Friends of Makakilo v. D.R. Horton-Schulder Homes, LLC.

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Electronically Filed
Supreme Court
SCAP-13-0002408
30-OCT-2014
08:58 AM

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---oOo---
________________________________________________________________

FRIENDS OF MAKAKILO,
Petitioner/Intervenor/Cross-Appellant-Appellant,

vs.

D.R. HORTON-SCHULER HOMES, LLC,
a Delaware limited liability company,
d.b.a. D.R. HORTON-SCHULER DIVISION;
THE LAND USE COMMISSION OF THE STATE OF HAWAIʻI;
OFFICE OF PLANNING, STATE OF HAWAIʻI;
DEPARTMENT OF PLANNING AND PERMITTING,
CITY AND COUNTY OF HONOLULU,
Respondents/Appellees-Appellees,

and

THE SIERRA CLUB and THE HONORABLE SENATOR CLAYTON HEE,
Respondents/Appellants-Appellants.
________________________________________________________________

SCAP-13-0002408

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIV. NO. 12-1-2000)

OCTOBER 30, 2014

RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND POLLACK, JJ.,
AND CIRCUIT JUDGE CHANG, ASSIGNED BY REASON OF VACANCY

OPINION OF THE COURT BY McKENNA, J.
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I. Introduction

Petitioner/Intervenor/Cross-Appellant-Appellant

Friends of Makakilo (“Friends” or “FOM”), a 501(c)(4) non-profit

corporation, appeals from the Circuit Court of the First

Circuit’s Final Judgment dated June 26, 2013, and filed June 27,

2013, which affirmed its November 9, 2013 Order dismissing FOM’s

“cross-appeal”1 as untimely. Friends filed an Application for

Transfer (“Application”) with the Court on April 2, 2014. The

Court has accepted FOM’s appeal as a discretionary transfer

under Hawaiʻi Revised Statutes (“HRS”) § 602-58 (Supp. 2013).

FOM’s appeal poses a question of first impression:

when must a party that seeks judicial review of an

administrative decision in the form of a cross-appeal file

notice of its cross-appeal in circuit court? In brief, Friends

suggests that cross-appeals may be filed within the deadlines

set forth in Rule 4.1(b) of the Hawaiʻi Rules of Appellate

Procedure (“HRAP”),2 i.e., within fourteen days after the initial

notice of appeal is served on the cross-appellant, or within the

time prescribed for filing the notice of appeal, whichever is

later. Respondents/Appellees-Appellees D.R. Horton-Schuler

Homes, LLC (“Horton-Schuler”), the Office of Planning, State of

1
This memorandum opinion employs quotation marks when referring to FOM’s
“cross-appeal” to demark that the at-issue document was thus named by
Friends. No further inferences about the content of the document should be
made by use of this label.
2
HRAP Rule 4.1 (2012).

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Hawaiʻi (“State”), and the Land Use Commission (“LUC”) assert

that there is no fourteen-day extension for the filing of cross-

appeals, as all requests for judicial review must be filed

within thirty days after service of the certified copy of the

agency’s final decision and order, as provided for in HRS § 91-

14(b) (Supp. 2010).

II. Background

A. Procedural History

The at-issue “cross-appeal” arises from an LUC

contested case hearing, Docket Number A06-771. In January 2007,

Horton-Schuler petitioned the LUC to reclassify certain lands in

ʻEwa District, Oʻahu from agricultural to urban use (“Hoʻopili

lands” or “Hoʻopili Development”). Horton-Schuler later amended

its petition in September 2008. In February 2009, the LUC

permitted Friends to intervene, and in September 2009, the LUC

granted FOM’s motion to declare the petition deficient, with

leave to Horton-Schuler to amend. Horton-Schuler filed

subsequent amendments to its petition in May and July 2011. In

September 2011, the Sierra Club and Senator Clayton Hee were

granted intervenor status. The LUC continued a hearing on the

revised petition on several discrete days from October 2011 to

March 2012, with oral arguments held in May and June 2012. In

its June 21, 2012 Findings of Fact, Conclusions of Law, and

Decision and Order (“Decision”), the LUC granted Horton-

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Schuler’s petition to reclassify the Hoʻopili lands subject to

certain conditions.3 A copy of the LUC’s Decision was delivered

to Friends on June 23, 2012.

