Bardin v. Planning Department of the County of Kauai

FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-SEP-2023
08:04 AM
Dkt. 124 OP

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

–––O0O–––

ANTHONY S. BARDIN; GREG ALLEN, SR.; GREG ALLEN, JR.;
THOMAS J. BROOKS; JENNIFER S. BROOKS; MICHAEL CHANDLER;
KIRBY B. GUYER; MILTON SEARLES; JOHN R. HOFF TRUST;
LORNA E. HOFF TRUST; MICHELE L. KAISER; TODD SCHRIM;
JOHN WARK; and SHANNON WARK, Appellants-Appellants, v.
PLANNING DEPARTMENT OF THE COUNTY OF KAUA#I/PLANNING
COMMISSION OF THE COUNTY OF KAUA#I, KIMO KEAWE, in is
official capacity as Chairperson of the Planning
Commission, Appellees-Appellees

NO. CAAP-XX-XXXXXXX

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CIVIL NO. 17-1-0181 JKW)

SEPTEMBER 29, 2023

LEONARD, PRESIDING JUDGE, AND WADSWORTH AND McCULLEN, JJ.

OPINION OF THE COURT BY WADSWORTH, J.

This case concerns the selection of a hearing officer
appointed to hear and conduct the contested case proceedings
brought by Appellants-Appellants Anthony S. Bardin (Bardin), Greg
Allen, Sr., Greg Allen, Jr., Thomas J. Brooks, Jennifer S.
Brooks, Michael Chandler, Kirby B. Guyer, Milton Searles, Michael
L. Kaiser, and Todd Schrim (collectively, Appellants)1/ against
Appellee-Appellee Planning Department of the County of Kaua#i
(Planning Department). The proceedings are pending before

1/
On October 28, 2020, we entered an order granting the motion of
Appellants-Appellants John Wark, Shannon Wark, Michael Chandler, John R. Hoff
Trust, and Lorna E. Hoff Trust to dismiss this appeal as to them, with
prejudice.
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Appellee-Appellee Planning Commission of the County of Kaua#i
(Planning Commission). Appellants moved to disqualify the
hearing officer appointed by the Planning Commission based in
part on the alleged appearance of impropriety and bias created by
the method used to select the hearing officer. The Planning
Commission denied Appellants' motions. Appellants then filed
their primary appeal in the Circuit Court of the Fifth Circuit,
which affirmed the Planning Commission's decision.2/
In this secondary appeal, Appellants appeal from the
Circuit Court's Final Judgment (Judgment), entered in favor of
the Planning Department on October 22, 2018. Appellants also
challenge the Circuit Court's Findings of Fact, Conclusions of
Law, and Decision and Order (FOFs/COLs/Order), entered on
August 8, 2018. The FOFs/COLs/Order affirmed the Planning
Commission's Findings of Fact, Conclusions of Law, and Decision
and Order (Planning Commission FOFs/COLs/Order), issued on
December 1, 2017, through Appellee-Appellee Kimo Keawe, in his
official capacity as Chairperson of the Planning Commission.
On appeal, Appellants contend that the Circuit Court
erred in affirming the Planning Commission's decision to deny
Appellants' motions to disqualify the hearing officer.
Appellants argue in part that the selection of the hearing
officer bypassed the public procurement process or any process
designed to ensure fair government conduct, where the law firm
that was hired by the County of Kaua#i (County) to provide
services as a hearing officer, and which was later determined to
have a conflict of interest in providing such services, assigned
the firm's service contracts to the attorney who thereby became
the hearing officer.
We hold that the Circuit Court erred in affirming the
Planning Commission's determinations that: (a) Appellants did
not have standing to challenge the assignment of the service
contracts to the hearing officer; and (b) the Planning Commission
did not have jurisdiction to hear Appellants' challenge.
Appellants challenged the assignment of the service contracts for

2/
The Honorable Kathleen N.A. Watanabe presided.

