Horner v. CRIMINAL INJURIES COMPENSATION COM'N

506 P.2d 444 (1973)

Mary P. HORNER, Individually and as next friend for Allison K. Horner and Stacy P. Horner, minors, and Margaret A. A. Horner, Petitioners, v. CRIMINAL INJURIES COMPENSATION COMMISSION of the State of Hawaii et al., Respondents.

No. 5418.

Supreme Court of Hawaii.

February 16, 1973.

Gene Bridges, Honolulu, for petitioners.

Olen E. Leonard, Jr., Deputy Atty. Gen., State of Hawaii (George Pai, Atty. Gen., Honolulu, with him on the brief), for respondents.

Before RICHARDSON, C.J., and MARUMOTO, ABE, LEVINSON and KOBAYASHI, JJ.

PER CURIAM.

Petitioners are claimants under HRS § 351, a statute enacted to aid victims of certain crimes by providing compensation to victims, or dependents of deceased victims, of crimes enumerated therein, among which are manslaughter, aggravated assault or battery, or intermediate assault or battery. The statute is administered by Criminal Injuries Compensation Commission appointed pursuant thereto.

Petitioners filed their claim for compensation with the commission, alleging that they are dependents of Roy Horner, who was killed in an automobile accident on Molokai on July 3, 1970, under circumstances which brought his death within the purview of the statute.

The commission held a hearing on the petition on August 31, 1972, and denied *445 the same on November 6, 1972, in a letter which stated: "Based upon the records filed in connection with this application, it is the decision of the Commission that the occurrence causing the death of the victim, Roy Horner, was an automobile accident and not a crime enumerated in the statute."

The decision was not accompanied by separate findings of fact and conclusions of law.

On December 5, 1972, petitioners' attorney filed with the commission a request for compliance with Hawaii Administrative Procedure Act, attaching thereto proposed findings of fact, so that petitioners might appeal the decision to this court.

In answer to the request, the executive secretary of the commission wrote to petitioners' attorney on December 15, 1972, advising him to contact deputy attorney general Olen Leonard, to whom the matter had been referred.

Petitioners' attorney received the letter of the executive secretary of the commission on December 18, 1972. On the following day, petitioners' attorney contacted the deputy attorney general, and was orally informed by the latter that the commission would take no action on the request inasmuch as it had no obligation to comply with the administrative procedure act.

On January 13, 1973, petitioners filed their notice of appeal to this court.

HRS § 351-17(b) provides that persons aggrieved by a decision of the commission have a right of appeal to this court on the sole ground that the decision was in excess of the commission's authority or jurisdiction, provided the appeal is filed within thirty days after service of an original or a certified copy of the decision.

We think that the request of petitioners' attorney for compliance with the administrative procedure act suspended the time for the taking of an appeal in this case, that such time began running from the day that the deputy attorney general orally informed petitioners' attorney that the commission would take no action on the request, and that the appeal is properly before this court inasmuch as it was taken within thirty days after petitioners' attorney was so informed.[1]

The proceeding presently before us has been filed by petitioners, and prays for a writ of mandamus directing the commission to rule upon the proposed findings of fact served on December 5, 1972, and render a decision in writing accompanied by separate findings of fact and conclusions of law, all of which shall be submitted as a part of the record on appeal previously designated by petitioners and filed with the commission.

Under HRS § 602-5, this court, in aid of its appellate jurisdiction, may issue writ of mandamus necessary or proper to the complete exercise of such jurisdiction.

Petitioners' case before the commission was a "contested case", as that term is defined in HRS § 91-1(5).

Under HRS § 91-12, every decision adverse to a party to the proceeding in a contested case is required to be in writing, accompanied by separate findings of fact and conclusions of law, and if any party has filed proposed findings of fact, the agency is required to incorporate in its decision a ruling upon each proposed finding.

The writ of mandamus prayed for in the petition will be issued upon presentation. In this case, findings of fact and conclusions of law are not only required by the statute, but are necessary, or at least proper, to the complete exercise of our appellate jurisdiction.

[1] Strictly, the answer of the commission, through the deputy attorney general, to the request of petitioners' attorney should have been in writing, but we waive that technicality inasmuch as insistence thereon serves no purpose other than to delay the appeal of this case.