HAWSCT Clarifies What Qualifies As An Appealable Agency Action Under The Administrative Procedures Act

by Robert Thomas, InverseCondemnation, June 19, 2015

Here's one that isn't about land use, but should be of interest to Hawaii land users, since so much of what we do is tied up in the Administrative Procedures Act.

Hawaii's APA can be a trap for the unwary: if you run to court to challenge what you believe is the agency's appealable action, you may be met with a claim that you picked the wrong action, and you needed to exhaust the agency's own internal administrative appeals process first, and it is now too late to invoke the trial court's original jurisdiction. And if you err on the side of caution and invoke the agency's appeal process, you may end up prematurely challenging all sorts of agency decisions when you really didn't need to. Add to the mix the confusion among many not familiar with this territory -- about what type of agency action triggers the ability to appeal to the courts under the APA (the old "was it a 'contested case' or not" question) -- and you have a recipe for failure. 

It's a fine balance, and until the Hawaii Supreme Court's recent decision in Kellberg v. Yuen, 319 P.3d 432 (2014) and the Intermediate Court of Appeals' decision in Hoku Lele, LLC v. City and County of Honolulu, 296 P.3d 1072 (Haw. App. 2013) [in both of these cases, we represented the prevailing party], state and municipal agencies often played the uncertain terrain to their advantage, and those who challenged agency action frequently ended up being run through the "too soon or too late" game, and faced motions to dismiss that invoked the "primary jurisdiction" doctrine, or which asserted the plaintiff had not exhausted administrative remedies. Kellberg and Hoku Lele put an end to that, and at least in the situation where there is an appeal from a "final agency action," the courts required agencies to tell people which decisions the agencies consider appealable, and give them notice of how to go about appealing. 

In Doe v. Attorney General, No. SCWC-13-0005700 (June 18, 2015), the Hawaii Supreme Court clarified APA jurisdiction in one of the areas where it was still foggy: whether an appellant must have been through a "contested case" (an administrative hearing in the agency) in order to invoke the circuit court's APA jurisdiction. The court held no, and that a letter to the Attorney General was a petition for a declaratory ruling under Haw. Rev. Stat. § 91-8, and the AG's response was appealable to the circuit courts under § 91-14.

The mistake the Court of Appeals made when it concluded the circuit court lacked jurisdiction to hear Doe's appeal because there had not been a contested case  was that you don't always need to have been through a contested case in order to invoke HAPA jurisdiction, such as when an agency makes a ruling in response to a declaratory petition. Those are not as common as contested case rulings by far, but the procedure for asking agencies to make declaratory rulings on a variety of issues is there and should not be overlooked, even if it is not often utilized.

Doe was a registered sex offender in Washington state, and asked the AG what he needed to do under Hawaii's statutory sex offender registry statutes, since he was planning to come over for vacation. He believed he was exempt from Hawaii registration, since the offense for which pleaded guilty in Washington is not an offense in Hawaii. The AG, which is the agency tasked by statute with administering Hawaii's registry, responded that he should register, and if he believed he was exempt, he would have to come to Hawaii first, since the statute allows only "residents" to claim exemption from registration.

Doe appealed under the APA pro se to the Circuit Court, which dismissed because there had been no "contested proceeding" because the AG had not held a hearing. Nor had the AG done anything to actually rule on Doe's inquiry because it lacked the authority to do so because he was not present in Hawaii, and the AG asserted that until he was, it could not make an exception determination. The Intermediate Court of Appeals affirmed.

The Supreme Court relied on Dupree v. Hiraga, 219 P.3d 1084 (Haw. 2009) [another case in which we prevailed, by the way], to conclude that pro se requests such as Doe's should be "construed liberally," and that when so read, was clear Doe was petitioning the AG for a declaratory ruling that he did not have to register. In those cases, an agency with the statutory authorization to make such rulings should treat the request as one under § 91-8, even if the petitioner has not formally invoked the correct statute, regulation, or procedure.

Once the court determined that Doe's letter was a petition for declaratory ruling, the conclusion that he had a the right under § 91-14 to appeal the AG's response flowed easily. The court also concluded that the AG was wrong, and that Doe didn't need to be in Hawaii in order to seek an exemption from registration.

Here are our lessons from this case:

• As we've noted before, the Hawaii Supreme Court favors use of administrative processes, if those are even arguably available. If you had a hearing, even if it didn't look like a classic contested case, it's likely going to be deemed a contested case. Even your request for a contested case is likely appealable as a contested case.
• Now under Doe, in those situations where the agency clearly has not held a contested case, you still may get to appeal if the agency has the power to issue declaratory rulings. Which many do. Question: must you appeal, or is this an alternative means of seeking judicial review? No answers yet. 
• The court also seems to have little patience for agency game playing, and will look with disfavor on situations where it appears that the agency is doing so, or where the process is being used for silly results (like here, where the AG's position was that Doe needed to be in Hawaii before it could make any determination whether he needed to register so he could come to Hawaii).
• Administrative procedures should be clear and straightforward, and not games of "gotcha." If there's an admin process available, you need to use it. However, the agency has the obligation to make its own processes clear and accessible, especially for citizens acting without lawyers. 

More on the case here, from colleague Rebecca Copeland.

PDF: Doe v. Attorney General, No. SCWC-13-0005700 (Haw. June 18, 2015)