Real Estate & Property Law

Administrative Appeal or Original Jurisdiction Lawsuit?

By rht

Jesse Souki has some interesting thoughts on the recent Intermediate Court of Appeals decision in  E & J Lounge Operating Co. v. City and County of Honolulu, No. 27940 (Dec. 24, 2007), over at his Hawaii Land Use Law blog:

Prior to the instant case, Hawaii courts strained to find a contested case before it granted standing.  See, e.g., Mahuiki v. Planning Comm'n, 65 Haw. 506 (1982) (opining that "a public hearing, conducted pursuant to public notice, has been deemed a 'contested case' within the meaning of HRS § 91-1?).

Jesse then noted that the ICA determined that while an administrative appeal under chapter 91 may not be available, the courts have "inherent power" to review agency decisions, and that application of this rule may result in better opportunities for judicial review than the limited review of the record available in an administrative appeal:

A court's "inherent power of review" is as broad as it can be argued; consequently, this decision may provide more flexibility for challenging government land use decisions in the circuit court.

Read his complete post here.  It seems to me that a trial court's "inherent power of review" is another way of saying "original jurisdiction," so I posted the following as a comment to Jesse's post:

What is left unstated in the opinion is that while an administrative appeal pursuant to chapter 91 isn't available if the agency didn't hold a "contested case," there may be other avenues for judicial review, such as filing an original jurisdiction lawsuit, or a claim for declaratory judgment. 

You're right that the courts have strained in the past to find that an agency hearing was a "contested case," such that a circuit court could exercise appellate jurisdiction.  I think the reason is that in those days, the standing doctrine was a substantial limitation on the circuit court's ability to entertain an original jurisdiction lawsuit, and when the plaintiffs were not the permit applicants or the property owners, but instead were your classic agency "intervenors," the court rightly believed these folks would have a harder time establishing standing if they could not rely on participation in a contested case.

Those standing barriers did not exist in agency appeals; as long as a person participated in an agency hearing in some fashion and could deemed to have been "aggrieved" by the result, they were entitled by HAPA to invoke the circuit court's appellate jurisdiction. 

But HAWSCT's late reformation of its standing jurisprudence has made that distinction largely irrelevant.  Today, standing in circuit courts is very nearly a pleading formality, and serves no real gatekeeping function, especially in cases which the court deem worthy of review.

Under the rationale of E & J Lounge, why should a plaintiff confine their claims to an administrative record and the other limitations of a chapter 91 appeal to circuit court?

Full post as published by inversecondemnation on January 01, 2008 (boomark / email).