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failing to follow any process designed to ensure a fair tribunal,
and for allowing a conflicted entity to choose the successor
hearing officer. Appellants' challenge was based on established
standards of just procedure and judicial conduct, grounded in due
process requirements, which apply to administrative adjudicators.
Appellants had standing to move to disqualify the hearing officer
based on these standards, and the Planning Commission had
jurisdiction to hear the motions.
We further hold that the Circuit Court erred in
affirming the Planning Commission's determination that Appellants
failed to meet their burden to prove that the challenged hearing
officer should be disqualified in their contested case
proceedings. It is undisputed that the assignment of the service
contracts to the hearing officer was made by the law firm that
acknowledged having alleged conflicts of interest that prevented
it from acting as a hearing officer for the Planning Commission.
The appearance of justice was not satisfied in these
circumstances by allowing a conflicted entity that could not act
as a hearing officer to choose, or to participate in choosing,
its successor. We also conclude that Appellants' motions to
disqualify the hearing officer were timely.
Accordingly, we vacate the FOFs/COLs/Order and the
Judgment.
I. Background

This case arises out of multiple contested case
proceedings pending before the Planning Commission, each
involving permit applications for transient vacation rentals
(TVR) or homestays denied by the Planning Department, or TVR or
homestay violations issued by the Planning Department. In each
proceeding, the Planning Commission appointed hearing officer
Harlan Kimura (Kimura) to conduct the contested case hearing, and
in each case, the Appellant filed a substantially similar motion
to disqualify Kimura. In their motions, Appellants contended,
among other things, that: (1) Kimura's selection as a hearing
officer was not made in accordance with the Procurement Code,
Hawaii Revised Statutes (HRS) § 103D-304; (2) the fines that
Kimura assesses in contested case hearings are commingled with

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the funds used to pay him; and (3) a hearing officer cannot serve
where there is an appearance of impropriety and bias. Related to
the first contention, certain Appellants specifically challenged
the "ability of the purchasing agency to include an assignment
clause in the contract that bypasses the selection process of
professional services in the Procurement Code . . . [and
a]llow[s] the contract awardee the ability to assign the contract
to any person of its choosing[.]"3/
All of Appellants' motions to disqualify Kimura were
consolidated for hearing before the Planning Commission. The
Planning Commission held a hearing on the motions on December 13,
2016, and May 9, 2017.
On December 1, 2017, the Planning Commission issued the
Planning Commission FOFs/COLs/Order, denying Appellants' motions
to disqualify Kimura. The Planning Commission concluded that:
(1) Appellants "do not have standing to challenge the hearing
officer's contract and the Planning Commission does not have
jurisdiction to hear such a challenge"; (2) Appellants "have not
met their burden to prove that the hearing officer should be
disqualified[,]" because they failed to prove any actual bias or
the appearance of bias or impropriety by the hearing officer
based on the way Kimura was selected or how he was paid; and (3)
Appellants' disqualification motions were untimely "as to those
contested cases that have already commenced." (Formatting
altered.)
On December 28, 2017, Appellants filed a notice of
appeal in the Circuit Court pursuant to HRS § 91-14, appealing
from the Planning Commission FOFs/COLs/Order. On the same date,
Appellants filed a statement of the case, contending, among other
things, that the Planning Commission: (1) "improperly relied on
[HRS] § 103D-701 to conclude that the Appellants do not have

3/
The parties do not dispute that: (1) in 2011 and 2012, pursuant to
the public procurement process, the County entered into two contracts with the
law firm Ayabe, Chong, Nishimoto, Sia & Nakamura ( ACNSN) under which the firm
was to provide professional services to the County as a master/hearing officer
(Contracts); and (2) on April 21, 2015, ACNSN assigned the Contracts to
Kimura, "due to alleged conflicts of interests raised by various parties
engaged in administrative litigation before the Planning Commission as [ACNSN]
has previously defended the County in other matters."

