Protected: HCRC Contested Case Hearing Procedures
*NOTE: The following explains, but does not have the force or effect of Hawaiʻi statutes or rules. If there are any inconsistencies, the statutes and Hawaiʻi Administrative Rules (H.A.R.) will control. Relevant statutes and administrative rules can be found on our website, in any state library, or at the Hawaiʻi Supreme Court Law Library.
*IMPORTANT* — Please make sure that all documents that you intend to file in a contested case are addressed to “Hawaiʻi Civil Rights Commission – Adjudications” or “Hawaiʻi Civil Rights Commission – Hearings” to ensure proper and timely filing. Sending documents addressed to the HCRC Enforcement Attorney (or the Executive Director) will NOT result in the filing of the documents for the contested case hearing record, as the Enforcement Attorney is NOT a part of the Adjudications Section of the Hawaiʻi Civil Rights Commission that holds hearings.
INTRODUCTION
As background information regarding the structure of the Hawaiʻi Civil Rights Commission’s (HCRC) operations, the HCRC is divided into two separate and distinct sections: the Enforcement Section, overseen by the Executive Director, which receives, investigates, and prosecutes discrimination complaints; and the quasi-judicial Adjudication Section, which holds administrative hearings in front of a hearings officer, who conducts the hearing and issues a proposed decision that is submitted to the five-member Commission at the conclusion of the contested case hearing. Final decisions issued by the Commission can then be appealed to circuit court, under Hawaiʻi Administrative Rules (H.A.R.) § 12-46-39.
Administrative hearings occur after the HCRC investigation is completed and after the Executive Director issues a finding of Reasonable Cause to Believe that Discriminatory Practices Occurred and is unable to conciliate or resolve the case. Cases are docketed for contested case hearings pursuant to Chapter 91, Hawaiʻi Revised Statutes, and Hawaiʻi Administrative Rules found in Title 12, Chapter 46, subchapters 1-3.
1. Right to Representation by an Attorney
First, and foremost, parties have the right to be represented by an attorney (H.A.R. § 12-46-22) or by a non-attorney representative (H.A.R. § 12-46-23). While an individual does not need an attorney to participate in the HCRC’s hearings, it is recommended as these are legal proceedings.
During administrative hearings, the Executive Director brings the case on behalf of the HCRC complaint filed by the complainant. The complainant will serve as the Executive Director’s witness or may decide to participate as an intervening party. The Executive Director will be represented by a HCRC Enforcement Attorney. Neither the Enforcement Attorney nor the Hearings Examiner can offer or provide legal advice during the course of the hearing. However, the Hearings Examiner and Adjudications staff will try to answer procedural questions regarding the hearings process.
2. Substantive and Procedural Rules of the Commission
In addition to the statutes which the Commission must follow, the Commission has issued procedural and substantive rules, in the Hawaiʻi Administrative Rules (H.A.R.). The procedural rules set forth the general duties and powers of the Commission and the hearings procedures. The procedural rules are Title 12, Chapter 46, subchapters 1-3. The substantive rules are Hawaiʻi Administrative Rules, Title 12, Chapter 46, subchapters 4-9, 20. Relevant statutes and administrative rules can be found in any state library or online here: https://labor.hawaii.gov/hcrc/find-a-law/
We are experimenting with electronic filing of documents via email during contested case hearings. See the general information flyer, “Electronic Filing Guidelines”. Permission to file documents electronically must be first granted by the Hearings Examiner.
PRE-HEARING PROCEDURES
1. Scheduling Conference (H.A.R. § 12-46-19)
Upon the appointment of a Hearings Examiner and the docketing of a case for a contested case hearing, the parties will receive a Notice of a scheduling conference, which will include the date, time, and place of the conference and must be held within 30 days of the appointment of the Hearings Examiner. The Notice will also state the requirements for the scheduling conference statement that parties are required to submit to the Hearings Examiner prior to the conference. The scheduling conference may be held in-person or via remote video conference (Zoom).
