Hall v. State by Lewin

• Decision Date: 02 December 1993
• Docket Number: No. 15688,15688
• Citation: 10 Haw.App. 210,863 P.2d 344
• Parties: Robert Whitney HALL, aka Robert W. Hall, Plaintiff-Appellant, v. STATE of Hawai'i, by John C. LEWIN, Director of Health, Defendant-Appellee.
• Court: Hawaii Court of Appeals

Page 344

863 P.2d 344

10 Haw.App. 210

Robert Whitney HALL, aka Robert W. Hall, Plaintiff-Appellant, v. STATE of Hawai'i, by John C. LEWIN, Director of Health,

Defendant-Appellee.

No. 15688.

Intermediate Court of Appeals of Hawai'i.

Dec. 2, 1993.

Certiorari Denied Dec. 22, 1993.

Syllabus by the Court

1. In reviewing an award of summary judgment, the appellate court is bound by the same standard applied by the trial court. Under Rule 56(c), Hawai'i Rules of Civil Procedure (1990), summary judgment is proper where the moving party demonstrates that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.

2. When construing a statute, an appellate court is required to ascertain and give effect to the legislature's intent as derived primarily from the statute's language.

3. The clear intent and purpose of Hawai'i Revised Statutes (HRS) § 91-3 (1985 and Supp.1992) is to require that a notice of a public hearing on a proposed adoption, amendment, or repeal of an administrative rule must minimally include a summary of the proposal. However, in order to provide the most information possible without requiring the administrative agency to detail the specifics of the proposal, § 91-3 requires that the notice also indicate where and how free copies of the proposal may be obtained, where the public hearing will be held, and where interested persons may be heard.

4. When the appellant fails to present discernible arguments in his opening brief supporting his points on appeal, the appellate court may disregard the points raised.

5. There is nothing in HRS § 91-3(a)(2) (1985) that requires a public hearing room to be of any particular size, or in § 91-3(a)(1)(C) (Supp.1992) that requires that a public hearing be held with a hearing officer present in person on each major island.

Robert W. Hall, plaintiff-appellant, on the briefs, pro se.

Sonia Faust and Laurence K. Lau, Deputy Attys. Gen., on the brief, Honolulu, for defendant-appellee.

Before BURNS, C.J., HEEN, J., and TOWN, Circuit Judge, in place of WATANABE, Associate Judge, disqualified.

HEEN, Judge.

Plaintiff-Appellant Robert W. Hall (Hall) appeals from the October 3, 1991 findings of fact (FOF), conclusions of law (COL), and order (Order) dismissing his action against Defendants-Appellees State of Hawai'i and its Director of Health, John C. Lewin [M.D.] (collectively Defendants), for declaratory and injunctive relief. We affirm.

On April 24, 1991, Defendants published a notice (Notice) announcing a public hearing on proposed amendments (Amendments) to the administrative rules and regulations governing potable water systems, Chapter 11-20, Hawai'i Administrative Rules (HAR ch. 11-20). On May 7, 1991, Hall filed a complaint in the circuit court alleging that (1) the Notice did not comply with the requirements of Hawai'i Revised Statutes (HRS) § 91-3 (1985 and Supp.1992); (2) the room scheduled for conducting the public hearing was too small to accommodate the anticipated crowd; and (3) public hearings should be held on all islands because the proposed simultaneous tele-video arrangements were inadequate to accommodate neighbor island residents. ¹ Hall also attacked the substance of the Amendments. The complaint requested the lower court inter alia, to declare the Notice "null and void" and to enjoin Defendants from proceeding with the public hearing until a valid notice was published.

On May 19, 1991, Defendants moved the court to (1) grant them summary judgment, pursuant to Rule 56(b), Hawai'i Rules of Civil Procedure (HRCP) (1990), on Hall's claim that the Notice was legally insufficient; ² (2) dismiss pursuant to Rule 12(b)(6), HRCP (1980), Hall's assertion that the hearing room was too small and separate public hearings should be held on the neighbor islands; and (3) dismiss as premature Hall's claim challenging the Amendments' substance.

The Order (1) entered summary judgment in favor of Defendants on Hall's claim that the Notice was legally insufficient; (2) dismissed with prejudice Hall's claims regarding the hearing room and neighbor island hearings; and (3) dismissed

without prejudice Hall's claim relating [10 Haw.App. 213] to the substance of the Amendments. Hall timely appealed.

LEGAL SUFFICIENCY OF THE NOTICE

In reviewing an award of summary judgment, the appellate court is bound by the same standard applied by the trial court. Under Rule 56(c), HRCP, summary judgment is proper where the moving party demonstrates that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Kanehe Bay Cruises, Inc. v. Hirata, 75 Haw. 250, 861 P.2d 1 (1993).

