Hawaii Administrative Rules 2
Subchapter 2 (Declaratory Relief)
DECLARATORY RELIEF
§12-46-61 Contents of petition for declaratory relief. The commission’s executive director or any interested person may petition the commission for a declaratory ruling as to the applicability of any HRS provision or of any rule adopted by the commission to a factual situation. Each petition shall state concisely and with particularity the facts giving rise to the petition, including the petitioner’s interest, reasons for filing the petition, and the names of any potential respondents, the provision or rule in question, the issues raised, and petitioner’s position or contentions with respect thereto. [Eff 12/31/90] (Auth: HRS §§91-8, 368-3) (Imp: HRS §§91-8, 368-3)
§12-46-62 Memorandum of authorities in support of petition. Petitioner shall also file, together with any petition for declaratory relief and at the time the petition is filed, a memorandum of authorities in support of the petition which shall contain a full discussion of the reasons, including legal authorities, supportive of the petitioner’s position. [Eff 12/31/90] (Auth: HRS §§91-8, 368-3) (Imp: HRS §§91-8, 368-3)
§12-46-63 Disposition of petition. (a) The commission, as expeditiously as possible after the filing of a petition for declaratory relief, may refuse to consider any petition for declaratory relief. Without limiting the generality of the foregoing, the commission may refuse consideration where:
(1) The petition fails to substantively conform with section 12-46-61 or is not supported by a memorandum of authorities in support of the petition;
(2) The petition is frivolous;
(3) The matter is not within the jurisdiction of the commission;
(4) The petition is based on hypothetical or speculative facts of either liability or damages; or
(5) There is a genuine controversy of material fact, the resolution of which is necessary before any order or declaratory relief may issue.
(6) There is any other reason justifying denial of the petition.
(b) With respect to each petition to be considered, and as expeditiously as possible, the commission shall:
(1) Summarily, and in writing, deny the petition, setting forth the reasons for the denial and advise petitioner of the right to request reconsideration or judicial relief or grant the relief sought either as prayed for or as modified by the commission, setting forth the reasons therefor and advise respondent, if any, of the right to request reconsideration or judicial relief;
(2) Set the petition for argument before the commission in accordance with this subchapter; or
(3) At its sole discretion, assign the petition to the hearings examiner for further proceedings in accordance with this subchapter. [Eff 12/31/90] (Auth: HRS §§91-8, 368-3) (Imp: HRS §§91-8, 368-3)
§12-46-64 Parties. Unless a petition has been summarily disposed of pursuant to section 12-46-63, in all petitions for declaratory relief where the commission’s executive director is not the petitioner, the executive director shall be made a party respondent to the proceedings and shall be served accordingly. [Eff 12/31/90] (Auth: HRS §§91-8, 368-3) (Imp: HRS §§91-8, 368-3)
§12-46-65 Memorandum in opposition. Each respondent, within fifteen days after the receipt of the petition, may file and serve upon the petitioner a memorandum in opposition stating concisely and fully the respondent’s position or contentions and reasons, including legal authorities. [Eff 12/31/90] (Auth: HRS §§91-8, 368-3) (Imp: HRS §§91-8, 368-3)
§12-46-66 Intervention and intervenor’s memorandum of authorities. Unless the petition has been summarily disposed of pursuant to section 12-46-65 and subject to section 12-46-25, any interested person may request intervention in a proceeding for declaratory relief. Any person permitted to intervene in a proceeding for declaratory relief may file and serve upon petitioner, a memorandum of authorities which shall state concisely and fully the intervenor’s position or contentions and reasons, including legal authorities. The commission’s executive director shall be deemed a party without the necessity of formal intervention. [Eff 12/31/90] (Auth: HRS §§91-8, 368-3) (Imp: HRS §§91-8, 368-3)
§12-46-67 Request for additional facts or supplemental memorandum. The commission or the hearings examiner at any time may request of the petitioner or any party, a statement of additional facts or a memorandum, the purpose of which is to clarify a specific factual issue, position, contention, or issue provided the request shall aid the commission in effectuating the ends of justice, or in achieving its purposes, and shall not unduly delay the proceedings or hinder, harass, or unreasonably prejudice any part. [Eff 12/31/90] (Auth: HRS §§91-8, 26-9) (Imp: HRS §§91-8, 26-9)
§12-46-68 Notice of argument. All parties shall be given written notice of the hearing of argument at least fifteen days before the time of the argument. The notice shall include:
(1) The date, time, place, and nature of the argument;
(2) The legal authority under which the argument is to be heard;
(3) Particular sections of the statutes and rules involved; and
(4) A short and concise statement of issues involved, the basic facts giving rise to the petition.