On July 20, 2012, Senator Hee and the Sierra Club

filed a notice of appeal with the Circuit Court of the First

Circuit, requesting judicial review of the Decision (“Sierra

Club appeal” or “Sierra Club notice of appeal”). On August 2,

2012, Friends filed a “Notice of Cross Appeal to Circuit Court.”

On August 23 and 24, 2012, the LUC and Horton-Schuler

respectively filed motions to dismiss FOM’s “cross-appeal.”4

Oral argument on the motions was held on October 9,

2012. By an order dated November 9, 2012 (“Order”), the circuit

court held, pursuant to HRS § 91-14, that: (a) FOM’s “cross-

appeal” was not allowed by law because aggrieved parties, as

defined in HRS § 91-14, have a right to appeal an agency

decision, but not a right to cross-appeal, and (b) it is

undisputed that FOM’s “cross-appeal,” when viewed simply as a

request for judicial review, was untimely. The circuit court

further held that even if cross-appeals of agency decisions were

permitted and FOM’s “cross-appeal” was deemed timely, (1) the

3
On June 27, 2012, the LUC issued errata to its Decision to correct a
typographical error. A copy of the errata was delivered to Friends on June
29, 2012. None of the parties assert that the errata affect our
consideration of the issues presented.
4
The Office of Planning, State of Hawaiʻi joined both motions to dismiss, and
Horton-Schuler joined the LUC’s motion.

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content of the “cross-appeal” exceeded the scope of FOM’s

limited intervention in the proceedings before the LUC, and (2)

Friends lacked standing to appeal as an “aggrieved person.”

Accordingly, the circuit court dismissed FOM’s “cross-appeal”

with prejudice, and affirmed its Order by Final Judgment filed

June 27, 2013.

B. Points of Error

In its opening brief, Friends identifies eight points

of error.

Point one contends the circuit court erred when it

concluded that, pursuant to HRS § 91-14, an aggrieved party in a

contested case before the LUC “[does] not [have] the right to

cross-appeal.”

Points two through five repeat a single reason why the

circuit court erred in concluding that FOM’s “cross-appeal” was

untimely: “[T]he timely appeal by the Sierra Club/Hee divested

the LUC of jurisdiction and cross-appeals were appropriate and

allowed by Rule 4.1, H.R.A.P. thereby extending the deadline for

a cross appeal to 14 days after the original appeal deadline of

30 days.”

Points six and seven attack the circuit court’s

alternative rulings, which are based on the assumption that

FOM’s “cross-appeal” was timely and appropriately filed.

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Lastly, in point eight, it appears Friends contends

that because the November 9, 2012 Order dismissed Friends from

the case, final judgment should not have been entered against it

pursuant to that Order. “It is Friends’ belief that due process

would prohibit ruling on a party no longer a party to a case.”

III. Standards of Review

A. Jurisdiction

The existence of jurisdiction is a question of law

that we review de novo under the right/wrong standard.

Questions regarding subject matter jurisdiction may be raised at

any stage of an action. When reviewing a case where the circuit

court lacked subject matter jurisdiction, the appellate court

retains jurisdiction, not on the merits, but for the purpose of

correcting the error in jurisdiction. A judgment rendered by a

circuit court without subject matter jurisdiction is void.

Lingle v. Haw. Gov’t Employees Ass’n, 107 Hawaiʻi 178, 183, 111

P.3d 587, 591 (2005) (citation and quotation marks omitted).

B. Statutory Interpretation

“Statutory interpretation is a question of law

reviewable de novo.” Kaleikini v. Yoshioka, 128 Hawaiʻi 53, 67,

283 P.3d 60, 74 (2012) (citation omitted).

IV. Discussion

The right to appeal is purely statutory and exists

only when jurisdiction is given by some constitutional or

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statutory provision. Lingle, 107 Hawaiʻi at 184, 111 P.3d at 593

(quotation marks omitted) (citing Burke v. Cnty. of Maui, 95

Hawaiʻi 288, 289, 22 P.3d 84, 85 (2001); Oppenheimer v. AIG Haw.

Ins. Co., 77 Hawaiʻi 88, 91, 881 P.2d 1234, 1237 (1994); Chambers

v. Leavey, 60 Haw. 52, 57, 587 P.2d 807, 810 (1978)).

