§91-9 Contested cases; notice; hearing;
interactive conference technology; records. (a) Subject to section
91-8.5, in any contested case, all parties shall be afforded an opportunity for
hearing after reasonable notice.
(b) The notice shall include a statement of:
(1) The date, time, place, and nature of hearing;
(2) The legal authority under which the hearing is to
be held;
(3) The particular sections of the statutes and rules
involved;
(4) An explicit statement in plain language of the
issues involved and the facts alleged by the agency in support thereof;
provided that if the agency is unable to state the issues and facts in detail
at the time the notice is served, the initial notice may be limited to a
statement of the issues involved, and thereafter upon application a bill of
particulars shall be furnished; and
(5) The fact that any party may retain counsel if the
party so desires and the fact that an individual may appear on the individual's
own behalf, or a member of a partnership may represent the partnership, or an
officer or authorized employee of a corporation or trust or association may
represent the corporation, trust, or association.
(c) The hearing may be held by interactive
conference technology that allows interaction by the agency, any party, and
counsel if retained by the party, and the notice identifies electronic contact
information for each agency, party, and counsel if retained by the party. A
contested case hearing held by interactive conference technology shall be
recessed for up to one hour when audio communication cannot be maintained;
provided that the hearing may reconvene when only audio communication is
reestablished. If audio-only communication is reestablished, then each speaker
shall state the speaker's name prior to making remarks.
(d) Opportunities shall be afforded all
parties to present evidence and argument on all issues involved; provided that,
if the hearing is held by interactive conference technology evidence may be
submitted and exchanged by electronic means.
(e) Any procedure in a contested case may be
modified or waived by stipulation of the parties and informal disposition may
be made of any contested case by stipulation, agreed settlement, consent order,
or default.
(f) For the purpose of agency decisions, the
record shall include:
(1) All pleadings, motions, intermediate rulings;
(2) Evidence received or considered, including oral
testimony, exhibits, and a statement of matters officially noticed;
(3) Offers of proof and rulings thereon;
(4) Proposed findings and exceptions;
(5) Report of the officer who presided at the
hearing; and
(6) Staff memoranda submitted to members of the
agency in connection with their consideration of the case.
(g) It shall not be necessary to transcribe
the record unless requested for purposes of rehearing or court review.
(h) No matters outside the record shall be
considered by the agency in making its decision except as provided herein.
(i) For the purposes of this subsection,
"interactive conference technology" means any form of audio or audio
and visual conference technology, including teleconference, videoconference,
and voice over internet protocol, that facilitates interaction between the
agency, any party, and counsel if retained by the party. [L 1961, c 103, §9;
Supp, §6C-9; HRS §91-9; am L 1980, c 130, §1; gen ch 1985; am L 2003, c 76, §2;
am L 2021, c 168, §2]
Law Journals and Reviews
A Litigator's Approach to Issues Concerning Exercise and
Protection of Native Hawaiian Traditional and Customary Rights. 43 UH L. Rev.
592 (2021).
Case Notes
Provision for waiver
of any procedure includes procedural requirements of §91-11. 54 H. 10, 510
P.2d 358.
Subsection (c)
applied. 55 H. 538, 524 P.2d 84.
There were no
statutes which required that the prisoner be given a hearing on transfer from
state to federal prison. 58 H. 386, 570 P.2d 563.
Full hearing, what
constitutes. 60 H. 166, 590 P.2d 524.
State did not have to
follow contested case procedures in canceling a lease of state land. 66 H.
632, 672 P.2d 1030.
Particularized notice
of methodology used by public utilities commission in its ratemaking
determinations not required. 67 H. 425, 690 P.2d 274.
Where board of land
and natural resources improperly consulted outside sources, the violation was
cured by the subsequent rehearing proceeding. 76 H. 259, 874 P.2d 1084.
Appellant failed to
show that board of medical examiners violated subsection (g), where appellant
contended that board violated subsection (g) by taking testimony from hearings
officer during a hearing before the board en banc about matters not contained
in the record. 78 H. 21, 889 P.2d 705.
Despite not citing to the specific relevant section of the
Hawaii administrative rules (HAR), the contested case hearing notice satisfied
the requirements of subsection (b), where, among other things, the notice
provided an implicit reference to the HAR section because "excessive
sedimentation" could only be a reference to that section. 132 H. 247, 320
P.3d 912 (2014).
Receiving a letter
from party and taking a view of the premises after the public hearing was
closed were irregularities leading to reversal. 2 H. App. 43, 625 P.2d 1044.