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standing to protest the procurement process of the original
contract[,]" where "Appellants' argument was based on due process
and the appearance of impropriety of the hearings officer that
serves as the adjudicatory body over their contested case
hearings"; (2) "improperly concluded that the Appellants did not
meet their burden to show an appearance of impropriety"; and (3)
"improperly concluded that the Appellants who submitted their
motions to disqualify after their contested cases had commenced
were untimely."
On March 12, 2018, Appellants filed an opening brief in
the Circuit Court, in which they further contended that: (1)
Appellants had standing to move to disqualify Kimura, and the
Planning Commission had jurisdiction to rule on whether Kimura
was fairly appointed, because Appellants' challenge was not to
the original procurement process for the Contracts, but, rather,
to "the unexplained and factually unsupported" assignment of the
Contracts to Kimura; (2) the assignment of the Contracts to
Kimura "bypassed the Procurement Code's process for fair review,
selection, and award of a contract[,]" and provided no assurances
of fair process or that Kimura was qualified for the hearing
officer position; (3) "Kimura has a direct interest in assessing
fines because the fines that he assesses are com[m]ingled in the
General Fund with the funds that are used to pay him as a
hearings officer[,]" creating the appearance of impropriety and
bias; and (4) Appellants timely filed their motions to disqualify
Kimura upon discovery of the appearance of impropriety and bias.
After further briefing and oral argument, on August 8,
2018, the Circuit Court entered its FOFs/COLs/Order, which
affirmed the Planning Commission FOFs/COLs/Order. The Circuit
Court's FOFs stated in relevant part:

13. There was no evidence presented to the Planning
Commission that showed . . . Kimura had any bias
towards Appellants or Appellee.
14. There was no evidence presented to the Planning
Commission that showed . . . Kimura had any monetary
or other incentive to rule in favor of the Appellants
or Appellee.

15. The procurement of . . . Kimura as a hearings officer
did not evidence any bias on his behalf or an

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appearance of impropriety.

The Circuit Court's COLs stated in relevant part:

10. On appeal, Appellants have not shown that the
procurement or assignment of the Hearings Officer . .
. Kimura to Appellants' contested cases creates an
appearance of impropriety.

11. On appeal, Appellants have not shown that the Hearings
Officer . . . Kimura had any incentive to rule in
favor of Appellants or Appellee.
. . . .
13. On appeal, Appellants have not established any errors
of law on behalf of the Planning Commission.

This appeal followed.

II. Discussion

Appellants contend that the Circuit Court erred when
it: (1) "concluded that the assignment of the contracts to
Kimura did not create an appearance of impropriety but did not
make any findings or conclusions regarding the heart of
Appellants' challenge that the assignment of the Hearing Officer
contract violated the Procurement Code"; and (2) "did not address
Appellants' challenge to the com[m]ingling of fines collected and
funds used to pay Kimura and simply concluded that there was no
evidence that Kimura 'had any incentive to rule in favor of
Appellants or Appellee.'"
The Planning Department disputes these contentions and
also argues that Appellants' motions to disqualify Kimura were
untimely.
In this secondary appeal, we apply the standards of HRS
§ 91–14(g)4/ to determine whether the Circuit Court's decision was

4/
HRS § 91-14(g) (Supp. 2022) provides in relevant part:
Upon review of the record, the court may affirm the
decision of the agency or remand the case with instructions
for further proceedings; or it may reverse or modify the
decision and order if the substantial rights of the
petitioners may have been prejudiced because the
administrative findings, conclusions, decisions, or orders
are:

(1) In violation of constitutional or statutory
provisions;
(continued...)

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right or wrong. Mauna Kea Anaina Hou v. Bd. of Land & Nat. Res.,
136 Hawai#i 376, 388, 363 P.3d 224, 236 (2015) (Mauna Kea I)
(citing Korean Buddhist Dae Won Sa Temple of Hawai#i v. Sullivan,
87 Hawai#i 217, 229, 953 P.2d 1315, 1327 (1998)).
We address Appellants' contentions first, before
turning to the Planning Department's timeliness argument.

A. Assignment of Contracts to Kimura

Appellants contend that the Circuit Court erred in
concluding that the assignment of the Contracts to Kimura did not
create an appearance of impropriety. Specifically, Appellants
argue that the Planning Commission erroneously determined that it
had no authority to review the Planning Department decision to
appoint Kimura as the hearing officer. Appellants further argue
that the assignment of the Contracts to Kimura by ACNSN – the
very entity determined to have conflicts of interest that
disabled it from acting as a hearing officer – "bypassed the
process set forth in the Procurement Code" to ensure fair
government conduct and "sidestep[ped] any formal process of
determining whether Kimura was qualified to perform as a Hearing
Officer[.]"
Due process requires "a fair trial in a fair tribunal"
in proceedings before administrative agencies. See Mauna Kea I,
136 Hawai#i at 389, 363 P.3d at 237 (quoting Sifagaloa v. Bd. of
Trs. of Emps.' Ret. Sys., 74 Haw. 181, 189, 840 P.2d 367, 371
(1992)). In this regard, the Rules of Practice and Procedure of
the Kaua#i Planning Commission (2014) (Planning Commission Rules)

4/
(...continued)
(2) In excess of the statutory authority or
jurisdiction of the agency;
(3) Made upon unlawful procedure;

(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable,
probative, and substantial evidence on the whole
record; or

(6) Arbitrary, or capricious, or characterized by
abuse of discretion or clearly unwarranted
exercise of discretion.

