Kaleikini v. Yoshioka. , 129 Haw. 454 ( 2013 )

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Electronically Filed
Supreme Court
SCAP-11-0000611
02-MAY-2013
09:24 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
PAULETTE KA#ANOHIOKALANI KALEIKINI,
Petitioner/Plaintiff-Appellant,
vs.
WAYNE YOSHIOKA, in his official capacity as Director of the City
and County of Honolulu’s Department of Transportation Services;
CITY AND COUNTY OF HONOLULU; HONOLULU CITY COUNCIL; KIRK
CALDWELL, in his official capacity as Mayor; CITY AND COUNTY OF
HONOLULU DEPARTMENT OF TRANSPORTATION SERVICES; CITY AND COUNTY
OF HONOLULU DEPARTMENT OF PLANNING AND PERMITTING; WILLIAM J.
AILA, JR., in his official capacity as Chairperson of the Board
of Land and Natural Resources and state historic preservation
officer; PUA#ALAOKALANI AIU, in her official capacity as
administrator of the State Historic Preservation Division;
BOARD OF LAND AND NATURAL RESOURCES; DEPARTMENT OF LAND AND
NATURAL RESOURCES; NEIL ABERCROMBIE, in his official
capacity as Governor; and O#AHU ISLAND BURIAL COUNCIL,
Respondents/Defendants-Appellees.
NO. SCAP-11-0000611
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 11-1-0206-01)
MAY 2, 2013
RECKTENWALD, C.J., NAKAYAMA, AND MCKENNA, JJ., CIRCUIT
JUDGE BROWNING, IN PLACE OF ACOBA, J., RECUSED, AND
CIRCUIT JUDGE TO#OTO#O, IN PLACE OF DUFFY, J., RECUSED
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OPINION OF THE COURT BY RECKTENWALD, C.J.
Paulette Ka#anohiokalani Kaleikini requests that this
court award $255,158.00 in attorney’s fees and $2,510.24 in costs
against City and State defendants1 for work performed in the
trial court and on appeal in relation to Kaleikini v. Yoshioka,
128 Hawai#i 53, 283 P.3d 60 (2012). For the reasons set forth
below, we grant in part and deny in part Kaleikini’s request for
fees and costs.
I. Background
A. Underlying appeal
The relevant factual background is set forth in this
court’s published opinion:
Kaleikini brought this suit against the City and
County of Honolulu and the State of Hawai#i,
challenging the approval of the Honolulu High-Capacity
Transit Corridor Project (rail project or project).
The rail project involves the construction of an
approximately 20-mile fixed guideway rail system from
West O#ahu to Ala Moana Center. Construction on the
1
The City defendants are: Wayne Yoshioka, in his official capacity
as Director of the City and County of Honolulu’s Department of Transportation
Services; the City and County of Honolulu; the Honolulu City Council; Peter
Carlisle, in his official capacity as Mayor of the City and County of
Honolulu; the City and County of Honolulu Department of Transportation
Services; and the City and County of Honolulu Department of Planning and
Permitting. See Kaleikini v. Yoshioka, 128 Hawai#i 53, 56 n.1, 283 P.3d 60,
63 n.1 (2012). Because Peter Carlisle was sued in his official capacity, Kirk
Caldwell was automatically substituted in his place as respondent/defendant-
appellee. Hawai#i Rules of Appellate Procedure (HRAP) Rule 43(c)(1) (2012).
The State defendants are: William J. Aila, Jr., in his official
capacity as Chairperson of the Board of Land and Natural Resources (BLNR) and
state historic preservation officer; Pua#alaokalani Aiu, in her official
capacity as administrator of the State Historic Preservation Division (SHPD);
the BLNR; the Department of Land and Natural Resources (DLNR); Neil
Abercrombie, in his official capacity as Governor of the State of Hawai#i; and
the O#ahu Island Burial Council (OIBC). However, Kaleikini explained in her
complaint that the OIBC was named as “an interested party,” whose interests
were “more properly aligned with [Kaleikini].” Accordingly, reference to the
State in this opinion does not include the OIBC. See id. at 56 n.2, 283 P.3d
at 63 n.2.
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rail project is planned to take place in four phases
. . . . It is undisputed that the rail project has a
“high” likelihood of having a potential effect on
archeological resources in certain areas of Phase 4,
which includes Kaka#ako.
Kaleikini argued that the rail project should be
enjoined until an archaeological inventory survey,
which identifies and documents archaeological historic
properties and burial sites in the project area, is
completed for all four phases of the project. More
specifically, Kaleikini argued that Hawai#i Revised
Statutes chapters 6E, 343, and 205A, and their
implementing rules, require that an archaeological
inventory survey be completed prior to any approval or
commencement of the project. Kaleikini asserted that
the failure to complete an archaeological inventory
survey prior to the start of construction jeopardized
the integrity of native Hawaiian burial sites by
foreclosing options such as not building the rail,
changing its route, or using a technology that would
have less impact on any sites.
The City moved to dismiss Kaleikini’s complaint
and/or for summary judgment, and the State joined in
the motion. The City acknowledged that an
archaeological inventory survey was required for each
phase of the rail project. However, . . . . the City
and State contended that as long as an archeological
inventory survey had been completed for a particular
phase, construction could begin on that part of the
project even if the surveys for the other phases had
not yet been completed.
Id. at 56-57, 283 P.3d at 63-64 (footnotes omitted).
The circuit court granted summary judgment in favor of
the City and State on all of Kaleikini’s claims. Id. at 57, 283
P.3d at 64. Kaleikini appealed, and this court held that “the
SHPD failed to follow its own rules when it concurred in the rail
project prior to the completion of an archaeological inventory
survey for the entire project”:
In sum, the SHPD failed to comply with HRS
chapter 6E and its implementing rules when it
concurred in the rail project prior to the completion
of the required archaeological inventory survey for
the entire project. The City similarly failed to
comply with HRS chapter 6E and its implementing rules
by granting a special management area permit for the
rail project and by commencing construction prior to
the completion of the historic preservation review
process.
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Id. at 57, 66, 283 P.3d at 64, 73.
Accordingly, this court vacated the circuit court’s
judgment on Counts 1 through 4 of Kaleikini’s complaint, which
challenged the rail project under HRS chapter 6E, and remanded
for further proceedings. Id.
B. Request for attorney’s fees and costs
Kaleikini timely filed a request for attorney’s fees
and costs. Kaleikini requests costs pursuant to HRAP Rule 39,2
2
HRAP Rule 39 (2012) provides, in pertinent part:
(a) Civil Costs; To Whom Allowed. Except in
criminal cases or as otherwise provided by law, if an
appeal or petition is dismissed, costs shall be taxed
against the appellant or petitioner upon proper
application unless otherwise agreed by the parties or
ordered by the appellate court; if a judgment is
affirmed or a petition denied, costs shall be taxed
against the appellant or petitioner unless otherwise
ordered; if a judgment is reversed or a petition
granted, costs shall be taxed against the appellee or
the respondent unless otherwise ordered; if a judgment
is affirmed in part and reversed in part, or is
vacated, or a petition granted in part and denied in
part, the costs shall be allowed only as ordered by
the appellate court. If the side against whom costs
are assessed has multiple parties, the appellate court
may apportion the assessment or impose it jointly and
severally.
(b) Costs For and Against the State of Hawai#i.
In cases involving the State of Hawai#i or an agency
or officer thereof, if an award of costs against the
State is authorized by law, costs shall be awarded in
accordance with the provisions of this rule; otherwise
costs shall not be awarded for or against the State of
Hawai#i, its agencies, or its officers acting in their
official capacities.
(c) Costs Defined. Costs in the appellate courts
are defined as: (1) the cost of the original and one
copy of the reporter’s transcripts if necessary for
the determination of the appeal; (2) the premiums paid
for supersedeas bonds or other bonds to preserve
rights pending appeal; (3) the fee for filing the
appeal; (4) the cost of printing or otherwise
producing necessary copies of briefs and appendices,
provided that copying costs shall not exceed 20¢ per
page; (5) necessary postage, cost of facsimiles,
(continued...)
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Hawai#i Rules of Civil Procedure (HRCP) Rule 54(d),3 and HRS
§ 607-24.4 Specifically, she requests costs in the amount of
$2,510.24, which includes both trial court and appellate costs.
Alternatively, she requests costs in the amount of $343.00 for
the appeal only.
Kaleikini also requests attorney’s fees pursuant to the
private attorney general doctrine, in relation to work performed
2
(...continued)
intrastate travel, long distance telephone charges;
and (6) any other costs authorized by statute or rule.
3
HRCP Rule 54(d) (2011) provides:
(d) Costs; attorneys’ fees.
(1) Costs other than attorneys’ fees. Except
when express provision therefor is made either in a
statute or in these rules, costs shall be allowed as
of course to the prevailing party unless the court
otherwise directs; but costs against the State or a
county, or an officer or agency of the State or a
county, shall be imposed only to the extent permitted
by law. Costs may be taxed by the clerk on 48 hours’
notice. On motion served within 5 days thereafter,
the action of the clerk may be reviewed by the court.
