§91-1  Definitions.  For the purpose of this chapter:

     "Agency" means each state or county board, commission, department, or officer authorized by law to make rules or to adjudicate contested cases, except those in the legislative or judicial branches.

     "Agency hearing" refers only to such hearing held by an agency immediately prior to a judicial review of a contested case as provided in section 91-14.

     "Contested case" means a proceeding in which the legal rights, duties, or privileges of specific parties are required by law to be determined after an opportunity for agency hearing.

     "Party" means each person named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party, in any court or agency proceeding.

     "Persons" includes individuals, partnerships, corporations, associations, agencies, or public or private organizations.

     "Rule" means each agency statement of general or particular applicability and future effect that implements, interprets, or prescribes law or policy, or describes the organization, procedure, or practice requirements of any agency.  The term does not include regulations concerning only the internal management of an agency and not affecting private rights of or procedures available to the public, nor does the term include declaratory rulings issued pursuant to section 91-8, nor intra-agency memoranda. [L 1961, c 103, §1; Supp, §6C-1; HRS §91-1; am L 2017, c 110, §1]

Law Journals and Reviews

  The Protection of Individual Rights Under Hawai`i's Constitution.  14 UH L. Rev. 311.

Case Notes

Agency.

  Generally.  55 H. 538, 524 P.2d 84.

  Administrative agency is not a "person" under Civil Rights Act, 42 USCA 1983.  396 F. Supp. 375.

  City council is not subject to the procedural requirements of Hawaii administrative procedure act when acting in either a legislative or nonlegislative capacity.  70 H. 361, 773 P.2d 250.

  Executive director of Hawaii civil rights commission was not an "agency" because the director neither made rules nor adjudicated contested cases.  104 H. 158, 86 P.3d 449.

  County of Hawai`i department of finance was an "agency" within the meaning of chapter 91, and was not a "person" entitled to appeal under §91-14 (prior to 1993 amendment).  77 H. 396 (App.), 885 P.2d 1137.

Agency hearing.

  Hearing concerning transfer of prisoner to mainland prison not an "agency hearing".  63 H. 138, 621 P.2d 976.

  Hearing before zoning board of appeals was properly denominated as the "agency hearing", as contemplated by the definition of "contested case" in paragraph (5), where appellant temple was permitted to introduce relevant evidence and cross-examine witnesses.  87 H. 217, 953 P.2d 1315.

  Where a hearing on a petition for a declaratory order before the public utilities commission was discretionary and not required by law, the dismissal order was not a contested case under paragraph (5); therefore, as a direct appeal to the intermediate appellate court (ICA) under §91-14(b) and §269-15.5 only applied to contested cases, appellant power company was not entitled to appeal the dismissal order directly to the ICA; thus, the ICA lacked jurisdiction over appellant's appeal.  126 H. 242 (App.), 269 P.3d 777.

Contested case.

  Generally.  55 H. 538, 524 P.2d 84.

  A hearing "required by law" includes those required by due process.  55 H. 478, 522 P.2d 1255.

  "Contested case" construed.  56 H. 680, 548 P.2d 253.

  Hearing "required by law" includes constitutional and statutory law.  58 H. 386, 570 P.2d 563.

  Public hearing conducted pursuant to public notice has been deemed a contested case.  65 H. 506, 654 P.2d 874.

  "Fair hearing" regarding the reduction of welfare benefits was a "contested case".  66 H. 485, 666 P.2d 1133.

  Evidentiary hearing under PURPRA was contested case rather than rulemaking.  66 H. 538, 669 P.2d 148.

  Granting of special management area permit did not involve a "contested case".  69 H. 81, 734 P.2d 161.

  Because the subject matter of the underlying hearing did not involve the homestead lessees' property interests, the Hawaiian homes commission hearing that transpired was not required by law and therefore was not a contested case as defined by paragraph (5). 76 H. 128, 870 P.2d 1272.

  Public hearings held by department were "contested cases".  77 H. 64, 881 P.2d 1210.

  Revocation of mooring permit not contested case.  3 H. App. 91, 641 P.2d 991.

  In the context of parole hearings, the Hawaii paroling authority does not "adjudicate contested cases" because a Hawaii paroling authority parole proceeding is not a "contested case" as defined under this chapter.  93 H. 298 (App.), 1 P.3d 768.

  Opponents of university's application for conservation district use permit to construct telescope observatory on mountain summit were denied a meaningful opportunity to be heard, as guaranteed by due process, when board of land and natural resources approved the permit prior to holding the contested case hearing; the purpose of contested case hearing procedural protections designed to ensure that the record is fully developed and subjected to adversarial testing before a decision is made was frustrated where the decisionmaker ruled on the merits before the factual record was even developed.  136 H. 376, 363 P.3d 224 (2015).

