Friends of Makakilo v. D.R. Horton-Schulder Homes, LLC.

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Electronically Filed
Supreme Court
SCAP-13-0002408
30-OCT-2014
08:58 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---oOo---
________________________________________________________________
FRIENDS OF MAKAKILO,
Petitioner/Intervenor/Cross-Appellant-Appellant,
vs.
D.R. HORTON-SCHULER HOMES, LLC,
a Delaware limited liability company,
d.b.a. D.R. HORTON-SCHULER DIVISION;
THE LAND USE COMMISSION OF THE STATE OF HAWAIʻI;
OFFICE OF PLANNING, STATE OF HAWAIʻI;
DEPARTMENT OF PLANNING AND PERMITTING,
CITY AND COUNTY OF HONOLULU,
Respondents/Appellees-Appellees,
and
THE SIERRA CLUB and THE HONORABLE SENATOR CLAYTON HEE,
Respondents/Appellants-Appellants.
________________________________________________________________
SCAP-13-0002408
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIV. NO. 12-1-2000)
OCTOBER 30, 2014
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND POLLACK, JJ.,
AND CIRCUIT JUDGE CHANG, ASSIGNED BY REASON OF VACANCY
OPINION OF THE COURT BY McKENNA, J.
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I. Introduction
Petitioner/Intervenor/Cross-Appellant-Appellant
Friends of Makakilo (“Friends” or “FOM”), a 501(c)(4) non-profit
corporation, appeals from the Circuit Court of the First
Circuit’s Final Judgment dated June 26, 2013, and filed June 27,
2013, which affirmed its November 9, 2013 Order dismissing FOM’s
“cross-appeal”1 as untimely. Friends filed an Application for
Transfer (“Application”) with the Court on April 2, 2014. The
Court has accepted FOM’s appeal as a discretionary transfer
under Hawaiʻi Revised Statutes (“HRS”) § 602-58 (Supp. 2013).
FOM’s appeal poses a question of first impression:
when must a party that seeks judicial review of an
administrative decision in the form of a cross-appeal file
notice of its cross-appeal in circuit court? In brief, Friends
suggests that cross-appeals may be filed within the deadlines
set forth in Rule 4.1(b) of the Hawaiʻi Rules of Appellate
Procedure (“HRAP”),2 i.e., within fourteen days after the initial
notice of appeal is served on the cross-appellant, or within the
time prescribed for filing the notice of appeal, whichever is
later. Respondents/Appellees-Appellees D.R. Horton-Schuler
Homes, LLC (“Horton-Schuler”), the Office of Planning, State of
1
This memorandum opinion employs quotation marks when referring to FOM’s
“cross-appeal” to demark that the at-issue document was thus named by
Friends. No further inferences about the content of the document should be
made by use of this label.
2
HRAP Rule 4.1 (2012).
2
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Hawaiʻi (“State”), and the Land Use Commission (“LUC”) assert
that there is no fourteen-day extension for the filing of cross-
appeals, as all requests for judicial review must be filed
within thirty days after service of the certified copy of the
agency’s final decision and order, as provided for in HRS § 91-
14(b) (Supp. 2010).
II. Background
A. Procedural History
The at-issue “cross-appeal” arises from an LUC
contested case hearing, Docket Number A06-771. In January 2007,
Horton-Schuler petitioned the LUC to reclassify certain lands in
ʻEwa District, Oʻahu from agricultural to urban use (“Hoʻopili
lands” or “Hoʻopili Development”). Horton-Schuler later amended
its petition in September 2008. In February 2009, the LUC
permitted Friends to intervene, and in September 2009, the LUC
granted FOM’s motion to declare the petition deficient, with
leave to Horton-Schuler to amend. Horton-Schuler filed
subsequent amendments to its petition in May and July 2011. In
September 2011, the Sierra Club and Senator Clayton Hee were
granted intervenor status. The LUC continued a hearing on the
revised petition on several discrete days from October 2011 to
March 2012, with oral arguments held in May and June 2012. In
its June 21, 2012 Findings of Fact, Conclusions of Law, and
Decision and Order (“Decision”), the LUC granted Horton-
3
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Schuler’s petition to reclassify the Hoʻopili lands subject to
certain conditions.3 A copy of the LUC’s Decision was delivered
to Friends on June 23, 2012.