4
HRS § 607-24 (1993) provides, in pertinent part:
Neither the State nor any county or any political
subdivision, board, or commission thereof, nor any
officer, acting in the officer’s official capacity on
behalf of the State or any county or other political
subdivision, board, or commission thereof, shall be
taxed costs or required to pay or make any deposit for
the same or file any bond in any case whether for
costs, on motion for new trial, or on appeal, or for
any other purpose whatsoever. In all cases in which a
final judgment or decree is obtained against the
State, county, or other political subdivision or any
board or commission thereof, any and all deposits for
costs made by the prevailing party shall be returned
to the prevailing party, and the prevailing party
shall be reimbursed by the State, county, or other
political subdivision, board, or commission thereof,
as the case may be, all actual disbursements, not
including attorney’s fees or commissions, made by the
prevailing party and approved by the court.
(Emphasis added).
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by David Kimo Frankel and Ashley Obrey, Native Hawaiian Legal
Corporation (NHLC) attorneys, at both the trial and appellate
levels. Specifically, Kaleikini seeks fees totaling $127,579.00,
which includes $96,495.00 for 275.7 hours of work performed by
Frankel at the rate of $350.00 per hour, and $31,084.00 for 163.6
hours of work performed by Obrey at the rate of $190.00 per hour.
Alternatively, Kaleikini seeks fees totaling $54,995.00 for the
appeal only, which includes $48,440.00 for 138.4 hours of work
performed by Frankel, and $6,555.00 for 34.5 hours of work
performed by Obrey. Additionally, Kaleikini asks that her
requested fees be enhanced by a multiplier of two.
The City and State filed objections to Kaleikini’s
request, and Kaleikini filed a reply to each of the objections.5
II. DISCUSSION
As set forth below, we resolve Kaleikini’s request as
follows. First, we deny Kaleikini’s request for fees and costs
for trial level work, without prejudice to Kaleikini seeking
those fees in the circuit court. Second, we conclude that
Kaleikini is entitled to an award of appellate fees because (1)
Kaleikini prevailed on the disputed main issues before this court
and therefore is the prevailing party on appeal; and (2)
5
Faith Action for Community Equity and Pacific Resource Partnership
(FACE/PRP) previously filed an amicus curiae brief in this case, and also
filed an objection to Kaleikini’s fees request “to the extent [it] may be read
to seek attorneys’ fees and costs against FACE/PRP[.]” Because Kaleikini does
not seek fees or costs from FACE/PRP, we do not discuss this objection
further.
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Kaleikini’s case meets all three prongs of the private attorney
general doctrine. Third, Kaleikini’s request for fees and costs
against the State is barred by sovereign immunity. Fourth,
although we award fees against the City, we reduce some of
Kaleikini’s requested hours and her attorneys’ requested hourly
rates to achieve a reasonable attorney fee award. Fifth,
Kaleikini is not entitled to an enhancement of the lodestar
amount. Finally, Kaleikini is entitled to her requested
appellate costs.
Accordingly, for the reasons set forth below, we award
Kaleikini $41,192.00 in fees and $343.00 in costs against the
City.
A. Kaleikini’s request for fees and costs attributable to work
performed at the trial level is more properly within the
trial court’s discretion
Kaleikini seeks fees and costs relating to work
performed both at the trial level and on appeal. Kaleikini
asserts that “[i]t is not entirely clear that this Court is
prohibited from awarding attorneys’ fees for work at the trial
court level[.]” (Citing Fought & Co., Inc. v. Steel Eng’g &
Erection, Inc., 87 Hawai#i 37, 52, 951 P.2d 487, 502 (1998); S.
Utsunomiya Enters., Inc. v. Moomuku Country Club, 76 Hawai#i 396,
402, 879 P.2d 501, 507 (1994)). She further argues, “Given that
the work undertaken in the circuit court was essential in order
to prevail, all the fees from the entire case should be awarded.”
The City and State argue that Kaleikini should seek fees incurred
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at the trial level in the trial court. Kaleikini responds that
this court should award her trial level fees and costs based on
principles of judicial economy.
“Although HRAP Rule 39(d) and HRS § 607-14[6] could be
construed to allow this court to make such awards [of trial-level
attorney’s fees], decisions about fees incurred at the trial
level are more properly within the trial court’s discretion.” S.
Utsunomiya Enterprises, Inc., 76 Hawai#i at 402, 879 P.2d at 507.
This is because
[t]here are a multitude of situations that arise
during litigation at the trial level that may
contribute to the legal and strategic decisions made
by each party; the trial judge is in the best position
to ascertain the motivations of the parties and the
reasonableness of actions undertaken by counsel and
the parties.
Nelson v. Univ. of Hawai#i, 99 Hawai#i 262, 269, 54 P.3d 433, 440
(2002).
Accordingly, the trial court is in the best position to
determine the reasonableness of fees and costs incurred at the
trial level. We therefore deny Kaleikini’s request for fees and
costs for work performed at the trial level, without prejudice to
her seeking those fees and costs in the circuit court.
Accordingly, the remainder of this opinion addresses only
Kaleikini’s request for fees and costs attributable to her
appeal.
6
HRS § 607-14 governs attorneys’ fees in actions in the nature of
assumpsit and is inapplicable in the instant case.
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B. Kaleikini is the prevailing party on appeal
The first issue this court must resolve regarding
Kaleikini’s request for fees and costs is whether Kaleikini is
the prevailing party on appeal. See Sierra Club v. Dep’t of
Transp. (Superferry II), 120 Hawai#i 181, 215, 202 P.3d 1226,
1260 (2009) (“The first issue that must be determined regarding
the fee and cost award is whether Sierra Club was the prevailing
party.”). Kaleikini argues that she is the prevailing party
because she prevailed on the disputed main issue in her appeal.
The City argues Kaleikini did not prevail on the disputed main
issue because she did not prevail on the claims she brought
pursuant to HRS chapter 343 and 205A.7
Where, as here, there is no final judgment clearly
stating which party prevailed,8 the court “is required to first
identify the principle issues raised by the pleadings and proof
in a particular case, and then determine, on balance, which party
prevailed on the issues.” Superferry II, 120 Hawai#i at 216, 202
P.3d at 1261 (quoting MFD Partners v. Murphy, 9 Haw. App. 509,
515, 850 P.2d 713, 716 (1992)). A party “will be deemed to be
the successful party for the purpose of taxing costs and
7
The State does not present any argument on this issue.
8
In Kamaka v. Goodsill Anderson Quinn & Stifel, 117 Hawai#i 92,
122, 176 P.3d 91, 121 (2008), this court reviewed a trial court’s award of
attorney’s fees and costs entered pursuant to HRS § 607-14 (Supp. 1997), and
noted that, “for purposes of HRS § 607-14, the party in whose favor judgment
was entered is the prevailing party.” In the instant case, this court did not
enter judgment in favor of either party, but rather vacated the circuit
court’s judgment and remanded for further proceedings. Accordingly, Kamaka
does not resolve whether Kaleikini is the prevailing party on appeal.
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attorney’s fees” “where [that] party prevails on the disputed
main issue, even though not to the extent of his original
contention[.]” Food Pantry, Ltd. v. Waikiki Bus. Plaza, Inc., 58
Haw. 606, 620, 575 P.2d 869, 879 (1978) (footnote omitted).
Here, Kaleikini’s complaint in the circuit court
alleged six counts:
First, Kaleikini alleged that the City’s grant of a
special management area permit for the rail project
and its decision to commence construction on the
project prior to the completion of an AIS violated HRS
§§ 6E-8 and 6E-42, and their implementing rules, HAR
chapters 13-275 (2002) and 13-284 (2002) (Counts 1-2).
Kaleikini further alleged that the DLNR, through the
SHPD, violated HRS §§ 6E-8 and 6E-42, and their
implementing rules, in authorizing an AIS to be
postponed (Counts 3-4). Kaleikini also alleged that
Governor Abercrombie violated HRS chapter 343 by
accepting the final EIS for the rail project, because
the final EIS did not contain an AIS and was therefore
incomplete (Count 5). Finally, Kaleikini alleged that
the City and State Defendants had failed to “give full
consideration of the impact of the [rail project] on
iwi and cultural and historic values prior to
decisionmaking” (Count 6).
Kaleikini, 128 Hawai#i at 60-61, 293 P.3d at 67-68 (footnotes
omitted).
At the heart of each count was Kaleikini’s argument
that an AIS must be completed for all four phases of the rail
project prior to any approval or commencement of the project.
See id. at 61, 283 P.3d at 68. The circuit court orally granted
summary judgment in favor of the City and State on all counts on
the ground that the phased approach to the AIS for the rail
project was not prohibited by law. Id. at 66, 283 P.3d at 73.
Accordingly, the circuit court entered final judgment in favor of
the City, State, and OIBC, and against Kaleikini on all of her
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claims. Id. Thus, the City, State, and OIBC were the prevailing
parties in the circuit court.
Kaleikini’s primary argument on appeal was that the
City and State failed to comply with HRS §§ 6E-8 and 6E-42 and
their implementing rules by allowing a decision on the project to
be made prior to the completion of an AIS for the entire project
(Counts 1-4). Id. Additionally, Kaleikini argued that the final
EIS was inadequate under HRS chapter 343 because it did not
contain a completed AIS (Count 5), id. at 81, 283 P.3d at 88, and
that the City and State failed to give full consideration to
cultural and historic values, as required under HRS chapter 205A
(Count 6), id. at 84, 283 P.3d at 91.
This court held that the circuit court erred in
granting summary judgment in favor of the City and State on
Counts 1 through 4 because an AIS for all four phases of the
project was required prior to approval of the project. Id. at
72, 283 P.3d at 79. Accordingly, this court vacated the judgment
with respect to these counts, and remanded to the circuit court
for further proceedings. Id. at 88, 283 P.3d at 95. However,
this court held that the circuit court properly granted summary
judgment in favor of the City and State on Counts 5 and 6. Id.
