64 Haw. 389

AUDREY K. COSTA and SUZANNE CAROL PALMER, individually and on behalf of the others similarly situated, Plaintiffs-Appellants, v. FRANKLIN Y. SUNN, individually and in his capacity as Director of the Department of Social Services and Housing, Defendant-Appellee

NO. 8549

(CIVIL NO. 68124)

MARCH 16, 1982

LUM, ACTING C.J., NAKAMURA, J., RETIRED JUSTICE MARUMOTO IN PLACE OF RICHARDSON, C.J., RECUSED, AND RETIRED JUSTICES OGATA AND MENOR ASSIGNED BY REASON OF VACANCIES

*390OPINION OF THE COURT BY

NAKAMURA, J.

The issue is whether two notices of public hearings on proposed amendments of the rules of the Public Welfare Division of the Department of Social Services and Housing (DSSH or the department) conformed to applicable provisions of the Hawaii Administrative Procedure Act, HRS Chapter 91 (HAPA). Plaintiffs-appellants, recipients of public assistance under programs administered by the DSSH, contend the published notices failed to state the “substance” of the proposed amendments, as required by HRS § 91-3.1 Defendant-appellee, the Director of the department, maintains the notices he caused to be published were legally sufficient and the circuit court was correct in awarding him summary judgment on the action for declaratory relief brought by Plain tiffs-appellants. We conclude the notices did not reflect the “substance” of the rule changes contemplated by the DSSH, and reverse the circuit court’s award of judgment to Defendant-appellee.

I.

The first notice appeared in the Honolulu Advertiser and the Honolulu Star-Bulletin on June 25, 1981. It covered a planned format change in the rules of the department’s Public Welfare Division to fulfill a HAPA requirement of a uniform format for the publication, filing, and indexing of rules by all state agencies. The notice also mentioned “some substantive changes to the rules of the Public Welfare Division.” The “substantive changes” contemplated by the department actually were a host of significant rule changes *391affecting recipients of public assistance and touching all phases of the welfare programs within the department’s jurisdiction from conditions of eligibility for assistance payments to their possible recoupment.2 Hearings as advertised were conducted throughout the state on July 24, 1981.

The second notice appeared in the same newspapers on October 25, 1981, and advertised public hearings scheduled for November 18, 19, and 20, 1981. It stated, inter alia, that portions of the department’s proposed new rules “that were heard on July 24, 1981 but have not yet been adopted” would be reheard. It further declared that a substantial number of chapters of the department’s rules had been “rewritten to reflect recent changes to the Social Security Act and Food Stamp Act as a result of the Omnibus Budget Reconciliation Act of 1981 (Public Law No. 97-35).”3

*392Plaintiffs-appellants filed their complaint for declaratory judgment on November 5,1981 and simultaneously sought to enjoin the conduct of the scheduled hearings. The requested preliminary injunctive relief was granted by a circuit judge, but we vacated the injunction on the Director’s petition because of the possible irreparable harm it posed for the department. Summary judgment in favor of Defendant-appellee was subsequently granted by another circuit judge, and Plaintiffs-appellants’ timely appeal to this court followed.

II.

A “stated objective of the rule-making provisions of the HAPA is *[t]o provide for public participation in the rule-making process, by allowing any interested person to petition for a change in the rules as well as to participate in a public hearing.’ ” Aguiar v. Hawaii Housing Authority, 55 Haw. 478, 487, 522 P.2d 1255, 1261-62 (1974). And “the legislature has ... made the judgment. . . that an agency must consider the views of interested persons where it seeks to promulgate a ‘rule,’ no matter how complex is the data that goes into the *393rule’s formulation.” Id. at 487-88, 522 P.2d at 1262. HRS § 91-3 demands advance notice of an administrative agency’s plan to adopt, amend, or repeal its rules; it further provides that the notice shall contain “a statement of the substance of the proposed rule.”4 Thus, the notice should fairly apprise interested parties of what is being proposéd so they can formulate and present rational responses to the proposal. Viewed in this light, the notices in question were inadequate.

The first advertisement publicized department proposals to recast the rules of the Public Welfare Division in a new format and to make “some substantive changes.” See note 2 supra. The second promulgated the department’s intention to rewrite thirty-nine chapters of the rules “to reflect recent changes to the Social Security Act and Food Stamp Act as a result of the Omnibus Budget Reconciliation Act of 1981.” See note 3 supra. The form conversion poses no problem, and Plaintiffs-appellants raise no question about the portion of the initial notice related thereto. But the “substantive changes” mentioned in the first advertisement and the declared intention of the department to rewrite the rules “to reflect recent changes” to the Social Security and Food Stamp Acts in the second are causes for concern.

Wholesale rule changes adversely affecting recipients of assistance were planned and adopted because of the passage of the foregoing federal legislation and other considerations. This is corroborated by the summary of the changes, which was subsequently distributed to the department’s staff.5 Yet the necessary notices, in our opinion, gave no inkling of what was actually in store even when read throughout.

*394HRS § 91-3, as we have seen, obligates an agency contemplating rule changes to inform the public of the “substance” of the impending changes and to “[a]fford all interested persons opportunity to submit data, views or arguments, orally or in writing.”6 Defendantappellee claims the department met this obligation by setting forth the essentials of what it proposed to do. We disagree, for the “substance” of a proposed rule “means not merely the. subject of it, but an intelligible abstract or synopsis of its material and substantial elements.” State v. Brooks, 241 Ala. 55, 56, 1 So.2d 370, 370 (1941); accord, Parrish v. Faulk, 293 Ala. 401, 404, 304 So.2d 194, 197 (1974). The notices in question stated little more than the headings of the new rules and did not provide interested persons with sufficient information to “direct their comments toward concrete proposals.” National Tour Brokers Association v. United States, 591 F.2d *395896, 901 (D.C. Cir. 1978). And the purpose of HRS § 91-3 “to make criticism or formulation of alternatives possible” was disserved thereby. Home Box Office, Inc. v. Federal Communications Commission, 567 F.2d 9, 36 (D.C. Cir.), cert. denied, 434 U.S. 829 (1977).

Todd Boley (Brenton Rogozen with him on opening brief; Legal Aid Society of Hawaii), for plaintiffs-appellants.

Robert K. Richardson and Loretta A. Ebinger, Deputies Attorney General, for defendant-appellee.

The summary judgment in favor of Defendant-appellee is reversed, and the case is remanded to the circuit court for entry of a judgment consistent with this opinion.

Costa v. Sunn
64 Haw. 389

Case Details

Name
Costa v. Sunn
Decision Date
Mar 16, 1982
Citations

64 Haw. 389

Jurisdiction
Hawaii

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