The Notice stated that the purpose of the Amendments was to establish new requirements for public water systems to ensure that drinking water would meet "specific public health standards" developed under the applicable federal law. The Notice listed the existing and proposed maximum contaminant levels for "specified contaminants [and] certain inorganic, organic, volatile synthetic organic[,] and miscellaneous chemicals." The Notice also advised of the following proposed Amendments:

(1) expanding the rules to govern all public water systems in the State;

(2) establishing a special monitoring system for previously unregulated contaminants;

(3) creating new requirements for notifying water system customers when the water system violates the rules governing potable water systems;

(4) implementing additional enforcement measures; and

(5) requiring the State Health Director's approval before additives are introduced into the public water system.

The Notice also announced that the Department's hearing officer would conduct the public hearing on June 13, 1991, at 6:30 p.m., in the Kalanimoku Video Conference Center in Honolulu and "simultaneously by tele[-]video conference communications to [video conference centers] in L[-i]hu[']e, Kaua[']i, and Hilo, Hawai'i." Finally, the Notice advised where interested persons could obtain more information, examine the Amendments, or obtain free copies.

Hall specifically claimed that this Notice was "false [and] misleading" and insufficiently described the Amendments. After examining the Notice's publication and contents, we find no disputed material facts. Therefore, the key question becomes whether the Defendants should prevail as a matter of law. Specifically, whether the Notice conforms with the intent and purpose of HRS § 91-3.

In construing a statute we are required to ascertain and give effect to the legislature's intent, Methven-Abreu v. Hawaiian Ins. & Guar. Co., 73 Haw. 385, 834 P.2d 279 (1992), as derived primarily from the statute's language. Kam v. Noh, 70 Haw. 321, 770 P.2d 414 (1989).

The present form of § 91-3 was enacted in 1989, Act 64, § 2, 1989 Haw.Sess.Laws 114-17 (Act 64). Act 64's findings and purpose section indicates that the amendment was the legislature's response to the supreme court's interpretation of the former language of HRS § 91-3. ³ In Costa v. Sunn, 64 Haw. 389, 642 P.2d 530 (1982), and State v. Rowley, 70 Haw. 135, 764 P.2d 1233 (1988), the court examined the legal sufficiency of the notices for public hearings on proposed rule amendments under the then existing provisions of HRS § 91-3, and held that the notices in question did not provide sufficient information to interested [p]rovide clarifying statutory wording that will expressly enable agencies to publish notices that generally describe the subjects involved and the purposes to be achieved by a proposed rule, together with a description of where and how free copies of the proposed rule to be adopted, the proposed rule amendment, or the rule proposed to be repealed may be requested, instead of including in the notice only a statement of the substance of the proposed rule[.]

persons. Because Costa and Rowley created far-reaching administrative and financial repercussions, the legislature specifically stated in Act 64's purpose section that one goal of the amendment was to

Act 64, § 1, 1989 Haw.Sess.Laws 115.

The legislature accomplished that purpose by amending § 91-3 to read in pertinent part as follows:

§ 91-3 Procedure for adoption, amendment or repeal of rules. (a) Prior to the adoption of any rule authorized by law, or the amendment or repeal thereof, the adopting agency shall:

(1) Give at least thirty days' notice for a public hearing. The notice shall include:

(A) Either:

(i) A statement of the substance of the proposed rule adoption, amendment, or repeal; or

(ii) A general description of the subjects involved and the purposes to be achieved by the proposed rule adoption, amendment, or repeal; and

(B) A statement that a copy of the proposed rule to be adopted, the proposed rule amendment, or the rule proposed to be repealed will be mailed at no cost to any interested person who requests a copy, together with a description of where and how the requests may be made; and

(C) The date, time, and place where the public hearing will be held and where interested persons may be heard on the proposed rule adoption, amendment, or repeal.

Act 64, § 2, 1989 Haw.Sess.Laws 115.

The clear intent and purpose of Act 64 is to require that a notice of a public hearing on a proposed adoption, amendment, or repeal of an administrative rule must minimally include a summary of the proposal. However, in order to provide the most information possible without requiring the administrative agency to detail the proposal's specifics, Act 64 requires that the notice also indicate where and how free copies of the proposal may be obtained, where the public hearing will be held, and where interested persons may be heard.

Our interpretation of Act 64 echoes the general view of the notice requirement of the Federal Administrative Procedure Act (APA), 5 U.S.C. § 553(b) (1988). Specifically, although the APA "requires that the notice advise of the potential content of a final rule either by providing a...