The City argues that the case is “[a]t best, a draw”
because Kaleikini did not prevail on Counts 5 and 6. However,
this court noted that Kaleikini’s “primary argument on appeal”
concerned Counts 1 through 4, and this court ruled in favor of
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Kaleikini on those counts. Id. at 66, 68, 283 P.3d at 73, 75.
Because Kaleikini prevailed on the “primary argument on
appeal[,]” she prevailed on the disputed main issue.
The City also argues that Kaleikini cannot be deemed
the prevailing party because this court remanded for further
proceedings and the proceedings therefore have not concluded. In
support of this argument the City cites Nelson. Nelson concerned
a request for fees brought pursuant to statute, which allowed for
fees “in addition to any judgment awarded to the plaintiff or
plaintiffs[.]” 99 Hawai#i at 265, 54 P.3d 436 (emphasis added).
Thus, this court was required to determine whether the plaintiff
had been awarded a “judgment” within the meaning of the statute.
Id. This court noted that the forms of relief envisioned by the
statute required a finding in favor of the plaintiff on the
merits. Id. at 266, 54 P.3d at 437. “Consequently, a judgment
on appeal that merely vacates a trial court judgment unfavorable
to the plaintiff and places the plaintiff back where the
plaintiff started does not, in itself, provide any grounds for an
award of fees to the plaintiff.” Id.Nelson is distinguishable from the instant case for two
reasons. First, Kaleikini does not seek fees pursuant to
statute, but rather pursuant to the private attorney general
doctrine. As discussed below, the private attorney general
doctrine does not require that a plaintiff receive a final
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judgment in his or her favor before fees may be awarded.9
Second, this court ruled in favor of Kaleikini on the merits of
Counts 1 through 4. Kaleikini, 128 Hawai#i at 73, 81, 283 P.3d
at 80, 88. This court remanded to the circuit court to determine
the proper relief to be awarded on these counts. Id. at 81, 283
P.3d at 88. Thus, unlike in Nelson, this court’s ruling in the
instant case did not place the plaintiff “back where the
plaintiff started[.]” 99 Hawai#i at 266, 54 P.3d at 437.
Accordingly, Kaleikini is the prevailing party on
appeal for the purposes of attorney’s fees.
C. The private attorney general doctrine applies
“Normally, pursuant to the ‘American Rule,’ each party
is responsible for paying his or her own litigation expenses.
This general rule, however, is subject to a number of exceptions:
attorney’s fees are chargeable against the opposing party when so
authorized by statute, rule of court, agreement, stipulation, or
precedent.” Superferry II, 120 Hawai#i at 218, 202 P.3d at 1263(brackets omitted) (quoting Fought, 87 Hawai#i at 50-51, 951 P.2d
at 500-01). “This court has [also] recognized a number of
equitable exceptions to the ‘American Rule.’” In re Water Use
Permit Applications (Waiâhole II), 96 Hawai#i 27, 29, 25 P.3d
9This court considers three “basic factors” in determining whether
the private attorney general doctrine applies: “(1) the strength or societal
importance of the public policy vindicated by the litigation, (2) the
necessity for private enforcement and the magnitude of the resultant burden on
the plaintiff, [and] (3) the number of people standing to benefit from the
decision.” Superferry II, 120 Hawai#i at 218, 202 P.3d at 1263 (quoting Maui
Tomorrow v. State, 110 Hawai#i 234, 244, 131 P.3d 517, 527 (2006)).
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802, 804 (2001). One such exception is provided by the private
attorney general doctrine, which “is an equitable rule that
allows courts in their discretion to award attorneys’ fees to
plaintiffs who have ‘vindicated important public rights.’” Id.;
see also Superferry II, 120 Hawai#i at 218, 202 P.3d at 1263(quoting Maui Tomorrow, 110 Hawai#i at 244, 131 P.3d at 527).
This court considers three “basic factors” in
determining whether the private attorney general doctrine
applies: “(1) the strength or societal importance of the public
policy vindicated by the litigation, (2) the necessity for
private enforcement and the magnitude of the resultant burden on
the plaintiff, [and] (3) the number of people standing to benefit
from the decision.” Superferry II, 120 Hawai#i at 218, 202 P.3d
at 1263 (quoting Maui Tomorrow, 110 Hawai#i at 244, 131 P.3d at
527).
As set forth below, all three prongs of the private
attorney general doctrine have been satisfied in the instant
case. Accordingly, we may award attorney’s fees to Kaleikini.10
10
The State makes several arguments as to why the private attorney
general doctrine should not apply. First, the State argues that Kaleikini
should not be awarded fees because the legislature did not intend that private
persons be awarded fees in HRS chapter 6E cases, except to the extent
authorized by HRS § 607-25(e). The State appears to argue that HRS § 607-
25(e) is the exclusive means for seeking attorney’s fees in cases brought
pursuant to HRS chapter 6E. Fees are not available pursuant to HRS § 607-
25(e) in this case. HRS § 607-25(e) (Supp. 2011) (providing for fees “[i]n
any civil action in this State where a private party sues for injunctive
relief against another private party who has been or is undertaking any
development without obtaining all permits or approvals required by law from
government agencies”) (emphasis added).
This court rejected an argument similar to the State’s in
Superferry II, where it held that HRS § 607-25 is not the exclusive means for
(continued...)
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See id.
1. The strength or societal importance of the public
policy vindicated by the litigation
Kaleikini asserts that this case has vindicated an
issue of “great public importance[,]” specifically the historic
preservation and protection of iwi. Kaleikini also asserts that
this case vindicated at least four other important public
policies: (1) the historic preservation review process is
sequential and requires an AIS prior to the SHPD’s concurrence in
10
(...continued)
seeking fees in an action brought pursuant to HRS chapter 343 because HRS
§ 607-25 focuses on “development,” which is only a narrow subset of actions
that may lead to a violation of HRS § 343-5. 120 Hawai#i at 222-25, 202 P.3d
at 1267-70. Although the underlying claims in Superferry II arguably involved
a challenge to approval of a “development,” see id. at 186, 202 P.3d at 1231(noting that the project involved Hawai#i Superferry, Inc.’s proposal to
“develop and operate a high-speed roll-on/roll-off ferry service”), this court
nonetheless held that fees were available pursuant to the private attorney
general doctrine, id. at 222-25, 202 P.3d at 1267-70. Similarly, here, HRS
chapter 6E governs conservation of historic properties in a variety of
contexts, and not solely in relation to “development.” See, e.g., HRS §§ 6E-8
and 6E-42. Accordingly, the State’s argument is without merit for the reasons
set forth in Superferry II.
Second, the State argues that this court should apply the test set
forth in Reliable Collection Agency v. Cole, 59 Haw. 503, 507, 584 P.2d 107,
109 (1978), for determining whether attorney’s fees are available. This
argument is without merit. The purpose of the Reliable test is to determine
whether a statute implicitly provides a private right of action. Id. This
inquiry focuses on whether a private party can sue to enforce a statute.
Cnty. of Hawai#i v. Ala Loop Homeowners, 123 Hawai#i 391, 406 n.20, 235 P.3d
1103, 1118 n.20 (2010). It does not address whether a private party may
recover attorney’s fees.
Moreover, this court has never applied the Reliable test in
considering whether an award of fees is appropriate pursuant to the private
attorney general doctrine, see Superferry II, 120 Hawai#i at 219-25, 202 P.3d
at 1264-70, and we decline to do so here. Application of the Reliable test
would render the private attorney general doctrine wholly illusory: if the
relevant statute reflects a legislative intent to award attorney’s fees, then
the “equitable powers of the judiciary to provide” such fees pursuant to the
private attorney general doctrine, Superferry II, 120 Hawai#i at 219, 202 P.3d
at 1264 (citation omitted), would be unnecessary. In contrast, if a statute
is silent as to the availability of fees, the private attorney general
doctrine would be unavailable. In light of this court’s decision to award
fees pursuant to the private attorney general doctrine in the face of
legislative silence regarding fees, id. at 221-23, 202 P.3d at 1266-68, the
State’s argument is unpersuasive.
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a project; (2) phasing of the historic preservation review
process is impermissible; (3) standing may exist pursuant to HRS
§ 6E-13(b), even where an irreparable injury has not yet
occurred; and (4) procedural injury is a basis for standing
pursuant to HRS § 6E-13(b).
The City argues that the issue on which Kaleikini
prevailed was “ultimately one of process that turned on the
Court’s interpretation of the definition of ‘project area’ in the
applicable administrative regulations and not any constitutional
right or provision[.]” (Emphasis in original). The State
similarly argues that “this case is not about the protection of
iwi[,]” but rather involves a “relatively arcane dispute as to
how, not whether, to protect the iwi[.]” Moreover, the State
argues that application of the private attorney general doctrine
in this case would “swallow the general American rule” because
all laws involve important public policy interests or they “would
not have been enacted in the first place.”
Even assuming that the City and State are correct that
the policies vindicated by this case are largely procedural, this
court has found the first prong of the private attorney general
doctrine satisfied in other similar circumstances. In Superferry
II, this court considered whether the first prong was satisfied
in a dispute over the need for an environmental assessment for
the Hawai#i Superferry. 120 Hawai#i at 186-87, 202 P.3d at 1231-
32. The prevailing party argued that this prong was satisfied
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because the litigation was “responsible for establishing the
principle of procedural standing in environmental law in Hawai#i
and clarifying the importance of addressing the secondary impacts
of a project in the environmental review process pursuant to HRS
chapter 343.” Id. at 220, 202 P.3d at 1265. This court agreed.
