The trial court gave judgment for the University on appellant's remaining claims and the Hawaii Supreme Court affirmed. Abramson v. Board of Regents, 56 Haw. 680, 548 P.2d 253 (1976). The University did not appeal the trial court's order dismissing Count III without prejudice to a federal sex discrimination suit.
See Roth, 480 U.S. at 576-78 (holding that due process protections were not required where professor had no legitimate claim to tenure); Perry v. Sindermann, 408 U.S. 593, 599-603 (1972) (holding that internal faculty guide suggesting dismissal would only be for cause created a triable issue of fact as to whether a property interest in employment had been created); see also Blantz v. California Dept. of Corrections, 727 F.3d 917, 922 (9th Cir. 2013) (applying the Roth - Sindermann framework to government contractor and finding no legitimate property interest in continued employment). For purposes of state constitutional protections, Hawaii has adopted the same framework set out in Roth and Sindermann. See Abramson v. Board of Regents, Univ. of Hawaii, 548 P.2d 253, 262 (Haw. 1976) (holding that in the absence of any university rule or policy an instructor had no legitimate claim to continued employment in a tenured position after concluding a probationary period). Lee has failed to demonstrate that her position of employment as Director of NCPDLP/OIA was a position to which she had a legitimate claim of entitlement.
This court has previously declined to extend the protections of HRS § 91-14 to an appeal that did not arise from a "contested" case. Abramson v. Board of Regents, University of Hawaii, 56 Haw. 680, 695, 548 P.2d 253, 263 (1976) (holding that the appellant could not invoke the standards of judicial review of contested cases in HRS § 91-14 unless the appeal arose from a contested case). However, the plaintiff in Abramson argued that she was denied procedural due process rights guaranteed by the Hawai`i Administrative Procedure Act (HAPA); we held that the plaintiff was not entitled to HAPA's procedural due process protections.
Administrative rules, like statutes, have the force and effect of law. State v. Kirn, 70 Haw. 206, 208, 767 P.2d 1238, 1239-40 (1989) (citing Abramson v. Board of Regents, University of Hawaii, 56 Haw. 680, 54 P.2d 253 (1976), and Aguilar v. Hawaii Hous. Auth., 55 Haw. 478, 522 P.2d 1255 (1974)); Beldeviso v. Thompson, 54 Haw. 125, 129, 504 P.2d 1217, 1221 (1972) (citingState v. Kimball, 54 Haw. 83, 503 P.2d 176 (1972)). Kotis has not alleged any infirmity in the promulgation of HAR § 11-175-45(b)(3).
If the statute or rule governing the activity in question does not mandate a hearing prior to the administrative agency's decision-making, the actions of the administrative agency are not "required by law" and do not amount to "a final decision or order in a contested case" from which a direct appeal to circuit court is possible. Kona Old Hawaiian Trails, 69 Haw. at 90, 734 P.2d at 167; see, e.g., State v. Alvey, 67 Haw. 49, 54 n. 4, 678 P.2d 5, 8 n. 4 (1984); Miller v. Department of Transp., 3 Haw. App. 91, 92-93, 641 P.2d 991, 992 (1982); Lono v. Ariyoshi, 63 Haw. 138, 146, 621 P.2d 976, 981 (1981); Tai v. Chang, 58 Haw. 386, 388, 570 P.2d 563, 564 (1977); Abramson v. Board of Regents, 56 Haw. 680, 695, 548 P.2d 253, 254 (1976). In the case at bar, the HHCA contains no provision requiring the Commission to hold a hearing prior to decision-making as to TPAs.
In support of this argument, the University cites cases from other jurisdictions, holding that their respective administrative procedure acts are inapplicable to agency personnel decisions. In Abramson v. Board of Regents, Univ. of Hawaii, 548 P.2d 253 (Hawaii 1976), the plaintiff who was denied tenure and sued asserted, in part, a denial of her rights under the Hawaii APA. Id. at 255.
The illegal act warranting suppression of otherwise admissible evidence can consist of the State's violation of the defendant's constitutional rights, violation of a statute, or as in the instant case, violation of an administrative rule adopted pursuant to HRS Chapter 91, State v.Tengan, 67 Haw. 451, 457 n. 8, 460, 691 P.2d 365, 370 n. 8, 371-72 (1984), since such rules have the force and effect of law. Abramson v. Board of Regents, 56 Haw. 680, 548 P.2d 253 (1976); Aguiar v. Hawaii Hous. Auth., 55 Haw. 478, 522 P.2d 1255 (1974). We therefore hold that § 641-13(7) authorizes appellate jurisdiction to review orders granting pretrial motions to suppress based upon a violation of the State's Administrative Rules.
On the other hand, it has also been held that where there is a three year probationary term it ends automatically and there is no reasonable expectancy of further tenure. Smith v. Green, 86 Wn.2d 363, 367-68, 545 P.2d 550, 553-54 (1976) (probationary faculty appointment was designed to avoid de facto tenure);Abramson v. Board of Regents, 56 Haw. 680, 548 P.2d 253 (1976) (under express language of contract teacher's employment after her maximum probationary year did not result in tenure). Each of these cases, however, construed specific contract or statutory provisions and did not grant or withhold tenure solely on the basis of late notice of non-renewal.
The ultimate "appointing official" at the University is the Board of Regents, but normally tenure and promotion matters are left to the resolution of the President of the University. Abramson v. Board of Regents, University of Hawaii, 56 Haw. 680, 687-90 (1976). We note that in this case, the arbitrator apparently presumed that the President as well as the Chancellor served as mere "rubber stamps" for the lower echelon officials who recommended that tenure be denied the grievant.
In essence, appellant argues that with the existence of these tenure procedures and policies he acquired a protected property interest in them. Appellant relies on three cases to support this claim: Hills v. Meister (1971), 82 N.M. 474, 483 P.2d 1314; Abramson v. Board of Regents University of Hawaii (1976), 56 Haw. 680, 548 P.2d 253; and Ofsevit v. Trustees of the California State University and College, et al. (1978), 21 Cal.3d 763, 148 Cal.Rptr. 1, 582 P.2d 88. These authorities are not persuasive in this instance. Hillis, supra, interpreted the teaching contract between an assistant professor and Eastern New Mexico University.