DR004Fin.txt

HAWAII CIVIL RIGHTS COMMISSION

STATE OF HAWAII


LINDA C. TSEU, Executive ) Docket No. DR 92-004
Director, Hawaii Civil Rights )
Commission )
)
Petitioner, )
)
vs. )
)
)
)
Respondent. )
)


ORDER SUMMARILY DENYING PETITION FOR DECLARATORY RELIEF


I. INTRODUCTION


On May 1, 1992, Petitioner filed a document entitled
"Motion to Summarily Deny, or in the Alternative, to Continue
Disposition of Petition for Declaratory Relief" in response to a
Petition for Declaratory Relief (DR 92-003) filed on April 29,
1992. On May 8, 1992, Petitioner filed a Motion to Amend the
Caption, which sought to have the first document treated as a
Petition for Declaratory Relief. In a response filed on May 11,
1992, the Respondent did not object to changing the caption but
moved to strike the Petition because it failed to state facts
giving rise to the petition or to identify any potential
respondents as required by H.A.R.  12-46-61.
II. DISCUSSION
The Petition seeks a declaration that the Commission will
not consider Petitions for Declaratory Relief arising from a case
which is in the pre-hearing stage. The pre-hearing stage refers to
the period after a complaint is filed and before the case is
docketed by the hearings examiner. Encompassed within this period
is the Commission's investigation of the complaint, the Executive
Director's determination of reasonable cause, and the final
conciliation demand. See, H.A.R.  12-46-12, 14, and 17.
Petitioner sought the declaration because of a concern
that references to disputed facts at the pre-hearing stage may
violate the rule on ex parte communications, H.A.R.  12-46-40, and
require recusal of the Commissioners if the case subsequently comes
before them for a hearing on the merits of the complaint. H.A.R.
 12-46-40 contains a proviso that "the Commission [i.e. the five
Commissioners who will decide cases] will not be involved in the
pre-hearing stages." H.A.R.  12-46-35(a)(3) provides for the
disqualification of a Commissioner who has "participated in the
development of evidence." Petitioner contended that involvement in
deciding a pre-hearing stage petition could require Commissioners
to make conclusions about disputed facts and constitute development
of evidence. Petitioner sought a declaration that the Commission
would not hear pre-hearing petitions and proposed other alternative
relief, and procedures.
As stated above, Respondent did not oppose the Motion to
Amend Caption but moved to strike the Petition on the grounds that
it did not meet the requirement of H.A.R.  12-46-61 in that it did
not contain a statement of facts or identify potential respondents.
III. DECISION
The Commission grants the Motion to Amend Caption and
will treat the filing as a Petition for Declaratory Relief. The
Commission chooses to summarily deny the petition under H.A.R. 
12-46-63(b)(1).
The Commission believes that it has the authority to
decide petitions in the pre-hearing stage. The Commission acted
upon its belief in deciding DR 92-003 which involved a case in the
pre-hearing stage. There is nothing in the rules which explicitly
limits the Commission's power to issue declaratory rulings in the
pre-hearing stage. Petitioner's concerns about the potential for
recusal are well-taken, however, they do not justify the
declaration sought.
The Commission will decide cases in the pre-hearing stage
if it determines that the petition presents an issue for which a
declaration is appropriate. It will make such determinations on a
case-by-case basis. The Commission will not limit its declaratory
rulings only to cases involving legal issues or to cases which have
been docketed for hearing.
IV. ORDER
IT IS HEREBY ORDERED THAT the Petition for Declaratory
Relief is summarily denied under the authority of H.A.R.  12-46-
63(b)(1).
Petitioner may seek reconsideration under H.A.R.  12-46-
38 by filing a motion with ten days of receipt of this order.
Petitioner may seek judicial review in the circuit court under
H.R.S.  91-8 and 14 within thirty days after service of the final
decision and order.
Dated: Honolulu, Hawaii, June 9, 1992.


Amefil Agbayani
Chairperson
Hawaii Civil Rights Commission