Id.Here, Kaleikini’s case was responsible for clarifying
the principle of procedural standing in historic preservation law
in Hawai#i, and clarifying the importance of addressing impacts
on historic properties prior to approval and commencement of
projects that are subject to the provisions of HRS chapter 6E.
Kaleikini, 128 Hawai#i at 71, 283 P.3d at 78; see Superferry II,
120 Hawai#i at at 220, 202 P.3d at 1265. Accordingly, the first
prong of the private attorney general doctrine is satisfied in
this case.
2. The necessity for private enforcement and the magnitude
of the resultant burden on the plaintiff
Kaleikini asserts that private enforcement was
essential because she was solely responsible for challenging the
City’s failure to prepare an AIS prior to decision making and
construction, and the City and State either completely abandoned,
or actively opposed, her cause. The City responds that neither
the City nor the State abandoned their duties under HRS chapter
6E, but rather erroneously believed that their plan was lawful.
The State acknowledges that private enforcement may have been
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necessary, but argues that attorney’s fees are not necessary
because other private parties may have been “willing to pay
market rates (indeed above market rates) to bring the suit if
plaintiff had not done so.” The State also asserts that NHLC
could have represented Kaleikini pro bono.
A review of this court’s case law concerning the second
prong of the private attorney general doctrine is instructive.
This court first examined the private attorney general doctrine
in Waiâhole II, and concluded that the second prong of the
doctrine was not satisfied in that case. 96 Hawai#i at 31, 25
P.3d at 806. There, the underlying dispute concerned “water
distributed by the Waiâhole Ditch System, a major irrigation
infrastructure on the island of Oahu[.]” In re Water Use Permit
Applications (Waiâhole I), 94 Hawai#i 97, 110, 9 P.3d 409, 422
(2000). Following a lengthy and complex contested case hearing,
the Commission on Water Resource Management (Commission) issued a
final decision with respect to release of water from the System,
which focused primarily on the “public trust doctrine.” Id. at
110, 113, 9 P.3d at 422, 425. The Commission concluded that,
“[u]nder the State Constitution and the public trust doctrine,
the State’s first duty is to protect the fresh water resources
(surface and ground) which are part of the public trust res.”
Id. at 113, 9 P.3d at 425. On appeal, this court held, inter
alia, that “article XI, section 1 and article XI, section 7 [of
the Hawai#i Constitution] adopt the public trust doctrine as a
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fundamental principle of constitutional law in Hawai#i.” Id. at
132, 9 P.3d at 444. Nevertheless, this court reversed in part
the Commission’s decision. Id. at 189, 9 P.3d at 501.
Subsequently, multiple public parties, denominated the
Windward Parties, sought attorney’s fees against both private and
governmental parties involved in the dispute. Waiâhole II, 96
Hawai#i at 28-29, 25 P.3d at 803-04. This court noted that, in
cases from other jurisdictions in which the second prong of the
private attorney general doctrine had been satisfied, “the
plaintiffs served as the sole representative of the vindicated
public interest. The government either completely abandoned, or
actively opposed, the plaintiff’s cause.” Id. at 31, 25 P.3d at
806 (citations omitted). However, this court observed that the
Windward Parties
represented one of many competing public and private
interests in an adversarial proceeding before the
governmental body designated by constitution and
statute as the primary representative of the people
with respect to water resources, the Commission on
Water Resources Management. The Commission duly
recognized its duties as trustee of state water
resources, even to an extent further than this court
deemed appropriate. . . . Nonetheless, the court made
no rulings regarding the ultimate disposition of water
resources, but simply remanded the matter to the
commission for further findings and conclusions.
The relevant point, of course, is not the extent
of the Windward Parties’ success on appeal, but,
rather, the role played by the government. In sum,
unlike other cases, in which the plaintiffs
single-handedly challenged a previously established
government law or policy, in this case, the Windward
Parties challenged the decision of a tribunal in an
adversarial proceeding not contesting any action or
policy of the government. The Windward Parties cite
no case in which attorneys’ fees were awarded in an
adversarial proceeding against a tribunal and the
losing parties and in favor of the prevailing party,
based on the reversal of the tribunal’s decision on
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appeal. Nor does such a rule appear prudent from a
policy standpoint, where public tribunals in
adversarial settings must invariably consider and
weigh various “public interests.” Therefore, we hold
that this case does not qualify for an award of
attorneys’ fees under the conventional application of
the private attorney general doctrine.
Id. at 31-32, 25 P.3d at 806-07 (citations omitted).
Similarly, in Maui Tomorrow, this court determined that
the second prong of the private attorney general doctrine had not
been satisfied in an action where the plaintiff contested “a
policy of the BLNR to lease water rights without performing the
required analysis.” 110 Hawai#i at 245, 131 P.3d at 528. This
court concluded that the private attorney general doctrine was
not applicable because the State “did not ‘abandon’ or ‘actively
oppose’ [the plaintiff’s] cause[,]” but rather concluded that an
agency other than the BLNR was the appropriate agency to fulfill
the State’s duty. Id. This court also analogized Maui Tomorrow
to Waiâhole II, noting that Maui Tomorrow
involve[d] an appeal from the decision of a tribunal
in an adversarial proceeding, and the circuit court
‘made no rulings regarding the ultimate disposition of
water resources, but simply remanded the matter . . .
for further findings and conclusions.’ Like the
Windward Parties [in Waiâhole II, the Maui Tomorrow
plaintiffs] cite[d] no cases in which fees were
awarded against a tribunal and the losing parties
based on the reversal of the tribunal’s decision on
appeal.
Id. (citation omitted).
In contrast, in Superferry II, this court found that
the second prong of the private attorney general doctrine was
satisfied, where “the plaintiffs . . . were comprised of two
non-profit organizations and an unincorporated association” who
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were “solely responsible for challenging [the Department of
Transportation’s (DOT)] erroneous application of its
responsibilities under HRS chapter 343.” 120 Hawai#i at 220, 202
P.3d at 1265. In that case, “DOT exempted the Superferry project
from the requirements of HRS chapter 343 without considering its
secondary impacts on the environment[,]” “[i]n contravention of
its responsibilities under the laws of this state[.]” Id. at
221, 202 P.3d at 1266.
This court distinguished Superferry II from Maui
Tomorrow, noting that, in Maui Tomorrow,
the challenged government policy resulted from an
erroneous understanding that another state agency was
to perform the duty at issue. . . . In this case, DOT
simply did not recognize its duty to consider both the
primary and secondary impacts of the Superferry
project on the environment. DOT was not under the
erroneous understanding that another agency was
considering those impacts, as in Maui Tomorrow;
rather, in this case DOT wholly abandoned that duty by
issuing an erroneous exemption to Superferry.
Id. (citation omitted).
Unlike the multiple public parties in Waiâhole II, 96
Hawai#i at 28-29, 25 P.3d at 803-04, or even the “two non-profit
organizations and an unincorporated association” in Superferry
II, 120 Hawai#i at 220, 202 P.3d at 1265, the plaintiff in the
instant case was Kaleikini -- a single, private individual.11
Kaleikini was solely responsible for challenging the City and
State’s erroneous application of HRS chapter 6E, and clarifying
11
Accordingly, the State’s argument that other private parties may
have been “willing to pay market rates (indeed above market rates) to bring
the suit if plaintiff had not done so[,]” is unpersuasive.
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the City and State’s responsibilities under the law. See
Superferry II, 120 Hawai#i at 220-21, 202 P.3d at 1265-66.
The City and State argue that the instant case is
similar to Waiâhole II and Maui Tomorrow because SHPD did not
wholly abandon its duties under the law, but rather recognized
the necessity of an AIS and erroneously believed the study could
be delayed. However, it is apparent from this court’s opinion
that the City and State acted “[i]n contravention of [their]
responsibilities under the laws of this state,” see Superferry
II, 120 Hawai#i at 221, 202 P.3d at 1266, in concurring in the
rail project and proceeding with construction prior to the
completion of an AIS for all four phases of the project,
Kaleikini, 120 Hawai#i at 57, 283 P.3d at 64 (“In sum, the SHPD
failed to comply with HRS chapter 6E and its implementing rules
when it concurred in the rail project prior to the completion of
the required archaeological inventory survey for the entire
project. The City similarly failed to comply with HRS chapter 6E
and its implementing rules by granting a special management area
permit for the rail project and by commencing construction prior
to the completion of the historic preservation review process.”).
Moreover, although the OIBC agreed with Kaleikini that
the phased approach was impermissible, id. at 62-64, 283 P.3d at
69-71, the OIBC did not bring suit to enforce the provisions of
HRS chapter 6E and took no position with regard to the City’s
motion for summary judgment, see id. at 65, 283 P.3d at 72.
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Thus, private enforcement by Kaleikini was necessary to ensure
the City and State complied with HRS chapter 6E and its
implementing rules.
Accordingly, the second prong of the private attorney
general doctrine was satisfied in this case.
3. The number of people standing to benefit from the
decision
Kaleikini asserts that “[t]he public at large benefits
from a decision that ensures the integrity of the historic
preservation review process.” The City concedes that “the public
generally benefits from this decision and the third prong may
arguably be satisfied.” The State argues that “the number of
persons benefitted [sic] is indeterminate” because “there is no
evidence that any significant number of persons are concerned
about whether an AIS may be completed in phases.”