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provide that "[i]n all Agency Hearings before the Commission, the
Chair, or one of the Commissioners, or a Hearing Officer duly
appointed and designated shall preside at the hearing." Planning
Commission Rules Rule 1-6-1(a). As applicable here, Rule 1-6-
1(a) required that a Hearing Officer who was "duly appointed and
designated . . . preside at the [Appellants' contested case]
hearing[s]." Id. (emphasis added). "Duly" means "[i]n a proper
manner; in accordance with legal requirements." Black's Law
Dictionary 633 (11th ed. 2019). Thus, the Planning Commission's
rules required that the hearing officer assigned to Appellants'
contested case hearings have been appointed in a proper manner,
in accordance with legal requirements. See Sierra Club v. Castle
& Cooke Homes Haw., Inc., 132 Hawai#i 184, 186, 206, 320 P.3d
849, 851, 871 (2013) (holding that a State Land Use Commission
member that was not properly on the board was disqualified from
participating and voting on land use issues related to a
development project).
It does not appear that any applicable ordinance, rule,
or regulation adopted by the County, the Planning Department or
the Planning Commission governed the selection or appointment of
Kimura as a Planning Commission hearing officer. It is beyond
dispute, however, that the County's procedure for selecting and
appointing Kimura as a hearing officer must at a minimum have
comported with due process requirements.

"There are certain fundamentals of just procedure which are
the same for every type of tribunal and every type of
proceeding." R. Pound, Administrative Law 75 (1942).
"Concededly, a 'fair trial in a fair tribunal is a basic
requirement of due process.' In re Murchison, 349 U.S. 133,
136, 75 S. Ct. 623, 625, 99 L. Ed. 942 (1955). This applies
to administrative agencies which adjudicate as well as to
courts. Gibson v. Berryhill, 411 U.S. 564, 579, 93 S. Ct.
1689, 1698, 36 L. Ed. 2d 488 (1973)." Withrow v. Larkin, 421
U.S. 35, 46–47, 95 S. Ct. 1456, 1463–64, 43 L. Ed. 2d 712
(1975). Of course, "a biased decisionmaker is
constitutionally unacceptable." Id. at 47, 95 S. Ct. at
1464. But "no one would argue seriously that the
disqualification of decisionmakers on grounds of actual bias
prevents unfairness in all cases." State v. Brown, 70 Haw.
459, 467, 776 P.2d 1182, 1187 (1989). So "our system of
justice has always endeavored to prevent even the
probability of unfairness." In re Murchison, supra.

Sifagaloa, 74 Haw. at 189, 840 P.2d at 371 (brackets omitted)
(quoting Sussel v. City and Cnty. of Honolulu Civil Serv. Comm'n,

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71 Haw. 101, 107, 784 P.2d 867, 870 (1989)).
Here, Appellants contend that the assignment of the
Contracts to Kimura by ACNSN did not follow the process set forth
in the Procurement Code or any process designed to ensure a fair
and qualified hearing officer. As a result, Appellants contend,
they were left without the assurance that their hearing officer
was fairly selected and duly appointed and that they would
receive a fair trial in a fair tribunal.
It appears that the Planning Commission did not
directly address these arguments, though it did conclude that
Appellants did not meet their burden to prove that Kimura should
be disqualified. Specifically, the Planning Commission
concluded:

A. Petitioners Do Not Have Standing To Challenge
The Hearing Officer's Contract And The Planning
Commission Does Not Have Jurisdiction To Hear
Such A Challenge.
. . . .

3. The only parties who can challenge the
procurement process are: "[a]ny actual or prospective
bidder, offeror, or contractor who is agg1ieved in
connection with the solicitation or award of a contract."
HRS § 103D-701(a).