On July 20, 2012, Senator Hee and the Sierra Club
filed a notice of appeal with the Circuit Court of the First
Circuit, requesting judicial review of the Decision (“Sierra
Club appeal” or “Sierra Club notice of appeal”). On August 2,
2012, Friends filed a “Notice of Cross Appeal to Circuit Court.”
On August 23 and 24, 2012, the LUC and Horton-Schuler
respectively filed motions to dismiss FOM’s “cross-appeal.”4
Oral argument on the motions was held on October 9,
2012. By an order dated November 9, 2012 (“Order”), the circuit
court held, pursuant to HRS § 91-14, that: (a) FOM’s “cross-
appeal” was not allowed by law because aggrieved parties, as
defined in HRS § 91-14, have a right to appeal an agency
decision, but not a right to cross-appeal, and (b) it is
undisputed that FOM’s “cross-appeal,” when viewed simply as a
request for judicial review, was untimely. The circuit court
further held that even if cross-appeals of agency decisions were
permitted and FOM’s “cross-appeal” was deemed timely, (1) the
3
On June 27, 2012, the LUC issued errata to its Decision to correct a
typographical error. A copy of the errata was delivered to Friends on June
29, 2012. None of the parties assert that the errata affect our
consideration of the issues presented.
4
The Office of Planning, State of Hawaiʻi joined both motions to dismiss, and
Horton-Schuler joined the LUC’s motion.
4
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content of the “cross-appeal” exceeded the scope of FOM’s
limited intervention in the proceedings before the LUC, and (2)
Friends lacked standing to appeal as an “aggrieved person.”
Accordingly, the circuit court dismissed FOM’s “cross-appeal”
with prejudice, and affirmed its Order by Final Judgment filed
June 27, 2013.
B. Points of Error
In its opening brief, Friends identifies eight points
of error.
Point one contends the circuit court erred when it
concluded that, pursuant to HRS § 91-14, an aggrieved party in a
contested case before the LUC “[does] not [have] the right to
cross-appeal.”
Points two through five repeat a single reason why the
circuit court erred in concluding that FOM’s “cross-appeal” was
untimely: “[T]he timely appeal by the Sierra Club/Hee divested
the LUC of jurisdiction and cross-appeals were appropriate and
allowed by Rule 4.1, H.R.A.P. thereby extending the deadline for
a cross appeal to 14 days after the original appeal deadline of
30 days.”
Points six and seven attack the circuit court’s
alternative rulings, which are based on the assumption that
FOM’s “cross-appeal” was timely and appropriately filed.
5
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Lastly, in point eight, it appears Friends contends
that because the November 9, 2012 Order dismissed Friends from
the case, final judgment should not have been entered against it
pursuant to that Order. “It is Friends’ belief that due process
would prohibit ruling on a party no longer a party to a case.”
III. Standards of Review
A. Jurisdiction
The existence of jurisdiction is a question of law
that we review de novo under the right/wrong standard.
Questions regarding subject matter jurisdiction may be raised at
any stage of an action. When reviewing a case where the circuit
court lacked subject matter jurisdiction, the appellate court
retains jurisdiction, not on the merits, but for the purpose of
correcting the error in jurisdiction. A judgment rendered by a
circuit court without subject matter jurisdiction is void.
Lingle v. Haw. Gov’t Employees Ass’n, 107 Hawaiʻi 178, 183, 111
P.3d 587, 591 (2005) (citation and quotation marks omitted).
B. Statutory Interpretation
“Statutory interpretation is a question of law
reviewable de novo.” Kaleikini v. Yoshioka, 128 Hawaiʻi 53, 67,
283 P.3d 60, 74 (2012) (citation omitted).
IV. Discussion
The right to appeal is purely statutory and exists
only when jurisdiction is given by some constitutional or
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statutory provision. Lingle, 107 Hawaiʻi at 184, 111 P.3d at 593(quotation marks omitted) (citing Burke v. Cnty. of Maui, 95
Hawaiʻi 288, 289, 22 P.3d 84, 85 (2001); Oppenheimer v. AIG Haw.
Ins. Co., 77 Hawaiʻi 88, 91, 881 P.2d 1234, 1237 (1994); Chambers
v. Leavey, 60 Haw. 52, 57, 587 P.2d 807, 810 (1978)).
