The Thirty-Meter Telescope (TMT) proceedings are rapidly headed in a downward spiral, but there is an opportunity to correct this situation.
In May 2016, the Legislature approved a new law (House Bill 1581) that authorizes a court to appoint a master when it remands a case to an agency for the purpose of conducting a contested case hearing. A master is usually an attorney or a retired judge who serves as an arm of the judge. The master is tasked with overseeing complex or time-consuming matters, settling conflicting legal and evidentiary issues, and ensuring that the judge’s instructions or orders are met.
The Legislature approved HB 1581 because it believes that our courts have a responsibility to ensure that disputes directed to contested case hearings are decided on the merits in a timely manner. Without supervision, contested case hearing decisions will undoubtedly be challenged and re-challenged particularly on procedural grounds. This will lead to situations where cases languish for years without resolution and without ever reaching the merits.
The TMT case is one example. After the Hawaii Supreme Court ordered that a new hearing be conducted due to a procedural violation, it appears that proper procedure or the lack thereof may again dictate its outcome. The new contested case hearing currently consists of 24 parties, four sets of attorneys, 93 witnesses, and over 500 exhibits. The proceedings have already been subjected to approximately seven appeals; seven motions to disqualify the Hearings Officer, Attorney General, attorneys and other parties; and 21 motions to continue or modify the hearing schedule. Also, only one party has presented its case since the hearing began in October; 23 have yet to complete their presentations.
The master would not take the place of the current hearings officer. Instead, the two will work in tandem to resolve legal questions and to ensure that procedures are fair and provide all parties with an ample opportunity to present their cases. This will provide certainty, both for the parties and the judge. The parties will know the ground rules and the judge can be assured that decisions made by the master and hearings officer are impartial and well-reasoned.
Once the administrative hearing is completed, the parties will still have a legal right to appeal the final decision to the Hawaii Supreme Court. The involvement of a master will ensure that appeals focus on substantive issues, and not procedural defects. One can question whether justice is really being served when cases are handled like ping pong balls and are remanded over and over again on allegations of procedural errors.
Reasonable people will agree to disagree on whether TMT is appropriate for Hawaii. But the ultimate decision on whether TMT should be approved or not must be made on the merits and within a reasonable period of time. The Hawaii Supreme Court can help meet this objective through the immediate appointment of a master to oversee this case.