. . . .

7. As Petitioners are not "bidder[s], offeror[s],
or contractor[s]" in relation to the Hearing Officer's
contract, they have no ability to challenge the contract or
the procurement process that resulted in the contract.

8. As the Commission is not the chief procurement
officer or designee, it has no jurisdiction over a challenge
to a government contract.

9. Based on HRS § 103D-70l(a), the Commission
cannot consider Petitioners' allegations in regards to the
validity of the contract that "Mr. Kimura was not on the
list of qualified persons as required by H.R.S. 103D-304
when he was assigned a contract to be a Hearing Officer."

B. Petitioners Have Not Met Their Burden To Prove
That The Hearing Officer Should Be Disqualified.
. . . .
10. Even if the Commission were to consider the
allegation that, "Mr. Kimura was not on the list of
qualified persons as required by H.R.S. 103D-304 when he was
assigned a contract to be a Hearing Officer" for the
purposes of evidencing actual bias or the appearance of bias
or impropriety, Petitioners failed to prove both: (1) that
the Procurement Code actually requires that Kimura be on
such list for the purposes of an assignment; or (2) that

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this amounts to actual bias or an appearance of bias or
impropriety by the Hearing Officer against Petitioners or
for the Department.

In turn, the Circuit Court ruled:

CONCLUSIONS OF LAW

. . . .
10. On appeal, Appellants have not shown that the
procurement or assignment of the Hearings Officer
. . . Kimura to Appellants' contested cases creates an
appearance of impropriety.
. . . .

13. On appeal, Appellants have not established any errors
of law on behalf of the Planning Commission.

We conclude that the Planning Commission erred in
determining that: (a) Appellants did not have standing to
challenge the assignment of the Contracts to Kimura; and (b) the
Planning Commission did not have jurisdiction to hear Appellants'
challenge. Further, the Circuit Court erred in COL 13 to the
extent it determined these were not errors of law by the Planning
Commission. Appellants did not challenge the Contracts
themselves for alleged violations of the Procurement Code.
Rather, Appellants challenged the assignment of the Contracts to
Kimura for bypassing the process set forth in the Procurement
Code to ensure fair process and qualified applicants, for failing
to follow any other process designed to ensure a fair tribunal,
and for allowing a conflicted entity to choose the successor
hearing officer. Appellants' challenge was based on established
standards of just procedure and judicial conduct, grounded in due
process requirements, which apply to administrative adjudicators.
See In re Conservation Dist. Use Application HA-3568, 143 Hawai#i
379, 392, 431 P.3d 752, 765 (2018) (Mauna Kea II) ("With respect
to the applicable law, the [Board of Land and Natural Resources
(BLNR)] properly concluded that 'an administrative adjudicator
should [not] be allowed to sit with impunity in a case where the
circumstances fairly give rise to an appearance of impropriety
and reasonably cast suspicion on [the adjudicator's]
impartiality[,] Sussel, 71 Haw. at 109, 784 P.2d at 871 . . . and
that administrative adjudicators are held to the same standard as

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judges.") Appellants had standing to move to disqualify Kimura
based on these standards, and the Planning Commission had
jurisdiction to hear the motions. See id. (ruling there was no
error in BLNR's decision to deny appellants' motion to disqualify
hearing officer based on alleged conflict of interest creating
the appearance of impropriety).
We further conclude that the Planning Commission erred
in determining that Appellants did not meet their burden to prove
that Kimura should be disqualified as the hearing officer in
their contested case proceedings. The Circuit Court similarly
erred in COLs 10 and 13. It is undisputed that the assignment of
the Contracts to Kimura was made by ACNSN, which acknowledged
having alleged conflicts of interest that prevented it from
acting as a hearing officer for the Planning Commission.5/ The
appearance of justice was not satisfied in these circumstances by
allowing a conflicted entity that could not act as a hearing
officer to choose, or to participate in choosing, its successor.
See Ferry v. State, 267 S.E.2d 1, 2 (Ga. 1980) ("[T]here is a
potential for reducing public confidence in the judiciary when a
disqualified judge is allowed to name a successor judge
. . . ."). In other words, the circumstances of the assignment
could cause a reasonable person to question Kimura's
impartiality.6/ See Mauna Kea II, 143 Hawai#i at 392, 431 P.3d at
765; Hawai#i Revised Code of Judicial Conduct Rule 2.11(a) (2014)
(requiring disqualification or recusal of a judge if "the judge's
impartiality might reasonably be questioned" (asterisk omitted)).
Because we conclude that the assignment of the
Contracts to Kimura by ACNSN failed to satisfy the appearance of
justice - and the Planning Commission thus erred in determining

