HAR §12-53-23. Motion for summary decision

(a) Any party may, at least thirty days before the date fixed for any hearing under subchapter 3 of this chapter, move with or without supporting affidavits for a summary decision on §12-53 12 all or any part of the proceeding. Any other party may, within ten days after service of the motion, serve opposing affidavits or countermove for summary decision. The presiding hearing examiner may, at his or her discretion, set the matter for argument and call for the submission of briefs. (b) The filing of any documents pursuant to subsection (a) above shall be with the hearing examiner, and copies of any documents shall be served in accordance with section 12-53-13. (c) The hearing examiner may grant the motion pursuant to section 12- 53-24 if the pleadings, affidavits, material obtained by discovery or otherwise obtained, or matters officially noticed show that there is no genuine issue as to any material fact and that a party is entitled to summary decision. The hearing examiner may deny the motion whenever the moving party denies access to information by means of discovery to a party opposing the motion. (d) Affidavits shall set forth the facts as would be admissible in evidence in a proceeding under chapter 91, HRS, and shall show affirmatively that the affiant is competent to testify. When a motion for summary decision is made and supported as provided in this section a party opposing the motion may not rest upon the mere allegations or denials of his or her pleading but shall respond by setting forth specific facts showing that there is a genuine issue of fact for the hearing. (e) Should it appear from the affidavits of a party opposing the motion that, for reasons stated, facts essential to justify the opposition cannot be presented, the hearing examiner may deny the motion for summary decision, order a continuance to permit affidavits to be obtained or discovery to be had, or make another order. (f) The denial of all or any part of a motion for summary decision by the hearing examiner shall not be subject to interlocutory appeal to the director unless the hearing examiner certifies in writing that the ruling involves an important question of law or policy as to which there is substantial ground for difference of opinion and that an immediate appeal from the ruling may materially advance the ultimate termination of the proceeding. The allowance of an interlocutory appeal shall not stay the proceeding before the hearing examiner unless the director, or designee, shall so order. [Eff. 7/12/82; am 8/15/87] (Auth: HRS §396-4) (Imp: HRS §396-4)