In Superferry II, this court concluded that the third
prong was satisfied where “this court’s opinion . . . provided a
public benefit, because it is generally applicable law that
established procedural standing in environmental law and
clarified the need to address secondary impacts in environmental
review pursuant to HRS chapter 343 and will benefit large numbers
of people over long periods of time.” 120 Hawai#i at 221, 202
P.3d at 1266 (internal quotation marks omitted). In Waiâhole II,
this court concluded that “all of the citizens of the state,
present and future, stood to benefit from the decision.” 96
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Hawai#i at 31, 25 P.3d at 806.
In the instant case, this court’s opinion established
“generally applicable law” regarding standing to enforce historic
preservation laws. See Superferry II, 120 Hawai#i at 221, 202
P.3d at 1266. In addition, this court’s opinion ensured that
historic preservation laws will be enforced as written. The
plain language of those laws supports a conclusion that the
decision in this case benefits all citizens of the State:
The Constitution of the State of Hawaii recognizes the
value of conserving and developing the historic and
cultural property within the State for the public
good. . . . The legislature further declares that it
is in the public interest to engage in a comprehensive
program of historic preservation at all levels of
government to promote the use and conservation of such
property . . . .
HRS § 6E-1 (2009) (emphasis added).
Accordingly, the third prong of the private attorney
general doctrine was satisfied in this case.
In sum, all three prongs of the test for the private
attorney general doctrine have been satisfied. Accordingly, we
award Kaleikini reasonable attorney’s fees pursuant to the
private attorney general doctrine.
D. Kaleikini’s request for attorney’s fees against the State is
barred by sovereign immunity
This court has noted that:
The doctrine of sovereign immunity refers to the
general rule, incorporated in the Eleventh Amendment
to the United States Constitution, that a state cannot
be sued in federal court without its consent or an
express waiver of its immunity. The doctrine of
sovereign immunity, as it has developed in Hawai#i,
also precludes such suits in state courts.
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State ex rel. Anzai v. Honolulu, 99 Hawai#i 508, 515, 57 P.3d
433, 440 (2002) (citations and footnote omitted).
Pursuant to the doctrine of sovereign immunity, “the
sovereign State is immune from suit for money damages, except
where there has been a clear relinquishment of immunity and the
State has consented to be sued.” Bush v. Watson, 81 Hawai#i 474,
481, 918 P.2d 1130, 1137 (1996) (citations and internal quotation
marks omitted). This court has recognized that “an award of
costs and fees to a prevailing party is inherently in the nature
of a damage award.” Superferry II, 120 Hawai#i at 226, 202 P.3d
at 1271 (quotation marks omitted) (quoting Fought, 87 Hawai#i at
51, 951 P.2d at 501). Accordingly, to properly award attorney’s
fees and costs against the State, “there must be ‘a clear
relinquishment’ of the State’s immunity[.]” Id. (quoting Bush,
81 Hawai#i at 481, 918 P.2d at 1137). For the reasons set forth
below, the State has not waived its sovereign immunity for an
award of attorney’s fees and costs in the circumstances of this
case.
This court has noted that the State has waived immunity
to suit only to the extent as specified in HRS chapters 661 and
662.12 Taylor-Rice v. State, 105 Hawai#i 104, 110, 94 P.3d 659,
665 (2004) (citations omitted). HRS § 661-1(1) “contains a
limited waiver of sovereign immunity for claims against the State
12
HRS § 662-2 (1993) waives the State’s immunity to suit for
liability for the torts of its employees and is not applicable here.
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of Hawai#i that are founded upon a statute[.]”13 Garner v. State,
Dep’t of Educ., 122 Hawai#i 150, 160, 223 P.3d 215, 225 (App.
2009). In determining the extent of the State’s waiver of
sovereign immunity, this court relies on the following principles
derived from federal law:
(1) a waiver of the Government’s sovereign immunity
will be strictly construed, in terms of its scope, in
favor of the sovereign; (2) a waiver of sovereign
immunity must be unequivocally expressed in statutory
text; (3) a statute’s legislative history cannot
supply a waiver that does not appear clearly in any
statutory text; (4) it is not a court’s right to
extend the waiver of sovereign immunity more broadly
than has been directed by the [the legislature]; and
(5) sovereign immunity is not to be waived by policy
arguments[.]
Taylor-Rice, 105 Hawai#i at 110, 94 P.3d at 665 (citations,
internal quotation marks, and brackets omitted).
In the instant case, Kaleikini argues that the State
waived its sovereign immunity pursuant to HRS § 6E-13(b) and
13
HRS § 661-1 (1993) provides, in pertinent part:
The several circuit courts of the State and, except as
otherwise provided by statute or rule, the several
state district courts shall, subject to appeal as
provided by law, have original jurisdiction to hear
and determine the following matters, and, unless
otherwise provided by law, shall determine all
questions of fact involved without the intervention of
a jury.
(1) All claims against the State founded upon
any statute of the State; or upon any regulation
of an executive department; or upon any
contract, expressed or implied, with the State,
and all claims which may be referred to any such
court by the legislature; provided that no
action shall be maintained, nor shall any
process issue against the State, based on any
contract or any act of any state officer which
the officer is not authorized to make or do by
the laws of the State, nor upon any other cause
of action than as herein set forth.
(Emphasis added).
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article XI, section 9 of the Hawai#i Constitution. For the
reasons set forth below, neither HRS § 6E-13(b) nor article XI,
section 9 waives the State’s sovereign immunity.
1. HRS § 6E-13(b) does not waive the State’s sovereign
immunity
Kaleikini relies primarily on Superferry II in arguing
that the State waived its immunity for fees pursuant to HRS § 6E-
13(b). There, this court concluded that the State waived its
sovereign immunity pursuant to HRS § 343-7, because that statute
authorizes judicial review of specified agency decisions. 120
Hawai#i at 226-28, 202 P.3d at 1271-73. Although HRS § 343-7
does not expressly waive the State’s immunity for attorney’s fees
resulting from such judicial review, this court nonetheless
concluded that the State’s liability for fees was “to be judged
under the same principles as those governing the liability of
private parties.” Id. at 229, 202 P.3d at 1274. Accordingly,
fees could be awarded against the State based on the private
attorney general doctrine. Id. at 230, 202 P.3d at 1275.
HRS § 6E-13(b) is distinguishable from HRS § 343-7, and
a waiver of the State’s sovereign immunity cannot similarly be
implied from HRS § 6E-13(b). This is because HRS § 6E-13(b)
(2009) allows suit to be brought only for a restraining order or
injunctive relief:
Any person may maintain an action in the trial court
having jurisdiction where the alleged violation
occurred or is likely to occur for restraining orders
or injunctive relief against the State, its political
subdivisions, or any person upon a showing of
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irreparable injury, for the protection of an historic
property or a burial site and the public trust therein
from unauthorized or improper demolition, alteration,
or transfer of the property or burial site.
(Emphasis added).
It is well settled that a provision allowing for
declaratory or injunctive relief is not a waiver of the State’s
sovereign immunity, but rather an exception to the sovereign
immunity doctrine for which no waiver is necessary. Superferry
II, 120 Hawai#i at 229 n.30, 202 P.3d at 1274 n.30 (“Where a
party seeks only injunctive relief, the ability to sue the state
does not stem from a waiver of sovereign immunity, but from the
fact that sovereign immunity does not bar the suit in the first
place.”). Indeed, Superferry II expressly recognized the
distinction between a claim brought pursuant to HRS § 343-7 and
one seeking only injunctive relief. Id. (noting that the case
relied on by the dissent in Superferry II, Taomae v. Lingle, 110
Hawai#i 327, 132 P.3d 1238 (2006), was distinguishable because it
involved a suit for injunctive relief and therefore involved “no
statutory waiver of sovereign immunity for the underlying
action”).
Accordingly, HRS § 6E-13(b) does not contain a waiver
of the State’s sovereign immunity.
2. Article XI, section 9 of the Hawai#i Constitution does
not waive the State’s sovereign immunity
Kaleikini relies primarily on Ala Loop Homeowners in
arguing that the State waived its immunity to fees pursuant to
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article XI, section 9 of the Hawai#i Constitution. There, this
court concluded that article XI, section 9 contained an implied
private right of action to enforce the provisions of HRS chapter
205 and other “laws relating to environmental quality.” 123
Hawai#i at 409-17, 235 P.3d at 1121-29. Accordingly, Ala Loop
Homeowners was permitted to assert its claims. Id. at 422, 235
P.3d at 1134. However, this court subsequently denied Ala Loop
Homeowners’ request for attorney’s fees and costs on the ground
that there had been no “clear relinquishment” of the State’s
sovereign immunity. Cnty. of Hawai#i v. Ala Loop Homeowners, No.
27707 (Haw. Mar. 21, 2011) (Order).
There are several reasons why article XI, section 9
does not waive the State’s sovereign immunity in this case.
First, the Hawai#i Constitution does not waive the State’s
sovereign immunity pursuant to HRS § 661-1 because claims based
on the constitution are not “founded upon any statute of the
State[.]” Kaho#ohanohano v. State, 114 Hawai#i 302, 338, 162 P.3d
696, 732 (2007). Second, it is not apparent that article XI,
section 9 applies to Kaleikini’s claims, as it pertains to “laws
relating to environmental quality, including control of pollution
and conservation, protection and enhancement of natural
resources.” Haw. Const. art. XI, § 9. Finally, nothing in the
plain language of article XI, section 9 clearly relinquishes the
State’s sovereign immunity with respect to attorney’s fees.
