

Ballotpedia Hawaii

Better Hawaii 

Blaisdell Memorial Project

Broken Trust 

Build More Hawaiian Homes Working Group

CAFR Hawaii

Castaway Conservative

Children's Alliance Hawaii

Children's Rights Institute

ChinaTownWatch.com

Christian Homeschoolers of Hawaii

Citizens for Recall

Cliff Slater's Second Opinion

Coffee Break

Conservative Forum for Hawaii

CSIS Pacific Forum

DAR Hawaii

DeedySupport.com

DVids Hawaii

E Hana Kakou Kelii Akina

E Māua Ola i Moku o Keawe

Farmers For Choice Hawaii

FIRE

Fix Oahu!

Follow the Money Hawaii

Frank in Hawaii

Front Page Magazine

Frontline: The Fixers

Genetic Literacy Project

Get Off Your Butts!

God, Freedom, America

Grassroot Institute

Habele.org

Hawaii Aganst Assisted Suicide

Hawaii Aquarium Fish Report

Hawaii Aviation Preservation Society

Hawaii Catholic TV

Hawaii Christian Coalition

Hawaii Cigar Association

Hawaii Coalition Against Legalized Gambling

Hawaii ConCon Info

Hawaii Credit Union Watch

Hawaii Crime Victims' Rights

Hawaii Crop Improvement Association

Hawaii Debt Clock

Hawaii Defending Marriage

Hawaii Defense Foundation

Hawaii Families for Educational Choice

Hawaii Family Advocates

Hawaii Family Forum

Hawaii Farmers and Ranchers United

Hawaii Farmer's Daughter

Hawaii Federalist Society

Hawaii Federation of Republican Women

Hawaii Firearm Community

Hawaii Fishermen's Alliance

Hawaii Future Project

Hawaii Gathering of Eagles

Hawaii History Blog

Hawaii Homeschool Association

Hawaii Jihadi Trial

Hawaii March for Life

Hawaii Meth Project

Hawaii's Partnership for Appropriate & Compassionate Care

Hawaii Public Charter School Network

Hawaii Rifle Association

Hawaii Right to Life -- Big Island

Hawaii Right to Life -- Oahu

Hawaii Shield Law Coalition

Hawaii Shippers Council

Hawaii Smokers Alliance

Hawaii State Data Lab

Hawaii Together

Heritage Foundation

HI Coalition Against Legalized Gambling

HIEC.Coop 

HiFiCo

Hiram Fong Papers

Homeschool Legal Defense Hawaii

Honolulu Homeless Crisis

Honolulu Navy League

Honolulu Traffic

Horns of Jericho Blog

House Minority Blog

House Republican Caucus YouTube

HPACC

Hump Day Report

I Vote Hawaii

If Hawaii News

Imua TMT

Inouye-Kwock, NYT 1992

Inside the Nature Conservancy

Inverse Condemnation

Investigative Project on Terrorism

Iowa Meets Maui

Jackson v Abercrombie

Jihad Watch

Judgepedia Hawaii

July 4 in Hawaii

Kahle v New Hope

Kakaako Cares

Kau TEA Party

Kauai Co GOP

Keep Hawaii's Heroes

KeyWiki

Land and Power in Hawaii

Legislative Committee Analysis Tool

Lessons in Firearm Education

Lingle Years

Malulani Foundation

Managed Care Matters -- Hawaii

Malama Pregnancy Center of Maui

Mauna Kea Recreational Users Group

MentalIllnessPolicy.org

Middle East Forum--The Legal Project

Mililani Conservatives for Change

Military Home Educators' Network Oahu

Missile Defense Advocacy

MIS Veterans Hawaii

Muslim Brotherhood in America

NAMI Hawaii

NARTH

Natatorium.org

National Christian Foundation Hawaii

National Parents Org Hawaii

National Wind Watch

New Zeal

NFIB Hawaii News

No GMO Means No Aloha

Northwest Economic Policy Seminar

Not Dead Yet, Hawaii

Now What I Really Think

NRA-ILA Hawaii

Oahu Alternative Transport

ObamaCare Abortion Hawaii

Obookiah

OHA Lies

Opt Out Today

OurFutureHawaii.com

Pacific Aviation Museum

Patients Rights Council Hawaii

PEACE Hawaii

People vs Machine

Pritchett Cartoons 

Pro-GMO Hawaii

P.U.E.O.

RailRipoff.com

Rental by Owner Awareness Assn

Republican Party -- Hawaii State

Research Institute for Hawaii USA

Rick Hamada Show

RJ Rummel

Robotics Organizing Committee

Salvage The Rail

Save the Plastic Bag

School Choice in Hawaii

SenatorFong.com

SIFE Remington

SIFE W. Oahu 

Sink the Jones Act

Smart About Marijuana--Hawaii

St Marianne Cope

State Budget Solutions Hawaii

State Policy Network

Statehood for Guam

Tax Foundation of Hawaii

The Harriet Tubman Agenda

The Long War Journal

The Real Hanabusa

Time Out Honolulu

Truth About Trade & Technology - Hawaii

UCC Truths

Union Members Know Your Rights

US Tax Foundation Hawaii Info

Valor in the Pacific

VAREP Honolulu

Waagey.org

West Maui Taxpayers Association

What Natalie Thinks

Whole Life Hawaii

Yes2TMT