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THE SENATE |
S.C.R. NO. |
122 |
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THIRTY-THIRD LEGISLATURE, 2026 |
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STATE OF HAWAII |
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SENATE CONCURRENT
RESOLUTION
Requesting each state agency to provide the affected person with written notice of certain information before taking any final administrative action that materially and adversely affects a protected liberty or property interest.
WHEREAS, article I, section 5, of the Hawaii State Constitution and the Fourteenth Amendment of the United States Constitution provide that no person shall be deprived of life, liberty, or property without due process of law; and
WHEREAS, these guarantees apply fully to the administrative actions of state agencies when the actions materially affect protected liberty, property, or livelihood interests; and
WHEREAS, state executive departments exercise substantial authority over matters including agricultural land tenure, natural resource management, biosecurity enforcement, public assistance eligibility, child welfare, professional licensure, unemployment benefits, educational services, environmental permitting, and infrastructure development; and
WHEREAS, actions taken in these domains can impose significant economic, legal, and personal consequences on affected individuals and entities; and
WHEREAS, judicial decisions, legislative audits, investigative reporting, and sworn testimony have identified recurring procedural due process deficiencies across multiple state departments; and
WHEREAS, these deficiencies include inadequate or untimely notice, denial of contested case hearings, lack of impartial adjudication, opaque decision-making, and the implementation of adverse actions while appeals remain pending; and
WHEREAS, collectively, these practices have resulted in avoidable financial harm to affected parties, including lost income, disrupted operations, civil penalties, fines, and litigation costs; and
WHEREAS, under existing law, the financial consequences of unconstitutional or procedurally deficient agency actions are frequently borne by affected persons or by the State's general fund, rather than by the department whose conduct caused the violation; and
WHEREAS, this structure, which does not subject the responsible department to fiscal consequences, weakens institutional incentives for compliance, diffuses accountability, and allows recurring procedural failures; now, therefore,
BE IT RESOLVED by the Senate of the Thirty-third Legislature of the State of Hawaii, Regular Session of 2026, the House of Representatives concurring, that, before taking any final administrative action that materially and adversely affects a protected liberty or property interest, each state agency is requested to provide the affected person with written notice that includes:
(1) A clear description of the proposed action and the factual basis supporting the action;
(2) Citation to any statute, rule, or formally adopted policy the state agency relied on to take the proposed action;
(3) Notice of the person's right to request a contested case hearing or administrative appeal, whichever is applicable; and
(4) A clear statement of the deadlines and procedures for exercising the rights listed in paragraph (3); and
BE IT FURTHER RESOLVED that each state agency is encouraged:
(1) Where a contested case hearing is timely requested in response to a proposed state agency action implicating a protected liberty or property interest, not to implement the final adverse action until completion of the contested case proceeding unless the state agency makes written findings that immediate action is necessary to prevent imminent harm to public health, safety, or the environment; and
(2) To the extent practicable, to maintain functional separation between investigative, prosecutorial, and adjudicatory roles to ensure impartial decision-making; and
BE IT FURTHER RESOLVED that, where a court of competent jurisdiction or a final administrative or appellate decision determines that a state agency has violated procedural due process requirements under the United States Constitution, Hawaii State Constitution, or chapter 91, Hawaii Revised Statutes, and the violation results in:
(1) Monetary damages, fines, penalties, restitution, or settlements;
(2) Attorneys' fees or costs awarded against the State; or
(3) Documented financial harm requiring compensation or remedial payment,
the state agency whose action or omission gave rise to the financial obligation is urged to satisfy the financial obligation from its operating budget and not from the general fund, to the extent permitted by law; and
BE IT FURTHER RESOLVED that the Department of Budget and Finance is requested to support each state agency in satisfying its financial obligations arising from a violation of procedural due process requirements by adjusting departmental allotments or imposing internal accounting transfers as necessary but so as not to impair any constitutionally or federally mandated service; and
BE IT FURTHER RESOLVED that each state agency is requested to include in its annual budget submission a summary of:
(1) Any expenditures made or determinations of a state agency's financial obligation due to its violation of procedural due process requirements pursuant to the determination of a court of competent jurisdiction or a final administrative or appellate decision; and
(2) The nature of the violation resulting in the expenditure or determination and any corrective measures the state agency has implemented to prevent repetition of similar violations; and
BE IT FURTHER RESOLVED that each state agency is urged not to discharge, threaten, or otherwise discriminate against an employee regarding the employee's compensation, terms, conditions, location, or privileges of employment because the employee, or a person acting on behalf of the employee, reports or is about to report to the employer, or reports or is about to report to a public body, verbally or in writing, a violation or suspected violation of any procedural due process right or requirement of chapter 91, Hawaii Revised Statutes, such as improper denial of a right to a hearing or abuse of discretion; and
BE IT FURTHER RESOLVED that each state agency is requested to submit an annual report to the Legislature no later than twenty days prior to the convening of each Regular Session detailing:
(1) The number of contested case hearings and administrative appeals requested;
(2) The number of contested case hearing and administrative appeal requests granted, denied, or withdrawn;
(3) The average time each contested case hearing or administrative appeal took to resolve; and
(4) The number of state agency decisions reversed, remanded, or modified after administrative or judicial review; and
BE IT FURTHER RESOLVED that each state agency is encouraged to make the requested annual report available on the state agency's publicly accessible website; and
BE IT FURTHER RESOLVED that certified copies of this Concurrent Resolution be transmitted to the Governor; Comptroller; Chairperson of the Board of Agriculture and Biosecurity; Attorney General; Director of Finance; Director of Business, Economic Development, and Tourism; Director of Commerce and Consumer Affairs; Adjutant General; Chairperson of the Board of Education; Superintendent of Education; Chairperson of the Hawaiian Homes Commission; Director of Health; Director of Human Resources Development; Director of Human Services; Director of Labor and Industrial Relations; Chairperson of the Board of Land and Natural Resources; Director of Law Enforcement; Director of Corrections and Rehabilitation; Director of Taxation; Director of Transportation; and President of the University of Hawaii System.
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OFFERED BY: |
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