Jurisdiction is conferred upon circuit courts to review
administrative decisions by HRS § 91-14, which provides in part:
(a) Any person aggrieved by a final decision and order in a
contested case . . . is entitled to judicial review thereof under
this chapter; but nothing in this section shall be deemed to
prevent resort to other means of review, redress, relief, or
trial de novo, including the right of trial by jury, provided by
law. . . .
(b) Except as otherwise provided herein, proceedings for review
shall be instituted in the circuit court . . . within thirty days
after service of the certified copy of the final decision and
order of the agency pursuant to rule of court . . . . The court
in its discretion may permit other interested persons to
intervene.
HRS § 91-14.
It is uncontested that Friends did not file its
“cross-appeal” within “thirty days after service of the
certified copy of the final decision and order of the agency,”
as required by HRS § 91-14(b). Nevertheless, Friends contends
that the deadline set forth in HRS § 91-14(b) does not apply to
its “cross-appeal”; rather, court rules govern.5 Specifically,
Friends asserts: (1) its “cross-appeal” was timely filed because
5
Friends asserts the filing of the Sierra Club notice of appeal divested the
LUC of jurisdiction, but fails to explain why it therefore follows that the
Hawaiʻi Rules of Appellate Procedure govern its “cross-appeal” in circuit
court.
7
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Rule 4.1 of the Hawaiʻi Rules of Appellate Procedure, which
permits a party to file a cross-appeal within fourteen days of
that party’s receipt of another party’s timely filed notice of
appeal, applies to its “cross-appeal,”6 and (2) nothing in HRS §
91-14 prohibits the filing of cross-appeals of agency decisions
to circuit court.
A. HRS § 91-14 Permits the Filing of Cross-Appeals of Agency
Decisions within the Time Allowed in HRS § 91-14(b)
As a preliminary matter, the term “cross-appeal”
should be defined: where multiple requests for judicial review
are initiated, “the appeal of each is called a ‘cross-appeal’ as
regards that of the other[s].” Black’s Law Dictionary 124 (4th
ed. 1957). In other words, cross-appeals exist whenever more
than one party requests judicial review of the same decision.
The plain language of HRS § 91-14(a) shows the Hawaiʻi
Legislature contemplated that multiple requests for review of a
6
HRAP Rule 4.1 provides:
(a) Right of cross-appeal.
(1) If a timely notice of appeal is filed by a party, any
other party may, if allowed by law, file a cross-appeal.
(2) In civil cases involving multiple-party plaintiffs or
defendants, if one party files a timely notice of appeal, any
other party, whether on the same or opposite side as the party
first appealing, may file a notice of cross-appeal.
(3) In criminal cases, the state or the defendant may file
a cross-appeal within the time and under the circumstances
permitted by this rule if the appeal is otherwise allowed by law.
(b) Manner and time of filing.
(1) A notice of cross-appeal shall be filed within 14 days
after the notice of appeal is served on the cross-appellant, or
within the time prescribed for filing the notice of appeal,
whichever is later. . . .
HRAP Rule 4.1.
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single decision and order may be initiated. See HRS § 91-14
(“Any person aggrieved . . . is entitled to judicial review
. . . .” (emphasis added)); Bowers v. Alamo Rent-A-Car, Inc., 88
Hawaiʻi 274, 277, 965 P.2d 1274, 1277 (1998) (“The starting point
in statutory construction is to determine the legislative intent
from the language of the statute itself.” (citation and internal
quotation marks omitted)). Moreover, the Court has previously
heard matters where multiple parties request judicial review of
the same agency decision without sua sponte addressing the issue
of jurisdiction. See, e.g., Ka Paʻakai O Kaʻaina v. Land Use
Comm’n, 94 Hawaiʻi 31, 34, 39, 7 P.3d 1068, 1071, 1076 (2000)
(noting that four distinct parties each filed separate timely
agency appeals from the LUC’s order to the Circuit Court of the
Third Circuit, and addressing the appeals of the circuit court
decision lodged by two of those parties); see also Bacon v.
Karlin, 68 Haw. 648, 650, 727 P.2d 1127, 1129 (1986) (“When we
perceive a jurisdictional defect in an appeal, we must, sua
sponte, dismiss that appeal.” (quoting Familian Nw., Inc. v.
