Contested Case Hearings:
What are they and when must they be held?
INTRODUCTION: At Honolulu's Annual Meeting in April, a member expressed concern that the City and County, unlike the other counties, does not hold contested case hearings on applications for Shoreline Management permits.
The question of whether the City Council should have held a contested case hearing was one of the issues in the Sandy Beach controversy. This information has been prepared to explain what a contested case is, and what the requirements of Hawaii's Administrative Procedures Act (Chapter 91, HRS) are, with regard to contested cases.
PUBLIC HEARINGS & AGENCY HEARINGS
There are two kinds of hearings: public hearings and agency hearings. The main distinctions between them are:
- The hearing is held by a legislative body (legislature, city council) prior to a decision; and by administrative agencies when they adopt, amend or repeal Rules;
- Its purpose is to inform the public and to receive public comment;
- All interested persons may testify in writing or in person.
- The decision usually involves a discretionary formulation of policy, applicable to a general class of persons or situations (a legislative act).
Agency Hearing (Contested Case Hearing, Quasi-Judicial Hearing)
- The hearing is held by an agency. "Agency" as defined by Chapter 91, Hawaii Revised Statutes, Includes departments, offices, boards and commissions, but specifically excludes legislative bodies and the judiciary; agency decisions are directly appealable to the courts.
- Procedures are quasi-judicial, ie. like a court; more formal and complex than those in a public hearing. Their purpose is to protect the rights of those most directed affected by the matter to be decided, who are parties in the matter. Note that there is no "contested case" if all the parties agree.
- Parties in a contested case hearing have rights which the general public does not have ( e.g. subpoena, call and cross-examine witnesses, rebut testimony, appeal decision to court)
- The decision generally involves application of an existing law or policy to specific persons or situations, on the basis of
established facts. (a non-legislative act). However, the distinction between establishing policy and applying it to specific cases is not absolutely cut and dried.
- Examples of agencies which hold contested case hearings are: State Land Use Commission, Public Utilities Commission, Zoning Board of Appeals, Planning Commission (for State Special Use Permits), Civil Service Commission.
In summary, both the nature of the decision-making body and the nature of the decision may be considerations in establishing the appropriate hearing procedure.
In its decision on the Sandy Beach Case, the State Supreme Court ruled that although the issuance of an SMA permit is a non-legislative act, the City Council is not subject to the procedural requirements of Chapter 91 when acting in either a legislative or non-legislative capacity.