Jurisdiction is conferred upon circuit courts to review

administrative decisions by HRS § 91-14, which provides in part:

(a) Any person aggrieved by a final decision and order in a
contested case . . . is entitled to judicial review thereof under
this chapter; but nothing in this section shall be deemed to
prevent resort to other means of review, redress, relief, or
trial de novo, including the right of trial by jury, provided by
law. . . .

(b) Except as otherwise provided herein, proceedings for review
shall be instituted in the circuit court . . . within thirty days
after service of the certified copy of the final decision and
order of the agency pursuant to rule of court . . . . The court
in its discretion may permit other interested persons to
intervene.

HRS § 91-14.

It is uncontested that Friends did not file its

“cross-appeal” within “thirty days after service of the

certified copy of the final decision and order of the agency,”

as required by HRS § 91-14(b). Nevertheless, Friends contends

that the deadline set forth in HRS § 91-14(b) does not apply to

its “cross-appeal”; rather, court rules govern.5 Specifically,

Friends asserts: (1) its “cross-appeal” was timely filed because

5
Friends asserts the filing of the Sierra Club notice of appeal divested the
LUC of jurisdiction, but fails to explain why it therefore follows that the
Hawaiʻi Rules of Appellate Procedure govern its “cross-appeal” in circuit
court.

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Rule 4.1 of the Hawaiʻi Rules of Appellate Procedure, which

permits a party to file a cross-appeal within fourteen days of

that party’s receipt of another party’s timely filed notice of

appeal, applies to its “cross-appeal,”6 and (2) nothing in HRS §

91-14 prohibits the filing of cross-appeals of agency decisions

to circuit court.

A. HRS § 91-14 Permits the Filing of Cross-Appeals of Agency
Decisions within the Time Allowed in HRS § 91-14(b)

As a preliminary matter, the term “cross-appeal”

should be defined: where multiple requests for judicial review

are initiated, “the appeal of each is called a ‘cross-appeal’ as

regards that of the other[s].” Black’s Law Dictionary 124 (4th

ed. 1957). In other words, cross-appeals exist whenever more

than one party requests judicial review of the same decision.

The plain language of HRS § 91-14(a) shows the Hawaiʻi

Legislature contemplated that multiple requests for review of a

6
HRAP Rule 4.1 provides:

(a) Right of cross-appeal.
(1) If a timely notice of appeal is filed by a party, any
other party may, if allowed by law, file a cross-appeal.
(2) In civil cases involving multiple-party plaintiffs or
defendants, if one party files a timely notice of appeal, any
other party, whether on the same or opposite side as the party
first appealing, may file a notice of cross-appeal.
(3) In criminal cases, the state or the defendant may file
a cross-appeal within the time and under the circumstances
permitted by this rule if the appeal is otherwise allowed by law.
(b) Manner and time of filing.
(1) A notice of cross-appeal shall be filed within 14 days
after the notice of appeal is served on the cross-appellant, or
within the time prescribed for filing the notice of appeal,
whichever is later. . . .

HRAP Rule 4.1.

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single decision and order may be initiated. See HRS § 91-14

(“Any person aggrieved . . . is entitled to judicial review

. . . .” (emphasis added)); Bowers v. Alamo Rent-A-Car, Inc., 88

Hawaiʻi 274, 277, 965 P.2d 1274, 1277 (1998) (“The starting point

in statutory construction is to determine the legislative intent

from the language of the statute itself.” (citation and internal

quotation marks omitted)). Moreover, the Court has previously

heard matters where multiple parties request judicial review of

the same agency decision without sua sponte addressing the issue

of jurisdiction. See, e.g., Ka Paʻakai O Kaʻaina v. Land Use

Comm’n, 94 Hawaiʻi 31, 34, 39, 7 P.3d 1068, 1071, 1076 (2000)

(noting that four distinct parties each filed separate timely

agency appeals from the LUC’s order to the Circuit Court of the

Third Circuit, and addressing the appeals of the circuit court

decision lodged by two of those parties); see also Bacon v.

Karlin, 68 Haw. 648, 650, 727 P.2d 1127, 1129 (1986) (“When we

perceive a jurisdictional defect in an appeal, we must, sua

sponte, dismiss that appeal.” (quoting Familian Nw., Inc. v.