Cent. Pac. Boiler & Piping, Ltd., 68 Haw. 368, 369, 714 P.2d
936, 937 (1986)) (internal quotation marks omitted)). Thus, HRS
§ 91-14 specifically permits the filing of cross-appeals in
circumstances where multiple parties request judicial review of
an agency decision within the thirty-day window provided in HRS
§ 91-14(b).
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The circuit court’s Order might be read to be contrary
to this, as the court stated: “Pursuant to [HRS] § 91-14, an
aggrieved party to the proceedings below before the Land Use
Commission has the right of appeal to the circuit court, but not
the right to cross-appeal. . . . Haw. Rev. Stat. § 91-14[]
. . . does not provide for cross-appeals . . . .” However, a
careful examination of the Order reveals that the court was not
concerned with whether multiple aggrieved parties are permitted
to appeal the same agency decision, or whether aggrieved parties
are denied a right to request judicial review of an agency
decision if they are not first to file.7 Indeed, had Friends
filed its “Notice of Cross Appeal” within the thirty-day window
provided in HRS § 91-14(b), timeliness would not be an issue.8
Rather, the circuit court was concerned with whether HRS § 91-14
specifically addresses the right to “cross-appeal” according to
the procedure described in Rule 4.1 of Hawaiʻi Rules of Appellate
Procedure (or a similar procedure that provides additional time
for the filing of a cross-appeal beyond the thirty-day window of
HRS § 91-14(b)). The circuit court correctly observed, that by
the statute’s plain language, it does not.
7
During oral argument in discussing Ka Paʻakai O Kaʻaina, 94 Hawaiʻi 31, the
circuit court acknowledged that multiple parties may request judicial review
of the same agency decision.
8
See supra note 7.
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Yet, even if the plain language of a statute is clear,
this court can nevertheless consider legislative history to
ensure its interpretation of the statute does not produce an
absurd result contrary to legislative intent. See Survivors of
Medeiros v. Maui Land & Pineapple Co., 66 Haw. 290, 297, 660
P.2d 1316, 1321 (1983) (observing that the plain language rule
does not preclude this court from examining the legislative
history to “adequately discern the underlying policy which the
legislature seeks to promulgate and . . . to determine if a
literal construction would produce an absurd or unjust result,
inconsistent with the policies of the statute”). Accordingly,
the following sections explore whether, despite the plain
language of HRS § 91-14, the legislature intended to allow an
extension of time to file cross-appeals in the manner described
in HRAP Rule 4.1.
B. HRS § 91-14 Does Not Permit the Filing of Cross-Appeals of
Agency Decisions Outside the Time Allowed in HRS § 91-14(b)
1. Rule 72 of the Hawaiʻi Rules of Civil Procedure, Not
Rule 4.1 of the Hawaiʻi Rules of Appellate Procedure,
Applies to FOM’s “Cross-Appeal.”
As a preliminary matter, we observe that HRAP Rule
4.1(a) appears to confer a “right” to cross-appeal in certain
circumstances. See HRAP Rule 4.1(a) (titling the provision as
“Right of cross-appeal”); Haw. Const. art. VI, § 7 (stating that
rules relating to “process, practice, procedure, and appeals”
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promulgated by the Supreme Court have the “force and effect of
law”); Cresencia v. Kim, 85 Hawaiʻi 334, 335, 944 P.2d 1277, 1278
(1997) (“The interpretation of a rule promulgated by the courts
involves principles of statutory construction.” (citation
omitted)). Nevertheless, there is no need to comment on whether
a “right” to cross-appeal is bestowed by HRAP Rule 4.1, as the
Hawaiʻi Rules of Appellate Procedure do not apply to a circuit
court’s review of administrative decisions and orders. See HRAP
Rule 1(a) (“Scope of Rules. These rules govern all proceedings
in the Hawaiʻi appellate courts except as otherwise provided by
statute, Rules of the Supreme Court, or Rules of the
Intermediate Court of Appeals.” (emphasis added)); Rule 2.1
(“‘[A]ppellate court(s)’ or ‘Hawaiʻi appellate court(s)’ mean(s)
the Hawaiʻi Supreme Court and the Hawaiʻi Intermediate Court of
Appeals, collectively and individually, but does not include the
land or tax appeal courts[.]”).
