Coverage of Senate Confirmation Hearing on Appointment of Mark E. Recktenwald to Chief Justice of the Hawaii Supreme Court

Aug. 25, 2010, 10:00 a.m., senate to consider whether to confirm the governor's appointment of Mark E. Recktenwald to serve as Chief Justice of the Supreme Court of the State of Hawaii.

Hawaii Supreme Court Holds that Agency Decision to Deny a Contested Case Hearing May be Appealed

In Kaleikini v. Thielen, Haw. S.Ct. No. 28491, Aug. 21, 2010, the Hawaii Supreme Court ("HSCT") held, among other things, that an agency's denial of a requested contested case hearing is an appealable issue.

This case arises in the context of Hawaii's Native Hawaiian burial laws pursuant to HRS chapter 6E. Kaleikini requested a contested case hearing regarding the Oahu Island Burial Council's decision to approve a burial treatment plan submitted by developer General Growth Properties ("GGP"). The burial treatment plan involved the disinterment of Native Hawaiian burial remains discovered at GGP's project site at the Ward Village Shops. Kaleikini's request was denied by the Chairperson of the Board of Land and Natural Resources, Department of Land and Natural Resources ("DLNR").

The right to a contested case hearing is found under HRS chapter 91, Hawaii's Administrative Procedure Act. A contested case is 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. If a contested case hearing is held and a person intervenes therein that person becomes a party to the proceedings.  As a party, a person may participate in the decision-making process by providing evidence on the record and having input in the agency's preparation of findings and conclusions. In addition, a party to a contested case has the right to appeal the agency's decision to the circuit court.

Kaleikini appealed DLNR's decision to the circuit court.  The circuit court ruled that it did not have subject matter jurisdiction over DLNR's decision to deny Kaleikini's request for a contested case, because there was no contested case from which Kaleikini could appeal. Kaleikini appealed the circuit court's decision to the intermediate court of appeals ("ICA"), which held that the case was moot because the remains at issue were already reinterred. Consequently, the remedy sought by Kaleikini, preservation of burials in situ, was no longer available.

Kaleikini then appealed to the HSCT, which disagreed with both courts and held as follows:

. . . (1) DLNR's denial of Kaleikini s request for a contested case hearing represented a final decision and order; (2) Kaleikini followed the applicable agency rules and, therefore, was involved in the contested case; and (3) Kaleikini s legal interests were injured --i.e., she has standing to appeal. Accordingly, we hold that the circuit court erred in dismissing Kaleikini's agency appeal for a lack of subject matter jurisdiction. Consequently, we vacate the ICA's order dismissing Kaleikini s appeal for mootness and remand the case to the circuit court for further proceedings consistent with this opinion.

Before arriving at its ultimate holding, the HSCT decided two threshold issues. First, although Kaleikini 's appeal was moot (i.e., burials were already reinterred), it fell within the public interest exception to the mootness doctrine. In that regard, the HSCT agreed with Kaleikini that "the availability of judicial review of [a] decision relating to the removal of Native Hawaiian burial sites -- is of great public importance."

Second, the court held that a contested case hearing was "required by law, and would have determined the rights, duties, and privileges of specific parties had it been granted." (Emphasis added.) The "would have" language here is significant in that the HSCT "creates different standards for determining whether an agency action is a contested case[,]" as pointed out by the concurring opinion. Future cases will tell whether this new standard will open up the courts to more appeals in the absence of an agency contested case.

See Administrative Law and Historic Preservation for more on these and related issues.

How to Deal with a Person Who Never Met a Project S/he Didn't Like

In a recent article from Governing entitled, Team Building: How to Turn an Alligator into an Advocate, Gerry Deseve and Robert Fryer explain how "alligators" can become a project proponent's ally.

According to the article, "[a]n "alligator" is the person at a meeting who lies in the weeds waiting for a chance to attack."  The article discusses five steps to turning an alligator into an ally:

• Listen
• See the issue from the other's point of view
• Identify and address specific objections
• Demonstrate benefits
• Keep the audience in mind

For the full article, visit http://www.governing.com/columns/mgmt-insights/team-building-turning-alligator-into-advocate.html.

Hawaii Chief Justice Senate Confirmation Hearing

Today's confirmation hearing was a historic, if not controversial, one for Hawaii.

Historic, because Katherine Leonard stands to serve as the first woman Chief Justice of the Hawaii Supreme Court. Controversial, because Hawaii's advise and consent process injects politics into the appointment process.  Visit Legislative Hearings Set for Judicial Nominees to learn more about the process and for access to testimony from the hearing.

Robert Thomas over at inversecondemnation.com hosted a live blog discussion at Live Blog Of Hawaii Senate Judicary Committee Hearing On Confirmation Of Katherine Leonard As Chief Justice (Tuesday August 3, at 9:30 a.m.).

Thank you Robert for inviting me to be a panelist; albeit, I was not able to stay for the entire hearing. Thank you also to my co-panelists who provided terrific insight and commentary.