  Opponents of university's application for conservation district use permit to construct telescope observatory on mountain summit were entitled to contested case hearing before board of land and natural resources as a matter of constitutional due process, given that:  (1) the right to exercise Native Hawaiian customs and traditions was explicitly protected by the state constitution; (2) opponents argued that the project would have significant negative effects on their Native Hawaiian cultural practices on the mountain; (3) there was a risk of erroneous deprivation absent the protections provided by a contested case hearing; and (4) there was a lack of undue burden on the government in affording opponents a contested case hearing.  136 H. 376, 363 P.3d 224 (2015).

Rules.

  Generally.  55 H. 538, 524 P.2d 84.

  Defendant's approval of use of wood preservative for treating structural lumber in Hawaii, together with defendant's conditions of approval, would appear to be rulemaking.  939 F. Supp. 746.

  "General applicability"; "implement law or policy"; "internal management".  55 H. 478, 522 P.2d 1255.

  Manual of instructions to personnel of department of social services and housing covering welfare fraud investigations dealt only with "internal management".  58 H. 94, 564 P.2d 1271.

  Policy decisions governing transfer of prisoners from state to federal prison do not require publication.  58 H. 386, 570 P.2d 563.

  Internal management; rule covering dress standards of visitors to prison.  59 H. 346, 581 P.2d 1164.

  Hawaii administrative procedure act held not applicable to advisory functions of the county planning commission.  60 H. 428, 591 P.2d 602.

  "Descriptive words and phrases" distributed by department to unemployment compensation appeals referees are rules.  62 H. 286, 614 P.2d 380.

  Contract in which board of land and natural resources rented excess transmission capacity in Molokai Irrigation System is not a rule.  Concerned only internal management because it dealt with a matter within the custodial management of the board.  62 H. 546, 617 P.2d 1208.

  Internal management.  63 H. 117, 621 P.2d 957.

  Agency's requirement that no-fault claimants submit to insurer-ordered medical exams is a "rule".  67 H. 148, 682 P.2d 73.

  Approval of use of specific breath testing apparatus was not rulemaking.  67 H. 451, 691 P.2d 365.

  State hospital's bylaws regarding corrective action against a doctor are not "rules".  68 H. 422, 717 P.2d 1029.

  Circular was sent only to other state agencies and did not command or prohibit any action by any member of the public or any public employee; by the clear language of paragraph (4), therefore, Hawaii administrative procedure act did not apply, and conclusion of law stating that circular was not a rule or regulation, but was merely a guideline and was not subject to provisions of Hawaii administrative procedure act was not wrong.  76 H. 332, 876 P.2d 1300.

  Where city appraiser's unwritten methodology for determining imparted value fell within definition of a rule for purposes of paragraph (4), city needed to follow rulemaking procedures set forth in §91-3 prior to applying imparted value deductions toward golf course assessments.  89 H. 381, 974 P.2d 21.

  Water resource management commission's distinctive treatment of "nonagricultural uses", such as golf course irrigation, in its water use permit and policy decision did not constitute "illegal rulemaking" where commission did not propose any general rules automatically applicable in all circumstances, but instead devised a principled solution to a specific dispute based on "facts applied to rules that have already been promulgated by the legislature".  94 H. 97, 9 P.3d 409.

  Planning and permitting department's policy of refusing to publicly disclose developer's engineering reports prior to their approval constituted a "rule"; as this policy was not "published or made available for public inspection" nor did plaintiff have actual knowledge of the policy prior to its initial request for the reports, department did not comply with this chapter and was proscribed from invoking this policy; thus, department violated this chapter by refusing to publicly disclose any unaccepted engineering reports and written comments, and all of its files, including developer's file, were public records that could be examined upon request.  119 H. 90, 194 P.3d 531.

  Agency's decision not a "rule" where it was made in a contested hearing that was accusatory in nature; distinction between rulemaking and adjudication discussed.  4 H. App. 463, 667 P.2d 850.

  Police department regulation establishing procedures aimed at prescribing officers' activities regarding sobriety roadblocks was internal department regulation.  9 H. App. 98, 825 P.2d 1068.

  Hawai`i county police department's field sobriety testing procedures are not "rules" subject to Hawaii administrative procedure act's rulemaking requirements.  9 H. App. 406, 844 P.2d 679.

  Where Kauai police department's general order establishing authority and procedures at sobriety checkpoints concerned only the internal management of an agency and did not affect the private rights of or procedures available to the public, the general order was not required to be promulgated pursuant to this chapter.  111 H. 59 (App.), 137 P.3d 373.

  The procedures used by a precinct to request additional election ballots when the precinct runs out of ballots, in which precinct workers monitor the supply of paper ballots at the polling place and when it appears that the supply of ballots is running low, a precinct worker calls the counting center at the state capitol and asks that reserve ballots for that precinct be delivered, were not rules within the meaning of this section because the challenged procedure was:  (1) directed exclusively to precinct workers in the execution of their election day responsibilities; and (2) aimed at prescribing and controlling election-day workers in order to facilitate the rights of voters, and not at the rights of or procedures available to the public.  137 H. 58 (App.), 365 P.3d 987 (2015).