Although a circuit court might assume an appellate
role when reviewing administrative decisions, it is not an
“appellate court” as that term is used in the HRAP, and
therefore the HRAP — including Rule 4.1 — do not apply to it.
Indeed, when the HRAP were first promulgated and adopted in
1984, Rules 73 through 76 of the Hawaiʻi Rules of Civil Procedure
(“HRCP”) (each relating to appeals to the Supreme Court) were
deleted from the HRCP because they were addressed by the new
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HRAP. HRCP Rule 72, “Appeal to a Circuit Court,” on the other
hand, remained intact. See Order Adopting Hawaii Rules of
Appellate Procedure and Superseding Certain Other Rules (Apr.
16, 1984). Simply put, by its plain language and history, the
HRAP do not, nor were they ever intended to, address requests
for judicial review of administrative decisions submitted to
circuit courts; instead, the HRCP are the source of relevant
rules. See Cresencia, 85 Hawaiʻi at 335, 944 P.2d at 1278;
Bowers, 88 Hawaiʻi at 277, 965 P.2d at 1277 (“A rational,
sensible and practicable interpretation [of a statute] is
preferred to one which is unreasonable or impracticable.”
(quoting State v. Lobendahn, 71 Haw. 111, 112, 784 P.2d 872, 873
(1989)) (internal quotation marks omitted) (brackets in
original)).
The adoption of HRAP Rule 4.1 in 19999 and subsequent
amendments do not alter this arrangement. Tellingly, Rule 4.1
largely mirrors former HRCP Rule 73. Compare HRAP Rule 4.1(a),
(b) (“If a timely notice of appeal is filed by a party, any
other party may, if allowed by law, file a cross-appeal. . . .
A notice of cross-appeal shall be filed within 14 days after the
notice of appeal is served on the cross-appellant, or within the
time prescribed for filing the notice of appeal, whichever is
9
Effective January 1, 2000. See Order Amending the Hawaiʻi Rules of
Appellate Procedure (Dec. 6, 1999).
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later.”), with HRCP Rule 73(a)(2) (1972) (“[I]f a timely notice
of appeal is filed by a party, any other party may file a notice
of appeal within 14 days of the date on which the first notice
of appeal was filed, or within the time otherwise herein
prescribed, whichever period last expires.”). HRCP Rule 72
(2012), the relevant portions of which have not changed since
1972 — prior to the enactment of the HRAP — lacks language
similar to former HRCP Rule 73 or HRAP Rule 4.1. Thus, when
HRCP Rule 72 (appeals to a circuit court) is read together with
former HRCP Rule 73 (appeals to the Supreme Court), it is
evident that a fourteen-day cross-appeal provision was
purposefully excluded from HRCP Rule 72. This court’s clear
intent restricting the scope of HRCP Rule 72 is unchanged by the
subsequent adoption of HRAP Rule 4.1.
Friends suggests that application of Rule 72
nevertheless permits the filing of cross-appeals. According to
Friends, because HRCP Rule 72(e) requires the statement of the
case filed by an appellant be treated by the court “as near as
may be[] as an original complaint,” HRCP Rule 72(e),10 it
10
Statement of case. The appellant shall file in the circuit court
concurrently with the filing of appellant’s designation, a short
and plain statement of the case and a prayer for relief.
Certified copies of such statement shall be served forthwith upon
every appellee. The statement shall be treated, as near as may
be, as an original complaint and the provision of these rules
respecting motions and answers in response thereto shall apply.
HRCP Rule 72(e).
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therefore argues analogous treatment should be extended to the
rest of the case so as to permit the filing of cross-appeals in
the same manner as cross- or counter-claims. Nothing in HRCP
Rule 72(e) allows such an extension. The focus of the rule is,
as designated by its title, confined to (1) mandating the filing
of a statement of the case together with a notice of appeal, and
(2) applying the Hawaiʻi Rules of Civil Procedure with respect
only to motions and answers — there is no mention of cross-
appeals — that are filed in response to the statement.11 Friends
fails to identify any support for a contrary interpretation.
Thus, the application of HRCP Rule 72 to FOM’s “cross-appeal”
does not give it the relief it seeks.
2. The Legislature Intended HRS § 91-14 to Conform with
HRCP Rule 72.
