Beware shortcuts in contested cases

The instinct is right — seeking to speed up the creaking wheels of government — but the proposed solution may do more harm than good.

House Bill 1581, HD2, SD2, now advancing, is a measure that would allow contested cases that are before some state boards and commissions to proceed directly to the Hawaii Supreme Court.

Lawmakers should reconsider the impulse to pass this measure without serious revisions in conference committee. As written, HB 1581 would short-circuit critical judicial review and, as some observers point out, potentially overload the calendar at the state’s high court.

The change, if enacted, would affect appeals of contested cases arising under the State Water Code, the conservation district, the Land Use Commission, the Public Utilities Commission and the Hawaii Community Development Authority.

It also would allow the Circuit Court to appoint a master to oversee contested cases that are remanded back to government agencies.

This last provision, clearly prompted by the recent experience with the Thirty Meter Telescope controversy, is the one element in the bill worth retaining. It could shorten unnecessary delays for future cases that are especially time-sensitive.

The state’s high court in December remanded the TMT legal challenge back to the state Board of Land and Natural Resources, faulting BLNR for its procedure in that contested case hearing. The TMT project concerns a permit the board had issued for a site within the conservation district on Mauna Kea’s summit, in advance of a contested case hearing before Native Hawaiian opponents of the project. The court ruled the board should have held the contested case hearing before issuing the permit.

What followed was a lengthy delay before the Department of Land and Natural Resources finally named a hearings officer more than a week ago. The frustrated principals in the TMT consortium, which had followed state directives throughout the years of this process, are now looking for alternative sites.

Lawmakers are rightly concerned that allowing the bureaucracy to continue wasting time at this stage certainly does nothing to burnish Hawaii’s business reputation for future projects.

On the larger issue of bypassing the appellate levels of the court in many cases, however, legitimate concerns have been raised.

Linda Chow, deputy attorney general, submitted written comments asserting that, in particular, allowing conservation-district case appeals to skip the lower courts “would send many cases to the Hawaii Supreme Court that would not otherwise be considered by it” — about 175 more each year.

The Senate Committee on Judiciary and Labor did make amendments to the measure, including a clarification that only “aggrieved” parties to the contested case may appeal directly to the high court.

But that still would winnow the appellate process for too many cases, some of which now make their first stop in the environmental court, Rodney Maile, administrative director of the courts for the Judiciary, said in written testimony.

There’s another principal problem in the bill: It would sacrifice the opportunity for the fullest legal critique that important issues deserve, and get, through the appellate courts.

The Judiciary is urging lawmakers to, at a minimum, require environmental courts to remain in the appellate chain. What its officials really want is time, and a study of the unanticipated problems that could arise. That seems the most reasonable outcome.

Nobody who has had an encounter with the administrative and judicial review processes would argue that inefficiency and delays aren’t problems. A better, streamlined path is possible — keeping in sight that judicial review generally leads to a more robust analysis, and to the right way to proceed, under the law.