5/
Indeed, the Planning Department asserts in its answering brief
that "[w]hen a conflict of interest arose, [ACNSN] assigned the contract to a
neutral arbiter."
6/
We do not mean to suggest there is any evidence in the record that
Kimura was actually biased by virtue of the assignment of the Contracts by
ACSNSN. We have found none. The supreme court has observed, however, that
the "stringent rule [that justice must be fair and also appear to be fair] may
sometimes bar trial by judges who have no actual bias and who would do their
very best to weigh the scales of justice equally between contending parties."
Mauna Kea I, 136 Hawai#i at 389, 363 P.3d at 237 (quoting In re Murchison, 349
U.S. 133, 136 (1955)).

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that Appellants did not meet their burden to prove that Kimura
should be disqualified – we need not reach Appellants' contention
based on the alleged commingling of fines collected and funds
used to pay Kimura.

B. Timeliness of the Motions to Disqualify

The Planning Department contends that Appellants'
motions to disqualify Kimura were untimely, because Appellants
had constructive notice through their counsel that Kimura was
assigned to Bardin's case on July 29, 2015.
In response, Appellants contend that the Planning
Department waived its waiver argument, because the Circuit Court
did not rule that any of the motions to disqualify Kimura were
untimely, and the Planning Department did not appeal from the
Judgment. Appellants argue in the alternative that their motions
were timely, because they were filed as soon as the disqualifying
facts became known, and before Kimura rendered any substantive
decisions in any of the cases.
On the timeliness issue, the Planning Commission COLs
stated in relevant part:

C. Petitioners' Motion Is Further Denied As
Untimely As To Those Contested Cases That Have
Already Commenced.

1. As to those contested cases that have already
commenced, the Commission denies the Motions on the
additional grounds that the Motions are untimely.

2. A party asserting grounds for disqualification
must timely present the objection, either before the
commencement of the proceeding, or as soon as the
disqualifying facts become known." In re Water Use Permit
Applications, 94 Hawai#i[] 97, 122 (200[0]).
i. Petitioners Had Constructive Knowledge Of
The Hearing Officer's Procurement
1. The Masters/Hearing Officer Contract, Contract
No. 8741, between the County of Kaua#i and Ayabe, Chong,
Nishimoto, Sia, & Nakamura, a Limited Liability Law
Partnership, has been a matter of public record since being
stored in the Kaua#i County Contract Repository on July 25,
2012.

2. Similarly, the Hearing Officers procurement has
been a matter of public record since the filing of the
Assignment of Contract 8741, in the Contract Repository on
May 11, 2015.

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3. Consequently, Petitioners had constructive
knowledge of Contract 8741 since July of 2012, and of its
assignment since May 11, 2015.

We note that the Planning Commission FOFs/COLs/Order
did not identify which Appellants' contested cases had already
commenced when their respective motions to disqualify were filed.
Further, the record on appeal does not appear to contain this
information as to all Appellants.7/
Appellants contended in their primary appeal that the
Planning Commission erred in concluding that the disqualification
motions filed by those Appellants whose contested cases had
already commenced were untimely. In response, the Planning
Department asserted generally that "Appellants' Recusal Motions"
were untimely.
The Circuit Court noted in FOF 9 that Appellants had
argued in part that "the Planning Commission erred when it
concluded that some of the Motions were untimely even though they
were submitted when the potential for bias was first discovered."
However, the Circuit Court did not otherwise address the
timeliness issue in its FOFs/COLs/Order. It did, however,
conclude in COL 13 that "[o]n appeal, Appellants have not
established any errors of law on behalf of the Planning
Commission." Accordingly, it does not appear that the Planning
Department waived its waiver argument.
The Hawai#i Supreme Court has held that "[a] party
asserting grounds for disqualification must timely present the
objection, either before the commencement of the proceeding or as
soon as the disqualifying facts become known." In re Water Use
Permit Applications, 94 Hawai#i at 122, 9 P.3d at 434. In
applying this standard, the supreme court has further stated in
part:

"Litigants cannot take the heads-I-win-tails-you-lose
position of waiting to see whether they win and if they lose
moving to disqualify a judge who voted against them."

