In Hawaii Home Infusion Assoc. v. Befitel, (No. 27256, Apr. 16, 2007), the Hawaii Supreme Court held that the venue provisions in the declaratory judgment section of the Hawaii Administrative Procedures Act, Haw. Rev. Stat. § 91-7, are jurisdictional, and such actions must be brought in the judicial circuit in which the petitioner is domiciled.
The critical language is set forth in the statute, which allows “any interested person” to seek a judicial declaration that an agency’s rules are illegal:
§ 91-7 Declaratory judgment on validity ofrules. (a) Any interested person may obtain a judicial declaration as tothe validity of an agency rule as provided in subsection (b) herein by bringingan action against the agency in the circuit court of the county in whichpetitioner resides or has its principal place of business. The action may bemaintained whether or not petitioner has first requested the agency to passupon the validity of the rule in question.
(b) The court shall declare the rule invalidif it finds that it violates constitutional or statutory provisions, or exceedsthe statutory authority of the agency, or was adopted without compliance withstatutory rulemaking procedures.
The Court held that this statute is mandatory and the petitioner must bring the action in the circuit in which she resides or, if a business, has its principal place of business, despite the “may obtain” language in the first part of the sentence (slip op. at 8-9):
Admittedly, the legislature could have drafted the county rule using the word “shall” rather than “may,” so as to make its mandatory jurisdictional effect clearer. Nevertheless, we believe that “may,” in the context of the county rule, implies that bringing a declaratory action in the plaintiff’s home forum is an alternative to (1) seeking injunctive or monetary relief or foregoing litigation altogether, not (2) seeking declaratory judgment, but in another venue.
This decision is important for property owners for a couple of reasons.
First, section 91-7 is an often overlooked tool when an agency’s rules are alleged to exceed the scope of its delegated authority, superior state law, or the constitution; the decision confirms that legal action under 91-7 must be brought in the plaintiff/petitioner’s county of residence. The HHIA case involved an action against a state agency, but the court’s holding applies with equal force to actions against county agencies. For example, if the rules of an agency of the County of Maui are alleged to be illegal (for the standard, see subsection (b) of section 91-7), “any interested person” may seek a judicial declaration to that effect, and if that person resides in Honolulu, the First Circuit has exclusive jurisdiction, and the County of Maui must defend in Honolulu.
Second, the Court held that in 91-7 actions, the question of venue goes to subject matter jurisdiction, and thus may be raised at any time, and is not waiveable.