Not violated by
agency's order that parties not make any further comments unless specifically
requested. 4 H. App. 633, 675 P.2d 784.
Cited: 904 F. Supp.
1098.
Cited: 134 H. 187, 339 P.3d 685 (2014).
Notes of Decisions
Pila‘a 400, LLC v. Bd. of Land & Nat. Resources., 320 P.3d 912 (Haw. 2014).
· cites it 109× “In its exceptions, Pila#a 400 raised an objection to any findings based on HAR § 13-5-24 due to a lack of notice under HRS § 91-9. Pila#a 400 stated that it had “never received any notice, oral or written, that the contested case hearing was proceeding under the marine…”
The Cmty. Associations of Hualalai, Inc. v. Leeward Plan. Comm'n., 500 P.3d 426 (Haw. 2021).
· cites it 22× “SPP- 16-188 was a contested case because an agency hearing was required by the LPC rules and statutes relevant to the issuance of special permits, LPC Rule 4, 6; HRS §§ 91-9, 205-6 (referenced by HCC § 25-2-61(c)), and such a hearing would have determined the “legal rights,…”
Keep the North Shore Country v. Bd. of Land & Nat. Resources., 506 P.3d 150 (Haw. 2022).
· cites it 18× “The Board observed that “[n]othing in the record shows that Member Gon has not complied or will not comply with HRS §§ 91-9(g) and 91-13.” The Board also reasoned that the fact that HRS § 195D-25 authorizes the Board chair to also serve on the Committee means there is no…”
E & J Lounge Operating Co. v. Liquor Comm'n of Honolulu, 189 P.3d 432 (Haw. 2008).
· cites it 10× “” On the other hand, in this case, the content requirement of HRS § 91-9 would apply to notice served on Respondent and Intervenors if, pursuant to the court’s instructions, the Commission decides to hold additional hearings because, under the circumstances of this case, they…”
Outdoor Circle v. Harold K.L. Castle Trust Est., 675 P.2d 784 (Haw. App. 1983).
· cites it 12× “Appellants argue that LUC committed the following reversible procedural errors: (1) it adopted conclusions of law without either a public meeting or any of the parties being present in violation of HRS §§ 92-3 and -6(b) (1976); (2) it precluded appellants from presenting…”
State v. Gustafson, 515 P.2d 1256 (Haw. 1973).
· cites it 32× “I am drawn to this conclusion for several reasons. First, the contours of the hearing outlined in HRS § 286-156 are wholly substantive, and that section is silent as to the procedures to be employed by the district judge.”
In Re Kauai Elec. Div. of Citizens Utils. Co., 590 P.2d 524 (Haw. 1978).
· cites it 8× “The Commission failed to hold a “full hearing” as required by HRS § 91-9; C. It lacks specific findings of fact and conclusions of law as required by HRS § 91-12; II.”
Kelly v. 1250 Oceanside Partners, 140 P.3d 985 (Haw. 2006).
· cites it 4× “Approximately two weeks later, Oceanside requested a contested-case hearing before DOH pursuant to HRS § 91-9 (1993). 13 On December 15, 2000, Plaintiffs, Oceanside, and DOH agreed to a stipulation converting the TRO to a preliminary injunction.”
— Haw. Rev. Stat. § 91-9(1984) — 1 case
Pila‘a 400, LLC v. Bd. of Land & Nat. Resources., 320 P.3d 912 (Haw. 2014).
“In its exceptions, Pila#a 400 raised an objection to any findings based on HAR § 13-5-24 due to a lack of notice under HRS § 91-9. Pila#a 400 stated that it had “never received any notice, oral or written, that the contested case hearing was proceeding under the marine…”
— Haw. Rev. Stat. § 91-9(a) — 9 cases
Outdoor Circle v. Harold K.L. Castle Trust Est., 675 P.2d 784 (Haw. App. 1983).
“Appellants argue that LUC committed the following reversible procedural errors: (1) it adopted conclusions of law without either a public meeting or any of the parties being present in violation of HRS §§ 92-3 and -6(b) (1976); (2) it precluded appellants from presenting…”
The Cmty. Associations of Hualalai, Inc. v. Leeward Plan. Comm'n., 500 P.3d 426 (Haw. 2021).
“SPP- 16-188 was a contested case because an agency hearing was required by the LPC rules and statutes relevant to the issuance of special permits, LPC Rule 4, 6; HRS §§ 91-9, 205-6 (referenced by HCC § 25-2-61(c)), and such a hearing would have determined the “legal rights,…”
E & J Lounge Operating Co. v. Liquor Comm'n of Honolulu, 189 P.3d 432 (Haw. 2008).
