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)
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