Report Title:

Contested Case Hearings; Mandatory Mediation

Description:

Mandates mediation as a required step for contested case hearings.

THE SENATE

S.B. NO.

1075

TWENTY-SECOND LEGISLATURE, 2003

  

STATE OF HAWAII

  

 

A BILL FOR AN ACT

 

relating to contested cases.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. Section 91-9, Hawaii Revised Statutes, is amended to read as follows:

"§91-9 Contested cases; notice; mediation; hearing; records. (a) In any contested case, all parties shall be afforded an opportunity for hearing after reasonable notice[.] and mandatory mediation.

(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 such 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;

(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) Opportunities shall be afforded all parties to present evidence and argument on all issues involved.

(d) 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.

(e) Upon appropriate request for mediation from any party, the appropriate agency shall appoint a mediator within five days. The agency shall require the parties to participate in mediation. The mediator shall not be an employee of the agency. The mediation period shall not extend beyond thirty days after the date mediation started, except by order of the agency. Mediation shall be confined to the issues raised at the public hearing by the party requesting mediation. The mediator shall submit a written recommendation to the agency, based upon any mediation agreement reached between the parties for consideration by the agency in its final decision.

(f) For the purpose of agency decisions, the record shall include:

(1) All pleadings, motions, intermediate rulings[;] , mediation agreements and mediator recommendations;

(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;

(6) Staff memoranda submitted to members of the agency in connection with their consideration of the case.

[(f)] (g) It shall not be necessary to transcribe the record unless requested for purposes of rehearing or court review.

[(g)] (h) No matters outside the record shall be considered by the agency in making its decision except as provided herein."

SECTION 2. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 3. This Act shall take effect upon its approval.

INTRODUCED BY:

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