“” On the other hand, in this case, the content requirement of HRS § 91-9 would apply to notice served on Respondent and Intervenors if, pursuant to the court’s instructions, the Commission decides to hold additional hearings because, under the circumstances of this case, they…”
In Re Kauai Elec. Div. of Citizens Utils. Co., 590 P.2d 524 (Haw. 1978).
“The Commission failed to hold a “full hearing” as required by HRS § 91-9; C. It lacks specific findings of fact and conclusions of law as required by HRS § 91-12; II.”
— Haw. Rev. Stat. § 91-9(b) — 5 cases
Pila‘a 400, LLC v. Bd. of Land & Nat. Resources., 320 P.3d 912 (Haw. 2014).
“In its exceptions, Pila#a 400 raised an objection to any findings based on HAR § 13-5-24 due to a lack of notice under HRS § 91-9. Pila#a 400 stated that it had “never received any notice, oral or written, that the contested case hearing was proceeding under the marine…”
State v. Gustafson, 515 P.2d 1256 (Haw. 1973).
“I am drawn to this conclusion for several reasons. First, the contours of the hearing outlined in HRS § 286-156 are wholly substantive, and that section is silent as to the procedures to be employed by the district judge.”
— Haw. Rev. Stat. § 91-9(b)(3) — 1 case
Pila‘a 400, LLC v. Bd. of Land & Nat. Resources., 320 P.3d 912 (Haw. 2014).
“In its exceptions, Pila#a 400 raised an objection to any findings based on HAR § 13-5-24 due to a lack of notice under HRS § 91-9. Pila#a 400 stated that it had “never received any notice, oral or written, that the contested case hearing was proceeding under the marine…”
— Haw. Rev. Stat. § 91-9(b)(4) — 2 cases
Pila‘a 400, LLC v. Bd. of Land & Nat. Resources., 320 P.3d 912 (Haw. 2014).
“In its exceptions, Pila#a 400 raised an objection to any findings based on HAR § 13-5-24 due to a lack of notice under HRS § 91-9. Pila#a 400 stated that it had “never received any notice, oral or written, that the contested case hearing was proceeding under the marine…”
— Haw. Rev. Stat. § 91-9(b)(5) — 1 case
Pila‘a 400, LLC v. Bd. of Land & Nat. Resources., 320 P.3d 912 (Haw. 2014).
“In its exceptions, Pila#a 400 raised an objection to any findings based on HAR § 13-5-24 due to a lack of notice under HRS § 91-9. Pila#a 400 stated that it had “never received any notice, oral or written, that the contested case hearing was proceeding under the marine…”
— Haw. Rev. Stat. § 91-9(c) — 12 cases
The Cmty. Associations of Hualalai, Inc. v. Leeward Plan. Comm'n., 500 P.3d 426 (Haw. 2021).
“SPP- 16-188 was a contested case because an agency hearing was required by the LPC rules and statutes relevant to the issuance of special permits, LPC Rule 4, 6; HRS §§ 91-9, 205-6 (referenced by HCC § 25-2-61(c)), and such a hearing would have determined the “legal rights,…”
In Re Kauai Elec. Div. of Citizens Utils. Co., 590 P.2d 524 (Haw. 1978).
“The Commission failed to hold a “full hearing” as required by HRS § 91-9; C. It lacks specific findings of fact and conclusions of law as required by HRS § 91-12; II.”
— Haw. Rev. Stat. § 91-9(d) — 1 case
— Haw. Rev. Stat. § 91-9(e) — 7 cases
— Haw. Rev. Stat. § 91-9(f) — 2 cases
— Haw. Rev. Stat. § 91-9(g) — 6 cases
Keep the North Shore Country v. Bd. of Land & Nat. Resources., 506 P.3d 150 (Haw. 2022).
“The Board observed that “[n]othing in the record shows that Member Gon has not complied or will not comply with HRS §§ 91-9(g) and 91-13.” The Board also reasoned that the fact that HRS § 195D-25 authorizes the Board chair to also serve on the Committee means there is no…”
The Cmty. Associations of Hualalai, Inc. v. Leeward Plan. Comm'n., 500 P.3d 426 (Haw. 2021).
“SPP- 16-188 was a contested case because an agency hearing was required by the LPC rules and statutes relevant to the issuance of special permits, LPC Rule 4, 6; HRS §§ 91-9, 205-6 (referenced by HCC § 25-2-61(c)), and such a hearing would have determined the “legal rights,…”
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