If you cannot attend the scheduling conference or any other conference or hearing, contact the Hearings Examiner through Adjudications’ staff at (808) 586-8659 as soon as possible, as well as opposing counsel (the Executive Director’s Enforcement Attorney). If you do request a change in date, please be prepared to explain why the change is needed.
2. Discovery (H.A.R. § 12-46-32(4))
Parties are allowed to conduct Discovery before a hearing. Discovery is a process by which the parties obtain relevant factual information and evidence from each other. Discovery is explained more fully in the Hawaiʻi Rules of Civil Procedure (H.R.C.P.). During HCRC administrative hearings, Discovery may include:
a. Demand for Disclosure (H.A.R. § Rule 12-46-41(a))
Demands for disclosure are filed with the Hearings Examiner, with a copy served on the other party. Demands for disclosure are ongoing, and the party who receives a demand must disclose the information as soon as it is available. Information requested must be disclosed at least seven (7) days prior to the hearing. Otherwise, such evidence may not be permitted to be introduced at the hearing. However, all disclosure is subject to the dates set forth by the Hearings Examiner regarding scheduling.
b. Depositions (H.R.C.P. Rule 30)
Depositions are a process in which the parties question witnesses before a hearing. After the case has been docketed by the Hearings Examiner, any party may take the testimony of any person by deposition. The attendance of non-party witnesses may be compelled by subpoena as described in subsection 4 of “Hearing Procedures”, below. See APPENDIX D for a sample subpoena.
c. Interrogatories to Parties (H.R.C.P. Rule 33)
Interrogatories are written questions parties may ask the opposing party regarding any matter relevant to the case. Each party will be limited to sixty questions, pursuant to H.R.C.P. 33(a) unless leave for additional interrogatories is requested.
d. Request for Production of Documents (H.R.C.P. Rule 34)
A request for production of documents is a request to produce and to inspect and copy any documents (described with reasonable particularity) including writings, electronically stored information, drawings, graphs, charts, photographs, data compilations, or tangible things regarding any factual matter relevant to the case. The request shall also specify a reasonable date, time, place, and manner of making the inspection, copying, testing, or sampling. Parties shall have 30 days to respond.
e. Request for Admissions (H.R.C.P. Rule 36)
A request for admissions is a set of written statements regarding facts, the application of law to fact, or the genuineness of any document to which a party must admit or deny. Answers to requests for admissions must be served on the other party within 30 days after receipt of the request, or the statement will be considered admitted.
f. Protective Orders; Motions to Compel (H.A.R. §§ 12-46‑31, 12-46-32(9))
If any party feels that a discovery request is unduly annoying, embarrassing, oppressive, or would be unduly burdensome or expensive to answer, it may request that the Hearings Examiner issue an order protecting the party from the need to answer such questions or produce such documents. Additionally, if any party fails to answer a requested discovery, the requesting party may ask the Hearings Examiner for an order to compel compliance.
3. Mediation or Settlement after Docketing
Parties may decide to resolve the dispute between themselves at any time during the process. After a case is docketed, parties are encouraged to continue settlement discussions. Parties may choose to seek out a private mediator who is paid for by one or both parties, or may decide to use the HCRC’s in-house mediator, free of charge. If the parties would like the Adjudications section to secure a settlement judge after docketing (at no cost to the parties), please contact the Adjudications section for more information: (808) 586-8659.
4. Pre-Hearing Conference (H.A.R. § 12-46-42)
At least fifteen days before the hearing, parties will receive a Notice of Hearing giving the date, time, and place of the hearing, and a notice of pre-hearing conference. Any unheard pre-hearing motions may also be heard on this date.
HEARING PROCEDURES
1. The Burden and Standard of Proof (H.A.R. § 12-46‑36(b))
The Executive Director has the burden of proving the case by a preponderance of the evidence. This means that more than fifty percent (50%) of the reliable evidence presented at the hearing must support the Executive Director’s position.