Article XI, section 9 provides:
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Each person has the right to a clean and healthful
environment, as defined by laws relating to
environmental quality, including control of pollution
and conservation, protection and enhancement of
natural resources. Any person may enforce this right
against any party, public or private, through
appropriate legal proceedings, subject to reasonable
limitations and regulation as provided by law.
This provision must be strictly construed. See Taylor-
Rice, 105 Hawai#i at 110, 94 P.3d at 665. Nothing in article XI,
section 9 expressly waives the State’s immunity for attorney’s
fees.
In sum, there has been no clear relinquishment of the
State’s sovereign immunity, and thus the State’s immunity bars
Kaleikini’s request for fees based on the private attorney
general doctrine.14
E. Although the fees requested by Kaleikini are generally
reasonable, we deny some of the hours requested and reduce
the attorneys’ requested hourly rates
Kaleikini requests a total of $54,995.00 in fees in
relation to her appeal. Specifically, Kaleikini requests
$48,440.00 for 138 hours of work performed by Frankel, and
$6,555.00 for 34.5 hours of work performed by Obrey. This court
employs the “lodestar” method in determining a reasonable
attorney’s fee. DFS Group L.P. v. Paiea Props., 110 Hawai#i 217,
222, 131 P.3d 500, 505 (2006). Under the lodestar method, the
court multiplies the number of hours reasonably expended by a
14
The State also has not waived its immunity for costs. HRS § 607-
24 waives the State’s immunity for costs “[i]n all cases in which a final
judgment or decree is obtained against the State[.]” This provision is to be
strictly construed. See Taylor-Rice, 105 Hawai#i at 110, 94 P.3d at 665.
Because Kaleikini has not yet obtained a final judgment or decree against the
State, the State’s immunity bars her request for costs.
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reasonable hourly rate. Id.The City argues that the hours billed by Kaleikini’s
attorneys are not reasonable because she should not recover fees
for (1) her unsuccessful claims; (2) work that was duplicative,
clerical, or insufficiently documented; and (3) amounts which
otherwise are not recoverable due to the State’s sovereign
immunity. Additionally, the City argues that the requested
hourly rates are not reasonable.
For the reasons set forth below, (1) Kaleikini can
recover fees for work attributable to all of her claims pursuant
to Schefke v. Reliable Collection Agency, Ltd., 96 Hawai#i 408,
444, 32 P.3d 52, 88 (2001); (2) the City has not specifically
challenged any of the charges as duplicative, clerical, or
insufficiently documented; (3) the City is not liable for fees
that are directly attributable to other parties; and (4) a lower
hourly rate than that requested by Kaleikini’s attorneys is
reasonable.
1. Kaleikini can recover fees for work attributable to
Counts 5 and 6
The City and State argue that Kaleikini should not
recover all of her fees because she did not prevail on two of her
claims, i.e., her HRS chapter 343 claim (Count 5) and her HRS
chapter 205A claim (Count 6). The City and State note that
Kaleikini’s fee request does not ascribe her fees to particular
claims, and argue that Kaleikini should have allocated the fees
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to discrete claims so that this court could discount fees
attributable to unsuccessful claims. Because Kaleikini did not
allocate her fees to discrete claims, the State requests that
Kaleikini’s fees be reduced by 50%. The City requests that the
fees be reduced by two-thirds because Kaleikini “only prevailed
on one out of three statutory grounds[.]”
In Schefke, this court articulated the following test,
derived from Hensley v. Eskerhart, 461 U.S. 424 (1983), for
determining “whether a partially prevailing plaintiff may recover
an attorney’s fee for legal services on unsuccessful claims”:
the trial court must determine (1) whether or not
unsuccessful claims are related to successful claims,
and (2) whether or not the plaintiff achieved a level
of success that makes the hours reasonably expended a
satisfactory basis for making a fee award.
Unsuccessful claims are deemed unrelated if they are
distinctly different claims for relief that are based
on different facts and legal theories. Thus, even
where the claims are brought against the same
defendants, counsel’s work on one claim may be
unrelated to his or her work on another claim, work on
such an unsuccessful claim cannot be deemed to have
been expended in pursuit of the ultimate result
achieved, and the hours spent on the unsuccessful
claim should be excluded in considering the amount of
a reasonable fee.
On the other hand, if the plaintiff’s claims for
relief involve a common core of facts or are based on
related legal theories and much of counsel’s time is
devoted generally to the litigation as a whole, making
it difficult to divide the hours expended on a
claim-by-claim basis, such a lawsuit cannot be viewed
as a series of discrete claims. In that situation, a
plaintiff who has won substantial relief should not
have his or her attorney’s fee reduced simply because
the trial court did not adopt each contention raised.
As to the required level of success, where a
plaintiff has obtained excellent results, his or her
attorney should recover a fully compensatory fee
because litigants in good faith may raise alternative
legal grounds for a desired outcome, and the court’s
rejection of or failure to reach certain grounds is
not a sufficient reason for reducing a fee. If, on
the other hand, a plaintiff has achieved only partial
or limited success, the product of hours reasonably
expended on the litigation as a whole times a
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reasonable hourly rate may be an excessive amount even
where the plaintiff’s claims were interrelated,
nonfrivolous, and raised in good faith.
Schefke, 96 Hawai#i at 444, 32 P.3d at 88 (citations, internal
quotation marks, brackets, ellipses, and footnote omitted).
Kaleikini’s case would appear to be precisely the type
of case envisioned by the Schefke court as allowing for an award
of fees attributable to unsuccessful claims. First, Kaleikini’s
unsuccessful claims were related to her successful claims. See
id. All six claims involved a common core of facts, i.e., the
City and State’s decision to proceed with the rail project absent
a completed AIS. Kaleikini, 128 Hawai#i at 60-61, 283 P.3d at
67-68. In addition, although the claims were based on different
statutory provisions, they all were based on a related legal
theory, i.e., that a completed AIS was required prior to any
decision making on the project. Id. Moreover, this would appear
to be a case in which “much of counsel’s time is devoted
generally to the litigation as a whole[.]” Schefke, 96 Hawai#i
at 444, 32 P.3d at 88. For example, the argument section of
Kaleikini’s opening brief was approximately 23 pages long. The
first four pages of argument provided an overview of laws
applicable to all six of Kaleikini’s claims. Approximately 13
pages were dedicated to her successful claims. Approximately six
pages were dedicated to her unsuccessful claims. Although the
arguments concerning her unsuccessful claims cited different
statutory provisions and case law, the facts and legal principles
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relied on were nearly identical to those cited in relation to her
successful claims, including the importance of native Hawaiian
burials and the potential for negative consequences if an AIS is
not completed early in the planning process.
Second, Kaleikini “achieved a level of success that
makes the hours reasonably expended a satisfactory basis for
making a fee award.” Id. (brackets omitted). In this regard,
Kaleikini’s case is nearly indistinguishable from Hensley, which
was cited with approval in Schefke. 96 Hawai#i at 444 n.78, 32
P.3d at 88 n.78. In Hensley, the plaintiffs raised six
constitutional challenges, and the trial court found
constitutional violations in five of those areas. 461 U.S. at
427-28. The Court stated:
In this case, for example, the District Court’s award
of fees based on 2,557 hours worked may have been
reasonable in light of the substantial relief
obtained. But had [the plaintiffs] prevailed on only
one of their six general claims, . . . a fee award
based on the claimed hours clearly would have been
excessive.
Id. at 436 (internal citation omitted).
Here, Kaleikini obtained relief on four of her six
claims, and on the primary issue raised in her appeal. In light
of this substantial relief, and the relationship between her
successful and unsuccessful claims, she may recover fees
attributable to her unsuccessful claims.
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2. The City has not specified which billing entries it
views as duplicative, clerical, or insufficiently
documented
The City asserts that some of Kaleikini’s fees are
duplicative, associated with clerical tasks, and insufficiently
documented. The City does not specify which charges it is
challenging.
This court has declined to discount fees where the
opponent fails to argue that hours spent on any particular task
are unreasonable. Cnty. of Hawai#i v. C&J Coupe Family Ltd.
P’ship, 120 Hawai#i 400, 407, 208 P.3d 713, 720 (2009) (“The
County does not argues that . . . the number of hours expended on
any particular task is unreasonable. . . . [A]ttorneys’ fees
must be awarded . . . for the number of hours requested.”); see
also Rapozo v. Better Hearing of Haw., LLC, 120 Hawai#i 257, 265,
204 P.3d 476, 484 (2009) (“Respondent does not challenge any item
on this list or otherwise object to the reasonableness of the
requested fees. Consequently, Petitioner’s request for $8,658.00
in attorney fee is granted.”). Moreover, a review of Kaleikini’s
request does not indicate that any of the requested fees are
duplicative, clerical, or insufficiently documented.
Accordingly, the City’s argument is without merit.
3. Some of Kaleikini’s requested fees are attributable
only to the State, and are not recoverable against the
City
The City argues that Kaleikini should not be permitted
to recover from the City “amounts that would have been
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attributable to [the State], but for which [Kaleikini] cannot
recover due to the State’s sovereign immunity.” Accordingly, the
City argues, “if sovereign immunity bars any recovery against
[the State], any award against [the City] should be reduced
accordingly.” The City cites no authority in support of this
argument. Kaleikini argues that the City and State worked “hand-
in-hand” on the rail project, and accordingly that all of her
fees are recoverable against the City pursuant to Superferry II.
Superferry II is not directly on point. There, this
court considered whether the private attorney general doctrine
could serve as a basis for recovery of attorney’s fees against a
private party, Hawai#i Superferry, Inc. (Superferry), and
concluded there was “no reason not to apply the private attorney
general doctrine to a private defendant.” 120 Hawai#i at 224-25,
202 P.3d at 1269-70. In so doing, this court noted:
[I]n this case Superferry worked hand-in-hand with DOT
throughout the planning and implementation of the
Superferry project and throughout this litigation, in
promoting its own private business interests. Under
these facts, we see no unfairness in requiring
Superferry, jointly with DOT, to pay Sierra Club’s
attorney’s fees awarded by the circuit court.
Id. at 225, 202 P.3d at 1270.
Superferry II indicates that, had an award against the
State not been barred by sovereign immunity, the City would have
been jointly and severally liable for all of Kaleikini’s fees.
Accordingly, there is some basis for allowing Kaleikini to
recover all of her fees against the City. At the same time,
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Superferry II is not directly on point because it did not resolve
the question at issue here, i.e., whether a defendant may be held
liable for the full award of attorney’s fees, where an award
against a co-defendant is barred by sovereign immunity.
In the instant case, we conclude that it is reasonable
for Kaleikini to recover against the City for all of the work
performed, except for work that is clearly identifiable as being
directed at another party, such as Kaleikini’s replies to the
State and FACE/PRP. Allowing Kaleikini to recover against the
City for work that was directed at all parties (such as the
opening brief and transfer application) is reasonable in light of
the City having taken a leading role in the appeal and in the
trial court. For example, the City’s answering brief was 35
pages long and addressed each of the Counts in Kaleikini’s
complaint, including Count 5, which ran only against the State.
In contrast, the State’s answering brief was 15 pages long and
addressed only Counts 1 through 4.
Kaleikini’s billing records clearly indicate that 18
hours of Frankel’s time and 2.8 hours of Obrey’s time cannot be
fairly attributed to addressing the City:
Attorney Date Activity Hours
Frankel 1/4/12 Draft reply to State Answering 3.2
Brief
Frankel 1/5/12 Draft reply to State Answering 4.5
Brief
Frankel 1/10/12 Draft reply to State 0.8
Frankel 9/5/12 Memo in Opp to Amicus 3.3
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Frankel 9/12/12 Opp to Amicus Recon Brief 6.2
Obrey 1/9/12 Review/Revise Reply to State 0.7
Obrey 1/11/12 Revise Reply to State 0.3
Obrey 9/5/12 Review FACE/PRP motion for leave to 0.3
file amicus brief
Obrey 9/5/12 Draft memo in opp to FACE/PRP 1.0
motion for leave to file amicus
brief
Obrey 9/10/12 Review amicus brief to determine if 0.5
meheula complied with court’s
order[.]
Based on the foregoing, we grant Kaleikini’s request
for fees for 120.4 hours of work performed by Frankel (138.4
requested hours minus 18 hours) and 31.7 hours of work performed
by Obrey (34.5 requested hours minus 2.8 hours).
4. The requested hourly rate is not reasonable
Kaleikini requests that attorney Frankel be awarded
fees at a rate of $350.00 per hour, and that attorney Obrey be
awarded fees at a rate of $190.00 per hour. Both the City and
Kaleikini agree that a reasonable attorney’s fee should be
calculated according to prevailing market rates in the relevant
community. (Citing Blum v. Stenson, 465 U.S. 886, 895 (1984)).
Kaleikini asserts that her requested rates are at or
below prevailing market rates in the community. Kaleikini
submits two declarations in support of this assertion. First,
Kaleikini attached a declaration from Matthew Adams, who declared
that he is a California attorney who represents the plaintiffs in
a federal lawsuit relating to the rail project,
Honolulutraffic.com, et al. v. Federal Transit Administration, et
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al., Civ. No. 11-00307 AWT. He declared that his hourly rate in
that case was $570.00, and that his co-counsel’s rate was $800.00
per hour. Additionally, he declared that the federal case
involved issues similar to those in the instant case. Kaleikini
also attached a declaration of James J. Bickerton, who declared
that the rates requested by Kaleikini’s attorneys were “at or
below the prevailing market hourly rate for professionals of
similar experience, skill and competence.”
The City argues that Kaleikini’s requested rates are
not reasonable. The City does not suggest an alternative rate
that would be reasonable, but points to cases in both state and
federal courts in Hawai#i in which attorneys were compensated at
lower rates than those requested here. In response, Kaleikini
cites to cases in both state and federal courts in which
attorneys were compensated at the same or higher rates as those
requested here.
The most recent state case cited by the parties that
addresses hourly rates is C&J Coupe. There, the requested hourly
rate was not challenged by the opposing party, and this court
determined that the rates “appear[ed] to be reasonable[.]” 120
Hawai#i at 407, 208 P.3d at 720. The rates were as follows:
Kenneth R. Kupchak $335-350
Robert H. Thomas $300-325
Mark M. Murakami $220-230
Robert D. Harris $190
Christie-Anne H. Kudo-Chock $145-150
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Cherise Agua-Andrews $145
Eugenie-Mae Kincaid $130
Id.15
In a recent unpublished federal district court order in
Olson v. Lui, No. 10-00691 ACK-RLP, 2012 WL 3686682 (D. Haw. Aug.
27, 2012), the court awarded attorney’s fees at the following
rates:
Paul Alston $450
Pamela W. Bunn $270
Shellie Park-Hoapili $200
Noreen M. Kanada $100
Gail Pang $50
Id. at *2-5.
The order indicated that Alston had more than 40 years
of experience, Bunn had 15, and Park-Hoapili had almost seven.16
Id. at *3-4.
Here, Frankel was admitted to practice in 1992 (20
years prior to the 2012 decision in Kaleikini), and Obrey in 2009
(3 years). Using the foregoing rates as a guide, we conclude
that $300.00 per hour is a reasonable hourly rate for Frankel,
and $160.00 is a reasonable hourly rate for Obrey. These rates
15
Although the opinion did not list the years of experience for each
attorney, a review of the Hawai#i State Bar Association’s 2009-2010 Annual
Directory indicates that Kupchak was admitted to practice in 1971 (38 years
prior to the 2009 decision in C&J Coupe), Thomas in 1987 (22 years), Murakami
in 1999 (10 years), Harris in 2002 (7 years), and Kudo-Chock in 2007 (2
years). Agua-Andrews and Kincaid are not listed in the Directory.
16
It appears that Kanada and Pang were paralegals. Olson, 2012 WL
3686682 at *5.
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are well within the range of associate and partner rates listed
in the Pacific Business News 2012 Book of Lists, which was
attached to Kaleikini’s request as Appendix C.17
Based on the foregoing, we grant Kaleikini’s request
for fees in the amount of $36,120.00 for work performed by
Frankel (120.4 hours x $300.00 per hour), and $5,072.00 for work
performed by Obrey (31.7 hours x $160.00 per hour), for a total
award of $41,192.00.
F. Kaleikini is not entitled to an enhancement of the lodestar
amount
Kaleikini asks that this court enhance her attorney’s
fee award by a multiplier of two, based on this court’s opinion
in Schefke. The City argues that an enhancement is not available
under Schefke, nor is it supported by the policies underlying
Schefke. The City also argues that an enhancement by a
multiplier of two would be unreasonable. Kaleikini responds that
an enhancement is supported by the reasoning in Schefke, and that
Schefke expressly leaves the door open for an enhanced award for
non-profit public interest law firms. For the reasons set forth
below, Kaleikini’s argument is without merit.
In Schefke, the trial court awarded fees based on the
lodestar method, but denied the plaintiff’s request for a
multiplier. 96 Hawai#i at 419, 32 P.3d at 63. On appeal, this
17
The list provides a range of partner billing rates from $150.00 to
$595.00 at the top 50 ranked firms. The list provides a range of associate
billing rates from $120.00 to $300.00 at the same firms.
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court vacated the fee award on other grounds, and also addressed
the enhancement issue. Id. at 445, 32 P.3d 89. After reviewing
conflicting federal case law concerning enhancements, id. at
445-51, 32 P.3d at 89-95, this court held that “where a court
awards attorney’s fees pursuant to fee-shifting statutes in cases
involving contingency fee arrangements,” the contingent fee
arrangement does not place a ceiling on the amount of fees
recoverable, id. at 450-51, 32 P.3d at 94-95. Thus, “should a
fee agreement provide less than a reasonable fee, the defendant
should nevertheless be required to pay the higher amount.” Id.
at 451, 32 P.3d at 95 (brackets and ellipses omitted) (quoting
Blanchard v. Bergeron, 489 U.S. 87, 93 (1989). This court
continued:
For example, if a nonprofit legal service organization
represents a plaintiff and agrees to receive no
compensation from the plaintiff, that fact will not
bar the plaintiff from obtaining a reasonable fee
award when he or she prevails. Thus, in this case,
the fact that doubling Plaintiff’s lodestar fees would
result in more fees than Plaintiff agreed to pay his
attorney should not in itself prevent Plaintiff from
receiving that amount. However, if the doubled amount
exceeds a “reasonable” fee, Plaintiff is not entitled
to the exceeded amount.
Id. at 451, 32 P.3d at 95.
In sum, this court concluded that “our courts should be
given discretion to enhance the lodestar fee when an attorney has
been retained on a contingency fees basis.” Id. at 452, 32 P.3d
at 96.
