| 47 | | - | SECTION 1. The legislature finds that requiring agencies to hold multiple contested case hearings on matters that are identical or substantially similar and have been previously adjudicated impedes agencies from acting to address critical issues, may lead to conflicting decisions creating ambiguity, and is unduly burdensome on agency resources. The purpose of this Act is to: (1) Clarify that a contested case hearing is not required when an identical or substantially similar administrative matter has been finally adjudicated; and (2) Include administrative contested case proceedings within the scope of the vexatious litigant statute. SECTION 2. Section 91-9, Hawaii Revised Statutes, is amended to read as follows: "§91-9 Contested cases; notice; hearing; interactive conference technology; records. (a) Subject to section 91-8.5, in any contested case, all parties shall be afforded an opportunity for hearing after reasonable notice. (b) The notice shall include a statement of: (1) The date, time, place, and nature of the hearing; (2) The legal authority under which the hearing is to be held; (3) The particular sections of the statutes and rules involved; (4) An explicit statement in plain language of the issues involved and the facts alleged by the agency in support thereof; provided that if the agency is unable to state the issues and facts in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved, and thereafter upon application a bill of particulars shall be furnished; and (5) The fact that any party may retain counsel if the party so desires and the fact that an individual may appear on the individual's own behalf[, or]; a member of a partnership may represent the partnership[,]; or an officer or authorized employee of a corporation [or], trust, or association may represent the corporation, trust, or association. (c) The hearing may be held by interactive conference technology that allows interaction by the agency, any party, and counsel if retained by the party, and the notice identifies electronic contact information for each agency, party, and counsel if retained by the party. A contested case hearing held by interactive conference technology shall be recessed for up to one hour when audio communication cannot be maintained; provided that the hearing may reconvene when only audio communication is reestablished. If audio-only communication is reestablished, then each speaker shall state the speaker's name [prior to] before making remarks. (d) Opportunities shall be afforded to all parties to present evidence and argument on all issues involved; provided that, if the hearing is held by interactive conference technology, evidence may be submitted and exchanged by electronic means. (e) Any procedure in a contested case may be modified or waived by stipulation of the parties and informal disposition may be made of any contested case by stipulation, agreed settlement, consent order, or default. (f) For the purpose of agency decisions, the record shall include: (1) All pleadings, motions, and intermediate rulings; (2) Evidence received or considered, including oral testimony, exhibits, and a statement of matters officially noticed; (3) Offers of proof and rulings thereon; (4) Proposed findings and exceptions; (5) Report of the officer who presided at the hearing; and (6) Staff memoranda submitted to members of the agency in connection with their consideration of the case. (g) It shall not be necessary to transcribe the record unless requested for purposes of rehearing or court review. (h) No matters outside the record shall be considered by the agency in making its decision except as provided herein. (i) A contested case hearing may be denied when a requesting party alleges or raises a cause of action, claim, controversy, issue, fact, or substantive law that is identical or substantially similar to another administrative matter that has been finally adjudicated as follows: (1) A final decision or order has been issued after a contested case hearing in accordance with chapter 91 and the decision or order has not been appealed from or the time to seek review has lapsed; or (2) A final decision or judgment has been issued by a court of last resort reviewing a decision or order from a contested case; unless the proponent of the new contested case is able to show newly discovered evidence that could not, with reasonable diligence, have been discovered and offered at the prior contested case hearing and the evidence changes the outcome of the case. A denial issued pursuant to this subsection shall identify the previous administrative matter and reference the previous cause of action, claim, controversy, issue, fact, or substantive law and include findings that it was finally adjudicated. [(i)] (j) For the purposes of this [subsection, "interactive] section: "Court of last resort" means a Hawaii court of competent jurisdiction in which an appeal or further review is not or no longer available. "Interactive conference technology" means any form of audio or audio and visual conference technology, including teleconference, videoconference, and voice over internet protocol, that facilitates interaction between the agency, any party, and counsel if retained by the party." SECTION 3. Section 634J-1, Hawaii Revised Statutes, is amended to read as follows: "[[]§634J-1[]] Definitions. Unless otherwise clear from the context, as used in this chapter: "Court" includes a tribunal in a contested case proceeding under chapter 91. "Defendant" means a person (including a corporation, association, partnership, firm, or governmental entity) against whom litigation is brought or maintained, or sought to be brought or maintained[.], including but not limited to a respondent in a contested case proceeding initiated under chapter 91. "In propria persona" means on the person's own behalf acting as plaintiff. "Litigation" means any civil action or contested case proceeding, commenced, maintained, or pending in any state or federal court of record[.], or pending before an agency under chapter 91. "Plaintiff" means the person, including an attorney at law acting on the attorney's own behalf, who commences, institutes, or maintains litigation or causes it to be commenced, instituted, or maintained, [including an attorney at law acting on the attorney's own behalf.] or the petitioner who commences, institutes, or maintains a contested case proceeding or hearing or causes it to be commenced, instituted, or maintained. "Security" means an undertaking to assure payment, to the party for whose benefit the undertaking is required to be furnished, of the party's reasonable expenses, including attorney's fees, and not limited to taxable costs incurred in or in connection with a litigation instituted[, caused to be instituted,] or maintained or caused to be instituted or maintained by a vexatious litigant. "Vexatious litigant" means a plaintiff who does any of the following: (1) In the immediately preceding seven-year period, has commenced, prosecuted, or maintained in propria persona at least five civil actions other than in a small claims court [that have been:], or at least five administrative contested case proceedings that have been: (A) Finally determined adversely to the plaintiff; or (B) Unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing; (2) After litigation has been finally resolved against the plaintiff, relitigates or attempts to relitigate in propria persona and in bad faith, either: (A) The validity of the determination against the same defendant or defendants as to whom the litigation was finally determined; or (B) The cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined; (3) In any litigation while acting in propria persona, files, in bad faith, unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay; or (4) Has previously been declared to be a vexatious litigant by any state or federal court of record, or by a tribunal in a contested case proceeding, in any action or proceeding based upon the same or substantially similar facts, transaction, or occurrence." SECTION 4. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date. SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored. SECTION 6. This Act shall take effect on July 1, 3000. |
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| 47 | + | SECTION 1. The legislature finds that requiring agencies to hold multiple contested case hearings on matters that are identical or substantially similar that have been previously adjudicated impedes agencies from acting to address critical issues, could lead to conflicting decisions creating ambiguity, and is unduly burdensome on agency resources. The purpose of this Act is to clarify that a contested case hearing is not required under such circumstances and to include administrative contested case proceedings to be within the scope of the vexatious litigant statute, chapter 634J, Hawaii Revised Statutes. SECTION 2. Section 91-9, Hawaii Revised Statutes, is amended to read as follows: "§91-9 Contested cases; notice; hearing; interactive conference technology; records. (a) Subject to section 91-8.5, in any contested case, all parties shall be afforded an opportunity for hearing after reasonable notice. (b) The notice shall include a statement of: (1) The date, time, place, and nature of hearing; (2) The legal authority under which the hearing is to be held; (3) The particular sections of the statutes and rules involved; (4) An explicit statement in plain language of the issues involved and the facts alleged by the agency in support thereof; provided that if the agency is unable to state the issues and facts in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved, and thereafter upon application a bill of particulars shall be furnished; and (5) The fact that any party may retain counsel if the party so desires and the fact that an individual may appear on the individual's own behalf, or a member of a partnership may represent the partnership, or an officer or authorized employee of a corporation or trust or association may represent the corporation, trust, or association. (c) The hearing may be held by interactive conference technology that allows interaction by the agency, any party, and counsel if retained by the party, and the notice identifies electronic contact information for each agency, party, and counsel if retained by the party. A contested case hearing held by interactive conference technology shall be recessed for up to one hour when audio communication cannot be maintained; provided that the hearing may reconvene when only audio communication is reestablished. If audio-only communication is reestablished, then each speaker shall state the speaker's name prior to making remarks. (d) Opportunities shall be afforded all parties to present evidence and argument on all issues involved; provided that, if the hearing is held by interactive conference technology evidence may be submitted and exchanged by electronic means. (e) Any procedure in a contested case may be modified or waived