The Hawaii Administrative Procedure Act (“Act”) is found in Title 8, Chapter 91 of the Hawaii Revised Statutes Annotated. According to the Act, an agency has to comply with the rule-making requirements imposed by law. The rule-making requirements include:
- Adoption as a rule a report of method by which a person can obtain information, make submittals and requests;
- Adoption of rules of practice setting forth the requirements of all formal and informal procedures available;
- Description of all forms and instructions used by the agency;
- Making available for public inspection all documents used by the agency in discharging its functions;
- Making available for public inspection all final opinions and orders.
An agency rule, order or opinion will be valid only if it is published or made available for public inspection. Each state agency must make available on the official website of the lieutenant governor each proposed rule-making action of the agency, full text of agency’s proposed rules or changes to existing rules.
According to HRS § 91-3, an agency before adoption, amendment or repeal of a rule must give at least 30 days’ notice for a public hearing. The notice must contain the statement of the topic and copy of the proposed rule, when and where the rule to be adopted, amended or repealed and the time and place of public hearing. Each rule adopted, amended or repealed will become effective ten days after filing it with the lieutenant governor if it is a state and with the county clerks if it is a county. Also HRS § 91-5 provides that each agency shall compile, index, and publish all rules adopted by the agency and remaining in effect.
Further according to HRS § 91-6, any interested person can petition the agency for the adoption, amendment or repeal of any rule. Within 30 days after the receipt of the petition, the agency can either initiate proceedings for rule-making or can deny it stating the reasons for denial in writing.
HRS § 91-7 provides that any interested person can seek declaratory judgment as to the validity of an agency by bringing in an action in the circuit court of the county in which petitioner resides or has its principal place of business. The court can then declare the rule invalid if it violates constitutional or statutory provisions, exceeds the statutory authority of the agency, or was adopted without compliance with statutory rule-making procedures. Also HRS § 91-8 provides that any interested person can petition an agency for a declaratory order as to the applicability of any statutory provision, rule or order of the agency.
In a contested case, each party must be afforded with an opportunity for hearing after giving a reasonable notice. The notice must contain the following:
- The date, time, place and the nature of hearing;
- Legal authority under which the hearing will be held;
- Specific sections of the rules and statutes involved;
- Statement of the facts and issues involved;
- The fact that a party can retain a counsel if s/he desires.
In a contested case, every agency must consider the whole record or such portions thereof, cited by any party as reliable, probative, and substantial evidence before imposing a rule or issuing an order. Any oral or documentary evidence can be received by the agency but the agency must provide for the exclusion of irrelevant, immaterial or unduly repetitious evidence. Further in a contested case, a final decision of the agency which adversely affects the other party will be made only after providing to the other party a statement containing determination of each issue of facts or law necessary to the proposed decision. An opportunity has been afforded to each party adversely affected to file exceptions and present argument to the officials who are to render the decision, who will personally consider the whole record or such portions thereof as may be cited by the parties.
Further according to HRS § 91-14, any person aggrieved by a final decision in a contested case is entitled to judicial review by the circuit court. This will not prevent the person from resorting to a trail by jury as provided by law. “Person aggrieved” also includes an agency who is a party to the contested case before that agency or another agency.
HRS § 91-14 provides that if the application of any provision of this Act to any person or circumstance is invalid, it does not mean that other provisions are also invalid. Other provisions are not affected by the invalidity and can be given effect without the invalid provision. Therefore, the provisions of this Act are severable.