2. Evidence at the Hearing (H.A.R. § 12-46-36)
The rules for the introduction of evidence for an administrative hearing are more relaxed than the rules for the introduction of evidence in courts. All relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs. Irrelevant, immaterial, or unduly repetitious material, as determined by the Hearings Examiner, shall not be admitted into evidence. Evidence can be presented through the testimony of witnesses and/or through the introduction of documents or other exhibits.
3. Objections to Evidence (H.A.R. § 12-46-36(a), 12-46-32(7))
During the course of the hearing, any party may make objections to exclude evidence which may be irrelevant, immaterial, merely scandalous, and/or unduly repetitious.
4. Witnesses and Subpoenas (H.A.R. § 12-46-33)
Parties are entitled to compel the attendance of non-party witnesses or the production of documents during discovery or at the hearing, and may do so by asking the Hearing Examiner to issue a subpoena. Subpoena samples are attached in APPENDIX D. The Hearings Examiner will not grant the subpoena if it is unreasonable or oppressive.
5. An Overview of the Stages of the Hearing (H.A.R. § 12-46-47)
The following is how the hearing typically proceeds:
- Opening Statements
- Executive Director’s Case
- Motion to Dismiss (H.A.R. § 12-46-48)
- Respondent’s Case
- Rebuttal Evidence
- Closing Arguments
POST-HEARING PROCEDURES
(H.A.R. §12-46-50 to § 12-46-56)
The Hearings Examiner may request that parties submit proposed findings of fact, conclusions of law, and a proposed order or, in the alternative, post-hearing briefs in which the parties discuss the evidence presented by both sides at the hearing, and explain whether or not the evidence and facts show a violation of the law in the manner alleged by the Executive Director. (See H.A.R. § 12-46-50)
1. The Hearings Examiner’s Proposed Decision
The Hearings Examiner will issue the Findings of Fact, Conclusions of Law, and Proposed Decision (“Proposed Decision”) within 60 days after the hearing (which may be extended by the Commission) and forward the Proposed Decision to the five-member Commission. All parties will receive a copy of the Proposed Decision. (See H.A.R. §§ 12-46-51 and 12-46-52)
Any party adversely affected by the Hearings Examiner’s Proposed Decision may, within 15 days of receipt, file written exceptions to the whole or any part of the Proposed Decision and request oral argument and review by the Commission. (H.A.R. §§ 12-46-53, 12-46-56).
Any party may file a statement in support of the Proposed Decision, within fifteen days after receipt of the written exceptions. (H.A.R. § 12-46- 54).
The Hearings Examiner will forward the entire hearings record, written exceptions, and support statements to the five-member Commission. (See H.A.R. § 12-46-55).
At the discretion of the Commission, oral arguments may be held in front of the Commission on the exceptions filed with the Hearings Examiner.
2. The Commission’s Final Decision and Order
Within a reasonable time after the Proposed Decision is filed by the Hearings Examiner, the Commission will issue a Final Decision and Order, which may adopt, modify, or reject the Hearings Examiner’s proposed decision. A certified copy of the final decision and order will be sent to all parties. Within 10 days of receipt of the final decision, any party may move the Commission to reconsider its final decision and order. The filing of a motion for reconsideration does not operate as a stay of the Commission’s final decision and order, and it is at the discretion of the Commission whether or not to hear argument on the motion.
3. Appeals and Judicial Review of the Commission’s Final Decision and Order
Procedures regarding judicial review and appeals are outlined in H.R.S. § 368-16 and § 91-14. An aggrieved party may appeal the Commission’s decision in the circuit court not more than thirty (30) days after receipt of the final decision and order of the Hawaiʻi Civil Rights Commission. An appeal is initiated by filing a petition in the Circuit Court.
APPENDIX
Sample Forms (pdf) (Case Caption, Certificate of Service, Ex Parte Motion to file Electronically, Sample Subpoenas)
Guidelines for Electronic Filing During HCRC Contested Case Hearings (pdf)