The limited scope of HRCP Rule 72 bears on a proper
interpretation of HRS § 91-14. The Hawaiʻi Administrative
Procedure Act (“HAPA” or “Hawaiʻi APA”), which includes HRS § 91-
14, was enacted in 1961 and modeled after a 1959 draft of the
National Conference of Commissioners’ Model State Administrative
11
Friends also notes that HRCP Rule 81(e) (2006) requires that, except as
otherwise provided in Rule 72, the Hawaiʻi Rules of Civil Procedure apply to
all proceedings in circuit court, including certain administrative appeals
such as the one here. However, Friends fails to identify which rule of civil
procedure the circuit court failed to apply that would have otherwise offered
it the relief it seeks.
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Procedure Act (“1959 Draft”).12 H. 1-8, Gen. Sess., at 654
(Hawaiʻi 1961). The legislature intentionally deviated from the
1959 Draft with respect to Section 91-14(b) in order to “conform
to the procedure provided in the Hawaii Rules of Civil
Procedure. . . .” Id. at 660. Specifically, the legislature
required that, “[e]xcept as otherwise provided herein,
proceedings for review shall be instituted in the circuit court
. . . pursuant to the provisions of the Hawaii rules of civil
procedure . . . .” HRS § 91-14(b) (1961) (emphasis added).13
See Lingle, 107 Hawaiʻi at 183, 111 P.3d at 591 (“[O]ur foremost
obligation is to ascertain and give effect to the intention of
the legislature, which is to be obtained primarily from the
language contained in the statute itself. And we must read
statutory language in the context of the entire statute and
construe it in a manner consistent with its purpose.” (internal
quotation marks and citation omitted)).
Thus, when first enacted in 1961, HRS § 91-14(b)
employed language that expressly triggered the rule concerning
12
The final version of the Revised Model State Administrative Procedure Act
was approved in 1961, superseding the original 1946 Model Act.
13
Except as otherwise provided herein, proceedings for review shall
be instituted in the circuit court within thirty days after the
preliminary ruling or within thirty days after service of the
certified copy of the final decision and order of the agency
pursuant to the provisions of the Hawaii rules of civil procedure
. . . .
HRS § 91-14(b) (1961).
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appeals “instituted in the circuit court,” HRCP Rule 72 — not
former HRCP Rule 73 — and its accompanying intentional lack of a
provision for an extension of time to file a cross-appeal. A
review of the legislative histories for post-1961 amendments to
HRS § 91-14 does not provide reason to alter this interpretation
of the legislature’s intent.
3. Another State Has Concluded That in the Absence of a
Specific Statutory Provision, “Cross-Appeals” of
Administrative Decisions Are Subject to the Same Filing
Deadlines as the Initial Appeal.
Although it may be a matter of first impression for
this court whether a cross-appeal of an administrative decision
may be timely filed beyond the statutory deadline to institute
administrative “proceedings for review,” one other court has
already addressed the issue:
Courts to have considered similar statutory schemes [as that
presented in Hawaiʻi’s APA] have concluded that in the absence of
a provision expressly extending the time for filing a cross-
petition, any aggrieved party seeking judicial review of an
administrative decision must file a separate, timely petition for
review. In other words, where another deadline is not specified,
a cross-petition is subject to the same filing deadline as the
original petition.
Ahmann v. Corr. Ctr. Lincoln, 755 N.W. 3d 608, 611 (Neb. 2008);
see also id. at 611 nn.11, 12 (cases cited).
The circumstances in Nebraska are particularly
insightful. Up until 2008, the timing provision in Nebraska’s
APA read: “Proceedings for review shall be instituted by filing
a petition in the district court of the county where the action
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is taken within thirty days after the service of the final
decision by the agency. . . .” Neb. Rev. Stat. § 84-917(2)(a)
(2008). The statute’s similarity to HRS § 91-14 is unsurprising
as both the Hawaiʻi APA and Nebraska APA amount to “substantial
adoption[s] of the major provisions of the Revised 1961 Model
State Administrative Procedure Act.” 15 Uniform Laws Annotated
180, 181 (Master ed. 2000).14 In reviewing the provision, the
Nebraska Supreme Court held: “[B]ecause the [Nebraska] APA makes
no mention of an extended or different deadline for filing a
cross-petition . . . . the plain language of the APA requires
that the same deadline be applied to any party seeking judicial
review of an administrative decision.” Ahmann, 755 N.W.2d at
612 (footnote omitted).