Cent. Pac. Boiler & Piping, Ltd., 68 Haw. 368, 369, 714 P.2d

936, 937 (1986)) (internal quotation marks omitted)). Thus, HRS

§ 91-14 specifically permits the filing of cross-appeals in

circumstances where multiple parties request judicial review of

an agency decision within the thirty-day window provided in HRS

§ 91-14(b).

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The circuit court’s Order might be read to be contrary

to this, as the court stated: “Pursuant to [HRS] § 91-14, an

aggrieved party to the proceedings below before the Land Use

Commission has the right of appeal to the circuit court, but not

the right to cross-appeal. . . . Haw. Rev. Stat. § 91-14[]

. . . does not provide for cross-appeals . . . .” However, a

careful examination of the Order reveals that the court was not

concerned with whether multiple aggrieved parties are permitted

to appeal the same agency decision, or whether aggrieved parties

are denied a right to request judicial review of an agency

decision if they are not first to file.7 Indeed, had Friends

filed its “Notice of Cross Appeal” within the thirty-day window

provided in HRS § 91-14(b), timeliness would not be an issue.8

Rather, the circuit court was concerned with whether HRS § 91-14

specifically addresses the right to “cross-appeal” according to

the procedure described in Rule 4.1 of Hawaiʻi Rules of Appellate

Procedure (or a similar procedure that provides additional time

for the filing of a cross-appeal beyond the thirty-day window of

HRS § 91-14(b)). The circuit court correctly observed, that by

the statute’s plain language, it does not.

7
During oral argument in discussing Ka Paʻakai O Kaʻaina, 94 Hawaiʻi 31, the
circuit court acknowledged that multiple parties may request judicial review
of the same agency decision.
8
See supra note 7.

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Yet, even if the plain language of a statute is clear,

this court can nevertheless consider legislative history to

ensure its interpretation of the statute does not produce an

absurd result contrary to legislative intent. See Survivors of

Medeiros v. Maui Land & Pineapple Co., 66 Haw. 290, 297, 660

P.2d 1316, 1321 (1983) (observing that the plain language rule

does not preclude this court from examining the legislative

history to “adequately discern the underlying policy which the

legislature seeks to promulgate and . . . to determine if a

literal construction would produce an absurd or unjust result,

inconsistent with the policies of the statute”). Accordingly,

the following sections explore whether, despite the plain

language of HRS § 91-14, the legislature intended to allow an

extension of time to file cross-appeals in the manner described

in HRAP Rule 4.1.

B. HRS § 91-14 Does Not Permit the Filing of Cross-Appeals of
Agency Decisions Outside the Time Allowed in HRS § 91-14(b)

1. Rule 72 of the Hawaiʻi Rules of Civil Procedure, Not
Rule 4.1 of the Hawaiʻi Rules of Appellate Procedure,
Applies to FOM’s “Cross-Appeal.”

As a preliminary matter, we observe that HRAP Rule

4.1(a) appears to confer a “right” to cross-appeal in certain

circumstances. See HRAP Rule 4.1(a) (titling the provision as

“Right of cross-appeal”); Haw. Const. art. VI, § 7 (stating that

rules relating to “process, practice, procedure, and appeals”

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promulgated by the Supreme Court have the “force and effect of

law”); Cresencia v. Kim, 85 Hawaiʻi 334, 335, 944 P.2d 1277, 1278

(1997) (“The interpretation of a rule promulgated by the courts

involves principles of statutory construction.” (citation

omitted)). Nevertheless, there is no need to comment on whether

a “right” to cross-appeal is bestowed by HRAP Rule 4.1, as the

Hawaiʻi Rules of Appellate Procedure do not apply to a circuit

court’s review of administrative decisions and orders. See HRAP

Rule 1(a) (“Scope of Rules. These rules govern all proceedings

in the Hawaiʻi appellate courts except as otherwise provided by

statute, Rules of the Supreme Court, or Rules of the

Intermediate Court of Appeals.” (emphasis added)); Rule 2.1

(“‘[A]ppellate court(s)’ or ‘Hawaiʻi appellate court(s)’ mean(s)

the Hawaiʻi Supreme Court and the Hawaiʻi Intermediate Court of

Appeals, collectively and individually, but does not include the

land or tax appeal courts[.]”).

