2009-02-19 TCROWN - Laserfiche WebLink

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WATANABE: Yes. IWASHITA: Thank you, Mr. Chair. I just want to clarify my understanding on the service of notice issue in this contested case. Was the notice of this meeting send by regular mail also? HAYASHI: No, just by certified mail. IWASHITA: Okay. Mr. Chair, I guess my understanding of the rule, Rule 4, the applicable subsection, is that it requires service by mail, or allow service by mail and doesn’t specify service by certified mail. So I’m just a little concerned, because it’s a contested case, and I really don’t want this tied up, whatever the decision is, have this tied up in any kind of, I guess if there is approval, post-approval litigation or, probably. Then I’m just concerned about the status of service and compliance with the rule. And that would be my concern, if we’re proceeding at this time. And I’m thinking, I guess my suggestion is that, to be very conservative about making sure this is handled properly, that we postpone hearing this matter until the next meeting, and have service by mail, just regular US Postal Service mail, done in compliance with the specific words of the rule. WATANABE: My personal interpretation would be that certified mail is a US mail, or a portion of the US mail, but I defer to someone who also wears a tie in the room. So, Mr. Takase? TAKASE: Thank you, Mr. Chairman. Mr. Iwashita is correct as to your Rules; however, you are also governed by Chapter 91, HRS, which is Administrative Procedure’s act, and in there Section 91-9.5 states, “Unless otherwise provided by law, all parties shall be given written notice of hearing by registered or certified mail with return receipt requested at least fifteen days before the hearing,” and goes on to further say, “Unless otherwise provided by law, if service by registered or certified mail is not made because of the refusal to accept service or the board or its agents have been unable to ascertain the address of the party after reasonable and diligent inquiry, the notice of hearing may be given to the party by publication at least once in each of two successive weeks in a newspaper of general circulation.” In this case, I think, you know, your Rules are silent as to whether it has to be certified or not, but I think that, I don’t see certified mail as being a lesser than regular mail; so I think you’ve met the requirements both of the Statute and of your Rules by the certified mail. And you know, I think the testimony provided by the staff today is that it was mailed timely, that it was just a failure of the intervenor to go and get the mail; he was told that the mail was there. And reading your minutes, you know, this is not the first time it’s happened. So I don’t think that they can avoid, or prolong the hearing by refusing to accept that. I think the Rules and the Statute give you the actual word for word. WATANABE: Thank you. WOODWARD: Mr. Chairman? WATANABE: Yes. EXHIBIT B 5