By its clear terms, the holding in Schefke does not
apply in the instant case. First, Schefke was clearly limited to
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cases involving fee-shifting statutes. Id. at 454, 32 P.3d at 98(“We note that this holding applies only to statutes with fee-
shifting provisions enacted to encourage the enforcement of law
through lawsuits filed by private persons.” (internal quotation
marks, ellipses, and citation omitted)). Here, however,
Kaleikini seeks fees pursuant to the private attorney general
doctrine, rather than a fee-shifting statute.
Second, Schefke is clearly limited to cases taken on a
contingency basis:
A court must first determine whether a case was taken
on a contingency basis because if a client has
contracted to pay the lodestar fee, regardless of the
outcome of the case, and has paid the attorney on a
continuing basis, then the attorney has clearly
avoided the risk of nonpayment and enhancement is not
appropriate.
Id. at 454, 32 P.3d at 98 (internal quotation marks, ellipses and
brackets omitted).
Here, NHLC did not take Kaleikini’s case on a
contingency basis. Although Kaleikini asserts that, “[i]n this
case, the payment of any fees was purely contingent on prevailing
on the merits[,]” (emphasis added), she acknowledges that there
was no contingent fee arrangement by which she would pay NHLC in
the event she prevailed.
Nevertheless, Kaleikini points to the following
sentence from Schefke as indicating that her fee request was
intended to be covered by the Schefke rule: “For example, if a
nonprofit legal service organization represents a plaintiff and
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agrees to receive no compensation from the plaintiff, that fact
will not bar the plaintiff from obtaining a reasonable fee award
when he or she prevails.” Id. at 451, 32 P.3d at 95. However,
read in context, it is not apparent that this sentence was
intended to extend the Schefke enhancement rule to circumstances
in which a legal service organization represents a client without
the expectation of compensation. Rather, it appears that this
court viewed such a circumstance as analogous to an enhancement,
in that the legal service provider could receive more fees from
the defendant than what the plaintiff had originally contracted
to pay.18 Moreover, this single statement is not sufficient to
override the repeated statements by the Schefke court that the
holding there was specific to contingency fee arrangements. See,
e.g., id. at 450-51, 32 P.3d at 94-95 (allowing enhancements
“where a court awards attorney’s fees pursuant to fee-shifting
statutes in cases involving contingency fee arrangements”); id.
at 454, 32 P.3d at 98 (noting that one of three factors a court
must consider in determining whether to award an enhancement is
“whether a case was taken on a contingent basis” (internal
quotation marks and citation omitted)).
Moreover, the policies underlying Schefke do not
18
The enhancement is designed to prevent the contingent fee from
being a “ceiling” on the attorney’s compensation. See id. at 450, 32 P.3d at
94. Put another way, under a contingency arrangement, an attorney may
contract to receive less than a reasonable fee -- and less than the lodestar
amount -- from his or her client. However, the enhancement allows the
attorney to receive a reasonable fee award from the defendant, even if that
fee exceeds what the client would have paid the attorney under the contingency
arrangement.
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support an extension of the enhancement rule to the circumstances
of this case. The purpose of an enhancement in contingency fee
cases is to ensure that the attorney is awarded a reasonable fee.
See id. at 451, 32 P.3d at 95. “Contingency enhancements merely
compensate lawyers at market rates for services lawyers provide
to clients who win.” Id. at 453, 32 P.3d at 97 (quoting Charles
Silver, Incoherence and Irrationality in the Law of Attorneys’
Fees, 12 Rev. Litig. 301, 332 (1993)). Although Schefke clearly
states that the fee may be enhanced beyond the lodestar, “[t]here
is a ‘strong presumption’ that the lodestar represents the
‘reasonable’ fee.” Id. at 443 n.72, 32 P.3d at 87 n.72
(quotation marks and brackets omitted); see also Perdue v. Kenny
A., 559 U.S. 542, --, 130 S.Ct. 1662, 1673 (2010) (“[T]here is a
‘strong presumption’ that the lodestar figure is reasonable, but
that presumption may be overcome in those rare circumstances in
which the lodestar does not adequately take into account a factor
that may properly be considered in determining a reasonable
fee.”).
Here, Kaleikini offers no argument to rebut the
presumption that the lodestar is reasonable. The only factors
she relies on asserting that she is entitled to a multiplier of
two are (1) any award of fees in this case was contingent on
Kaleikini prevailing and seeking fees from defendants; (2) her
attorneys’ time could have been spent representing “other
deserving native Hawaiians”; and (3) this court’s decision
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involved “significant and broad issues of great public interest.”
However, these factors do not establish that the lodestar is
unreasonable, or that an enhancement is necessary to achieve a
reasonable fee.
Finally, it should be noted that Kaleikini’s requested
enhancement exceeds the multiplier that is ordinarily awarded.
Schefke, 96 Hawai#i at 455, 32 P.3d at 99. Although the
enhancement in “typical contingency cases rang[es] between twenty
and thirty-five percent of the lodestar[,]” id., Kaleikini
requests a multiplier of two, i.e., one hundred percent of the
lodestar. Such an enhancement is exceedingly rare, id. at 455-56
n.102, 32 P.3d at 99-100 n.102 (noting that a 100% enhancement
had been awarded only in civil rights cases and only three times
between 1980 and 1985), and
will be appropriate only in the rare and exceptional
case in which the risk of nonpayment has not been
mitigated at all, i.e., where the “legal” risk
constitutes an economic disincentive independent of
that created by the basic contingency in payment and
the result achieved is significant and of broad public
interest.
Id. at 456, 32 P.3d at 100 (brackets omitted) (quoting Rendine v.
Pantzer, 661 A.2d 1202, 1231 (N.J. 1995)).
Kaleikini has not presented any argument to support
such an extraordinary multiplier. Moreover, the prospect of
Kaleikini receiving any fees in this case, even is she prevailed,
was entirely speculative in light of this court’s limited case
law on the private attorney general doctrine. Thus, it does not
appear that lack of payment was an economic disincentive for her
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counsel. Additionally, although this case was significant and
the public will benefit from the decision, “the result achieved
cannot be said to be of such significant and broad interest as to
justify a multiplier of two.” See id. (internal quotation marks
and ellipses omitted).
In sum, Schefke does not apply and Kaleikini offers
insufficient argument to rebut the presumption that the lodestar
represents a reasonable fee. Accordingly, the imposition of an
enhancement in this case is unwarranted.
G. Kaleikini is entitled to her requested costs
Kaleikini asserts that she incurred $343.00 in costs
relating to her appeal, consisting of $275.00 in court costs for
the filing of the appeal and $68.00 for the cost of printing
briefs and appendices on appeal (170 pages x 4 copies at 10¢ per
page). Kaleikini asserts that these costs are authorized
pursuant to HRAP Rule 39(c) (2012), which provides, “Costs in the
appellate courts are defined as: . . . (3) the fee for filing the
appeal; [and] (4) the cost of printing or otherwise producing
necessary copies of briefs and appendices, provided that copying
costs shall not exceed 20¢ per page[.]”
The City objects to some of Kaleikini’s requested costs
relating to work in the trial court, but does not specifically
object to any of the costs Kaleikini requests in relation to her
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appeal.19 At the same time, the City argues that Kaleikini’s
“only possible recoverable cost is the $275 appellate filing
fee.” The City does not explain why Kaleikini’s $68.00 in costs
for copying briefs and appendices should be disallowed.
Recovery of the $275.00 appellate filing cost is
expressly permitted pursuant to HRAP Rule 39(c)(3), and the City
does not object to this cost item. Accordingly, we grant
Kaleikini’s request for $275.00 in appellate filing costs.
In addition, Kaleikini’s copying costs are expressly
recoverable under HRAP Rule 39(c)(4). This court has noted that
costs recoverable pursuant to HRAP Rule 39(c)(4) include “those
briefs encompassed by HRAP Rule 28, including the number of
copies required by HRAP Appendix A.” Kamalu v. ParEn, Inc., 110
Hawai#i 269, 279, 132 P.3d 378, 388 (2006). In addition, HRAP
Rule 32.1 requires parties to deliver to the appellate clerk
paper copies of the documents specified in HRAP Appendix A, which
includes four copies of opening, answering, and reply briefs.
Here, Kaleikini’s opening brief consisted of 43 pages
and the attached appendices consisted of 128 pages, for a total
of 171 pages. Accordingly, Kaleikini’s request for $68.00 in
copying costs (170 pages x 4 copies at 10¢ per page) is
reasonable, and would appear to be less than Kaleikini actually
19
The State does not provide any argument with respect to
Kaleikini’s costs.
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expended.20 We therefore grant Kaleikini’s request for $68.00 in
copying costs.
Based on the foregoing, we grant Kaleikini’s request
for costs in the amount of $343.00.
III. CONCLUSION
Kaleikini’s request for appellate attorney’s fees and
costs is granted against the City in the amount of $41,192.00 in
attorney’s fees and $343.00 in costs. Kaleikini’s request for
trial level fees and costs is denied, without prejudice to her
seeking those fees and costs in the circuit court.
David Kimo Frankel and /s/ Mark E. Recktenwald
Ashley K. Obrey for
petitioner /s/ Paula A. Nakayama
William J. Wynhoff for /s/ Sabrina S. McKenna
State respondents
/s/ R. Mark Browning
Robert C. Godbey, Don S.
Kitaoka, Gary Y. Takeuchi, /s/ Fa#auuga To#oto#o
John P. Manaut and Lindsay N.
McAneeley for City respondents
William Meheula and
Keani Alapa for amicus curiae
20
Additionally, it appears that Kaleikini has not sought costs for
her reply briefs.
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