Although a circuit court might assume an appellate

role when reviewing administrative decisions, it is not an

“appellate court” as that term is used in the HRAP, and

therefore the HRAP — including Rule 4.1 — do not apply to it.

Indeed, when the HRAP were first promulgated and adopted in

1984, Rules 73 through 76 of the Hawaiʻi Rules of Civil Procedure

(“HRCP”) (each relating to appeals to the Supreme Court) were

deleted from the HRCP because they were addressed by the new
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HRAP. HRCP Rule 72, “Appeal to a Circuit Court,” on the other

hand, remained intact. See Order Adopting Hawaii Rules of

Appellate Procedure and Superseding Certain Other Rules (Apr.

16, 1984). Simply put, by its plain language and history, the

HRAP do not, nor were they ever intended to, address requests

for judicial review of administrative decisions submitted to

circuit courts; instead, the HRCP are the source of relevant

rules. See Cresencia, 85 Hawaiʻi at 335, 944 P.2d at 1278;

Bowers, 88 Hawaiʻi at 277, 965 P.2d at 1277 (“A rational,

sensible and practicable interpretation [of a statute] is

preferred to one which is unreasonable or impracticable.”

(quoting State v. Lobendahn, 71 Haw. 111, 112, 784 P.2d 872, 873

(1989)) (internal quotation marks omitted) (brackets in

original)).

The adoption of HRAP Rule 4.1 in 19999 and subsequent

amendments do not alter this arrangement. Tellingly, Rule 4.1

largely mirrors former HRCP Rule 73. Compare HRAP Rule 4.1(a),

(b) (“If a timely notice of appeal is filed by a party, any

other party may, if allowed by law, file a cross-appeal. . . .

A notice of cross-appeal shall be filed within 14 days after the

notice of appeal is served on the cross-appellant, or within the

time prescribed for filing the notice of appeal, whichever is

9
Effective January 1, 2000. See Order Amending the Hawaiʻi Rules of
Appellate Procedure (Dec. 6, 1999).

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later.”), with HRCP Rule 73(a)(2) (1972) (“[I]f a timely notice

of appeal is filed by a party, any other party may file a notice

of appeal within 14 days of the date on which the first notice

of appeal was filed, or within the time otherwise herein

prescribed, whichever period last expires.”). HRCP Rule 72

(2012), the relevant portions of which have not changed since

1972 — prior to the enactment of the HRAP — lacks language

similar to former HRCP Rule 73 or HRAP Rule 4.1. Thus, when

HRCP Rule 72 (appeals to a circuit court) is read together with

former HRCP Rule 73 (appeals to the Supreme Court), it is

evident that a fourteen-day cross-appeal provision was

purposefully excluded from HRCP Rule 72. This court’s clear

intent restricting the scope of HRCP Rule 72 is unchanged by the

subsequent adoption of HRAP Rule 4.1.

Friends suggests that application of Rule 72

nevertheless permits the filing of cross-appeals. According to

Friends, because HRCP Rule 72(e) requires the statement of the

case filed by an appellant be treated by the court “as near as

may be[] as an original complaint,” HRCP Rule 72(e),10 it

10
Statement of case. The appellant shall file in the circuit court
concurrently with the filing of appellant’s designation, a short
and plain statement of the case and a prayer for relief.
Certified copies of such statement shall be served forthwith upon
every appellee. The statement shall be treated, as near as may
be, as an original complaint and the provision of these rules
respecting motions and answers in response thereto shall apply.

HRCP Rule 72(e).

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therefore argues analogous treatment should be extended to the

rest of the case so as to permit the filing of cross-appeals in

the same manner as cross- or counter-claims. Nothing in HRCP

Rule 72(e) allows such an extension. The focus of the rule is,

as designated by its title, confined to (1) mandating the filing

of a statement of the case together with a notice of appeal, and

(2) applying the Hawaiʻi Rules of Civil Procedure with respect

only to motions and answers — there is no mention of cross-

appeals — that are filed in response to the statement.11 Friends

fails to identify any support for a contrary interpretation.

Thus, the application of HRCP Rule 72 to FOM’s “cross-appeal”

does not give it the relief it seeks.

