ESARO; appeal hearings

Clarifies where an ESARO appeal can be heard and the means by
which a hearing may be conducted.  (SD1)

HOUSE OF REPRESENTATIVES                H.B. NO.           H.D. 1
TWENTIETH LEGISLATURE, 1999                                S.D. 2
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



 1      SECTION 1.  Section 383-38, Hawaii Revised Statutes, is
 2 amended by amending subsection (b) to read as follows:
 3      "(b)  The appeal under subsection (a) shall be heard in the
 4 county in which the appeal is filed, except that the department
 5 may, by its rules, provide for the holding of a hearing in
 6 another county with the consent of all parties or where necessary
 7 in order to conduct [that] a fair and impartial hearing [may be
 8 had, and may provide for the taking of depositions].  The hearing
 9 may be conducted in person, by telephone or by videoconference or
10 any other suitable communication device or technology.  The
11 hearing shall be deemed to be heard in the county in which the
12 hearing officer is located at the time of the hearing.  A party's
13 consent to a hearing outside the county in which the appeal is
14 filed may be presumed if the party fails to make a timely
15 objection to a notice that is sent to the party at least fourteen
16 working days prior to the hearing.  The notice shall clearly
17 specify the following:
18      (1)  That the party has a right to have the hearing held in
19           the county in which the appeal was filed; and

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                                                        S.D. 2

 1      (2)  That the hearing will be held outside the county in
 2           which the appeal was filed unless the party
 3           communicates an objection to the department at least
 4           twenty-four hours prior to the hearing.
 5 Any party who is not able to be present at a hearing shall be
 6 allowed to appear by telephone, videoconference, or any other
 7 suitable communication device or technology.  The department may
 8 also adopt rules that provide for the taking of depositions.
 9 Unless the appeal is withdrawn with the permission of the
10 referee, the referee after affording the parties reasonable
11 opportunity for a fair hearing shall make findings and
12 conclusions and on the basis thereof affirm, modify, or reverse
13 such determination or redetermination.   The parties to any
14 appeal shall be promptly notified of the decision of the referee
15 and shall be furnished with a copy of the decision and the
16 findings and conclusions in support thereof and the decisions
17 shall be final and shall be binding upon each party unless a
18 proceeding for judicial review is initiated by the party pursuant
19 to section 383-41; provided that within the time provided for
20 taking an appeal and prior to the filing of a notice of appeal,
21 the referee may reopen the matter, upon the application of the
22 director or any other party, or upon the referee's own motion,
23 and thereupon may take further evidence or may modify or reverse

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                                     H.B. NO.           H.D. 1
                                                        S.D. 2

 1 the referee's decision, findings, or conclusions.  If the matter
 2 is reopened, the referee shall render a further decision in the
 3 matter either reaffirming or modifying or reversing the referee's
 4 original decision, and notice shall be given thereof in the
 5 manner hereinbefore provided.  Upon reopening, the referee who
 6 heard the original appeal shall reconsider the matter, except
 7 where the referee is no longer employed as a referee or the
 8 referee disqualifies oneself from reconsidering the referee's
 9 decision."
10      SECTION 2.  Statutory material to be repealed is bracketed.
11 New statutory material is underscored.
12      SECTION 3.  This Act shall take effect upon its approval.