In this case, HRS § 91-14(b)’s similar omission of
extended or different deadlines to file a cross-appeal indicates
that all parties seeking review in the circuit court must
institute proceedings in the circuit court within thirty days
after service of the certified copy of the agency’s final
decision and order.
14
The section regarding the deadline for requesting judicial review in the
various iterations of the Model State Administrative Procedure Act has gone
substantively unchanged. Compare Model State Admin. Proc. Act § 12, 9C
U.L.A. 179 (1957) (1946 Act), with Nat’l Conference of Comm’rs on Unif. State
Laws, Revision of the Model State Admin. Proc. Act § 14 (1960) (reflecting
recommendations made by committee members to the 1959 Draft), and Unif. Law
Comm’rs Model State Admin. Proc. Act (1961) § 15, 15A U.L.A. 11 (2000).
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4. The Legislature, Not the Court, Should Balance Parties’
Competing Interests.
Although there may be prudential reasons for applying
the same deadline to all requests for judicial review,15 such a
rule may spark the filing of preemptive appeals, thereby wasting
client and court resources. Friends makes a similar argument:
“If the silence of Rule 72 on cross appeals is interpreted as a
denial of the right to file a cross appeal, the result is that
every party in a contested case must file an appeal to protect
itself in case another party files an appeal and does not
include them as a party.” FOM’s position, however, is based on
an unfounded legal conclusion that an appellant’s omission of a
party from the appeal’s case caption or service list precludes
the “omitted” party from participating in the appeal.
In any event, it is within the purview of the
legislature, not the court, to re-examine and address these
competing interests. For example, after the Nebraska Supreme
Court’s ruling in Ahmann, the Nebraska Legislature revised its
APA to expressly “vest in a responding party of record the right
to a cross-appeal against any other party of record,” and
provide the respondent with “thirty days after being served with
15
See, e.g., Ahmann, 755 N.W. 3d at 611–12 (“Applying the same deadline for
petitions and cross-petitions serves to ensure that all the parties affected
by an administrative decision are aware of any challenge to that decision and
receive prompt notice of the issues presented for judicial review.”).
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the summons and petition for review” to serve its cross-appeal.
Neb. Rev. Stat. § 84-917(2)(a) (2009).
Unless the legislature enacts a similar provision,
however, for the reasons already discussed, an “aggrieved
person” seeking judicial review of an administrative decision
under the Hawaiʻi APA must institute review proceedings within
thirty days after service of the final decision and order, as
provided in HRS § 91-14. Accordingly, the circuit court did not
err when it concluded Friends untimely filed its “cross-appeal.”
C. As FOM’s “Cross-Appeal” Was Untimely Filed, the Remaining
Points of Error Need Not Be Reached by the Court
Points of error six and seven concern the circuit
court’s alternative rulings that are contingent on a timely
filed “cross-appeal.” As we affirm the circuit court’s
dismissal of FOM’s “cross-appeal” as untimely, we need not, and
do not, reach these points of error.
Further, Friends concedes that the issue raised in
point of error eight is relevant only “if the case is reversed.”
As we affirm the circuit court’s dismissal of FOM’s “cross-
appeal,” we need not reach point eight.
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V. Conclusion
For the foregoing reasons, we affirm the circuit
court’s dismissal of FOM’s “cross-appeal” as untimely.
Jack Schweigert and /s/ Mark E. Recktenwald
Linda M. B. Paul
for petitioner /s/ Paula A. Nakayama
Gregory W. Kugle and /s/ Sabrina S. McKenna
Matthew T. Evans
for respondent, /s/ Richard W. Pollack
D.R. Horton-Schuler
Homes, LLC /s/ Gary W. B. Chang
David M. Louie, Bryan C. Yee,
and Deborah Day Emerson
for respondent, Office of
Planning, State of Hawaiʻi
David M. Louie, Diane Erickson,
and Patricia Ohara for
respondent, Land Use Commission
of the State of Hawaiʻi
Donna Y. L. Leong and Dawn
Takeuchi Apuna for respondent,
Department of Planning and
Permitting, City and County
of Honolulu
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