2. The Legislature Intended HRS § 91-14 to Conform with
HRCP Rule 72.

The limited scope of HRCP Rule 72 bears on a proper

interpretation of HRS § 91-14. The Hawaiʻi Administrative

Procedure Act (“HAPA” or “Hawaiʻi APA”), which includes HRS § 91-

14, was enacted in 1961 and modeled after a 1959 draft of the

National Conference of Commissioners’ Model State Administrative

11
Friends also notes that HRCP Rule 81(e) (2006) requires that, except as
otherwise provided in Rule 72, the Hawaiʻi Rules of Civil Procedure apply to
all proceedings in circuit court, including certain administrative appeals
such as the one here. However, Friends fails to identify which rule of civil
procedure the circuit court failed to apply that would have otherwise offered
it the relief it seeks.

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Procedure Act (“1959 Draft”).12 H. 1-8, Gen. Sess., at 654

(Hawaiʻi 1961). The legislature intentionally deviated from the

1959 Draft with respect to Section 91-14(b) in order to “conform

to the procedure provided in the Hawaii Rules of Civil

Procedure. . . .” Id. at 660. Specifically, the legislature

required that, “[e]xcept as otherwise provided herein,

proceedings for review shall be instituted in the circuit court

. . . pursuant to the provisions of the Hawaii rules of civil

procedure . . . .” HRS § 91-14(b) (1961) (emphasis added).13

See Lingle, 107 Hawaiʻi at 183, 111 P.3d at 591 (“[O]ur foremost

obligation is to ascertain and give effect to the intention of

the legislature, which is to be obtained primarily from the

language contained in the statute itself. And we must read

statutory language in the context of the entire statute and

construe it in a manner consistent with its purpose.” (internal

quotation marks and citation omitted)).

Thus, when first enacted in 1961, HRS § 91-14(b)

employed language that expressly triggered the rule concerning

12
The final version of the Revised Model State Administrative Procedure Act
was approved in 1961, superseding the original 1946 Model Act.
13
Except as otherwise provided herein, proceedings for review shall
be instituted in the circuit court within thirty days after the
preliminary ruling or within thirty days after service of the
certified copy of the final decision and order of the agency
pursuant to the provisions of the Hawaii rules of civil procedure
. . . .

HRS § 91-14(b) (1961).

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appeals “instituted in the circuit court,” HRCP Rule 72 — not

former HRCP Rule 73 — and its accompanying intentional lack of a

provision for an extension of time to file a cross-appeal. A

review of the legislative histories for post-1961 amendments to

HRS § 91-14 does not provide reason to alter this interpretation

of the legislature’s intent.

3. Another State Has Concluded That in the Absence of a
Specific Statutory Provision, “Cross-Appeals” of
Administrative Decisions Are Subject to the Same Filing
Deadlines as the Initial Appeal.

Although it may be a matter of first impression for

this court whether a cross-appeal of an administrative decision

may be timely filed beyond the statutory deadline to institute

administrative “proceedings for review,” one other court has

already addressed the issue:

Courts to have considered similar statutory schemes [as that
presented in Hawaiʻi’s APA] have concluded that in the absence of
a provision expressly extending the time for filing a cross-
petition, any aggrieved party seeking judicial review of an
administrative decision must file a separate, timely petition for
review. In other words, where another deadline is not specified,
a cross-petition is subject to the same filing deadline as the
original petition.

Ahmann v. Corr. Ctr. Lincoln, 755 N.W. 3d 608, 611 (Neb. 2008);

see also id. at 611 nn.11, 12 (cases cited).

The circumstances in Nebraska are particularly

insightful. Up until 2008, the timing provision in Nebraska’s

APA read: “Proceedings for review shall be instituted by filing

a petition in the district court of the county where the action

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is taken within thirty days after the service of the final

decision by the agency. . . .” Neb. Rev. Stat. § 84-917(2)(a)

(2008). The statute’s similarity to HRS § 91-14 is unsurprising

as both the Hawaiʻi APA and Nebraska APA amount to “substantial

adoption[s] of the major provisions of the Revised 1961 Model

State Administrative Procedure Act.” 15 Uniform Laws Annotated

180, 181 (Master ed. 2000).14 In reviewing the provision, the

Nebraska Supreme Court held: “[B]ecause the [Nebraska] APA makes

no mention of an extended or different deadline for filing a

cross-petition . . . . the plain language of the APA requires

that the same deadline be applied to any party seeking judicial

review of an administrative decision.” Ahmann, 755 N.W.2d at

612 (footnote omitted).