The notice shall further apprise each party of their right to retain legal counsel if so desired. [Eff 12/31/90] (Auth: HRS §§91-8, 368-3) (Imp: HRS §§91-8, 91-9, 91-9.5, 368-3)
§12-46-69 Argument. Argument shall be heard either before the commission or a hearings examiner duly designated. All parties shall be afforded full opportunity to present argument on all issues involved. The argument shall be at the time and place set forth in the notice of argument but at that time and place may be continued from day to day and adjourned to a later day or to a different place without notice other than the announcement thereof at the hearing. [Eff 12/31/90] (Auth: HRS §§91-8, 368-3) (Imp: HRS §§91-8, 91-9, 368-3)
§12-46-70 Material issue of fact, public interest. If, at any time, it appears that there exists a genuine controversy of material fact the resolution of which is necessary before any order of declaratory relief may issue, or that the petition raises issues of public concern and interest that a proceeding for rule relief would more fairly and effectively aid the commission in achieving its purposes and goals and protect that public concern or interest, the commission or hearings examiner may:
(1) Without suggestion or on motion of any party dismiss the petition for declaratory relief and allow same to be refiled as a complaint or petition for hearing or rule relief;
(2) Convert the proceeding to one of hearing or rule relief and proceed thereafter as if the complaint or petition had been brought originally for hearing or rule relief. If the proceeding is converted to a proceeding for hearing relief, the issues may be restricted to those material facts in issue. [Eff 12/31/90] (Auth: HRS §§91-8, 368-3) (Imp: HRS §§91-8, 368-3)
§12-46-71 Proposed findings of fact and conclusions of law. (a) The parties, upon first obtaining the permission of the commission or hearings examiner, may file and serve upon all other parties to the proceeding, written proposed findings of fact and conclusions of law together with the reasons therefor within fifteen days after the close of the argument or submission of requested or permitted memoranda, whichever is later. The submission, wherever possible, shall contain specific references to the record and shall state the authorities relied upon.
(b) Any grant of permission shall be at the sole discretion of the commission or hearings examiner. When the argument has been conducted by a hearings examiner, the parties shall not, under any circumstances, file proposed findings of fact and conclusions of law with the commission. [Eff 12/31/90] (Auth: HRS §§91-8, 368-3) (Imp: HRS §§91-8, 91-12, 368-3)
§12-46-72 Commission’s decision. (a) When the argument has been held before the commission, the commission, as expeditiously as possible after the close of the argument or submission of all permitted or requested memoranda, whichever is later, shall issue its final decision and order.
(b) When the petition has been contested, and the commission’s decision and order is adverse to any party, the commission shall also issue and serve upon each party to the proceeding, together with its final decision and order, separate findings of fact and conclusions of law.
(c) All final decisions and orders and any findings of fact and conclusions of law issued by the commission shall be based upon the whole record and supported by reliable probative and substantial evidence, including those facts on which the commission properly took judicial notice. [Eff 12/31/90] (Auth: HRS §§91-8, 368-3) (Imp: HRS §§91-8, 91-12, 368-3)
§12-46-73 Hearing Examiner’s Decision. (a) When the argument has been held before a hearings examiner, the hearings examiner, as expeditiously as possible after the close of the argument or submission of all requested or permitted memoranda, whichever is later, shall file with the commission the hearings examiner’s decision and any proposed order.
(b) When the petition has been contested and the decision and order is adverse to any party, the hearings examiner shall file with the decision and order separate findings of fact and conclusions of law.
(c) The decision, findings of fact, conclusions of law, and any order proposed by the hearings examiner shall be based upon the whole record and supported by the reliable, probative, and substantial evidence, including those facts of which the hearings examiner properly took official notice.
(d) The hearings examiner shall serve a copy of the decision and any proposed order, together with any findings of fact and conclusions of law upon each party by personal service or by registered or certified mail, return receipt requested. Where notice of the argument has been served by publication and the party so served has failed to appear at the argument, service of the decision is complete upon its mailing to the party at the party’s last known address. [Eff 12/31/90] (Auth: HRS §§91-8, 368-3) (Imp: HRS §§91-8, 91-11, 368-3)
§12-46-74 Commission’s action on proposed decisions.(a) Where the petition has been contested, any party adversely affected by the hearings examiner’s decision within fifteen days after the receipt of a copy of the decision, may file with the commission written exceptions to the whole or any part of the decision and request review by the commission. Each written exception shall specify the portions of the record and authorities relied upon to sustain each point. A copy of the written exceptions shall be served by the party so excepting upon each party to the proceeding, and upon the hearings examiner. Unless the time has been extended, no written exceptions shall be filed or accepted for filing after the time specified, except by leave of the commission for good cause shown.
(b) Where the petition has been contested and written exceptions filed, any party may file and serve upon all other parties and the hearings examiner a statement in support of the decision within fifteen days after receipt of a copy of the written exceptions.
(c) Where the petition has been contested and whenever written exceptions have been timely filed, all parties to the proceedings shall be afforded the opportunity to present oral argument to the commission concerning the proposed decision. The commission shall personally consider the whole record or portions of the record as may have been cited by the parties either in support or in opposition to the decision. All parties shall be served with notice of the time and place of argument at least five days prior to the time for argument. Within a reasonable time after argument has been heard, the commission shall issue a final decision and order, either affirming, modifying, or reversing, in whole or in part, the hearing examiner’s decision.
(d) Where the petition has not been contested, or if no written exceptions have been filed, the commission, within a reasonable time after the hearings examiner’s decision has been filed, shall issue a written final decision and order, either adopting modifying, or reversing, in whole or in part, the hearings examiner’s proposed decision. The commission shall state with specificity in the final decision the reasons for any modification or reversal, in whole or in part, of the hearings examiner’s proposed decision. [Eff 12/31/90] (Auth: HRS §§91-8, 368-3) (Imp: HRS §§91-8, 91-11, 91-12, 368-3)
§12-46-75 Order, effect. Any decision and order of declaratory relief, whether granting or denying the petition, shall have the same force and effect as other decisions and orders issued by the commission. [Eff 12/31/90] (Auth: HRS §§91-8, 368-3) (Imp: HRS §§91-8, 368-3)