7/
The parties' briefing appears to indicate that at least Bardin's
contested case hearing had already commenced when he filed his motion to
disqualify Kimura. For example, Appellants state in their reply brief that
Bardin filed his disqualification motion "at the close of the evidentiary
portion of his contested case hearing, but before post-hearing briefing,
proposed findings and conclusions, exceptions, or decision-making."

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Schurz Communications, Inc. v. Federal Communications
Comm'n, 982 F.2d 1057, 1060 (7th Cir.1993). "The
requirement of timeliness prohibits knowing concealment of
an ethical issue for strategic purposes." Id. (citation and
internal quotation marks omitted).

Office of Disciplinary Counsel v. Au, 107 Hawai#i 327, 339, 113
P.3d 203, 215 (2005); see In re Estate of Damon, 119 Hawai#i 500,
511-12, 199 P.3d 89, 100-01 (2008) (concluding that "the facts of
this case do not indicate that the timing of [the appellant's]
objection constituted 'a matter of deliberate and strategic
choice[,]'" and "[i]n light of the procedural history of this
case, we cannot say that 'knowing concealment' occurred" (citing
and quoting In re Water Use Permit Applications, 94 Hawai#i at
123, 9 P.3d at 435, and Au, 107 Hawai#i at 339, 113 P.3d at
215)).
Here, there is no evidence in the record that
Appellants timed their motions to disqualify Kimura as "a matter
of deliberate and strategic choice" or that "knowing concealment"
occurred. Estate of Damon, 119 Hawai#i at 511-12, 119 P.3d at
100-01. Even assuming arguendo that the April 2015 assignment of
the Contracts to Kimura was sufficient to notify potential
litigants before the Planning Commission of "the disqualifying
facts" related to Kimura, the Planning Commission's FOFs do not
indicate when Kimura was actually assigned to each of the
Appellants' cases, when their respective disqualification motions
were filed in relation to Kimura's assignments, and what, if any,
proceedings had occurred in each of the Appellants' cases when
their respective disqualification motions were filed. Moreover,
Appellants maintained below that the disqualification motions
were filed before the commencement of their respective contested
cases or as soon as the disqualifying facts related to Kimura
became known, and there appears to be no dispute that the motions
were filed before Kimura entered any substantive decisions in any
of the cases. The Planning Commission's conclusion that some of
the motions were untimely is thus not supported by any specific
findings of fact or substantial evidence in the record. Indeed,
the "constructive knowledge" standard applied by the Planning
Commission is inconsistent with the "knowing concealment"
standard applied by the supreme court in Au and Estate of Damon.

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FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

See, e.g., Au, 107 Hawai#i at 339, 113 P.3d at 215 (concluding
that the appellant's motion to disqualify the hearing committee
chair was untimely where it appeared that the appellant
"deliberately refrained from raising the issue of [the chair's]
conflict of interest in the disciplinary proceedings prior to the
evidentiary hearings, instead waiting to raise the conflict of
interest issue only after [the chair] indicated that the hearing
committee was probably going to recommend a disciplinary sanction
against [the appellant].")
Accordingly, we conclude that the Planning Commission
erred in determining that the disqualification motions filed by
those Appellants whose contested cases had already commenced were
untimely. We further conclude that the Circuit Court erred in
COL 13 to the extent it determined this was not an error of law
by the Planning Commission.

III. Conclusion

For the reasons discussed above, we vacate the
August 8, 2018 Findings of Fact, Conclusions of Law, and Decision
and Order, and the October 22, 2018 Final Judgment, entered by
the Circuit Court of the Fifth Circuit. The matter is remanded
to the Planning Commission, so that Appellants' contested case
hearings can be conducted before the Planning Commission or a
new, duly appointed hearing officer, and/or for further
proceedings consistent with this Opinion.

/s/ Katherine G. Leonard
Presiding Judge

/s/ Clyde J. Wadsworth
Associate Judge

/s/ Sonja M.P. McCullen
Associate Judge

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