In this case, HRS § 91-14(b)’s similar omission of

extended or different deadlines to file a cross-appeal indicates

that all parties seeking review in the circuit court must

institute proceedings in the circuit court within thirty days

after service of the certified copy of the agency’s final

decision and order.

14
The section regarding the deadline for requesting judicial review in the
various iterations of the Model State Administrative Procedure Act has gone
substantively unchanged. Compare Model State Admin. Proc. Act § 12, 9C
U.L.A. 179 (1957) (1946 Act), with Nat’l Conference of Comm’rs on Unif. State
Laws, Revision of the Model State Admin. Proc. Act § 14 (1960) (reflecting
recommendations made by committee members to the 1959 Draft), and Unif. Law
Comm’rs Model State Admin. Proc. Act (1961) § 15, 15A U.L.A. 11 (2000).

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4. The Legislature, Not the Court, Should Balance Parties’
Competing Interests.

Although there may be prudential reasons for applying

the same deadline to all requests for judicial review,15 such a

rule may spark the filing of preemptive appeals, thereby wasting

client and court resources. Friends makes a similar argument:

“If the silence of Rule 72 on cross appeals is interpreted as a

denial of the right to file a cross appeal, the result is that

every party in a contested case must file an appeal to protect

itself in case another party files an appeal and does not

include them as a party.” FOM’s position, however, is based on

an unfounded legal conclusion that an appellant’s omission of a

party from the appeal’s case caption or service list precludes

the “omitted” party from participating in the appeal.

In any event, it is within the purview of the

legislature, not the court, to re-examine and address these

competing interests. For example, after the Nebraska Supreme

Court’s ruling in Ahmann, the Nebraska Legislature revised its

APA to expressly “vest in a responding party of record the right

to a cross-appeal against any other party of record,” and

provide the respondent with “thirty days after being served with

15
See, e.g., Ahmann, 755 N.W. 3d at 611–12 (“Applying the same deadline for
petitions and cross-petitions serves to ensure that all the parties affected
by an administrative decision are aware of any challenge to that decision and
receive prompt notice of the issues presented for judicial review.”).

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the summons and petition for review” to serve its cross-appeal.

Neb. Rev. Stat. § 84-917(2)(a) (2009).

Unless the legislature enacts a similar provision,

however, for the reasons already discussed, an “aggrieved

person” seeking judicial review of an administrative decision

under the Hawaiʻi APA must institute review proceedings within

thirty days after service of the final decision and order, as

provided in HRS § 91-14. Accordingly, the circuit court did not

err when it concluded Friends untimely filed its “cross-appeal.”

C. As FOM’s “Cross-Appeal” Was Untimely Filed, the Remaining
Points of Error Need Not Be Reached by the Court

Points of error six and seven concern the circuit

court’s alternative rulings that are contingent on a timely

filed “cross-appeal.” As we affirm the circuit court’s

dismissal of FOM’s “cross-appeal” as untimely, we need not, and

do not, reach these points of error.

Further, Friends concedes that the issue raised in

point of error eight is relevant only “if the case is reversed.”

As we affirm the circuit court’s dismissal of FOM’s “cross-

appeal,” we need not reach point eight.

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V. Conclusion

For the foregoing reasons, we affirm the circuit

court’s dismissal of FOM’s “cross-appeal” as untimely.

Jack Schweigert and /s/ Mark E. Recktenwald
Linda M. B. Paul
for petitioner /s/ Paula A. Nakayama

Gregory W. Kugle and /s/ Sabrina S. McKenna
Matthew T. Evans
for respondent, /s/ Richard W. Pollack
D.R. Horton-Schuler
Homes, LLC /s/ Gary W. B. Chang

David M. Louie, Bryan C. Yee,
and Deborah Day Emerson
for respondent, Office of
Planning, State of Hawaiʻi

David M. Louie, Diane Erickson,
and Patricia Ohara for
respondent, Land Use Commission
of the State of Hawaiʻi

Donna Y. L. Leong and Dawn
Takeuchi Apuna for respondent,
Department of Planning and
Permitting, City and County
of Honolulu

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