by stipulation of the parties and informal disposition may be made of any contested case by stipulation, agreed settlement, consent order, or default. (f) For the purpose of agency decisions, the record shall include: (1) All pleadings, motions, intermediate rulings; (2) Evidence received or considered, including oral testimony, exhibits, and a statement of matters officially noticed; (3) Offers of proof and rulings thereon; (4) Proposed findings and exceptions; (5) Report of the officer who presided at the hearing; and (6) Staff memoranda submitted to members of the agency in connection with their consideration of the case. (g) It shall not be necessary to transcribe the record unless requested for purposes of rehearing or court review. (h) No matters outside the record shall be considered by the agency in making its decision except as provided herein. (i) For the purposes of this subsection, "interactive conference technology" means any form of audio or audio and visual conference technology, including teleconference, videoconference, and voice over internet protocol, that facilitates interaction between the agency, any party, and counsel if retained by the party. (j) A contested case hearing may be denied when a requesting party alleges or raises a cause of action, claim, controversy, issue, fact, or substantive law that is identical or substantially similar to another administrative matter that has been finally adjudicated as follows: (1) A final decision or order has been issued after a contested case hearing in accordance with chapter 91 that has not been appealed from or for which the time to seek review has lapsed; or (2) A final decision has been issued by a court of last resort reviewing a decision or order from a contested case; unless the proponent of the new contested case is able to show newly discovered evidence that could not, with reasonable diligence, have been discovered and offered at the prior contested case hearing that changes the outcome of the case. A denial issued pursuant to this section shall identify the previous administrative matter and reference the previous cause of action, claim, controversy, issue, fact, or substantive law and include findings that it was finally adjudicated. As used in this section, "a final decision has been issued by a court of last resort" shall mean a final decision or judgment from a Hawaii court of competent jurisdiction in which an appeal or further review is not or no longer available." SECTION 3. Section 634J-1, Hawaii Revised Statutes, is amended to read as follows: "[[]§634J-1[]] Definitions. Unless otherwise clear from the context, as used in this chapter: "Court" includes a tribunal in a contested case proceeding under chapter 91. "Defendant" means a person (including a corporation, association, partnership, firm, or governmental entity) against whom litigation is brought or maintained, or sought to be brought or maintained[.], including but not limited to a respondent in a contested case proceeding initiated under chapter 91. "In propria persona" means on the person's own behalf acting as plaintiff. "Litigation" means any civil action or contested case proceeding, commenced, maintained, or pending in any state or federal court of record[.], or pending before an agency under chapter 91. "Plaintiff" means the person, including an attorney at law acting on the attorney's own behalf, who commences, institutes, or maintains litigation or causes it to be commenced, instituted, or maintained, [including an attorney at law acting on the attorney's own behalf.] or the petitioner who commences, institutes, or maintains a contested case proceeding or hearing or causes it to be commenced, instituted, or maintained. "Security" means an undertaking to assure payment, to the party for whose benefit the undertaking is required to be furnished, of the party's reasonable expenses, including attorney's fees, and not limited to taxable costs incurred in or in connection with a litigation instituted, caused to be instituted, or maintained or caused to be maintained by a vexatious litigant. "Vexatious litigant" means a plaintiff who does any of the following: (1) In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five civil actions other than in a small claims court [that have been:], or at least five administrative contested case proceedings that have been: (A) Finally determined adversely to the plaintiff; or (B) Unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing; (2) After litigation has been finally resolved against the plaintiff, relitigates or attempts to relitigate in propria persona and in bad faith, either: (A) The validity of the determination against the same defendant or defendants as to whom the litigation was finally determined; or (B) The cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined; (3) In any litigation while acting in propria persona, files, in bad faith, unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay; or (4) Has previously been declared to be a vexatious litigant by any state or federal court of record, or by a tribunal in a contested case proceeding in any action or proceeding based upon the same or substantially similar facts, transaction, or occurrence." SECTION 4. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date. SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored. SECTION 6. This Act shall take effect upon its approval. INTRODUCED BY: _____________________________ BY REQUEST |
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