Dr13or.txt
CIVIL RIGHTS COMMISSION
STATE OF HAWAI'I
In the Matter of ) DR 98-0013
)
FEP NO. WH-5137 )
FEP NO. 6827 )
EEOC NO. 37B-95-0011, )
)
_____________________________)
ORDER SUMMARILY GRANTING PETITION FOR DECLARATORY RELIEF
On August 13, 1998, Petitioner, who is a Complainant in the
above-numbered complaints, filed a Petition for Declaratory Relief
seeking a ruling that he is a party entitled to be heard and
represented by his counsel in a contested case hearing, or, in the
alternative, that he should be allowed to intervene as a party. On
September 1, 1998, Respondent filed a Memorandum in Opposition to
Petition. On September 1, 1998, the Executive Director filed an Ex
Parte Motion for Leave to Submit Memorandum in Support of Motion
[sic] for Declaratory Relief, requesting leave to file by September
4, 1998; and on September 4, 1998, the Executive Director filed the
Memorandum. The Commission hereby grants the Motion.
The Petition was filed before the complaints were docketed for
a contested case hearing because of a concern that Petitioner-
Complainant may be forced to exercise his right to sue option
before the Commission can decide whether he is entitled to be
represented by counsel at the contested case hearing[1]. The cases
have since been docketed for hearing.
The Petition and Respondent's Response contain references to
factual matters which are unnecessary to the disposition of the
Petition. The Commission's Chief Counsel redacted pages 4-5 of the
Petition and portions of page 3 of the Response before copies were
sent out to the Commissioners. The official copy of the Petition
and Response in the Commission file will not include these pages or
portions thereof.
ORDER
Pursuant to H.A.R. 12-46-63(b)(1), the Commission summarily
grants the Petition for Declaratory Relief on the grounds that a
complainant is entitled to be granted party status and be
represented by counsel of his or her choice in a contested case
hearing, if a timely motion for intervention is made to the
Hearings Examiner.
Ordinarily, a complainant is not required to be a party or
retain counsel to represent his or her interests in a contested
case. H.R.S. 368-14(a) provides, "The case in support of the
complaint shall be presented at the hearing by counsel provided by
the commission." (Emphasis added.) This provision indicates that
the Executive Director is the party bringing the action based upon
the complaint filed by the complainant.
However, if a complainant wishes to participate as a party
through counsel of his or her choice that option is available. The
Commission statute recognizes this possibility by allowing
"[p]ayment to the complainant of all or a portion of the costs of
maintaining the action before the commission, including reasonable
attorney's fees and expert witness fees, when the commission
determines the award to be appropriate." H.R.S. 368-17(a)(9).
Because of a complainant's clear and direct interest in the
proceeding, party[2] status should be freely granted if sought.
The Commission believes that a complainant would be an aggrieved
person permitted to participate in the proceeding before the
commission[3], if a timely application for intervention is
filed[4].
Petitioner is directed to file an appropriate motion with the
Hearings Examiner.
Commissioner Claudio Suyat did not participate in the
decision.
DATED: September 15, 1998, Honolulu, Hawaii
JACK LAW
Commissioner
ALLICYN HIKIDA TASAKA
Commissioner
FAYE KENNEDY
Commissioner
HARRY YEE
Commissioner
NOTICE: An aggrieved party may seek reconsideration under H.A.R.
12-46-38 by filing a motion within ten days of receipt of this
order. An aggrieved party 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.
-------------------------------------
footnotes:
1. Under H.A.R. 12-46-19, the Hearings Examiner must order
a scheduling conference within thirty days after being appointed
and docketing the complaint for contested case hearing. A
complainant has three days after the conclusion of the scheduling
conference to request a right to sue. H.A.R. 12-46-20(b)(1).
2. "Party" is defined in H.A.R. 12-46-1 as: "any
interested or aggrieved person permitted or entitled as of right to
participate in the proceeding before the commission in the capacity
of a petitioner, complainant, respondent, intervenor, or in a
capacity other than that of a witness."
3. Under H.A.R. 12-46-25, a complainant should be allowed
to intervene because "the intervention shall be conducive to
effectuating the ends of justice and to achieving the goals and
purposes of the commission[.]"
4. Under H.A.R. 12-46-25, the Hearings Examiner retains
the power to refuse to let a complainant intervene "if the
intervention shall unduly delay the proceeding or harass, hinder,
or prejudice the rights of any party to the proceeding."
