vs.
BOARD OF MEDICAL EXAMINERS, Petitioner-Appellee
December 11, 1998 order revoking Appellant's license to practice medicine. On appeal, Appellant argues that the circuit court erred by affirming the Board's decision inasmuch as: (1) the Board erred by reversing the hearings officer's recommended order and by rejecting the hearings officer's findings of fact and fact-based conclusions of law; (2) the Board's findings of fact were clearly erroneous and unsupported by reliable, probative, and substantial evidence in the record; (3) the Board erred by overruling the hearings officer's decision to exclude tapes and transcripts of tapes of a telephone conversation between the first complaining witness and Appellant; (4) the hearings officer erred by denying Appellant's motion to dismiss count two based on the doctrine of laches; (5) the hearings officer erred by permitting the second and third complaining witnesses to testify by telephone; (6) the Board erred by reversing the hearings officer's recommended order and by rejecting his findings of fact and fact-based conclusions of law in count three based upon the third complaining witness' allegations; (7) the Board erred by applying a preponderance of the evidence standard as the quantum of proof by which the Regulated Industries Complaints Office had to prove the allegations in a medical license revocation proceeding; (8) the Board erred by failing to provide Appellant with a copy of its proposed final decision and order, thus depriving Appellant of the opportunity to file exceptions and to request argument; (9) the Board's decision was procedurally defective inasmuch as three of the Board's members had not heard the hearings officer's summary of the evidence and counsel's arguments before the Board, and the record indicates that two of those three members may not have listened to the tapes of the hearing or read the record; (10) the Board was not impartial; (11) the Board erred by failing to make its decision within a reasonable time; and (12) the court did not permit Appellant to question members of the Board in order to establish that a majority had not listened to the tapes of the hearing and read the entire record prior to approving the Board's decision.
Upon carefully reviewing the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised, we hold that the Board erred by failing to provide Appellant with a copy of its proposed final decision and order. See Hawai`i Revised Statutes § 91-11 (1993); (2) Application of Oahu Terminal Serv., Inc., 52 Haw. 221, 224, 473 P.2d 573, 574 (1970) ("The Hawaii act makes the presentation of a proposal for decision mandatory, where the agency officials have not heard and examined all of the evidence.") (emphasis in original); Application of Terminal Transp., Inc., 54 Haw. 134, 139, 504 P.2d 1214, 1217 (1972) ("A fundamental reason for the enactment of the Hawaii Administrative Procedure Act was to insure fairness and impartiality in administrative proceedings. Fairness and impartiality cannot be insured when an administrative agency such as the Public Utilities Commission consistently refuses to abide the clear mandates of the statute.").
Inasmuch as the foregoing issue is dispositive, we do not reach the merits of Appellant's remaining eleven points of error. Therefore,
IT IS HEREBY ORDERED that the judgment from which the appeal is taken is vacated and the case remanded for further proceedings consistent with HRS § 91-11.
DATED: Honolulu, Hawai`i, April 12, 2006.
On the briefs:
1. The Honorable Eden Elizabeth Hifo presided.
2. Hawai`i Revised Statutes § 91-11 states, in its entirety, the following: