2007-09-21 TD-BAR - Laserfiche WebLink

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fine. But I don’t think that it’s correct to say that there has been no vote. The Commission has acted and we can submit the findings of fact and conclusions of law, given that initial vote, and say here submit your objections. GRAHAM: Okay. I think I understand you better now. Mr. Torigoe, do you have a comment? TORIGOE: Yeah. I need to go back to the specific language of 4-23 which is saying essentially the same as 91-11, HRS. I think basically the effect of the Court’s decision really is to take us back to the moment before the decision was made. Because the rule says that the decision if adverse to a party to the proceedings shall not be made, shall not be made, until a proposal for decision containing a statement of reasons and a determination of each issue of fact or law necessary has been served upon the parties and an opportunity has been afforded to each party adversely affected to file exceptions and present argument. IWASHITA: I agree, Counsel, that basically what 91-11 is saying or the language you quoted is saying is that if there’s going to be an adverse decision to an application at that point then we have to say stop, okay, do the findings of fact and conclusions of law and all that. But on the record the decision was made. It doesn’t mean that, the Statute doesn’t say that that decision didn’t happen. See, that’s the triggering event. That is the triggering event. When the Commission votes on a motion to deny and there are five members at least that say, okay, we’re going to deny this, that’s the triggering event that requires providing of the findings of fact and conclusions of law. The issue, so to say that the effect of this appeal is to wipe out that vote, I don’t think that that’s correct. The Court said because you voted, you know, to deny the application, you had to submit the findings of fact and conclusions of law, you know, to support your position and give the applicant an opportunity to object, make objections on the record, and maybe it would change your mind. And then you had to have another meeting and had to come up again in order to finalize it, to follow that procedure. That’s my understanding. And to say that we didn’t vote on this or we have to act like we didn’t vote on this, that’s not correct. I mean that was the whole basis of the appeal that we did vote. You know, and it’s just that post-vote procedure that was objectionable. GRAHAM: Okay, thank you. I don’t think we have too much of a dispute or quandary in going forward, if I understand what’s going on correctly. So maybe I could pass the ball back to Mr. Vitousek and the other applicants here. VITOUSEK: Yeah, I think that what the, I mean the reason that the rule is there, the reason that the Statute is there is essentially due process and fairness. And that is if the Commission is going to make a decision that’s adverse to a party before they make that decision there’s a process to be followed. And what the Court said was that process wasn’t followed. And so the Court vacated the findings of fact and reversed the decision of the Commission. So there is no decision of the Commission. The Court said that before you make a decision you have to go through a process to assure fairness to the applicant. You’ve also voted this morning to reopen the hearing. And so it seems like, EXHIBIT B 11